EXHIBIT 2.1
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT ("Agreement") is entered into this 31st
day of December, 2001, by and between INTREPID CAPITAL CORPORATION, a Delaware
corporation (hereinafter referred to as "Buyer"), XXXX XXXXXXXX, an individual
resident of the State of Florida ("Xxxxxxxx"), XXXXX XXXXX, an individual
resident of the State of Florida ("Xxxxx"), A. XXXXXXX XXXXXX, an individual
resident of the State of Florida ("Xxxxxx"), XXX XXXX, an individual resident
of the State of Florida ("Lord"), XXXXXXXX XXXXXX, an individual resident of
the State of Florida ("Xxxxxx"), and XXXXX XXXXX, an individual resident of the
State of Florida ("Xxxxx"; Shockley, Brock, Thayer, Lord, Xxxxxx and Xxxxx are
referred to herein collectively as "Sellers" and individually as "Seller"), and
ICC INVESTMENT ADVISORS, INC., a Florida corporation (hereafter referred to as
the "Company").
WITNESSETH:
WHEREAS, Sellers own of record and beneficially 1,230.1227 shares (the
"Shares") of the issued and outstanding shares of the Company's common stock,
par value $1.00 per share (the "Company Common Stock"), which shares constitute
all of the capital stock of the Company issued and outstanding; and
WHEREAS, Sellers desire to sell the Shares to Buyer, and Buyer desires
to purchase the Shares from Sellers, upon the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, and subject to the
accuracy of the representations and warranties of the parties, the parties
hereto agree as follows:
ARTICLE I.
SALE AND PURCHASE OF THE SHARES
1.1 SALE AND PURCHASE. Subject to the terms and conditions
hereof, Sellers hereby sell, assign, transfer, convey and deliver to Buyer, and
Buyer hereby purchases from Sellers, the Shares. The transaction contemplated
by this Agreement is sometimes referred to as the "Transaction".
1.2 PURCHASE CONSIDERATION. The purchase consideration for the
Shares (the "Purchase Consideration") shall be (a) cash in the amount of Two
Million Eight Hundred Twenty-Five Thousand Nine Hundred Forty-Two and no
Dollars ($2,825,942.00) by wire transfer to an account or accounts designated
by Sellers in writing or by delivery to Sellers of one or more cashier's or
certified checks made payable to Sellers, (b) warrants to purchase an aggregate
of 100,000 shares of the common stock, par value $.01 per share, of Buyer (the
"Buyer Common Stock") with an exercise price of $6.00 per share, and (c) an
aggregate of One Million (1,000,000) shares of Buyer Common Stock. The Purchase
Consideration shall be payable by
Buyer to Sellers as provided in Article III hereof by delivery of cash,
executed warrant agreements and share certificates representing the shares of
Buyer Common Stock payable pursuant hereto.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF SELLERS AND THE COMPANY.
Subject to the matters disclosed in Schedule A attached hereto and incorporated
herein by this reference, each Seller, severally and not jointly, represents
and warrants to Buyer as follows:
(a) TITLE TO THE SHARES; POWER TO SELL. Such Seller owns
of record and beneficially all of the Shares set forth opposite such
Seller's name on Schedule A hereto, free and clear of all liens,
encumbrances, pledges, claims, options, charges and assessments of any
nature whatsoever, with full right and lawful authority to transfer
such Shares to Buyer. The Shares constitute all of the shares of the
capital stock of the Company issued and outstanding. No person has any
preemptive rights or rights of first refusal with respect to any of
the Shares. There exists no voting agreement, voting trust, or
outstanding proxy with respect to any of the Shares. There are no
outstanding rights, options, warrants, calls, commitments, or any
other agreements of any character, whether oral or written, with
respect to the Shares. Such Seller has the power and authority to sell
all of the Shares owned by such Seller to Buyer as provided herein and
to execute, deliver and otherwise perform this Agreement and the
agreements, instruments and documents to be executed and delivered by
such Seller pursuant to this Agreement.
(b) TITLE TO SHARES OF THE INVESTMENT COMPANY COUNSEL OF
THE SOUTHEAST. The Company owns of record and beneficially all of the
shares of capital stock of The Investment Counsel Company of the
Southeast ("ICC Sub"), free and clear of all liens, encumbrances,
pledges, claims, options, charges and assessments of any nature
whatsoever. No person has any preemptive rights or rights of first
refusal with respect to any of the shares of capital stock of ICC Sub.
There exists no voting agreement, voting trust, or outstanding proxy
with respect to any of the shares of capital stock of ICC Sub. There
are no outstanding rights, options, warrants, calls, commitments, or
any other agreements of any character, whether oral or written, with
respect to any of the shares of capital stock of ICC Sub.
(c) ORGANIZATION. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Florida. The Company has all requisite corporate power
and authority to own, lease and operate its properties and to carry on
its business. The Company is duly qualified and in good standing as a
foreign corporation in each jurisdiction where its ownership of
property or operation of its business requires qualification.
(d) AUTHORIZED CAPITALIZATION. The authorized
capitalization of the Company consists of ten thousand (10,000) shares
of the Company Common Stock, of
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which 1,230.1227 shares have been issued and are outstanding. The
Shares have been duly authorized, validly issued, are fully paid and
nonassessable with no personal liability attaching to the ownership
thereof and were offered, issued, sold and delivered by the Company in
compliance with all applicable state and federal laws. The Company
does not have any outstanding rights, options, warrants, calls,
commitments, conversion or any other agreements of any character,
whether oral or written, obligating it to issue any shares of its
capital stock, whether authorized or not. The Company is not a party
to and is not bound by any agreement, contract, arrangement or
understanding, whether oral or written, giving any person or entity
any interest in, or any right to share, participate in or receive any
portion of, the Company's income, profits or assets, or obligating the
Company to distribute any portion of its income, profits or assets.
(e) AUTHORITY. Such Seller has full power and lawful
authority to execute and deliver this Agreement and to consummate and
perform the Transaction contemplated hereby. This Agreement
constitutes a valid and legally binding obligation of such Seller,
enforceable in accordance with its terms. Neither the execution and
delivery of this Agreement by such Seller, nor the consummation and
performance of the Transaction contemplated thereby, will conflict
with, requires the consent, waiver or approval of, results in a breach
of or default under, or gives to others any interest or right of
termination, cancellation or acceleration in or with respect to, any
agreement by which such Seller or the Company is a party or by which
such Seller or the Company or any of their respective properties or
assets are bound or affected.
(f) COMPANY FINANCIAL STATEMENTS. The unaudited balance
sheet, income statement and statement of cash flows of the Company for
the nine months ended September 30, 2001 previously delivered to Buyer
(the "Company Financial Statements") are complete, were prepared in
accordance with generally accepted accounting principles ("GAAP")
applied on a basis consistent with prior periods and fairly present
the financial condition and the results of operations and cash flow of
the Company and ICC Sub in accordance with GAAP, on the bases therein
stated, as of the date thereof and for the period covered thereby,
except that the Company Financial Statements lack footnotes and other
presentation items and are subject to normal nonmaterial year-end
audit adjustments and accruals.
(g) NO UNDISCLOSED LIABILITIES. Except as set forth in
the Company Financial Statements or on Schedule A attached hereto,
neither such Seller nor the Company is aware of any liabilities for
which the Company currently is liable or will become liable in the
future.
(h) TAXES. The Company has made payments of taxes
sufficient to avoid penalties for late payments or underpayment of
taxes; all taxes and other amounts that the Company is or was required
by applicable law to withhold or collect have been duly withheld and
collected and have been paid over to the proper government authorities
in accordance with applicable law; there are no liens for taxes on any
of the Company's assets with respect to state and local taxes on
property; no audit of the returns of the Company's taxes is currently
being conducted; the Company has not received from any governmental
authority with jurisdiction or other authority as to taxes either a
notice that
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it intends to conduct any other audit of returns of taxes or any
request for information with respect to taxes; there are no
outstanding agreements or waivers extending the statutory period of
limitation applicable to any return of taxes for any period; and there
are no outstanding requests by the Company for rulings from any
governmental authority.
(i) COMPLIANCE WITH AGREEMENTS. The Company is in
compliance with each agreement and lease to which it is a party or
subject.
(j) COMPLIANCE WITH LAWS; PERMITS. The Company is not in
material violation of any federal, state, local or other law,
ordinance, rule or regulation applicable to its business, and has not
received any actual or threatened complaint, citation or notice of
violation or investigation from any governmental authority. The
Company (i) has all permits required to operate the business of the
Company as currently being conducted and (ii) is (and has been) in
material compliance with each such permit; provided, however, that the
foregoing will not require disclosure of state and local business or
similar licenses required of businesses generally.
