STOCK PURCHASE, ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit
2.1
STOCK
PURCHASE, ASSIGNMENT AND ASSUMPTION AGREEMENT
This
Stock Purchase, Assignment and Assumption Agreement (this "Agreement") is made
and entered into as of September 30, 2005, by and between Airlie Opportunity
Master Fund, Ltd., a Cayman Islands limited partnership (the "Assignor"), and
WDM Fund, L.P., a Delaware limited partnership (the "Assignee").
WHEREAS,
the Assignor is party to that certain Agreement and Plan of Merger, dated as
of
September 5, 2005 (the "Merger Agreement"), among the Assignor, ARH and United
Financial Mortgage Corp., an Illinois corporation ("UFMC"), pursuant to which
ARH shall acquire control of UFMC through the merger of a wholly-owned
subsidiary of ARH with and into UFMC, with UFMC being the surviving corporation;
and
1.
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Sale
of Stock.
The Assignor shall sell, assign, transfer and convey the Shares to
the
Assignee by executing a Stock Power in favor of the Assignee and
the
Assignee shall purchase the Shares from the Assignor, effective as
of the
close of business on the date set forth on such Stock Power (the
"Effective Time").
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2.
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Purchase
Price.
The purchase price for the Shares shall be ONE THOUSAND ($1,000)
DOLLARS,
which the Assignee shall pay to the Assignor by wire transfer of
immediately available funds to an account designated by the Assignor
prior
to the close of business on the business day immediately following
the
date set forth on the Stock Power referred to in paragraph 1
above.
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3. |
Assignment
and Assumption.
Subject to the execution and delivery of the Consent to Assignment
by UFMC
and ARH, effective as of the Effective Time: (i) the Assignor
hereby
assigns, sells, transfers and sets over to the Assignee all of
the
Assignor's rights, benefits, privileges and interests in and
to the Merger
Agreement (collectively, the "Assignment"); and (ii) the Assignee
hereby
accepts the Assignment and assumes and agrees to observe and
perform all
of the duties, obligations, terms, provisions and covenants,
and to pay
and discharge all of the liabilities of the Assignor to be observed,
performed, paid or discharged in connection with the Merger Agreement
as
if the Assignee had originally executed the Merger Agreement
as the
"Purchaser Parent" thereunder, as such term is defined therein.
The
Assignee assumes no liabilities other than those arising in connection
with Merger Agreement, and the parties hereto agree that any
such
liabilities shall remain the sole responsibility of the
Assignor.
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4.
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Further
Actions.
Each of the parties hereto covenants and agrees, at its own expense,
to
execute and deliver, at the request of the other party hereto, such
further instruments of transfer and assignment and to take such other
action as such other party may reasonably request, if any, to more
effectively consummate the assignments and assumptions contemplated
by
this Agreement.
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5. |
Taxes. All
transfer, documentary, sales, use, stamp, registration and other
such
taxes, if any, and all conveyance fees, recording charges and other
fees
and charges, if any, (including any penalties and interest) incurred
in
connection with the consummation of the transactions contemplated
by this
Agreement shall be borne by the
Assignee.
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(a)
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The
Assignee will indemnify and hold harmless the Assignor, its
representatives, stockholders, controlling persons and affiliates
(collectively, the "Indemnified Persons") for, and will pay to the
Indemnified Persons the amount of, any loss, liability, claim, damage
(including incidental and consequential damages), expense, (including
costs of investigation and defense and reasonable attorneys’ fees) or
diminution of value, whether or not involving a third-party claim,
arising
directly or indirectly from, or in connection with, the Merger Agreement
to the fullest extent provided by law. The remedies provided in this
paragraph will not be exclusive of or limit any other remedies that
may be
available to the Assignor or the other Indemnified
Persons.
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(b)
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Any
Indemnified Person wishing to claim indemnification under this Paragraph
6, upon learning of any claim, action, suit, proceeding or investigation
arising from or in connection with the Merger Agreement, shall promptly
notify the Assignee in writing, but the failure to so notify shall
not
relieve the Assignee of any liability it may have to such Indemnified
Party if such failure does not actually prejudice the Assignee. In
the
event of any such claim, action, suit, proceeding or investigation
(whether arising before or after the date hereof), (i) the Assignee
shall
have the right to assume the defense thereof and the Assignee shall
not be
liable to such Indemnified Person for any legal expenses of other
counsel
or any other expenses subsequently incurred by such Indemnified Person
in
connection with the defense thereof, except that if the Assignee
elects
not to assume such defense or the Indemnified Person advises that
there
are issues which raise conflicts of interest between the Assignee
and the
Indemnified Person, the Indemnified Person may retain counsel which
is
reasonably satisfactory to the Assignee, and the Assignee shall pay,
promptly as statements therefor are received, the reasonable fees
and
expenses of such counsel for the Indemnified Person (which may not
exceed
one firm in any jurisdiction), (ii) the Indemnified Person will cooperate
in the defense of any such matter, (iii) the Assignee shall not be
liable
for any settlement effected without its prior written consent and
(iv) the
Assignee shall have no obligation hereunder in the event that
indemnification of an Indemnified Person in the manner contemplated
hereby
is prohibited by applicable laws and regulations or a court of competent
jurisdiction.
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(c)
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If
the Assignee or any of its respective successors or assigns shall
consolidate with or merge into any other entity and shall not be
the
continuing or surviving entity of such consolidation or merger or
shall
transfer all or substantially all of its assets to any other entity,
then
and in each case, proper provision shall be made so that the successors
and assigns of the Assignee shall assume the obligations set forth
in this
Paragraph 6.
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7.
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Notices.
All notices, requests and other communications hereunder to a party
shall
be in writing and shall be deemed given if personally delivered,
mailed by
registered or certified mail (return receipt requested) or sent by
a
reputable courier service to such party at its address set forth
below or
such other address as such party may specify by notice to the other
party
hereto.
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If
to the
Assignor to:
Airlie
Opportunity Master Fund, Ltd.
000
Xxxx
Xxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Xxxxxx
Xxxxx
Portfolio
Manager
with
a
copy to:
Xxxxxxx
Xxxxxxxx & Xxxx llp
Two
World
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx
X.
Xxxxxx, Esq.
If
to the
Assignee to:
WDM
Fund,
L.P.
000
Xxxx
Xxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Xxxxxx
Xxxxx
Portfolio
Manager
with
a
copy to:
Xxxxxxx
Xxxxxxxx & Xxxx llp
Two
World
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
8.
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Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPALS THEREOF (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
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9.
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Counterparts
and Facsimiles.
This Agreement may be executed by either of the parties hereto in
counterparts, each of which shall be deemed to be an original, but
all
such counterparts shall together constitute one and the same instrument.
This Agreement may be executed by either of the parties hereto by
facsimile.
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[signature
page follows]
Airlie Opportunity Master Fund, Ltd., | WDM Fund, L.P. | |||
a
Cayman Islands limited partnership,
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a
Delaware limited partnership,
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as
Assignor
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as
Assignee
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By: | /s/ Xxxxxx Xxxxx | By: | /s/ Xxxxxx Xxxxx | |
Xxxxxx Xxxxx |
Xxxxxx
Xxxxx
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Portfolio Manager |
Portfolio
Manager
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