EXHIBIT 10.19
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT, dated as of December 17, 2003, is by and
between Oak Street Financial Services, Inc., a Maryland corporation (the
"Company"), and Sotseks Corp., an Ohio corporation ("Sotseks").
RECITALS
A. The Company intends to sell to the public (the "Public
Offering") up to 20,465,206 shares of its common stock, $.01 per value per share
("Common Stock"), which shares shall include all of the shares of Company Common
Stock to be received by Sotseks as a result of the exchange contemplated by this
Agreement.
B. The Company desires to acquire the 113,999.95 non-voting units
of Oak Street Operations LLC, a Delaware limited liability company ("OSO") held
by Sotseks (the "OSO Units") from Sotseks and Sotseks is willing to transfer to
the Company, the OSO Units owned by Sotseks in exchange for 113,999,950 shares
of non-voting Common Stock of the Company (the "Shares"), subject to the terms
and conditions of this Agreement.
C. The parties to this Agreement want to reduce to writing their
agreement with respect to the foregoing.
THEREFORE, in consideration of the mutual covenants contained in this
Agreement and the acts to be performed under this Agreement, the parties hereby
agree to the following:
ARTICLE I - EXCHANGE OF OSO UNITS FOR SHARES
1. TRANSFER OF OSO UNITS. Subject to the terms and upon the
conditions of this Agreement, Sotseks agrees to transfer to the Company on the
Closing Date all of such holder's right, title and interest in and to the OSO
Units.
2. ISSUANCE OF SHARES. As consideration for the OSO Units
transferred to it on the Closing Date, the Company shall issue the Shares to
Sotseks.
3. CLOSING. The closing (the "Closing") of the transfer of the
OSO Units and the acquisition of the Shares shall be held either simultaneously
with or immediately prior to the closing of the Public Offering at the offices
of the Company, 00000 X. Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx 00000, or
at such other time and place as is mutually agreed to by the parties to this
Agreement.
4. REPRESENTATIONS AND WARRANTIES OF SOTSEKS. Sotseks hereby
represents and warrants to the Company, with respect to the OSO Units, as
follows:
(a) Sotseks is the record and beneficial owner of the OSO Units.
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(b) The transfer of the OSO Units to the Company hereunder will
vest in the Company good and valid right, title and interest
in and to the OSO Units, free and clear of all claims, liens,
pledges, charges, security interests and encumbrances of any
nature.
(c) Sotseks has the full right, power and authority to execute,
deliver and perform this Agreement and to transfer the OSO
Units in accordance herewith.
(d) This Agreement constitutes the legal, valid and binding
obligation of Sotseks, enforceable against Sotseks in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, or other laws or equitable
principles affecting the enforcement of creditors' rights
generally.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to Sotseks as follows:
(a) The Company is duly formed, validly existing and in good
standing under the laws of the state of Maryland, with full
power and authority to conduct its business and to execute and
deliver this Agreement and to perform its obligations
hereunder.
(b) The Company has duly authorized the sale and issuance of the
Shares upon the terms set forth herein by all requisite
corporate action, and this Agreement has been duly authorized,
executed and delivered by it.
(c) This Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency or other laws or equitable
principles affecting the enforcement of creditors' rights
generally.
6. COVENANTS. Sotseks acknowledges receipt of the letter dated
September 10, 2003, from Xxxxxx Xxxxxx describing the transactions contemplated
by this Agreement, and the enclosures referred to in that letter (the
"Documentation"). Sotseks represents that the decision it has made regarding
whether or not to assign OSO Units to the Company in exchange for Shares
pursuant to this Agreement ("Exchange Decision") has been made by Sotseks
independently after considering the Documentation, the tax consequences of that
decision, and other relevant information, and after consulting any professional
advisors deemed appropriate by Sotseks. Sotseks covenants that it will assert no
claim against the Company, their subsidiaries, or their officers, directors or
agents based on Sotseks' Exchange Decision or the disclosures made to Sotseks in
connection with that Exchange Decision. Sotseks hereby indemnifies and holds
harmless OSO and the Company, their subsidiaries, and their officers, directors
or agents from and against any loss or liability occasioned by any such claim of
Sotseks or Sotseks' representatives.
7. RESTRICTIONS ON TRANSFER OR SALE OF THE SHARES UNDER
SECURITIES LAWS.
(a) Sotseks is acquiring the Shares solely for Sotseks' own
beneficial account, for investment purposes, and not with a
view to, or for resale in connection with, any
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distribution of the Shares other than pursuant to the Public
Offering. Sotseks understands that the Shares have not been
registered under the Securities Act of 1933 (the "Securities
Act") or any state securities laws by reason of specific
exemptions under the provisions thereof which depend in part
upon the investment intent of Sotseks and of the other
representations, warranties and covenants made by Sotseks in
this Agreement. Sotseks understands that the Company is
relying upon the representations, warranties and covenants of
the Sotseks contained in this Agreement for the purpose of
determining whether this transaction meets the requirements
for such exemptions.
(b) Sotseks understands that the Shares are "restricted
securities" as that term is defined in Rule 144 promulgated
under the Securities Act by the Securities and Exchange
Commission (the "Commission") and that the Securities Act and
Rule 144 and other rules promulgated by the Commission provide
in substance, if a public market for such securities develops
later, that the Sotseks may dispose of the Shares only
pursuant to an effective registration statement under the
Securities Act (such as the registration statement to be filed
in connection with the Public Offering) or an exemption
therefrom.
(c) Sotseks acknowledges and agrees that Sotseks will not sell,
assign, pledge, give, transfer or otherwise dispose of the
Shares or any interest therein, or make any offer or attempt
to do any of the foregoing, except pursuant to a registration
of the Shares in the Pubic Offering.
(d) Sotseks has not offered or sold any portion of the Shares and
has no present intention of dividing the Shares with others or
of reselling or otherwise disposing of any portion of the
Shares prior to the Closing of the Public Offering.
8. CONDITIONS PRECEDENT TO THE SOTSEKS' OBLIGATIONS. All
obligations of the Sotseks under this Agreement are subject to the fulfillment,
prior to or on the Closing Date, of each of the following conditions:
(a) The Company's representations and warranties contained in this
Agreement shall be true at the time of Closing as though such
representations and warranties were made at such time; and
(b) The Company shall have delivered to or at the direction of
Sotseks the stock certificates representing the number and
class of Shares to which Sotseks entered under this Agreement.
(c) The Registration Statement for the Public Offering shall have
been declared effective and the underwriters for the Public
Offering shall have advised Sotseks that they are prepared to
consummate the Public Offering simultaneously or immediately
after consummation of the transactions contemplated hereby.
(d) No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been
enacted, entered, promulgated or enforced by any court of
competent jurisdiction or governmental or regulatory authority
or
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instrumentality that prohibits the consummation of the
transactions contemplated hereby, and no litigation or
governmental proceeding seeking such an order shall be pending
or threatened.
9. CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS. All
obligations of the Company under this Agreement are subject to the fulfillment,
prior to or on the Closing Date, of each of the following conditions:
(a) Sotseks' representations and warranties contained in this
Agreement shall be true at the time of Closing as though such
representations and warranties were made at such time;
(b) Sotseks shall have delivered to the Company on or before the
Closing an OSO Unit Assignment Form which assigns its OSO
Units to the Company; and
(c) The Registration Statement for the Public Offering shall have
been declared effective and the underwriters for the Public
Offering shall have advised Sotseks that they are prepared to
consummate the Public Offering simultaneously or immediately
after consummation of the transactions contemplated hereby.
(d) No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been
enacted, entered, promulgated or enforced by any court of
competent jurisdiction or governmental or regulatory authority
or instrumentality that prohibits the consummation of the
transactions contemplated hereby, and no litigation or
governmental proceeding seeking such an order shall be pending
or threatened.
10. EFFECT OF CONDITIONS PRECEDENT. In the event the conditions
precedent to consummation of this Agreement are satisfied or waived by the party
they are to benefit on or before December 31, 2004, then Sotseks and the Company
shall proceed with the consummation of this Agreement; otherwise, the
obligations of Sotseks and the Company hereunder shall be terminated.
11. COVENANT OF FURTHER ASSURANCES. Sotseks agrees, upon
reasonable request, to deliver such additional documents to the Company or take
such additional actions as may be necessary or appropriate to vest in the
Company ownership of the OSO Units held by Sotseks.
12. SOTSEKS OPTION. At the Closing, the previously granted rights
of Sotseks to acquire shares of the Company as set forth in Section 7 of the
Exchange Agreement dated September 23, 2003, between the Company, OSO and
certain unitholders of Oak Street Mortgage LLC and as set forth in the Company's
articles of incorporation in effect on the date hereof shall terminate and be
without any further force and effect.
ARTICLE II - GENERAL PROVISIONS
1. ENTIRE AGREEMENT. This Agreement, including any document
delivered by the Company or Sotseks in accordance herewith, constitutes the
entire agreement and supersedes all
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prior agreements and understandings, oral and written, between the parties to
this Agreement with respect to the subject hereof.
2. BENEFITS; ASSIGNMENT. This Agreement will inure to the benefit
of the parties to this Agreement and shall be binding upon them and their
respective successors and assigns. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by either the Company or Sotseks without the prior consent of the
other party.
3. GOVERNING LAW. The parties to this Agreement agree that this
Agreement shall be construed as to both the validity and performance and shall
be enforced in accordance with and governed by the laws of the state of Indiana.
4. AMENDMENT. This Agreement may be amended only by written
agreement of the parties hereto.
5. ADJUSTMENT OF SHARES. In the event of any change after the
date of this Agreement in the outstanding shares of capital stock of the Company
by reason of any reorganization, recapitalization, stock split, stock dividend,
combination of shares, exchange of shares, merger or consolidation, liquidation,
or any other change with the date of this Agreement in the nature of the shares
of stock of the Company, the Company shall determine what changes, if any, are
appropriate in the number and class of shares to be transferred to Sotseks in
exchange for the OSO Units.
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IN WITNESS WHEREOF, this Agreement was executed by the Company and
Sotseks as of the date first written above.
OAK STREET FINANCIAL SERVICES,
INC.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President
SOTSEKS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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