EXHIBIT 9 (c)
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SECURITY TRANSFER AGREEMENT
SECURITY TRANSFER AGREEMENT (this "Agreement"), dated as of March 8,
1996 by and among Financial Services Acquisition Corporation, a Delaware
corporation ("FSAC"), Xxxxxxx Xxxxxx, the Chairman of FSAC, Xxxxxxx Xxxxxx, the
Secretary of FSAC, Welsh, Carson, Xxxxxxxx & Xxxxx, VI, L.P., a Delaware limited
partnership ("WCAS VI"), WCAS Information Partners, L.P., a Delaware limited
partnership ("WCAS Info") and each other person set forth on the execution pages
hereof (each, together with Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, WCAS VI and WCAS
Info, a"Stockholder" and, collectively, the "Stockholders")
WHEREAS, FSAC, EBIC Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of FSAC ("Sub"), and Euro Brokers Investment
Corporation, a Delaware corporation ("EBIC"), concurrently with the execution
and delivery of this Agreement will enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), providing for, among other
things, the merger (the "Merger") of Sub with and into EBIC, as a result of
which the outstanding shares of Common Stock, par value $.001 per share ("EBIC
Common Stock"), of EBIC will be converted into the right to receive (i) Common
Stock, par value $.001 per share ("FSAC Common Stock"), of FSAC (any shares of
FSAC Common Stock so received in the Merger, hereinafter the "Merger Shares"),
(ii) Series B Redeemable Common Stock Purchase Warrants of FSAC (the "Merger
Warrants") and (iii) cash, without interest;
WHEREAS, it is contemplated that as soon as reasonably practicable
following consummation of the Merger (subject, however, to the advice of its
financial advisors), FSAC will commence an exchange offer (the "Exchange Offer")
to acquire all Redeemable Common Stock Purchase Warrants ("FSAC Warrants") of
FSAC (including the Merger Warrants and, if not theretofore exchanged, the
Bridge Warrants (as defined in the Prospectus, dated November 30, 1994, of
FSAC)) that are outstanding, on the basis of one share of FSAC Common Stock for
a number of FSAC Warrants (the "Warrant Exchange Ratio") to be mutually agreed
post-closing between FSAC and WCAS VI.
WHEREAS, certain of the shares of FSAC Common Stock held by each of
Xxxxxxx Xxxxxx and Xxxxxxx Xxxxxx are subject to the terms of that certain
Escrow Agreement, dated November 30, 1994 (the "Escrow Shares");
WHEREAS, concurrently with the execution and delivery of the Merger
Agreement and as a condition and inducement to FSAC, EBIC and Sub's willingness
to enter into the Merger Agreement, the parties have agreed to enter into this
Agreement (i) imposing certain restrictions on post-Merger dispositions by such
parties (other than FSAC) of (x) shares of FSAC Common Stock (other than the
Escrow Shares) held or acquired by them following the Effective Time (as defined
in the Merger Agreement), including, without limitation, any Merger Shares and
any shares of FSAC Common Stock obtained upon conversion of any FSAC Warrants
(including any Merger Warrants) (any such shares so held or acquired,
hereinafter the "Shares") and (y) FSAC Warrants (including any Merger Warrants)
held or acquired by them following the Effective Time (any warrants so held or
acquired, hereinafter the "Warrants") and (ii) imposing certain obligations on
the parties (other than FSAC) to tender certain of their Warrants in the
Exchange Offer, if and when made.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
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ARTICLE I
SECURITY TRANSFER RESTRICTIONS AND EXCHANGE OFFER OBLIGATION
SECTION 1.1 Restriction. Each Stockholder covenants and agrees with
each other Stockholder and FSAC not to, for the period commencing on the
Effective Time (as defined in the Merger Agreement) and ending on November 30,
1996, sell, pledge, encumber, dispose, grant a security interest in or otherwise
dispose of or transfer (collectively, "Sell", the doing thereof being a "Sale")
any Shares or Warrants owned or acquired, beneficially or of record, by such
Stockholder following the Effective Time and any such Sale or attempted Sale
shall be void. Notwithstanding the foregoing, a Stockholder who is a natural
person may Sell any of the Shares or Warrants so held (i) by means of a gift to
a member of such Stockholder's immediate family or to a trust, the beneficiary
of which is such Stockholder or a member of such Stockholder's immediate family
or (ii) by virtue of the laws of descent and distribution upon the death of such
Stockholder; provided, however, that the transferee in any such Sale (a
"Permitted Transferee") shall agree in writing to be bound by the terms and
conditions of this Agreement. During the term of this Agreement, FSAC covenants
and agrees not to transfer or recognize any transfer on its books and records by
a Stockholder or a Permitted Transferee of any Shares or Warrants except for a
Sale permitted hereby and made in compliance herewith.
