STOCK PURCHASE PLAN
Exhibit 5
This Stock Purchase Plan (the “Purchase Plan”) is entered into on June 9, 2009, by and between Xxxxxx Xxxxxxx Xxxxx Xxxxxx, LLC (“MSSB”) and Xxxxxxxxxxx Xxxxxxxxx (“the Purchaser”) for the purchase of shares of common stock (the “Stock”) issued by Alesco Financial Inc. (NYSE: AFN) (“the Company”) to comply with the provisions of Rule 10b5-1 (“Rule 10b5-1”) under the Securities Exchange Act of 1934 on a “not held” basis.
| A) | Purchase Plan Requirements |
| 1. | On any day on which the New York Stock Exchange is open for business and MSSB is instructed to engage in stock purchasing efforts, pursuant to the written instructions in Appendix A, attached hereto, of this Purchase Plan, MSSB will act as the Purchaser’s exclusive agent to purchase shares of Stock. |
| 2. | Purchases made by MSSB pursuant to this Purchase Plan shall be made in accordance with the Purchaser’s written instructions in Appendix A, and shall be made at the prevailing market prices, pursuant to the limitations stated in Appendix A, in open-market transactions. |
| 3. | MSSB shall be entitled to a commission of $0.02 (two cents) per share purchased. |
| B) | The Purchaser’s Representations and Warranties |
The Purchaser makes the following representations and warranties, each of which shall continue while this Purchase Plan is in effect and will survive the termination of this Purchase Plan:
| 1. | At the time of the Purchaser’s execution of this Purchase Plan, the Purchaser is not aware of any material, non-public information with respect to the Company or the Stock. The Purchaser is entering into this Purchase Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 or other applicable securities laws. |
| 2. | Purchases of Stock under this Purchase Plan have been duly authorized by the Purchaser and are not prohibited by any legal, regulatory or contractual restriction or undertaking binding on the Purchaser. The Purchaser will inform MSSB as soon as possible of any subsequent legal or contractual restrictions affecting the execution of the Purchase Plan by MSSB or the Purchaser and of the occurrence of any event that would cause the Purchase Plan to be suspended or to end as contemplated in Section C and Section E. |
| 3. | The Purchaser agrees not to enter into or alter any corresponding or hedging transaction with respect to the Stock while this Purchase Plan remains in effect. |
| 4. | The Purchaser agrees that it does not have authority, influence or control over any purchase of Stock effected by MSSB pursuant to this Purchase Plan and will not attempt to exercise any such authority, influence or control. The Purchaser agrees that it will not, communicate any information relating to the Stock or the Company to any employee of MSSB or its affiliates who are responsible for purchasing Stock, in accordance with this Purchase Plan and during the time this Purchase Plan is in effect. |
| 5. | The Purchaser acknowledges and agrees that the Purchase Plan is a “securities contract,” as such term is defined in Section 741(7) of Title 11 of the United States Code, as it may be amended (the “Bankruptcy Code”), entitled to all of the protections given such contracts under the Bankruptcy Code. |
| 6. | This Purchase Plan constitutes the Purchaser’s legal, valid and binding obligation enforceable against the Purchaser in accordance with its terms. There is no litigation, arbitration or other proceeding pending, or to the Purchaser’s knowledge threatened, that would prevent or interfere with the Purchaser’s purchase of Stock under this Purchase Plan. |
| 7. | Purchaser will provide MSSB with an Issuer Representation Certificate, dated as of the date hereof and signed by the Issuer, substantially in the form of Exhibit A hereto, prior to commencement of the Plan Purchase Period. |
| C) | Suspension of Purchases |
The Purchaser acknowledges and agrees that MSSB may suspend purchases under this Purchase Plan in the event that:
| 1. | MSSB determines that it is prohibited from purchasing Stock by a legal, contractual or regulatory restriction applicable to it or its affiliates or to the Purchaser and its affiliates (other than any such restriction relating to the Purchaser’s possession or alleged possession of material nonpublic information about the Company or the Stock). |
| 2. | MSSB determines, in its sole discretion that a market disruption has occurred, beyond the control of MSSB that would materially interfere with MSSB’s ability to carry out the terms of this Purchase Plan. |
| 3. | Trading in the Stock is halted or suspended. |
| 4. | If any purchases cannot be executed as required by this Purchase Plan due to any of the events specified in Paragraphs (1), (2) or (3), MSSB shall effect such purchases as promptly as practicable after the cessation or termination of such disruption, applicable restriction or other event. |
| D) | Modification of this Purchase Plan |
Any modification of this Purchase Plan by the Purchaser will be made in good faith and not as part of a scheme to evade the prohibitions of Rule 10b5-1, and only with MSSB’s written consent. In particular, the Purchaser agrees that the Purchaser will not modify or propose to modify this Purchase Plan at any time that the Purchaser is aware of any material non-public information about the Company and/or the Stock and that the Purchaser will be deemed to repeat its representations in Section B at the time of such modification. Termination of this Purchase Plan by the Purchaser pursuant to Section E (1) (ii) shall not be deemed a modification of this Purchase Plan.
| E) | Termination of this Purchase Plan |
| 1. | This Purchase Plan will terminate upon the earliest of one of the following events: |
| i. | The terms outlined on Appendix A have been met; |
| ii. | The Purchaser or the Purchaser’s designee notifies MSSB in writing, that this Purchase Plan is to be terminated; |
| iii. | MSSB determines, in its sole discretion, that it is prohibited for any reason from engaging in purchasing activity as the Purchaser’s agent under this Purchase Plan; |
| iv. | MSSB becomes aware of the commencement of any voluntary or involuntary case or other proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or similar law or seeking the appointment of a trustee, receiver or other similar official, in each case with respect to the Purchaser or the taking of any corporate action by the Purchaser to authorize or commence any of the foregoing; |
| v. | The Company or any other person publicly announces a tender or exchange offer with respect to the Stock or a merger, acquisition, reorganization, recapitalization or other similar business combination or transaction as a result of the consummation of which the Stock would be exchanged or converted into cash, securities or other property. |
| 2. | Any transaction pending at the time MSSB receives a notice referred to in Section D or E (1) (ii) shall be completed and MSSB shall receive the commission set forth in Section A (3). |
| F) | Indemnification and Limitation on Liability |
| 1. | The Purchaser agrees to indemnify and hold harmless MSSB (and its directors, officers, employees and affiliates) from and against all claims, liabilities, losses, damages and expenses (including reasonable attorney’s fees and costs) arising out of or attributable to: a.) any material breach by the Purchaser of this Purchase Plan (including the Purchaser’s representations and warranties), and b.) any violation by the Purchaser of applicable laws or regulations. The Purchaser will have no indemnification obligations in the case of gross negligence or willful misconduct of MSSB or any other indemnified person. This indemnification will survive the termination of this Purchase Plan. |
| 2. | Notwithstanding any other provision herein, neither MSSB or the Purchaser will be liable for: |
| i. | Special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages or any kind, even if advised of the possibility of such losses or damages or if such losses or damages could have been reasonably foreseen. |
| ii. | Any failure to perform or for any delay in performance that results from a cause or circumstance that is beyond its reasonable control, including but not limited to failure of electronic or mechanical equipment, strikes, failure of common carrier or utility systems, severe weather, market disruptions or other causes commonly known as “acts of God”. |
| 3. | The Purchaser acknowledges and agrees that MSSB has not provided the Purchaser with any tax, accounting or legal advice with respect to this Purchase Plan, including whether the Purchaser would be entitled to any of the affirmative defenses under Rule 10b5-1. |
| G) | Governing Law |
This Purchase Plan will be governed by, and construed in accordance with, the laws of the State of New York, without regard to such State’s conflict of laws rules.
| H) | Entire Agreement |
This Purchase Plan (including any Annexes or Exhibits) constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes any previous or contemporaneous agreements, understandings, proposals or promises with respect thereto, whether written or oral.