(k) NO LITIGATION. There are no actions, suits, claims,
complaints or proceedings pending or, to the best knowledge of such
Seller, threatened against the Company, at law or in equity, or before
or by any governmental department, commission, court, board, bureau,
agency or instrumentality; and there are no facts known to such Seller
which would provide a valid basis for any such action, suit or
proceeding. There are no orders, judgments or decrees of any
governmental authority outstanding which specifically apply to the
Company or any of its assets.
(l) DISCLOSURE. All statements of such Seller contained
in this Agreement and the exhibits and schedules hereto and in any
other written documents delivered by or on behalf of the Company or
such Seller to Buyer are true and correct in all material respects and
do not omit any material fact necessary to make the statements
contained therein not misleading in light of the circumstances under
which they were made. There are no facts known to such Seller which
could have a materially adverse affect upon the business, financial
condition, results of operations, assets, liabilities, or prospects of
the Company, which have not been disclosed to Buyer in this Agreement.
(m) INVESTMENT QUALIFICATIONS. Such Seller (i) is
acquiring shares of the Buyer Common Stock and the Warrants for such
Seller's own account and not with a view to, or for resale in
connection with, any distribution thereof; (ii) understands and
acknowledges that the Buyer Common Stock and the Warrants issued on
the date hereof have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), or any state securities laws
by reason of certain exemptions from the registration provisions
thereof which depend upon, among other things, the bona fide nature of
such Seller's investment intent as expressed herein; (iii) is able to
bear the economic risk of an investment in the Buyer Common Stock and
the Warrants and has such knowledge and experience in financial and
business matters that such Seller is capable of evaluating the risks
and merits of the Buyer Common Stock and the Warrants; (iv) has
personally been provided with all information or been given access to
all information with respect to Buyer which such Seller believes might
affect such Seller's decision whether to effect the
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Transaction and has had the opportunity to ask questions of the
officers of Buyer about Buyer and an investment in the Buyer Common
Stock and the Warrants; and (v) understands and acknowledges that the
Buyer Common Stock is, and the shares underlying the Warrants will be,
"restricted securities", as that term is defined in Rule 144 under the
Securities Act, and that the certificate or certificates representing
the Buyer Common Stock issued on the date hereof and upon exercise of
the Warrants will bear a legend restricting transfer unless (1) the
transfer is exempt from the registration requirements under the
Securities Act and any applicable state securities law and an opinion
of counsel reasonably satisfactory to Buyer that such transfer is
exempt therefrom is delivered to Buyer or (2) the transfer is made
pursuant to an effective registration statement under the Securities
Act and any applicable state securities law. In determining to proceed
with the Transaction, such Seller has relied solely on the results of
such Seller's own independent investigation with respect to Buyer, the
Buyer Common Stock and the Warrants, upon the representations,
warranties, covenants and statements of Buyer set forth herein and in
such Seller's own independent investigation of Buyer's business. Such
Seller acknowledges that the representations, warranties, covenants
and statements to such Seller by Buyer set forth herein constitute the
sole and exclusive representations, warranties, covenants and
statements of Buyer or any of its officers, directors, stockholders or
other affiliates in connection with the Transaction, and such Seller
understands, acknowledges and agrees that all other representations,
warranties, covenants and statements of any kind or nature, whether
oral or contained in any writing other than this Agreement and any
exhibit or schedule hereto are specifically disclaimed by Buyer.
2.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Sellers as follows:
(a) ORGANIZATION. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Delaware. Buyer has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business. Buyer is duly qualified and in good standing as a foreign
corporation in each jurisdiction where its ownership of property or
operation of its business requires qualification.
(b) AUTHORIZED CAPITALIZATION. The authorized
capitalization of Buyer consists of Fifteen Million (15,000,000)
shares of the Buyer Common Stock, of which Two Million Three Hundred
Fifty Thousand One Hundred Eighty-Three (2,350,183) shares have been
issued and are outstanding as of the date hereof. The shares of Buyer
Common Stock issued pursuant hereto have been duly authorized, validly
issued, are fully paid and nonassessable with no personal liability
attaching to the ownership thereof and were offered, issued, sold and
delivered by Buyer in compliance with all applicable state and federal
laws.
(c) AUTHORITY. Buyer has full power and lawful authority
to execute and deliver this Agreement and to consummate and perform
the Transaction contemplated hereby. This Agreement constitutes the
valid and legally binding obligation of Buyer, enforceable in
accordance with its terms. Neither the execution and delivery of this
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Agreement by Buyer, nor the consummation and performance of the
Transaction contemplated hereby, conflicts with, requires the consent,
waiver or approval of, results in a breach of or default under, or
gives to others any interest or right of termination, cancellation or
acceleration in or with respect to, any agreement by which Buyer is a
party or by which Buyer or any of its properties or assets are bound
or affected.
(d) FINANCIAL AND OTHER INFORMATION. Buyer has
heretofore furnished to Sellers copies of the financial statements of
Buyer (collectively, the "Buyer Financial Statements") included in
Buyer's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2000 and in Buyer's Quarterly Report on Form 10-QSB for
the quarter ended September 30, 2001 (the "Buyer SEC Reports"). The
Buyer Financial Statements, including in each case the notes thereto,
have been prepared in accordance with GAAP applied on a consistent
basis throughout the periods covered thereby, except as otherwise
noted therein or in the Buyer SEC Reports, and fairly present the
financial condition and the results of operations and cash flow of
Buyer and its subsidiaries in accordance with GAAP, on the bases
therein stated, as of the respective dates thereof, and for the
respective periods covered thereby subject, in the case of unaudited
financial statements, to normal nonmaterial year-end audit adjustments
and accruals.
(e) NO UNDISCLOSED LIABILITIES. Except as set forth in
the Buyer Financial Statements or the Buyer SEC Reports, Buyer is not
aware of any material liabilities for which Buyer is liable or will
become liable in the future.
(f) INVESTMENT INTENT. Buyer is acquiring the Shares for
its own account, for investment purposes only, and not with a view to
the sale or distribution of any part thereof, and Buyer has no present
intention of selling, granting participation in, or otherwise
distributing the same. Buyer understands the specific risks related to
an investment in the Shares, especially as it relates to the financial
performance of the Company.
ARTICLE III.
CLOSING DELIVERIES
3.1 PAYMENTS BY BUYER. Contemporaneous with the execution and
delivery hereof, Sellers shall receive from Buyer all of the shares of Buyer
Common Stock to be issued by Buyer pursuant to this Agreement and all of the
cash required to be paid by Buyer in accordance with Section 1.2 hereof. Each
Seller shall receive such Seller's pro-rata interest (based on the total number
of Shares owned by such Seller as of the date hereof and the total number of
Shares issued and outstanding as of the date hereof) in the aggregate Purchase
Consideration.
3.2 DOCUMENTS TO BE DELIVERED BY BUYER. Contemporaneous with the
execution and delivery hereof, Buyer shall deliver the following documents to
Sellers:
(a) a Warrant for each Seller, substantially in the form
of the Warrant Agreement attached hereto as Exhibit A, duly executed
by Buyer;
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(b) a Non-Competition and Non-Disclosure Agreement,
substantially in the form of Exhibit B attached hereto and
incorporated herein by this reference, with Xxxxxx (the "Non-Compete
Agreement"), executed by Buyer;
(c) an Employment Agreement with each of Xxxxxxxx, Xxxxx
and Lord, substantially in the form of Exhibit C attached hereto and
incorporated herein by this reference (collectively, the "Employment
Agreements"), executed by Buyer;
(d) a Registration Rights Agreement, substantially in
the form of Exhibit D attached hereto and incorporated herein by this
reference, with each of Xxxxxxxx and Xxxxx (the "Registration Rights
Agreements"), executed by Buyer; and
(e) such other documents or certificates as shall be
reasonably required by Sellers or their counsel in order to close and
consummate the Transaction.
3.3 DOCUMENTS TO BE DELIVERED BY SELLERS AND THE COMPANY.
Contemporaneous with the execution and delivery hereof, Sellers and the Company
shall deliver the following documents to Buyer:
(a) stock certificates representing all of the Shares,
duly endorsed to Buyer and in blank or accompanied by duly executed
stock powers;
(b) a copy of (i) the Articles of Incorporation of the
Company duly certified by the Secretary of State of Florida within
thirty (30) days of the date hereof, and (ii) the Bylaws of the
Company;
(c) the Non-Compete Agreement, duly executed by Xxxxxx;
(d) the Employment Agreements, duly executed by each of
Xxxxxxxx, Xxxxx and Lord;
(e) the Registration Rights Agreements, duly executed by
each of Xxxxxxxx and Xxxxx; and
(f) such other documents or certificates as shall be
reasonably required by Buyer or its counsel in order to close and
consummate the Transaction and this Agreement.
