EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made as of the 2nd day
of May, 2003, between XXXXX CAPITAL PARTNERS, LLC, a Florida limited liability
company ("Purchaser"), and INTREPID CAPITAL CORPORATION, a Delaware corporation
("Seller").
RECITALS
1. All of the issued and outstanding capital stock of Xxxxx X. Xxxxx &
Co., a Florida corporation (the "Company"), is owned by Seller.
2. Purchaser desires to purchase from Seller, and Seller desires to
sell to Purchaser, all of the issued and outstanding capital stock of the
Company on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
set forth herein, and other good and valuable considerations, the receipt and
sufficiency of which hereby are acknowledged, the parties agree as follows:
AGREEMENT
1. Purchase and Sale of Shares. At the Closing (as hereinafter
defined), Purchaser agrees to purchase from Seller, and Seller agrees to sell,
assign, transfer and deliver to Purchaser, all of the total issued and
outstanding shares of the capital stock of the Company and Intrepid Loan
Advisors, Inc., free and clear of all liens, charges, assessments and
encumbrances whatsoever. The shares to be purchased hereunder by Purchaser from
Seller are sometimes collectively referred to herein as the "Shares."
2. Purchase Price; Non-Refundable Down Payment. The purchase price
("Purchase Price") to be paid by Purchaser for all of the Shares shall be an
amount equal to $300,000.00. Simultaneously with the execution and delivery of
this Agreement, Purchaser has delivered to Seller a non-refundable down payment
in the amount of $50,000.00 (the "Down Payment") by delivery of a cashier's or
certified bank check made payable to Xxxxxx & Xxxxxx LLP. The Purchaser agrees
to file a notice with the NASD regarding this Agreement within two business days
of this Agreement and to perform and complete its due diligence within five
business days of this Agreement. The Down Payment will be refundable only if (a)
the Purchaser identifies, within its five business day due diligence period, a
material deficiency that cannot be satisfactorily cured, in which instance, it
may terminate this Agreement or (b) the transaction contemplated hereby is not
approved by the NASD.
3. Closing. The consummation of the transactions contemplated hereby
shall take place at a closing (the "Closing") to be held at the offices of
McGuireWoods LLP, 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx. At
the Closing, (a) Seller shall sell, convey, transfer and deliver to Purchaser
certificates representing the Shares, (b) Seller shall retain the
Down Payment, and (c) Purchaser shall pay the remaining unpaid balance of the
Purchase Price to Seller by delivery of a cashier's or certified bank check made
payable to the order of Seller. The certificates representing the Shares shall
be duly endorsed for transfer and accompanied by appropriate stock powers duly
executed in favor of Purchaser. The Closing shall take place as soon as
reasonably practicable upon receipt of the approval of the NASD of the
transaction contemplated hereby on or before May 31, 2003. If NASD approval is
the sole cause for delay beyond May 31, 2003, the Closing shall take place two
business days after NASD approval is received.
4. Representations and Warranties of Seller. Seller represents and
warrants to Purchaser as follows:
(a) Organization of the Company. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Florida. The Company has full corporate power to own its properties and assets
and to carry on its business as now conducted. There are no other stockholders
of the Company (or any other person or entity with the right or option to
acquire any shares of the Company's capital stock) other than Seller.
(b) Authorization; No Breach. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
by Seller have been duly authorized. The execution, delivery and performance by
Seller of this Agreement does not and will not constitute a default under,
result in the creation of any lien, charge or encumbrance upon the assets of the
Company, give any third party the right to accelerate any obligation of the
Company, or require any authorization, consent, approval, exemption or other
action by any court, other governmental body or other third party other than the
NASD.
(c) Capitalization. The entire authorized capital stock of the Company
consists of 15,000 shares of voting common stock, $.10 par value per share, of
which 100 shares are issued and outstanding. All of the Shares have been duly
authorized, are validly issued, fully paid, and nonassessable, and are held of
record by Seller. Except for this Agreement, there is no existing option,
warrant, call, right, commitment or other agreement to which Seller or the
Company is a party requiring the issuance, sale or transfer of any shares of the
capital stock or other securities of the Company. The delivery to Purchaser of
the Shares pursuant to this Agreement shall transfer to Purchaser valid title
thereto, free and clear of all liens, encumbrances, security interests,
restrictions and claims whatsoever.
(d) Litigation. There is no suit, action, proceeding, investigation,
claim or order pending before any court against the Company or to which the
Company is otherwise a party, and no such action has been threatened to the
knowledge of Seller, other than the Company's lawsuit against Synovus Financial
Corp. The Company is not subject to any judgement, order or decree of any court
or regulatory authority.
