Ex. 10.9
STOCK PURCHASE AGREEMENT
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This Agreement is executed on this the 31st day of August, 2000 by and
between XXXXXXX INSURANCE GROUP, INC., a South Carolina corporation hereinafter
referred to as "Seller;" THE XXXXXXX GROUP, INC., a South Carolina corporation
hereinafter referred to as "Group;" and XXXXXXX LIFE PARTNERS, INC., a South
Carolina corporation hereinafter referred to as the "Buyer."
RECITALS
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WHEREAS, the Buyer currently owns 90% of all of the issued and
outstanding capital stock of Xxxxxxx RBE, Inc. (the "Company") and the remainder
of said stock (the "Subject Shares") is currently owned by TIG; and
WHEREAS, Seller carries on a business unlike that of the Company and
desires to sell its interest in the Company at the Total Purchase Price herein
set forth; and
WHEREAS, Group is the ultimate parent corporation of Seller and is owed
substantial sums by the Company and its affiliates which have been advanced by
Group to the Company to sustain the Company in light of losses incurred by the
Company as a result of developing operations and Buyer is requiring that Group
make certain representations and warranties herein set forth before Buyer will
consummate the herein contemplated transactions; and
WHEREAS, Group is willing to cooperate with the herein contemplated
transactions and to make the representations and warranties herein required by
Buyer but only if Buyer satisfies all debt owed to it by Buyer, the Company and
their direct and indirect subsidiaries (hereinafter collectively referred to as
the "Consolidated Entity"); and
WHEREAS, Buyer is desires to acquire the Subject Shares on the terms
and conditions herein contained.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for the other good and valuable consideration,
the sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
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SALE OF STOCK AND CLOSING
1.1 Purchase and Sale. Seller hereby transfers to Buyer all right,
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title and interest in the Subject Shares to the Seller free and clear of all
encumbrances whatsoever upon the terms and subject to the conditions set forth
in this Agreement. Seller shall contemporaneously herewith cause the endorsement
of the ownership of all of said
Subject Shares over to Buyer. Buyer shall immediately cause the corporate
records of the Company to reflect Buyer as its sole shareholder.
1.2 Total Purchase Price. As full consideration for execution of this
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Agreement by Seller and for its consummation of the transactions herein
contemplated, Buyer shall pay to Seller the "Total Purchase Price" which shall
be an amount equal to SEVENTY FIVE THOUSAND AND 00/100 DOLLARS ($ 75,000.00)
payable in cash contemporaneously herewith. By executing this Agreement, Seller
acknowledges receipt of said Total Purchase Price.
1.3 Debt Owed by the Company to Group. Group agrees to cooperate with the
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herein contemplated transactions by making the herein required representations
and warranties. In consideration therefore, Buyer agrees to satisfy in full all
debt (the "Group Debt") currently owed by the Consolidated Entity to Group as
follows:
(a) Contemporaneously herewith, Buyer shall pay to Group the sum of FIVE
MILLION, FOUR HUNDRED SEVENTY FOUR THOUSAND, TWO HUNDRED FIFTY FOUR
and 00/100 DOLLARS ($ 5,474,254.00) which represents the amount of the
Group Debt as of July 31, 2000 (the "Estimated Group Debt"), the last
day on which a full accounting of such Group Debt was available to the
parties with further amounts being advanced and repaid in the interim.
By executing this Agreement, Group acknowledges its receipt of
$5,474,254.00 in cash in full satisfaction of the Estimated Group
Debt; and
(b) On September 28, 2000, when a final accounting of the Group Debt will
be available to the parties thereto, Buyer and Group will agree on the
Amount of the Group Debt as of the date of this Agreement (the "Final
Group Debt") and shall settle same within 7 days thereafter as
follows:
(i) To the extent the Estimated Group Debt exceeds the Final Group
Debt, Group shall pay Buyer an amount equal to the result
obtained by taking the Estimated Group Debt and subtracting the
Final Group Debt therefrom; or
(ii) To the extent the Final Group Debt exceeds the Estimated Group
Debt, Buyer shall pay to Group an amount equal to the result
obtained by taking the Final Group Debt and subtracting the
Estimated Group Debt therefrom.
1.4 Closing. Wherever the term "Closing Date" may appear herein, said term
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shall refer to the Date of this Agreement.
1.5 Effective Date. The transactions contemplated herein shall be deemed
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effective as of this date (the "Effective Date").
ARTICLE II
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Representations and Warranties of Sellers
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Seller and Group each hereby represents and warrants to Buyers as follows:
2.1 Organization of the Company. The Company is a South Carolina
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corporation duly organized, validly existing, and in good standing under the
laws of South Carolina, and has full corporate power and authority to enter into
this Agreement and to perform its obligations under this Agreement.
