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EXHIBIT 10.7
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This Amended and Restated Stock Purchase Agreement (this "Agreement")
is entered into as of this 4th day of December, 1997, by and among MegaBank
Financial Corporation, a Colorado corporation (the "Corporation"), and Xxxxxx X.
Xxxxxxxx, the Xxxx X. Xxxxxxxx Trust, the Realtek Company Profit Sharing Plan
and Trust, Xxxxxx Investments Partnership, a Colorado partnership, Respond
Corp., a Colorado corporation, and Orchard Valley Financial Corporation, a
Colorado corporation (each a "Stockholder" and collectively the "Stockholders").
The Corporation and Stockholders hereby agree as follows:
RECITALS
WHEREAS, the Corporation and certain of the Stockholders entered into a
Stock Purchase Agreement, dated December 20, 1990 (the "Original Stock Purchase
Agreement"), wherein the Corporation agreed to redeem all of the shares of
capital stock of the Corporation owned by such Stockholders upon the terms and
conditions set forth in the Original Stock Purchase Agreement; and
WHEREAS, the Corporation and the Stockholders entered into an Amendment
to Stock Purchase Agreement, dated April 16, 1992 ("Amendment No. 1"), wherein
the Original Stock Purchase Agreement was amended to add additional Stockholders
and to make certain other modifications; and
WHEREAS, the parties hereto desire to further amend and restate the
Original Stock Purchase Agreement, as previously amended by Amendment No. 1, as
hereinafter described;
AGREEMENT
NOW, THEREFORE, IT IS AGREED:
ARTICLE 1.00-PURPOSE
The purpose of this Agreement is to provide:
A. For the orderly continuation of the affairs of the Corporation at
the time that certain events occur which may require the sale, transfer, or
exchange of the stock of the Corporation held by the Stockholders as provided by
the terms of this Agreement.
B. For a means by which the Stockholders may sell shares of stock when
certain events set out in this Agreement take place.
ARTICLE 2.00-PURCHASE AND SALE
At the time of the execution of this Agreement, the Stockholders own
the following shares of the common stock (the "Stock") in the Corporation:
Xxxxxx X. Xxxxxxxx 53,160 shares
Xxxx X. Xxxxxxxx Trust 2,563 shares
Realtek Company Profit Sharing Plan and Trust 20,494 shares
Xxxxxx Investments Partnership 1,663 shares
Orchard Valley Financial Corporation 21,815 shares
Respond Corp. 9,360 shares
Pursuant to the terms of this Agreement, the Stockholders agree to sell certain
of their shares of Stock in accordance with the terms of this Agreement and the
Corporation agrees to purchase the same in accordance with its terms and
conditions. In the event of any stock dividends or stock splits, the shares
received thereby by the Stockholders shall be similarly subject to the terms of
this Agreement.
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ARTICLE 3.00-ENCUMBRANCE
The parties acknowledge and agree that they do not wish to prevent any
Stockholder from pledging, hypothecating or otherwise encumbering his shares of
Stock.
ARTICLE 4.00-PURCHASE AT DEATH
4.01 Purchase by the Corporation. Upon the death of Xxxxxx X. Xxxxxxxx
(herein "Xxxxxxxx"), each Stockholder shall have an option for ninety (90) days
from the date of Xxxxxxxx'x death to cause a Purchase (as hereinafter defined)
by the Corporation. Such option may be exercised by any Stockholder by
delivering a written notice (an "Exercise Notice") to the Corporation, signed by
the Stockholder, requesting that a number of such Stockholder's shares be
purchased pursuant to this Agreement. The number of shares to be purchased shall
be designated by the Stockholder in the Exercise Notice and shall not exceed the
number of shares owned by such Stockholder's at the time of Xxxxxxxx'x death.
The Exercise Notice must be received by the Corporation within ninety (90) days
from the date of Xxxxxxxx'x death. Once given and timely received, the Exercise
Notice shall be irrevocable with respect to the Stockholders executing such
Exercise Notice (the "Selling Stockholders"), and the Corporation and the
Selling Stockholders, respectively, agree to consummate a Purchase, on the terms
set forth in Section 4.02.