ARTICLE IV.
SURVIVAL; INDEMNIFICATION
4.1 REPRESENTATIONS AND WARRANTIES TO SURVIVE. Unless otherwise
provided, all of the representations and warranties contained in this Agreement
and in any certificate, exhibit or other document delivered pursuant to this
Agreement shall survive the date of this Agreement for a period of two (2)
years. No investigation made by any party hereto or its representatives shall
constitute a waiver of any representation or warranty.
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4.2 INDEMNIFICATION. Sellers (severally and not jointly) and
Buyer each agree to indemnify, defend and hold the other harmless for any Loss
(as defined below) incurred or suffered by the other party or parties as a
result of or in connection with or involving a breach of a representation,
warranty, covenant or agreement set forth in this Agreement. "Loss" means any
liability, loss, cost, damage or expense, including, without limitation,
reasonable attorneys' fees and any taxes of the recipient on indemnification
payments made to it, but net of (i) tax benefits, (ii) other recoveries and
benefits, including insurance recoveries, and (iii) the expenses of obtaining
such recoveries and benefits from others.
4.3 CERTAIN LIMITATIONS. Notwithstanding the foregoing:
(a) Neither Sellers nor Buyer will be required to
indemnify the other party or parties hereto, as the case may be,
pursuant to this Article IV unless and until the aggregate amount of
such indemnification claim or claims against Buyer, on the one hand,
or any or all of the Sellers, on the other hand, exceeds $35,000, in
which event the indemnifying party will be required to indemnify the
indemnified party or parties hereto for the entire amount (i.e., from
the first dollar).
(b) Neither Sellers nor Buyer will be obligated to make
indemnification payments pursuant to this Agreement which in the
aggregate exceed:
(i) the aggregate amount of the Purchase
Consideration with respect to an inaccuracy, untruth or
incompleteness of the representations or warranties of each
Seller contained in Section 2.1(a) hereof (it being
acknowledged that only the particular Seller or Sellers in
breach of Section 2.1(a) shall have any liability whatsoever
in respect of a breach of that Section); and
(ii) in all other cases, 50% of the aggregate
amount of the Purchase Consideration.
In no event shall the aggregate liability of any individual Seller
(other than with respect to a breach of such Seller's representations
and warranties contained in Section 2.1(a) of this Agreement) exceed
that fraction of the total liability of all Sellers under this Section
of which (A) the numerator is the number of Shares owned by such
Seller as of the date hereof, and (B) the denominator is the total
number of shares owned by all Sellers as of the date hereof.
ARTICLE V.
MISCELLANEOUS
5.1 KEY MAN INSURANCE. At any time after the date hereof,
Intrepid, the Company or ICC Sub may, in its sole discretion and at its sole
cost and expense, purchase and maintain one or more policies of key man
insurance on Xxxxxxxx, Xxxxx and Lord, or any of them, which policies of
insurance shall designate Intrepid, the Company or ICC Sub, as the case may be,
as the beneficiary thereunder. Each of Xxxxxxxx, Xxxxx and Lord covenants and
agrees to cooperate fully with Intrepid, the Company or ICC Sub after the date
hereof in obtaining such policies of
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insurance and to make available all records and information that are required to
obtain such policies of insurance in a prompt and timely manner.
5.2 BINDING EFFECT. This Agreement and the certificates and other
instruments delivered by or on behalf of the parties pursuant hereto constitute
the entire agreement between the parties. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
heirs, legal representatives, successor and assigns of the parties hereto, as
the case may be. Nothing in this Agreement, expressed or implied, confers any
rights or remedies upon any party other than the parties hereto and their
respective heirs, legal representatives and assigns.
5.3 APPLICABLE LAW. This Agreement is made pursuant to, and will
be governed by, and construed and enforced in accordance with, the laws of the
State of Florida.
5.4 NOTICES. All notices and other communications under this
Agreement shall be in writing and may be given by any of the following methods:
(a) personal delivery; (b) facsimile transmission; (c) registered or certified
mail, postage prepaid, return receipt requested; or (d) overnight delivery
service requiring acknowledgment of receipt. Any such notice or communication
shall be sent to the appropriate party at its address or facsimile number given
below (or at such other address or facsimile number for such party as shall be
specified by notice given hereunder):
If to Sellers, to:
Xxxx Xxxxxxxx
0000 Xxx Xxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
Xxxxx Xxxxx
0000 Xxxxx Xxxxxx
Xxxxxx Xxxxxxx, Xxxxxxx 00000
A. Xxxxxxx Xxxxxx
00000 Xxxx Xxxx Xxxxxxx, X.X. Xxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Xxx Xxxx
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Xxxxxxxx Xxxxxx
0000 Xxxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
Xxxxx Xxxxx
0000 Xxxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
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If to Buyer, to:
Intrepid Capital Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Xxxxxxx Xxxxxx, President and
Chief Executive Officer
All such notices and communications shall be deemed received upon (a) actual
receipt thereof by the addressee; (b) actual delivery thereof to the
appropriate address as evidenced by an acknowledged receipt; or (c) in the case
of a facsimile transmission, upon transmission thereof by the sender and
confirmation of receipt. In the case of notices or communications sent by
facsimile transmission, the sender shall contemporaneously mail a copy of the
notice or communication to the addressee at the address provided for above;
provided, however, that such mailing shall in no way alter the time at which
the facsimile notice or communication is deemed received.
5.5 HEADINGS. The headings contained in this Agreement are for
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
5.6 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be deemed an original and all of which together will
constitute one instrument. Executed counterparts may be delivered via facsimile
transmission.
5.7 SEVERABILITY. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable under applicable law, this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
HEREIN. The remaining provisions of this Agreement shall be given effect to the
maximum extent then permitted by law.
5.8 FORBEARANCE; WAIVER. Failure to pursue any legal or equitable
remedy or right available to a party shall not constitute a waiver of such
right, nor shall any such forbearance, failure to pursue or actual waiver imply
or constitute a forbearance or waiver of any subsequent default or breach.
5.9 ATTORNEYS' FEES AND EXPENSES. The prevailing party in any
legal proceeding based upon this Agreement shall be entitled to reasonable
attorneys' fees and expenses and court costs.
5.10 EXPENSES. Each party shall pay all fees and expenses incurred
by it incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
5.11 INTEGRATION. This Agreement and all schedules, exhibits,
documents and instruments executed pursuant hereto merge and integrate all
prior agreements and representations respecting the Transaction, whether
written or oral, and constitute the sole
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agreement of the parties in connection therewith. This Agreement has been
negotiated by and submitted to the scrutiny of Sellers and Buyer and their
respective counsel and shall be given a fair and reasonable interpretation in
accordance with the terms hereof, without consideration or weight being given
to its having been drafted by any party hereto or its counsel.
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IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
and delivered this Agreement or caused this Agreement to be duly executed and
delivered by its duly authorized officer, all as of the date first written
above.
INTREPID CAPITAL CORPORATION
By: /s/: Xxxxxxx Xxxxxx
------------------------------------------------
Xxxxxxx Xxxxxx, President
THE INVESTMENT COUNSEL COMPANY OF THE SOUTHEAST
By: /s/ Xxxx Xxxxxxxx
------------------------------------------------
Xxxx Xxxxxxxx, President
/s/ Xxxx Xxxxxxxx
----------------------------------------------------
XXXX XXXXXXXX
/s/ Xxxxx Xxxxx
----------------------------------------------------
XXXXX XXXXX
/s/ A. Xxxxxxx Xxxxxx
----------------------------------------------------
A. XXXXXXX XXXXXX
/s/ Xxx Xxxx
----------------------------------------------------
XXX XXXX
/s/ Xxxxxxxx Xxxxxx
----------------------------------------------------
XXXXXXXX XXXXXX
/s/ Xxxxx Xxxxx
----------------------------------------------------
XXXXX XXXXX
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EXHIBIT A
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR
OTHERWISE DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THE
SECURITIES ACT OR AN OPINION OF COUNSEL IS OBTAINED STATING THAT SUCH
DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION.
