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EXHIBIT 10.3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of July 1,
1998, is by and between CROW FAMILY PARTNERSHIP, L.P., a Delaware limited
partnership, (the "Purchaser"), and XXXXXXX X. XXXX, an individual residing in
Dallas, Texas (the "Seller").
RECITALS:
A. The Purchaser wishes to purchase 40,000 shares (the "Shares") of
the common stock par value $.01 per share ("Common Stock"), of Xxxxxxxx Xxxx
Company, a Delaware corporation (the "Company") held of record by the Seller.
B. The Seller desires to sell the Shares to the Purchaser on the terms
and conditions set forth herein.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and conditions
hereof, the Seller agrees to sell, and the Purchaser agrees to purchase, the
Shares.
2. Purchase Price. (a) The purchase price shall be $3315/16 in cash
per Share, subject to adjustment as provided in paragraph 2(b), or an aggregate
of $1,357,500.00 (such aggregate price being referred to herein as the
"Purchase Price").
(b) If the Purchaser sells any Shares of Common Stock in one or
more secondary public offerings, pursuant to Rule 144, in negotiated
transactions or otherwise (each a "Subsequent Sale") at any time and from time
to time within six months after the date of this Agreement, the Purchase Price
shall be subject to adjustment as follows:
(i) If the per share consideration received by the Purchaser in
a Subsequent Sale exceeds $3315/16 per share, then the Purchaser shall
pay to the Seller an amount equal to (A) the amount by which the per
share consideration received in such Subsequent Sale exceeds $3315/16,
(B) multiplied by the number of shares of Common Stock sold in the
Subsequent Sale (provided that such number shall not exceed 40,000
shares in the aggregate for all Subsequent Sales); and
(ii) If the per share consideration received by the Purchaser
in a Subsequent Sale is less than $33 15/16, then the Seller shall pay
to the Purchaser an amount
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equal to (A) the amount by which the per share consideration received
in such Subsequent Sale is less than $33 15/16, (B) multiplied by the
number of shares of Common Stock sold in the Subsequent Sale (provided
that such number shall not exceed 40,000 shares in the aggregate for
all Subsequent Sales).
Any adjustment to the Purchase Price pursuant to this paragraph 2(b) shall be
paid by the Purchaser or the Seller, as applicable, in immediately available
funds within five business days after any Subsequent Sale.
3. Payment of Purchase Price, Delivery of Shares. Concurrently with
the execution of this Agreement, the Purchaser is delivering the Purchase Price
in immediately available funds to the Seller. As soon as practicable following
the execution of this Agreement, the Seller shall cause the transfer agent for
the Common Stock to deliver to the Purchaser certificates representing the
Shares dated as of the date hereof and otherwise in form satisfactory to the
Purchaser.
4. Representations and Warranties.
(a) The Seller hereby represents and warrants to the Purchaser
that:
(i) The Seller has all necessary power and authority to enter
into this Agreement and to sell, assign, transfer and deliver to the
Purchaser, pursuant to the terms and conditions of this Agreement, the
Shares;
(ii) Except for this Agreement, there are no outstanding
options, warrants or rights to purchase or acquire, or agreements
(whether voting or otherwise) relating to, the Shares;
(iii) The Seller owns of record and beneficially all of the
Shares free and clear of all liens, claims, encumbrances and security
interests of any nature whatsoever. Upon purchase of the Shares
pursuant to this Agreement, the Purchaser shall receive good and
marketable title to the Shares, free and clear of all liens, claims,
encumbrances and security interests of any nature whatsoever;
(iv) The Seller is familiar with the business, operations,
properties, condition (financial or otherwise), results of operations,
assets and liabilities of the Company;
(v) Other than the transactions contemplated hereby, the Seller
has no present intention to sell any shares of Common Stock, nor does
the Seller hold nor has the Seller held a short position or an option
to dispose of Common Stock at any time during the prior two years;
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(vi) The Seller is not acting in concert with any other person
in transferring the Shares, and the Seller has not so agreed to act,
and the Seller is not engaged in a plan with anyone else to dispose of
Common Stock;
(vii) The Seller is not aware of any facts or circumstances
indicating that he is or may be deemed an underwriter within the
meaning of the Securities Act of 1933 (the "Securities Act") with
respect to the Shares or that the transactions contemplated hereby are
part of the distribution of securities of the Company; and
(viii) This Agreement is a legal, valid and binding agreement
of the Seller enforceable against the Seller in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights
generally and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.