4.02 Purchase. A "Purchase" shall mean the purchase for cash by the
Corporation of a number of whole shares of Stock from a Selling Stockholder,
said number to be determined by subtracting from such Selling Stockholder's
Allocable Insurance Proceeds (as hereinafter defined) any indebtedness due and
payable to the Corporation by such Selling Stockholder and dividing the
remainder by the price for shares of Stock (to be determined in accordance with
Article 5.00), rounded down to the next whole share of Stock. The "Allocable
Insurance Proceeds" for each Selling Stockholder shall mean the net proceeds
payable to the Corporation following Xxxxxxxx'x death from the insurance policy
listed on Exhibit B (the "Net Insurance Proceeds"), multiplied by a fraction,
the numerator of which is the number of shares of Stock designated in the
Exercise Notice by such Selling Stockholder, and the denominator of which is the
number of shares of Stock designated in all Exercise Notices by all Selling
Stockholders.
4.03 Net Insurance Proceeds. To the extent that an Exercise Notice is
not timely delivered following Xxxxxxxx'x death or the Net Insurance Proceeds
exceed the amounts necessary for the Corporation to purchase Stock of the
Selling Stockholders pursuant to this Article 4.00, the Corporation shall be
entitled to retain the entire amount of the Net Insurance Proceeds or such
excess, respectively, without liability to any Stockholder or any other party
therefor.
4.04 Closing. The closing of a Purchase shall take place at the office
of the Corporation at a date designated by the Corporation, which date shall be
not more than thirty (30) days after the date of receipt by the Corporation of
the Exercise Notice or payment to the Corporation of the Net Insurance Proceeds,
whichever is later.
4.05 Certain Definitions. For purposes of this Article 4.00, the term
"Stockholder" shall include, in addition to the Stockholders specifically named
herein, Xxxxxxxx'x estate, the trustee of any trust created by Xxxxxxxx which
was treated during his lifetime as owned by Xxxxxxxx under the provisions of
Subpart E of Part I of Subchapter J of the Internal Revenue Code of 1986 as
amended, and any entity hereafter formed by Xxxxxxxx in which he beneficially
owns greater than 50% of the voting rights.
ARTICLE 5.00-STOCK VALUE AND RE-EVALUATION
The purchase price for the shares of Stock shall be Forty Five Dollars
($45.00) per share until altered by re-evaluation as hereinafter provided. The
Stockholders and the Corporation agree that the value of the Stock includes an
amount representing the good will of the Corporation as a going concern. Within
three (3) months after the end of each fiscal year of the Corporation and/or 45
days after review of audited financial statements of the Corporation for the
preceding fiscal year, the Stockholders and the Corporation may, by mutual
agreement, redetermine such value as of the end of the preceding fiscal year,
and such redetermination
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shall be entered into the valuation schedule attached hereto as Exhibit A. If
the Stockholders and the Corporation fail to redetermine the value for any
fiscal year(s), the last previously stipulated value shall be used, with an
appropriate adjustment, upward or downward, to reflect changes in the book value
per share of the Corporation since the effective date of the last valuation.
ARTICLE 6.00-CORPORATE RESTRICTIONS AFTER PURCHASE
[intentionally omitted]
ARTICLE 7.00-LIFE INSURANCE
7.01 Owner and Beneficiary. The Corporation has purchased a life
insurance policy on the life of Xxxxxx X. Xxxxxxxx. (See Exhibit B). The
Corporation hereby reserves the right to exercise all incidents of ownership
with respect to such policy.
7.02 Insurance Companies. The insurance company that has issued the
policy of life insurance listed on Exhibit B of this Agreement is authorized to
act in accordance with the terms of such policy regardless of the provisions of
this Agreement. Payments made by any such insurance company, pursuant to the
policy terms, shall be a complete discharge of its obligations.