This Plan and the rights and obligations thereunder may not be assigned by the Purchaser without written permission of MSSB. Assignment of this Plan and the rights and obligations thereunder, may not be assigned by MSSB without the consent of the Purchaser, except that MSSB may assign this Plan without the Purchaser’s permission or consent to a broker-dealer who succeeds to the business of MSSB as the result of any acquisition, merger, consolidation, joint venture or other business combination.
| I) | Notices |
All required notifications to MSSB under this Purchase Plan shall be made in writing (signed by facsimile) and confirmed by telephone to Executive Financial Services (“EFS”), Xxxxxxx Xxxxxxx , Fax# 000-000-0000, Email: Xxxxxxx.Xxxxxxx@xxxx.xxx Telphone # 000-000-0000 and Xxx Xxxxx, Fax# 000-000-0000, Emial: Xxxxxxx.xxxxx@xxxx.xxx Telephone #. 000-000-0000
All required notifications to the Purchaser under this Purchase Plan shall be made in writing (signed by facsimile) and confirmed by telephone to Xxxxxxxxxxx Xxxxxxxxx, Fax No (000) 000-0000, Telephone No. (000) 000-0000 with a copy to Xxxxxxx Xxxxx, Chief Compliance Officer of Xxxxx & Company, Fax No. (000) 000-0000, Telephone No. (000) 000-0000.
| J) | Counterparts |
This Purchase Plan may be executed in two or more counterparts and by facsimile signature.
IN WITNESS WHEREOF, the undersigned have executed this Purchase Plan as of the date first written above.
| Xxxxxxxxxxx Xxxxxxxxx | Xxxxxx Xxxxxxx Xxxxx Xxxxxx, LLC | |||||||
| By: | /s/ Xxxxxxxxxxx Xxxxxxxxx | By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Name: | Xxxxxxxxxxx Xxxxxxxxx | Name: | Xxxxxxx Xxxxxxx | |||||
| Title: |
Title: | Senior Vice-President | ||||||
EXHIBIT I
ISSUER REPRESENTATION CERTIFICATE
| 1. | Alesco Financial Inc. (the “Issuer”) represents that it has reviewed the Stock Purchase Plan dated June 9, 2009 (the “Purchase Plan”) between Xxxxxxxxxxx Xxxxxxxxx (“Purchaser”) and Xxxxxx Xxxxxxx Xxxxx Xxxxxx, LLC (“MSSB”) relating to the common stock of the Issuer (the “Stock”). |
| 2. | Subject to the accuracy and completeness of Purchaser’s representations and warranties in the Purchase Plan, it is the Issuer's belief that the Purchase Plan and the purchases of shares of Stock to be effected thereunder will not violate the Issuer's xxxxxxx xxxxxxx policy. |
| 3. | To the best of the Issuer's knowledge, there are no legal, contractual or regulatory restrictions applicable to Purchaser as of the date of this representation that would prohibit Purchaser from entering into the Purchase Plan. If, at any time during the Plan Purchase Period, a legal, contractual or regulatory restriction that is applicable to Purchaser, including, without limitation |
| • | an Issuer tender offer with respect to the Stock |
| • | a material change to the Issuer’s xxxxxxx xxxxxxx policy |
would prohibit any purchase pursuant to the Purchase Plan (other than any such restriction relating to Purchaser’s possession or alleged possession of material nonpublic information about the Issuer or its securities), the Issuer agrees to give Broker’s Executive Financial Services Department notice of such restriction by telephone as soon as practicable. Such notice shall be made to (Xxxxxxx Xxxxxxx) at 000-000-0000 and shall indicate the anticipated duration of the restriction, but shall not include any other information about the nature of the restriction or its applicability to Purchaser. In any event, the Issuer shall not communicate any material nonpublic information about the Issuer or its securities to Broker. The Issuer will release Broker from any liability which arises from any failure by the Issuer to give such notice in a timely and accurate manner.
| Dated: 200 | ||
| Issuer: | ||
| By: | ||
| Name Title: |
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