STOCK PURCHASE AGREEMENT (the "Agreement") dated as of March 29, 1997,
between RTI Inc., a New York corporation (the "Company"), and the person listed
on the signature page hereto (the "Purchaser").
WHEREAS, the Company desires to issue and sell to the Purchaser, and the
Purchaser desires to acquire, shares of the Company's common stock, par value
$0.08 per share (the "Common Stock").
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the Company and the Purchaser agrees as follows:
ARTICLE 1
PURCHASE AND SALE OF COMMON STOCK
1.1 Purchase and Sale of Common Stock. Upon the terms and conditions set
forth herein, the Company shall issue and sell to the Purchaser, and the
Purchaser shall purchase, 145,000 shares (the "Shares") of Common Stock.
1.2 Purchase Price. The aggregate purchase price for the Shares purchased
by the Purchaser (the "Aggregate Purchase Price") shall be $420,500, and shall
be equal to the product of the number of Shares purchased by the Purchaser and
$2.90 (the "Purchase Price Per Share").
1.3 The Closing.
(a) The closing of the purchase and sale of the Shares (the "Closing")
shall take place at the offices of the Purchaser immediately following the
execution and delivery of this Agreement or on such other date and at such other
place as the Purchaser and the Company may agree. The date of the Closing is
hereinafter referred to as the Closing Date.
(b) At the Closing, (i) the Company shall deliver to the Purchaser one
or more stock certificates representing the Shares, which shall be free of
restrictive legends or "stop transfer" restrictions, registered in the name of
the Purchaser, and (ii) the Purchaser shall deliver to the Company the Aggregate
Purchase Price as determined pursuant to this Article I in immediately available
funds by wire transfer to such account as shall be designated in writing by the
Company. In addition, each of the Company and the Purchaser shall deliver all
documents, instruments and writings required to be delivered by either of them
pursuant to this Agreement at or prior to Closing.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Representations, Warranties and Agreements of the Company. The Company
hereby makes the following representations, warranties and agreements with and
to the Purchaser:
(a) ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
and validly existing and in good standing under the laws of the State of New
York and has the requisite corporate power to own its properties and to carry on
its business as now being conducted. Except for Refrigeration Technology, Inc.,
the Company does not have any active subsidiaries. The Company is duly qualified
as a foreign corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted or property owned by
it makes such qualification necessary and where the failure so to qualify could
reasonably be expected to have a Material Adverse Effect. "Material Adverse
Effect" means any material adverse effect on the operations, properties,
prospects, or financial condition of the Company.
(b) AUTHORIZATION. (i) The Company has the requisite corporate power
and authority to enter into and perform this Agreement and to issue the Shares
in accordance with the terms hereof, (ii) the execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby has been duly authorized by the Company's Board of Directors
and no further consent or authorization of the Company or its Board of Directors
or stockholders is required, (iii) this Agreement has been duly executed and
delivered by the Company, and (iv) this Agreement constitutes a valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general application.
(c) ISSUANCE OF SHARES. The Shares are duly authorized and, when paid
for in accordance with the terms hereof, shall be validly issued, fully paid and
nonassessable and free and clear of all liens, claims and encumbrances. The
Company has and will maintain an adequate reserve of shares of Common Stock to
enable it to perform its obligations under this Agreement.
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(d) NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby or relating hereto do not and will not (i) result in the
violation of the Company's certificate of incorporation or by-laws or (ii)
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company is a party or, to the actual
knowledge of the Company, result in a violation of any law, rule, regulation,
order, judgment or decree (including Federal and state securities laws and
regulations) applicable to the Company, or by which any property or asset of the
Company is bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect). The Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or issue and sell the Shares in accordance with
the terms hereof.