(b) The Purchaser hereby represents and warrants to the Seller
that:
(i) The Purchaser has all necessary power and authority to
enter into this Agreement and to buy the Shares from the Seller
pursuant to the terms and conditions of this Agreement;
(ii) The Purchaser has disclosed to the Seller all information
in its possession with respect to the business, operations,
properties, conditions (financial or otherwise) results of operations,
assets and liabilities;
(iii) The Purchaser understands that the Shares have not been
and will not be registered under the Securities Act or any other
applicable securities law and, accordingly, that none of the Shares
may be offered, sold, transferred, pledged, hypothecated or otherwise
disposed of, unless either registered pursuant to, or in a transaction
exempt from, applicable securities law;
(iv) The Purchaser is aware that it must bear the risk of an
investment in the Shares for an indefinite period of time, and it is
able to bear such risk. The Purchaser may, however, from time to time
hedge our position in the Shares as permitted by Rule 144 under the
Securities Act;
(v) In the normal course of the Purchaser's business, it
invests in or purchases securities similar to the Shares, and it has
such knowledge and experience in financial and business matters that
it is capable of evaluating the merits and risks of purchasing the
Shares;
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(vi) The Purchaser has had access to such financial and other
information concerning the Company as it deemed necessary in
connection with its decision to purchase the Shares;
(vii) The Purchaser is purchasing the Shares for its own
account, for investment, and not with a view to, or for offer or sale
in connection with, any distribution thereof in contravention of the
Securities Act, subject, nevertheless, to the disposition of its
property being at all times within its control;
(viii) The Purchaser is an "accredited investor" within the
meaning of subparagraph (a)(3) of Rule 501 under the Securities Act.
The Purchaser acknowledges that certificates representing the Shares
will contain a legend stating in substance as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "ACT")
AND MAY NOT BE OFFERED OR TRANSFERRED BY SALE, ASSIGNMENT, PLEDGE
OR OTHERWISE UNLESS (I) A REGISTRATION STATEMENT FOR SUCH SHARES
UNDER THE ACT IS IN EFFECT OR (II) THE CORPORATION IS SATISFIED
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT; and
(ix) This Agreement is a legal, valid and binding agreement of
the Purchaser enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights
generally and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.
5. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by registered or certified mail, postage prepaid, with return receipt
requested, as follows:
If to the Seller:
Xxxxxxx X. Xxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
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If to the Purchaser:
Crow Family Partnership, X.X.
Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
6. Waiver and Amendment. Any provision of this Agreement may be waived
at any time by the party that is entitled to the benefits thereof, and this
Agreement may be amended or supplemented at any time by the written consent of
the parties hereto.
7. No Prior Agreements. This Agreement (a) contains the entire
agreement, and supersedes all other prior agreements and understandings, both
written and oral, between the parties hereto with respect to the subject matter
hereof, and (b) is not intended to confer upon any other person any rights or
remedies hereunder.
8. Successors and Assigns. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by and against the parties hereto and
their successors (including administrators and executors of individuals) and
assigns.
9. Expenses. Each of the parties shall pay its own expenses in
connection with the negotiation, execution and performance of the Agreement. No
party has incurred any broker's or finder's fee in connection with this
Agreement.
10. Counterparts. This Agreement and any amendments hereto may be
executed in two or more counterparts, each of which shall be considered to be
an original, but all of which together shall constitute the same instrument.
11. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the state of Texas, without regard to its
conflict of laws doctrine. The parties hereto consent to being subject to the
jurisdiction of any federal or state court located in the state of Texas, and
proper venue shall lie in Dallas, Texas.
12. Severability. If any term, provision, or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
13. Effect of Headings. The section headings herein are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
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14. Survival. All representations, warranties, covenants and other
agreements of the parties hereto shall survive the closing of the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement to take
effect as of the date set forth above.
SELLER:
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
PURCHASER:
CROW FAMILY PARTNERSHIP, L.P.
By: Crow Family, Inc., its general partner
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Chief Executive Officer
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