Exhibit 10.10
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "AGREEMENT") is made as of
September 30, 1998, between Xxxxxxxxx Sign Company, a Texas corporation (the
"COMPANY"), and Xxxxx X. Xxxxxxxx ("XXXXXXXX").
The Company and Xxxxxxxx have entered into a Share Option
Purchase Agreement, dated as of the date hereof (the "OPTION AGREEMENT"),
with Geneve Securities Holding Corp., Chaparral International Re., Southern
Mortgage Holding Corporation, Southern Investors Corp. and Geneve Securities
Portfolio Corp. (collectively referred to herein as "GHI"), pursuant to which
GHI granted to the Company an option to purchase 357,143 shares of the
Company's Common Stock held by GHI and granted to Xxxxxxxx has an option to
purchase 428,000 shares of the Company's Common Stock held by GHI
(collectively, the "OPTION SHARES"). Promptly upon consummation of the
transactions contemplated by the Option Agreement, the Company desires to
purchase from Xxxxxxxx, and Xxxxxxxx desires to sell to the Company, 228,000
shares of the Company's Common Stock, for the consideration described herein.
The Company has entered into a Senior Subordinated Note,
Preferred Stock and Warrant Purchase Agreement, dated as of the date hereof
(the "PURCHASE AGREEMENT"), pursuant to which the Company is issuing to
certain investors equity securities and subordinated notes. Execution,
delivery and performance of this Agreement is a condition to such investors'
obligations thereunder.
In consideration of the mutual covenants and promises contained
herein and for the good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. DEFINITIONS. Capitalized terms used and not
defined herein have the meanings assigned such terms in the Purchase
Agreement.
Section 2. PURCHASE AND SALE OF THE SHARES. At the Closing
(as defined below), subject to the terms and conditions set forth herein, the
Company shall purchase from Xxxxxxxx, and Xxxxxxxx shall sell to the Company
228,000 shares of Common Stock owned by Xxxxxxxx (the "SHARES"), free and
clear of any Liens, for the consideration described, and payable in the
manner set forth, in Section 2.
Section 3. THE CLOSING. The closing of the purchase and
sale of the Shares (the "CLOSING") shall take place at 10:00 a.m. on the date
that is one business day following exercise by Xxxxxxxx of the Xxxxxxxx
Option (as defined) or on such other date as may be mutually agreeable to the
Company and Xxxxxxxx. At the Closing,
(a) Xxxxxxxx shall deliver to the Company the stock
certificates evidencing
the Shares to be purchased by the Company duly endorsed in blank or
accompanied by duly executed stock powers upon payment of the purchase price
thereof; and
(b) as consideration for the sale of the shares hereunder
the Company shall deliver to Xxxxxxxx i) $98,000 in cash, and ii) stock
certificates representing 7,000 shares of the Company's Series B Preferred
Stock.
Section 4. REPRESENTATIONS AND WARRANTIES.
(a) Xxxxxxxx hereby represents and warrants to the Company as
follows:
(i) Immediately prior to the Closing, Xxxxxxxx will be
the record and beneficial owner of the Shares, free
and clear of all Liens, and at the Closing, the
Company will acquire good and marketable title to
the Shares free and clear of any Liens.
(ii) Except as set forth in the Stockholders Agreement,
Xxxxxxxx is not subject to any rights of first offer
or refusal with respect to the transfer of the
Shares contemplated hereby and has not violated any
applicable federal or state securities laws in
connection with his ownership or the sale any of the
Shares pursuant hereto. Xxxxxxxx has not granted
any proxies or entered into and the shares are not
subject to any agreements with respect to the voting
or transfer of the Shares, except this Agreement,
the Stockholders Agreement and the Registration
Agreement.
(iii) Xxxxxxxx has all requisite power and authority to
execute and deliver this Agreement and consummate
the transactions contemplated hereby.
(iv) Xxxxxxxx is acquiring the Series B Preferred Stock
acquired hereunder for his own account with the
present intention of holding such securities for
investment purposes and has no intention of selling
the Series B Preferred Stock in a public
distribution in violation of the federal securities
laws or any applicable state securities laws.
(b) The Company hereby represents and warrants to Xxxxxxxx as
follows:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Texas and has the requisite corporate power
and authority to enter into this Agreement and
consummate the transactions contemplated hereby.
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Section 5. MISCELLANEOUS.
5A. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or made in writing by any
party in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby. All
covenants shall expire upon the Closing.
5B. SEVERABILITY. 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 is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
5C. COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken
together shall constitute one and the same Agreement.
5D. GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF TEXAS
SHALL GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE RIGHTS AND
OBLIGATIONS OF THE COMPANY AND ITS STOCKHOLDERS. ALL OTHER ISSUES AND
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND
INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR
PROVISIONS (WHETHER OF THE STATE OF TEXAS OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF TEXAS.
5E. NOTICES. All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this
Agreement shall be in writing and shall be deemed to have been given when
delivered personally to the recipient, sent to the recipient by reputable
overnight courier service (charges prepaid) or mailed to the recipient by
certified or registered mail, return receipt requested and postage prepaid:
IF TO XXXXXXXX:
Xxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
IF TO THE COMPANY:
Xxxxxxxxx Sign Company
0000 Xxx 00 Xxxx
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Xxxxx, Xxxxx 00000
Attn: Chief Executive Officer
Telecopier: (000) 000-0000
WITH COPIES TO:
Xxxxxxx Xxxxxx L.L.P.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier: 214/953-5822
Bank of America National Trust and
Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxx
Telecopier: 312/828-6298
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
Telecopier: 312/861-2200
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
5F. THIRD PARTY BENEFICIARY. The provisions of this
Agreement are for the benefit of Continental Illinois Venture Corporation and
MIG Partners VIII and may be enforced by such persons against each of the
parties hereunder.
5G. COUNTERPARTS. This Agreement may be executed in
counterparts which together constitute one and the same instrument.
5H. SPECIFIC PERFORMANCE. Each of the parties hereto
acknowledges and agrees that the other parties would be damaged irreparably
in the event any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached. Accordingly,
each of the parties hereto agrees that the other parties shall be entitled to
an
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injunction or injunctions (without the posting of bond or any other security)
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court in the United States or in any state having
jurisdiction over the parties and the matter in addition to any other remedy
to which it may be entitled pursuant hereto.
5I. FURTHER ASSURANCES. Each of the parties hereto will act
diligently and cooperate with the other parties and take all actions
necessary (including securing any required consents) to consummate the
actions contemplated hereby.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
XXXXXXXXX SIGN COMPANY
By: /s/ Xxxxxxx Xxxxxxx, V.P.
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Its: VP, CFO
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx