STOCK PURCHASE AGREEMENT
THIS AGREEMENT, dated as of August 7, 1995, is between XXXXXX CORPORATION, a
Delaware corporation (the "Buyer"), and XXXXXXX X. XXXXXX, as trustee of the
Xxxxxxx X. Xxxxxx Trust (the "Seller").
The Seller and the Buyer, each in reliance upon the agreements,
representations, warranties and covenants hereinafter set forth herein, agree as
follows with respect to the sale by the Seller and the purchase by the Buyer of
all the issued and outstanding shares of capital stock of Envirodyne Industries,
Inc., a Delaware corporation (the "Issuer"), owned by the Seller.
1. Purchase and Sale of Securities. (a) The Seller hereby sells to the Buyer,
and the Buyer hereby purchases from the Seller, 4,189,298 shares of the common
stock, par value $0.01 per share ("Common Stock"), of the Issuer (such shares
hereinafter called the "Shares") at a purchase price per share of $4.483, such
amount being hereinafter referred to as the Purchase Price. The aggregate
Purchase Price for the Shares is being paid with Buyer's promissory note in the
form attached hereto as Exhibit A in the principal amount of $18,780,623.00 (the
"Note")
(b) The Buyer acknowledges receipt of the transfer from Seller's brokerage
account holding the Shares to the Buyer's brokerage account maintained at
Xxxxxxxx Wertheim & Co. Incorporated (Account No. W105793202) of the Shares. The
Seller acknowledges receipt from the Buyer of the Note representing payment in
full for the Shares. The sale, assignment and transfer of the Shares has been
made without recourse, representation or warranty of any kind by the Buyer,
express or implied, except as expressly set forth herein.
2. Representations and Warranties of Seller. The Seller represents and
warrants to, and covenants with, the Buyer as follows:
(a) The Seller is the duly qualified and acting Trustee of the Xxxxxxx X.
Xxxxxx Trust and has all the requisite power and authority to execute and
deliver this Agreement and to carry out all of the terms and provisions hereof
to be carried out by it.
(b) The execution, delivery and performance of this Agreement by the Seller
has been duly authorized by all necessary action. This Agreement has been duly
executed and delivered by the Seller and constitutes the valid and binding
obligation of the Seller enforceable in accordance with its terms.
(c) Neither the execution and delivery of this Agreement by the Seller nor the
consummation of the transactions contemplated hereby in accordance with its
terms (i) will conflict with, result in a breach of, or constitute a default
under, the governing instruments of the Xxxxxxx X. Xxxxxx Trust or indenture,
mortgage, lease or other agreement to which the Seller or Xxxxxxx X. Xxxxxx is a
party or to which either of them or any of their respective properties may be
subject or (ii) will result in a violation of any order, writ, injunction,
decree or award of any court or governmental authority to which the Seller or
Xxxxxxx X. Xxxxxx or any of their respective properties may be subject. No
action, suit or proceeding is pending or, to the knowledge of the Seller,
threatened against or affecting the Seller or Xxxxxxx X. Xxxxxx that would
prohibit or restrain the transaction contemplated hereby.
(d) The Seller owns beneficially all of the Shares and owns the Shares free
and clear of all liens, claims, options, charges, encumbrances and adverse
claims. The Seller is not a party to or bound by an agreement restricting its
right to sell, assign, transfer or delivery the Shares as contemplated by this
Agreement. Buyer is acquiring the Shares free and clear of all liens,
encumbrances and adverse claims [except for any restrictions which may apply
under applicable securities laws and the impact, if any, of Section 203 of the
Delaware General Corporation Law (8 Del. C. (S) 203)].
(e) There are no restrictions on the voting rights or other incidents of
ownership of the Shares that are applicable to the Seller or that will be
applicable to the Buyer upon purchase of the Shares.
(f) Set forth on Exhibit B is a list of the dates on which trades occurred,
purchase agreements were executed and transactions thereunder were closed with
respect to all the outstanding shares of Common Stock, $.25 par value, of the
Buyer owned by the Seller, and such list is true and accurate.
(g) Set forth on Exhibit C is a list of the dates on which trades occurred,
purchase agreements were executed and transactions thereunder were closed with
respect to all of the Shares owned by the Seller, and such list is true and
accurate.
