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EXHIBIT 99.(a)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of December 1,
1995, is by and between Xxxxxxxx Group, Inc. ("Seller"), and Xxxx Securities
Corp. ("Purchaser").
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to
sell to Purchaser, 4,456,820 shares of the issued and outstanding common stock
of I.C.H. Corporation, a Delaware corporation ("ICH"), upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
Certain Definitions
As used in this Agreement the following terms shall have the following
respective meanings:
Section 1.1. "Closing" shall mean the consummation of the transactions
contemplated by Section 2.1 of this Agreement.
Section 1.2. "Shares" shall mean 4,456,820 shares of the issued and
outstanding shares of common stock of ICH.
ARTICLE II.
Sale of Stock; Closing
Section 2.1. Purchase and Sale. On the basis of the representations,
warranties, covenants and agreements and subject to the satisfaction or waiver
of the conditions set forth herein, at the Closing, Seller will sell the Shares
to Purchaser and Purchaser will purchase the Shares from Seller. At the
Closing, Purchaser will wire transfer, in immediately available funds, to the
account specified by Seller, $2,500.00 (the "Purchase Price") in United States
dollars. At the Closing, Seller shall cause its nominee and affiliate,
Xxxxxxxx Inc., the record holder of the
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Shares, to deliver to Purchaser ICH Stock Certificate No. LB134066 representing
the Shares, accompanied by a stock power duly executed in blank and shall take
such steps (including, without limitation, causing its counsel to deliver any
opinion required by ICH's transfer agent) as shall be necessary to cause ICH to
enter the Purchaser or its nominee(s) upon the books of ICH as the holder of
the Shares and to issue one or more share certificates to Purchaser or its
nominee(s) representing the Shares.
Section 2.2. Time and Place of Closing. The Closing shall take place
on the Closing Date at such time and place as the parties may mutually agree
(the "Closing Date").
ARTICLE III.
Representations and Warranties of Seller
Seller hereby represents and warrants to Purchaser as follows:
Section 3.1. (a) Seller is a corporation duly incorporated and validly
existing under the laws of State of Arkansas and Seller has all requisite
corporate power and authority to own the Shares.
(b) Seller has full corporate power to execute and deliver this
Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement, the performance of Seller's obligations hereunder and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate proceedings on the part of Seller, its
Board of Directors and stockholders. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
will not violate any provision of Seller's charter or By-laws or similar
organizational instrument and do not and will not conflict with or constitute a
default under any instrument, agreement or document to which Seller is a party
or by which it is
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bound, or to the knowledge of Seller, any order of any court applicable to ICH
or Seller. This Agreement has been duly executed and delivered by Seller, and,
assuming the due execution hereof by Purchaser, this Agreement constitutes the
legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms.
(c) Seller is the lawful beneficial owner of the Shares and has
complete and unrestricted right to sell, transfer, assign and convey the Shares
to Purchaser. Upon consummation of the transaction as contemplated by this
Agreement, Seller will deliver to Purchaser good and marketable title to the
Shares free and clear of any liens, claims, charges, security interests,
options or other legal or equitable encumbrances.
(d) No filing with, approval by or consent of any governmental
authority, court, regulatory agency or other person is required in order for
Seller to consummate the transactions contemplated by this Agreement.
ARTICLE IV.
Representations and Warranties of Purchaser
Purchaser hereby represents and warrants to Seller as follows:
Section 4.1. (a) Purchaser is a corporation duly incorporated and
validly existing under the laws of the State of New York. Purchaser has full
corporate power to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement, the performance of Purchaser's
obligations hereunder and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
proceedings on the part of the Board of Directors and stockholders of
Purchaser. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not violate
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any provision of the Certificate of Incorporation or By-Laws of Purchaser and
do not and will not conflict with or constitute a default under any instrument,
agreement or document to which Purchaser is a party or by which it is bound.
This Agreement has been duly executed and delivered by Purchaser, and, assuming
the due execution hereof by Seller, this Agreement constitutes the legal, valid
and binding obligation of Purchaser.
(b) Purchaser acknowledges that ICH has filed bankruptcy under Chapter
11 of the U.S. Bankruptcy Code, and that Seller has made no representations and
warranties with respect to (i) the financial condition of ICH, (ii) the value,
if any, of the Shares or (iii) any possibility that the owner of the Shares
will receive a payment or distribution in connection with the bankruptcy
proceedings.