(e) SEC FILINGS. The Common Stock of the Company is registered
pursuant to Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange
Act") and through and including the date hereof, the Company has filed all
reports, schedules, forms, statements and other documents required to be filed
by it with the Securities and Exchange Commission (the "SEC") pursuant to the
reporting requirements of the Exchange Act, including material filed pursuant to
section 13(a) or 15(d) (all of the foregoing filed prior to the date hereof
being hereinafter referred to herein as the "SEC Documents"). The Company
previously has delivered or otherwise made available to the Purchaser or its
representatives true and complete copies of the SEC Documents (other than
documents incorporated by reference therein but not filed therewith) filed with
the SEC since December 31, 1995. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the SEC promulgated thereunder applicable to such
SEC Documents, and none of the SEC Documents, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The financial
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statements of the Company included in the SEC Documents comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statement, to normal year-end audit
adjustments).
2.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
makes the following representations and warranties to the Company:
(a) ORGANIZATION; AUTHORIZATION. (i) The Purchaser, if not an
individual, is a corporation or partnership duly and validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, (ii) the Purchaser has the requisite power to own its properties
and to carry on its business as now being conducted, (iii) the Purchaser has the
requisite power, capacity and authority to enter into and perform this
Agreement, (iv) the execution and delivery of this Agreement by the Purchaser,
if not an individual, and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary action, and no
further consent or authorization of the Purchaser or its Board of Directors or
stockholders or partners is required, (v) this Agreement has been duly executed
and delivered by the Purchaser, and (vi) this Agreement constitutes a valid and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of, creditors'
rights and remedies or by other equitable principles of general application.
(b) NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Purchaser and the consummation by the Purchaser of the
transactions contemplated hereby or relating hereto do not and will not (i) if
the Purchaser is not an individual, result in the violation of the Purchaser's
charter documents or By-Laws or other organizational documents, or (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, any agreement, indenture or instrument to
which the Purchaser is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree of any court or any governmental agency
applicable to the Purchaser or its properties (except for such conflicts,
defaults and violations as would not, individually or in the aggregate, have a
material adverse effect on the Purchaser). The Purchaser is not required to
obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or purchase the
Shares in accordance with the terms hereof.
(c) NON U.S. OWNERSHIP. The Purchaser is not a U.S. Person as defined
within Regulation S ("Regulation S") promulgated under the Securities Act of
1933 (the "Securities Act") and is not purchasing the Shares for the account or
benefit of a U.S. Person. The Purchaser has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the investments contemplated by this Agreement. The Purchaser has been
afforded, to the satisfaction of the Purchaser, the opportunity to review the
SEC Documents and obtain such additional publicly available information
concerning the Company and its business, and to ask such questions and receive
such answers (based upon publicly available information), as the Purchaser deems
necessary to make an informed investment decision.
(d) INVESTMENT INTENT. The Purchaser is purchasing the Shares for
investment purposes and not with a view towards distribution. The Purchaser has
no present intention to sell the Shares and has no present arrangement (whether
or not legally binding) to sell the Shares to or through any person or entity;
provided, however, that by making the foregoing representation and warranty, the
Purchaser does not agree to hold the Shares for any minimum or other specific
term and reserves the right to dispose of the Shares at any time in accordance
with the Securities Act and any other applicable securities laws.
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ARTICLE 3
COVENANTS
3.1 REGULATION S.
(a) The Company shall take all necessary reasonable corporate action
and proceedings as may be required by applicable law, rule or regulation for the
legal and valid issuance of the Shares to the Purchaser at the Closing in
accordance with this Agreement and for any transfer or other disposition or
financing thereof, when and as permitted under Regulation S without registration
under the Securities Act or other applicable law. Neither the Company nor any of
its affiliates have engaged or will engage in any "directed selling efforts" (as
such term is defined under Regulation S) with respect to the Shares and have
complied and will comply with the "offering restrictions" requirements of
Regulation S.
