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EXHIBIT 10.12
ORIGINAL
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AGREEMENT
This agreement ("Agreement") dated as of May 5, 1995 is entered into
by and between Search Capital Group, Inc. ("Search"), and Xxx X. Xxxxx, Jr.
("Xxxxx").
RECITALS
WHEREAS, Xxxxx is presently Chairman of the Board of Search and has
served Search as a director and officer, at various times since 1985; and
WHEREAS, Search has requested that Xxxxx resign as a member of the
Board of Directors and as an officer of Search Capital Group, Inc., and any of
its subsidiaries; and
WHEREAS, Xxxxx agrees to do so; and
WHEREAS, Search and Xxxxx have reached certain understandings to
facilitate a smooth transition which they wish to memorialize;
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. RESIGNATION. Upon execution hereof, Xxxxx shall tender his
resignation as a member of the Board of Directors and as an officer of
Search Capital Group, Inc., and any of its subsidiaries.
2. CONSULTING AGREEMENT.
a. SERVICES. For a period of three months beginning May 15,
1995, Xxxxx agrees to provide consulting services on such
matters as may be referred to him from time to time by the
Chief Executive Officer of Search and as are within Xxxxx'
areas of expertise. Xxxxx shall devote such time, energy, and
attention as is necessary to perform and discharge his duties
and responsibilities hereunder in an efficient, trustworthy
and businesslike manner. Such duties shall be rendered in
Dallas, Texas. Xxxxx will not be required to devote such time
as would unreasonably interfere with Xxxxx' conduct of his
investments and other business interests.
b. COMPENSATION. As compensation, Xxxxx shall be paid a monthly
salary of $12,500, and receive title to the four year old
company car he presently possesses, which the parties agree
has a value of $11,725.
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3. XXXXX' COOPERATION IN SUITS. Xxxxx shall continue to cooperate with
and assist Search, to the extent that Xxxxx' time reasonably permits,
in the defense of the X'Xxxx Class Action Suit or any other suit
brought against Search that relates to the period of time when Xxxxx
was an officer, director, shareholder and or employee of Search.
4. INDEMNIFICATION.
a. Search shall indemnify Xxxxx in the event he was or is a party
or is threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (other than
an action by or in the right of Search), by reason of the fact
that he is or was a director, officer, employee, or agent of
Search or he is or was serving at the request of Search as a
director, officer, employee, or agent of a wholly owned
subsidiary corporation, partnership, joint venture, trust, or
other enterprise, against expenses (including reasonable
attorneys' fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding if he acted
in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of Search and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment,
order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not of itself create a
presumption that Xxxxx did not act in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interests of Search and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that
his conduct was unlawful.
b. Search shall indemnify Xxxxx, in the event that he was or is a
party or is threatened to be made a party to any threatened,
pending, or completed action or suit by or in the right of
Search to procure a judgment in its favor by reason of the
fact that he is or was a director or officer of Search or he
is or was serving at the request of Search as a director,
officer, partner, or trustee of, or in any similar managerial
or fiduciary position of, or as an employee or agent of, a
wholly owned subsidiary corporation, partnership, joint
venture, trust, association, or other enterprise against
expenses (including reasonable attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of Search; but no such indemnification
shall be made in respect of any claim, issue, or matter as to
which Xxxxx has been adjudged to be liable for gross
negligence or gross misconduct in the performance of his duty
to Search.
c. To the extent that Xxxxx has been successful on the merits in
defense of any action, suit, or proceeding referred to in
Section 4.a or 4.b in defense of any claim, issue, or matter
therein, he shall be indemnified against expenses (including
reasonable attorneys' fees) actually and reasonably incurred
by him in connection therewith.
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d. Any indemnification under Section 4.a or 4.b (unless ordered
by a court) shall be made by Search only as authorized in the
specific case upon a determination that indemnification of
Xxxxx is proper in the circumstances because he has met the
applicable standard of conduct set forth in such subsection.
