STOCK PURCHASE AGREEMENT
dated as of February 8, 2001
by and between
LADENBURG, XXXXXXXX GROUP INC.,
Xxxxxx Xxxxxxx Revocable Living Trust Dated 4/16/97
and
XXXXXX XXXXXXX
This STOCK PURCHASE AGREEMENT dated as of February 8, 2001, is made and
entered into by and between Ladenburg, Xxxxxxxx Group Inc., a Delaware
corporation ("LTGI"), the Xxxxxx Xxxxxxx Revocable Living Trust dated 4/16/97
(the "Trust") and Xxxxxx Xxxxxxx, an individual residing at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000 ("Xxxxxxx" and together with the Trust, the "Seller").
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Stock Purchase Agreement (as defined below).
WHEREAS, the Seller owns Three Million Nine Hundred Forty-Five Thousand
Sixty (3,945,060) shares of common stock, par value $0.0001 per share, of GBI
Capital Management Corp., a Florida corporation ("GBI") (such shares being
referred to herein as the "Shares"); and
WHEREAS, concurrently with the execution and delivery of this
Agreement, and pursuant to a Stock Purchase Agreement dated February 8, 2001
(the "Stock Purchase Agreement") between GBI, New Valley Corporation, LTGI,
Berliner Effektengesellschaft AG, a German corporation ("Berliner"), and
Ladenburg, Xxxxxxxx & Co. Inc., a Delaware corporation ("Ladenburg") relating to
GBI's acquisition of all of the outstanding shares of capital stock of Ladenburg
from LTGI and Berliner, Seller desires to sell to LTGI, and LTGI desires to
purchase, the Shares on the terms and subject to the conditions set forth in
this Agreement;
WHEREAS, the parties hereto intend to consummate the transactions
contemplated by this Agreement and the Stock Purchase Agreement simultaneously;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
SALE OF SHARES AND CLOSING
1.01 Purchase and Sale. Seller agrees to sell to LTGI, and LTGI agrees
to purchase from Seller, all of the right, title and interest of Seller in and
to the Shares at the Closing on the terms and subject to the conditions set
forth in this Agreement.
1.02 Purchase Price. The aggregate purchase price for the Shares is
$3,945,060 (the "Purchase Price"), payable in immediately available United
States funds at the Closing. LTGI will pay the Purchase Price by transfer of
such funds to Seller to an account designated by Seller at least two business
days before Closing. Simultaneously, Seller will assign and transfer to LTGI all
of Seller's right, title and interest in and to the Shares by delivering to LTGI
a certificate or certificates representing the Shares, in genuine and unaltered
form, duly endorsed in blank or accompanied by duly executed stock powers
endorsed in blank, with requisite stock transfer tax stamps, if any, attached.
1.03 Further Assurances. At any time or from time to time after the
Closing, Seller shall execute and deliver to LTGI such other documents and
instruments, provide such materials and information and take such other actions
as LTGI may reasonably request more effectively to vest title to the Shares in
LTGI, and otherwise to cause Seller to fulfill its obligations under this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each party hereby represents and warrants to the other that
such party as follows (except in the case of a representation and warranty
stated as being made by a specific party):
2.01 Organization. Such party has full power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
2.02 Authority. The execution and delivery by such party of this
Agreement, and the performance by such party of its obligations hereunder, have
been duly and validly authorized by all necessary corporate or other action on
the part of such party. This Agreement has been duly and validly executed and
delivered by such party and constitutes a legal, valid and binding obligation of
such party enforceable against such party in accordance with its terms.
2.03 Capital Stock. Seller represents and warrants that: (a) the Shares
are validly issued, fully paid and nonassessable; (b) Seller owns the Shares,
beneficially and of record, free and clear of all Liens except those imposed by
federal and state securities laws; (c) except for this Agreement, there are no
outstanding options with respect to the Shares; and (d) the delivery of a
certificate or certificates at the Closing representing the Shares in the manner
provided in Section 1.02 will transfer to LTGI good and valid title to the
Shares, free and clear of all Liens except those imposed by federal and state
securities laws.
2.04 No Conflicts. The execution, delivery and performance by such
party of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) result in any breach or violation of or be in
conflict with or constitute a default under the terms of any law, order,
regulation or agreement or arrangement to which such party or (in the case of
Seller) GBI or its subsidiaries, as the case may be, is a party or by which such
party is bound, (ii) require any filing with or authorization by any
governmental entity, other than filings with the Commission to report the
transactions contemplated hereby or (iii) require any consent or other action by
any person under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any benefit to which
such party is entitled under any provision of any agreement or other instrument
binding on such party.
