Exhibit 10.11
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into on January 6, 1998, by and among Jose Liberman ("Jose"), Esther Liberman
("Esther"), Lenard D. Liberman ("Lenard"), and LBI Holdings I, Inc., a
California corporation (the "Company"), with respect to the issued and
outstanding shares of Common Stock, $.01 par value, of the Company (the
"Stock").
RECITALS
A. Jose and Esther collectively own 100 shares of the Stock,
representing one-half of the Stock. During their joint lifetimes they shall be
required to act jointly, and they shall collectively be deemed to be one
Shareholder. Following the death of the first to die of Jose and Esther, the
survivor shall be deemed to be a Shareholder.
B. Lenard owns 100 shares of the Stock, representing one-half of the
Stock.
C. Jose and Esther (collectively), the survivor of Jose and Esther,
and Lenard are sometimes referred to hereinafter individually as a "Shareholder"
and collectively as the "Shareholders."
D. The Shareholders and the Company believe it to be in their
respective best interests that in the event any Shareholder dies or seeks to
dispose of said Shareholder's Stock, the other of them have the rights to
acquire such Shareholder's Stock as are set forth in this Agreement.
E. The Shareholders and the Company have each independently concluded
that the valuation of the Stock provided for in this Agreement is fair and
equitable.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
Agreements and covenants contained herein, it is mutually agreed and covenanted
by and among the Shareholders and the Company as follows:
1. Permissible Transfers. Subject to (i) paragraph 7 below and (ii)
any required prior approval of the Federal Communications Commission (the
"FCC"), each Shareholder may transfer shares of Stock without consideration to
the Shareholder's spouse, children, or other descendants, or to a trust for
their benefit or for the Shareholder's benefit. The transferee shall be bound by
all terms of this Agreement.
2. Lifetime Restrictions. Except as provided in paragraph 1 above, and
subject to (i) paragraph 7 below or (ii) any required prior approval of the FCC,
no Shareholder shall transfer, pledge, hypothecate, divide, assign or otherwise
alienate (the foregoing collectively referred to as "transfer") any Stock, or
any right, title or interest therein, without the prior written consent of the
Company and of the other Shareholders, unless the Shareholder shall have first
made the offer to sell hereinafter set forth:
(a) The offering Shareholder shall deliver a written offer (hereinafter
referred to as the "Offer") to the Company and to the other Shareholders
specifying the number of shares (the "Offered Stock"), the name and address of
the prospective transferee, the proposed price and the other terms of the
transfer. For purposes of this paragraph 2, an Offer by Jose or Esther shall be
deemed to be a joint offer by both of them, and Lenard shall be deemed to be the
only non-offering Shareholder.
(b) For a period of 30 days following receipt of the written offer, the
Company shall have the option to purchase the Offered Stock, subject to the
restrictions governing the right of a corporation to purchase its Stock under
applicable local law. If the Company exercises the option, the Secretary of the
Company shall give written notice of such exercise to the offering Shareholder.
The terms and conditions of the purchase referred to herein shall be as
specified in the Offer; provided, however, that the price to be paid shall be
the lesser of the price set forth in the Offer or the price determined in
paragraph 5 below. If the Offer specifies that the purchase price is payable
only in cash, or if the Offer relates to a transfer other than a sale, the
Company shall have the election to pay all or part of the purchase price by a
promissory note in the form set forth in Exhibit A attached hereto.
(c) If the Company does not exercise the option within said 30 days
after receipt of the Offer, the non-offering Shareholder shall, for the ensuing
30-day period, have the option to purchase that portion of the Offered Stock not
purchased by the Company. If the non-offering Shareholder exercises the option
within the aforementioned period, such Shareholder shall give written notice of
such exercise to the offering Shareholder. The terms and conditions of the
purchase referred to herein shall be as specified in the Offer; provided,
however, that the price to be paid shall be the lesser of the price set forth in
the Offer, or the price determined in paragraph 5 below. If the Offer specifies
that the purchase price is payable only in cash, or if the Offer relates to a
transfer other than a sale, the non-offering Shareholder shall have the election
to pay all or part of the purchase price by a promissory note in the form set
forth in Exhibit B attached hereto.