ARTICLE 8.00-RELEASE FROM INDEBTEDNESS
With respect to a Selling Stockholder which sells all shares of Stock
owned by such Stockholder pursuant to this Agreement: (i) the Corporation agrees
to use its best efforts to release any property of a Selling Stockholder that is
used as security for any indebtedness of the Corporation, said release to occur,
to the extent practicable, within twelve (12) months of the date of the death of
Xxxxxx X. Xxxxxxxx; (ii) the Corporation shall also use its best efforts to
release the Selling Stockholders from any liability on any notes or other
obligations incurred for the benefit of the Corporation for which they are
individually or jointly liable, said releases to occur, to the extent
practicable, within twelve (12) months after the date of death of Xxxxxx X.
Xxxxxxxx; provided, however, that in the event that the Corporation is unable to
secure said releases, it shall indemnify and hold harmless the Selling
Stockholders, their estates and successors, from any and all liabilities which
are incurred in the event of a default by the Corporation.
ARTICLE 9.00-SECURITY
[intentionally omitted]
ARTICLE 10.00-TERMINATION OF AGREEMENT
This Agreement shall terminate upon the occurrence of any of the
following events:
10.01 The cessation of the Corporation's business;
10.02 The bankruptcy, receivership or dissolution of the Corporation;
10.03 On the date that the insurance described on Exhibit B lapses or
is canceled; or
10.04 Upon written notice by Xxxxxxxx to the Corporation.
ARTICLE 11.00-BINDING UPON LEGAL REPRESENTATIVES
This Agreement shall be binding upon and shall inure to the benefit of
the respective heirs, legal representatives, assigns, transferees and successors
of each of the parties hereto.
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ARTICLE 12.00-CONSTRUCTION
The titles appearing herein are used for purpose of convenience only
and shall in no way change the meaning of this Agreement. If any conflict
between any heading and the text of this Agreement exists, the text shall
control.
ARTICLE 13.00-NOTICES
Any and all notices, designations, consents, offers, acceptances or any
other communications provided for herein shall be given in writing either by:
(a) Registered or certified mail which shall be addressed, in
the case of the Corporation, to its principal office, and in the case
of any Stockholder, to his address appearing on the stock books of the
Corporation or his residence or at such other address as may be
designated for him; or
(b) Personal delivery to the party requiring notice and
securing a written receipt.
The effective date of the notice shall be the date of the written receipt
received upon personal delivery or five (5) days after mailing in the case of
certified mail.
ARTICLE 14.00-INVALID PROVISION
The invalidity and unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof and this Agreement shall
be construed in all respects as if such invalid and unenforceable provisions
were omitted.
ARTICLE 15.00-MODIFICATION
No change or modification of this Agreement shall be valid unless the
same is in writing and signed by all the parties hereto.
ARTICLE 16.00-ATTORNEYS' FEES
In the event suit is brought to enforce any or all of the provisions of
this Agreement, the prevailing party shall be entitled to reimbursement of his
court costs and attorneys' fees.
ARTICLE 17.00-GENDER AND NUMBER
As used herein, the masculine gender shall include the feminine and
neuter genders, and the singular shall include the plural, and vice versa, where
the context requires.
ARTICLE 18.00-ADDITIONAL DOCUMENTS AND FURTHER ASSURANCES
The parties hereto agree to execute any other documents that are
necessary to effectuate the provisions of this Agreement.
ARTICLE 19.00-GOVERNING LAW
This Agreement and all of its provisions shall be governed and
construed in accordance with the laws of the State of Colorado.
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stock Purchase Agreement as of the date first above written.
The Corporation:
MEGABANK FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx, President
The Stockholders:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxx
THE XXXX X. XXXXXXXX TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx, Trustee
THE REALTEK COMPANY PROFIT
SHARING PLAN AND TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx, Administrator
XXXXXX INVESTMENTS PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx, General Partner
ORCHARD VALLEY FINANCIAL CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx, President
RESPOND CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx, President
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Each of the undersigned hereby acknowledges that this Agreement was
prepared by legal counsel representing the Corporation. Further, each of the
undersigned recognize that said legal counsel was acting solely on behalf of the
Corporation and not on behalf of any Stockholder, individually or collectively.