(h) As of the date hereof, Seller, in his individual capacity as a director of
Issuer or otherwise, is not in possession of any non-public information relating
to the Issuer that a reasonably prudent investor would consider materially
adverse to the financial condition, results of operations, future prospects or
any other aspects of the business, assets or operations of the Issuer.
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3. Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Seller as follows:
(a) The Buyer is a corporation validly existing and in good standing under the
laws of the State of Delaware and has all the requisite corporate power and
authority to execute and deliver this Agreement and the Note and to carry out
all the terms and provisions hereof to be carried out by it.
(b) The execution, delivery and performance of this Agreement and the Note by
the Buyer have been duly authorized by all necessary corporate action. This
Agreement and the Note each has been duly executed and delivered by the Buyer
and constitutes the valid and binding obligation of the Buyer enforceable in
accordance with its terms, except to the extent the enforceability of the Note
may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or other law relating to or affecting the enforcement of creditors'
rights generally.
(c) Neither the execution and delivery of this Agreement or the Note by the
Buyer nor the consummation of the transaction contemplated hereby or thereby in
accordance with the terms hereof or thereof (i) will conflict with, result in a
breach of, or constitute a default under, the certificate of incorporation of
bylaws of the Buyer or any indenture, mortgage, lease or other agreement to
which the Buyer is a party or to which it or any of its properties may be
subject, or (ii) will result in a violation of any order, writ, injunction,
decree or award of any court or governmental authority to which the Buyer or any
of its properties may be subject. No action, suit or proceeding is pending or,
to the knowledge of the Buyer, threatened against or affecting the Buyer that
would prohibit or restrain the consummation of the transaction contemplated
hereby or that challenges or questions the validity of the transactions
contemplated hereunder.
(d) The waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
applicable to the purchase of the Shares by the Buyer has expired or been
terminated.
(e) The Buyer understands that the Seller is considered an "affiliate" under
the federal securities laws and the Shares have not been registered under the
Securities Act of 1993, as amended (the "Securities Act") and, as a result, the
Shares have been sold to Buyer pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
(f) The Shares may not be offered or sold by the Buyer, except pursuant to
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an effective registration statement or pursuant to an exemption from or in a
transaction not subject to the registration requirements of the Securities Act.
The Buyer agrees that the Seller may instruct the Issuer (or its transfer agent)
to place an appropriate restrictive legend placed on the certificate of
certificates representing the Shares to be issued by the Issuer to the Buyer.
(g) The Buyer has received adequate information concerning the Issuer and the
Shares from sources other than the Seller (or Xxxxx Xxxxxx) to make an informed
decision with respect to its purchase of the Shares.
(h) The Buyer is purchasing the Shares for its own account and not with a view
to the resale, distribution or other disposition thereof.
(i) The Buyer shall, in disposing of the Shares, fully comply with the
applicable requirements of the Securities Act and applicable state securities
laws.
4. Non Reliance on Seller. The Seller makes no representation or warranty of
any kind in connection with, and shall have no responsibility with respect to,
the financial statements, financial condition, financial performance or future
prospects of the Issuer, or except as expressly set forth herein, the Shares.
The Buyer represents and acknowledges that it has, independently and without
reliance on Seller (or Xxxxx Xxxxxx), and based on such documents and
information as it has deemed appropriate (including the publicly available
registration statements, reports and documents relating to the Issuer filed with
the Securities and Exchange Commission), made its own financial analysis and
decision to purchase the Shares and enter into this Agreement.
5. Brokerage. The Buyer and the Seller each represent and warrant to the other
that each will pay or otherwise discharge any liability incurred by it for
brokerage or finders' fees or agents' commissions or other similar payments in
connection with this Agreement and the transactions contemplated hereby. The
Buyer has not engaged or otherwise dealt with any person or entity in such
manner as might give rise to a claim against the Seller for such commission, fee
or payment and the Seller has not engaged or otherwise dealt with any person or
entity in such manner as might give rise to a claim against the Buyer for such
commission, fee or payment.
6. Expenses. Except as otherwise provided herein, the parties hereto shall
bear their own expenses incurred in connection with this Agreement and the sale
and purchase of Shares, including, without limitation, all fees of their
respective legal counsel, investment advisors and accountants. The Buyer will
bear all the legal, accounting, investment banking
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and other expenses of the Special Committee of its Board of Directors.
