EXHIBIT 4(d)
STOCK PURCHASE
AND LOAN AGREEMENT
THIS STOCK PURCHASE AND LOAN AGREEMENT ("the Agreement") is entered
into as of this 10th day of January, 2003 by and between Xxxxxxx X. Xxxxx, III,
an Individual ("Xxxxx") and XXXXXX HOLDING COMPANY, INC. a Delaware corporation,
and all of its subsidiaries and affiliated companies (collectively "Xxxxxx" or
the "Company").
WHEREAS, Xxxxx has agreed to make a $100,000 investment in Xxxxxx as
provided in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth herein, the parties agree as follows:
Agreement
1. Loan. Xxxxx hereby agrees to loan to Xxxxxx the sum of $100,000 (the
"Loan"). The Loan shall be evidenced by a promissory note (the "Note") in the
principal amount of $100,000 in the form attached hereto as Exhibit A.
2. Security. All obligations of Xxxxxx hereunder shall be secured by a
lien and security interest in favor of Xxxxx in and to all of the assets of
Xxxxxx and its subsidiaries, including but not limited to fixed assets, leases,
leasehold improvements, office and production equipment, accounts, contracts,
contract rights, claims, choses in action, receivables, inventory, work in
process, equipment and intellectual property. As a condition to advancing the
sum set forth in Paragraph 1 above, Xxxxxx shall execute and deliver to Xxxxx a
security agreement substantially in the form attached hereto as Exhibit B (the
"Security Agreement") and a UCC-1 financing statement in a form acceptable to
Xxxxx for filing in the State of Delaware (the "Financing Statement"). This
Agreement, the Note, the Security Agreement, and the Financing Statement are
sometimes referred to collectively herein as the "Transaction Documents" and
individually as a "Transaction Document".
3. Term. The outstanding balance of the Loan shall be payable in full 4
years after the date of the Note (the "Maturity Date").
4. Common Stock of Xxxxxx.
4.1 As additional consideration for the loan, Xxxxxx hereby agrees to
issue to Xxxxx 2,000 shares of common stock of Xxxxxx (the "Shares").
4.2 The Shares issued hereunder shall be fully paid and non-assessable,
and have all of the rights and benefits of any other Shares of Xxxxxx now
outstanding.
4.3 In connection with the Loan and the issuance of the Shares
hereunder, Xxxxx represents and Shares to the Company that:
(1) Xxxxx understands that (A) the Shares have not been
registered under the Securities Act, nor qualified under the securities
laws of any other jurisdiction, (B) the Shares constitute "restricted
securities" for purposes of the Securities Act, (C) the Shares cannot
be resold unless they subsequently are registered under the Securities
Act and qualified under applicable state securities laws, unless the
Company determines that exemptions from such registration and
qualification requirements are available, and (D) Xxxxx has no right to
require such registration or qualification;
(2) The Shares to be acquired by Xxxxx pursuant to this
Agreement will be acquired for Xxxxx'x own account and not with a view
to, or intention of, distribution thereof in violation of the
Securities Act, or any applicable state securities laws, and the Shares
will not be disposed of in contravention of the Securities Act or any
applicable state securities laws;
(3) Xxxxx is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
4.4 Securities Matters. Subject to the accuracy of the representations
of Xxxxx set forth in Section 4.4 hereof, the offer, sale and issuance of the
Shares as contemplated by this Agreement are exempt from the registration
requirements of the Securities Act.
4.5 Restrictions on Transfer of Shares. Xxxxx is advised that federal
and state securities laws govern and restrict Xxxxx'x right to offer, sell or
otherwise dispose of any securities unless Xxxxx'x offer, sale or other
disposition thereof is registered under the Securities Act and state securities
laws, or in the opinion of the Company's counsel, such offer, sale or other
disposition is exempt from registration or qualification thereunder. Xxxxx
agrees that he will not offer, sell or otherwise dispose of any such securities
in any manner which would: (i) require the Company to file any registration
statement with the Commission (or any similar filing under state law) or to
amend or supplement any such filing or (ii) violate or cause the Company to
violate the Securities Act, the rules and regulations promulgated thereunder or
any other state or federal law. The certificates for any securities will bear
such legends as the Company deems necessary or desirable in connection with the
Securities Act or other rules, regulations or laws.
5. Option to Convert Loan Amount to Equity. Xxxxx shall have the right
at any time the Note remains unpaid (in whole or part), to convert the unpaid
balance of the Loan or any portion thereof to Shares at a price per Share equal
to the Conversion Price on the day the Option is exercised. In the event Xxxxx
elects to convert the Loan, or any portion thereof into Shares, Xxxxxx shall
promptly issue to Xxxxx an amount of Shares equal to the principal amount of the
Loan to be converted divided by the Conversion Price. Such Shares shall be
deemed to be fully paid, non-assessable shares as of the date of this Agreement.
In the event any Xxxxxx shares are registered subsequent to the conversion of
the Note pursuant to the Securities Act of 1933, as amended (the "Securities
Act") the Shares issued hereunder shall likewise be registered.
6. Representations and Warranties of Xxxxxx.
(a) Organization. Xxxxxx is a corporation duly incorporated,
validly existing, and in good standing under the laws of the State of Delaware,
and is in good standing and qualified to do business in the State of Delaware.