SECTION 1.2 Exchange Offer. Notwithstanding anything to the contrary in
Section 1.1, each Stockholder hereby agrees with each other Stockholder and FSAC
to tender for exchange (and not withdraw) in the Exchange Offer, at the Warrant
Exchange Ratio, that portion of the Warrants held by such Stockholder as is
equal to the amount, expressed as a percentage, obtained by dividing (i) the
number of FSAC Warrants (including the Bridge Warrants), if any, tendered for
exchange in the Exchange Offer by persons or entities other than the
Stockholders and their Permitted Transferees (the "Public Warrant Holders"), by
(ii) the total number of FSAC Warrants (including the Bridge Warrants) held by
the Public Warrant Holders immediately prior to the consummation of the Exchange
Offer.
ARTICLE II
STOCK CERTIFICATE LEGEND
SECTION 2.1 Each certificate representing any Shares or Warrants to
which this Agreement applies shall conspicuously bear a legend in substantially
the following form:
"THE TRANSFER OF THE SECURITY REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED UNDER AND SUBJECT TO THE TERMS OF AN AGREEMENT TO WHICH THE
COMPANY IS A PARTY, AS SUCH AGREEMENT MAY BE AMENDED, SUPPLEMENTED, OR
OTHERWISE MODIFIED FROM TIME TO TIME (THE"AGREEMENT"). A COPY OF THE
AGREEMENT IS ON FILE AT THE COMPANY'S OFFICE. THE HOLDER OF THIS
CERTIFICATE, BY HIS OR HER ACCEPTANCE HEREOF, AGREES TO BE BOUND BY THE
PROVISIONS OF THE AGREEMENT.
SECTION 2.2 At such time as any Shares or Warrants shall no longer be
subject to any of the restrictions of this Agreement, FSAC shall take or cause
to be taken, at the request of any holder of such Shares or Warrants, such
action as shall be necessary so that such holder shall be issued replacement
certificates representing such Shares or Warrants that do not refer to such
restrictions.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to each other
Stockholder and FSAC as follows:
SECTION 3.1 Authority Relative to this Agreement. Such Stockholder (if
it is a corporation, partnership or other legal entity) is duly organized and
validly existing under the laws of the jurisdiction of its incorporation or
organization. Such Stockholder has all necessary power and authority (corporate
or otherwise) 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 by such Stockholder and the consummation by such
Stockholder of the transactions contemplated hereby have been duly and validly
authorized by all necessary action (corporate or otherwise) on the part of such
Stockholder, and no other proceedings (corporate or otherwise) on the part of
such Stockholder are necessary to authorize this Agreement or to consummate such
transactions. This Agreement has been duly and validly executed and delivered by
or on behalf of such Stockholder and constitutes a valid and binding obligation
of such Stockholder, enforceable against such Stockholder in accordance with its
terms.
SECTION 3.2 No Conflict. The execution and delivery of this Agreement
by such Stockholder do not, and the performance of this Agreement by such
Stockholder will not, (i) conflict with or violate the charter, by-laws,
partnership agreement or comparable organizational documents of such Stockholder
(in the case of a Stockholder that is a corporation, partnership or other legal
entity), (ii) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to such Stockholder or by which the Owned Shares
(as defined below) or Shares or Warrants held or to be held by such Stockholder
are or will be (during the term hereof) bound or affected, (iii) result in any
breach of or constitute a default (or an event that with 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 a lien or encumbrance of any kind on any of such Owned Shares or
Shares or Warrants pursuant to, any agreement, contract, indenture, notice or
instrument to which such Stockholder is or will be (during the term hereof) a
party or by which such Stockholder or such Owned Shares or Shares or Warrants
are or will be (during the term hereof) bound or affected, or (iv) except for
applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended, require on behalf of such Stockholder any filing with or notification
to, or any permit, authorization consent or approval of, any governmental or
regulatory authority, domestic or foreign.
SECTION 3.3 Title to Shares. The shares set forth opposite such
Stockholder's name on the signature pages hereof (the "Owned Shares") constitute
all of the shares of FSAC Common Stock (other than Escrow Shares) or EBIC Common
Stock owned as of the date hereof (either beneficially or of record) by such
Stockholder.
ARTICLE IV
COVENANTS OF THE STOCKHOLDERS
SECTION 4.1 No Inconsistent Arrangements. Each Stockholder hereby
covenants and agrees that, during the term of this Agreement, it shall not enter
into any contract, agreement,
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understanding or other arrangement with respect to any of the Shares or Warrants
held by it that would involve a Sale, or a commitment to cause any of such
Stockholder's representations in Section 3.2 hereof to become untrue (if made as
of the time of such arrangement) or that would otherwise be inconsistent with
the terms hereof.
