EXHIBIT 10.17
AGREEMENT FOR PURCHASE AND SALE OF STOCK
This Agreement for Purchase and Sale of Stock is made as of the 31st
day of August, 1998, by and between Equis Financial Group Limited Partnership, a
Massachusetts limited partnership with offices located at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Seller"), and Semele Group Inc., a Delaware
corporation with offices located at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000 (the "Buyer");
WITNESSETH:
WHEREAS, the Seller owns all the issued and outstanding shares of
capital stock of Ariston Corporation, a newly formed Delaware corporation (the
"Company"), consisting of 100 shares of Common Stock, $.01 par value (the
"Stock");
WHEREAS, the Seller wishes to sell and the Buyer wishes to purchase the
Stock subject to the provisions set forth herein;
NOW, THEREFORE, in consideration of the terms, covenants and conditions
hereinafter set forth, the parties hereto agree as follows:
1. Purchase and Sale of Stock
The Seller hereby transfers, sells and assigns to the Buyer, and the
Buyer hereby purchases from the Seller, the Stock for a purchase price of
$12,450,000, paid by the delivery to the Seller simultaneously with the
execution hereof of $2,000,000 in cash and a promissory note of the Buyer
payable to the Seller in the principal amount of $10,450,000 against delivery by
the Buyer of the stock certificate representing the Stock accompanied by a duly
executed separate stock power endorsed in blank. Such promissory note, which is
in the form of Exhibit A hereto, bears interest on the unpaid principal balance
thereof from time to time at the rate of 7% per annum and is payable on the
terms set forth therein. The Buyer's obligations under such note are secured by
a pledge of the Stock pursuant to a Security Agreement in the form of Exhibit B
hereto.
The parties agree that the sale provided for herein is subject to the
following condition subsequent (the "Condition Subsequent"): (a) the purchase
and sale shall be unwound; (b) the Stock and any dividends or distributions
received by the Buyer in respect of the Stock shall be returned to the Seller;
(c) the full amount of the purchase price (including the promissory note) shall
be returned by the Seller to the Buyer, and (d) the parties shall be returned in
all respects to the status quo ante unless the Buyer shall have received, on or
before the date which is 60 days after the date hereof, from Josephthal & Co.
Inc. or other investment banker acceptable to the Buyer in its reasonable
discretion, a "fairness opinion" with respect to the amount of the purchase
price, which opinion shall be acceptable to the Board of Directors of the Buyer
in its reasonable judgment. In the event of the occurrence of the Condition
Subsequent, the Buyer and the Seller agree to treat the purchase and sale as if
it had never occurred for purposes of their federal and state income tax
reporting returns.
2. Familiarity with the Company
The Buyer hereby acknowledges that it is familiar with the business,
assets and liabilities of the Company, which was formed to hold, and holds on
the date hereof, a 99% limited partnership interest in AFG/Eireann Limited
Partnership, a Massachusetts limited partnership, and a 98% limited partnership
interest in Old North Capital Limited Partnership, a Massachusetts limited
partnership (collectively, the "Partnership Interests"). The Buyer further
hereby acknowledges that it has had the opportunity to examine such financial
records, make such inquiries of employees and representatives of the Seller and
consult with such experts as it has deemed appropriate or necessary in
connection with the execution of this Agreement and the consummation of the
transaction provided for herein.