WARRANT NO: W-__ DATE OF GRANT: ___________, 2001
HOLDER: ____________________ EXPIRATION DATE: ___________, 2007
NUMBER OF SHARES: ___________ EXERCISE PRICE PER SHARE: $6.00
INTREPID CAPITAL CORPORATION
WARRANT AGREEMENT FOR THE PURCHASE
OF SHARES OF COMMON STOCK
FOR VALUE RECEIVED, INTREPID CAPITAL CORPORATION, a Delaware
corporation located at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx Xxxxx,
Xxxxxxx 00000 (the "Company"), hereby certifies that ____________________,
located at _________________, (the "Holder") and the Holder's successors and
permitted assigns, is entitled, subject to the provisions of this Warrant, to
purchase from the Company, during the period commencing on the date hereof and
ending on the Expiration Date (as defined above), up to ________ fully paid and
non-assessable shares of Common Stock at a price of $6.00 per share (the
"Exercise Price").
The term "Common Stock" means the Common Stock, par value $.01 per
share, of the Company as constituted on ______________ (the "Issue Date"). The
number of shares of Common Stock to be received upon the exercise of this
Warrant may be adjusted from time to time as hereinafter set forth. The shares
of Common Stock deliverable upon such exercise, and as adjusted from time to
time, are hereinafter referred to as "Warrant Stock." The term "Other
Securities" means any other equity or debt securities that may be issued by the
Company in addition thereto or in substitution for the Warrant Stock. The term
"Company" means and includes the corporation named above as well as (i) any
immediate or more remote successor corporation resulting from the merger or
consolidation of such corporation (or any immediate or more remote successor
corporation of such corporation) with another corporation, or (ii) any
corporation to which such corporation (or any immediate or more remote
successor corporation of such corporation) has transferred its property or
assets as an entirety or substantially as an entirety.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver a new Warrant of like tenor and date. Any such new
Warrant executed and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not this Warrant was lost,
stolen, destroyed or mutilated.
The Holder agrees with the Company that this Warrant is issued, and
all the rights hereunder shall be held, subject to all of the conditions,
limitations and provisions set forth herein.
1. EXERCISE OF WARRANT.
1.1 METHOD OF EXERCISE. Subject to the terms of this
Section 1, this Warrant may be exercised in whole or in part at any time, or
from time to time, during the period (the "Exercise Period") commencing on the
date hereof and expiring 5:00 p.m. Eastern Time on the Expiration Date or, if
such day is a day on which banking institutions in Jacksonville, Florida are
authorized by law to close, then on the next preceding day that shall not be
such a day. The Warrant may be exercised during the Exercise Period by
presentation and surrender of this Warrant to the Company at its principal
office, or at the office of its stock transfer agent, if any, together with the
Election to Exercise in the form attached hereto duly executed and accompanied
by payment of the Exercise Price for the number of shares specified in such
form and instruments of transfer, if appropriate, duly executed by the Holder
or its duly authorized attorney. Payment of the Exercise Price may be made (a)
in cash or by certified or official bank check, payable to the order of the
Company, (b) upon a dollar for dollar cancellation of any principal outstanding
under any indebtedness or other obligation made by the Company payable to the
Holder, (c) by delivery of a number of shares of the Common Stock already held
by the Holder having a fair market value, as determined by multiplying the
Closing Bid Price (as hereinafter defined) on the date this Warrant is
exercised by such shares of the Common Stock, that equals the Exercise Price
for the number of shares of Warrant Stock for which this Warrant is exercised,
or (d) by reducing the actual number of shares of Warrant Stock issuable upon
the exercise of this Warrant (as set forth on the Election to Exercise) by the
smallest number of whole shares of the Warrant Stock which, when multiplied by
the Closing Bid Price as of the date this Warrant is exercised, is sufficient
to satisfy the Exercise Price for the number of shares of Warrant Stock for
which this Warrant is exercised. If this Warrant should be exercised in part
only, the Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the rights of the Holder thereof
to purchase the balance of the shares purchasable hereunder. Upon receipt by
the Company of this Warrant, together with the Exercise Price, at its office,
or by the stock transfer agent of the Company at its office, in proper form for
exercise, the Holder shall be deemed to be the holder of record of the shares
of Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered
to the Holder. For purposes of this Warrant, the term "Closing Bid Price" shall
mean (i) if bid and asked prices for the Common Stock are then reported on The
National Association of Securities Dealers, Inc. Automated Quotation System
("Nasdaq"), then the daily closing bid price per share of the Common Stock as
reported Nasdaq,
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and (ii) if bid and asked prices for the Common Stock are not
then reported on Nasdaq, then an amount per share of the Common Stock as
determined by the Board of Directors of the Company in good faith.
1.2 WARRANT STOCK FULLY VESTED. The Holder has the right
to purchase from the Company (and the Company will issue and sell to the
Holder) all of the shares of Warrant Stock for which this Warrant may be
exercisable from time to time from and after the date hereof through the
Expiration Date, subject to the terms of and adjusted pursuant to Sections 1.1
and 5 hereof.
2. RESERVATION OF SHARES. The Company shall at all times reserve
for issuance and delivery upon exercise of this Warrant all shares of Common
Stock or other shares of capital stock of the Company (and Other Securities)
from time to time receivable upon exercise of this Warrant. All such shares
(and Other Securities) shall be duly authorized and, when issued upon such
exercise, shall be validly issued, fully paid and non-assessable and free of
all preemptive rights.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant, but the
Company shall pay the Holder an amount equal to the product obtained by
multiplying such fractional share of Common Stock by the Closing Bid Price on
the date of the exercise of this Warrant in lieu of each fraction of a share
otherwise called for upon any exercise hereof.
4. HOLDER DOES NOT HAVE THE RIGHTS OF A STOCKHOLDER. The Holder
shall not, by virtue hereof, be entitled to any rights of a stockholder in the
Company, either at law or in equity, and the rights of the Holder are limited
to those expressed in this Warrant.
5. ANTI-DILUTION PROVISIONS.
5.1 ADJUSTMENT FOR RECAPITALIZATION, RECLASSIFICATION,
ETC. If the Company shall at any time subdivide its outstanding shares of
Common Stock (or Other Securities at the time receivable upon the exercise of
the Warrant) by recapitalization, reclassification or split-up thereof, or if
the Company shall declare a stock dividend or distribution, the number of
shares of Common Stock subject to the Warrant immediately prior to such
subdivision, dividend or distribution shall be proportionately increased and
the Exercise Price shall be adjusted as provided below, and if the Company
shall at any time combine the outstanding shares of Common Stock by
recapitalization, reclassification or combination thereof, the number of shares
of Common Stock subject to this Warrant immediately prior to such combination
shall be proportionately decreased and the Exercise Price shall be adjusted as
provided below. Any such adjustment and any adjustment to the Exercise Price
pursuant to this Section 5.1 shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor. Whenever the number
of shares of Common Stock purchasable upon the exercise of this Warrant is
adjusted as provided in this Section 5.1, the Exercise Price shall be adjusted
to the nearest cent by
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multiplying such Exercise Price immediately prior to such adjustment by a
fraction (x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise immediately prior to such adjustment, and
(y) the denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter.
5.2 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION,
MERGER, ETC. In case of any reorganization of the Company (or any other
corporation, the securities of which are at the time receivable on the exercise
of this Warrant) after the Issue Date or in case after such date the Company
(or any such other corporation) shall consolidate with or merge into another
corporation or convey all or substantially all of its assets to another
corporation, then, and in each such case, the Holder of this Warrant upon the
exercise thereof as provided in Section 1 at any time after the consummation of
such reorganization, consolidation, merger or conveyance, shall be entitled to
receive, in lieu of the securities and property receivable upon the exercise of
this Warrant prior to such consummation, the securities or property to which
such Holder would have been entitled upon such consummation if such Holder had
exercised this Warrant immediately prior thereto; in each such case, the terms
of this Warrant shall be applicable to the securities or property receivable
upon the exercise of this Warrant after such consummation.
5.3 RESTRICTIONS AGAINST CERTAIN ACTIONS. The Company
shall not, by amendment of its Certificate of Incorporation or through
reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of the Warrant. Without
limiting the generality of the foregoing, while any Warrant is outstanding, the
Company, (a) shall not permit the par value, if any, of the shares of stock
receivable upon the exercise of this Warrant to be above the amount payable
therefor upon such exercise and (b) shall take all such action as may be
necessary or appropriate in order that the Company may validly and legally
issue or sell fully paid and non-assessable stock upon the exercise of all
Warrants at the time outstanding.
