EXHIBIT 10.31
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into as
of the 18th day of January, 2000, by and among, (i) Carnival Corporation, a
Panamanian corporation ("CCL"), and (ii) Sherwood M. Weiser ("Weiser"), Donald
E. Lefton ("Lefton"), Thomas F. Hewitt ("Hewitt"), Peter L. Sibley ("Sibley"),
W. Peter Temling ("Temling") and Robert B. Sturges ("Sturges") (Weiser, Lefton,
Hewitt, Sibley, Temling and Sturges are sometimes collectively referred to
herein as the "Buyers" and individually as a "Buyer").
Recitals
A. CCL currently owns 2,490,000 shares (the "Purchased Shares") of common
stock, $.005 par value per share (the "CRC Common Stock"), of CRC Holdings, Inc.
("CRC").
B. Subject to approval by the Louisiana Gaming Control Board, CCL desires to
sell to Buyers, and Buyers desire to purchase from CCL, the Purchased Shares.
Agreement
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties agree as follows:
ARTICLE I - SALE AND PURCHASE OF SHARES
1.1 Sale and Purchase of Shares.
(a) On the terms and subject to the conditions of this Agreement, CCL hereby
sells, conveys, assigns, transfers and delivers to Buyers, and Buyers hereby
purchase from CCL, the Purchased Shares for an aggregate purchase price of
$12,285,564, as follows:
Number of
Buyer Purchased Shares Purchase Price
Weiser 803,785 3,965,780
Lefton 803,785 3,965,780
Hewitt 298,001 1,470,582
Sibley 298,001 1,470,582
Sturges 125,290 617,964
Temling 161,138 794,876
2,490,000 $12,285,564
(b) To effect the transfers contemplated by Section 1.1(a), CCL is hereby
causing to be delivered to each Buyer, against payment therefor in accordance
with Section 1.2 hereof, stock certificates representing the number of Purchased
Shares set forth opposite such Buyer's name under the column "Number of
Purchased Shares" in Section 1.1(a).
1.2 Purchase Price; Payment for Shares; Notice.
(a) The aggregate purchase price of $12,285,564 (the "Purchase Price") for
the shares of Common Stock being purchased by Buyers hereunder is hereby being
paid by each Buyer's delivery to CCL of (a) such Buyer's promissory note in the
aggregate principal amount equal to the amount set forth opposite such Buyer's
name under the column "Purchase Price" in Section 1.1(a), such note in the form
attached hereto as Exhibit A (each a "Note" and collectively, the "Notes") and
(b) a security and pledge agreement in the form attached hereto as Exhibit B
(each a "Security Agreement").
(b) As the Notes provide for possible acceleration of the maturity date of
such Notes in the event that Weiser or Lefton sell any shares of CRC Common
Stock, Weiser and Lefton hereby agree to provide CCL prior written notice of any
such proposed sale. Weiser and Lefton hereby further agree that they will not
sell any shares of CRC Common Stock unless the purchaser(s) of such shares
agree(s) to buy an equal percentage of the Purchased Shares at the same price
and upon the same terms.
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF CCL
CCL hereby represents and warrants to Buyers that:
2.1 Corporate Existence and Qualification. CCL is a corporation duly
organized, validly existing and in good standing under the laws of Panama; has
the corporate power to own, manage, lease and hold its properties and to carry
on its business as and where such properties are presently located and such
business is presently conducted; and is duly qualified to do business as a
foreign corporation in each jurisdiction where the failure to be so qualified
would have a material adverse effect on its business, financial condition or
results of operations.
2.2 Authority, Approval and Enforceability. This Agreement has been duly
executed and delivered by CCL and CCL has all requisite corporate power and
authority to execute and deliver this Agreement, to consummate the transactions
contemplated hereby, and to perform its obligations hereunder. This Agreement
constitutes the legal, valid and binding obligation of CCL, enforceable in
accordance with its terms, except as such enforcement may be limited by general
equitable principles or by applicable bankruptcy, insolvency, moratorium, or
similar laws and judicial decisions from time to time in effect which affect
creditors' rights generally.
2.3 Ownership and Delivery of Shares. CCL owns all of the Purchased Shares
free and clear of any and all pledges, security interests, liens, charges,
proxies, calls or other encumbrances of any nature whatsoever. CCL's delivery
of a certificate or certificates representing the Purchased Shares to Buyers
pursuant to this Agreement, against payment therefor pursuant to Section 1.2
hereof, transfers valid title to such Purchased Shares to Buyers, free and clear
of any and all pledges, security interests, liens, charges, proxies, calls or
other encumbrances of any nature whatsoever. There are no outstanding options,
warrants, calls, subscriptions, agreements or commitments of any character,
except this Agreement, to which CCL is a party obligating it to sell any
Purchased Shares or which restrict the transfer of any such shares held by it.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF BUYERS
Each of the Buyers hereby severally represents and warrants to CCL that:
3.1 Authority, Approval and Enforceability. This Agreement has been duly
executed and delivered by such Buyer. Such Buyer has all requisite power and
authority to execute and deliver this Agreement, to consummate the transactions
contemplated hereby, and to perform his obligations hereunder. This Agreement
and such Buyer's Note and Security Agreement constitute the legal, valid and
binding obligation of such Buyer, enforceable in accordance with their
respective terms, except as such enforcement may be limited by general equitable
principles or by applicable bankruptcy, insolvency, moratorium or similar laws
and judicial decisions from time to time in effect which affect creditors'
rights generally.
3.2 Investment Representations.
(a) Such Buyer is acquiring the Purchased Shares to be acquired by him
pursuant to this Agreement for his own account and not with a view to, or for
sale in connection with, a "distribution," as such term is used in Section 2(11)
of the Securities Act of 1933, as amended (the "Securities Act").
(b) Such Buyer is an "accredited investor," as that term is defined in Rule
501(a) of Regulation D promulgated under the Securities Act.
(c) Such Buyer understands that the sale of shares of CRC Common Stock under
this Agreement has not been registered under the Securities Act or applicable
state securities laws.
(d) Such Buyer understands that the certificates representing shares of CRC
Common Stock being sold by CCL pursuant to this Agreement bear a "restricted
transfer" legend substantially as follows:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 or any
applicable state law. They may not be offered for sale,
sold, transferred or pledged without (1) registration under
the Securities Act of 1933 and any applicable state law, or
(2) at holder's expense, an opinion (satisfactory to the
Company) of counsel (satisfactory to the Company) that
registration is not required."
(e) Such Buyer acknowledges that all matters relating to CRC, the Agreement
and such Buyer's investment in the CRC Common Stock have been explained to the
satisfaction of such Buyer and that such Buyer understands the speculative
nature and risks involved in this investment.
(f) Such Buyer can bear the economic risks inherent in its investments in the
CRC Common Stock.
(g) Such Buyer has been afforded the opportunity to ask questions of, and
receive answers from CRC and has had access to all information deemed material
to an investment decision with respect to his acquisition of the Common Stock.
3.3 Representations. Such Buyer is acquiring the CRC Common Stock without
having been furnished any representations or warranties of any kind whatsoever
with respect to CRC's business and financial condition. Without limiting the
generality of the foregoing, such Buyer acknowledges that neither CCL, CRC nor
any other person has provided, and such Buyer is not relying in any way upon,
any representations regarding projections or future performance of CRC.
ARTICLE IV - REPURCHASE SUBJECT TO REGULATORY APPROVAL
4.1 Sale and Purchase. Provided that (i) any and all licensing and
approval of the Louisiana Gaming and Control Board required by the laws, rules
and regulations of the State of Louisiana pertaining to licensed gaming
activities and any other applicable foreign, federal or state authorities has
been obtained ("Louisiana Regulatory Approval"), and (ii) the following
transaction is in compliance with all applicable maritime laws (including the
Jones Act), then during the period that any of the Notes are outstanding, upon
written notice from either Weiser, on behalf of the Buyers, or CCL to the Buyers
(the "Repurchase Notice"), CCL shall repurchase from Buyers and the Buyers shall
sell to CCL, on the date and in the manner set forth in this Article IV, any of
the Purchased Shares then held by Buyers, at the Purchase Price per share of
Common Stock paid by Buyers hereunder, together with an amount necessary so that
the aggregate purchase price to be paid by CCL pursuant to this Article IV
returns to each Buyer his purchase price per share and also provides such Buyer
with a rate of return thereon of 6.10% per annum, in each case from the Closing
Date until the date the Purchased Shares are acquired by CCL pursuant to this
Article IV. Each of the Buyers agree that Weiser shall have the sole right to
deliver or receive the Repurchase Notice on behalf of the Buyers.
Notwithstanding anything to the contrary contained herein, the repurchase of the
Purchased Shares is subject to Louisiana Regulatory Approval. In the event that
Louisiana Regulatory Approval is not obtained, the parties acknowledge that they
shall have no recourse against the Louisiana Gaming Control Board, the Attorney
General of the State of Louisiana, the Department of Safety and Corrections,
Office of State Police, and their members and employees, except as provided
under applicable Louisiana law, including the Louisiana Gaming Control Law, and
the rules and regulations promulgated thereunder.
4.2 Terms of Payment of Purchase Price. CCL shall pay to Buyers the
purchase price for all Purchased Shares acquired pursuant to this Article IV in
cash; provided, however, that CCL shall have the right to reduce, deduct or
otherwise offset against each payment otherwise due to a Buyer hereunder any and
all amounts owed to CCL by such Buyer, including principal and accrued interest
owed to CCL pursuant to the Note delivered by such Buyer pursuant to this
Agreement.
4.3 Closing. The consummation of any transfer under this Article IV shall
take place on the later of (i) the 10 th business day after the Repurchase
Notice is received by CCL or Weiser, as the case may be, or (ii) receipt of
Louisiana Regulatory Approval. The closing shall occur at the principal office
of CRC, and the closing procedures shall be consistent with the provisions of
this Article IV.
4.4 Tender Requirements at Closing. At the closing, the Buyers shall
present to CCL share certificates for all Purchased Shares to be acquired by CCL
pursuant to this Article IV, such share certificates to be in proper form for
transfer. Such shares shall be transferred free of all liens and encumbrances
or adverse claims of any kind of character. CCL, upon receipt of proper tenders
from Buyers, shall tender payment in accordance with the terms provided in this
Article IV.
ARTICLE V - MISCELLANEOUS
5.1 Further Assurances. Following the Closing, the parties shall execute
and deliver such documents, and take such action, as shall be reasonably
requested by any other party hereto to carry out the transactions contemplated
by this Agreement.
5.2 Publicity. Neither of the parties hereto shall issue or make, or cause
to have issued or made, any public release or announcement concerning this
Agreement or the transactions contemplated hereby, without the advance approval
in writing of the form and substance thereof by the other party hereto, which
approval shall not be unreasonably withheld, except as required by law.
5.3 Notices. Any notice, request, instruction, correspondence or other
document to be given hereunder by any party hereto to another (herein
collectively called "Notice") shall be in writing and delivered personally or
mailed by registered or certified mail, postage prepaid and return receipt
requested, or by telecopier, or by a reputable overnight courier, as follows:
If to CCL:
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178
Attention: Chief Financial Officer
If to any Buyer:
c/o CRC Holdings, Inc.
3250 Mary Street, 5th Floor
Miami, Florida 33133
Attention: Chief Financial Officer
5.4 Governing Law. The provisions of this Agreement and the documents
delivered pursuant hereto shall be governed by and construed in accordance with
the laws of the State of Florida; provided that the exercise of all rights and
remedies by any of the parties is subject to any applicable Louisiana Gaming
Control Law, and the rules and regulations promulgated thereunder.
5.5 Entire Agreement; Amendments and Waivers. This Agreement, together
with all exhibits and schedules attached hereto, constitutes the entire
agreement between and among the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements between the parties in
connection with the subject matter hereof except as set forth specifically
herein or contemplated hereby. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (regardless of whether similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly provided.
5.6 Binding Effect and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective permitted
successors and assigns. Nothing in this Agreement, express or implied, is
intended to confer upon any person or entity other than the parties hereto and
their respective permitted successors and assigns, any rights, benefits or
obligations hereunder.
5.7 Multiple Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but both of which together shall
constitute one and the same instrument.
EXECUTED as of the date first written above.
CARNIVAL CORPORATION
By: /s/ Gerald R. Cahill
Gerald R. Cahill
*
Sherwood M. Weiser
*
Donald E. Lefton
*
Thomas F. Hewitt
*
Peter L. Sibley
*
W. Peter Temling
*
Robert B. Sturges
* Executed By Power of Attorney
By:/s/ W. Peter Temling
W. Peter Temling