3. Representations of the Seller
The Seller hereby represents and warrants to the Buyer that
(a) it has good and marketable title to the Stock free and clear of all
liens, security interests, charges or encumbrances of any kind and that upon the
execution of this Agreement title to the Stock will pass to the Buyer free and
clear of any pledge, lien, security interest, charge or encumbrance of any kind
and thereupon the Buyer, as record and beneficial owner, will be entitled to all
rights including voting rights with respect to the Stock;
(b) the Company has good and marketable title to the Partnership
Interests free and clear of all liens, security interests, charges or
encumbrances of any kind;
(c) the Seller is a duly formed and validly existing limited
partnership under the laws of the Commonwealth of Massachusetts with the right,
power and authority to enter into and carry out the provisions of this
Agreement; Equis Corporation is the sole general partner of the Seller; and Xxxx
X. Xxxxx is an officer of such general partner who has been duly authorized by
all necessary partnership and corporate action to execute, deliver and perform
on behalf of the Seller all such instruments and agreements and take all such
other action as he may deem necessary or desirable for the Seller to consummate
the sale of the Stock to the Buyer, including, without limiting the generality
of the foregoing, this Agreement and the stock power effecting the transfer of
the Stock to the Buyer;
(d) the execution, delivery and performance of this Agreement by the
Seller and the consummation by the Seller of the transaction contemplated hereby
do not and will not violate, conflict with or result in a breach of or
constitute a default under any of the terms, conditions or provisions of any
instrument or contract to which the Seller is a party or by which it or any of
its properties or assets is bound or any judgment, decree, order, statute, rule
or regulation to which it is subject or by which it or any of its properties or
assets is bound, or result in the creation of any lien, charge or encumbrance on
any of its properties or assets, including the Partnership Interests;
(e) the Seller has delivered to the Buyer true, accurate and complete
copies of the Certificate of Organization and By-Laws of the Company, and has
delivered to the Buyer the original minute book and stock ledger of the Company.
The minute book of the Company contains accurate and complete records of all
meetings and other corporate actions of its stockholders and Board of Directors,
and the stock ledger included in the minute book is accurate and complete.
4. Representations of the Buyer
The Buyer hereby represents and warrants to the Seller that
(a) the Buyer is a duly formed and validly existing corporation under
the laws of the State of Delaware with the right, power and authority to enter
into and carry out the provisions of this Agreement; and Xxxxx X. Xxxxx is an
officer of the Buyer who has been duly authorized by all necessary corporate
action to execute, deliver and perform on behalf of the Buyer all such
instruments and agreements and take all such other action as he may deem
necessary or desirable for the Buyer to consummate the purchase of the Stock
from the Seller, including, without limiting the generality of the foregoing,
this Agreement and the promissory note delivered to the Seller pursuant to this
Agreement;
(b) the execution, delivery and performance of this Agreement by the
Buyer and the consummation by the Buyer of the transaction contemplated hereby
do not and will not violate, conflict with or result in a breach of or
constitute a default under any of the terms, conditions or provisions of any
instrument or contract to which the Buyer is a party or by which it or any of
its properties or assets is bound or any judgment, decree, order, statute, rule
or regulation to which it is subject or by which it or any of its properties or
assets is bound, or result in the creation of any lien, charge or encumbrance on
any of its properties or assets.
5. Survival of Representations and Warranties
All agreements, covenants, representations and warranties of the
parties are set forth and merged in this Agreement, and no other oral or written
understanding, representation or warranty shall be deemed to be part of this
Agreement . All of the representations, warranties, agreements and covenants of
the Seller contained in this Agreement shall survive the date hereof.
6. 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, taken together, shall
constitute one and the same agreement.
7. Entire Agreement
This Agreement represents the only agreement between the parties and
supersedes all prior agreements or understandings concerning the subject matter
hereof.
8. Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
9. Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
Seller and the Buyer and their respective successors and assigns.
10. Indemnification
The Seller will indemnify and hold the Buyer harmless from and against
any loss or expense, including reasonable legal fees and expenses, which the
Buyer may incur as the result of (i) any breach of the representations and
warranties made by the Seller hereunder or (ii) any claim made against the Buyer
arising out of the ownership by the Seller or the Company of the Stock or the
Partnership Interests prior to the date hereof. Whenever, on each occasion, and
as often as the Buyer shall incur any such loss or expense which may entitle the
Buyer to indemnification under the provisions of this Section 10 the Buyer shall
promptly so notify the Seller in writing of any such loss or expense and of the
amount of indemnification which may be claimed by the Buyer hereunder. The
Seller shall be entitled to take any and all such action as may be within its
power to mitigate the amount of any such loss or expense and shall be entitled
at its own expense to participate in and to select reputable counsel and direct
the defense of any such claim against the Buyer. If the Seller acknowledges in
writing that it is liable to the Buyer for such claim and elects to employ such
counsel and to direct such defense, the Seller shall have no further liability
hereunder for any legal fees and expenses incurred by the Buyer in connection
with such defense, provided that in such event the Buyer may employ its own
counsel at its own cost and expense.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
"Buyer" "Seller"
SEMELE GROUP INC. EQUIS FINANCIAL GROUP LIMITED
PARTNERSHIP
By: Equis Corporation, General Partner
By: By:
------------------------ -------------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxx X. Xxxxx
Title: President Title: President
EXHIBIT A
PROMISSORY NOTE
Boston, Massachusetts
$10,450,000 August 31, 1998
FOR VALUE RECEIVED, Semele Group Inc., a Delaware corporation with
offices located at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the
"Maker"), promises to pay to the order of Equis Financial Group Limited
Partnership, a Massachusetts limited partnership (the "Payee"), at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other place as the Payee may
from time to time designate in writing at least ten days before a payment
hereunder is due, the principal sum of Ten Million Four Hundred Fifty Thousand
Dollars ($10,450,000), together with interest on the unpaid principal balance
hereof from time to time at the rate of seven percent (7%) per annum. Interest
shall be payable hereunder quarterly in arrears, with all accrued interest
payable on the last day of each calendar quarter commencing on September 30,
1998, provided, however, that if and to the extent that the Available Interest
Amount shall be less than the interest due and payable hereunder (the "Interest
Amount"), then the balance shall be added to the outstanding principal of this
Note. As used herein, "Available Interest Amount" shall mean an amount, not to
exceed the Interest Amount, determined as of each quarterly interest payment
date, equal to the sum of the Interest Reserve Amount and any cash generated by
the assets owned by Ariston Corporation ("Ariston") on the date hereof during
the previous quarterly period. Prior to the maturity date of this Note,
principal hereunder shall be payable only out of and to the extent of (i) the
net proceeds to the Maker from the conversion, if any, by Ariston of leased
assets to cash, less (ii) such amount as it may be necessary to retain from such
net proceeds in order to permit the Maker to maintain a reserve equal to the
amount of interest that is estimated to be payable hereunder in the ensuing
12-month period (the amount, if any, in such reserve account at any time is
herein referred to as the "Interest Reserve Amount"). Any such mandatory
payments of principal shall be made within 15 days of receipt by the Maker of
such net proceeds.
The entire unpaid principal balance and all accrued and unpaid interest
hereunder shall be absolutely due and payable in full on the date that is 5
years from the date hereof.
All payments hereunder shall be applied first to any costs and expenses
of the holder due hereunder, then to interest due hereunder, and any balance
shall be applied to the outstanding principal balance of this Note.
This Note may be prepaid in whole or in part at any time without
penalty, provided that all accrued interest is paid with any such prepayment.
This Note evidences amounts owned to the Payee by the Maker under an
Agreement for Purchase and Sale of Stock dated the date hereof between the Maker
and the Payee. This Note is secured by the collateral referred to in the
Security Agreement between the Maker and the Payee dated the date hereof and is
recourse to the Maker only to the extent of such collateral.
All amounts payable under this Note shall immediately become due and
payable in full at the option of the holder without notice or demand in the
event of (1) the failure of the Maker to make any payment hereunder when and as
the same shall become due and payable, and such failure shall not be cured
within 30 days after the Maker shall have received written notice from the
holder of such failure, (2) the Maker ceasing to do business, being liquidated
or winding down its affairs or being a party to a merger or consolidation, (3)
the filing of bankruptcy proceedings involving the Maker as a debtor, (4) the
application for appointment of a receiver for the Maker or any of its property,
(5) the making of a general assignment for the benefit of the Maker's creditors,
(6) the insolvency of the Maker, or (7) the declaration or payment of dividends
by Ariston Corporation, a Delaware corporation, in excess of $2,020,000 in the
aggregate without the prior written consent of the Payee (each, an "Event of
Default").
The Maker shall pay, upon demand, all costs and expenses, including
legal expenses and reasonable attorneys' fees, paid or incurred by the holder in
enforcing any obligations of the Maker under this Note.
Except as specifically provided herein, the Maker waives presentment,
demand, notice, protest and all other demands or notices in connection with the
delivery, acceptance, performance, default or enforcement of the obligations of
the Maker under this Note.
The holder of this Note shall not by any act, delay, omission or
otherwise be deemed to have waived any of such holder's rights or remedies under
this Note unless such waiver shall be in writing and signed by the holder. A
waiver on any one occasion shall not be construed as a bar to or waiver of any
such right or remedy on any future occasion.