Each of the undersigned represent and warrant that he/she/it has been advised to
seek independent legal and financial counsel with respect to the execution of
this Agreement and that he/she/it has had the opportunity to do so. Each of the
undersigned agrees that the statements, representations and warranties made in
this paragraph may be relied upon by the Corporation and it legal counsel and
their respective successors in interest.
The Corporation:
MEGABANK FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx, President
The Stockholders:
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxx
THE XXXX X. XXXXXXXX TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx, Trustee
THE REALTEK COMPANY PROFIT
SHARING PLAN AND TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx, Administrator
XXXXXX INVESTMENTS PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx, General Partner
ORCHARD VALLEY FINANCIAL CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx, President
RESPOND CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx, President
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EXHIBIT A
VALUE OF SHARES
DATE VALUE INITIALS OF PARTIES
---- ----- -------------------
Fiscal Year
1998
Fiscal Year
1999
Fiscal Year
2000
Fiscal Year
2001
Fiscal Year
2002
Fiscal Year
2003
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EXHIBIT B
POLICIES OF INSURANCE OWNED
ON THE LIVES OF THE XXXXXX X. XXXXXXXX
Name of
Insurance Policy Face
Company Number Owner Insured Amount
--------- ------ ----- ------- ------
Transamerica Life 40779161 MegaBank Xxxxxx X. $3,000,000
Financial Xxxxxxxx
Corporation
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AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This Amendment No. 1 to the Amended and Restated Stock Purchase Agreement
dated December 4, 1997 (the "Agreement") is entered into as of September 1,
1998.
RECITALS
WHEREAS, the parties hereto desire to amend the Agreement to provide for a
purchase price to reflect market value of the Stock.
NOW, THEREFORE, Article 5.00 "Stock Value and Re-Evaluation" is amended in
its entirety to read:
ARTICLE 5.00-STOCK VALUE AND RE-EVALUATION
The purchase price for the shares of Stock shall be the greater of 80% of
the average closing bid price of the Common Stock of the Corporation on any
recognized quotation system for five trading days preceding the death of Xxxxxx
X. Xxxxxxxx or appraised value as determined by an appraiser selected mutually
by the Corporation and the surviving Stockholders, after notice by such persons
to the Corporation within 60 days of the death of Xxxxxx X. Xxxxxxxx. The
Stockholders and the Corporation agree that the value of the Stock shall include
an amount representing good will of the Corporation as a going concern.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to the Amended and Restated Stock Purchase Agreement as of the date first above
written.
The Corporation:
MEGABANK FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx, President
The Stockholders:
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxx
THE XXXX X. XXXXXXXX TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, Trustee
THE REALTEK COMPANY PROFIT
SHARING PLAN AND TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, Administrator
XXXXXX INVESTMENTS PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, General Partner
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ORCHARD VALLEY FINANCIAL CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, President
RESPOND CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, President
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Each of the undersigned hereby acknowledges that this Amendment No. 1
to the Agreement was prepared by legal counsel representing the Corporation.
Further, each of the undersigned recognize that said legal counsel was acting
solely on behalf of the Corporation and not on behalf of any Stockholder,
individually or collectively. Each of the undersigned represent and warrant that
he has been advised to seek independent legal and financial counsel with respect
to the execution of this Agreement and that he has had the opportunity to do so.
Each of the undersigned agrees that the statements, representations and
warranties made in this paragraph may be relied upon by the Corporation and it
legal counsel and their respective successors in interest.
The Corporation:
MEGABANK FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx, President
The Stockholders:
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxx
THE XXXX X. XXXXXXXX TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, Trustee
THE REALTEK COMPANY PROFIT
SHARING PLAN AND TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, Administrator
XXXXXX INVESTMENTS PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, General Partner
ORCHARD VALLEY FINANCIAL CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, President
RESPOND CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, President
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