STOCK PURCHASE AGREEMENT EXHIBIT 10.2
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into
effective as of August 27, 1997 (the "Effective Date"), by and between
_____________________ ("Seller"), and Day Runner, Inc., a Delaware corporation
("Purchaser").
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, ________ shares of Common Stock of Purchaser (the
"Shares") on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the above recital and the mutual
promises and covenants set forth below, the parties hereto hereby agree as
follows:
1. Purchase and Sale of Stock.
1. 1 Purchase. On the basis of and in reliance upon the
representations and warranties set forth herein and subject to the terms and
conditions of this Agreement, Seller hereby sells, transfers, and assigns to
Purchaser, and Purchaser hereby purchases from Seller, the Shares for a purchase
price equal to the closing price of a share of Purchaser's Common Stock on the
Nasdaq National Market System on the Effective Date multiplied by the number of
Shares (the "Purchase Price").
1. 2 Delivery of Shares; Payment. Prior to the close of
business on September 4, 1997, Seller shall deliver the Shares to Purchaser by
either (a) delivering to Purchaser an original executed Assignment Separate from
Certificate, together with a stock certificate representing all or a portion of
the Shares and/or (b) causing the Shares (or such portion of the Shares not
delivered in accordance with Section 1.2(a) hereof) to be transferred
electronically to the account of ▇▇▇▇▇▇▇▇▇▇ Securities, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (DTC Account No. 773) for further credit to the
account of Purchaser (Account No. 110-61298). Within three business days after
the receipt of the Shares, Purchaser will pay or cause to be paid to Seller the
Purchase Price by check or wire transfer at the election of Purchaser.
1. 3 No Additional Consideration. Except for the Purchase
Price set forth in this Section 1 hereof, Seller is neither owed nor entitled to
any additional compensation or consideration from Purchaser or its directors,
officers, agents, representatives or stockholders with respect to the purchase
and sale of the Shares.
2. Representations and Warranties of Seller. Seller hereby represents
and warrants to Purchaser as follows:
2. 1 Ownership of the Shares. Seller is the lawful record and
beneficial owner of, and has good and marketable title to, the Shares. The
Shares are owned by Seller free and clear of all liens, encumbrances, security
interests, equities, claims, options, licenses, charges and assessments, and are
subject to no restrictions with respect to transferability by Seller to
Purchaser except compliance with applicable securities laws. Upon delivery of
the Shares to Purchaser, Seller shall have conveyed to Purchaser good and
marketable title in and to the Shares free and clear of all liens, encumbrances,
security interests, equities, claims, options, licenses, charges, assessments
and restrictions whatsoever. The Shares do not represent more than 10% of all
shares of Common Stock of Purchaser that Seller beneficially owns as of the
Effective Date, and for purposes of determining such percentage ownership, all
shares of Common Stock of Purchaser that are subject to outstanding options or
warrants, whether vested or unvested, held by Seller or an affiliate of Seller
as of the Effective Date shall be deemed beneficially owned by Seller. The
Shares do not exceed the maximum number of shares of Common Stock of Purchaser
that Seller, as of the Effective Date, could sell pursuant to Rule 144 under the
Securities Exchange Act of 1934.
2. 2 Authority. Seller represents and warrants that all
action by Seller necessary for the sale of the Shares pursuant to this Agreement
and the performance of Seller's obligations hereunder has been taken. Seller
further represents that this Agreement is a legal, valid and binding obligation
of Seller enforceable in accordance with its terms, that Seller has all right,
legal capacity, authority and requisite legal power to enter into this Agreement
and to carry out and perform Seller's obligations under the terms of this
Agreement. The execution and delivery of, and the performance of the obligations
under, this Agreement by Seller do not and will not contravene or result in any
breach of any law or of any regulation, order, writ, injunction or decree of any
court, tribunal, governmental body, authority, agency or instrumentality
applicable to Seller or the Shares, nor do or will such execution, delivery or
performance violate, conflict with or result in (or with notice or lapse of time
or both result in) a breach of or default under any term or provision of any
agreement, oral or written, to which Seller is a party or is bound or to which
the Shares are subject.
2. 3 Disclosure.
(a) (Seller to check and initial the box that applies):
Seller is currently an executive officer and/or a director
of Purchaser and, in such capacity, Seller is familiar with and fully informed
with respect to Purchaser's business, operations, financial condition, affairs
and prospects.
If Seller is a trust, then its trustee (or one of its
trustees) is a beneficial owner of the Shares, is currently an executive officer
and/or director of Purchaser and has executed this Agreement on behalf of such
trust, and by virtue of such relationship with Purchaser, such trustee is
familiar with and fully informed with respect to Purchaser's business,
operations, financial condition, affairs and prospects.
If Seller is a partnership, then its general partner (or an
officer or affiliate of its general partner) is a beneficial owner of the
Shares, is currently an executive officer and/or director of Purchaser and has
executed this Agreement on behalf of such partnership, and by virtue of such
relationship with Purchaser, such person is familiar with and fully informed
with respect to Purchaser's business, operations, financial condition, affairs
and prospects.
If Seller is a corporation, then its chief executive officer
(or one of its executive officers) is a beneficial owner of the Shares, is
currently an executive officer and/or director of Purchaser and has executed
this Agreement on behalf of such corporation, and by virtue of such relationship
with Purchaser, such person is familiar with and fully informed with respect to
Purchaser's business, operations, financial condition, affairs and prospects.
(b) Seller has had an opportunity to seek the advice of counsel
with regard to the sale of the Shares under, and with regard to the other terms
of, this Agreement. Seller and/or Seller's advisors have had a reasonable
opportunity to ask questions of and receive answers from Purchaser, or a person
or persons acting on its behalf, concerning this transaction, and to obtain
additional information, to the extent possessed by Purchaser or obtainable by
Purchaser without unreasonable effort or expense. To Seller's best knowledge and
belief,all such questions have been answered to the full satisfaction of Seller.
Seller has had sufficient opportunity to review Purchaser's historical and
current financial data.
(c) Seller is not aware of any material adverse non-public
information concerning Purchaser or its business, operations, financial
condition, affairs or prospects that Seller has not disclosed in all material
respects to the Board of Directors of Purchaser.
2. 4 Brokers. No broker, finder or other person is entitled to any
broker's, finder's or other fee or commission in connection with this Agreement
or the transactions contemplated hereby by reason of any claim arising by,
through or under Seller.
2. 5 Adequacy of Consideration. The consideration Seller is receiving
in exchange for the consideration Seller is giving under this Agreement is fair,
just and reasonable. Seller is aware that the value of the Shares is subject to
considerable potential fluctuation and may now, or in the future, have an actual
value substantially above, or below, the Purchase Price Purchaser is paying
therefor, and it is possible that Seller might realize a higher price for the
Shares if Seller held them for an additional period. Seller has such knowledge
of business, financial and legal matters, and has had sufficient access to
experts on such matters, to assess the value of the Shares and the advisability
of this transaction.
2. 6 Miscellaneous Representations.
(a) Seller and/or Seller's advisors have such knowledge and
experience in financial, tax and business matters to enable Seller and/or them
to utilize the information made available to Seller and/or them in connection
with the sale of the Shares, to evaluate the merits and risks of the transaction
and to make an informed decision with respect thereto.
(b) Seller understands that the tax consequences to Seller
from the sale of the Shares depend on Seller's individual circumstances and
Seller has not received or relied on any advice from Purchaser or its agents or
representatives regarding such tax consequences.
3. Representations and Warranties of Purchaser. Purchaser represents
and warrants that all action by Purchaser necessary for the purchase of the
Shares pursuant to this Agreement and the performance of Purchaser's obligations
hereunder has been taken. Purchaser further represents that this Agreement is a
legal, valid and binding obligation of Purchaser enforceable in accordance with
its terms. The execution and delivery of, and the performance of the obligations
under, this Agreement by Purchaser do not and will not contravene or result in
any breach of any law or of any regulation, order, writ, injunction or decree of
any court, tribunal, governmental body, authority, agency or instrumentality,
nor do or will such execution, delivery or performance violate, conflict with or
result in (or with notice or lapse of time or both result in) a breach of or
default under any term or provision of any agreement, oral or written, to which
Purchaser is a party or is bound. Purchaser is not aware of any material
nonpublic information concerning Purchaser or its business, operations,
financial condition, affairs or prospects that Purchaser has not disclosed in
all material respects to Seller.
4. Market Stand-Off Agreement. Seller agrees not to sell, offer to
sell or contract to sell, directly or indirectly, any shares of Common Stock (or
other securities) of Purchaser owned beneficially or of record by Seller at any
time during the 60-day period following the Effective Date.
5. Indemnification. Each party hereto shall indemnify and hold
harmless the other party in respect of: (a) any and all loss, liability, damage
or deficiency resulting from any breach of the representations and warranties of
such party set forth in this Agreement, or from the breach or nonfulfillment of
any covenant or agreement on the part of such indemnifying party under this
Agreement; and (b) any and all actions, suits, proceedings, judgments, costs and
expenses (including reasonable legal fees) incident to the foregoing. No party
shall be entitled to indemnification pursuant to this Section 5 unless such
party shall have given prompt notice of the relevant claim to the party from
whom indemnification is sought and shall have provided such party with the
opportunity to conduct the defense thereof at its own expense.
6. Miscellaneous.
6. 1 Notices. All notices and demands referred to or required herein
or pursuant hereto shall be in writing, shall specifically reference this
Agreement and shall be deemed to be duly sent and given upon actual delivery to
and receipt by the relevant party (which notice, in the case of Purchaser, must
be from an executive officer of Purchaser other than Seller even if Seller is an
officer or authorized agent of Purchaser) or five days after deposit in the U.S.
mail by certified or registered mail, return receipt requested, with postage
prepaid, addressed to the other party at the address set forth on the signature
page hereof (if, however, a party has given the other party due notice of
another address for the sending of notices, then future notices shall be sent to
such new address).
6. 2 Legal Advice and Construction of Agreement. Each party represents
that such party has had the opportunity to seek independent legal advice with
respect to the advisability of entering into this Agreement and neither has been
entitled to rely upon nor has in fact relied upon the legal or other advice of
the other party or such other party's counsel in entering into this Agreement.
6. 3 Parties' Understanding. Each party represents that such party has
carefully read this Agreement, that such party fully understands the final and
binding effect of this Agreement, that the only promises made to such party to
sign this Agreement are those stated above, and that such party is signing this
Agreement voluntarily.
6. 4 Entire Agreement. This Agreement constitutes a single integrated
contract expressing the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous oral and
written agreements and discussions with respect to the subject matter hereof.
6. 5 Amendment. This Agreement and each provision hereof may be
amended, modified, supplemented or waived only by a written document
specifically identifying this Agreement and duly executed by each party hereto
or the authorized representative of such party.
6. 6 California Law and Location. This Agreement was negotiated,
finalized and delivered within the State of California, and the rights and
obligations of the parties hereto shall be construed and enforced in accordance
with and governed by the internal (and not the conflict of laws) laws of the
State of California applicable to the construction and enforcement of contracts
between parties resident in California which are entered into and fully
performed in California. Any action or proceeding arising out of, relating to or
concerning this Agreement, including, without limitation, any claim of breach of
contract, shall be filed in the state courts of the County of Los Angeles, State
of California or in a United States District Court in the Central District of
California and in no other location. The parties hereby waive the right to
object to such location on the basis of venue.
6. 7 Attorneys' Fees. In the event a lawsuit is instituted by either
party concerning a dispute under this Agreement, the prevailing party in such
lawsuit shall be entitled to recover from the losing party all reasonable
attorneys' fees, costs of suit and expenses (including fees, costs and expenses
of appeals), in addition to whatever damages or other relief the injured party
is otherwise entitled to under law and in connection with such dispute.
6. 8 Force Majeure. Neither Purchaser nor Seller shall be deemed in
default if such party's performance or obligations hereunder are delayed or
become impossible or impractical by reason of any act of God, war, fire,
earthquake, strike, civil commotion, epidemic or any other cause beyond such
party's reasonable control.
6. 9 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but which together shall constitute
one and the same instrument.
6. 10 Successors and Assigns. Neither party may assign this Agreement
or any of such party's rights or obligations hereunder (including without
limitation rights and duties of performance) to any third party or entity, and
this Agreement may not be involuntarily assigned or assigned by operation of
law, without the prior written consent of the non-assigning party, which consent
may be given or withheld by such non-assigning party in the sole exercise of
such party's discretion. Any prohibited assignment shall be null and void, and
any attempted assignment of this Agreement in violation of this Section shall
constitute a material breach of this Agreement and cause for its termination by
and at the election by notice of the other party hereto. This Agreement shall be
binding upon and inure to the benefit of each of the parties hereto and, except
as otherwise provided herein, their respective legal successors and permitted
assigns.
6. 11 Survival. The representations and warranties herein shall
survive the execution and delivery of this Agreement and each party hereto is
estopped from making a claim which conflicts with such party's representations
and warranties hereunder.
6. 12 Limitation of Damages. Except as expressly set forth herein, in
any action or proceeding arising out of, relating to or concerning this
Agreement, including, without limitation, any claim of breach of contract,
liability shall be limited to compensatory damages proximately caused by such
breach and neither party shall, under any circumstances, be liable to the other
party for consequential, incidental, indirect or special damages, including but
not limited to lost profits or income, even if such party has been apprised of
the likelihood of such damages occurring.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the Effective Date.
PURCHASER: SELLER (if an individual):
DAY RUNNER, INC. Signature(s):
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Address:
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
SELLER (if trust,
partnership or corporation):
(Print Name of Entity)
By:
Print Name:
Title:
By:
Print Name:
Title:
Address:
SCHEDULE OF SELLERS
Name of Seller Number of Shares Repurchased
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 6,930
▇▇▇▇▇▇ ▇▇▇▇▇▇ 10,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 2,163
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 27,329
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 3,500
O.S. II, Inc. 91,174
Lakeside Enterprises 10,000
▇▇▇▇ ▇▇▇▇▇▇▇ 4,158
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 21,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 3,267
▇▇▇▇ ▇▇▇▇▇▇▇ 34,500
▇▇▇▇ ▇▇▇▇▇▇ 7,827
▇▇▇▇ ▇▇▇▇▇▇▇▇ 70,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,500
▇▇▇▇ ▇▇▇▇▇▇ 23,236
▇▇▇▇▇▇ ▇▇▇▇▇▇ 31,210