Exhibit 10.11.5
EXECUTION COPY
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") dated as of March 31,
2003, is made and entered into by and between Xxxxxx X. Xxxxxxxxx (the "Seller")
and Hanover Capital Mortgage Holdings, Inc., a Maryland corporation (the
"Corporation").
WHEREAS, the Seller owns directly, beneficially and of record, 145,336
shares of the Corporation's common stock, par value $0.01 per share ("Common
Stock"); and
WHEREAS, the Seller desires to sell, and the Corporation desires to
purchase, 9,276 shares of Common Stock (the "Shares"), on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
agreements, covenants, and representations hereinafter contained, the Seller and
the Corporation, intending to be legally bound, hereby agree as follows:
1. SALE AND PURCHASE OF THE SHARES.
1.1 Agreement to Sell. Upon the terms and conditions set
forth herein, the Seller shall sell, assign, transfer and deliver the Shares
free and clear of all liens, claims, charges, pledges, security interests,
pre-emptive rights, rights of first refusal, obligations, encumbrances and
restrictions (collectively, "Liens"), to the Corporation at the Closing (as
defined in Section 1.3), and the Corporation shall purchase and accept the
Shares from the Seller at the Closing.
1.2 Purchase Price. In consideration of the sale,
assignment, transfer and delivery of the Shares to the Corporation by the
Seller, and in reliance on the representations and covenants hereinafter set
forth, the aggregate purchase price for the Shares shall be $71,429.84 (the
"Purchase Price"). In lieu of receiving any part of the Purchase Price in cash
or otherwise, Seller hereby directs, instructs and authorizes the Corporation to
apply the Purchase Price to satisfy in full the principal and interest accrued
under that certain Promissory Note issued by the Seller to the Corporation on
April 15, 1998, which principal and interest total $71,425.75 on the date hereof
(the "Note"). In the event the Purchase Price exceeds the amount required to
satisfy Seller's obligation to the Corporation under the Note in full, then the
Corporation shall pay the Seller the excess amount in cash by check.
1.3 Closing. Subject to the terms and conditions of this
Agreement, the sale and purchase of the Shares contemplated hereby (the
"Closing") shall take place on March 31, 2003 by exchange of this Agreement and
all other deliveries contemplated hereby executed by the parties, via facsimile
followed by delivery of such executed documents via overnight delivery, provided
that the Closing may take place by such other means or at such other time, date
or place as may be mutually agreed upon by the parties to this Agreement in
writing.
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1.4 The Seller's Obligations at Closing. At the Closing,
Seller will deliver to the Corporation the following:
(a) certificate(s) representing the Shares (the
"Certificates"), accompanied by a Stock Power duly executed in blank and in
substantially the form attached hereto as Exhibit A; and
(b) such other documents and instruments as may
be required to consummate the transactions contemplated hereby.
1.5 Corporation's Obligations at Closing. At the Closing,
the Corporation will:
(a) apply the Purchase Price as directed in
Section 1.2 hereof; and
(b) deliver to the Seller such documents and
instruments as may be required to consummate the transactions contemplated
hereby.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Corporation that the statements contained in this
Section 2 are true and correct as of the date of this Agreement and will be true
and correct as of the Closing:
2.1 Title to the Shares. The Seller is the sole
beneficial and record owner of the Shares, and owns such Shares free and clear
of any Liens (other than any Liens of the Corporation in connection with the
Note) and has and at Closing will have full power and authority to convey such
Shares free and clear of any Liens, and upon delivery of payment for the Shares
as herein provided, the Seller will convey to the Corporation good title thereto
free and clear of any Liens.
2.2 Capacity; Authority; Binding Effect. The Seller has
the legal capacity to execute, deliver and perform this Agreement and each other
document being executed in connection herewith to which he is a party. This
Agreement has been duly and validly executed and delivered by the Seller and
(assuming the due authorization, execution and delivery thereof by the
Corporation) constitutes the legal, valid and binding obligation of the Seller,
enforceable against him in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors rights and remedies generally and subject to general principles of
equity.
2.3 No Conflict. The execution, delivery and performance
of this Agreement by the Seller do not and will not (a) violate or conflict with
any law, ordinance, regulation, rule, code, order, judgment or decree applicable
to the Seller, the Shares, or this Agreement; or (b) result in any breach of, or
constitute a default (or event that, with the giving of notice or lapse of time,
or both, would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of any encumbrance on any of the Shares pursuant to, any contract to
which the Seller is a party or by which the Shares are bound.
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2.4 Brokers and Advisors. The Seller has not taken any
action which would give rise to a valid claim against any party hereto for a
brokerage commission, finder's fee or like payment.
3. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The
Corporation hereby represents and warrants to Seller that the statements
contained in this Section 3 are true and correct as of the date of this
Agreement and will be true and correct as of the Closing:
3.1 Organization. The Corporation is a corporation
validly existing under the laws of the state of Maryland.
3.2 Authority; Binding Effect. The Corporation has been
duly authorized to execute and deliver this Agreement and each other document
being executed in connection herewith to which the Corporation is a party. This
Agreement has been duly and validly executed and delivered by the Corporation
and (assuming the due authorization, execution and delivery thereof by the
Seller) constitutes the legal, valid and binding obligation of the Corporation,
enforceable against the Corporation in accordance with its terms, except to the
extent that enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors rights and remedies generally and subject to general principles of
equity.
3.3 Brokers and Advisors. The Corporation has not taken
any action which would give rise to a valid claim against any party hereto for a
brokerage commission, finder's fee or like payment.
4. COVENANTS OF CORPORATION. The Corporation covenants to the
Seller that, except as otherwise consented to in writing by the Seller, from and
after the date of this Agreement, the Corporation will use its best efforts to
cause all of the conditions described in Sections 7.1 and 7.2 of this Agreement
to be satisfied. In the event the Certificates represent shares of Common Stock
in excess of the Shares to be sold hereunder (such number of shares of Common
Stock in excess of the Shares, the "Excess Shares"), then the Corporation will
use its best efforts to provide to EquiServe, as transfer agent for the
Corporation (the "Transfer Agent") the documents reasonably needed by the
Transfer Agent, and to otherwise cooperate with the Seller and the Transfer
Agent, in order for the Transfer Agent to issue certificate(s) representing the
Excess Shares to Seller, and to issue certificate(s) representing the Shares to
the Corporation, as soon after Closing as practicable.
5. COVENANTS OF THE SELLER. Seller covenants to the Corporation
that, except as otherwise consented to in writing by the Corporation, from and
after the date of this Agreement, Seller will use his best efforts to cause all
of the conditions described in Sections 6.1 and 6.2 of this Agreement to be
satisfied. In the event the Certificates include Excess Shares, Seller will use
his best efforts to provide to the Transfer Agent the documents reasonably
needed by the Transfer Agent, and to otherwise cooperate with the Corporation
and the Transfer Agent, in order for the Transfer Agent to issue certificate(s)
representing the Shares to the Corporation,
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and to issue certificate(s) representing the Excess Shares to Seller, as soon
after Closing as practicable.
6. CONDITIONS TO THE CORPORATION'S OBLIGATIONS. Unless waived by
the Corporation in writing in its sole discretion, all obligations of the
Corporation under this Agreement are subject to the fulfillment, prior to or at
the Closing, of each of the following conditions:
6.1 Representations, Warranties and Covenants of the
Seller. The representations and warranties of the Seller contained in Section 2
of this Agreement shall be true and correct at and as of the Closing with the
same effect as though such representations and warranties had been made at and
as of such time; Seller shall have performed all obligations and complied with
all covenants required by this Agreement to be performed or complied with by him
prior to the Closing.
6.2 Closing Deliveries of the Seller. Seller shall have
made the Closing deliveries required pursuant to Section 1.4.
6.3 Legal Matters. No claim, action, suit, arbitration,
investigation or other legal or administrative proceeding shall have been
brought or threatened which questions the validity or legality of the
transactions contemplated hereby. No statute, rule, regulation, executive order,
decree or order of any kind shall have been enacted, entered, promulgated or
enforced which prohibits the transactions contemplated hereby.
7. CONDITIONS TO THE SELLER'S OBLIGATIONS. Unless waived by the
Seller in writing, all obligations of the Seller under this Agreement are
subject to the fulfillment, prior to or at the Closing, of each of the following
conditions:
7.1 Representations, Warranties and Covenants. The
representations and warranties of the Corporation contained in Section 3 of this
Agreement shall be true and correct at and as of the Closing with the same
effect as though such representations and warranties had been made at and as of
such time; the Corporation shall have performed all obligations and complied
with all covenants required by this Agreement to be performed or complied with
by it on or prior to the Closing.
7.2 Closing Deliveries of Corporation. The Corporation
shall have taken the actions required pursuant to Section 1.5.
7.3 Legal Matters. No claim, action, suit, arbitration,
investigation or other legal or administrative proceeding shall have been
brought or threatened which questions the validity or legality of the
transactions contemplated hereby. No statute, rule, regulation, executive order,
decree or order of any kind shall have been enacted, entered, promulgated or
enforced which prohibits the transactions contemplated hereby.
