Exhibit 10
STOCK PURCHASE AGREEMENT
AGREEMENT dated as of December 31, 1996 by and between DLJ
Capital Corporation (the "SELLER") and C D Associates, L.P. ("PURCHASER").
1. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, the SELLER agrees to sell to PURCHASER and
PURCHASER agrees to purchase from the SELLER the number of shares of common
stock of Flagstar Companies, Inc. (the "Company"), par value $.50 per share
(the "Securities") as are set forth on Schedule 1 hereto at the Closing (as
defined below). The purchase price to be paid by PURCHASER for the Securities
(the "Purchase Price") is $.05 per share multiplied by the number of
Securities to be purchased by PURCHASER from the SELLER. The Purchase Price
shall be paid as provided in Section 2 hereof.
2. Closing. The closing (the "Closing") of the purchase and sale
of the Securities hereunder shall take place at the offices of SELLER, at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx on December 31, 1996 or at such other time or
place as the parties hereto may agree. At the Closing:
(a) PURCHASER shall deliver to the SELLER the Purchase Price by check
or wire transfer.
(b) SELLER shall deliver to PURCHASER certificates for the number of
Securities indicated opposite the SELLER'S name on Schedule 1, accompanied by
duly executed instruments or transfer or assignments in blank with signatures
appropriately guaranteed.
3. Title to and Validity of Securities. SELLER represents and
warrants to PURCHASER that it has full legal and beneficial ownership of the
Securities, free and clear of any Liens (as defined below), other than
limitations under (i) applicable securities laws and (ii) that certain
Stockholders Agreement dated as of August 11, 1992, by and among the Company,
SELLER, TW Holdings, Inc., and the other parties signatories thereto, as
amended (the "Stockholders Agreement"); and when the Shares are delivered to
PURCHASER against payment therefor as contemplated hereby, PURCHASER will
acquire good and valid title to the Shares free and clear of any Lien, other
than limitations under (i) applicable securities laws, and the (ii)
Stockholders Agreement.
4. Non-Contravention. SELLER represents and warrants to PURCHASER
that the execution, delivery and performance of this agreement by SELLER will
not contravene or conflict with or constitute a violation of any provision of
any law, regulation, judgment, injunction, order or decree binding upon or
applicable to SELLER; (ii) will not require any consent, approval or other
action or constitute a default under any agreement or other instrument binding
upon SELLER and (iii) will not result in the creation or imposition of a Lien
on the Securities. For purposes hereof, Lien means any mortgage, lien,
pledge, charge, security interest, right of first offer or refusal, adverse
claim or other encumbrance of any kind in respect of such asset.
5. Purchase for Investment.
PURCHASER acknowledges that the Securities have not been
registered under the Securities Act of 1933, as amended (the "Act") or any
state securities laws and that the purchase and sale of the Securities
contemplated hereby is to be effected pursuant to an exemption from the
registration requirements imposed by such laws. In this regard, PURCHASER is
purchasing the Securities to be purchased by it hereunder for its own account
and not with a view to, or for sale in connection with, any distribution
thereof in violation of the Act. PURCHASER is an "Accredited investor" (as
defined in Regulation D under the Act), has sufficient knowledge and
experience in business matters so as to be capable of evaluating the merits
and risks of its investment in such Securities and is capable of bearing
the economic risks of such investment. PURCHASER has had access to any
information it deems necessary in order to make its decision to purchase
the Securities and has had the opportunity to ask questions and receive
answers concerning the Company. PURCHASER was not formed for the specific
purpose of acquiring the Securities.
6. Certain Understandings.
(a) PURCHASER and SELLER understand and acknowledge that such parties
may be in possession of material non-public information regarding the Company.
(b) PURCHASER acknowledges to SELLER that PURCHASER is an affiliate
of KKR Associates and its affiliates (collectively, "KKR") and the KKR is an
approximately 47% shareholder and an "affiliate" (as such term is defined in
Rule 405 under the Securities Ac of 1933, as amended) of the Company.
7. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard
to the conflicts of law rules of such state.
8. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof.
9. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmissions) and
shall be given:
if to PURCHASER, to: C D Associates, L.P.
0 Xxxx 00xx Xx., Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxx
Fax: 000-000-0000
if to SELLER, to: DLJ Capital Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
10. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by as of the day and year first above written.
C D ASSOCIATES, L.P.
By: CD GP, LLC
Its General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------
Member
DLJ CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Tile: Secretary and Treasurer
Schedule 1
Number of
Name of Seller Certificate No. Securities Purchase Price
----------------- ----------------- ------------- ----------------
DLJ Capital FC0240 3,030,668 $151,533.40
Corporation
DLJ Capital FC1923 2,076 $ 103.80
Corporation
DLJ Capital (DTC) 3,096 $ 154.80
Corporation
Total Purchase Price: $151,792