(b) The Purchaser acknowledges that the Shares have not been, and will
not be, registered under the Securities Act. The Purchaser covenants (i) that it
is not, and does not intend to be, a "distributor" (as such term is defined by
Regulation S) of the Shares, but if it so acts then the Purchaser will comply
with all applicable requirements under Regulation S in connection therewith,
(ii) that (A) for a period of time which exceeds the 40-day restricted period
contemplated by Regulation S, it will not offer to re-sell, or re-sell, the
Shares either within the United States or to, for the account of, or for the
benefit of, any "U.S. person" (as such term is defined in Regulation S), and (B)
following the expiration of the 40-day restricted period, it will not offer to
re-sell, or re-sell, the Shares either within the United States or to, for the
account of, or for the benefit of, any "U.S. person", except in accordance with
the provisions of Rule 903 or Rule 904 of Regulation S or pursuant to an
exemption from the registration requirements of the Securities Act, and (iii)
that neither the Purchaser or its affiliates, nor persons acting on their
behalf, have engaged or will engage in "directed selling efforts" (as such term
is defined in Regulation S) with respect to the Shares and that, if the
Purchaser is a distributor, as contemplated within Regulation S, it has
complied, and will comply, with the "offering restrictions" requirements of
Regulation S.
(c) The Company acknowledges that the Purchaser from time to time may
engage in purchases, sales, financings or transactions in the Common Stock
separate and apart from the Shares acquired pursuant to this Agreement.
3.2 LIMITATIONS ON PURCHASER'S RIGHT TO SELL COMMON STOCK. The Purchaser
agrees that, during the period commencing on the Closing Date and ending at
least 40 days thereafter, it will not engage in any short selling or other
hedging transaction in the Shares including, without limitation, option writing
equity swaps or other types of derivative transactions, the intent of which is
to transfer incidence of ownership into the United States during such period.
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ARTICLE 4
CONDITIONS
4.1 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY TO SELL THE
SHARES. The Obligation hereunder of the Company to sell the Shares to the
Purchaser is further subject to the satisfaction, at or before the Closing, of
each of the following conditions set forth below. These conditions are for the
Company's sole benefit and may be waived by the Company at any time in its sole
discretion.
(a) ACCURACY OF THE PURCHASER' REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Purchaser shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time.
(b) PERFORMANCE BY THE PURCHASER. The Purchaser shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Purchaser at or prior to the Closing.
(c) NO INJUNCTION. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court of governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
(d) NO CHANGE IN REGULATION S. Regulation S shall not have been
amended or interpreted in a manner, which, in the reasonable judgment of the
Company, would materially adversely affect the issuance or sale of the Shares by
the Company.
4.2 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE PURCHASER TO PURCHASE THE
SHARES. The obligation of the Purchaser hereunder to acquire and pay for the
Shares is subject to the satisfaction, at or before the Closing, of each of the
following conditions set forth below. These conditions are for the Purchaser's
sole benefit and may be waived by the Purchaser at any time in its sole
discretion.
(a) ACCURACY OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time.
(b) PERFORMANCE BY THE COMPANY. The Company shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing.
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(c) NO INJUNCTION. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court of governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
(d) MATERIAL ADVERSE CHANGES. Since December 31, 1996, no event has
occurred that could reasonably be expected to have a Material Adverse Effect on
the Company, except as otherwise publicly disclosed.
(e) NO CHANGE IN REGULATION S. Regulation S shall not have been
amended or interpreted in a manner, which, in the reasonable judgment of the
Purchaser, would materially adversely affect the purchase of the Shares by the
Purchaser.
(f) NO SUSPENSION OF TRADING IN COMMON STOCK. The trading in the
Common Stock shall not have been suspended by the SEC or the National
Association of Securities Dealers, Inc. (the "NASD") (except for any suspension
of trading of limited duration solely to permit dissemination of material
information regarding the Company).
(g) OFFICER'S CERTIFICATE. The Company shall have delivered to the
Purchaser a certificate, executed by an executive officer of the Company, to the
effect that all the conditions to the closing shall have been satisfied.