7. Notices. All notices, requests, claims, demands and other communications
hereunder shall be communicated in writing, mailed by first class mail or
delivered by hand, or by telephone, if promptly confirmed in writing, at the
following addresses (or to such other address for a party as such party may
specify by written notice given pursuant hereto):
If to the Buyer:
Xxxxxx Corporation
One Riverway, Suite 2200
000 Xxxxx Xxxx Xxx Xxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. xxx Xxxxxxxxx III
General Counsel
If to the Seller:
Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to:
Xxxxx Xxxxxx
00 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
8. Entire Agreement. This Agreement contains the entire agreement between the
Buyer and the Seller as to the Shares.
9. Governing Law. This Agreement shall be construed in accordance with, and be
governed by, the laws of the State of New York.
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10. Parties in Interest; Assignability. This Agreement shall inure to the
benefit of, and be binding upon the parties hereto and their respective
successors and assigns and is not intended to confer any rights on any third
party.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed this
Agreement as of the date first above written.
XXXXXX CORPORATION
By [Signature appears here]
-----------------------------------------
Authorized Officer
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx, as trustee of the
Xxxxxxx X. Xxxxxx Trust
Exhibit A
SUBORDINATED PROMISSORY NOTE
$18,780,623.00
FOR VALUE RECEIVED, Xxxxxx Corporation, a Delaware corporation (the
"Company"), hereby promises to pay to the order of Xxxxxxx X. Xxxxxx, as Trustee
of the Xxxxxxx X. Xxxxxx Trust ("Payee"), the principal sum of Eighteen Million
Seven Hundred Eighty Thousand Six Hundred Twenty Three and No/100 Dollars
($18,780,623.00) on August 7,1997, unless sooner accelerated and to pay interest
on the unpaid balance of such principal sum from time to time outstanding from
the date hereof until paid in full and on the maturity date hereof at a rate
prior to an event of default equal to the rate of interest per annum publicly
announced from time to time by Chemical Bank as its prime rate in effect at its
principal office in New York City, such rate hereunder to change automatically
effective upon each change in such prime rate, such interest to be payable on
the last day of each September, December, March and June in each year until the
principal sum is paid in full. After an event of default the interest rate that
shall accrue on the outstanding principal hereunder shall be increased by five
percent (5%) over the rate which would otherwise apply.
Payments. All Payments hereunder shall be made to Xxxxxxx X. Xxxxxx, as
Trustee of the Xxxxxxx X. Xxxxxx Trust at 0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxx
Xxxxx, Xxxxxxx 00000.
Prepayment. The Company shall have the right at any time to prepay, without
premium or penalty, the principal sum or any portion thereof, together with
interest on the amount prepaid to date of prepayment.
Subordination. The Company covenants and agrees, and each holder of this Note
by his acceptance hereof likewise covenants and agrees, that the payment of
the principal and interest on this Note is subordinated, to the extent and in
the manner hereinafter set forth, to the prior payment in full of all Senior
Debt. The term "Senior Debt" means the principal of and premium, if any, and
interest on the following, whether currently outstanding or hereafter created,
(i) indebtedness of the Company for money borrowed (including purchase money
obligations) evidenced by notes or other written obligations (other than this
Note), (ii) indebtedness of the Company evidenced by notes (other than this
Note), debentures, bonds or other securities issued under the provisions of an
indenture, fiscal agency agreement or similar
instrument, (iii) obligations of the Company as lessee under capitalized leases
and leases of property made as part of any sale and leaseback transactions, (iv)
indebtedness of others of any of the kinds described in the preceding clauses
(i) through (iii) assumed or guaranteed by the Company and (v) renewals,
extensions and refundings of, and indebtedness and obligations of a successor
corporation issued in exchange for or in replacement of, indebtedness or
obligations of the kinds described in the preceding clauses (i) through (iv).
Notwithstanding the foregoing, Senior Debt will not include: (i) any particular
indebtedness, obligation, renewal, extension or refunding if the instrument
creating or evidencing the same or the assumption or guarantee thereof expressly
provides that such indebtedness, obligation, renewal, extension or refunding is
not superior in right of payment to the Note. As used in the second preceding
sentence, the term "purchase money obligations" shall mean indebtedness or
obligations evidenced by a note, debenture, bond or other instrument (whether or
not secured by any lien or other security interest but excluding indebtedness or
obligations for which recourse is limited to the property purchased) issued or
assumed as all or part of the consideration for the acquisition of property,
whether by purchase, merger, consolidation or otherwise, but shall not include
any trade accounts payable.
These provisions set forth in this paragraph (a) and the following paragraphs
(b), (c), (d), (e) and (f) (the "Subordination Provisions") are made for the
benefit of the holders from time to time of Senior Debt, and such holders and/or
each of them may enforce such provisions.
(b) Upon the maturity of any Senior Debt by lapse of time, acceleration or
otherwise, all principal thereof and interest thereon shall first be paid in
full, or such payment duly provided for in cash or in a manner satisfactory to
the holders of such Senior Debt, before any payment is made on account of the
principal or interest on this Note or to acquire this Note.
Upon the happening of an event of default (or if any event of default would
result upon any payment with respect to this Note) with respect to any Senior
Debt, as such event of default is defined therein or in the instrument under
which it is outstanding, permitting the holders to accelerate the maturity
thereof, and, if the default is other than default in payment of the principal
or interest on such Senior Debt, upon written notice thereof given to the
Company by the holders of such Senior Debt or their representative, then, unless
and until such event of default shall have been cured or waived or shall have
ceased to exist, no payment shall be made by the Company with respect to the
principal or interest on this Note or to acquire this Note.
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(c) Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise):
(i) the holders of all Senior Debt shall first be entitled to receive
payment in full of the principal and interest due thereon before the holder of
this Note is entitled to receive any payment on account of the principal or
interest on this Note;
(ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the holder of
this Note would be entitled except for the Subordination Provisions, shall be
paid by the liquidating trustee or agent or other person making such payment
or distribution directly to the holders of Senior Debt or their
representative, or to the trustee under any indenture under which Senior Debt
may have been issued, to the extent necessary to make payment in full of all
Senior Debt remaining unpaid, after giving effect to any concurrent payment or
distribution or provision therefor to the holders of such Senior Debt; and
(iii) in the event that notwithstanding the foregoing provisions of this
paragraph (c), any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, shall be received
by the holder of this Note on account of principal or interest on this Note
before all Senior Debt is paid in full, or effective provision made for its
payment, such payment or distribution shall be received and held in trust for
and shall be paid over to the holders of the Senior Debt remaining unpaid or
unprovided for or their representative, or to the trustee under any indenture
under which Senior Debt may have been issued, for application to the payment
of such Senior Debt until all such Senior Debt shall have been paid in full,
after giving effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Debt.
(d) Subject to the payment in full of all Senior Debt, the holder of this Note
shall be subrogated to the rights of the holders of Senior Debt until all
amounts owing on this Note shall be paid in full, and for the purpose of such
subrogation no payments or distributions to the holders of the Senior Debt by or
on behalf of the Company or by or on behalf of the holder of this Note by virtue
of the Subordination Provisions which otherwise would have been made to the
holder of this Note shall, as between the Company and the holder of this Note be
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deemed to be payment by the Company to or on account of the Senior Debt, it
being understood that the Subordination Provisions are and are intended solely
for the purpose of defining the relative rights of the holder of this Note, on
the one hand, and the holders of the Senior Debt, on the other hand.
(e) Nothing contained in the Subordination Provisions or elsewhere in this
Note is intended to or shall impair, as between the Company and the holder of
this Note, the obligation of the Company, which is absolute and unconditional,
to pay to the holder of this Note the principal and interest on this Note as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holder of this Note and
creditors of the Company other than the holders of the Senior Debt, nor shall
anything herein or therein prevent the holder of this Note from exercising all
remedies otherwise permitted by applicable law upon default under this Note,
subject to the rights, if any, under the Subordination Provisions of the holders
of Senior Debt in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Upon any distribution of assets
of the Company referred to in paragraph (c) above, the holder of this Note shall
be entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or making any distribution to the holder of this Note, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to the
Subordination Provisions.
