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EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into as of
January 2, 1997 by and between XXXX X. XXXXXX (the "Purchaser"), and
RAILAMERICA, INC., a Delaware corporation (the "Company").
1. PURCHASE AND SALE. The Purchaser hereby purchases from the
Company, and the Company hereby sells to the Purchaser, Twenty Thousand
(20,000) shares (the "Shares") of Common Stock, par value $.01 per share, of
the Company, at a purchase price (the "Purchase Price") of Ninety-Five Thousand
Dollars ($95,000). As payment for the Shares, the Purchaser shall deliver to
the Company upon execution of this Agreement, a promissory note in the form
attached as Exhibit "A" hereto in the principal amount equal to the Purchase
Price, executed by the Purchaser in favor of the Company, dated as of the date
hereof (the "Note"). Upon its receipt of the executed Note from the Purchaser,
the Company shall deliver to the Purchaser certificates representing the Shares
issued in the name of the Purchaser and containing the legend referred to in
Section 5 hereof.
2. ELECTION UNDER SECTION 83(B). The Purchaser shall, within
thirty (30) days of the date hereof, make an election under Section 83(b) of
the Internal Revenue Code, with respect to the purchase of the Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to and covenants with the Purchaser as follows:
(a) The Shares have been validly issued and are fully
paid and non-assessable, and no personal liability
will attach to the ownership thereof; and
(b) This Agreement has been duly executed and delivered
by the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable
against the Company in accordance with its terms.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to, and covenants with the Company as follows:
(a) The Purchaser is purchasing the Shares for his own
account and not on behalf of any other person; the
Purchaser is aware and acknowledges that the Shares
are "restricted securities," as defined in Rule 144
under the Securities Act of 1933, as amended (the
"1933 Act"), that the Shares have not been registered
under the 1933 Act and may not be offered or sold
unless the Shares are registered under the 1933 Act
or an exemption from the registration requirements of
the 1933 Act is available;
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(b) The Purchaser has received and carefully reviewed all
the reports required to be filed by the Company under
the 1934 Act (the "Company Reports"); and the
Purchaser has not been furnished with any offering
materials or literature relating to the offer and
sale of the Shares;
(c) The Purchaser is an executive officer of the Company;
the Purchaser has been furnished all information that
he deems necessary to enable him to evaluate the
merits and risks of an investment in the Company; the
Purchaser has had a reasonable opportunity to ask
questions of and receive answers from the Company
concerning the Company and the Shares, and all such
questions, if any, have been answered to the full
satisfaction of the Purchaser;
(d) No person or entity other than the Purchaser has (i)
any rights in and to the Shares or the Shares, which
rights were obtained through or from the Purchaser or
(ii) any rights to acquire the Shares, which rights
were obtained through or from the Purchaser;
(e) The Purchaser has such knowledge and expertise in
financial and business matters that the Purchaser is
capable of evaluating the merits and risks involved
in an investment in the Shares; and the Purchaser is
financially able to bear the economic risk of the
investment in the Shares, including a total loss of
such investment;
(f) The Purchaser represents that he has adequate means
of providing for his current needs and has no need
for liquidity in this investment. The Purchaser has
no reason to anticipate any material change in his
financial condition for the foreseeable future;
(g) The Purchaser is aware that the purchase of the
Shares is a speculative investment involving a high
degree of risk and that there is no guarantee that
the Purchaser will realize any gain from this
investment, and that the Purchaser could lose the
total amount of his investment;
(h) The Purchaser understands that no United States
federal or state agency had made any finding or
determination regarding the fairness of the offering
of the Shares for investment, or any recommendation
or endorsement of the offering of the Shares;
(i) The Purchaser is purchasing the Shares for
investment, with no present intention of dividing or
allowing others to participate in such investments or
of reselling, or otherwise participating directly or
indirectly, in a distribution of the Shares, and
shall not make any sale, transfer or pledge thereof
without registration under the Act and any
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applicable securities laws of any state or unless an
exemption from registration is available;
(j) Except as set forth herein, no representations or
warranties have been made to the Purchaser by the
Company or any agent, employee or affiliate of the
Company, and in entering into this transaction the
Purchaser is not relying upon any information, other
than that contained in the Company Reports and the
results of independent investigation by the
Purchaser; and
(k) The Purchaser understands that the Shares are being
offered and sold to him in reliance on specific
exemptions from the registration requirements of
United States federal and state securities laws and
that the Company is relying upon the truth and
accuracy of the representations, warranties,
agreements, acknowledgements and understandings of
the Purchaser set forth herein in order to determine
the applicability of such exemptions and the
suitability of Purchaser to acquire the Shares.
