EXHIBIT 10.11
▇▇▇▇▇▇▇'▇ MANAGEMENT CORPORATION, INC.
QUALIFIED SHAREHOLDERS AGREEMENT
This Agreement is made this 8th day of April, 1985, by and among ▇▇▇▇▇▇▇'▇
MANAGEMENT CORPORATION, INC., a Texas corporation (hereinafter referred to as
the "Corporation") and the undersigned officers, Directors and key employees of
the Corporation or its subsidiaries, ▇▇▇▇▇▇▇'▇ Management Corporation of Nevada,
Inc., ▇▇▇▇▇▇▇'▇ Food Markets, Inc., ▇▇▇▇▇▇▇'▇ Properties, Inc., and ▇▇▇▇▇▇▇'▇
Warehouse Corporation (hereinafter referred to as the "Qualified Shareholders");
WHEREAS, the Corporation is incorporated under the laws of the State of
Texas, with the following authorized amount of Class B, Class C and Class D of
non-voting common stock, of which the following shares are issued and
outstanding; to-wit:
Authorized Issued
---------- ------
Class B 5,000,000 1,000,000
Class C 5,000,000 1,000,000
Class D 5,000,000 1,000,000
WHEREAS, by resolution of the Board of Directors of the Corporation, dated
January 28, 1985, the Corporation authorized the then present owners (excluding
the Qualified Shareholders named in the Qualified Shareholders Agreement dated
March 29, 1984), of the Class B, Class C and Class D non-voting common stock of
the Corporation ("Present Shareholders"), to sell to certain officers, directors
and key employees of the Corporation or its subsidiary corporations, as
designated by the Corporation's Board of Directors, shares of their Class B,
Class C and Class D non-voting common stock during the month of February, 1985,
in a minimum quantity of one hundred (100) shares and a maximum quantity of two
thousand (2,000) shares per person and subject to the provisions of this
Agreement; and,
WHEREAS, the Qualified Shareholders under the March 29, 1984 Qualified
Shareholders Agreement were designated by the Corporation's Board of Directors
by said resolution of January 28, 1985, as qualified to purchase such shares to
be sold by the present Shareholders and that said March 29, 1984 Agreement
applies to and is enforceable against the Qualified Shareholders and as to any
of such shares sold and purchased by the Qualified Shareholders during February,
1985; and,
WHEREAS, the Qualified Shareholders are the owners of the amount of such
issued and outstanding Stock of the Corporation as follows each name of the
undersigned; and,
WHEREAS, the Corporation and the undersigned Qualified Shareholders desire
to promote their mutual interest and the interest of the Corporation by imposing
certain restrictions and obligations on themselves and said shares of the Stock
of the Corporation; and,
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is hereby agreed as follows:
1. DEFINITIONS: As used in this Agreement:
a. The term "Stock" shall mean all issued and outstanding shares of
Class B, Class C and Class D common stock of the Corporation acquired from the
Present Shareholders by the undersigned Qualified Shareholders as authorized by
the Board of Directors on January 28, 1985, and that are hereafter authorized by
the Board of Directors and acquired by the Qualified Shareholders. Moreover, all
references herein to Stock owned by a Qualified Shareholder includes the
community interest, if any, of the spouse of such Qualified Shareholder in such
Stock. This Agreement shall not cover such shares of the Corporation stock that
are part of a class of shares that is being publicly traded in an established
securities market.
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b. The term "Disposition" shall mean any inter vivos transfer,
pledge, assignment, hypothecation, mortgage or other encumbrance, or any other
disposition of Stock whatsoever, whether voluntary or involuntary.
2. INVESTMENT REPRESENTATIONS: In connection with the acquisition of the
Stock by the undersigned Qualified Shareholder, each Qualified Shareholder upon
executing this Agreement makes the following representations on which the
Corporation and Present Shareholders may rely in aid of exemptions from the
registration requirements of the Securities Act of 1933, as amended ("the Act"):
"a. I am aware that the Stock will not be registered under the Act
on the grounds that the sale and issuance thereof were exempt under Section
4(a). I understand that reliance upon such exemption is predicated in part on
the representation, which is hereby confirmed, that I am acquiring the Stock for
my own account, for investment and without a view to the distribution thereof
within the meaning of such term as used in the Act; and upon the further
representation, which is also confirmed, that I will not take any action which
will subject the acquisition or issuance of the Stock to the registration
requirements of the Act. I have been fully advised with respect to and am
familiar with the operations of the Corporation and have obtained or had an
opportunity to obtain all information regarding its operations, financial
condition and other matters as would allow me to make a fully informed
investment decision with respect to the acquisition of the Stock.
