STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
March 13, 1997, by and between Mity-Lite, Inc., a Utah corporation, (the
"Purchaser") and, National City Capital Corporation, a Delaware corporation,
(the "Seller"). The Purchaser and the Seller are referred to hereinafter
collectively as the "Parties." The Seller owns 83.33 shares (the "Shares") of
common stock (the "Common Stock") of DO Group, Inc., a Delaware corporation (the
"Company"). This Agreement contemplates transactions in which the Purchaser will
purchase from the Seller, and the Seller will sell to the Purchaser, all of the
Shares for cash.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, the Parties agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
1.1 Basic Transactions. On and subject to the terms and conditions of
this Agreement, the Purchaser agrees to purchase from the Seller, and the Seller
agrees to sell to the Purchaser, all of the Shares for $49,600 (the "Purchase
Price") in cash payable by wire transfer or delivery of other immediately
available funds at the Closing.
1.2 The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of LeBoeuf, Lamb,
Xxxxxx & XxxXxx, L.L.P. in Salt Lake City, Utah, commencing at 9:00 a.m. local
time on the second business day following the satisfaction or waiver of all
conditions to the obligations of the Parties to consummate the transactions
contemplated hereby (other than conditions with respect to actions the
respective Parties will take at the Closing itself) or such other date as the
Purchaser and the Seller may mutually determine (the "Closing Date").
1.3 Deliveries at the Closing. At the Closing, (a) the Seller will
deliver to the Purchaser the certificate referred to in Section 5.1.1 below and
the stock certificate(s) representing all of the Shares, endorsed in blank or
accompanied by duly executed assignment documents, and (b) the Purchaser will
deliver the Purchase Price to the Seller.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents
and warrants to the Purchaser that the statements contained in this Section 2
are correct and complete as of the date of this Agreement and will be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
Section 2 ).
2.1 Organization of Seller. The Seller is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation or organization.
2.2 Authorization of Transactions. The Seller has all necessary power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Seller and the consummation by the Seller of the transactions
contemplated hereby have been duly authorized by all requisite action by the
Seller, and, if applicable, its directors, members, partners and shareholders.
This Agreement has been duly executed and delivered by the Seller, and this
Agreement constitutes a legal, valid and binding obligation of the Seller,
enforceable in accordance with its terms. The Seller is not required to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any third party or governmental agency in order to consummate the
transactions contemplated by this Agreement.
2.3 Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(a) violate or conflict with any law, judgment, order, or other restriction of
any government or court to which the Seller is subject or, if the Seller is a
corporation, any provision of its charter or bylaws or (b) conflict with, result
in a breach of, constitute a default under, or result in the creation of, any
lien, encumbrance, or claim on any of the assets or properties of the Seller
under any agreement, permit, or other arrangement by which the Seller is bound
or to which any of its assets is subject or affected, other than the Second
Amended and Restated Stockholders Agreement dated April 2, 1993 (the
"Stockholders Agreement"), the provisions of which have been waived.
2.4 Brokers' Fees. The Seller has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Purchaser could become
liable or obligated.
2.5 Company Shares. The Seller holds of record and owns beneficially
the number of shares of Common Stock set forth above, free and clear of any
restrictions on transfer (other than any restrictions under the federal and
state securities laws), taxes, mortgages, pledges, encumbrances, claims,
options, warrants, purchase rights, contracts, commitments, puts, calls and
demands. The Seller is not a party to any option, warrant, purchase right, call,
put or other contract or commitment that could require the Seller to sell, buy,
transfer, or otherwise dispose of any capital stock of the Company (other than
this Agreement and the Stockholders Agreement).
3. FURTHER ASSURANCES. In case at any time after the Closing any
further action is necessary to carry out the purposes of this Agreement, each of
the Parties will take such further action (including the execution and delivery
of such further instruments and documents) as any other Party may reasonably
request.
4. CONFIDENTIALITY. The Seller will not disclose except to the
Purchaser any confidential information of the Company and its Subsidiary,
including any trade secrets, research and development, manufacturing and
production processes, technical data, customer and supplier lists and
information, pricing and cost information, and financial business and marketing
data plans and shall deliver promptly to the Purchaser or destroy, at the
request of the Purchaser or at the option of the Seller, all tangible
embodiments (and all copies) of such confidential information which are in its
possession.