(f) No right of any present or future holders of any Senior Debt to enforce
subordination as provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms hereof, regardless of any knowledge thereof which any
such holder may have or be otherwise charged with.
Defaults and acceleration. In the event of any failure to pay any interest
when due hereunder, and the continuance of such failure to pay for a period of
ten (10) days after written notice, by certified or registered mail or by hand
delivery, of such failure from the Payee to the Company or in the event that all
of the indebtedness of the Company to Chemical Bank (or any bank serving as the
Company's primary lender) becomes due and payable as the result of an event of
default with respect thereto, this Note shall be in default and the entire
unpaid principal sum hereof, together with accrued interest, shall at the option
of the Payee,
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become immediately due and payable in full.
Compliance with usury laws. It is the intention of the Company and the Payee
to conform strictly to applicable usury laws. Accordingly, notwithstanding
anything to the contrary herein, it is agreed as follows: (i) the aggregate of
all interest and any other charges constituting interest under applicable law
contracted for, chargeable or receivable hereunder shall under no circumstances
exceed the maximum amount of interest permitted by law, and any excess shall be
cancelled automatically and, if theretofore paid, shall, at the option of the
holder hereof, either be refunded to the Company or credited on the principal
amount hereof; and (ii) in the event the entirety of the indebtedness evidenced
hereby is declared due and payable, then earned interest may never include more
than the maximum amount permitted by law, and any unearned interest shall be
cancelled automatically and, if theretofore paid, shall, at the option of the
holder hereof, either be refunded to the Company or credited on the principal
amount hereof.
Governing law. This Note shall be construed and enforced under and in
accordance with and shall be governed by the laws of the State of New York.
Business day. Any payment otherwise due on a day which is not a business day
(a day on which banks are not authorized or required to close in Houston, Texas)
may be made on the next succeeding business day, and such extension shall be
taken into account in computing any interest due in connection with such
payment.
Attorney's fees. In the event of any default hereunder and the placement of
this Note in the hands of an attorney for collection, the Company agrees to pay
all the Payee's collection costs and expenses, including attorneys' fees.
Waivers. The Company hereby waives presentment, demand, protest and notice of
any kind in connection with payments due hereunder.
XXXXXX CORPORATION
By [Signature appears here]
-----------------------------------
Authorized Officer
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Exhibit B
XXXXXXX X. XXXXXX
XXXXXX CORPORATION SHARES
PURCHASE
NUMBER OF SHARES TRADE AGREEMENT SETTLEMENT
OF COMMON STOCK DATE DATE DATE
---------------- ----- --------- ----------
2,862,588 7/10/92 ---- ----
578,331 7/13/92 ---- ----
8,424,272 7/13/92 ---- ----
1,202,612 7/16/92 ---- ----
3,720,229 7/17/92 ---- ----
32,438,630 7/16/92 7/30/92 9/9/92
2,750,561 7/22/92 8/10/92 9/9/92
----------
51,976,923
ON DECEMBER 9, 1993, ALL SHARES WERE TRANSFERRED TO THE XXXXXXX XXXXXX TRUST.
ON MAY 1, 1994, THERE WAS A ONE-FOR-FIVE REVERSE STOCK SPLIT RESULTING IN THE
NUMBER OF SHARES NOW OWNED BY THE TRUST TO BE 10,395,384.
EXCEPT AS NOTED HEREIN, NO AFFILIATE OR ASSOCIATE (AS DEFINED IN THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED) OF XXXXXXX XXXXXX OR THE XXXXXXX XXXXXX TRUST
HAS ACQUIRED ANY SHARES OF XXXXXX CORPORATION SINCE JULY 10, 1992.
Exhibit C
XXXXXXX X. XXXXXX
ENVIRODYNE INDUSTRIES, INC. SHARES
PURCHASE
NUMBER OF SHARES TRADE AGREEMENT SETTLEMENT
OF COMMON STOCK DATE DATE DATE
---------------- ----- --------- ----------
1,746,151 8/4/94 ---- 8/9/94
289,238 8/16/94 8/16/94 11/17/94
995,698 8/18/94 8/18/94 11/18/94
57,912 9/14/94 ---- 11/18/94
1,100,299 10/12/94 10/12/94 11/18/94
----------
4,189,298