(e) Financial Statements. The financial statements of the Company
furnished to Purchaser (collectively, the "Financial Statements"), are true and
correct in all material respects, have been prepared in accordance with the
ordinary practices of the Company consistent with past practice, and fairly
present the financial condition of the Company and the results of operation as
of the date thereof and reflect the proper accrual of all expenses.
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(f) Taxes. All federal, state, or local tax returns required to be
filed by the Company have been accurately prepared and duly and timely filed,
and the Company has paid or adequately provided for any and all taxes shown by
such returns to be due and payable, including all interest and penalties
thereon.
(g) Title to Assets; Encumbrances. Schedule 4(g) sets forth a complete
and detailed list of all of the assets on the books of the Company, which assets
are owned by the Company free and clear of all liens, encumbrances or security
interests except as disclosed on Schedule 4(g).
(h) No Undisclosed Liabilities. All known liabilities of the Company
are fully disclosed on the books of the Company.
(i) Employees. Schedule 4(i) contains a list of all employees of Seller
who are employed principally in the operation of the Company's business. Each
individual listed on Schedule 4(i) is employed on an at-will basis and no
contract of employment (whether written or verbal) exists between the Company
and any such employees.
(j) Compliance With Laws. The Company is, and at all times has been, in
full compliance with, all laws and regulations affecting its business,
including, without limitation, state and federal laws and regulations regulating
the sales of securities and the conduct of a broker dealer. Neither Seller nor
the Company has any basis to expect, nor has any of them received any actual or,
to its knowledge, threatened order, notice, or other communication from any
governmental authority of any actual or potential violation or failure to comply
with any law or regulation.
(k) Disclosure. No representation or warranty of Seller in this
Agreement and no statement in the exhibits or schedules hereto omits to state a
material fact necessary to make the statements herein or therein, in light of
the circumstances in which they were made, not misleading.
The foregoing representations and warranties shall survive the closing of the
transactions contemplated by this Agreement for a period of twelve (12) months
and shall be true and correct at the Closing as well as on the date hereof.
5. Representations and Warranties of Purchaser.
(a) Organization of the Company. The Purchaser is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Florida.
(b) Authorization; No Breach; The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized. The execution, delivery and
performance by Purchaser of this Agreement does
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not and will not constitute a default under, result in the creation of any lien,
charge or encumbrance upon any assets of Purchaser or require any authorization,
consent, approval, exemption or other action by any other court, other
governmental body or other third party other than the NASD.
6. Seller's Indemnity Obligations. Seller shall indemnify and hold
Purchaser and the Company harmless from and against any loss, liability, claim,
damage, expense (including reasonable attorney's fees and costs) or diminution
of value, whether or not involving a third party claim, arising, directly or
indirectly, from or in connection with the business activities of the former
registered representatives of Capital Research Corporation performed on behalf
of the Company. Seller shall have no liability under this Section 6 unless and
until Seller receives notice asserting a claim for indemnification with respect
thereto on or before the first anniversary of the date of the Closing.
Notwithstanding anything to the contrary, in no event shall the aggregate
liability of Seller hereunder exceed the Purchase Price.
7. Resignations. At Closing, Seller shall cause its employees or
affiliates to resign from any and all positions with the Company.
8. Employees. Seller shall use its reasonable efforts to cause all
employees of Seller who are employed principally in the operation of the
Company's business to make available their employment services to the Company
after the Closing, and the Company shall hire all such employees effective as of
the Closing. From and after the Closing, the Company and Purchaser shall be
solely responsible for any and all liabilities in respect of such employees and
their beneficiaries, including, without limitation, all accrued but unpaid
salaries, wages, bonuses, incentive compensation, vacation or sick pay or other
compensation or payroll items (including, without limitation, commissions, but
excluding any deferred compensation owed to Xxxxxx X. Xxxxxx, for which Seller
shall remain solely responsible); provided, however, that Seller shall be
responsible only for such employees' vested benefits under Seller's 401(k) plan
as of the Closing.
9. Termination. As of the Closing, all contracts, agreements,
understandings and arrangements between Seller and the Company other than this
Agreement shall terminate with no further obligation or liability except as
provided hereunder and on Schedule 9.
10. Assumption of Leases. Immediately upon execution of this Agreement,
Purchaser or the Company will assume the obligations for the existing office and
parking lease obligations of the Company in Jacksonville, Florida. Upon Closing,
Purchaser or the Company will assume the obligations for the existing office and
parking lease obligations of the Company in Charlotte, North Carolina. Purchaser
will indemnify and hold Seller harmless from and against any liability with
respect thereto arising after the Closing. Purchaser will use its reasonable
best efforts to obtain releases in favor of Seller but Closing is not
conditioned upon the obtaining of any releases.