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8. INDEMNIFICATION.
8.1 Survival of Representations and Warranties. The
representations, warranties, covenants and agreements of the parties hereto
contained in this Agreement, shall be deemed material and shall be deemed to
have been relied upon by the parties hereto. All of the representations,
warranties, covenants, and agreements made by the parties hereto shall survive
the execution and delivery of this Agreement and the Closing hereunder until the
time on which the applicable statute of limitations has expired or indefinitely
if no statute of limitation applies. There shall be no termination of any such
representation or warranty as to which any actions, suit, claim, or counterclaim
or legal, administrative or arbitration proceeding or investigation has been
asserted prior to the termination of such survival period.
8.2 Indemnification by the Seller. Seller shall
indemnify, defend, save and hold the Corporation and any of its agents,
representatives, successors or assigns, harmless from and after the Closing
against and in respect of any and all demands, claims, allegations, assertions,
actions or causes of action, assessments, losses, damages, deficiencies,
liabilities, costs and expenses (including reasonable attorneys' fees and
expenses) (collectively, "Losses") asserted against, imposed upon, resulting to,
required to be paid by, or incurred by the Corporation, directly or indirectly,
in connection with, arising out of, which could result in, or which would not
have occurred but for:
(a) any breach by him of any representation or
warranty contained in this Agreement; or
(b) any breach or nonfulfillment of any covenant
or agreement made by him in this Agreement.
8.3 Indemnification by Corporation. The Corporation shall
indemnify, defend, save and hold Seller and any of his agents, representatives,
or heirs harmless from and after the Closing against and in respect of any and
all Losses asserted against, imposed upon, resulting to, required to be paid by,
or incurred by Seller, directly or indirectly, in connection with, arising out
of, which could result in, or which would not have occurred but for:
(a) any breach by the Corporation of any
representation or warranty contained in this Agreement; or
(b) any breach or nonfulfillment of any covenant
or agreement made by the Corporation in this Agreement.
8.4 Notice and Defense. If at any time the Corporation or
any of its agents, representatives, successors or assigns, or Seller or any of
his agents, representatives or heirs (the "Indemnified Party") believes that it
has suffered or incurred, or will suffer or incur, or shall receive notice of,
any asserted Losses claimed to give rise to indemnification under Section 8.2 or
8.3, the Indemnified Party shall promptly give notice thereof ("Claims Notice")
to the indemnifying party (the "Indemnifying Party") of any such Losses. The
Claims Notice shall set forth a brief description of the Losses, and, if known
or reasonably estimable, the amount of the
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Losses that have been or may be suffered by the Indemnified Party. The failure
of the Indemnified Party to give any notice required by this Section 8.4 shall
not affect the Indemnified Party's rights under this Section 8 or otherwise
except to the extent that such failure is prejudicial to the rights or
obligations of the Indemnifying Party.
8.5 Third Party Claims. If any Losses relate to any
action, suit, proceeding or demand instituted against the Indemnified Party by a
third party (a "Third Party Claim"), the Indemnifying Party shall be entitled to
participate in the defense of any such Third Party Claim at the sole cost and
expense of the Indemnifying Party through counsel chosen by the Indemnifying
Party and approved by the Indemnified Party (which approval shall not be
unreasonably withheld); provided, however, that any compromise or defense shall
be conducted in a manner which is reasonable and not contrary to the Indemnified
Party's interests and the Indemnified Party shall in all events have a right to
veto any compromise or defense that is unreasonable or which would jeopardize in
any material respect any assets or business of the Indemnified Party or any of
its affiliates or increase the potential liability of, or create a new liability
for, the Indemnified Party or any of its affiliates and, provided further that
the Indemnifying Party shall in all events indemnify the Indemnified Party and
its affiliates against any Losses resulting from the manner in which such Third
Party Claim is compromised or defended, including any failure to pay any such
claim while such litigation is pending. If the Indemnifying Party does so
undertake to compromise and defend a claim, the Indemnifying Party shall notify
the Indemnified Party of its intention to do so within thirty (30) days after
receipt of a Claims Notice. Even if the Indemnifying Party undertakes to
compromise or defend a claim, the Indemnified Party shall have the right to
defend, compromise or settle any Third Party Claim for which a claim for
indemnification has been made hereunder upon notice to the Indemnifying Party
and by waiving any right against the Indemnifying Party with respect to such
Third Party Claim. Each party agrees in all cases to cooperate with the
defending party and its counsel in the compromise of or defending of any such
liabilities or claims. In addition, the nondefending party shall at all times be
entitled to monitor such defense through the appointment, at its own cost and
expense, of advisory counsel of its own choosing.
