EXECUTION
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "AGREEMENT") is made as of September 30,
1998, between Xxxxxxxxx Sign Company, a Texas corporation (the "COMPANY"), and
Xxxxx X. Xxxxxxxx ("XXXXXXXX").
The Company and Xxxxxxxx have entered into a Share Option Purchase
Agreement, dated as of the date hereof (the "OPTION AGREEMENT"), with Geneve
Securities Holding Corp., Chaparral International Re., Southern Mortgage Holding
Corporation, Southern Investors Corp. and Geneve Securities Portfolio Corp.
(collectively referred to herein as "GHI"), pursuant to which GHI granted to the
Company an option to purchase 357,143 shares of the Company's Common Stock held
by GHI and granted to Xxxxxxxx has an option to purchase 428,000 shares of the
Company's Common Stock held by GHI (collectively, the "OPTION SHARES").
Promptly upon consummation of the transactions contemplated by the Option
Agreement, the Company desires to purchase from Xxxxxxxx, and Xxxxxxxx desires
to sell to the Company, 228,000 shares of the Company's Common Stock, for the
consideration described herein.
The Company has entered into a Senior Subordinated Note, Preferred
Stock and Warrant Purchase Agreement, dated as of the date hereof (the "PURCHASE
AGREEMENT"), pursuant to which the Company is issuing to certain investors
equity securities and subordinated notes. Execution, delivery and performance
of this Agreement is a condition to such investors' obligations thereunder.
In consideration of the mutual covenants and promises contained herein
and for the good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used and not defined
herein have the meanings assigned such terms in the Purchase Agreement.
SECTION 2. PURCHASE AND SALE OF THE SHARES. At the Closing (as
defined below), subject to the terms and conditions set forth herein, the
Company shall purchase from Xxxxxxxx, and Xxxxxxxx shall sell to the Company
228,000 shares of Common Stock owned by Xxxxxxxx (the "SHARES"), free and clear
of any Liens, for the consideration described, and payable in the manner set
forth, in Section 2.
SECTION 3. THE CLOSING. The closing of the purchase and sale of
the Shares (the "CLOSING") shall take place at 10:00 a.m. on the date that is
one business day following exercise by Xxxxxxxx of the Xxxxxxxx Option (as
defined) or on such other date as may be mutually agreeable to the Company and
Xxxxxxxx. At the Closing,
(a) Xxxxxxxx shall deliver to the Company the stock certificates
evidencing the Shares to be purchased by the Company duly endorsed in blank or
accompanied by duly executed stock powers upon payment of the purchase price
thereof; and
(b) as consideration for the sale of the shares hereunder the Company
shall deliver to Xxxxxxxx i) $98,000 in cash, and ii) stock certificates
representing 7,000 shares of the Company's Series B Preferred Stock.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
(a) Xxxxxxxx hereby represents and warrants to the Company as
follows:
(i) Immediately prior to the Closing, Xxxxxxxx will be the
record and beneficial owner of the Shares, free and clear
of all Liens, and at the Closing, the Company will acquire
good and marketable title to the Shares free and clear of
any Liens.
(ii) Except as set forth in the Stockholders Agreement,
Xxxxxxxx is not subject to any rights of first offer or
refusal with respect to the transfer of the Shares
contemplated hereby and has not violated any applicable
federal or state securities laws in connection with his
ownership or the sale any of the Shares pursuant hereto.
Xxxxxxxx has not granted any proxies or entered into and
the shares are not subject to any agreements with respect
to the voting or transfer of the Shares, except this
Agreement, the Stockholders Agreement and the Registration
Agreement.
(iii) Xxxxxxxx has all requisite power and authority to execute
and deliver this Agreement and consummate the transactions
contemplated hereby.
(iv) Xxxxxxxx is acquiring the Series B Preferred Stock
acquired hereunder for his own account with the present
intention of holding such securities for investment
purposes and has no intention of selling the Series B
Preferred Stock in a public distribution in violation of
the federal securities laws or any applicable state
securities laws.
(b) The Company hereby represents and warrants to Xxxxxxxx as
follows:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State
of Texas and has the requisite corporate power and
authority to enter into this Agreement and consummate the
transactions contemplated hereby.
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SECTION 5. MISCELLANEOUS.
5A. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. All covenants shall
expire upon the Closing.
5B. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
5C. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
5D. GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF TEXAS SHALL
GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE RIGHTS AND OBLIGATIONS
OF THE COMPANY AND ITS STOCKHOLDERS. ALL OTHER ISSUES AND QUESTIONS CONCERNING
THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND
THE EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF
TEXAS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS
OF ANY JURISDICTION OTHER THAN THE STATE OF TEXAS.
5E. NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid:
IF TO XXXXXXXX:
Xxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
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IF TO THE COMPANY:
Xxxxxxxxx Sign Company
0000 Xxx 00 Xxxx
Xxxxx, Xxxxx 00000
Attn: Chief Executive Officer
Telecopier: (000) 000-0000
WITH COPIES TO:
Xxxxxxx Xxxxxx L.L.P.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier: 214/953-5822
Bank of America National Trust and
Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxx
Telecopier: 312/828-6298
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
Telecopier: 312/861-2200
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
5F. THIRD PARTY BENEFICIARY. The provisions of this Agreement are
for the benefit of Continental Illinois Venture Corporation and MIG Partners
VIII and may be enforced by such persons against each of the parties hereunder.
5G. COUNTERPARTS. This Agreement may be executed in counterparts
which together constitute one and the same instrument.
5H. SPECIFIC PERFORMANCE. Each of the parties hereto acknowledges
and agrees that the other parties would be damaged irreparably in the event any
of the provisions of this Agreement are not performed in accordance with their
specific terms or are otherwise breached.
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Accordingly, each of the parties hereto agrees that the other parties shall be
entitled to an injunction or injunctions (without the posting of bond or any
other security) to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in any
action instituted in any court in the United States or in any state having
jurisdiction over the parties and the matter in addition to any other remedy to
which it may be entitled pursuant hereto.
5I. FURTHER ASSURANCES. Each of the parties hereto will act
diligently and cooperate with the other parties and take all actions necessary
(including securing any required consents) to consummate the actions
contemplated hereby.
* * * * *
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SIGNATURE PAGE TO PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
XXXXXXXXX SIGN COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Its: Chief Financial Officer
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