"b. I hereby agree that the certificates representing the Stock may
be inscribed with a legend summarizing and giving notice of the representations
and agreements herein and the conditions upon which the Stock will be issued to
me, and that the Corporation may place a stop transfer order against any
transfer of the Stock to avoid any violation of such representations and
agreements.
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"c. I hereby confirm that I have been advised that the Stock must be
held by me indefinitely unless they are subsequently registered under the Act or
any exemption from registration is available. I further confirm my understanding
that the Corporation has no obligation to me so to register the Stock or effect
compliance with Regulation A or any other exemption under the Act; and since the
Corporation is not subject to the reporting requirements of Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), and does
not presently intend to make "publicly available" within the meaning of Release
No. 5223 under the Act, the information referred to in clauses (1) to (14)
inclusive, and clause (16) of paragraph (a)(4) of Rule 15c2-11 under the 1934
Act, it is unlikely that I will be able to make any public resale of the Stock
under the provisions and within the limitations specified in Rule 144 or Rule
237 under the Act. If such sales under either of such Rules should become
applicable, however, and should I then endeavor to make routine sales of the
Stock in reliance thereon, I fully understand that in making such sales I must
strictly comply with the limitations imposed upon the number of Stock that can
be sold and with the other terms and conditions of such Rules as applicable.
"d. I do hereby further agree that the Stock will not be
transferred, pledged, sold or otherwise disposed of unless I shall have complied
with the provisions of this Agreement.
"e. I understand the nature of the investment being made by me and
the financial risks thereof. I agree to indemnify and hold the Corporation and
the Present Shareholders harmless in the event any loss or damage is sustained
by the Corporation or the Present Shareholders as a result of any violation by
me of the provisions of the foregoing representations."
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3. STOCK TRANSFER RESTRICTIONS. Except as herein provided, no Qualified
Shareholder shall make any Disposition of any Stock or offer to sell any Stock
without the written consent of the Corporation, or, in the absence of such
written consent, except pursuant to the provisions hereinafter set forth:
a. Any Qualified Shareholder desiring to make a Disposition of Stock
shall first make an offer (the "Offer") to sell such Stock to the Company and to
the remaining Qualified Shareholders.
b. The Offer shall be sent by certified or registered mail, return
receipt requested, to the Corporation and to the remaining Qualified
Stockholders and shall state the number of shares involved. The date of the
Offer shall be the date on which a notice containing the Offer has been so sent
to all parties entitled to receive it.
c. The Corporation shall have the option for thirty (30) days
following the date of the Offer to purchase not less than all the Stock offered.
The selling Qualified Shareholder may withdraw the offer as to the Stock at any
time prior to the acceptance thereof by the Corporation.
d. If the Corporation does not exercise its option, the remaining
Qualified Shareholders shall have the option, for thirty (30) days following the
expiration of the Corporation's option, to purchase the Stock offered. Each
remaining Qualified Shareholders bears to the total number of shares of Stock
owned by all remaining Qualified Shareholders electing to purchase. The selling
Qualified Shareholder may withdraw the offer as to the Stock at anytime prior to
the acceptance thereof by the remaining Qualified Shareholders.
e. The price per share to be paid upon the purchase of the Stock
under Paragraph 3(c) and 3(d) shall be the nearest date (to the date of the
Offer) of the evaluation of the Stock, made by ▇▇▇▇▇▇▇▇▇, Nehaus & Co.,
Incorporated,
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an investment banking firm in Houston, Texas, or any other comparable investment
banking firm selected by the Corporation.
f. The closing shall be sixty (60) days from the date of the Offer.
The purchase price determined under Paragraph 3(e) of the Stock being acquired
by each purchaser shall be paid by certified or cashier's check upon the
closing. Such check shall be actually delivered to the selling party or sent by
certified or registered mail, return receipt requested, to the address of the
selling party.
g. The Corporation and the remaining Qualified Shareholders shall
exercise their options to purchase the Stock hereunder by actual delivery to the
selling party of a written notice of intent to purchase such Stock or by sending
such notice by certified or registered mail, return receipt requested, properly
stamped and addressed to the address of the selling party. Upon the exercise of
an option, the purchaser shall be obligated to make payment as provided in
Paragraph 3(f).
h. In the event that the aforementioned sale of Stock is unable to
be consummated under the aforestated terms, then the selling Qualified
Shareholder desiring to make a Disposition of his Stock may make written notice
to the Corporation that sale of his Stock has not been consummated by the
foregoing Offers and the Corporation shall then be obligated to purchase the
Stock under the terms of sale and purchase price of such Stock as provided in
this Agreement in Section 3 above. If such a sale is made, however, to a
remaining Qualified Stockholder, the transferee shall accept such Stock subject
to all the restrictions, terms and conditions contained in this Agreement. In no
case shall any share be transferable or assignable except to the Corporation or
a remaining Qualified Shareholder, as aforesaid.
4. SALE OF STOCK UPON DEATH OF QUALIFIED SHAREHOLDER.
Upon the death of a Qualified Stockholder, the
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Corporation shall be obligated to purchase all of the decedent's Stock, and such
deceased Qualified Shareholder's spouse and executor or administrator shall be
obligated to sell such Stock to the Corporation. Such sale shall be consummated
within six (6) months after the date of death of the deceased Qualified
Shareholder. The price per share at which such Stock shall be purchased shall be
an amount of the purchase price determined as provided in Paragraph 3(e) and
payable as provided in Paragraph 3(f) hereof.
5. DISPOSITION UPON TERMINATION OF MARITAL RELATIONSHIP. If the marital
relationship of a Qualified Shareholder is terminated by death or divorce and
such Qualified Shareholder does not succeed to his spouse's community interest
in the Stock, the Qualified Shareholder shall be required to purchase all of the
spouse's interest in the Stock, and the spouse or the executor or administrator
of the decedent's estate shall be obligated to sell such Stock, at the price per
share determined under Paragraph 2(e). Such purchase must be exercised and
consummated within ninety (90) days after such death or divorce. Should such
Qualified Shareholder fail to consummate the purchase within such ninety (90)
day period, such failure shall constitute an Offer and the provisions of
Paragraph 3(c) through 3(h) shall apply. The date of the Offer shall be the 91st
day after such death or divorce. Provided, however, if the surviving spouse is
an employee of the Corporation at the time the marriage is terminated, such
spouse may retain the Stock subject to the provisions of this Agreement.
6. DISPOSITION UPON TERMINATION OF EMPLOYMENT. If a Qualified Shareholder
becomes totally disabled to continue his employment, or if the employment of a
Qualified Shareholder is voluntarily or involuntarily terminated for any reason
other than death, such total disability or termination, for purposes of this
Section 6 only, shall be considered an
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Offer and, after written notice of the total disability or termination of
employment of such Qualified Shareholder is sent to or by the Corporation by
certified or registered mail, return receipt requested, the provisions of
Paragraphs 3(a) through 3(h) shall apply. The date such written notice is
deposited in the mails shall be the date of the Offer.
7. INVOLUNTARY DISPOSITION. Prior to any involuntary disposition of Stock,
the Qualified Shareholder who owns such Stock or their representative shall send
written notice thereof by certified or registered mail, return receipt
requested, disclosing in full to the Corporation and the other Qualified
Shareholders the nature and details of such involuntary disposition and the
Corporation shall have the option to purchase any such Stock for ninety (90)
days after the sending of such written notice. The other Qualified Shareholders
shall have an option for thirty (30) days after the expiration of the
Corporation's option to purchase in the proportions set forth in Paragraph 3(d)
any Stock not purchased by the Corporation. The price per share to be paid upon
exercise of such options shall be an amount equal to the purchase price
determined as provided in Paragraph 3(e) and payable as provided in Paragraph
3(f), and such options shall be exercisable as provided in Paragraph 3(g). In
the event the other Qualified Shareholders do not purchase all of said Stock,
then the Corporation shall purchase all remaining Stock as provided in Paragraph
3(h).