11. Correspondent Services Agreement. At the Closing, Purchaser or the
Company will assume the existing correspondent Services Agreement with
NFS/Fidelity, including the funding of the required security deposit of
$100,000.
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12. Conduct of Business Pending the Closing.
(a) From the date of this Agreement to the Closing, the
parties agree that the business of the Company shall be conducted in the
ordinary course and that no transactions outside of the ordinary course shall
occur without the approval of the parties hereto.
(b) Seller agrees that from the date of this Agreement to the
Closing, the cash balances of the Company will be used to pay accounts payable,
accrued expenses and other expenses of the Company incurred in the ordinary
course of its business. The parties hereto agree that the Purchase Price shall
be reduced on a dollar-for-dollar basis by the amount, if any, by which the cash
balances of the Company on the date of the Closing are less than the cash
balances of the Company as of March 31, 2003, as reflected on the Company's and
Seller's regularly-prepared internal balance sheet as of such date, as a result
of payments by the Company outside of the ordinary course of its business.
(c) Purchaser shall have the right to examine Seller's books
and records relating to the Company one time during Seller's normal business
hours upon 24 hours prior notice to verify the accuracy and completeness of the
March 31, 2003 balance sheet and all subsequent financial information of the
Company, including, without limitation, expenses and commission paid through the
Closing.
(d) Immediately prior to Closing, all representatives of
Seller shall be deleted as authorized signatories on accounts of the Company and
shall be replaced by representatives of Purchaser.
13. Accounting and Compliance Services. Seller agrees that, during
Seller's normal business hours, it will provide up to two hours per day of
accounting and self-regulatory organization compliance services to the Company
for up to thirty (30) consecutive days after the date of the Closing on an as
needed basis at no charge to Purchaser. If Purchaser requests such services from
Seller after the expiration of such thirty-day period, Seller will provide such
services to Purchaser for a fee equal to $10,000 per month, payable in advance;
provided, however, that Purchaser shall be required to purchase a minimum of
three months of additional services from Seller and shall pay Seller its $30,000
fee for such three-month period in advance.
14. NASD Approval. The parties recognize and acknowledge that the
transactions contemplated by this Agreement require the approval of the NASD.
The parties will, at Purchaser's expense, cooperate in filing such applications
as may be necessary or beneficial and will take such actions as may be necessary
or beneficial in order to expedite the approval by the NASD.
15. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be made by hand delivery, fax, or by
nationally recognized overnight courier service. Notice shall be delivered to
the parties at the following addresses or to such other address as the parties
may specify. Notices shall be deemed given when received.
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Seller: 0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Purchaser: 00 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
16. Confidentiality. Seller, the Company and Purchaser will hold and
treat as confidential all information concerning Seller, the Company, and
Purchaser and will not disclose such information to any other person or entity
or use any such information for Seller's, the Company's or Purchaser's own
benefit. Seller shall make no announcement or press release with respect to the
transactions contemplated by this Agreement without the consent of Purchaser,
except that Seller may make such public disclosure, if any, as may be reasonably
required to comply with the requirements of federal and state securities laws,
rules and regulations. Seller shall allow Purchaser to review such required
disclosure prior to its dissemination.
17. Jurisdiction; Service of Process. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement must be brought in a court of competent jurisdiction located in Xxxxx
County, Florida.
18. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the State of Florida.
19. Amendment and Waivers. This Agreement may be amended, and any
provision of this Agreement may be waived, only by a written instrument executed
by all parties.
20. Entire Agreement. This Agreement, including all exhibits and
schedules attached hereto, sets forth the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes any prior negotiations, agreements, understandings or arrangements
between the parties hereto with respect to the subject matter hereof.
21. Successors and Assigns. This Agreement may not be assigned without
the consent of the other party. This Agreement shall be binding upon and inure
to the benefit of, and be enforceable against, the parties hereto and their
respective successors and permitted assigns.
22. Expenses. Each party agrees to bear its own expenses incurred in
connection with the negotiation and execution of this Agreement.
23. Further Assurances. Each party agrees to execute and deliver such
other documents or agreements and to take such other action as may be reasonably
necessary or
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desirable for the implementation of this Agreement and the consummation of the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective duly authorized officers or
representatives as of the date first above written.
XXXXX CAPITAL PARTNERS, LLC
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
-----------------------------------------
Title: Chairman of the Board
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INTREPID CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Title: President
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