(d) All Offered Stock not purchased by the Company or by the
non-offering Shareholder within 60 days after receipt of the Offer shall be free
of the terms of this Agreement for the period of the ensuing 30 days, and the
offering Shareholder may make a bona fide transfer to the prospective transferee
named in the Offer according to its terms and conditions. If the offering
Shareholder shall fail to make a transfer of the Offered Stock to the
prospective transferee within said 30-day period, all such untransferred shares
shall again become subject to the terms and restrictions of this Agreement.
(e) Any transferee of shares transferred pursuant to this paragraph 2,
other than a Shareholder, shall not acquire any rights under, or become a party
to, this Agreement.
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3. Optional Purchase of Shares Upon a Shareholder's Death. Subject to
paragraph 7 below, upon a Shareholder's death, the surviving Shareholder and the
Company shall have the options to purchase the deceased Shareholder's Stock as
set forth below:
(a) For purposes of this paragraph 3, options under this Agreement
to purchase Stock owned by Jose or Esther shall arise only upon the death
of the survivor of them, and said survivor shall be deemed to be the
deceased Shareholder.
(b) For the period ending on the later to occur of 180 days after
the deceased's Shareholder's death or 60 days after the appointment of the
deceased Shareholder's personal representative, the Company shall have the
option to purchase the deceased Shareholder's Stock, subject to the
restrictions governing the right of a corporation to purchase its Stock
under the applicable local law. The price shall be determined as set forth
in paragraph 5 below. In the event that this option shall be exercised by
the Company, the Secretary of the Company shall give written notice of such
exercise to the deceased Shareholder's personal representative. The Company
shall pay the purchase price in cash, or, at its election, may pay all or
part of the purchase price by a promissory note in the form set forth in
Exhibit A attached hereto.
(c) If the Company does not exercise the option under this
paragraph 3 within said period, the surviving Shareholder shall have, for
the ensuing 90-day period, the option to purchase that portion of the
shares not purchased by the Company. If the surviving Shareholder exercises
the option as set forth herein, the surviving Shareholder shall give
written notice of such exercise to the deceased Shareholder's personal
representative. The surviving Shareholder shall pay the purchase price in
cash, or may, at the surviving Shareholder's election, pay all or part of
the purchase price by a promissory note in the form set forth in Exhibit B
attached hereto.
(d) All offered shares not purchased by the Company or by the
surviving Shareholder within the foregoing period shall thereafter be free
of the terms of this Agreement, and the deceased Shareholder's personal
representative may make a bona fide transfer of the deceased Shareholder's
Stock without further regard to the terms and conditions of this Agreement.
4. Life Insurance Provisions. The Company or the Shareholders may
elect to apply for and own insurance on a Shareholder's life for the purpose of
funding all or part of the obligations under this Agreement. Nothing in this
Agreement shall create any obligation for the Company or a Shareholder to apply
for and own such insurance, and no incident of ownership shall be attributed to
an insured Shareholder if the Company or another Shareholder elects to apply for
and own insurance on such insured Shareholder's life.
5. Price. The price of each share of Stock of the Company to be
purchased and sold under this Agreement shall be fixed by the Shareholders, as
evidenced by a certificate setting forth such fixed price, which certificate
shall be dated and executed by the Shareholders and attached hereto as Exhibit
C. The fixed price set forth in the certificate attached hereto shall be binding
on the Shareholders for all purposes of this Agreement, except that during the
90 day period following the last day of the Company's fiscal year ending within
the calendar years
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2001, 2004 and within each subsequent third year thereafter, any Shareholder may
request that a study be undertaken to arrive at a new fixed price to be agreed
upon by the Shareholders. No such request shall alter the then effective fixed
price prior to the execution of a new fixed price certificate. The new fixed
price shall take effect as of the date of execution of the certificate, and
shall be binding on the Shareholders for all purposes, subject to the
limitations of this paragraph. If, during the appropriate 90 day period, no
Shareholder makes a request for a study to be undertaken to arrive at a new
fixed price to be agreed upon by the parties, the fixed price set forth in the
latest executed certificate attached hereto shall remain in effect for the
subsequent three year period. If any Shareholder shall, within the appropriate
90 day period, request that a study be undertaken to arrive at a new fixed price
to be agreed upon by the Shareholders, and if the Shareholders shall be unable
to agree upon such a fixed price within 45 days following the request, then a
qualified appraiser mutually agreed upon and selected by the Shareholders shall
appraise the Company and determine the value of the Stock. The fees and costs of
the appraisal shall be borne equally by the Shareholders.