SECTION 4.2 Certain Events. Each Stockholder hereby covenants and
agrees with each other Stockholder and FSAC that this Agreement, and the
obligations hereunder, shall attach during the term hereof to any shares of FSAC
Common Stock (other than the Escrow Shares) or FSAC Warrants held or acquired
(including, make a Sale, in violation of the terms hereof, that would without
limitation, by dividend, purchase or exercise of an option or warrant) by such
Stockholder following the Effective Time and shall be binding upon any person or
entity to which legal or beneficial ownership of such FSAC Common Stock or FSAC
Warrants shall pass by operation of law, including without limitation such
Stockholder's administrators or successors.
SECTION 4.3 Dissenter Shares. Each Stockholder (other than Xxxxxxx and
Xxxxxxx Xxxxxx) hereby covenants and agrees with and for the benefit of FSAC
that he, she or it will not, directly or indirectly, solicit, facilitate or
encourage the assertion or exercise in connection with the Merger, by any other
holder of EBIC Common Stock, of such other holder's right to an appraisal under
Section 262 of the Delaware General Corporation Law of the fair value of such
holder's shares of EBIC Common Stock.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Duration. This Agreement shall remain in effect until the
earlier to occur of (i) the termination of the Merger Agreement and (ii)
November 30, 1996, and thereafter this Agreement shall automatically terminate
without further action by any party hereto; provided, however, that Section 2.2
shall survive a termination described in the preceding clause (ii) and, if the
Exchange Offer has not theretofore been consummated, Section 1.2 shall survive a
termination described in the preceding clause (ii) until the earlier of (x) the
consummation of the Exchange Offer and (y) November 30, 1997.
SECTION 5.2 Specific Performance. The parties hereto agree that if any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, without any requirement for securing or posting any bond, in addition to
any other remedy at law or equity.
SECTION 5.3 Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties hereto with respect to the subject matter hereof.
SECTION 5.4 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto and specifically referencing
this Agreement.
SECTION 5.5 Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provisions hereof
shall not affect the validity and enforceability of the other provisions hereof.
If any provision of this Agreement, or the application thereof to any person or
entity or any circumstances, is invalid or unenforceable, (i) a suitable and
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equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid and
unenforceable provision and (ii) the remainder of this Agreement and the
application of such provision to other persons, entities or circumstances shall
not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
SECTION 5.6 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without giving
effect to the provisions thereof relating to conflicts of law.
SECTION 5.7 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective as to any Stockholder when one or more counterparts have
been signed by FSAC and such Stockholder and delivered to FSAC and such
Stockholder.
SECTION 5.8 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the addresses specified below (or at such other
address for a party as shall be specified by like notice): (i) if to FSAC,
Xxxxxxx Xxxxxx or Xxxxxxx Xxxxxx to the address of FSAC set forth in Section
11.4 of the Merger Agreement; and (ii) if to any other Stockholder, to the
address for such Stockholder set forth opposite such Stockholder's name on the
execution pages hereof.
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IN WITNESS WHEREOF, each of the Stockholders and FSAC, have caused this
Agreement to be duly executed on the date hereof.
One World Financial Center WELSH, CARSON, XXXXXXXX
Xxxxx 0000 & XXXXX XX, X.X.
Xxx Xxxx, Xxx Xxxx 00000
By WCAS VI Partners, L.P, General Partner
850,884 shares of EBIC Common Stock
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
One World Financial Center WCAS INFORMATION PARTNERS, L.P.
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
By WCAS INFO Partners, General Partner
14,562 shares of EBIC Common Stock
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Two World Financial Center XXXXXX X.X. XXXXXXXX
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
197,823 shares of EBIC Common Stock
/s/ Xxxxxx X.X. Xxxxxxxx
---------------------------------------------
Two World Financial Center XXXXXXXX X. XXXXXXXXX
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
119,870 shares of EBIC Common Stock
/s/ Xxxxxxxx X. Xxxxxxxxx
---------------------------------------------
Two World Financial Center XXXXX X. XXXXX
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
50,362 shares of EBIC Common Stock
/s/ Xxxxx X. Xxxxx
---------------------------------------------
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Two World Financial Center XXXXX X. XXXXX
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
70,320 shares of EBIC Common Stock
/s/ Xxxxx X. Xxxxx
---------------------------------------------
Two World Financial Center XXXXXX X. XXXXXX
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
53,977 shares of EBIC Common Stock
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
XXXXXXX XXXXXX
333,333 shares of FSAC Common Stock
/s/ Xxxxxxx Xxxxxx
---------------------------------------------
XXXXXXX XXXXXX
166,667 shares of FSAC Common Stock
/s/ Xxxxxxx Xxxxxx
---------------------------------------------
FINANCIAL SERVICES
ACQUISITION CORPORATION
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman, President and Chief
Executive Officer
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