2.05 Investment Representation. LTGI represents and warrants to Seller
that it is an "accredited investor" as that term is defined under Rule 501 of
Regulation D of the 1933 Act. LTGI understands that the Shares are "restricted,"
such that they may not be resold by it except pursuant to an effective
registration statement under the 1933 Act or an exemption from the registration
requirements thereof, and that the certificates representing such Shares shall
bear a legend to this effect. It understands that its purchase of the Shares
represents a speculative investment, involving a high degree of risk. It has had
the opportunity to ask reasonable questions of the Seller and officers of GBI
concerning the Shares and the business of GBI, and such questions have been
answered to its full satisfaction.
ARTICLE III
MISCELLANEOUS
3.01 Termination. Upon termination of the Stock Purchase Agreement
prior to the occurrence of the Closing, this Agreement shall likewise terminate
and be of no further force and effect.
3.02 Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to, with respect to LTGI, the address or facsimile number provided in the Stock
Purchase Agreement or, with respect to Seller, the following address or
facsimile number:
Xxxxxx Xxxxxxx
c/o GBI Capital Management Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
All such notices, requests and other communications will be deemed given as
provided in the Stock Purchase Agreement. Any party from time to time may change
its address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other party hereto.
3.03 Entire Agreement. This Agreement supersedes all prior discussions
and agreements between the parties with respect to the subject matter hereof,
and contains the sole and entire agreement between the parties hereto with
respect to the subject matter hereof.
3.04 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the transactions contemplated hereby are consummated,
each party will pay its own costs and expenses incurred in connection with the
negotiation, execution and closing of this Agreement and the transactions
contemplated hereby. Notwithstanding the foregoing, Sellers shall be responsible
for any documentary, stamp or similar transfer tax due on the sale of Shares
under this Agreement.
3.05 Waiver. Any term or condition of this Agreement may be waived at
any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
3.06 Amendment. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party hereto.
3.07 No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person.
3.08 No Assignment; Binding Effect. Neither this Agreement nor any
right, interest or obligation hereunder may be assigned by any party hereto
without the prior written consent of the other party hereto and any attempt to
do so will be void, except (a) for assignments and transfers by operation of law
and (b) that LTGI may assign any or all of its rights, interests and obligations
hereunder to a wholly-owned subsidiary, provided that any such subsidiary agrees
in writing to be bound by all of the terms, conditions and provisions contained
herein, but no such assignment shall relieve LTGI of its obligations hereunder.
Subject to the preceding sentence, this Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their respective
successors and assigns.
3.09 Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
3.10 Consent to Jurisdiction and Service of Process. LTGI hereby
irrevocably appoints the President of New Valley Corporation, at its offices at
000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, its lawful agent and
attorney to accept and acknowledge service of any and all process against it in
any action, suit or proceeding arising out of or relating to this Agreement or
any of the transactions contemplated thereby and upon whom such process may be
served, with the same effect as if such party were a resident of the State of
New York and had been lawfully served with such process in such jurisdiction,
and waives all claims of error by reason of such service, provided that in the
case of any service upon such agent and attorney, the party effecting such
service shall also deliver a copy thereof to the other parties at the address
and in the manner specified in Section 3.02. Seller hereby irrevocably consents
to the service of the summons and complaint and any other process in any other
action or proceeding relating to the transactions contemplated by this
Agreement, on behalf of itself or its property, by personal delivery of copies
of such process to such party. LTGI and Seller will enter into such agreements
with such agents as may be necessary to constitute and continue the appointment
of such agents hereunder. In the event that such agent and attorney resigns or
otherwise becomes incapable of acting as such, such party will appoint a
successor agent and attorney in the City of New York, reasonably satisfactory to
the other parties, with like powers. Each party hereby irrevocably submits to
the exclusive jurisdiction of the United States District Court for the Southern
District of New York or any court of the State of New York located in the
Borough of Manhattan in the City of New York in any such action, suit or
proceeding arising out of or relating to this Agreement or any of the
transactions contemplated thereby, and agrees that any such action, suit or
proceeding shall be brought only in such court, provided, however, that such
consent to jurisdiction is solely for the purpose referred to in this Section
3.10 and shall not be deemed to be a general submission to the jurisdiction of
said courts or in the State of New York other than for such purpose. Each party
hereby irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such action,
suit or proceeding brought in such a court and any claim that any such action,
suit or proceeding brought in such a court has been brought in an inconvenient
forum.
3.11 Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, and (c)
the remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid or unenforceable provision or
by its severance herefrom.
3.12 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES HERETO IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
3.13 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of New York without giving effect to
principles of conflicts of law.
3.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly authorized officer of each party hereto as of the date first above written.
LADENBURG, XXXXXXXX GROUP INC.
/s/ Xxxxxx Xxxxx
By:_______________________________
Name: Xxxxxx Xxxxx
Title:
XXXXXX XXXXXXX
/s/ Xxxxxx Xxxxxxx
_________________________________
Xxxxxx Xxxxxxx Revocable Living Trust dAtEd 4/16/97
/s/ Xxxxxx Xxxxxxx
By:_______________________________
Name: Xxxxxx Xxxxxxx
Title:
