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EXHIBIT 10.9
AGREEMENT
This agreement ("Agreement) dated as of May 5, 1995 is entered into by
and between Search Capital Group, Inc. ("Search"), and Xxxxx Xxxxxxx, Trustee
("Trustee") of The SBM Trust ("Trust") not in his individual capacity but as
Trustee of The SBM Trust.
RECITALS
WHEREAS, the Trust is the owner of 1,312,127 shares of Search's common
stock, $0.01 par value per share (the "Shares"); and
WHEREAS, Search determined that it is in its best interest to purchase
500,000 of the Shares, and to obtain a proxy and a right of first refusal on
the remainder of the Shares; and
WHEREAS, following such determination, Search made corresponding
requests of the Trust; and
WHEREAS, the Trust is willing to sell 500,000 of the Shares and to
grant a proxy and right of first refusal to Search on the remainder of the
Shares provided that Search agrees to give to the Trust the right to put such
remaining Shares to Search;
NOW, THEREFORE, for the mutual promises recited herein and Ten Dollars
($10.00) and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged by the parties hereto, and with the intent to be
legally bound hereby, the parties hereto agree as follows:
1. PURCHASE OF COMMON STOCK. Contemporaneously with the execution of this
Agreement, Search shall purchase from the Trust Five Hundred Thousand
(500,000) of the Shares. The purchase price shall be Two Dollars and
Twenty-Five Cents ($2.25) per Share, or a total of One Million, One
Hundred Twenty Five Thousand Dollars ($1,125,000.00). Such purchase
price shall be paid in U.S. dollars in good funds and may be made
either by Federal wire transfer or certified check.
2. RIGHT OF FIRST REFUSAL. The Trust hereby grants to Search the priority
right to purchase all or any portion of the remaining Shares owned by
the Trust which may be from time to time offered for sale by the Trust
upon the following terms:
a. The right of first refusal shall continue for two years.
b. The right of first refusal shall not apply in the case of an
open market sale of the Shares.
c. Upon receipt of an arms-length offer from an unrelated party
to purchase any or all of the Shares, the Trustee shall
promptly give Search notice of such offer (the "Notice").
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d. The Notice shall specify the name of the offeror, the number
of Shares to be purchased, the purchase price, and any other
relevant terms or conditions applicable to the proposed sale
to the offeror identified in the Notice.
e. If Search does not notify the Trustee by 6:00 p.m. the
following business day that Search will purchase the Shares
then being offered for sale on the terms and conditions stated
in the Notice, the Trust shall be free to sell the Shares to
the third-party.
f. If Search elects to purchase the Shares offered, Search shall
tender a certified check in the appropriate amount at a
closing to be held in Search's offices at 5:00 p.m. the
business day following its election to purchase. At closing
the Trustee shall tender, free or any liens or encumbrances,
duly endorsed stock certificates evidencing the number of
Shares specified in the Notice.
g. Should Search fail to timely tender the purchase price, Search
shall be deemed to have waived its right of first refusal.
h. The right of first refusal shall cease as to any portion of
the Shares sold by the Trust to a third party in conformity
with this Section 2.
3. IRREVOCABLE PROXY. The Trust shall, upon closing of this Agreement,
execute an irrevocable proxy in form and substance similar to that
contained on Exhibit A hereof (the "Irrevocable Proxy"). Such
irrevocable proxy shall be a proxy coupled with an interest binding
all remaining Shares owned by the Trust. The Irrevocable Proxy shall
terminate as to Shares retained by the Trust two years from the date
of this Agreement. The Irrevocable Proxy shall terminate:
a. as to Shares sold on the open market, upon transfer to a
third party; and
b. as to Shares not sold on the open market, upon compliance by
the Trustee with the first refusal rights of Search under
Section 2.
4. PUT OPTION. Search grants Trustee the right (the "Put Option") to
cause Search to purchase from the Trustee all, but not less than all,
of the Shares unsold (the "Remaining Shares") upon the following
terms:
a. PURCHASE PRICE. The purchase price of the Remaining Shares
shall be Two Dollars and Twenty-Five Cents ($2.25) per share.
b. CLOSING. At closing the Remaining Shares shall be tendered
free and clear of any liens or encumbrances. Upon such
tender, the purchase price shall be paid in U.S. dollars in
good funds by means of cashier's check or Federal wire
transfer.
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c. TIME FOR EXERCISE. The Trustee shall notify Search at least
thirty (30) days prior to the expiration of twenty four months
following the execution of this Agreement that Trustee intends
to exercise the Put Option. If so exercised, closing shall
take place within five (5) business days following the
expiration of such twenty four month period.
d. ANTI-DILUTION PROVISIONS. In the event that Search issues
additional shares of its common stock as a stock dividend or
as part of a stock split, or if Search reduces the number of
its issued and outstanding shares of common stock as a result
of a reverse stock split, the number of the remaining Shares
subject to the right of first refusal and the Put Option, and
the purchase prices herein specified shall all be
appropriately adjusted.
5. CONTINUING OWNERSHIP INTEREST. Subject to the terms of this Agreement,
the Trust shall be entitled to all rights of ownership of the Shares,
including, without limitation, the right to receive cash or stock
dividends.
6. MISCELLANEOUS PROVISIONS.
a. PIGGY-BACK REGISTRATION. Should Search register its common
stock under the Securities Act of 1933, as amended, upon
request and without cost to the Trust, Search shall at the
same time register all Shares owned by the Trust.
b. PROFESSIONAL FEES. Search shall be responsible and pay for the
reasonable attorney's fees and accountant's fees incurred by
each party hereto in relation to the negotiation and
consummation of this Agreement. Each party hereto shall be
responsible for its own professional fees in relation to the
interpretation, enforcement or adjudication, if any, of this
Agreement.
c. REPRESENTATIONS AND WARRANTIES OF SEARCH. Search represents
and warrants that the execution, delivery and performance of
this Agreement has been duly authorized by all necessary
corporate action and that this Agreement is a valid and
binding obligation of Search enforceable according to its
terms.
d. REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The Trustee
represents and warrants that he is currently serving as the
sole Trustee of The SBM Trust, that he has authority under the
Trust Agreement of The SBM Trust to enter into this Agreement,
and that this Agreement is a valid and binding obligation of
the Trust enforceable according to its terms.
e. INDEMNITY OF SEARCH. Search agrees to indemnify, save and hold
Trustee and the Trust harmless from and against costs,
expenses or disbursements (including attorneys' fees)
liabilities, obligations, losses, damages, penalties, actions,
judgments, or suits of any kind or nature whatsoever
(collectively, the "Losses") INSOFAR ONLY as the Losses relate
to a breach or alleged breach of a representation or warranty
of Search under Section 6.c. On any action for which indemnity
is provided under the foregoing sentence, Search agrees, if
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requested, to advance from time to time attorneys fees and
costs incurred by the Trustee or Trust.
f. INDEMNITY OF TRUST. The Trust agrees to indemnify, save and
hold Search harmless from and against costs, expenses or
disbursements (including attorneys' fees) liabilities,
obligations, losses, damages, penalties, actions, judgments,
or suits of any kind or nature whatsoever (collectively, the
"Losses) INSOFAR ONLY as the Losses relate to a breach or
alleged breach of a representation or warranty of Trustee
under Section 6.d. On any action for which indemnity is
provided under the foregoing sentence, the Trust agrees to
advance from time to time attorneys fees and costs incurred by
Search.
g. AMENDMENTS, ETC. This Agreement may be amended, terminated or
superseded only by an instrument signed by the party against
whom such amendment, termination or supersession is sought to
be enforced.
h. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties and their
respective heirs, legal representatives, successors, and
assigns.
i. ENTIRE AGREEMENT. This Agreement evidences the entire
agreement between the parties hereto with respect to the
subject matter hereof and supersedes any prior agreements or
undertakings with respect thereto.
j. FURTHER ASSURANCES. The parties hereto agree to cooperate with
each other and execute any and all documents and to do any and
all things necessary to effectuate this Agreement.
k. GOVERNING LAW AND JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED UNDER THE LAWS OF THE STATE OF TEXAS AND VENUE FOR
ANY MATTER BROUGHT BY ONE PARTY AGAINST THE OTHER CONCERNING
THIS AGREEMENT SHALL BE ANY COURT OF COMPETENT JURISDICTION IN
DALLAS COUNTY, TEXAS.
l. SEVERABILITY. If any part of this Agreement is found invalid
or unenforceable, that part will be amended to achieve as
nearly as possible the same economic effect as the original
provision and the remainder of this Agreement will remain in
full force.
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m. NOTICES. All notices, requests, demands, and other
communications provided for or permitted hereunder shall be in
writing and shall be sent by mail, telex, telecopier or hand
delivery as follows:
Search Capital Group, Inc. With a copy to (not constituting
000 X. Xxxxx Xxxxxx notice):
Xxxxx 000, X.X. 000
Xxxxxx, Xxxxx 00000-0000 Search Capital Group, Inc.
Attn: President 000 X. Xxxxx Xxxxxx
000 000 0000 Suite 400, L.B. 401
000 000 0000 (fax) Xxxxxx, Xxxxx 00000-0000
Attn: General Counsel
000 000 0000
000 000 0000 (fax)
Xxxxx Xxxxxxx, Trustee
The SBM Trust
00000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
000 000 0000
000 000 0000 (fax)
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first written above.
SEARCH CAPITAL GROUP, INC.
By: /s/ ILLEGIBLE
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Its: President and CEO
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/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx, not individually, but
as Trustee of The SBM Trust
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EXHIBIT "A"
IRREVOCABLE PROXY
The undersigned, in his capacity as Trustee of The SBM Trust and not
in his individual capacity (the "Trustee), hereby appoints A. Xxxxx Xxxxxx (or
such other individual as may be designated the Board of Directors of Search
Capital Group, Inc. from time to time) as his proxy and appoints him to
represent and vote as he sees fit all, of the shares of common stock ("Shares")
of Search Capital Group, Inc. ("Search"), as from time to time held in The SBM
Trust. This irrevocable proxy, pursuant to the provisions of that certain
agreement between Trustee and Search of even date herewith, is coupled with an
interest in the Shares and shall continue until terminated pursuant to such
agreement.
Dated: May 5, 1995
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Xxxxx Xxxxxxx, not individually, but as Trustee of
The SBM Trust
Subscribed and Sworn to before me on _______________________, 199__.
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Notary Public in and for
(SEAL) The State of Texas
My commission expires:
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SECRETARY'S CERTIFICATE
I, Xxx X. Xxxxxx, Secretary of Search Capital Group, Inc. ("Search")
do hereby certify that the following resolution was adopted and approved by the
Board of Directors of Search on the 5th day of May 1995.
WHEREAS, Search has determined that it is in the best interest of
Search to purchase Five Hundred Thousand (500,000) shares of Search's $.0l par
value common stock from the SBM Trust, and
WHEREAS, the agreement between the SBM Trust and Search requires
approval of Search's Board of Directors prior to the execution of such
agreement.
NOW, THEREFORE, BE IT RESOLVED, that the Agreement between Search and
The SBM Trust is hereby approved, and once executed by Xxxxxx X. Xxxxx, will
constitute a valid and binding agreement upon Search.
FURTHER RESOLVED, that Xxxxxx X. Xxxxx is authorized and empowered to
execute the aforementioned agreement in a form that is substantially similar to
the Agreement considered this day by the Board of Directors and hereby placed
in the Minutes of Search.
WHEREAS, Search has requested that Xxx Xxxxx resign from the Board of
Directors, and resign as an officer of Search and its subsidiaries, and Search
and Xxxxx have entered into an agreement WITH respect to his resignation, and
WHEREAS, the agreement between Xxx X. Xxxxx, Jr. and Search requires
approval of Search's Board of Directors prior to the execution of such
agreement.
NOW, THEREFORE, BE IT RESOLVED, that the Agreement between Search and
Xxx X. Xxxxx, Jr. is hereby approved, and once executed by Xxxxxx X. Xxxxx,
will constitute a valid and binding agreement upon Search.
FURTHER RESOLVED, that Xxxxxx X. Xxxxx is authorized and empowered to
execute the aforementioned agreement in a form that is substantially similar to
the Agreement considered this day by the Board of Directors and hereby placed
in the Minutes of Search.
/s/
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Xxx X. Xxxxxx, Secretary
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IRREVOCABLE PROXY
The undersigned, in his capacity as Trustee of The SBM Trust and not
in his individual capacity (the "Trustee), hereby appoints A. Xxxxx Xxxxxx (or
such other individual as may be designated the Board of Directors of Search
Capital Group, Inc. from time to time) as his proxy and appoints him to
represent and vote as he sees fit all, of the shares of common stock ("Shares")
of Search Capital Group, Inc. ("Search"), as from time to time held in The SBM
Trust. This irrevocable proxy, pursuant to the provisions of that certain
agreement between Trustee and Search of even date herewith, is coupled with an
interest in the Shares and shall continue until terminated pursuant to such
agreement.
Dated: May 5, 1995
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx, not individually, but as Trustee of
The SBM Trust
Subscribed and Sworn to before me on May 5th, 1995.
/s/ XXXXXXX X. XXXXXX
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Notary Public in and for
(SEAL) The State of Texas
My commission expires: 11/26/96
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SECRETARY'S CERTIFICATE
I, Xxx X. Xxxxxx, Secretary of Search Capital Group, Inc. ("Search")
do hereby certify that the following resolution was adopted and approved by the
Board of Directors of Search on the 5th day of May 1995.
WHEREAS, Search has determined that it is in the best interest of
Search to purchase Five Hundred Thousand (500,000) shares of Search's $.0l par
value common stock from the SBM Trust, and
WHEREAS, the agreement between the SBM Trust and Search requires
approval of Search's Board of Directors prior to the execution of such
agreement.
NOW, THEREFORE, BE IT RESOLVED, that the Agreement between Search and
The SBM Trust is hereby approved, and once executed by Xxxxxx X. Xxxxx, will
constitute a valid and binding agreement upon Search.
FURTHER RESOLVED, that Xxxxxx X. Xxxxx is authorized and empowered to
execute the aforementioned agreement in a form that is substantially similar to
the Agreement considered this day by the Board of Directors and hereby placed
in the Minutes of Search.
WHEREAS, Search has requested that Xxx Xxxxx resign from the Board of
Directors, and resign as an officer of Search and its subsidiaries, and Search
and Xxxxx have entered into an agreement with respect to his resignation, and
WHEREAS, the agreement between Xxx X. Xxxxx, Jr. and Search requires
approval of Search's Board of Directors prior to the execution of such
agreement.
NOW, THEREFORE, BE IT RESOLVED, that the Agreement between Search and
Xxx X. Xxxxx, Jr. is hereby approved, and once executed by Xxxxxx X. Xxxxx,
will constitute a valid and binding agreement upon Search.
FURTHER RESOLVED, that Xxxxxx X. Xxxxx is authorized and empowered to
execute the aforementioned agreement in a form that is substantially similar to
the Agreement considered this day by the Board of Directors and hereby placed
in the Minutes of Search.
/s/
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Xxx X. Xxxxxx, Secretary