5. LEGEND. A legend substantially in the following form will be
on each Share certificate issued in accordance with this Agreement:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), NOR
UNDER ANY STATE SECURITIES LAW AND ARE RESTRICTED SECURITIES
AS THAT TERM IS DEFINED UNDER RULE 144 PROMULGATED UNDER THE
ACT. THE SHARES SHALL NOT BE TRANSFERRED, SOLD, ASSIGNED OR
HYPOTHECATED UNTIL EITHER (I) A REGISTRATION STATEMENT WITH
RESPECT THERETO IS DECLARED EFFECTIVE UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAW OR (II) THE ISSUER RECEIVES AN
OPINION OF COUNSEL TO THE ISSUER OR OTHER COUNSEL TO THE
HOLDER OF SUCH SHARES, WHICH OPINION IS SATISFACTORY TO THE
ISSUER AND ITS COUNSEL THAT SUCH SECURITIES MAY BE
TRANSFERRED, SOLD, ASSIGNED OR HYPOTHECATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE
STATE SECURITIES LAWS. THESE SHARES ARE SUBJECT TO CERTAIN
TRANSFER RESTRICTIONS CONTAINED IN A PURCHASE AGREEMENT WITH
THE ISSUER.
The Purchaser further acknowledges that (a) any necessary stop
transfer orders will be placed upon the certificates for the securities
compromising the Shares in accordance with the 1933 Act, and (b) the Company is
under no obligation to aid the Purchaser in obtaining any exemption from
registration requirements.
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6. MODIFICATION; ENTIRE AGREEMENT; GOVERNING LAW; BINDING EFFECT.
This Agreement (i) may only be modified by a written instrument executed by the
parties hereto; (ii) sets forth the entire agreement of the such parties with
respect to the subject matter hereof; (iii) shall be governed by the laws of
the State of Florida applicable to contracts made and to be wholly performed
therein; and (iv) shall inure to the benefit of and be binding upon the parties
and their respective heirs, legal representatives, successors and assigns.
7. NOTICES. All notices or other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally or mailed by certified or registered mail, return receipt requested,
postage prepaid, to the addresses set forth below, or to such other address as
any of the parties shall have designated to the others by like notice:
PURCHASER: Xxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
COMPANY: RailAmerica, Inc.
000 Xxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
IN WITNESS WHEREOF, the Company and the Purchaser have each executed
this Agreement as of the date set forth above.
THE COMPANY: THE PURCHASER:
RAILAMERICA, INC.
By: /s/ /s/
------------------------- -------------------------
President XXXX X. XXXXXX
, President
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EXHIBIT A
PROMISSORY NOTE
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$95,000 Effective as of January 2, 1997
PROMISSORY NOTE
---------------
(Non-Negotiable)
FOR VALUE RECEIVED, the undersigned XXXX X. XXXXXX ("Borrower")
promises to pay to RAILAMERICA, INC. (the "Company"), at 000 Xxxxxx Xxxx, Xxxxx
0000, Xxxx Xxxxx, Xxxxxxx 00000, or at such other place or places as the holder
of this Note may from time to time designate in writing, the principal sum of
Ninety-Five Thousand Dollars ($95,000) in lawful money of the United States
(the "Loan"), together with interest in like lawful money from the date of
this Note set forth above at the rate of six percent (6%) per annum.
1. PAYMENTS. Subject to the provisions of Section 2 hereof,
Borrower shall pay the interest and principal of this Note in two installments.
The first installment shall be equal to Forty Nine Thousand Six Hundred
Eighty-Six Dollars ($49,686), and shall be due and payable on May 22, 1997. The
second installment shall be equal to Fifty Thousand Three Hundred Fifty Dollars
($50,350), and shall be due and payable on May 22, 1998 (the "Maturity Date").
2. EVENTS OF DEFAULT. The entire unpaid principal balance of the
Loan, together with all unpaid interest accrued thereon and all other sums
owing under this Note shall at the option of the Company become immediately due
and payable without notice or demand upon the occurrence of any one or more of
the following events ("Events of Default"):
(a) the failure of Borrower to pay any sum when due under
this Note, and such failure shall continue unremedied for ten (10) days after
such payment is due; or
(b) Borrower shall (i) admit in writing his inability to
pay his debts as they mature or generally fail to pay such debts as they
mature; (ii) make a general assignment for the benefit of creditors; (iii) be
adjudicated as bankrupt or insolvent; or (iv) file a voluntary petition in
bankruptcy, or a petition or an answer seeking an arrangement with creditors,
or seeking to take advantage of any bankruptcy, insolvency, readjustment of
debt, law or statute or an answer admitting an act of bankruptcy alleged in a
petition filed against Borrower in any proceeding under any such law.
3. EMPLOYMENT AGREEMENT. Borrower and the Company have entered
into an Executive Employment Agreement, dated as of March 1, 1994 (the
"Employment Agreement"). This Note is the promissory note referred to in that
certain First Amendment to the Employment Agreement (the "Amendment"), dated as
of the date hereof and entered into between the
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Borrower and the Company. Pursuant to the Amendment and so long as the
Employment Agreement is in effect, the Company has agreed under certain
circumstances specified in the Amendment to pay bonuses to the Borrower, to be
applied against amounts due under this Note.