6. Additional Shares Covered By Agreement. This Agreement shall apply
not only to the shares of Stock now owned by the Shareholders as hereinabove set
forth, but also to all of the shares of capital stock of the Company that a
Shareholder may hereafter acquire while a party to this Agreement.
7. Suspension And Subordination Of Rights. Notwithstanding anything in
this Agreement to the contrary, all of the Stock (but not less than all) may be
pledged to a bank to secure loans made by such bank to the Company. In the event
of any such pledge, then as long as the pledge remains in effect and to the
extent provided in such pledge, the rights and obligations under this Agreement
shall be suspended and affected as set forth below:
(a) The rights of each Shareholder and each Shareholder's personal
representative to transfer stock under this Agreement shall be subordinate
and subject to the Company's bank obligations that are secured by the
pledge.
(b) The Company's obligation to pay all or any part of the purchase
price, including payments of interest and principal on the promissory note
provided for in paragraphs 2 and 3 above and set forth in Exhibit A
attached hereto, shall be suspended until all of the Company's bank
obligations secured by the pledge agreement are paid in full (the
"Suspension Period"). During the Suspension Period, the Shareholder or
Shareholder's personal representative whose Stock is being purchased by the
Company shall be entitled to custody of the Stock, and such Shareholder or
Shareholder's personal representative shall deliver or redeliver the Stock
to the Company at such time as the Suspension Period has ended and the
Company resumes payments of the purchase price. The Company shall be
obligated to pay the Shareholder or Shareholder's personal representative
whose Stock is being purchased by the Company additional interest at the
rate determined in the promissory note for the Suspension Period.
(c) During the Suspension Period, all rights that a Shareholder may
have to acquire the other Shareholder's Stock under this Agreement shall be
subordinate and subject to the Company's bank obligations that are secured
by the pledge.
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(d) During the Suspension Period, the Shareholder who is not
selling or transferring Stock (the "Remaining Shareholder") shall have all
rights to exercise any voting or other consensual rights attributable to
Stock, subject to any required prior approval of the FCC. The Shareholders
acknowledge and agree that the rights conferred on the Remaining
Shareholder by this paragraph 7 constitute a voting agreement between
shareholders of a close corporation enforceable in accordance with Section
706 of the General Corporation Law of the State of California.
8. Termination Provisions. This Agreement shall terminate upon the
earliest to occur of any of the following events:
(a) Cessation of business of the Company;
(b) Bankruptcy, receivership or dissolution of the Company;
(c) A public offering of Stock of the Company; provided, however,
that if there is an underwritten public offering of Stock of the Company,
each Shareholder agrees not to effect any public sale or distribution of
his Stock in the Company for such period as may be requested by the
managing underwriters of such offering (not to exceed the seven day period
preceding, and the 90 day period beginning on, the effective date of any
such registration), except as part of such registration.
(d) The voluntary agreement of all the parties who are then bound
by the terms hereof.
9. Endorsement On Stock Certificates. Each certificate representing
shares of capital Stock of the Company now or hereafter held by the Shareholders
shall be stamped with a legend in substantially the following form:
"This certificate is transferable only upon compliance with the
provisions of a Stock Purchase Agreement dated January 6, 1998, by and
among Jose Liberman, Esther Liberman, Lenard D. Liberman, and LBI
Holdings I, Inc., a copy of which is on file in the office of the
Corporation."
10. Amendment. This Agreement may be altered, amended or terminated
only by a writing signed by all the parties bound by this Agreement as of the
time of such alteration, amendment or termination.
