EXHIBIT 10.40
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of the date set forth on the signature page hereto by and between the
employee set forth on the signature page of this Agreement (the "Seller") and
Xxxxxx Holdings, Inc., a Delaware corporation (the "Company").
PRELIMINARY STATEMENT
The Seller is an employee of the Company and owns, directly, beneficially
and of record, the number of shares of the Company's common stock, par value
$0.01 per share, set forth on the signature page hereto (the "Shares"). The
Seller originally acquired the Shares with the proceeds of one or more secured
promissory notes executed by the Seller in favor of the Company (collectively,
the "Loan"). As of August 31, 2002, the principal amount outstanding under the
Loan and estimated accrued interest, together with an estimated per diem rate of
interest, are as set forth on the signature page hereto. The Shares were pledged
to the Company as security for the repayment of the Loan pursuant to one or more
Securities Pledge Agreements by and between the Seller and the Company
(collectively, the "Pledge").
Subject to the terms and conditions set forth below, (1) the Seller desires
to sell all of the Shares, and the Company desires to purchase such Shares, (2)
the parties desire to use the proceeds from the sale of the Shares to repay the
principal balance of the Loan, (3) the Company will release the Seller from any
obligation to pay the accrued interest on the Loan, and (4) the Company will pay
to the Seller a partial bonus from the Seller's 2002 bonus under the Company's
Executive Incentive Plan (the "EIP") in an amount sufficient, after withholding
at the applicable supplemental rate, to fund the payment by the Seller of taxes
required to be withheld by the Company at the applicable supplemental rate, in
respect of the release of accrued interest on the Loan.
NOW, THEREFORE, in consideration of the foregoing and of the agreements,
covenants, and representations hereinafter contained, the Seller and the Company
intending to be legally bound, hereby agree as follows:
1. AGREEMENT TO SELL. Upon the terms and conditions set forth herein, the
Seller shall sell, assign, transfer and deliver to the Company at the Closing
(as defined in SECTION 4), the Shares free and clear, other than the Pledge, of
all liens, claims, charges, pledges, security interests, pre-emptive rights,
rights of first refusal, obligations, encumbrances and restrictions
(collectively, "Liens"), and the Company shall purchase and accept the Shares
from the Seller at the Closing.
2. PURCHASE PRICE. In consideration of the sale, assignment, transfer and
delivery of the Shares to the Company by the Seller, the Company shall pay to
the Seller the purchase price of $31.50 per share (the "Purchase Price"), which
amount shall be applied by the Company to repay the outstanding principal
balance of the Loan.
3. INTEREST. In consideration of the sale, assignment, transfer and
delivery of the Shares to the Company by the Seller and the repayment of the
outstanding principal balance of the Loan, the Company shall release the Seller
from any obligation to pay the accrued interest on the Loan. The Seller
acknowledges and agrees that the Company will be required to withhold federal,
state and/or local taxes at the applicable supplemental rate in respect of the
amount of interest released (the "Withheld Amount") and that the amount of
interest released will be reported as income on the Seller's 2002 Form W-2.
4. BONUS. In consideration of the Seller's service to the Company in
2002, the Company hereby awards to the Seller a partial bonus from the Seller's
2002 bonus under the EIP in an amount (the
1
"Bonus Amount") which, when reduced by withholding taxes on the Bonus Amount at
the applicable supplemental rate, shall be equal to the Withheld Amount. The
Bonus Amount shall be applied by the Company at the Closing in satisfaction of
its obligation to pay to relevant taxing authorities the Withheld Amount and
applicable withholding taxes on the Bonus Amount. The Seller acknowledges and
agrees that the Bonus Amount will be treated as a "miscellaneous bonus" under
the Company's payroll system and reported as income on the Seller's 2002 Form
W-2.
5. CLOSING. Subject to the terms and conditions of this Agreement, the
closing of the transactions contemplated hereby (the "Closing") shall take place
on the date of full execution of this Agreement and all other deliveries
contemplated hereby; provided that the Closing may take place at such other
time, date or place as may be mutually agreed upon by the parties in writing.
6. THE SELLER'S OBLIGATIONS AT CLOSING. At the Closing, Seller will
deliver to the Company the following:
(a) certificate(s) representing the Shares, accompanied by a stock
power duly executed in blank and in the form attached hereto as EXHIBIT A;
(b) an executed cross-receipt evidencing receipt of the consideration
contemplated hereby in the form attached hereto as EXHIBIT B; and
(c) such other documents and instruments as may be required to
consummate the transactions contemplated hereby.
7. THE COMPANY'S OBLIGATIONS AT CLOSING. At the Closing, the Company will
deliver to the Seller the following:
(a) an executed cross-receipt evidencing the repayment of the Loan
and release of the interest thereon and receipt of the other consideration
contemplated hereby in the form attached hereto as EXHIBIT B; and
(b) such other documents and instruments as may be required to
consummate the transactions contemplated hereby.
8. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents
and warrants to the Company that the statements contained in this SECTION 8 are
true and correct as of the date of this Agreement and as of the Closing:
8.1 TITLE TO THE SHARES. The Seller is the sole beneficial and record
owner of the Shares, and owns such Shares free and clear of any Liens (other
than the Pledge) and has and at Closing will have full power and authority to
convey such Shares free and clear of any Liens (other than the Pledge), and upon
delivery of payment for the Shares as herein provided, the Seller will convey to
the Company good title thereto free and clear of any Liens (other than the
Pledge).
8.2 CAPACITY; AUTHORITY; BINDING EFFECT. The Seller has the legal
capacity to execute, deliver and perform this Agreement and each other document
being executed in connection herewith to which the Seller is a party. This
Agreement has been duly and validly executed and delivered by the Seller and
(assuming the due authorization, execution and delivery thereof by the Company)
constitutes the legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
2
reorganization, moratorium or similar laws affecting the enforcement of
creditors rights and remedies generally and subject to general principles of
equity.
8.3 BROKERS AND ADVISORS. The Seller has not taken any action which
would give rise to a valid claim against any party hereto for a brokerage
commission, finder's fee or like payment.
8.4 RECEIPT OF INFORMATION. The Seller acknowledges that the Seller
has received and carefully reviewed or had the opportunity to review (a) this
Agreement, (b) the Stock Repurchase Summary of Terms dated September 12, 2002
delivered to the Seller describing the transactions contemplated hereby, (c) the
Company's Registration Statement on Form S-4, as amended, including the
financial statements included therein, as filed with the Securities and Exchange
Commission, and (d) the other information provided to the Seller upon the
Seller's request. The Seller acknowledges that no representations or warranties
have been made to the Seller concerning the Shares or the Company or its
prospects or other matters, except as set forth in this Agreement, and that the
Seller has been given the opportunity to examine all documents and to ask
questions of, and to receive answers from, the Company concerning the Shares,
the Company, its prospects and other matters and the terms and conditions of
this Agreement.
9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Seller that the statements contained in this
SECTION 9 are true and correct as of the date of this Agreement and will be true
and correct as of the Closing:
9.1 ORGANIZATION. The Company is a corporation validly existing under
the laws of the state of Delaware.
9.2 AUTHORITY; BINDING EFFECT. The Company has been duly authorized
to execute and deliver this Agreement and each other document being executed in
connection herewith to which the Company is a party. This Agreement has been
duly and validly executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the Seller) constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors rights and remedies
generally and subject to general principles of equity.
9.3 BROKERS AND ADVISORS. The Company has not taken any action which
would give rise to a valid claim against any party hereto for a brokerage
commission, finder's fee or like payment.
10. CANCELLATION OF LOAN. Within a reasonable period of time after the
Closing, the Company will deliver to the Seller the original certificate(s)
evidencing the Loan marked "cancelled."
11. EXPENSES. Except as otherwise set forth herein, each party to this
Agreement shall pay all of its expenses relating hereto, including any income,
capital gains, sales, transfer or documentary taxes, and fees and disbursements
of its counsel, accountants and financial advisors, whether or not the
transactions hereunder are consummated.
12. NOTICES. Except as otherwise provided herein, all notices, requests,
demands and other communications under or in connection with this Agreement
shall be in writing, and shall be addressed: (a) if to the Company, to Xxxxxx
Holdings, Inc., 000 X. Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Secretary and (b) if to the Seller, to the address set forth on the
signature page hereto. All such notices, requests, demands or communications
shall be mailed postage prepaid, certified mail, return receipt requested, or by
overnight delivery or delivered personally, and shall be sufficient and
3
effective when delivered to or received at the address so specified. Any party
may change the address at which it is to receive notice by like written notice
to the others.
13. ENTIRE AGREEMENT. This Agreement (including the exhibits hereto) is
intended by the parties to and does constitute the entire agreement of the
parties with respect to the transactions contemplated by this Agreement. This
Agreement supersedes any and all prior understandings, written or oral, between
the parties, and this Agreement may be amended, modified, waived, discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of the amendment, modification, waiver, discharge or termination is
sought.
