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EXHIBIT 10.28
STOCK PURCHASE AND LOAN AGREEMENT
BY AND BETWEEN
THE MIIX GROUP INCORPORATED
AND
XXXXXX X. XXXXXX, XX.
DATED: DECEMBER 15, 1999
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STOCK PURCHASE AND LOAN AGREEMENT
THIS STOCK PURCHASE AND LOAN AGREEMENT (the "Agreement"), made as of
this 15th day of December, 1999, by and between THE MIIX GROUP, INCORPORATED, a
Delaware corporation (the "Company"), and XXXXXX X. XXXXXX, XX. (the
"Executive").
BACKGROUND
WHEREAS, the Company desires to ensure that key members of its
senior management share with its stockholders the common goal of achieving
long-term growth in the market value of the Company which equals or exceeds the
growth of competitive companies in the insurance industry; and
WHEREAS, to achieve this objective, the Company requires that the
Executive purchase that number of shares of common stock of the Company (the
"Purchased Shares") having an aggregate purchase price of $50,000, rounded to
the nearest whole share, based on the average daily trading price per share of
the common stock on December 15, 1999 (the "Purchase Price"); and
WHEREAS, the Company intends to make a loan to the Executive in an
amount equal to the Purchase Price, and Executive intends to secure such loan
with a pledge of the Purchased Shares;
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
TERMS
1. Loan.
1.1. Loan. Subject to the terms and conditions hereof, the Company
shall lend to the Executive the aggregate principal amount of $50,000 (the
"Loan").
1.2. Purpose of Loan. The Executive shall use the proceeds of the
Loan solely for the purpose of purchasing the Purchased Shares pursuant to
Section 2 hereof.
1.3. Promissory Note. The obligation of the Executive to repay the
Loan shall be evidenced by the Executive's promissory note, substantially in the
form attached
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hereto as Exhibit A (the "Note"), in the original principal amount of $50,000.
The Note shall be dated December 15, 1999, the date of the purchase of the
Purchased Shares, shall mature and become due and payable on the Maturity Date
(hereinafter defined) and shall bear interest as set forth in Section 1.4(b).
1.4. Principal Payments; Maturity; Interest Rate.
(1) Principal Payments. Unless sooner accelerated as provided
herein, the principal amount of the Loan shall be due and payable in full on
December 15, 2004, the fifth anniversary date of the Note (the "Maturity Date").
Notwithstanding the collateral pledged to the Company pursuant to Section 3
hereof, Executive shall have personal liability for the full payment of the
Loan, together with accrued interest thereon.
(2) Interest Rate and Payment. The principal amount of the
Loan shall bear interest from the date of the Note until the Maturity Date
(unless otherwise accelerated as provided herein) at a rate per annum equal to
the minimum interest rate necessary to avoid income imputation under the
Internal Revenue Code as of the date of the Note. Interest shall be due and
payable on the Maturity Date.
1.5. Voluntary Prepayments. The Executive shall have the right to
prepay the Loan in whole or in part from time to time, without penalty or
premium.
1.6. Mandatory Prepayments. In the event that Executive sells any of
the Purchased Shares during the term of the Loan, the Executive shall, within
five (5) days of such sale, make a mandatory prepayment of the Loan in an amount
equal to the product of the number of Purchased Shares sold and the Purchase
Price. In the event that such sale is made on an installment basis, Executive
shall make a mandatory prepayment as and when proceeds of the sale are received
by the Executive.
1.7. Events of Default. Each of the following shall constitute an
event of default (each, an "Event of Default") under this Agreement:
(1) the failure of the Executive to pay when due any principal
or interest or other amount due hereunder or under the Note.
(2) any warranty or representation made by the Executive in
this Agreement shall prove to have been false or incorrect on the date as of
which made.
(3) the termination of Executive's employment with the Company
for any reason.
