Exhibit 2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
December 22, 1998 by and among Impac Mortgage Holdings, Inc. (the "Company") and
the purchasers identified on the signature pages hereto (the "Purchasers"). The
Company desires to sell, and the Purchasers desire to purchase, an aggregate of
1,200,000 shares (the "Shares") of the Company's Series B 10.5% Cumulative
Convertible Preferred stock (the "Series B Preferred Stock"), on the terms and
subject to the conditions set forth herein. Accordingly, the Company and the
Purchasers hereby agree as follows:
1. Agreement to Purchase. At the Closing (as defined below), and subject
to the terms and conditions set forth in this Agreement, each Purchaser
(severally and not jointly) will purchase from the Company, and the Company will
issue and sell to such Purchaser, the number of Shares set forth on the
signature page executed by such Purchaser for a purchase price equal to $25.00
per Share.
2. Closing. Subject to Section 6 below, the closing of the purchase and
sale of the Shares (the "Closing") shall take place at 9:00 a.m. Central time on
the third business day after the date of this agreement, or on such other date
or at such other time as the Company and the Purchasers may agree. At or prior
to the Closing, (a) each Purchaser will pay the purchase price applicable to the
Shares being purchased by such Purchaser hereunder, by wire transfer of
immediately available funds to an account specified by the Company, and (b) the
Company will deliver, in accordance with instructions delivered by such
Purchaser, a certificate or certificates representing such Shares, in such
denominations and registered in such names as such Purchaser may request.
3. Representations and Warranties of the Company. The Company represents
and warrants, as of the date hereof and as of the Closing, as follows:
(a) Each of the representations and warranties of the Company
contained in Section 3 of the Placement Agency Agreement, dated December 22,
1998, between the Company and EVEREN Securities, Inc. (the "Placement Agency
Agreement") are true and correct, and such representations and warranties are
deemed to be made by the Company to the Purchasers hereunder, as if such
representations and warranties were included in this Agreement in their
entirety.
(b) To the Company's knowledge, except for such information as shall
be disclosed by the Company on or before the date hereof in a press release
substantially in the form attached hereto as Exhibit A, the Company has not
provided to any Purchaser any information that constitutes or may constitute
material information that has not been disclosed to the public within the
meaning of Section 10 of the Securities Exchange Act of 1934, as amended or Rule
10b-5 thereunder.
(c) Attached hereto as Exhibit B are true and correct copies of
resolutions duly adopted by the Board of Directors of the Company, which (among
other things) exclude the
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issuance of the Shares hereunder and the acquisition of shares of the Company's
common stock, $.01 par value per share (the "Common Stock") upon conversion or
redemption of such Shares from the application of certain restrictions contained
in the Company's charter. Such resolutions were duly adopted by the Board of
Directors of the Company and have not been amended or repealed. No "fair price,"
"moratorium," "control share acquisition" or other similar anti-takeover statute
or regulation to which the Company or its subsidiaries or operations is subject
is applicable to the sale of Shares or the acquisition of Common Stock by the
Purchasers upon conversion or redemption of such Shares or to the Purchasers
solely as a result of their acquisition of such Shares or Common Stock. No
Purchaser will become an "Acquiring Person" within the meaning of the Rights
Agreement, dated as of October 7, 1998, between the Company and BankBoston, N.A.
(as amended, the "Rights Agreement") solely as a result of purchasing Shares
hereunder or acquiring Common Stock upon conversion or redemption of such
Shares. Attached hereto as Exhibit C is a true and correct copy of an amendment
to the Rights Agreement, which has been duly adopted by all necessary action on
the part of the Company and the rights agent named therein and is in full force
and effect.
(d) The Company acknowledges that the Purchasers are relying on the
foregoing representations and warranties as an inducement to consummate the
transactions contemplated by this Agreement. Such representations and warranties
shall survive delivery of and payment for the Shares hereunder.
4. Representations and Warranties of the Purchasers. Each Purchaser
(severally and not jointly) represents and warrants to the Company, as of the
date hereof and as of the Closing, that such Purchaser has not effected any
transactions in the Common Stock since October 30, 1998.
5. Covenants. The Corporation shall take all action necessary to ensure
that any shares of Common Stock issued upon conversion or redemption of, or as a
distribution in respect of, the Shares are at all times (a) freely tradable and
not subject to any resale restrictions under the Securities Act of 1933, as
amended (the "Act"), or any applicable state securities or blue sky laws (other
than shares of Common Stock that are held by an "affiliate," as defined in Rule
144 under the Act) and (b) are listed on the American Stock Exchange, the New
York Stock Exchange or the Nasdaq National Market.
6. Conditions to Closing. The obligations of each Purchaser hereunder are
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) The representations and warranties of the Company are true and
correct as of the date hereof and as of the date of the Closing, as if such
representations and warranties had been made on and as of such dates, and the
Company has performed all of its obligations hereunder that are required to be
performed at or prior to the Closing, and such Purchaser has received a
certificate from the Company, dated as of the date of the Closing, to such
effect.
(b) Such Purchaser has received a copy of the secretary's
certificate delivered pursuant to the Placement Agency Agreement, which
certificate will reference this paragraph.
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(c) Such Purchaser has received a legal opinion from the Company's
counsel substantially in the form attached hereto as Exhibit D.
(d) Such Purchaser has received a legal opinion from the Company's
Maryland counsel substantially in the form attached hereto as Exhibit E.
7. Miscellaneous.
(a) The terms and conditions of this Agreement represent the entire
agreement between the parties with respect to the subject matter hereof and
supersede any prior agreements or understandings, whether written or oral,
between the parties respecting such subject matter. This Agreement may be
modified only in a writing signed by the party against whom such modification is
to be enforced.
(b) This Agreement shall be construed and enforced in accordance
with the laws of the State of Maryland applicable to agreements between
residents of Maryland wholly executed and wholly performed therein.
(c) The parties hereto acknowledge and agree that irreparable damage
would occur if any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
(d) This Agreement may be executed in one or more counterparts, and
such counterparts shall together constitute one and the same agreement.
(e) The obligations of each Purchaser hereunder are several and not
joint with the obligations of the other Purchasers hereunder, and no Purchaser
shall be responsible in any way for the performance of the obligations of any
other Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered in connection herewith, and no action taken by any Purchaser
pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
Each Purchaser shall be entitled to protect and enforce its rights, including
without limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
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IN WITNESSES WHEREOF, the parties have entered into this Agreement as of
the date first set forth above.
IMPAC MORTGAGE HOLDINGS, INC.
By:
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Name:
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Title:
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SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
The undersigned hereby execute this counterpart signature page of the
Stock Purchase Agreement, dated as of December 22, 1998, by and among Impac
Mortgage Holdings, Inc. and the undersigned Purchasers.
Number of Shares
of Series B Purchase
MONTROSE INVESTMENTS LTD. Preferred Stock Price
--------------- -----
By: 268,000 $6,700,000
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Name:
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Title:
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Number of Shares
of Series B Purchase
XXXXXXXX INVESTMENTS L.P. Preferred Stock Price
--------------- -----
By: 132,000 $3,300,000
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Name:
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Title:
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Number of Shares
of Series B Purchase
PRIME ACQUISITION CORP. Preferred Stock Price
--------------- -----
By: 800,000 $20,000,000
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Name:
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Title:
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