EXHIBIT 10.39
STOCK PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the 7th
day of December, 1998 between AFFINITY GROUP THRIFT HOLDING CORP., a Delaware
corporation (the "Seller") and AFFINITY BANK HOLDINGS LLC, a Minnesota limited
liability company (the "Purchaser").
WITNESSETH:
Pursuant to this Agreement, the Seller will sell and deliver to the
Purchaser, and the Purchaser will purchase and acquire from the Seller, all of
the issued and outstanding capital stock (the "Shares") of Affinity Bank, a
California corporation ("AB"). Such purchase and sale is to be subject to the
contingencies set forth in Section 2.4 hereof and is made in consideration of
and is premised upon the various representations, warranties, covenants,
agreements and undertakings of the Seller and the Purchaser contained in this
Agreement. The Shares are sometimes collectively referred to herein as the
"Securities.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Agreement are used as defined in this
Article I or elsewhere in this Agreement
1.1 AFFILIATE. The term "Affiliate" shall mean with respect to any
entity, a person or entity directly or indirectly, controlling, controlled by
or under common control with, such entity.
1.2 DAMAGES. The term "Damages" shall mean any and all
obligations, liabilities, damages, penalties, deficiencies, losses,
investigations, proceedings, judgments, costs, and expenses (including, but
not limited to, costs and expenses incurred in connection with the performing
obligations, interest, bonding and court costs and the attorneys' fees and
disbursements) in each case, after the application of any and all amounts
covered under insurance, contracts or similar arrangements and from third
parties by the person or entity claiming indemnity hereunder and after taking
into account the contributing acts or omissions to the event giving arise to
any claim for indemnity hereunder and after taking into account the
contributing acts or omissions to the event giving arise to any claim for
indemnity hereunder directly or indirectly after the Closing of the person or
entity claiming indemnity hereunder, which acts or omissions give rise to any
liabilities by such person or entity under applicable Legal Requirements.
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1.3 LEGAL REQUIREMENTS. The term "Legal Requirements" shall mean
any and all currently applicable (i) federal, state and local laws
(statutory, judicial or otherwise), ordinances and regulations as currently
interpreted by relevant regulatory authorities, (ii) judgments, order or
decrees of any federal, state or local court, arbitrator or administrative or
governmental authority, bureau or agency, and (iii) contracts, agreements,
franchises, understandings or other arrangements with any federal, state or
local court, arbitrator or administrative or governmental authority, bureau
or agency relating to compliance with the matters described in (i) and (ii)
above. Without limiting the generality of the foregoing, the expression
"Legal Requirements" includes approval of applications filed with the Federal
Deposit Insurance Corporation and the Office of Thrift Supervision to
designate AB as a federal savings bank and to designate the Purchaser and its
parent company as savings and loan holding companies.
ARTICLE II
PURCHASE AND SALE OF THE SHARES
2.1 PURCHASE AND SALE OF SHARES. At the Closing, the Seller agrees
to sell, transfer and deliver to the Purchaser, and the Purchaser agrees to
purchase, acquire and accept from the Seller, the Securities.
2.2 CONSIDERATION. The consideration to be paid to the Seller for
the sale, transfer and delivery of the Securities shall be the issuance and
delivery by the Purchaser to the Seller of a membership interest in the
Purchaser consisting of 17,100 shares of the Series A Preferred stock of the
Purchaser (the "Preferred Stock").
2.3 THE CLOSING. The Closing of the transactions provided for in
this Agreement (the "Closing') shall occur at the offices of the Purchaser at
10:00 a.m. on the second business day after the satisfaction of the
conditions precedent set forth in Section 2.4 The Seller agrees to cooperate
with the Purchaser in having the Legal Requirements satisfied and, upon
satisfaction thereof, Purchaser shall give notice thereof to the Seller. At
the Closing, The Seller shall deliver the Shares duly endorsed for transfer
to the Purchaser. At the Closing, the Purchaser shall deliver certificates
for the Preferred Stock to the Seller. Each of the Purchaser and the Seller
agrees to execute and deliver such other and further instruments at the
Closing and thereafter as the other may reasonably request to evidence the
intent of this Agreement.
2.4 CONDITION OF THE OBLIGATIONS OF THE PARTIES HERETO. The
obligation of the Seller to convey the Securities and the obligation of the
Purchaser to purchase the Securities is conditioned upon (a) the Purchaser's
obtaining the necessary approvals to satisfy the Legal Requirements and (b)
the Seller's obtaining the requisite approval to the transactions
contemplated by this Agreement from the lenders to the parent company of the
Seller.
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ARTICLE 3
REPRESENTATION AND WARRANTIES
The following representations and warranties are made on and as of
the date hereof. The Seller hereby represents and warrants to the Purchaser
that:
3.1 TITLE TO SHARES. The Seller is the owner of the Securities,
free and clear of any liens, mortgages, charges, security interests or any
other encumbrances (including without limitation adverse claims) or other
restrictions or limitations of any kind whatsoever and all applicable
statutes and regulations. By delivery and payment for the Shares as provided
for in this Agreement, the Seller will convey good title to the Shares, free
and clear of all Liens.
3.2 NO BREACH. The execution, delivery, validity and
enforceability of this Agreement by the Seller, the consummation of the
transactions provided for hereby by the Seller, and the performance by the
Seller of its obligations contemplated hereby will not (i) violate, conflict
with or result in a breach or termination of, or otherwise give the other
person a right to terminate, or constitute a default, event of default (by
way of substitution, novation or otherwise) or an event which with notice,
lapse of time or both, would constitute a default or event of default under
the terms of any material contract or permit by which the Seller is bound
except with respect to which consent has been obtained, (ii) result in the
creation of any lien upon any of the Shares, (iii) constitute a violation by
the Seller of any Legal Requirement or (iv) give rise to any preferential
right to purchase in favor of any third party.