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(4) the occurrence of any of the following with respect to the
Executive:
(1) he shall apply for or consent to the appointment
of a receiver, custodian, trustee or liquidator of
all or a substantial part of his property;
(2) he shall make a general assignment for the benefit
of his creditors;
(3) he shall commence a voluntary case under the
Federal Bankruptcy Code; or
(4) he shall file a petition to take advantage of any
other law providing for the relief of debtors.
1.8. Remedies Upon Default. Upon the occurrence and during the
continuance of an Event of Default, all indebtedness, obligations and
liabilities of the Executive arising hereunder shall, at the option of the
Company, become immediately due and payable. The Company may, in addition to all
other remedies available to it, exercise a right of setoff against the Pledged
Collateral (as defined below).
1.9. Extension of Payment Date. Notwithstanding anything in Section
1.7(c) hereof to the contrary, in the event that Executive's employment with the
Company is terminated and such termination arises from the death, disability or
retirement of the Executive or is without Cause, then, at the option of the
Executive and upon delivery of written notice to that effect, the obligation to
repay the Loan in full, together with accrued interest thereon, may be extended
to the second anniversary date of such termination or retirement or the Maturity
Date, whichever is earlier. For purposes of this Section, the term "Cause" shall
have the meaning assigned to it in that certain Employment Agreement dated of
even date herewith among the Executive, the Company and New Jersey State Medical
Underwriters, Inc.
2. Purchase and Sale of Common Stock.
2.1. Sale and Purchase. The Company shall issue and sell to the
Executive, subject to and in reliance upon the representations, warranties,
terms and conditions of this Agreement, and Executive shall purchase, the
Purchased Shares for the Purchase Price.
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2.2. Payment of Purchase Price. Upon payment in full of the Purchase
Price, receipt of which shall be deemed acknowledged by the Company on December
15, 1999, the Company shall deliver to Executive a stock certificate, registered
in the name of Executive, representing the Purchased Shares.
2.3. Lock-up. The Executive agrees that, for a one (1) year period
following the date of the issuance of the Purchased Shares, the Executive shall
not sell, transfer or otherwise dispose of any of the Purchased Shares without
the written consent of the Company.
3. Collateral.
3.1. Pledged Collateral. As security for the performance of this
Agreement and for the prompt and complete payment of the Loan, together with
accrued interest thereon, when due (whether at the Maturity Date, by
acceleration or otherwise), the Executive hereby grants to the Company the
following property (collectively, the "Pledged Collateral"):
(1) the Purchased Shares and the certificates or instruments
representing such stock and all dividends, interest, cash, instruments, and
other property from time to time received, receivable, or otherwise distributed
or distributable in respect of or in exchange for any or all of such stock;
(2) all proceeds of the foregoing.
3.2. Delivery of Purchased Shares. Promptly after his receipt of
stock certificates representing the Purchased Shares, the Executive shall
deliver to the Company such stock certificates, together with stock powers duly
executed in blank by the Executive.
3.3. Voting Rights, Dividends, Etc.
(1) The Executive shall be entitled to exercise any and all of
Executive's voting and other consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose not inconsistent with the terms
of this Agreement; and notwithstanding Section 3.1 but subject to Section 3.3(c)
shall be entitled to receive and retain free and clear of the security interest
of Company hereunder, any and all of such dividends, interest and other
distributions permitted to all other holders of the Company's Common Stock.
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(2) The Company shall execute and deliver (or cause to be
executed and delivered) to the Executive all such proxies and other instruments
as Executive may reasonably request for the purpose of enabling the Executive to
exercise the voting and other rights that he is entitled to exercise pursuant to
paragraph (a) above and to receive the dividends, interest and other
distributions that he is authorized to receive and retain pursuant to paragraph
(a) above.