4. DEFAULT RATE OF INTEREST. At the Company's sole option the
entire unpaid principal balance of the Loan shall bear interest until paid at an
augmented annual rate (the "Default Rate") from and after the occurrence and
during the continuation of any Event of Default, regardless of whether the
Company also elects to accelerate the maturity of the Loan; provided, however,
that after judgment all such sums shall bear interest at the greater of the
Default Rate or the rate prescribed by applicable law for judgments. At the
Company's sole option, all interest which accrues at the Default Rate shall be
due and payable on the Company's demand from time to time, but absent such
demand shall be due and payable on the regularly scheduled dates for payments
under this Note. The Default Rate shall equal eighteen percent (18%) per annum,
but in no event in excess of the maximum interest rate permitted by applicable
law.
5. RIGHTS AND REMEDIES OF THE PAYEE. The Company's delay in
exercising or failure to exercise any rights or remedies to which the Company
may be entitled if any Event of Default occurs shall not constitute a waiver of
any of the Company's rights or remedies with respect to that or any subsequent
Event of Default, whether of the same or a different nature, nor shall any
single or partial exercise of any right or remedy by the Company preclude any
other or further exercise of that or any other right or remedy.
6. WAIVER AND CONSENT. To the fullest extent permitted by law,
Borrower hereby: (a) waives demand, presentment, protest, notice of dishonor,
suit against or joinder of any other person, and all other requirements
necessary to charge or hold Borrower liable with respect to the Loan; (b)
waives any right to immunity from any such action or proceeding and waives any
immunity or exemption of any property, wherever located, from garnishment,
levy, execution, seizure or attachment prior to or in execution of judgment, or
sale under execution or other process for the collection of loans; (c) waives
any right to interpose any set-off or counterclaim or to plead any statute of
limitations as a defense in any such action or proceeding, and waives all
statutory provisions and requirements for the benefit of Borrower, now or
hereafter in force; (d) submits to the jurisdiction of the state and federal
courts in the State of Florida for purposes of any such action or proceeding;
and (e) agrees that the venue of any such action or proceeding may be laid in
Dade County, Florida and waives any claim that the same is an inconvenient
forum.
7. COSTS, INDEMNITIES AND EXPENSES. Borrower agrees to pay all
filing fees and similar charges and all reasonable costs incurred by the
Company in collecting or securing or attempting to collect or secure the Loan,
including reasonable attorney's fees, whether or not involving litigation
and/or appellate, administrative or bankruptcy proceedings. The Company,
pursuant to the Amendment, agrees to pay any documentary stamp taxes,
intangible taxes or other taxes (except for federal or state income or
franchise taxes based on the Company's net income) which may now or hereafter
apply to the Loan or any payment made in respect of the Loan.
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8. MAXIMUM INTEREST RATE. In no event shall any agreed to or
actual exaction charged, reserved or taken as an advance or forbearance by the
Company as consideration for the Loan exceed the limits (if any) imposed or
provided by the law applicable from time to time to the Loan for the use or
detention of money or for forbearance in seeking its collection; the Company
hereby waives any right to demand such excess. In the event that the interest
provisions of this Note or any exactions provided for in this Note shall result
at any time or for any reason in an effective rate of interest that transcends
the maximum interest rate permitted by applicable law (if any), then without
further agreement or notice the obligation to be fulfilled shall be
automatically reduced to such limit and all sums received by the Company in
excess of those lawfully collectible as interest shall be applied against the
principal of the Loan immediately upon the Company's receipt thereof, with the
same force and effect as though the payor had specifically designated such
extra sums to be so applied to principal and the Company had agreed to accept
such extra payment(s) as a premium-free prepayment or prepayments. During any
time that the Loan bears interest at the maximum lawful rate (whether by
application of this Section, the Default Rate provisions of this Note or
otherwise), interest shall be computed on the basis of the actual number of
days elapsed and the actual number of days in the respective calendar year.
9. GOVERNING LAW. This Note shall be governed by, and construed
and enforced in accordance with, the laws of the State of Florida.
10. INTERPRETATION. Whenever used in this Note, words in the
singular include the plural, words in the plural include the singular, and
pronouns of any gender include the other genders, all as may be appropriate.
Any provision of this Note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction only, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
11. MISCELLANEOUS. This Note cannot be changed or modified orally.
This Note may be prepaid in whole or in part at any time without penalty.
12. WAIVER OF JURY TRIAL. THE COMPANY AND BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREIN, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF ANY PARTY.
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13. EXECUTION. This Note is signed, sealed and delivered to be
effective as of the date first written above.
BORROWER:
Address of Borrower:
/s/ Xxxx X. Xxxxxx
3735 Devon Court South ------------------
Xxxx Xxxxx, Xxxxxxx 00000 XXXX X. XXXXXX
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