3.3 PURCHASE INVESTIGATION. The Seller recognizes that the
Purchaser is a recently formed entity and has no operating history. The
Seller has received and is familiar with such information with respect to the
Purchaser and its projected performance as the Seller deems necessary for the
purpose of acquiring the Preferred Stock and desires no further information
from the Purchaser.
3.4 INVESTMENT INTENT. The Seller is acquiring the Preferred Stock
for its own account for investment and with no present intention of (i)
distributing the Preferred Stock or any part thereof or (ii) exercising
direct or indirect control over AB.
The Purchaser hereby represents and warrants to the Seller that:
3.5 TITLE TO SHARES. At the Closing, the Preferred Stock will be
validity issued and outstanding in favor of the Seller and have the benefit
of the rights and preferences set forth in the Articles of Organization of
the Purchaser.
3.6 NO BREACH. The execution, delivery, validity and
enforceability of this Agreement by the Purchaser, the consummation of the
transactions provided for hereby by the Purchaser, and the performance by the
Purchaser of its obligations contemplated hereby will not (i) violate,
conflict with or result in a breach or termination of, or
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otherwise give the other person a right to terminate, or constitute a
default, event of default (by way of substitution, novation or otherwise) or
an event which with notice, lapse of time or both, would constitute a default
or event of default under the terms of any material contract or permit by
which the Purchaser is bound except with respect to which consent has been
obtained, (ii) constitute a violation by the Purchaser of any Legal
Requirement by the Purchaser.
3.7 PURCHASE INVESTIGATION. The Purchaser has received and is
familiar with such information with respect to AB and its historical and
projected performance as the Purchaser deems necessary for the purpose of
purchasing the Securities and desires no further information from the Seller.
3.8 INVESTMENT INTENT. The Purchaser is purchasing the Securities
for its own account for investment and with no present intention of
distributing the Securities or any part thereof.
ARTICLE 4
INDEMNIFICATION, LIABILITY, SURVIVAL
4.1 INDEMNIFICATION AND LIABILITY FOR BREACH OF REPRESENTATIONS.
(A) The Seller agrees to pay and to indemnify fully, hold harmless and
defend the Purchaser, its Affiliates, agents, officers, directors, shareholders,
employees, servants, consultants, representatives successors and assigns, from
and against any and all Damages arising out of or relating to any of the
following:
(i) Any misrepresentation or breach of warranty by the Seller
under this Agreement or any certificate or document requires to be
delivered in connection herewith or in connection with the consummation
of the transactions provided for hereby, or
(ii) The non-fulfillment or failure to perform any covenant or
agreement on the part of the Seller under this Agreement.
(B) The Purchaser agrees to pay and to indemnify fully, hold
harmless and defend the Seller, his Affiliates, agents, officers, directors,
shareholders, employees, servants, consultants, representatives, successors
and assigns, from and against any and all Damages arising out of or relating
to any of the following:
(i) Any misrepresentation or breach of warranty by the
Purchaser under this Agreement or any certificate or document required
to be delivered in connection herewith or in connection with the
consummation of the transactions provided for hereby, or
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(ii) The non-fulfillment or failure to perform any covenant or
agreement on the part of the Purchaser under this Agreement.
4.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES: The
representations and warranties contained in this Agreement shall survive the
Closing for a period of two years.
ARTICLE 5
MISCELLANEOUS
5.1 RIGHTS AND REMEDIES, SPECIFIC PERFORMANCE. The rights and
remedies granted under this Agreement shall not be exclusive rights and
remedies, but shall be in addition to all other rights and remedies available
at law or in equity.
5.2 NOTICES. All notices under this Agreement shall be transmitted
to the respective party, shall be in writing and shall be considered to have
been duly given or served when personally delivered to any individual party,
or on the first day after the date of deposit with Federal Express for next
day delivery, postage prepaid, or on the third day after deposit in the
United States mail, certified or registered, return receipt requested,
postage prepaid, or on the date of telecopy, fax or similar telephonic
transmission during normal business hours, provided that the recipient has
specifically acknowledged by telephone receipt of such telecopy, fax or
telephonic transmission; addressed, in all cases, to the party at his address
set forth below, or to such other address as such party may hereafter
designate by written notice to the other party:
If to Seller: AFFINITY GROUP THRIFT HOLDING CORP.
00 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
If to Purchaser: AFFINITY BANK HOLDINGS LLC
0000 Xxxxx Xxx Xxx Xxxxx
Xxxxxxx, XX 00000
or to such other address as hereafter shall be furnished as provided in this
Section 5.2 by any of the parties hereto to the other parties hereto.
5.3 ASSIGNMENT AND AMENDMENT. This Agreement shall not be
assignable by either party without the prior written consent of the other
party without the prior written consent of the other party, except it may be
amended except pursuant to a writing executed by all of the parties hereto.
5.4 ENTIRE AGREEMENT: This Agreement sets forth the entire
understanding and agreement between the parties as to the matters covered
herein and supercedes and replaces all prior understandings, agreements or
statements (written or oral) of intent.
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5.5 INVALID PROVISIONS. If any provision of this Agreement is held
to be illegal, invalid or unenforceable, such provision shall be deemed
severed as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, and the remaining provisions hereof shall remain in
full force and effect and shall not be affected by such illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid, or unenforceable provision there shall be added
automatically a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and legal, valid and enforceable.
5.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument.
5.7 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
5.8 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of California.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first written above.
AFFINITY GROUP THRIFT HOLDING CORP.
By /s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx
Its President
AFFINITY BANK HOLDINGS LLC
By /s/ Xxxxxxx Xxxxxxx
---------------------------------
Xxxxxxx XxXxxxx
Its President
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