STOCK PURCHASE AND REDEMPTION AGREEMENT
Exhibit 10.29
This Stock Purchase and Redemption Agreement (the “Agreement”) is entered into as of
September 29, 2006, by and between First Mercury Holdings, Inc., a Delaware corporation (the
“Company”), and Xxxxxxx X. Xxxxxx, an individual (“Seller”). The Company and the
Seller are referred to collectively herein as the “Parties.”
WHEREAS,
Seller owns an aggregate of 329.8 Common Shares of the Company.
WHEREAS, This Agreement contemplates a transaction under which the Company shall repurchase
from the Seller and the Seller shall sell to the Company 100 Common Shares.
NOW, THEREFORE, in consideration of the premises and the actual promises herein made, and in
consideration of the representations, warranties, and covenants herein contained, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows.
Section 1. Definitions.
“Adverse Consequences” means all actions, suits, proceedings, hearings,
investigations, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings,
damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations,
taxes, liens, losses, expenses, and fees, including court costs and reasonable attorneys’ fees and
expenses.
“Common Shares” shall mean the common shares, $0.01 par value per share, of the
Company.
“Person” means an individual, a partnership, a corporation, an association, a joint
stock company, a limited liability company or partnership, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
“Security Interest” means any lien, encumbrance, mortgage, pledge, or other security
interest.
“Shares” means the Common Shares to be purchased pursuant to the terms of this
Agreement.
Section 2. Basic Transaction.
(a) Purchase and Sale of Shares. On and subject to the terms and conditions of this
Agreement, the Company agrees to purchase from Seller, and Seller agrees to sell, transfer, convey,
and deliver to the Company One Hundred (100) Common Shares of the Company at the Closing free and
clear of any Security Interests for the aggregate purchase price (the “Purchase Price”) of
$597,500.
(b) The Closing. The closing of the transactions contemplated by this Agreement (the
“Closing”) shall take place at the offices of the Company on September 29, 2006, including the execution and delivery of the documents set forth in Section 2(c)
(the “Closing Date”).
(c) Deliveries at the Closing. At the Closing, the Parties shall execute and deliver,
as applicable, the following certificates, agreements, documents and instruments contemporaneously
with, and as a condition to the Closing of the transaction contemplated by this Agreement:
(i) Old Stock Certificate. The Seller shall deliver to the Company the stock
certificate representing the Shares, endorsed in blank or accompanied by duly executed
assignment documents.
(ii) Cash Consideration. The Company shall deliver to the Seller the Purchase
Price in immediately available funds to the Seller.
(iii) New Stock Certificate. The Company shall deliver to the Seller a new
stock certificate representing One Hundred Eighty-Nine and Eight-Tenths (189.8) Common
Shares.
Section 3. Representations and Warranties of the Seller. Seller represents and
warrants to the Company that the statements contained in this Section 3 are correct and
complete as of the Closing Date.
(a) Power and Authority. The Seller is an individual with the requisite competence
and authority to execute and deliver this Agreement and to perform his obligations hereunder and to
consummate the transactions contemplated hereby.
(b) Enforceability. This Agreement has been duly executed and delivered by the
Seller, and constitutes the legal, valid and binding obligation of the Seller, enforceable against
him in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws of general
application relating to or affecting creditors’ rights and to general principles of equity.
(c) Noncontravention. Neither the execution and the delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, or other restriction of any
government, governmental agency, or court to which the Seller is subject, (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which the Seller is a
party or by which he is bound or to which any of his assets is subject (or result in the imposition
of any Security Interest upon any of his assets), or (iii) require the Seller to give any notice
to, make any filing with, or obtain any authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the transactions contemplated by this
Agreement.
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(d)
Shares. The Seller holds of record and owns beneficially Three
Hundred Twenty-Nine
and Eight-Tenths (329.8) Common Shares of the Company, free and clear of any restrictions on
transfer (other than any restrictions under the Securities Act of 1933, as amended, and state
securities laws), Security Interests, options, warrants, purchase rights, commitments, and claims.
The Seller is not a party to any option, warrant, purchase right, or other contract or commitment
that could require him to sell, transfer, or otherwise dispose of any Common Shares of the Company
(other than this Agreement). Upon delivery to the Company of certificates representing the Shares,
and upon the Seller’s receipt of the Purchase Price, good and valid title to the Shares will pass
to the Company, free and clear of all Security Interests, options, warrants, purchase rights,
commitments, and claims.
Section 4. Survival and Indemnification. The representations, warranties, covenants,
and agreements contained herein shall survive indefinitely. In the event of a misrepresentation or
breach of representation, warranty or covenant, the Seller agrees to indemnify the Company from and
against any Adverse Consequences the Company may suffer resulting from, arising out of, relating
to, in the nature of, or caused by such misrepresentation or breach.
Section 5. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral, to the extent they
relate in any way to the subject matter hereof.
(b) Succession and Assignment. This Agreement shall be binding upon and inure to the
benefit of the Parties named herein and their respective successors and assigns. No Party may
assign either this Agreement or any of its rights, interests, or obligations hereunder without the
prior written approval of the other Party.
(c) Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one and the same
instrument.
(d) Governing Law; Interpretation. This Agreement shall be construed in accordance
with and governed for all purposes by the internal substantive laws of the State of Delaware
applicable to contracts executed and to be wholly-performed within such State.
(e) Amendments and Waivers. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by the Company and the Seller. No waiver by
any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
(f) Expenses. Except as set forth herein, the Seller and the Company will bear his or
its own costs and expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above
written.
| FIRST MERCURY HOLDINGS, INC. | ||
By: |
/s/ Xxxxxxx X. Xxxxx | |
Name: |
Xxxxxxx X. Xxxxx | |
Title: |
President & CEO | |
| SELLER: | ||
/s/ Xxxxxxx X. Xxxxxx |
||
| Xxxxxxx X. Xxxxxx | ||
[SIGNATURE PAGE TO XXXXXX REPURCHASE AGREEMENT]