Such determination shall be made by the Board of Directors by
a majority vote of a quorum consisting of directors who were
not parties to such action, suit, or proceeding, or, if such a
quorum is not obtainable or even if obtainable a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion or by the shareholders.
e. Expenses (including reasonable attorneys' fees) incurred in
defending a civil or criminal action, suit, or proceeding
shall be paid by Search in advance of the final disposition of
such action, suit, or proceeding as authorized in Section 4.d
upon receipt of an undertaking by or on behalf of Xxxxx to
repay such amount unless it is ultimately determined that he
is entitled to be indemnified by Search against such expenses
pursuant to this Section 4 or otherwise.
f. The indemnification provided by this Section 4 shall not be
deemed exclusive of any other rights to which Xxxxx may be
entitled under the certificate of incorporation of Search, any
bylaw, agreement, vote of shareholders or disinterested
directors, or otherwise, and any procedure provided for by any
of the foregoing, both as to action in his official capacity
and as to action in another capacity while holding such
office, and shall continue in the event this Agreement is
terminated and shall inure to the benefit of Xxxxx' heirs,
executors, and administrators.
g. Without limitation of the foregoing, Search shall tender a
defense in the current X'Xxxx Class Action Suit. Xxxxx will
prior to the time of Search undertaking Xxxxx' defense execute
an appropriate engagement letter with Akin, Gump, Strauss,
Xxxxx & Xxxx, L.L.P.
5. ESOP SHARES - PUT OPTION
Xxxxx is entitled to receive approximately 111,218 shares of Search
Capital Group, Inc. $.01 par value common stock ("Shares") from the Employee
Stock Ownership Plan terminated in August 1994. Upon distribution to Xxxxx or
to a rollover Individual Retirement Account or other plan qualified under
Section 401 (a) of the Internal Revenue Code of 1986 as designated by Xxxxx,
Search grants Xxxxx the right (the "Put Option") to cause Search to purchase
from Xxxxx all, but not less than all, of the Shares unsold upon the following
terms:
a. PURCHASE PRICE. The purchase price of the Shares shall be Two
Dollars and Twenty-Five Cents ($2.25) per share.
b. TIME FOR EXERCISE. Xxxxx shall notify Search at least thirty
(30) days prior to the expiration of twenty four months
following the execution of this Agreement that Xxxxx intends
to exercise the Put Option. If so exercised, closing shall
take place within five (5) business days following the
expiration of such twelve month period.
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c. CLOSING. At the closing Xxxxx, or the rollover Individual
Retirement Account, as the case may be, shall deliver to
Search stock certificates duly endorsed representing 111,218
shares of the common stock and Search shall deliver to Xxxxx a
cashiers check in the amount of $250,240.50.
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.
6. RELEASES
a. BY XXXXX. Xxxxx RELEASES ALL OFFICERS, DIRECTORS, AND
EMPLOYEES OF SEARCH FROM ANY AND ALL LIABILITIES AND CAUSES OF
ACTION HE MIGHT HAVE AGAINST ANY OF THEM, WHICH LIABILITIES
AROSE OR MAY ARISE FROM AND ARE DIRECTLY OR INDIRECTLY RELATED
TO THE PERFORMANCE OF THEIR DUTIES FOR SEARCH, OTHER THAN THE
OBLIGATIONS CONTAINED IN THIS AGREEMENT.
b. BY SEARCH. Search RELEASES XXXXX FROM ANY AND ALL LIABILITIES
AND CAUSES OF ACTION SEARCH MIGHT HAVE AGAINST HIM, WHICH
LIABILITIES AROSE OR MAY ARISE FROM AND ARE DIRECTLY OR
INDIRECTLY RELATED TO THE PERFORMANCE OF HIS DUTIES AS
SHAREHOLDER, OFFICER, DIRECTOR, AND OR AN EMPLOYEE OF SEARCH,
OTHER THAN THE OBLIGATIONS CONTAINED IN THIS AGREEMENT.
7. SETTLEMENT OF SUITS
a. BY XXXXX. To the extent Xxxxx is named as an individual
defendant in any claim or cause of action, including the
X'Xxxx case brought against Xxxxx individually and against
Search, Xxxxx may settle such matters on his own behalf
without the concurrence of Search, but shall not attempt to
bind Search in any manner. Xxxxx shall use reasonable effort
in any such settlement to inform Search of the terms and
conditions of such settlement agreement and to structure any
settlement agreement in a way or manner that does not
adversely affect the interests of Search.
b. BY SEARCH. To the extent Search is named as a defendant in
any claim or cause of action, including the X'Xxxx case,
brought against Xxxxx and Search, Search may settle such
matters on its own behalf without the concurrence of Xxxxx,
but shall not attempt to bind Xxxxx in any manner. Search
shall use reasonable effort in any
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such settlement to inform Xxxxx of the terms and conditions of
such settlement agreement and to structure any settlement
agreement in a way or manner that does not adversely affect
the interests of Xxxxx.
c. JOINDER. If the settlement of any matter in which Xxxxx and
Search are named as co-defendants requires the joinder and/or
consent of either of them, such joinder and/or consent shall
not be unreasonably withheld, conditioned, or delayed by
either of them.
8. DISPUTE OF SETTLEMENT TERMS
a. BY XXXXX. Xxxxx hereby agrees that as a co-defendant in any
suit in which he and Search are named that he will not bring
any claim or cause of action against Search in relation to the
terms and conditions of any settlement of such matters made by
Search.
b. BY SEARCH. Search hereby agrees that as a co-defendant in any
suit in which it and Xxxxx are named that it will not bring
any claim or cause of action against Xxxxx in relation to the
terms and conditions of any settlement of such matters made by
Xxxxx.
9. MISCELLANEOUS PROVISIONS
a. PROFESSIONAL FEES. Search shall be responsible and pay for
the reasonable attorneys' fees and accountants' 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.
b. REPRESENTATIONS AND WARRANTIES OF SEARCH. Search represents
and warrants that the execution, delivery, and performance of
this Agreement have 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.
c. INDEMNITY BY SEARCH. Search agrees to indemnify, save, and
hold Xxxxx harmless from and against costs, expenses, or
disbursements (including reasonable attorneys' fees),
liabilities, obligations, losses, damages, penalties, actions,
judgments, or suits of any kind or nature whatsoever INSOFAR
ONLY such relate to a breach or alleged breach of a
representation or warranty of Search under Section 9.b. On
any action for which indemnity is provided under the foregoing
sentence, Search agrees, if requested, to advance from time to
time attorneys' fees and costs incurred by Xxxxx.
d. 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.
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e. 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.
f. 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 A COURT OF COMPETENT JURISDICTION IN
DALLAS COUNTY, TEXAS.
g. INJUNCTIVE RELIEF. Because the parties hereto may not have an
adequate remedy at law, any of the parties hereto may apply
for and receive without objection from any of the other
parties' equitable relief including but not limited to
specific performance, temporary restraining order, or
permanent injunctions. Any of these remedies if elected shall
be in addition to any other remedies that the parties may have
at law or in equity and may be obtained concurrently with the
exercise of any other remedy available to any of the parties
at law or in equity.
h. 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.
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. 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)
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Xxx X. Xxxxx, Jr. With a copy to (not constituting
0000 Xxxxxxx Xxxxx notice):
Xxxxxx, Xxxxx 00000
000 000 0000 Xxxxx X. Xxxxxxxx, Esq.
000 000 0000 (fax) 0000 X. Xxxxxxxxx Xxxx., Xxxxx X
Xxxxxxxxx, Xxxxx 00000-0000
000 000 0000
000 000 0000 (fax)
k. 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.
l. COUNTERPART. This agreement may be executed in dual
counterparts, each of which shall constitute an original.
IN WITNESS HEREOF, the parties have signed this Agreement as of the
date first written above.
SEARCH CAPITAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx
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Its: President and CEO
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/s/ Xxx X. Xxxxx, Jr.
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