9. MISCELLANEOUS.
9.1 Expenses. Except as otherwise set forth herein, each
party to this Agreement shall pay all of its expenses relating hereto, including
any income, capital gains, sales, transfer or documentary taxes, and fees and
disbursements of its counsel, accountants and financial advisors, whether or not
the transactions hereunder are consummated.
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9.2 Notices. Except as otherwise provided herein, all
notices, requests, demands and other communications under or in connection with
this Agreement shall be in writing, and shall be addressed:
(a) If to the Corporation:
Hanover Capital Mortgage Holdings, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: X. X. Xxxxx, Xx., Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) If to the Seller:
Xxxxxx X. Xxxxxxxxx
000 Xxxx Xxxxxxxx Xxxxxx
Xx. Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
All such notices, requests, demands or communications shall be mailed postage
prepaid, certified mail, return receipt requested, or by overnight delivery or
delivered personally, and shall be sufficient and effective when delivered to or
received at the address so specified. Any party may change the address at which
it is to receive notice by like written notice to the others.
9.3 Entire Agreement. This Agreement is intended by the
parties to and does constitute the entire agreement of the parties with respect
to the transactions contemplated by this Agreement. This Agreement supersedes
any and all prior understandings between the parties regarding the transactions
contemplated herein, whether written or oral, and this Agreement may be amended,
modified, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the amendment, modification,
waiver, discharge or termination is sought. Notwithstanding any of the
foregoing, nothing in this Agreement shall be deemed to modify, amend, terminate
or vitiate, in any way, the terms of the Note, and Seller shall remain obligated
by the terms of the Note until the Seller satisfies the Note pursuant to the
terms thereof.
9.4 General. The paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this
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Agreement. All references made and pronouns used herein shall be construed in
the singular or plural, and in such gender, as the sense and circumstances
require. This Agreement may be executed in two counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument. This Agreement shall be effective only upon execution by both
parties hereto. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns, but nothing
herein, express or implied, is intended to or shall confer any rights, remedies
or benefits upon any person other than the parties hereto. This Agreement may
not be assigned by any party hereto, except that the Corporation may assign this
Agreement to one or more of its subsidiaries or affiliates, provided that the
Corporation shall remain primarily liable on this Agreement, notwithstanding any
assignment. This Agreement shall be construed in accordance with and governed by
the laws of the State of Maryland, without giving effect to the principles of
conflicts of law thereof.
9.5 Consultation with Attorney. Seller acknowledges that
he has consulted with independent legal counsel of his choosing regarding the
terms of this Agreement before signing it and that in executing this Agreement
he has not relied upon any representations or statements by the Corporation or
any of its shareholders, agents, representatives, employees, or attorneys
regarding the subject matter, basis or effect of this Agreement.
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IN WITNESS WHEREOF, the Seller and the Corporation have caused this Agreement to
be duly executed as of the date first above written.
WITNESS/ATTEST: THE SELLER:
/s/ C. Fencke /s/ Xxxxxx X. Xxxxxxxxx [SEAL]
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Xxxxxx X. Xxxxxxxxx
CORPORATION:
HANOVER CAPITAL MORTGAGE HOLDINGS, INC.
/s/ Xxxx X. Xxxxxxx By: /s/ J. Xxxxx Xxxx [SEAL]
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Name: J. Xxxxx Xxxx
Title: Chief Financial Officer
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EXHIBIT A
FORM OF STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and
transfer unto Hanover Capital Mortgage Holdings, Inc., a Maryland corporation
(the "Corporation"), 10,000 shares of common stock, $0.01 par value per share,
of the Corporation, standing in the name of the undersigned on the books of the
Corporation, represented by Stock Certificate Number [___], and the undersigned
does hereby irrevocably constitute and appoint ________________________________,
as secretary to transfer the said stock on the books of the Corporation with
full power of substitution.
Dated: 3/28/03
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/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
State of Illinois )
) ss:
County of Xxxx )
Subscribed and sworn to before me, the undersigned, a Notary Public of
the State of Illinois, in and for the County of Xxxx, this 28th day of March
2003, by Xxxxxx X. Xxxxxxxxx, known to me (or satisfactorily proven) to be the
person named in the foregoing Stock Power, who made oath that the matters and
facts stated therein are true and correct to the best of his or her knowledge,
information, and belief.
/s/ Xxxxx X. Xxxxxx
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Notary Public
My Commission expires 02/03/2007
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