11. Provision In Will or Trust. This Agreement shall be binding upon
the parties hereto, their heirs, legatees, executors, administrators and
assigns. In furtherance thereof, each of the parties to this Agreement shall
maintain in effect at all times a will or trust directing his or her personal
representative to carry out this Agreement and to execute all documents
necessary to accomplish that result. The failure to maintain in effect such a
will or trust shall not affect the rights or obligations of the parties to this
Agreement.
12. Notice. Whenever this Agreement requires the giving of notice, such
notice will be effective when actually received, except that any notice
addressed to a Shareholder
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at the address on file with the Company and deposited in the United States mail
by first class mail shall be conclusively presumed to be actually received five
days after such deposit.
13. Take All Necessary Action. The Shareholders agree to sign all
necessary documents and take all other action necessary to carry out the
provisions of this Agreement.
14. Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the Shareholders hereto have executed this
Agreement as of the date first written above.
/s/ Jose Liberman
-------------------------------
Jose Liberman
/s/ Esther Liberman
-------------------------------
Esther Liberman
/s/ Lenard D. Liberman
-------------------------------
Lenard D. Liberman
LBI Holdings I, Inc.
By /s/ Lenard D. Liberman
-----------------------------
Lenard D. Liberman
Vice President
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SPOUSAL CONSENT
The undersigned, being the spouse of a Shareholder who has signed the
foregoing Stock Purchase Agreement, hereby acknowledges that she has read and is
familiar with the provisions of said Agreement and agrees to be bound thereby
and join therein to the extent, if any, that her agreement and joinder may be
necessary; she hereby further acknowledges and agrees that Stock registered in a
Shareholder's name shall be or may be purchased and sold under the terms of said
Agreement without her further consent; she further acknowledges and agrees that
her spouse may join in any future amendment or modification of said Agreement
without any further signature, acknowledgment, agreement or consent on her part;
and she hereby further acknowledges and agrees that any community property or
other legal interest which she may have or hereafter acquire in the shares of
Stock of her spouse in the Company shall be subject to the provisions of said
Agreement.
Dated: January 6, 1998
/s/ Sarah Liberman
------------------------------
Sarah Liberman
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EXHIBIT A
NON-NEGOTIABLE PROMISSORY NOTE
$______________ ____________________, California
[Date]
FOR VALUE RECEIVED, the undersigned LBI HOLDINGS I, INC., a California
corporation (the "Company"), hereby promises to pay to
___________________________________, ("Payee"), the principal sum of
________________________________________ ($____________)
in lawful money of the United States of America, together with interest on the
unpaid balance thereof from the date hereof in the amounts and at the times
specified below until such principal amount shall be paid in full.
The Company shall pay the principal balance of this Note in five equal
installments, the first of which shall be due and payable one year after the
date of this Note, and each remaining installment shall be due and payable on
the subsequent annual anniversary dates of this Note.
The unpaid principal balance of this Note shall bear interest at the
Applicable Federal Mid-Term Rate as determined for purposes of Internal Revenue
Code Section 1274 for promissory notes executed in the month of this Note. This
Note shall not be construed to require payment of any interest in excess of the
maximum amount permitted by law.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America and same day funds to Payee
at such place as shall be designated in writing for such purpose by Payee.
The obligations of the Company under this Note shall be subject to the
condition that all payments under this Note be legally permissible under the
laws of the State of California and the rules and regulations of the California
Department of Corporations.
The Company shall have the right to prepay this Note in whole at any
time or in part from time to time, by payment of the principal amount hereof to
be prepaid, plus accrued but unpaid interest thereon.
No provision of this Note shall alter or impair the obligation of the
Company which is absolute and unconditional to pay the principal of and interest
on this Note at the place, at the times and in the currency herein prescribed;
provided, however, that the Company shall not be obligated to make any payment
on this Note if, as of the date such payment is to be made, such payment would
violate Section 500 or any other applicable provisions of the General
Corporation Law of the State of California then in effect.
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The Company promises to pay all costs and expenses, including
reasonable attorneys' fees, incurred in the collection and enforcement of this
Note. The Company hereby waives diligence, presentment, protest, demand and
notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demands hereunder.
This Note is to be governed by, and construed and enforced in
accordance with, the laws of the State of California.
IN WITNESS WHEREOF, the Company has caused this Note to be executed and
delivered by a duly authorized officer, as of the day and year and at the place
first above written.
LBI HOLDINGS I, INC.
a California corporation
By: /s/
-----------------------
Title:_______________________
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EXHIBIT B
NON-NEGOTIABLE PROMISSORY NOTE
$______________ ____________________, California
[Date]
FOR VALUE RECEIVED, the undersigned ______________
_____________________ ("Payor"), hereby promises to pay to
___________________________________, ("Payee"), the principal sum
of____________________________________________($_____________)
in lawful money of the United States of America, together with interest on the
unpaid balance thereof from the date hereof in the amounts and at the times
specified below until such principal amount shall be paid in full.
Payor shall pay the principal balance of this Note in five equal
installments, the first of which shall be due and payable one year after the
date of this Note, and each remaining installment shall be due and payable on
the subsequent annual anniversary dates of this Note.
The unpaid principal balance of this Note shall bear interest at the
Applicable Federal Mid-Term Rate as determined for purposes of Internal Revenue
Code Section 1274 for promissory notes executed in the month of this Note. This
Note shall not be construed to require payment of any interest in excess of the
maximum amount permitted by law.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America and same day funds to Payee
at such place as shall be designated in writing for such purpose by Payee.
Payor shall have the right to prepay this Note in whole at any time or
in part from time to time, by payment of the principal amount hereof to be
prepaid, plus accrued but unpaid interest thereon.
No provision of this Note shall alter or impair the obligation of Payor
which is absolute and unconditional to pay the principal of and interest on this
Note at the place, at the times and in the currency herein prescribed.
Payor promises to pay all costs and expenses, including reasonable
attorneys' fees, incurred in the collection and enforcement of this Note. Payor
hereby waives diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demands hereunder.
This Note is to be governed by, and construed and enforced in
accordance with, the laws of the State of California.
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IN WITNESS WHEREOF, Payor has caused this Note to be executed and
delivered by a duly authorized officer, as of the day and year and at the place
first above written.
______________________________
Payor
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EXHIBIT C
PRICE CERTIFICATE
This certificate is for the purpose of establishing the price for the
Stock owned by each Shareholder under that certain Stock Purchase Agreement,
dated as of January 6, 1998, by and among Jose Liberman, Esther Liberman, Lenard
D. Liberman, and LBI Holdings I, Inc., as set forth in paragraph 5 of said
Agreement. As of the date set forth below, the Shareholders certify that the
total value of the Company is
______________________________________________($______________), so that the
price for each of the ____ shares of Stock of the Company owned by the
Shareholders, as the terms "Company," and "Shareholders" are defined in said
Agreement, is ______________________________________________($______________).
DATED: _________________________.
SHAREHOLDERS
_______________________________
Jose Liberman
_______________________________
Esther Liberman
_______________________________
Lenard D. Liberman
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PRICE CERTIFICATE
This certificate is for the purpose of establishing the price for the
Stock owned by each Shareholder under that certain Stock Purchase Agreement,
dated as of January 6, 1998, by and among Jose Liberman, Esther Liberman, Lenard
D. Liberman, and LBI Holdings I, Inc., as set forth in paragraph 5 of said
Agreement. As of the date set forth below, the Shareholders certify that the
total value of the Company is Four Hundred Two Million Eight Hundred Forty-Six
Thousand Four Hundred Twenty-Two Dollars ($402,846,422), so that the price for
each of the 200 shares of Stock of the Company owned by the Shareholders, as the
terms "Company," and "Shareholders" are defined in said Agreement, is Two
Million Fourteen Thousand Two Hundred Thirty-Two Dollars and Eleven Cents
($2,014,232.11).
DATED: June 28, 2002
SHAREHOLDERS
/s/ Jose Liberman
------------------------------
Jose Liberman
/s/ Esther Liberman
------------------------------
Esther Liberman
/s/ Lenard D. Liberman
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Lenard D. Liberman