(3) Upon the occurrence and during the continuance of an Event
of Default (i) all rights of the Executive to exercise the voting and other
consensual rights that he would otherwise be entitled to exercise pursuant to
Section 3.3(a) hereof and to receive the dividends, interest and other
distributions that he would otherwise be authorized to receive and retain
pursuant to Section 3.3(a) hereof shall cease, and all such rights shall
thereupon become vested in Company which shall thereupon have the sole right to
exercise such voting and other consensual rights and to receive such dividends,
interest, and other distributions; and all dividends, interest and other
distributions which are received by Executive contrary to the provisions of this
paragraph shall be received in trust for the benefit of Company, shall be
segregated from other funds of Executive, and shall be forthwith paid over to
Company in the same form as so received (with any necessary endorsement).
3.4. Further Assurances. Executive agrees that at any time and from
time to time, at the expense of Executive, Executive will promptly execute and
deliver all further instruments and documents, and take all further action that
may be necessary, or that Company may reasonably request, in order to perfect
and protect any security interest granted or purported to be granted hereby or
to enable Company to exercise and enforce the rights and remedies hereunder with
respect to any of the Pledged Collateral.
3.5. Transfers and Liens. Executive will not (i) grant any option
with respect to any of the Pledged Collateral, or (ii) create or permit to exist
any lien, security interest, or other charge or encumbrance upon or with respect
to any of the Pledged Collateral.
3.6. Company Appointed Attorney-in-Fact. Executive hereby appoints
Company as Executive's attorney-in-fact, with full authority in the place and
stead of Executive and in the name of Executive, from time to time in Company's
discretion to take any action and to execute any instrument which Company may
deem necessary or advisable to accomplish the purposes of this Agreement,
including, without limitation, upon the occurrence and during the continuance of
an Event of Default to receive, endorse, and collect all instruments made
payable to Executive representing any dividend, interest, or other distribution
in respect of the Pledged Collateral or any part thereof and to give full
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discharge for the same. Company shall not, in its capacity as such
attorney-in-fact, be liable for any acts or omissions, nor for any error of
judgment or mistake of fact or law, but only for bad faith, willful misconduct
or gross negligence. This power, being coupled with an interest, is irrevocable
until all obligations under the Note have been fully satisfied.
3.7. Company's Duties. The powers conferred on the Company hereunder
are solely to protect its interests in the Pledged Collateral and shall not
impose any duty to exercise any such powers. Except for the safe custody of any
Pledged Collateral in its possession and the accounting for moneys actually
received by it hereunder, Company shall not have any duty as to any Pledged
Collateral or as to the taking of any necessary steps to preserve rights against
any parties or any other rights pertaining to any Pledged Collateral. Without
limiting the generality of the foregoing, Company shall not have any
responsibility for ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders, or other matters relating to any
Pledged Collateral, whether or not Company has or is deemed to have knowledge of
such matters.
3.8. Prepayments. In the event of any prepayment, whether voluntary
or mandatory, the Company shall release from the Pledged Collateral, and deliver
to the Executive, stock certificates evidencing that number of Purchased Shares
which have an aggregate fair market value equal to the amount of the prepayment.
In no event, however, shall the remaining Pledged Collateral have a fair market
value less than the unpaid principal balance of the Loan and accrued interest
thereon.
3.9. Transfer of Title. After the occurrence and during the
continuance of an Event of Default, Company shall have the right, at any time in
its discretion without further notice to Executive, to transfer to or to
register in the name of Company or its nominees, any or all of the Pledged
Collateral. In addition, upon the occurrence and during the continuance of an
Event of Default, Company shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
3.10. Termination. The provisions of this Section 3 shall terminate
upon payment in full of the Loan, together with accrued interest thereon, at
which time the Company shall promptly deliver to Executive stock certificates
evidencing the Purchased Shares remaining in its possession.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Executive as follows:
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4.1. Organization. The Company (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, and (b) has all requisite corporate power and authority to execute,
deliver and perform this Agreement.