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(b) Corporate Power. Xxxxxx has all requisite corporate power
to execute and deliver this Agreement and to carry out and perform its
obligation under the terms of this Agreement, and the person executing this
Agreement has the requisite authority to do so.
(c) Authorization. All corporate action on the part of Xxxxxx,
its directors and shareholders, necessary for the authorization, execution,
delivery, and performance of this Agreement, and the performance of its
respective obligations hereunder, including the issuance and delivery of the
Note, and the Shares has been taken or will be taken prior to closing. Xxxxxx
agrees to take all reasonably necessary corporate action to reserve or authorize
the equity securities issuable upon conversion of the Note, if applicable. The
Transaction Documents, when executed and delivered by Xxxxxx, shall constitute
valid and binding obligations of Xxxxxx enforceable in accordance with their
terms, subject to laws of general application relating to bankruptcy,
insolvency, and the relief of debtors. Upon conversion of the Note, the equity
securities of Xxxxxx will be validly issued, fully paid, and nonassessable and
free of any liens or encumbrances.
(d) Governmental Consents. All consents, approvals, orders, or
authorizations of, or registrations, qualifications, designations, declarations,
or filings with, any governmental authority, required on the part of Xxxxxx in
connection with the valid execution and delivery of this Agreement, the offer,
sale, or issuance of the equity securities issuable upon conversion of the Note
or the consummation of any other transaction contemplated hereby shall have been
obtained and will be effective at the closing, except for notices required or
permitted to be filed with certain state and federal securities commissions,
which notices will be filed on a timely basis.
7. Cross-Default. Any Event of Default (as such term is defined in the
Promissory Note) which occurs under any of the Transaction Documents shall
automatically be deemed an Event of Default under all of the Transaction
Documents and Xxxxx shall be entitled to exercise all or any of the rights and
remedies available to Xxxxx under the Transaction Documents in any order, at
Xxxxx'x sole discretion, after the occurrence of an Event of Default.
8. Senior Securities. Xxxxxx agrees that so long as the Note remains
unpaid, in full or part, Xxxxxx shall not issue any securities senior to the
Note without the prior written agreement of Xxxxx.
9. Miscellaneous.
(a) Binding Agreement; Further Assurances; Enforceablility of
Terms. The terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
third party any rights, remedies, obligations, or liabilities under or by reason
of this Agreement except as expressly provided in this Agreement. Each party
shall execute such other and further documents, and take such other and further
actions as are reasonably necessary to carry out the intents and purposes of
this Agreement and the Transaction Documents, without notice and additional
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consideration. 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 shall be or become prohibited or invalid
under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
of the remaining provisions of this Agreement.
(b) Governing Law; Attorneys Fees. This Agreement shall be
governed by and construed under the laws of the State of Delaware. Any action on
this agreement may be brought in Delaware. In the event either party should
initiate legal action to enforce such party's rights, or to collect damages on
account of a breach of this Agreement, the non-prevailing party shall pay to the
prevailing party all costs and attorneys fees incurred.
(c) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument
(d) Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(e) Modification; Waiver. No modification or waiver of any
provision of this Agreement, or delay in enforcing any right or remedy, or
consent to departure therefrom shall be effective unless in writing and approved
by the parties.
(f) Notices. All notices and other communications with respect
to this Agreement shall be in writing, mailed, telefaxed, emailed
if to Xxxxxx; at:
Xxxxxx Holding Company, Inc.
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
if to Xxxxx; at:
Xxxxxxx X. Xxxxx, III
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
10. Definition of Terms.
"Conversion Price" shall mean the lesser of $15.00 per share or the Market Price
of Xxxxxx common stock. Provided, however, that in the event Xxxxxx completes an
Offering of its common stock resulting in net proceeds of at least three million
dollars in the aggregate prior to the three year anniversary of the date of this
Agreement, the Conversion Price shall be fixed and shall be equal to the Net
Offer Price of such Offering.
"Event of Default" shall be as defined under the Promissory Note attached as
Exhibit A hereto.
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"Market Price" shall mean the lesser of (i) the twenty-day weighted average
trading price of Xxxxxx common stock up to and including the day on which Market
Price is calculated; and (ii) the mid-point between the closing bid price and
closing offer price for Xxxxxx common stock on the day Market Price is
calculated.
"Net Offer Price" shall mean the net proceeds per share to Xxxxxx from the sale
or other placement of its common stock, for cash or other consideration, after
adjusting for selling commissions, underwriting fees, additional take-down fees,
selling group fees, syndication fees or any other cost associated in any way
with the sale of its common stock.
"Offering" shall mean the sale of common stock, whether registered or not, to
one or more persons, for any consideration, whether issued for cash, securities,
or for the acquisition of any assets or businesses.
"Share" shall mean a share of common stock of Xxxxxx Holding Company, Inc. as
traded on the Over-the-Counter Bulletin Board under the symbol "SRHI" (or such
subsequent exchanges and/or symbols as may prevail). Any reference to Shares
shall be adjusted for subsequent splits, reverse splits, or other
recapitalizations of Xxxxxx subsequent to the date of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Loan Agreement as of
the date first written above.
XXXXXX HOLDING COMPANY, INC.
By:_____________________________
Xxxxxx X. Xxxxx,
Chief Executive Officer
XXXXXXX X. XXXXX, III
_____________________________
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