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EXHIBIT 10.33
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
This Series D Preferred Stock Purchase Agreement (this "AGREEMENT"), dated
as of May 30, 2000, is made and entered into by and between Xxxxxxxx
Manufacturing Company, Inc., a Texas corporation (the "COMPANY"), and the
purchasers listed on the attached Schedule 1 (each a "PURCHASER").
R E C I T A L S
WHEREAS, the Company proposes to issue and sell to Purchasers 13,670 shares
of its Series D Redeemable Preferred Stock, $100 stated value per share (the
"SERIES D PREFERRED STOCK") to be sold in accordance with and subject to the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above premises and the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. PURCHASE AND SALE OF PREFERRED STOCK.
1.1 THE PREFERRED STOCK. Upon the terms and conditions contained herein,
the Company agrees to sell and issue to each Purchaser, and each Purchaser
severally agrees to purchase from the Company, at a purchase price with respect
to each Purchaser designated on Schedule 1 annexed hereto, the number of shares
of Series D Preferred Stock specified opposite such Purchaser's name on Schedule
1 annexed hereto.
1.2 PAYMENT AND DELIVERY. The Company shall deliver to each Purchaser a
stock certificate representing the Series D Preferred Stock acquired by such
Purchaser against delivery to the Company by such Purchaser of the purchase
price specified opposite such Purchaser's name on Schedule 1 annexed hereto (the
"PURCHASE PRICE"), such Purchase Price to be paid by check or wire transfer to
the Company.
SECTION 2. CLOSING DATE. The consummation of the purchase and sale transaction
described herein (the "CLOSING") shall occur concurrently with the execution and
delivery of this Agreement and the payments required hereunder.
SECTION 3. COMPANY REPRESENTATIONS. The Company represents and warrants to each
Purchaser that:
(a) Organization, Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Texas and has all the requisite power and authority to
own or lease and operate
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its properties and to carry on its business as now conducted and as
proposed to be conducted.
(b) Authorization and Enforceability. The Company has all requisite
corporate power and authority to enter into and perform all its obligations
under this Agreement, to issue the Series D Preferred Stock and to carry
out the transactions contemplated hereby and thereby. The Company has duly
and properly taken all actions necessary to authorize it to enter into and
perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. This Agreement is a legal, valid and
binding obligation of the Company, enforceable in accordance with its
terms, except for the effect upon such agreements of bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to
or affecting the rights of creditors generally and of general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
(c) Capitalization. The authorized capital stock of the Company
consists of 15,000,000 shares of Common Stock and 25,000,000 shares of
preferred stock, of which 500,000 shares have been designated as Series D
Preferred Stock. Of the Company's authorized capital stock, 3,154,644
shares of Common Stock, 9,161,567 shares of Series C Preferred Stock and
50,000 shares of Series D Preferred Stock will be issued and outstanding
immediately prior to the Closing. The Series D Preferred Stock is duly
authorized and, when issued and paid for pursuant to the terms of this
Agreement, will be validly issued, fully paid and nonassessable. There are
no outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or liens granted or issued by the Company
or any of its subsidiaries relating to or entitling any person to purchase
or otherwise to acquire any shares of the capital stock of the Company,
except as otherwise disclosed on Schedule 2 annexed hereto.
(d) Non-Contravention by Company. Neither the execution and delivery
of this Agreement nor the issuance, sale or delivery of the Series D
Preferred Stock by the Company, nor the performance of the obligations of
the Company and its securityholders hereunder or thereunder, nor any action
by the Company contemplated hereunder or thereunder, violates any
provisions of the Articles of Incorporation or Bylaws of the Company, or
violates or constitutes a breach of or a default under, or would result in
the acceleration of or entitle any party to accelerate (whether after the
giving of notice or lapse of time or both) any material obligation under,
or result in the creation or imposition of any lien, charge, pledge,
security interest or other encumbrance of any kind upon the property or
assets (real, personal or mixed, tangible or intangible) of the Company
pursuant to any provision of any material promissory note, security
interest, bond, mortgage, indenture, lien, claim, charge, right, option,
lease, agreement, license, pledge, encumbrance, instrument, commitment,
law, ordinance, regulation, order, arbitration award, judgment or decree to
which the Company is a party or by which it or any of its properties or
assets (real, personal or mixed, tangible or intangible) are bound which
would have a material adverse effect on the Company.