All notices hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand, or mailed, certified or registered mail
with first class postage prepaid, (i) to the holder at the address of the Payee
set forth above or to such other address as the holder shall direct in writing;
and (ii) to the Maker at the address of the Maker set forth above or to such
other address as the Maker shall direct in writing.
This Note shall be construed in accordance with and governed by the
laws of the Commonwealth of Massachusetts.
EXECUTED under seal as of the date first above written.
SEMELE GROUP INC.
Witness: By:
------------------------------ ------------------------------
Name: Xxxxx X. Xxxxx
Title: President
EXHIBIT B
SECURITY AGREEMENT
THIS SECURITY AGREEMENT made as of the 31st day of August, 1998, by and
between Semele Group Inc., a Delaware corporation (the "Pledgor"), and Equis
Financial Group Limited Partnership, a Massachusetts limited partnership (the
"Secured Party"),
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement for Purchase and Sale of Stock dated
as of the date hereof (the "Purchase Agreement"), the Pledgor has purchased from
the Secured Party 100 shares of the Common Stock, $.01 par value (the "Stock"),
of Ariston Corporation, a Delaware corporation (the "Company"), which are all
the shares of capital stock of the Company issued and outstanding;
WHEREAS, the Pledgor has paid for such shares by a $2,000,000 cash
payment to the Secured Party and delivery of the Pledgor's promissory note
payable to the Secured Party in the principal amount of $10,450,000 (the
"Note"); and
WHEREAS, the Pledgor has agreed to secure his commitments under the
Note by a pledge of the Stock now owned by the Pledgor;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Pledge.
In consideration of the acceptance by the Secured Party of the
Note and the undertakings of the Pledgor in this Agreement, the Pledgor hereby
grants a security interest to the Secured Party in the Stock (together with any
other securities or other property at any time pledged hereunder pursuant to the
terms hereof, the "Pledged Stock"). The Pledged Stock is represented by
Certificate No. 1, which certificate, accompanied by a separate stock power duly
endorsed in blank by the Pledgor, is herewith delivered to the Secured Party, to
be held on the terms and conditions contained herein. The Pledgor hereby
appoints the Secured Party as its attorney in fact to cause the transfer of the
Pledged Stock on the books of the Company to the Secured Party or his designee
upon the occurrence of an "Event of Default," as such term is defined in the
Note. The Secured Party shall hold the Pledged Stock as security for the
purposes described herein and shall not encumber or dispose of such property
except in accordance with the provisions of this Agreement.
2. Stock Dividend or Stock Split; Liquidation, Recapitalization,
Merger, etc.
Any additional shares of capital stock paid upon or
distributed with respect to any of the Pledged Stock in the event of any stock
dividend or stock split declared by the Company or any issuer thereof and any
sums paid upon or with
respect to any of the Pledged Stock upon the merger, consolidation,
liquidation, recapitalization, dissolution or reorganization of the Company or
any other issuer thereof shall be paid over to the Secured Party to be held by
him as security for the Note; and in case any distribution of capital shall be
made upon or with respect to any of the Pledged Stock or any property shall be
distributed upon or with respect to any of the Pledged Stock pursuant to the
recapitalization or reclassification of the capital of the issuer thereof or
pursuant to the reorganization, merger or consolidation thereof, the property so
distributed shall be delivered to the Secured Party to be held by him as
security for the Note. All securities, sums of money and other property paid or
distributed in respect of the Pledged Stock upon any such stock dividend, stock
split, merger, consolidation, liquidation, dissolution, reorganization,
recapitalization or reclassification which are received by the Pledgor shall,
until paid or delivered to the Secured Party, be held in trust for the Secured
Party as security for the Note.
3. Warranty of Title.
The Pledgor warrants that he has good and marketable title to
the Pledged Stock pledged hereunder on the date hereof, subject to no pledge,
lien, security interest, charge, option, restriction or other encumbrance, and
that it has power, authority and legal right to pledge such Pledged Stock
pursuant to this Agreement. The Pledgor covenants that it will defend the
Secured Party's rights and security interest in such Pledged Stock against the
claims and demands of all persons whomsoever; and the Pledgor covenants that it
will have the like title to and right to pledge all other property hereafter
pledged with the Secured Party hereunder and will likewise defend the Secured
Party's rights and security interest therein.