4.2. Authorization of Agreement.
(1) The execution, delivery and performance by the Company of
this Agreement has been duly authorized by all requisite corporate action by the
Company, and this Agreement constitutes the valid and binding obligation of the
Company.
(2) The issuance, sale and delivery of the Purchased Shares
have been duly authorized by all requisite corporate action of the Company, and
when issued, sold and delivered in accordance with this Agreement, the Purchased
Shares will be validly issued and outstanding, fully paid and non-assessable,
and not subject to preemptive or any other similar rights of the stockholders of
the Company or others.
4.3. SEC Registration Statement. The Company has made available to
the Executive, in the form filed with the SEC and as amended prior to the date
hereof, the Form S-1 Registration Statement (Registration No. 333-59371) (the
"Registration Statement"). The Registration Statement complies as to form in all
material respects with the requirements of the Securities Act of 1933 (the
"Securities Act") and the rules and regulations thereunder, and did not, on the
date when it was declared effective, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements made therein in light of the circumstances under
which they were made not misleading.
5. Representations of the Executive. The Executive represents, warrants
and covenants to the Company that:
(1) Executive has the full power and authority and has full
legal right to execute and deliver this Agreement and the Note, to perform,
observe and comply with all of his agreements and obligations under each of this
Agreement and the Note and to obtain the proceeds of the Loan contemplated by
this Agreement;
(2) Executive has duly executed and delivered this Agreement
and this Agreement constitutes the valid and binding obligation of Executive,
enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy, moratorium or similar laws affecting creditors' rights or
by general principles of equity;
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(3) Executive is acquiring the Purchased Shares for his own
account, for investment and not with a view to the distribution thereof within
the meaning of the Securities Act;
(4) Executive understands that the Purchased Shares have not
been and shall not be registered under the Securities Act, by reason of their
issuance by the Company in a transaction exempt from the registration
requirements of the Securities Act; and any subsequent disposition thereof must
be registered under the Securities Act or must be exempt from registration;
(5) Executive understands that: (i) the exemption from
registration afforded by Rule 144 (the provisions of which are known to him)
promulgated under the Securities Act depends on the satisfaction of various
conditions, and that, if and when applicable, Rule 144 may only afford the basis
for sales in limited amounts; and (ii) the Company is under no obligation to
register the Purchased Shares on behalf of the Executive or to assist the
Executive in complying with any exemption from registration;
(6) he is an accredited investor as defined in Rule 501(a)
promulgated under the Securities Act.
6. Certain Restrictions.
6.1. Legend. The certificate for the Purchased Shares shall
bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED OR ANY APPLICABLE STATE SECURITIES LAW. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION EXCEPT UPON DELIVERY TO THE COMPANY OF AN OPINION OF
COUNSEL, WHICH OPINION SHALL BE REASONABLY SATISFACTORY TO THE
COMPANY, STATING THAT AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO
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THE CONDITIONS SET FORTH IN THAT CERTAIN STOCK PURCHASE AND LOAN
AGREEMENT BY AND BETWEEN THE COMPANY AND XXXXXX X. XXXXXX, XX.
6.2. Opinion. Company agrees to reimburse Executive for the
cost of obtaining any opinion required by the above legend.
7. Miscellaneous.
7.1. Amendments, Indulgences, Etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by Executive herefrom
shall in any event be effective unless the same shall be in writing and signed
by Company, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No failure or
delay on the part of Company in the exercise of any right, power, or remedy
under this Agreement shall constitute a waiver thereof, or prevent the exercise
thereof in that or any other instance.
7.2. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing and, if to Executive, mailed or
telefaxed or delivered to them at the addresses therefor shown at the time in
Company's records, and, if to Company, mailed or delivered to it at Xxx Xxxxxxxx
Xxxx, Xxxxxxxxxxxxx, Xxx Xxxxxx 00000.