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(e) Private Offering. The Company agrees that neither it, nor anyone
acting on its behalf, will offer the Series D Preferred Stock so as to
bring the issuance and sale of such securities within the provisions of
Section 5 of the Securities Act of 1933, as amended (the "Securities Act"),
nor offer any similar securities for issuance or sale to, or solicit any
offer to acquire any of the same from, or otherwise approach or negotiate
with respect thereto with, anyone if the sale of the Series D Preferred
Stock and any such securities would be integrated as a single offering for
the purposes of the Securities Act, including, without limitation,
Regulation D thereunder.
(f) Brokers. The Company has not retained, directly or indirectly, any
broker or finder or incurred any liability or obligation for any brokerage
fees or finder's fees with respect to this Agreement or the transactions
contemplated hereby.
(g) Survival of Representations and Warranties. All the Company's
representations and warranties herein shall survive the execution and
delivery of this Agreement, any investigation by the Purchasers and the
issuance of the Series D Preferred Stock.
SECTION 4. INVESTMENT REPRESENTATIONS. Each Purchaser acknowledges that the
Series D Preferred Stock is not being registered under the Act, based, in part,
on reliance that the issuance of the Series D Preferred Stock is exempt from
registration under Section 4(2) of the Act as not involving any public offering.
Each Purchaser further acknowledges that the Company's reliance on such
exemption is predicated, in part, on the several representations set forth below
made by each Purchaser to the Company.
(a) Such Purchaser is acquiring the Shares solely for such Purchaser's
own account, for investment purposes only, and not with an intent to sell,
or for resale in connection with any distribution of all or any portion of
the Series D Preferred Stock within the meaning of the Act;
(b) In evaluating the merits and risks of an investment in the Series
D Preferred Stock, such Purchaser has relied upon the advice of such
Purchaser's legal counsel, tax advisors, and/or investment advisors;
(c) Such Purchaser is experienced in evaluating and investing in
companies such as the Company. In addition, such Purchaser has a
preexisting business relationship with the Company. As a result of such
relationship, such Purchaser has access on a regular basis to the Company's
financial statements and other records and information material to the
Company's financial condition, operations and prospects. Such Purchaser has
been given access to all books, records and other information of the
Company which such Purchaser has desired to review and analyze in
connection with such Purchaser's purchase of the Series D Preferred Stock
hereunder.
(d) Such Purchaser is aware that an investment in securities of a
closely held corporation such as the Company is not liquid and will require
such
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Purchaser's capital to be invested for an indefinite period of time,
possibly without return. Such Purchaser has no need for liquidity in this
investment, has the ability to bear the economic risk of this investment,
and can afford a complete loss of the Purchase Price;
(e) Such Purchaser understands that the Series D Preferred Stock being
purchased hereunder is characterized as "restricted securities" under the
federal securities laws since the Series D Preferred Stock is being
acquired from the Company in a transaction not involving a public offering
and that under such laws and applicable regulations such securities may be
resold without registration under the Act only in certain limited
circumstances. Such Purchaser represents that such Purchaser is familiar
with Rule 144 promulgated under the Act, as presently in effect, and
understands the resale limitations imposed thereby and by the Act;
(f) At no time was an oral representation made to such Purchaser
relating to the purchase or was such Purchaser presented with or solicited
by any leaflet, public or promotional meeting, newspaper or magazine
article, radio or television advertisement or any other form of general
advertising relating to the purchase hereunder; and
(g) Such Purchaser has read and understands the restrictions set forth
in that certain Amended and Restated Securityholders Agreement, as amended
by the First Amendment thereto dated as of September 28, 1999 (the
"SECURITYHOLDERS AGREEMENT").
SECTION 5. STOCK CERTIFICATE LEGEND. Each Purchaser understands and
acknowledges that the certificate evidencing the Series D Preferred Stock
purchased by such Purchaser hereunder (or evidencing any other securities
issued with respect thereto pursuant to any stock split, stock dividend,
merger or other form of reorganization or recapitalization) shall bear, in
addition to any other legends which may be required by this Agreement or
applicable state securities laws, the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO
SUCH SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION OR NO-ACTION LETTER ISSUED BY THE SECURITIES AND EXCHANGE
COMMISSION THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT
TO RULE 144 OF SUCH ACT. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE SECURITYHOLDERS AGREEMENT,
COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM THE CORPORATION AND ANY
SUCCESSOR THERETO."
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SECTION 6. MISCELLANEOUS.
6.1 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, and all of which together
shall constitute one and the same agreement.
6.2 NOTICES. Any notice, demand, request or other communication herein
requested or permitted to be given shall be in writing and may be personally
served, telecopied, telexed or sent by courier service or United States mail and
shall be deemed to have been given when delivered in person or by courier
service, upon receipt of a telecopy or telex or four business days after deposit
in the United States mail (registered or certified, with postage prepaid and
properly addressed). For purposes hereof, the addresses of the parties hereto
(until notice of a change thereof is delivered as provided in this Section 6.2)
shall be as follows:
If to the Company: Xxxxxxxx Manufacturing Company, Inc.
0000 Xxxxxxx
Xxxxxxxxx, Xxxxx 00000
Attention: President
If to Purchaser: At the address specified on Schedule 1
6.3 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Texas.
6.4 ASSIGNMENTS. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either party without the
prior written consent of the other.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
"THE COMPANY"
XXXXXXXX MANUFACTURING COMPANY, INC.,
a Texas corporation
By:
-------------------------------------
Name:
-----------------------------------
Its:
-----------------------------------
WESTAR CAPITAL II, LLC
By: Westar Capital Associates II, LLC
By:
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Name: Xxxx X. Xxxxx
Its: Manager
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TWELVE D LIMITED, A TEXAS LIMITED
PARTNERSHIP
By: Cyclone Tours, Inc.
Its: General Partner
By:
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Name: Xxxxxxxx X. Xxxxxxxx, Xx.
Its: President
HBI FINANCIAL, INC.,
a Texas corporation
By:
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Name: Xxxxxx X. Xxxxxxx
Its: Chairman of the Board and President
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Schedule 1
Name Address
---- -------
HBI Financial, Inc. x/x Xxxxxx & Xxxxxxx XXX
X.X. Xxxx Xxxxxx, Xxxxx 000
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Westar Capital II, LLC 000 Xxxxx Xxxxx
Xxxxx Xxxxx 000
Xxxxx Xxxx, XX
00000 Facsimile
No.: 000-000-0000
Twelve D Limited 0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Schedule 1-1
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Schedule 1
(Shows number of Series D Preferred Stock in proportion to number of shares of
common stock held adjusted to total 100% assuming no other shareholders
participate)
Number of Series D
Preferred Stock Aggregate
Name of Purchaser to be Purchased Purchase Price
--------------------- ------------------ --------------
HBI Financial Inc. 10,048 $1,004,800
Westar Capital II LLC 2,131 $ 213,100
Twelve D Limited 1,491 $ 149,100
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Total: 13,670 $1,367,000
Schedule 1-2
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Schedule 2
Outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or liens granted or issued by the Company or any
of its subsidiaries relating to or entitling any person to purchase or otherwise
to acquire any shares of the capital stock of the Company
1. 1,013,974 shares of common stock issuable upon the exercise of
warrants at an exercise price of $0.01 per share, pursuant to that
certain Preferred Stock and Warrant Purchase Agreement, dated as of
October 12, 1999, between the Company and Westar Capital II, LLC, HBI
Financial, Inc. and Twelve D Limited.
2. 1997 Stock Option Plan of Company
Exhibit B-1
