Exhibit 2.2
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this "Agreement") is made and
entered into as of this 12th day of December, 2001, (the "Effective Date") by
and between American Physicians Service Group, Inc., a Texas corporation (the
"Company"), and DBMK Partners, Ltd., a Texas limited partnership (the
"Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
For and in consideration of the mutual promises and covenants contained
in this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. SALE OF COMMON STOCK. Subject to the terms and conditions of
this Agreement, and in reliance on the representations and warranties of the
Company, the Company hereby sells to the Purchaser, as of the Effective Date:
(a) 286,000 shares of the $0.01 par value common stock
of FemPartners, Inc., a Delaware corporation, currently owned by the Company and
reflected by certain common stock certificates as described on EXHIBIT A to this
Agreement (the "FemPartners Shares"); and
(b) all rights to receive any additional shares of common
stock of FemPartners, Inc. that the Company would have, as a result of and
assuming the continued ownership of the FemPartners Shares, been entitled to
receive pursuant to that certain Agreement and Plan of Merger, dated effective
as of August 31, 1999, by and among FemPartners, Inc., FemPartners of Central
Texas, Inc., and Syntera Healthcare Corporation (the "Merger Agreement"). The
Company does not assign rights that are held by the Company as a result of the
Company's ownership of FemPartners common stock not included in the "FemPartners
Shares."
The Purchaser, in exchange for the FemPartners Shares and related
rights, agrees to pay to the Company $37,500 upon execution of this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Purchaser that:
(a) Organization and Standing; Authority. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Texas and has the corporate power and authority to conduct its
business as now conducted and as proposed to be conducted and to enter into and
perform this Agreement. The execution, delivery and performance by the Company
of this Agreement and any other documents, instruments and transactions
contemplated by this Agreement (collectively, the "Documents") have been duly
authorized by all necessary corporate action of the Company, its officers,
directors and shareholders, and the Documents have been duly executed and
delivered by the Company.
(b) Ownership of FemPartners Shares. The Company owns the
FemPartners Shares free and clear of any and all liens, claims and encumbrances.
The FemPartners Shares have been duly and validly issued and are fully paid and
nonassessable. The Merger Agreement
and rights thereunder related to the FemPartners Shares are valid, binding and
enforceable, and the Merger Agreement and such rights are not diminished as a
result of this Agreement or the assignment of FemPartners Shares contemplated in
this Agreement.
3. REPRESENTATIONS OF THE PURCHASER. The Purchaser represents
and warrants to the Company as follows:
(a) Purchase Entirely for Own Account. This Agreement is made
with the Purchaser in reliance upon the Purchaser's express representation to
the Company that the FemPartners Shares and related rights will be acquired for
investment for such Purchaser's own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and that
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the FemPartners Shares and related rights. The Purchaser
further represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the FemPartners Shares and
related rights.
(b) Authority. Purchaser has full legal capacity to enter into
and perform this Agreement and the other Documents to which the Purchaser is a
party, and this Agreement and such other Documents have been duly executed and
delivered by the Purchaser. This Agreement and the other Documents constitute
valid and binding obligations of the Purchaser, enforceable in accordance with
their respective terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, and (iii) to the extent any indemnification provisions
may be limited by applicable federal or state securities laws. The execution and
delivery of this Agreement and performance of the transactions contemplated by
this Agreement and compliance with its provisions by the Purchaser will not
violate any provision of law.
(c) Restricted Securities. Purchaser understands that the
FemPartners Shares and related rights it is purchasing are "restricted
securities" under the federal securities laws because they are being acquired
from the Company in a transaction not involving a public offering and that under
such laws the FemPartners Shares and related rights may be resold without
registration under the Securities Act and applicable state securities laws only
in certain limited circumstances. In this regard, Purchaser represents that it
is familiar with Rule 144, as promulgated under the Securities Act, and
understands the resale limitations imposed thereby and by the Securities Act.
(d) Investment Experience. Purchaser is an investor in
securities of companies and acknowledges that it is able to fend for itself, can
bear the economic risk of its investment, and has such knowledge and experience
in financial or business matters that it is capable of evaluating the merits and
risks of the investment in the fempartners shares and related rights.
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4. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon, and inure to the benefit of, the permitted respective
successors, assigns, heirs, executors and administrators of the parties hereto.
5. MISCELLANEOUS.
(a) Survival of Representations and Warranties Except as
otherwise provided herein, all agreements, covenants, representations and
warranties contained herein shall survive the execution and delivery of this
Agreement and the closing of the transactions contemplated herein.
(b) Entire Agreement. This Agreement and the Documents embody
the entire agreement and understanding between the parties hereto with respect
to the subject matter hereof and thereof and supersede all prior agreements and
understandings relating to such subject matters.
(c) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures delivered by
telecopy shall be considered for all purposes to be the same as original
signatures.
(d) Severability. If any provision of this Agreement is held
by final judgment of a court of competent jurisdiction to be invalid, illegal or
unenforceable, such invalid, illegal or unenforceable provision shall be severed
from the remainder of this Agreement, and the remainder of this Agreement shall
be enforced. In addition, the invalid, illegal or unenforceable provision shall
be deemed to be automatically modified, and, as so modified, to be included in
this Agreement, such modification being made to the minimum extent necessary to
render the provision valid, legal and enforceable.
(e) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas including that
body of laws pertaining to conflicts of laws.
(f) Further Assurances. Each party of this Agreement hereby
covenants and agrees, without the necessity of any further consideration, to
execute and deliver any and all such further documents and take any and all such
other actions as may be necessary to appropriately carry out the intent and
purposes of this Agreement and to consummate the transactions contemplated. Each
party will use its good faith efforts to carry out and comply with the
provisions of this Agreement.
[Signature pages follow.]
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SIGNATURE PAGE
TO
COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Common Stock Purchase Agreement as of the day and year first above written.
THE COMPANY:
AMERICAN PHYSICIANS SERVICE GROUP, INC.
By:
/s/ X.X. Xxxxx
--------------------------
Name:
X.X. Xxxxx
--------------------------
Title:
Senior Vice President
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S-1
PURCHASER:
DBMK PARTNERS, LTD.
By: /s/ Xxxxx X. Xxxx Trust, its general partner
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Xxxxx X. Xxxx, Trustee
EXHIBIT A
Certificate # # Shares
165 14,407
167 14,407
169 14,407
171 13,721
177 5,539
181 10,099
183 16,933
219 5,494
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95,007
Balance of shares to be
reissued from certificate
#157, with face amount
of 342,953 shares. 190,993
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286,000
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