(c) Purchaser is purchasing the Shares solely for the purpose of
investment and not with a view to distribution within the meaning of the
Securities Act. Purchaser recognizes that the Shares have not been and will
not be registered under the Securities Act and further acknowledges that it has
been fully advised as to the applicable limitations upon resale of the Shares,
including the need to hold such shares indefinitely unless they are
subsequently registered under the Securities Act or unless an exemption from
such registration is available.
ARTICLE V.
Covenants of Seller and Purchaser
Section 5.1. Further Assurances. Seller and Purchaser agree that, from
time to time, whether at or after the Closing Date, each of them will execute
and deliver such further instruments of conveyance and transfer and take such
other action as may be necessary to carry out the purposes and intents of this
Agreement.
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ARTICLE VI.
Conditions of Purchaser's Obligation to Close
Purchaser's obligation to consummate the Closing is subject to the
satisfaction on or prior to the Closing Date of all of the following
conditions:
Section 6.1. Representations and Warranties of Seller. The
representations and warranties of Seller contained in this Agreement shall be
true in all material respects on and as of the Closing Date.
Section 6.2. No Injunction. At the Closing Date, there shall be no
injunction, restraining order or decree of any nature of any court or
governmental agency or body of competent jurisdiction that is in effect that
restrains or prohibits the consummation of the Stock Purchaser.
ARTICLE VII.
Conditions to Seller's Obligations to Close
Seller's obligation to consummate the Closing is subject to the
satisfaction on or prior to the Closing Date of all of the following
conditions:
Section 7.1. Representations and Warrants of Purchaser. The
representations and warranties of Purchaser contained in this Agreement shall
be true in all material respects on and as of the Closing Date.
Section 7.2. No Injunction. At the Closing Date, there shall be no
injunction, restraining order or decree of any nature of any court or
governmental agency or body of competent jurisdiction that is in effect that
restrains or prohibits the consummation of the Stock Purchase.
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ARTICLE VIII.
Termination
Section 8.1. Termination. This Agreement may be terminated at any time
prior to the Closing by the mutual consent of Seller and Purchaser.
Section 8.2. Procedure and Effect of Termination. In the event of
termination of this Agreement pursuant to Section 8.1, this Agreement shall
thereupon terminate and become void and have no effect, and the transactions
contemplated hereby shall be abandoned without further action by the parties
hereto, except that the provisions of Section 9.3 shall survive the termination
of this Agreement; provided, however, that such termination shall not relieve
any party hereto of any liability for any breach of this Agreement.
ARTICLE IX.
Miscellaneous
Section 9.1. No Broker. Each of the parties represent that no broker
or finder has been employed by either of them in connection with the
transactions contemplated hereby.
Section 9.2. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
Section 9.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to the choice of law principles thereof.
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Section 9.4. Expenses. Whether the Closing does or does not occur, all
legal and other costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such costs and expenses.
Section 9.5. Notices. All notices hereunder shall be sufficiently
given for all purposes hereunder if in writing and delivered personally or by
documented overnight delivery service or, to the extent receipt is confirmed,
telecopy, telefax or other electronic transmission service to the appropriate
address or number as set forth below. Notices to Seller shall be addressed to:
Xxxxxxxx Group, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or at such other address and to the attention of such other person as Seller
may designate by written notice to Purchaser. Notices to Purchaser shall be
addressed to:
Xxxx Securities Corp.
Xxx Xxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or at such other address and to the attention of such other person as Purchaser
may designate by written notice to Seller.
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Section 9.6. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that no party hereto will assign its
rights or delegate its obligations under this Agreement without the express
prior written consent of each other party hereto.
Section 9.7. Headings; Definitions. The section and article headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement. All
references to Sections or Articles contained herein mean Sections or Articles
of this Agreement unless otherwise stated. All capitalized terms defined
herein are equally applicable to both the singular and plural forms of such
terms.
Section 9.8. Amendment and Waivers. This Agreement may not be modified
or amended except by an instrument or instruments in writing signed by the
party against whom enforcement of any such modification or amendment is sought.
Either party hereto may, only by an instrument in writing, waive compliance by
the other party hereto with any term or provision of this Agreement on the part
of such party hereto to be performed or complied with. The waiver by any party
hereto of a breach of any term or provision of this Agreement shall not be
construed as a waiver of any subsequent breach.
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties as of the day first above written.
XXXXXXXX GROUP, INC.
By: /s/ C. Xxx Xxxx
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Name: C. Xxx Xxxx
Title: Senior Vice President
XXXX SECURITIES CORP.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: President
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