5.4 CERTIFICATE AS TO ADJUSTMENTS. In each case of an
adjustment in the number of shares of Common Stock receivable on the exercise
of the Warrant, the Company at its expense shall promptly compute such
adjustment in accordance with the terms of the Warrant and prepare a
certificate executed by an executive officer of the Company setting forth such
adjustment and showing in detail the facts upon which such adjustment is based.
The Company shall forthwith mail a copy of each such certificate to each
Holder.
5.5 NOTICES OF RECORD DATE, ETC. In case:
(a) the Company shall take a record of the holders of
its Common Stock (or Other Securities at the time issuable upon the
exercise of this Warrant) for the purpose of entitling them to receive
any dividend (other than a cash dividend at the same rate of the last
cash dividend theretofore paid) or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities, or to receive any other right; or
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(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the
assets of the Company to another corporation; or
(c) of any voluntary or involuntary dissolution,
liquidation or winding up of the Company, then, and in each such case,
the Company shall mail or cause to be mailed to the Holder a notice
specifying, as the case may be, (i) the date on which a record is to
be taken for the purpose of such dividend, distribution, or right, and
stating the amount and character of such dividend, distribution or
right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution,
liquidation or winding up is to take place, and the time, if any, is
to be fixed, as to which the holders of record of Common Stock (or
such other securities at the time receivable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock
(or such other securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up. Such
notice shall be mailed at least twenty (20) days prior to the date
therein specified and this Warrant may be exercised prior to said date
during the term hereof.
6. TRANSFER TO COMPLY WITH THE SECURITIES ACT. This Warrant and
any Warrant Stock or Other Securities may not be sold, transferred, pledged,
hypothecated or otherwise disposed of except as follows: (a) to a person who,
in the opinion of counsel to the Company, is a person to whom this Warrant or
the Warrant Stock or Other Securities may legally be transferred without
registration and without the delivery of a current prospectus under the
Securities Act with respect thereto and then only against receipt of an
agreement of such person to comply with the provisions of this Section 6 with
respect to any resale or other disposition of such securities; or (b) to any
person upon delivery of a prospectus then meeting the requirements of the
Securities Act relating to such securities and the offering thereof for such
sale or disposition, and thereafter to all successive assignees. In the event
any Holder shall propose to sell, transfer, pledge, or hypothecate or otherwise
dispose of this Warrant, such Holder shall first (i) surrender this Warrant to
the Company or at the office of its stock transfer agent, if any, with an
instrument of assignment acceptable to the Company and its counsel duly
executed and funds sufficient to pay any transfer tax, and (ii) deliver to the
Company the opinion of counsel to the Holder as required by the legend set
forth in Section 7 hereof. Upon receipt of the foregoing and provided that the
Company has received an opinion of its counsel that such proposed sale,
transfer, pledge or hypothecation is in compliance with applicable law, the
Company shall execute and deliver a new Warrant in the name of the assignee
named in such instrument of assignment and this Warrant shall promptly be
canceled.
7. LEGEND. Unless the shares of Warrant Stock or Other
Securities have been registered under the Securities Act, upon the exercise of
this Warrant and the issuance of any of the shares of Warrant Stock or Other
Securities, all certificates representing shares shall bear on the face thereof
substantially the following legend:
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"THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER THE PROVISIONS OF ANY STATE SECURITIES
LAWS, BUT HAVE BEEN ACQUIRED BY THE REGISTERED HOLDER HEREOF FOR
PURPOSES OF INVESTMENT AND IN RELIANCE ON STATUTORY EXEMPTIONS UNDER
THE SECURITIES ACT, AND UNDER ALL APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES REPRESENTED HEREBY MAY NOT BE SOLD, PLEDGED,
TRANSFERRED OR ASSIGNED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER
PROVISIONS OF THE SECURITIES ACT, AND ALL APPLICABLE STATE SECURITIES
LAWS, OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR IN A
TRANSACTION OTHERWISE IN COMPLIANCE WITH APPLICABLE STATE AND FEDERAL
SECURITIES LAWS, AND IN THE CASE OF AN EXEMPTION, ONLY IF THE COMPANY
HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION OF THE SECURITIES
REPRESENTED HEREBY."
8. PAYMENT OF TAXES. The Holder agrees to pay all documentary
stamp taxes (whether federal, state or local) attributable to the exercise of
this Warrant and the issuance of shares of Warrant Stock upon such exercise by
delivery of cash or a certified check payable to the Company in the amount of
all such taxes. In addition, as a condition to the exercise of this Warrant,
the Company may require the Holder to pay or reimburse the Company for any
taxes which the Company determines are required to be withheld in connection
with the grant or any exercise of this Warrant. Such payment or reimbursement
shall be in the manner set forth in this Section 8.
9. NOTICES. All notices required hereunder shall be in writing
and shall be deemed given when delivered via facsimile transmission to a number
known to be the facsimile number of the Holder or the Company, delivered
personally or within two days after mailing when mailed by regular, certified
or registered mail, return receipt requested, to the Company or the Holder, as
the case may be, for whom such notice is intended, at the address of such party
as set forth on the first page, or at such other address of which the Company
or the Holder has been advised by notice hereunder.
10. APPLICABLE LAW. The Warrant is issued under and shall for all
purposes be governed by and construed in accordance with the laws of the State
of Delaware.
[Signatures Next Page]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
on its behalf, in its corporate name, by its duly authorized officer, all as of
the day and year first above written.
INTREPID CAPITAL CORPORATION
By:
----------------------------------------
Xxxxxxx Xxxxxx, President and
Chief Executive Officer
[CORPORATE SEAL]
Attest:
----------------------------------------------
Secretary
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NOTICE OF ELECTION TO EXERCISE
Dated ________________, _______
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of ________________ shares of the Common Stock and hereby
makes payment of $____________ in payment of the actual exercise price thereof,
together with all applicable transfer taxes, if any.
You are hereby instructed to register such Common Stock in the
following name:
Name
-------------------------------------------------------------------------------
(Please use typewriter or print in block letters)
Address
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
WITNESS the signature of the undersigned holder, by its duly
authorized representative, as the day and year first written above.
[WARRANT HOLDER]
By:
----------------------------------------
Its:
------------------------------------
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EXHIBIT B
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
THIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (the "Agreement") is
made and entered into as of the 31st day of December, 2001 by and between
INTREPID CAPITAL CORPORATION, a Delaware corporation ("Intrepid"), and A.
XXXXXXX XXXXXX, an individual resident of the State of Florida ("Seller").
WITNESSETH:
WHEREAS, pursuant to the terms of that certain Share Purchase
Agreement (the "Purchase Agreement") of even date herewith among Intrepid,
Seller and ICC Investment Advisors, Inc. (the "Company"), among others,
Intrepid is purchasing (hereinafter referred to as the "Purchase") all of the
outstanding capital stock of the Company;
WHEREAS, prior to the Purchase, the Company and its wholly-owned
subsidiary, The Investment Counsel Company of the Southeast (which shall be
included in the definition of the "Company" for purposes of this Agreement)
was, and after the Purchase the Company will continue to be, in the business of
offering securities brokerage, investment advisory and investment banking
services, including, without limitation, the execution of orders, the
processing of transactions and the receipt, identification, custody and
delivery of customer funds and securities, to banks, institutional investors,
investment advisers and individual investor clients (collectively, the
"Business");
WHEREAS, Seller is currently a shareholder and director of the
Company, will be a stockholder of Intrepid after the Purchase, has heretofore
been involved in and had knowledge of the operation of the Business, and has
knowledge of the trade secrets, customer information and other confidential and
proprietary information of the Company and Intrepid;
WHEREAS, the execution of this Agreement is contemplated by the
Purchase Agreement to which this Agreement is attached as Exhibit "B";
WHEREAS, in order to protect the goodwill of the Business and the
other value to be acquired by Intrepid pursuant to the Purchase Agreement for
which Intrepid is paying substantial consideration, Intrepid and Seller have
agreed that Intrepid's obligation to consummate the transactions contemplated
by the Purchase Agreement are subject to the condition, among others, that
Seller shall have entered into this Agreement;
WHEREAS, Intrepid has separately bargained and paid additional
consideration for the covenants contained herein;
WHEREAS, Seller acknowledges that the provisions of this Agreement are
reasonable and necessary to protect the legitimate interest of Intrepid and the
Business and goodwill acquired by it pursuant to the Purchase Agreement; and
WHEREAS, in order to induce Intrepid to consummate the transactions
contemplated by the Purchase Agreement, Seller is willing to enter into this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, the parties agree as follows:
1. DEFINITIONS. As used in this Agreement, terms defined in the
preamble and recitals of this Agreement shall have the meanings set forth
therein and the following terms shall have the meanings set forth below:
(a) "Competitive Business" shall mean any Person engaged
in the business of offering securities brokerage, investment banking
or investment advisory services to clients or customers.
(b) "Confidential Information" shall mean the Company's
client and vendor lists, marketing arrangements, business plans,
projections, financial information, training manuals, pricing manuals,
product development plans, market strategies, internal performance
statistics and other competitively sensitive information concerning
the Company and its subsidiaries which is material to the Company and
not generally known by the public, other than Trade Secrets, whether
or not in written or tangible form.
(c) "Control" shall mean, with respect to any Person,
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.
(d) "Intrepid Market" shall mean the geographic limits
of the State of Florida.
(e) "Key Employee" shall mean any Person who is employed
in a management, executive, supervisory, training, marketing or sales
capacity for another Person.
(f) "Permitted Activities" shall mean (i) owning not
more than 1% of the outstanding shares of publicly-held corporations
engaged in a Competitive Business which have shares listed for trading
on a securities exchange registered with the Securities and Exchange
Commission or through the automatic quotation system of a registered
securities association, (ii) serving as an officer, director or
employee of Intrepid, or (iii) owning the outstanding shares or
serving as an officer, director or employee of a bank, as such term is
defined in Section 1813(a) of the Federal Deposit Insurance Act (12
U.S.C. ss.1813(a)), so long as Seller does not personally provide
securities brokerage, investment banking or investment advisory
services to such bank's or such bank's subsidiaries' clients or
customers.
(g) "Person" shall mean any individual, corporation,
firm, unincorporated organization, association, partnership, limited
liability company, trust (inter vivos or testamentary), estate of a
deceased, insane or incompetent individual, business trust, joint
stock company, joint venture or other organization, entity or
business, whether acting in an individual, fiduciary or other
capacity.
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(h) "Restricted Period" shall mean the period from the
date hereof through the second (2nd) anniversary of the date hereof,
unless Seller shall remain an employee of the Company or Intrepid, in
which case Restricted Period shall mean the period from the date
hereof through the second (2nd) anniversary of the first day on which
Seller shall no longer be employed by Intrepid or the Company or any
of their respective subsidiaries.
(i) "Trade Secrets" shall mean the whole or any portion
or phase of any technical information, designs, processes, procedures,
formulas or improvements that are valuable and not generally known to
the competitors of the Company, whether or not in written or tangible
form.
2. NO COMPETING BUSINESS. Seller hereby agrees that for a period
of one (1) year after the date hereof, except as permitted by Section 5 of this
Agreement, Seller will not directly or indirectly own, manage, operate,
Control, invest or acquire an interest in, or otherwise engage or participate
in (whether as a proprietor, partner, stockholder, director, officer, Key
Employee, joint venturer, investor or other participant in) any Competitive
Business in the Intrepid Market, without regard to (a) whether the Competitive
Business has its office or other business facilities within the Intrepid
Market; (b) whether any activity of Seller referred to above itself occurs or
is performed within the Intrepid Market; or (c) whether Seller resides or
reports to an office within the Intrepid Market.
3. NO INTERFERENCE WITH THE BUSINESS.
3.1 Seller hereby agrees that during the Restricted Period,
except as permitted by Section 5 of this Agreement, Seller will not directly or
indirectly solicit, induce or influence any customer, lender, lessor or any
other Person which has a business relationship with the Company or any of its
subsidiaries in the Intrepid Market, or which had on the date of this Agreement
a business relationship with the Company or any of its subsidiaries in the
Intrepid Market, to discontinue or reduce the extent of such relationship with
the Company or its subsidiaries in the Intrepid Market.
3.2 Seller hereby agrees that during the Restricted Period,
except as permitted by Section 5 of this Agreement, Seller will not (a)
directly or indirectly recruit, solicit or otherwise induce or influence any
Key Employee of the Company or any of its subsidiaries to discontinue such
employment or agency relationship with the Company or its subsidiaries, or (b)
employ or seek to employ, or cause or permit any Competitive Business to employ
or seek to employ as a Key Employee for any Competitive Business, any Person
who is then (or was at any time within six (6) months prior to the date Seller
or the Competitive Business employs or seeks to employ such Person) employed by
the Company or any of its subsidiaries as a Key Employee.
4. NO DISCLOSURE OF PROPRIETARY INFORMATION.
4.1 Seller hereby agrees that he will not directly or indirectly
disclose to anyone, or use or otherwise exploit for his own benefit or for the
benefit of anyone other than Intrepid and
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the Company and their respective subsidiaries, any Trade Secrets for as long as
they remain Trade Secrets, except as permitted by Section 5 of this Agreement.
4.2 Seller hereby agrees that, during the Restricted Period,
Seller will not directly or indirectly disclose to anyone, or use or otherwise
exploit for Seller's own benefit or for the benefit of anyone other than
Intrepid and the Company and their respective subsidiaries, any Confidential
Information, except as permitted by Section 5 of this Agreement.
5. PERMITTED ACTIVITIES. The restrictions set forth in Sections
2, 3 and 4 of this Agreement shall not apply to Permitted Activities or to
actions taken by Seller during the xxxx Xxxxxx is employed by Intrepid or the
Company or any of their respective subsidiaries to the extent, but only to the
extent, that such actions are expressly approved by the Board of Directors of
Intrepid.
6. REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants that this Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
Seller represents and warrants that Seller has no right, title, interest or
claim in, to or under any Trade Secrets or Confidential Information.
7. WAIVERS. Intrepid will not be deemed as a consequence of any
act, delay, failure, omission, forbearance or other indulgences granted from
time to time by Intrepid or for any other reason (a) to have waived, or to be
estopped from exercising, any of its rights or remedies under this Agreement,
or (b) to have modified, changed, amended, terminated, rescind, or superseded
any of the terms of this Agreement.
8. INJUNCTIVE RELIEF. Seller acknowledges (a) that any violation
of this Agreement will result in irreparable injury to Intrepid; (b) that
damages at law would not be reasonable or adequate compensation to Intrepid for
violation of this Agreement; and (c) that Intrepid shall be entitled to have
the provisions of this Agreement specifically enforced by preliminary and
permanent injunctive relief without the necessity of proving actual damages and
without posting bond or other security, as well as to an equitable accounting
of all earnings, profits and other benefits arising out of any such violation.
9. NOTICES. All notices and other communications under this
Agreement shall be in writing and may be given by any of the following methods:
(a) personal delivery; (b) facsimile transmission; (c) registered or certified
mail, postage prepaid, return receipt requested; or (d) overnight delivery
service requiring acknowledgment of receipt. Any such notice or communication
shall be sent to the appropriate party at its address or facsimile number given
below (or at such other address or facsimile number for such party as shall be
specified by notice given hereunder):
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To Intrepid:
Intrepid Capital Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Chief Executive Officer
with a copy (which shall not constitute notice to Intrepid) to:
Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Xxxxxx X. Xxx, Esq.
To Seller:
Mr. A. Xxxxxxx Xxxxxx
00000 Xxxx Xxxx Xxxxxxx, X.X. Xxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
All such notices and communications shall be deemed received upon (a) actual
receipt thereof by the addressee; (b) actual delivery thereof to the
appropriate address as evidenced by an acknowledged receipt; or (c) in the case
of a facsimile transmission, upon transmission thereof by the sender and
confirmation of receipt. In the case of notices or communications sent by
facsimile transmission, the sender shall contemporaneously mail a copy of the
notice or communication to the addressee at the address provided for above;
provided, however, that such mailing shall in no way alter the time at which
the facsimile notice or communication is deemed received.
10. SUCCESSORS IN INTEREST. This Agreement shall be binding upon,
and shall inure to the benefit of and be enforceable by, the parties hereto and
their respective heirs, legal representatives, successors and assigns, as the
case may be, and any reference to a party hereto shall also be a reference to
any such heir, legal representative, successor or assign.
11. NUMBER; GENDER. Whenever the context so requires, the
singular number shall include the plural and the plural shall include the
singular, and the gender of any pronoun shall include the other genders.
12. CAPTIONS. The titles and captions contained in this Agreement
are inserted herein only as a matter of convenience and for reference and in no
way define, limit, extend or describe
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the scope of this Agreement or the intent of any provision hereof. Unless
otherwise specified to the contrary, all references to Sections are references
to Sections of this Agreement.
13. CONTROLLING LAW; INTEGRATION; AMENDMENT. This Agreement shall
be governed by, and construed and enforced in accordance with, the internal
laws of the State of Florida without reference to its choice of law rules. This
Agreement and the documents executed pursuant hereto or in connection herewith
supersede all negotiations, agreements and understandings between the parties
with respect to the subject matter hereof and constitutes the entire agreement
between the parties hereto. This Agreement may not be amended, modified or
supplemented except by written agreement of the parties hereto.
14. SEVERABILITY. Any provision hereof which is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable such provision in
any other jurisdiction. To the extent permitted by law, the parties hereto
waive any provision of law which renders any such provision prohibited or
unenforceable in any respect. In the event that any provision of this Agreement
should ever be deemed to exceed the time, geographic, product or service or any
other limitations permitted by applicable law, then such provision shall be
deemed reformed to the maximum extent permitted by applicable law.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or the terms hereof to produce or
account for more than one of such counterparts. Executed counterparts may be
delivered via facsimile transmission.
16. ENFORCEMENT OF CERTAIN RIGHTS. Nothing expressed or implied
in this Agreement is intended, or shall be construed, to confer upon or give
any person other than the parties hereto, and their respective heirs, legal
representatives, successors or assigns, as the case may be, any rights,
remedies, obligations or liabilities under or by reason of this Agreement, or
result in such person being deemed a third party beneficiary of this Agreement.
17. ATTORNEYS' FEES. If Intrepid brings any action, suit,
counterclaim, appeal, arbitration or mediation for any relief against Seller,
declaratory or otherwise, to enforce the terms hereof or to declare rights
hereunder (collectively, an "Action"), Seller shall pay to Intrepid a
reasonable sum for attorneys' fees and costs (at Intrepid's attorneys'
then-prevailing rates as increased from time to time by the giving of notice by
such counsel to Intrepid) incurred in bringing and prosecuting such Action
and/or enforcing any judgment, order, ruling, or award (collectively, a
"Decision") granted therein, all of which shall be deemed to have accrued on
the date of commencement of such Action and shall be paid whether or not such
Action is prosecuted to a Decision. Any Decision entered in such Action shall
contain a specific provision providing for the recovery of attorneys' fees and
costs incurred in enforcing such Decision. For the purposes of this paragraph
17, attorneys' fees shall include, without limitation, fees incurred in the
following: (a) post-judgment motions and collection actions; (b) contempt
proceedings; (c) garnishment, levy and debtor and third party examinations; (d)
discovery; and (e) bankruptcy litigation.
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IN WITNESS WHEREOF, Seller has duly executed and delivered this
Agreement, and Intrepid has caused this Agreement to be duly executed and
delivered on its behalf by an officer thereunto duly authorized, all as of the
date first above written.
-------------------------------------------
A. XXXXXXX XXXXXX
INTREPID CAPITAL CORPORATION
By:
----------------------------------------
Its:
------------------------------------
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EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into
as of December 31, 2001, by and between INTREPID CAPITAL CORPORATION, a
Delaware corporation (the "Company"), and [XXXXXXXX AND XXXXX], an individual
resident of the State of Florida (the "Investor").
WITNESSETH:
WHEREAS, the Company and the Investor, among others, have entered into
that certain Share Purchase Agreement dated of even date herewith (the
"Purchase Agreement") providing, among other things, for the sale by the
Company of shares of its common stock, par value $0.01 per share (the "Common
Stock"), and of warrants to purchase shares of the Common Stock (the
"Warrants");
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company
desires to grant to the Investor registration rights with respect to the Common
Stock issued to the Investor pursuant to the Purchase Agreement and the Common
Stock which may be issued to the Investor upon the exercise of the Warrants,
and the Investor desires to receive such registration rights, all in accordance
with the terms of this Agreement; and
WHEREAS, this Agreement is the Registration Rights Agreement referred
to in the Purchase Agreement as Exhibit "D";
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. REGISTRABLE STOCK. For purposes of this Agreement, the term
"Registrable Stock" means all shares of Common Stock issued to the Investor
pursuant to the Purchase Agreement and all shares of Common Stock issuable
pursuant to the exercise of the Warrants
2. PIGGYBACK REGISTRATIONS.
2A. RIGHT TO PIGGYBACK. If, during the period commencing
on the date hereof and ending on the date that is the first anniversary of the
date hereof, the Company proposes to register any of its securities under the
Securities Act of 1933, as amended (the "Securities Act"), other than (a)
pursuant to a registration solely in connection with an employee benefit or
stock ownership plan and (b) pursuant to a registration on Form S-4 in
connection with an acquisition or merger and the registration form to be used
may be used for the registration of Registrable Stock (a "Piggyback
Registration"), then the Company will give prompt written notice to the
Investor of its intention to effect such a registration (each, a "Piggyback
Notice"). Subject to subparagraphs 2B and 2C below, the Company will include in
such registration all shares of Registrable Stock which the Investor requests
the Company to include in such registration by
written notice given to the Company within fifteen (15) days after the date of
sending of the Piggyback Notice.
2B. PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity securities by
the Company and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the Company, the Company will
include in such registration (i) first, the securities proposed to be sold by
the Company, and (ii) second, any Registrable Stock and other securities
requested to be included in such registration.
2C. PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity securities by
holders of the Company's securities and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
initially requesting such registration, the Company will include in such
registration (i) first, the securities requested to be included therein by the
holders requesting such registration, and (ii) second, the Registrable Stock
and other securities requested to be included in such registration.
3. REGISTRATION PROCEDURES. Whenever the Investor has requested
that any Registrable Stock be registered pursuant to this Agreement, the
Company will use its reasonable best efforts to effect the registration and the
sale of such Registrable Stock in accordance with the intended method of
distribution thereof and will as expeditiously as possible:
(i) prepare and file with the Securities and
Exchange Commission a registration statement with respect to such Registrable
Stock and use its reasonable best efforts to cause such registration statement
to become effective, provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will furnish
to the counsel selected by the Investor copies of all such documents proposed
to be filed, which documents will be subject to the review of such counsel;
provided, however, the Company may delay the filing of a registration statement
for a time period not to exceed ninety (90) days from the date of the request
of the Investor to register such stock pursuant to this Agreement (such time
period, the "Delay Period") if such registration statement would be required to
disclose any material nonpublic information that the Board of Directors of the
Company has determined that, for good business reasons, the disclosure of which
would be contrary to the best interests of the Company in the circumstances
during such Delay Period and is not otherwise required under applicable law
(including applicable securities laws) to be disclosed, in which event the
Company shall advise the Investor and shall promptly following the expiration
of the Delay Period file such registration statement;
(ii) prepare and file with the Securities and
Exchange Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective for a period of not less than six
(6) months (or such lesser time as necessary to permit the Investor to complete
the distribution described in such registration statement), and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such
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registration statement during such period in accordance with the intended
methods of distribution by the sellers thereof set forth in such registration
statement;
(iii) furnish to the Investor such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as the Investor may reasonably
request in order to facilitate the disposition of the Registrable Stock owned
by the Investor;
(iv) use its reasonable best efforts to register
or qualify such Registrable Stock under the securities or blue sky laws of such
jurisdictions as the Investor reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable the
Investor to consummate the disposition in such jurisdictions of the Registrable
Stock owned by the Investor, provided that the Company will not be required (i)
to qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) to subject
itself to taxation in any such jurisdiction or (iii) to consent to general
service of process in any such jurisdiction;
(v) notify the Investor, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of the Investor, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Stock, such prospectus will not contain an untrue statement
of a material fact or omit to state any fact necessary to make the statements
therein not misleading; provided, however, the Company shall not be obligated
to prepare and furnish any such prospectus supplements or amendments relating
to any material nonpublic information during any time period not to exceed
ninety (90) days (such time period, the "Black-Out Period") during which the
Board of Directors of the Company has determined that, for good business
reasons, the disclosure of such material nonpublic information during such
Black-Out Period is contrary to the best interests of the Company in the
circumstances and is not otherwise required under applicable law (including
applicable securities laws), in which event the Company shall advise the
Investor that such prospectus requires updating and, accordingly, should not be
used pending further amendment;
(vi) cause all such Registrable Stock to be
listed on each securities exchange on which similar securities issued by the
Company are then listed and to be qualified for trading on each system on which
similar securities issued by the Company are from time to time qualified;
(vii) provide a transfer agent and registrar for
all such Registrable Stock not later than the effective date of such
registration statement and thereafter maintain such a transfer agent and
registrar;
(viii) enter into such customary agreements
(including underwriting agreements in customary form) and take all such other
actions as the Investor or the underwriters, if any, reasonably request in
order to expedite or facilitate the disposition of such Registrable Stock;
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(ix) make available for inspection by any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information reasonably
requested by any such underwriter, attorney, accountant or agent in connection
with such registration statement;
(x) otherwise use its reasonable best efforts
to comply with all applicable rules and regulations of the Securities and
Exchange Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve (12) months beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(xi) permit the Investor, if the Investor might
be deemed, in his sole and exclusive judgment, to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of the Investor and his counsel should be included;
(xii) in the event of the issuance of any stop
order suspending the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any Registrable Stock included in such registration statement
for sale in any jurisdiction, the Company will use its reasonable best efforts
promptly to obtain the withdrawal of such order; and
(xiii) furnish to the Investor a copy, or upon
request, a signed counterpart, addressed to the Investor (and the underwriters,
if any) of (a) an opinion of counsel for the Company, dated the effective date
of such registration statement (or, if such registration includes an
underwritten public offering, dated the date of closing under the underwriting
agreement), and (b) a "comfort" letter, dated the effective date of such
registration statement (or, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), signed by the independent public accountants who have audited the
Company's financial statements included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants letters delivered to the underwriters in
underwritten public offerings of securities and such other matters as the
Investor may reasonably request.
If any such registration or comparable statement refers to the
Investor by name or otherwise as holder of any securities of the Company and
if, in his sole and exclusive judgment, the Investor is or might be deemed to
be a controlling person of the Company, the Investor shall have the right to
require (a) the inclusion in such registration statement of language, in form
and substance satisfactory to the Investor, to the effect that the holding of
such securities by the Investor is not to be construed as a recommendation by
the Investor of the investment quality of the Company's securities covered
thereby and that such holding does not imply that the Investor
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will assist in meeting any future financial requirements of the Company, or (b)
in the event that such reference to the Investor by name or otherwise is not
required by the Securities Act or any similar federal statute then in force,
the deletion of the reference to the Investor, provided that with respect to
this clause (b), the Investor shall furnish to the Company an opinion of
counsel to such effect, which opinion and counsel shall be reasonably
satisfactory to the Company.
4. REGISTRATION EXPENSES.
4A. DEFINITION. The term "Registration Expenses" means
all expenses incident to the Company's performance of or compliance with this
Agreement, including, without limitation, all registration and filing fees,
fees and expenses of compliance with securities and blue sky laws, printing,
messenger and delivery expenses, and fees and expenses of counsel for the
Company and all independent certified public accountants, underwriters and
other Persons retained by the Company.
4B. PAYMENT. The Company shall pay the Registration
Expenses in connection with any and all Piggyback Registrations. In connection
with each Piggyback Registration, the Company will pay for the reasonable fees
and disbursements of one counsel chosen by the Investor.
5. INDEMNIFICATION.
5A. INDEMNIFICATION BY THE COMPANY. The Company agrees
to indemnify, to the extent permitted by law, the Investor and each Person who
controls the Investor (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto, or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by the Investor expressly for
use therein or by the Investor's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished the Investor with a sufficient number of copies of the
same, provided that the obligations of the Company hereunder shall not apply to
amounts paid in settlement of any such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld).
In connection with an underwritten offering, the Company will indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Investor unless
otherwise provided in the underwriting agreement.
5B. INDEMNIFICATION BY THE INVESTOR. In connection with
any registration statement in which the Investor is participating, the Investor
will furnish to the Company in writing such information and affidavits as the
Company reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will indemnify the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
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liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only to the
extent that such untrue statement or omission is contained in any information
or affidavit so furnished in writing by the Investor and stated to be
specifically for use therein, provided that the obligations of the Investor
hereunder shall not apply to amounts paid in settlement of any such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) if
such settlement is effected without the consent of the Investor (which consent
shall not be unreasonably withheld or delayed).
5C. NOTICE; DEFENSE OF CLAIMS. Any Person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for the party
indemnified by such indemnifying party with respect to such claim.
5D. CONTRIBUTION. If the indemnification provided for in
this part 5 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage or
expense referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and of the
indemnified party, on the other, in connection with the statements or omissions
that resulted in such loss, liability, claim, damage, or expense, as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
5E. SURVIVAL. The indemnification and contribution
provided for under this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party
or any officer, director or controlling Person of such indemnified party and
will survive the transfer of securities.
6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. The Investor may
not participate in any registration hereunder which is underwritten unless the
Investor (i) agrees to sell his securities on the basis provided in any
underwriting arrangements approved by the Company, and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
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agreements and other documents required under the terms of such underwriting
arrangements, provided that the Investor shall not be required to make any
representations or warranties to the Company or the underwriters other than
representations and warranties regarding the Investor as are required by the
underwriters.
7. MISCELLANEOUS.
7A. PRIORITY; NO FURTHER OBLIGATIONS. To the extent the
terms and conditions of this Agreement alter or vary the terms and conditions
of or any other agreement granting registration rights with respect any other
series of the Company's capital stock, the terms and conditions of this
Agreement shall be deemed to have modified, amended and superseded the terms
and conditions of all such agreements, notwithstanding any terms or conditions
therein to the contrary.
7B. NO INCONSISTENT AGREEMENTS. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the Investor in this
Agreement.
7C. ADJUSTMENTS AFFECTING REGISTRABLE STOCK. The Company
will not take any action, or permit any change to occur, with respect to its
securities for the purpose of materially and adversely affecting the ability of
the Investor to include such Registrable Stock in a registration undertaken
pursuant to this Agreement or materially and adversely affecting the
marketability of such Registrable Stock in any such registration (including,
without limitation, effecting a stock split or a combination of shares),
provided that this paragraph 7C shall not apply to actions or changes with
respect to the Company's business, earnings or revenues where the effect of
such actions or changes on the Registrable Stock is merely incidental.
7D. NOTICES. All notices and other communications under
this Agreement shall be in writing and may be given by any of the following
methods: (a) personal delivery; (b) facsimile transmission; (c) registered or
certified mail, postage prepaid, return receipt requested; or (d) overnight
delivery service requiring acknowledgment of receipt. Any such notice or
communication shall be sent to the appropriate party at its address or
facsimile number given below (or at such other address or facsimile number for
such party as shall be specified by notice given hereunder):
If to Investor, to:
[Xxxx Xxxxxxxx and Xxxxx Xxxxx]
[ADDRESS]
[FAX NUMBER]
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If to the Company, to:
Intrepid Capital Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Xxxxxxx Xxxxxx, President and
Chief Executive Officer
All such notices and communications shall be deemed received
upon (a) actual receipt thereof by the addressee; (b) actual delivery thereof
to the appropriate address as evidenced by an acknowledged receipt; or (c) in
the case of a facsimile transmission, upon transmission thereof by the sender
and confirmation of receipt. In the case of notices or communications sent by
facsimile transmission, the sender shall contemporaneously mail a copy of the
notice or communication to the addressee at the address provided for above;
provided, however, that such mailing shall in no way alter the time at which
the facsimile notice or communication is deemed received.
7E. REMEDIES. Any Person having rights under any
provision of this Agreement will be entitled to enforce such rights
specifically to recover damages caused by reason of any breach of any provision
of this Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may, in
its sole discretion, apply to any court of law or equity of competent
jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
7F. AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, no waiver, amendment, modification, termination or cancellation of
this Agreement, or of any of the terms or conditions hereof, shall be effective
unless made in writing signed by the Company and the Investor.
7G. SUCCESSORS AND ASSIGNS. This Agreement, and the
rights and obligations of the Investor hereunder, may not be assigned by the
Investor to any person or entity to which shares of Registrable Stock are
transferred by the Investor.
7H. SEVERABILITY. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
7I. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
7J. HEADINGS. The headings of this Agreement are for
convenience only and do not constitute a part of this Agreement.
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7K. GOVERNING LAW. The construction, validity and
interpretation of this Agreement will be governed by the internal laws of the
State of Florida, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Florida or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Florida.
7L. FURTHER ASSURANCES. Each party to this Agreement
hereby covenants and agrees, without the necessity of any further
consideration, to execute and deliver any and all such further documents and
take any and all such other actions as may be necessary to appropriate to carry
out the intent and purposes of this Agreement and to consummate the
transactions contemplated hereby.
7M. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original, but all
of which shall be one and the same document.
[Signatures Next Page]
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IN WITNESS WHEREOF, this Registration Rights Agreement has been
executed and delivered by the parties hereto, individually or through its duly
authorized officer, as the case may be, as of the date first written above.
COMPANY:
INTREPID CAPITAL CORPORATION
By:
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Xxxxxxx Xxxxxx, President and
Chief Executive Officer
INVESTOR:
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[XXXXXXXX AND XXXXX]
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