ARTICLE 5
MISCELLANEOUS
5.1 FEES AND EXPENSES: NO BROKERS. Each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company
shall pay all stamp and other taxes and duties levied in connection with the
issuance of the Shares pursuant hereto. Each party represents that it has not
used the services of any broker in connection with this transaction, other than
a broker as to which such party shall be solely responsible for the payment of
any fees and expenses incurred in connection herewith.
5.2 ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
understanding of the parties with respect to the matters covered hereby and,
except as specifically set forth herein, neither the Company nor the Purchaser
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by a
written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought.
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5.3 NOTICES. Any notice, consent or other communication (collectively,
"Communications") required or permitted to be given hereunder shall be in
writing and shall be deemed to have been received (a) upon personal delivery,
(b) on the first business day following delivery by telecopy (with transmission
confirmation report) at the address or number designated below, or (c) on the
business day received if delivery is made by overnight express courier service,
. The addresses for such Communications shall be:
If to the Company: RTI Inc.
c/o Xxxx X. Xxxxxx
00 Xxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
With copies to: Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxx & Kuh, LLP
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
If to a Purchaser: At the address set forth on
the signature page hereto.
Either party hereto may from time to time change its address for notices under
this Section 5.3 by giving at least 10 days' notice of such changed address to
the other party hereto pursuant to this Section 5.3. Any notice of a change in
address shall be effective upon receipt thereof.
5.4 WAIVERS. No waiver by either party of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof; nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter. Any waiver must be in writing.
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5.5 HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
5.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns.
Neither the Company nor any Purchaser shall assign this Agreement or any rights
or obligations hereunder without the prior consent of the other (which consent
may be withheld for any reason in the sole discretion of the party from whom
consent is sought) and any such purported assignment shall be void, except that
the Company shall assign this agreement to any successor by merger or any
purchaser of all or substantially all of the assets of the Company. The
assignment by a party of this Agreement or any rights hereunder shall not affect
the obligations of such party under this Agreement.
5.7 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
5.8 GOVERNING LAW.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York without regard to the
principles of conflicts of law.
(b) Each of the Company and the Purchaser hereby (i) irrevocably
consents to the jurisdiction of the federal courts located in the State of New
York (or the courts of the State of New York if the federal court decline to
accept jurisdiction) in connection with any action or proceeding arising out of
or relating to this Agreement, any document or instrument delivered pursuant to,
in connection with, or simultaneously with this Agreement, or a breach of this
Agreement or any such document or instrument, and (ii) in any such action or
proceeding, waives personal service of any summons, complaint, or other process
and agrees that service thereof may be made in accordance with Section 5.3 and
shall constitute good and sufficient service of process and notice thereof.
5.9 SURVIVAL. The agreements and covenants of the Company and the Purchaser
contained in Article III and this Article V shall survive the termination of
this Agreement or the consummation of the transactions contemplated hereby. The
representations and warranties of the Company and the Purchaser contained in
Article II shall survive until a date that is one year after the Closing.
5.10 EXECUTION. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original for all purposes and any one of which
may be introduced into evidence or used for any other purpose without the
production of its duplicate counterpart, and all of which shall be considered
one and the same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event any signature
is delivered by facsimile transmission, the party using such means of delivery
shall cause four additional executed signature pages to be physically delivered
to the other party within five days of the execution and delivery hereof.
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5.11 PUBLICITY. The Company and the Purchaser shall consult with each other
in issuing any press releases or otherwise making public statements with respect
to the transactions contemplated hereby. Except to the extent required by law,
neither party shall issue any press release or otherwise make any public
statement without the prior consent of the other, which consent shall not be
unreasonably withheld or delayed.
5.12 SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, in light of the tenor of this Agreement, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
date hereof.
RTI INC.
By: /s/ XXXX X. XXXXXX
------------------------
Xxxx X. Xxxxxx
Chairman and Chief
Executive Officer
LUC HERROELEM
[Name of Purchaser]
Please print:
Name: Xxx Xxxxxxxxx
Address: 00 X.X.X. Xxxxxxx
0000 Xxxxxxxx, Xxxxxxx
Facsimile: 011-32-2-425-7618
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