8. ENDORSEMENT ON STOCK CERTIFICATES. The Certificates evidencing shares
of the Stock in the Corporation owned by the Qualified Shareholders shall be
endorsed as follows:
"This certificate is transferable only in accordance with the terms
and provisions of that certain Qualified Shareholders Agreement,
dated _______________, 1985, between ▇▇▇▇▇▇▇'▇ MANAGEMENT
CORPORATION, INC., the Qualified Shareholders, and their spouses;
that such Shares are subject to an Agreement among the Qualified
Shareholders of the Corporation and that the Corporation
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will furnish to the holder of a certificate without charge upon
written request to the Corporation at its principal place of
business or registered office, a copy of such Qualified Stockholders
Agreement. Said Agreement restricts the sale or transfer of the
shares of Stock evidenced by this certificate and imposes certain
obligations with respect to such sale or transfer, to all of which
restrictions and obligations the holder hereof, by acceptance of
this certificate, assents and agrees."
Such certificates shall be endorsed on the front thereof as follows:
"See restrictions on transfer hereof on reverse side."
Upon termination of this Agreement for any reason, the Corporation
will cause to be issued, in exchange for certificates bearing the above legend,
new certificates without such endorsements.
9. NOTICES. In the event a notice or other document is required to be sent
hereunder to the Corporation or to any Qualified Shareholder or spouse of a
Qualified Shareholder, such notice or other document shall be sent by registered
or certified mail, return receipt requested, to the party entitled to receive
such notice or other document at the address reflected below or at such other
address as such party shall request in a written notice sent to the Corporation
and all Qualified Shareholders and spouses of Qualified Shareholders:
▇▇▇▇▇▇▇'▇ Management Corporation, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Qualified Shareholder: See address beneath signature.
10. MISCELLANEOUS PROVISIONS.
a. This Agreement shall be subject to and governed by the laws of
the State of Texas.
b. Whenever the context requires, the gender of all words used
herein shall include the masculine, feminine and neuter, and the number of all
words shall include the singular and plural.
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c. This Agreement shall be binding upon the Corporation, the
Qualified Shareholders, the spouses of the Qualified Shareholders and their
heirs, executors, administrators, successors and assigns. The Qualified
Shareholders by the signing hereof direct their personal representatives to open
their Estates promptly in the courts of proper jurisdiction and to execute,
procure and deliver all documents as shall be required to effectuate this
Agreement.
d. This Agreement may be amended from time to time by an instrument
in writing signed by all those who are parties to this Agreement at the time of
such amendment, such instrument being designated on its face as an "Amendment"
to this Agreement.
e. This Agreement shall terminate automatically upon the bankruptcy
or dissolution of the Corporation, upon the occurrence of any event which
reduces the number of Qualified Shareholders to zero or upon the deaths of all
the Qualified Shareholders. This Agreement may also be terminated by an
instrument in writing signed by all those who are parties to this Agreement.
f. Any Qualified Shareholder who sells all of his Stock shall cease
to be a party to this Agreement and shall have no further rights hereunder.
g. The spouses of the Qualified Shareholders are fully aware of,
understand, and fully consent and agree to the provisions of this Agreement and
its binding effect upon any community property interests they may now or
hereafter own, and agree that the termination of their marital relationship with
any Qualified Shareholder for any reason shall not have the effect of removing
any Stock of the Corporation otherwise subject to this Agreement from the
coverage hereof and that their awareness, understanding, consent and agreements
are evidenced by their signing this Agreement. Any Qualified Shareholder who
marries or remarries shall be obligated to have his spouse sign this Agreement
or an identical agreement.
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h. This Agreement shall pertain to and cover any and all shares of
Stock which may hereafter be issued to or held by the Qualified Shareholders.
i. The parties to this Agreement hereby declare that the Stock are
unique chattels and each party to this Agreement shall have all the available
remedies for the violation of this Agreement, including, but not limited to the
equitable remedy of specific performance.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
in multiple counterparts, each of which shall be deemed an original, on this the
8th day of April, 1985.
▇▇▇▇▇▇▇'▇ MANAGEMENT CORPORATION, INC.
By /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------
SHAREHOLDERS:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- -----------------------------
Spouse
Address 2914 ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- -----------------------------
Spouse
Address ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- -----------------------------
Spouse
Address 7822 [ILLEGIBLE]
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- -----------------------------
Spouse
Address ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
Spouse
Address ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- -----------------------------
Spouse
Address ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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