5. CONDITIONS TO OBLIGATION TO CLOSE.
5.1 Conditions to Obligation of the Purchaser. The obligation of the
Purchaser to consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to Closing, of each of the following
conditions, any of which may be waived by the Purchaser; provided, however, the
Purchaser's election to proceed with the Closing of the transactions
contemplated herein shall not be deemed a waiver of any breach of any
representation, warranty or covenant herein, whether or not known to the
Purchaser or existing on the Closing Date;
5.1.1 the representations and warranties of the Seller contained in
this Agreement shall have been true and correct as of the date as of which they
were deemed to have been made and shall be true and correct in all material
respects at and as of the Closing Date and the Seller shall have delivered to
the Purchaser a certificate to that effect;
5.1.2 simultaneous with the Closing, the Purchaser shall have
consummated the transactions contemplated by the Contribution Agreement among
the Company, certain shareholders of the Company, and the Purchaser providing
for the funding of a newly formed holding company for the Company on terms
satisfactory to the Purchaser;
5.1.3 the Purchaser shall have had a full opportunity to complete its
due diligence review of the Company and its Subsidiary and the results of such
review shall have been satisfactory to the Purchaser in its sole discretion; and
5.1.4 the Seller shall have delivered to the Purchaser certificate(s)
for all of the Shares, free and clear of any mortgage, pledge, lien,
encumbrance, claim, or other security interest or restrictions other than
restrictions under state and federal securities laws, endorsed in blank or
accompanied by duly executed assignment documents.
5.2 Conditions to Obligation of the Seller. The obligation of the
Seller to consummate the transactions to be performed by it in connection with
the Closing is subject only to the Seller having received the Purchase Price.
6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Seller shall survive the Closing hereunder
for a period of two (2) years, provided that the representations and warranties
contained in Section 2.5 shall survive until the end of the applicable statute
of limitations. From and after the Closing Date, the Seller, on behalf of its
directors, officers, employees, agents and affiliates, hereby waives any and all
claims and causes of action against the Company and its Subsidiary in any way
related to facts arising before the Closing Date.
7. TERMINATION. The Purchaser may terminate this Agreement by giving
written notice to the Seller (a) on or before thirty (30) days following the
date of this Agreement if the Purchaser is not satisfied with the results of its
due diligence regarding the Company and its Subsidiary, (b) in the event the
Seller has breached any representation, warranty, or covenant contained in this
Agreement in any material respect or (c) if the Closing shall not have occurred
on or before April 1, 1997. The Seller may terminate this Agreement by giving
written notice to the Purchaser if the Closing shall not have occurred on or
before April 1, 1997.
8. MISCELLANEOUS.
8.1 Press Releases and Public Announcements. The Seller shall not issue
any press release or make any public announcement relating to the subject matter
of this Agreement prior to the Closing without the prior written approval of the
Purchaser.
8.2 Entire Agreement; Counterparts. This Agreement (including the
documents referred to herein) constitutes the entire agreement among the Parties
and supersedes any prior understandings, agreements, or representations by or
among the Parties, written or oral, to the extent they related in any way to the
subject matter hereof. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
8.3 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns.
8.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Utah without giving effect to
any choice or conflict of law provision or rule (whether of the State of Utah or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Utah.
8.5 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Purchaser and the Seller. No waiver by any Party of any default or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default or breach of warranty.
8.6 Expenses. The Seller agrees that neither the Company nor its
Subsidiary has borne or will bear any of the Seller's costs and expenses
(including any of its legal fees and expenses) in connection with this Agreement
or any of the transactions contemplated hereby.
8.7 Construction; Severability. No presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. The word "including" shall mean including
without limitation. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction.
8.8 Specific Performance. Each of the Parties 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 otherwise are breached. Accordingly, each of the Parties agrees that
the other Parties shall be entitled to an injunction or injunctions 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 of the United States or any state thereof having jurisdiction over the
Parties and the matter, in addition to any other remedy to which they may be
entitled, at law or in equity.
8.9 Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in Salt Lake City, Utah, in
any action or proceeding arising out of or relating to this Agreement and agrees
that all claims in respect of the action or proceeding may be heard and
determined in any such court. Each Party also agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court. Each
of the Parties waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety, or other
security that might be required of any other Party with respect thereto. Any
Party may make service on any other Party by sending or delivering a copy of the
process to the Party to be served at the address set forth above.
8.10 Attorneys' Fees. If any party to this Agreement brings an action
to enforce its rights under this Agreement the prevailing party shall be
entitled to recover its costs and expenses including, without limitation,
reasonable attorneys' fees incurred in connection with such action, including
any appeal of such action.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
MITY-LITE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Title: President
NATIONAL CITY CAPITAL CORPORATION
By: /s/ Xxxx XxXxxxx
Title: Vice President