4. Dividends and Voting Rights.
Unless and until an Event of Default shall have occurred and
be continuing, the Pledgor shall be entitled to receive all cash dividends paid
in respect of the Pledged Stock and to vote the Pledged Stock and to give
consents, waivers and ratifications in respect of the Pledged Stock; provided,
however, that no vote shall be cast, or consent, waiver or ratification given or
action taken which would be inconsistent with or violate any provisions of this
Agreement or the Note. All such rights of the Pledgor to receive any cash
dividends shall cease in case an Event of Default shall have occurred and be
continuing, and in that case cash dividends shall be paid over by the Pledgor to
the Secured Party to be applied by it to the satisfaction of the Note, and all
cash dividends received by the Pledgor shall, until so paid to the Secured
Party, be held in trust for the Secured Party as security for the Note. All such
rights of the Pledgor to vote and give consents, waivers and ratifications with
respect to the Pledged Stock shall, at the Secured Party's option as evidenced
by the Secured Party's notifying the Pledgor of such election, cease in case an
Event of Default shall have occurred and be continuing, and in that case the
Secured Party shall have all such rights.
5. Discharge of Obligations.
Upon payment and performance in full of all obligations to be
performed by the Pledgor under the Note, the Secured Party shall transfer to the
Pledgor all of the Pledged Stock and all rights received by the Secured Party as
a result of the pledge contained herein.
6. Default.
Upon the occurrence of an Event of Default, the Secured Party
shall have the rights and remedies provided in the Uniform Commercial Code of
Massachusetts, and in that connection the Secured Party may, upon 5 days' notice
to the Pledgor sent by registered mail and without liability for any diminution
in price which may have occurred, sell all of the Pledged Stock in such manner
and for such price as the Secured Party may determine. It is agreed by the
Pledgor that such notice is reasonable. At any public sale, the Secured Party
shall be free to purchase all or any part of the Pledged Stock. Out of the
proceeds of any sale, the Secured Party may retain an amount equal to the
principal and interest then due under the Note, plus the amount of the expenses
of sale, including legal costs and reasonable attorneys' fees, and shall pay any
balance of such proceeds to the Pledgor.
7. Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of the Pledgor and the Secured Party and their successors and assigns; provided,
however, that neither party may assign this Agreement without the consent of the
other.
8. Other Provisions.
(a) Waivers; Rights and Remedies. No delay or omission on the
part of the Secured Party in exercising any right or remedy shall operate as a
waiver thereof or of any other right or remedy. No waiver by the Secured Party
shall be effective unless made in writing, and a waiver on any one occasion
shall not be construed as a bar to or waiver of any right or remedy on any
future occasion. All the Secured Party's rights and remedies shall be cumulative
and may be exercised singularly or concurrently, and nothing herein shall be
deemed to limit in any way any rights the Secured Party might otherwise have
under any other instrument or by law, including, without limiting the generality
thereof, the right to negotiate any note or other instrument together with any
collateral specifically described herein.
(b) Entire Agreement; Amendment. This Agreement constitutes
the entire agreement of the parties with respect to the subject matter hereof
and may be amended only by an instrument in writing referring to this Agreement
executed by the Pledgor and the Secured Party.
(c) Governing Law. This Agreement shall be governed by and
construed and interpreted according to the laws of the Commonwealth of
Massachusetts.
(d) Notices. All notices required or permitted hereunder shall
be in writing and shall be deemed to have been duly given if delivered in hand
or deposited in the United States mail, postage prepaid, or with Federal Express
or comparable overnight delivery service, addressed as follows:
(i) if to the Pledgor:
Semele Group Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: President
(ii) if to the Secured Party:
Equis Financial Group Limited Partnership
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Chief Executive Officer
or to such other address as a party shall designate by notice to the other.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
SEMELE GROUP INC.
By:
----------------------------
Xxxxx X. Xxxxx
Title: President
EQUIS FINANCIAL GROUP LIMITED
PARTNERSHIP
By: Equis Corporation, its general partner
By:
----------------------------
Xxxx X. Xxxxx
Title: President