7.3. Continuing Security Interest. This Agreement creates a
continuing security interest in the Pledged Collateral and shall be binding upon
Executive, and his heirs, executors, administrators, successors, and assigns and
inure to the benefit of Company and its successors, transferees and assigns. The
execution and delivery of this Agreement shall in no manner impair or affect any
other security (by endorsement or otherwise) for the payment or performance of
the Note and no security taken hereafter as security for payment or performance
of the Note shall impair in any manner or affect this Agreement or the security
interest granted hereby, all such present and future additional security to be
considered as cumulative security. Any of the Pledged Collateral may be released
from this Agreement without altering, varying, or diminishing in any way this
Agreement or the security interest granted hereby as to the Pledged Collateral
not expressly released, and this Agreement and such security interest shall
continue in full force and effect as to all of the Pledged Collateral not
expressly released.
7.4. Governing Law, Consent to Jurisdiction, Etc. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New Jersey
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applicable to contracts made and wholly performed within New Jersey. Executive
consents to the jurisdiction of the courts of New Jersey and of the courts of
the United States sitting in New Jersey in any litigation concerning this
Agreement, and Executive waives any objection based on venue or inconvenient
forum. Unless otherwise defined herein, terms defined in the Uniform Commercial
Code as in effect on the date hereof are used herein as therein defined as of
such date.
7.5. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
7.6. Severability. The provisions of this Agreement are independent
of and separable from each other, and no such provision, shall be altered or
rendered invalid or unenforceable by virtue of the fact that for any reason any
other such provision may be invalid or unenforceable in whole or in part.
7.7. Headings. The section headings of this Agreement are for
convenience only, form no part of this Agreement and shall not affect its
interpretation.
7.8. Entire Agreement. This Agreement sets forth all of the
promises, covenants, agreements, conditions and undertakings between the parties
hereto with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have executed this Agreement as of the date first above written.
THE MIIX GROUP, INCORPORATED
By:_______________________________
__________________________________
XXXXXX X. XXXXXX, XX.
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Exhibit A
PROMISSORY NOTE
Lawrenceville, New Jersey
$50,000 December 15, 1999
The Undersigned, for value received and intending to be legally
bound, promises to pay to the order of THE MIIX GROUP, INCORPORATED (the
"Lender"), as and when due as set forth in the Stock Purchase and Loan Agreement
dated the date hereof between the Undersigned and Lender (as such agreement may
be amended, restated, modified or supplemented from time to time, the "Loan
Agreement"), the principal sum of $50,000. Capitalized terms used herein and not
otherwise defined shall have the meanings given such terms in the Loan
Agreement.
The undersigned further promises to pay to the order of Lender
interest on the unpaid principal amount of the Loan from the date hereof until
such amounts have been repaid in full. Interest shall be at the annual rate of
6.02 percent (6.02%) and shall be due and payable on the Maturity Date (unless
accelerated sooner under the terms of the Loan Agreement).
This is the Note mentioned in, and is entitled to the benefits of,
the Loan Agreement.
This Note may be prepaid at any time, in whole or in part, without
premium or penalty. All payments in respect of this Note shall be applied first
to accrued interest and then to principal outstanding hereunder. Mandatory
prepayments shall be required from time to time pursuant to Section 1.6 of the
Loan Agreement.
This Note shall be deemed to be a contract made under the laws of
the State of New Jersey and shall be construed in accordance with the laws of
said state without giving effect to principles of conflicts of law.
This Note shall be binding upon the undersigned and his heirs,
executors, administrators, transferees and assigns and the terms hereof shall
inure to the benefit of lender and its successors and assigns, including
subsequent holders hereof.
The undersigned hereby waives presentment, demand for payment,
notice of dishonor or acceleration, protest and notice of protest, and any and
all other notices or demands in connection with the delivery, acceptance,
performance, default or enforcement of this Note except any notice expressly
required in the Loan Agreement.
IN WITNESS WHEREOF, the undersigned executes this Note on the day
and year first above written.
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XXXXXX X. XXXXXX, XX.