14. GENERAL. The paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. 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. This Agreement shall be
effective only upon execution by all parties hereto. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns, but nothing herein, express or implied, is intended to
or shall confer any rights, remedies or benefits upon any person other than the
parties hereto. This Agreement may not be assigned by any party hereto, except
that the Company may assign this Agreement to one or more of its subsidiaries or
affiliates, provided that the Company shall remain primarily liable on this
Agreement, notwithstanding any assignment. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
15. CONSULTATION WITH ATTORNEY. The Seller acknowledges that the Seller
has had the opportunity to consult with legal counsel of the Seller's choosing
regarding the terms of this Agreement before signing it and that in executing
this Agreement the Seller has not relied upon any representations or statements
by the Company or any of its shareholders, agents, representatives, employees,
or attorneys regarding the subject matter, basis or effect of this Agreement,
other than as set forth in this Agreement.
4
IN WITNESS WHEREOF, the Seller and the Company have caused this
Agreement to be duly executed as of September 16, 2002.
WITNESS/ATTEST: THE SELLER:
/s/ X. X. Xxxxxxxxx /s/ Xxxxxxx Xxxxxx [SEAL]
------------------------- ------------------------------
XXXXXX HOLDINGS, INC.
/s/ Xxxxxx X. Xxxxxxxx By:/s/ Xxxx X. Xxxxxx [SEAL]
------------------------- ------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
SELLER NAME: XXXXXXX XXXXXX
ADDRESS:
SHARES
NUMBER OF SHARES: 6,349
AGGREGATE PURCHASE PRICE: $199,993.50
LOAN
PRINCIPAL BALANCE: $199,993.50
ESTIMATED ACCRUED INTEREST AT 8/31/02: $35,348
ESTIMATED PER DIEM INTEREST: $54.03
5
EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer
unto Xxxxxx Holdings, Inc., a Delaware corporation (the "Company"), 6,349 shares
of the Common Stock, $0.01 par value per share, of the Company represented by
certificate number(s) VH 82, and does hereby irrevocably constitute and appoint
Xxxxx Xxxxxxx LLP, as attorney-in-fact to transfer said shares on the books of
the above named corporation with full power of substitution.
Witness: /s/ X.X. Xxxxxxxxx Signature: /s/ Xxxxxxx Xxxxxx
------------------------ -----------------------
Name: Xxxxxxx Xxxxxx
Date: September 16, 2002
6
EXHIBIT B
CROSS-RECEIPT
Reference is made to the Stock Purchase Agreement of even date herewith
(the "Agreement") by and between Xxxxxx Holdings, Inc., a Delaware corporation
(the "Company"), and the undersigned stockholder of the Company (the "Seller").
1. The Company hereby acknowledges receipt of 6,349 shares of common
stock, par value $0.01 per share, of the Company (the "Shares").
2. The Company hereby acknowledges receipt of $199,993.50 , representing
the purchase price from the Seller's sale of the Shares (the "Purchase
Price"), and application of the Purchase Price to the repayment in
full of the principal amount outstanding under one or more secured
promissory notes executed by Seller in favor of the Company
(collectively, the "Loan"), and hereby releases the Seller from any
further obligation under the Loan, including any obligation to pay
accrued interest under the Loan, which amount was estimated as $35,348
as of August 31, 2002 and will include an estimated per diem rate of
interest of $54.03 through the date set forth below (the "Accrued
Interest").
3. The Company hereby acknowledges receipt of the payment contemplated by
Section 5 below in respect of taxes withheld by the Company at the
applicable supplemental rate from the release of the Accrued Interest
(the "Withheld Amount").
XXXXXX HOLDINGS, INC.
By: /s/ Xxxx X Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
4. The undersigned, as Seller, hereby acknowledges receipt of the
Purchase Price and directs the Company to apply the Purchase Price to
the outstanding principal balance of the Loan.
5. The undersigned, as Seller, hereby acknowledges receipt of a partial
bonus (the "Bonus") from the Seller's 2002 bonus under the Company's
Executive Incentive Plan in an amount determined under Section 4 of
the Agreement and directs the Company to apply the net amount of the
Bonus against the Withheld Amount.
6. The undersigned, as Seller, hereby acknowledges the repayment or
release of all indebtedness associated with the Loan.
Signature: /s/ Xxxxxxx Xxxxxx
--------------------
Name: Xxxxxxx Xxxxxx
Date: September 16, 2002
7