2.2 Authority. The execution, delivery and compliance with the terms
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of this Agreement by the Seller and the performance by the Seller of its
obligations hereunder has been duly and validly authorized by all necessary
corporate action on part of Seller. This Agreement has been duly executed and
delivered by Seller and constitutes a legal, valid and binding obligation of
Seller and is enforceable against Seller in accordance with its terms to the
extent that (a) enforcement may be limited by or subject to any bankruptcy,
insolvency, reorganization, moratorium, or similar laws now or hereafter in
effect relating to or limiting creditors' rights generally, and (b) the remedy
of specific performance and injunctive and other forms of equitable relief are
subject to equitable defenses and to the discretion of the court before which
any proceeding therefore may be brought.
2.3 No Conflicting Agreements. Neither the execution and delivery of
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this Agreement by Seller, nor the performance by Seller of its obligations under
this Agreement will:
(a) Violate any term or provision of any law or any writ,
judgment, decree, injunction, or similar order ("Order")
applicable to Seller that has a material adverse affect on
the Assets of the Company or the Company's capital stock
being purchased by Buyer;
(b) Conflict or result in a violation or breach of or constitute
a default under, any material term, condition, or provision
of the Articles of Incorporation or by-laws of either the
Seller or the Company that has material adverse affect on
the Assets of the Company or any rights of Buyer with
respect to the capital stock of the Company being purchased
consistent herewith;
(c) Result in the creation or imposition of any lien or other
encumbrance upon any of the Assets of the Company or the
capital stock that Buyer is purchasing from Seller;
(d) Conflict with or result in a violation or breach of, or
constitute a default under, or give to any person or entity
any right to the termination, cancellation, or acceleration
with respect to, any contract to which the Company is a
party or is otherwise bound or
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with respect to which the Company has rights or would derive
benefit therefrom or by which any of the Company's Assets
may be bound, and as to which any such conflicts,
violations, breaches, defaults or rights have a material
adverse effect on the Assets or capital stock or value of
the Company; or
(e) Require Seller to obtain any consent, approval or action, or
make any filings with or give any notice to, any person or
entity except as disclosed by Seller to Buyer in writing on
or before the date of this Agreement.
2.4 Litigation. Seller is not a party to a lawsuit, in which claims
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have been made against the Subject Shares and no court of competent jurisdiction
has entered a judgment against the Seller which requires the Seller to turn over
all or a portion of the Subject Shares and no judgment or other lien has been
filed against or with respect to the Subject Shares.
2.5 Title to Shares. Seller is the direct owner of all of the Subject
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Shares free and clear of all options, liens, claims, charges or other
encumbrances whatsoever. There are no outstanding options or other rights to
acquire any of the Subject Shares.
ARTICLE III
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Representations and Warranties of BUYER
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BUYER represents and warrants to Seller as follows:
3.1 Organization. Buyer is a South Carolina corporation duly
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organized, validly existing, and in good standing under the laws of South
Carolina and has full corporate power and authority to enter into this Agreement
and to perform its obligations under this Agreement.
3.2 Authority. The execution, delivery and compliance of the terms of
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this Agreement by Buyer and the performance by Buyer of its obligations
hereunder have been duly and validly authorized by all necessary corporate
action on the part of the Buyer. This Agreement has been duly executed and
delivered by Buyer and constitutes a legal, valid and binding obligation of
Buyer and is enforceable against Buyer in accordance with its terms, except to
the extent that (a) enforcement may be limited by or subject to any bankruptcy,
insolvency, reorganization, moratorium or similar laws now or hereafter relating
to or limiting creditor's rights generally, and (b) the remedy of specific
performance and injunctive in other forms of equitable relief are subject to the
certain equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought.
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ARTICLE IV
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Survival of Representations and Warranties
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All representations, warranties, covenants and agreements contained
herein and all lists, descriptions, Exhibits and other documents delivered under
this Agreement in connection with the transactions contemplated hereby, are true
now in all material respects and are binding and will survive this Closing
regardless of any due diligence, investigation, expressed or implied, approval
or acceptance on behalf of any party hereto.
ARTICLE V
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Indemnity
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5.1 Indemnification By Seller and Group. Except as otherwise provided
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in this Agreement, unless expressly disclosed to Buyer herein or on a schedule
hereto, Seller and Group each hereby agrees, jointly and severally, to indemnify
and save harmless Buyer from and against any and all damages, fines, costs,
fees, penalties, deficiencies, losses, amounts paid in settlement and expenses
(including without limitation interest, court costs, reasonable fees of
attorneys, accountants and other experts or other expenses of litigation or
other proceedings or of any claim, default or assessment) ("Losses"), incurred
or suffered by Buyer arising out of or caused by or relating to any of the
following:
(a) the falsity or incorrectness or breach of any
representation or warranty made by either the Seller or Group in this
Agreement or in any Schedule, Exhibit, certificate or agreement
furnished to Buyer by Seller and/or Group pursuant to this Agreement;
(b) the failure of Seller to perform when required any covenant
or agreement to be performed by him under this Agreement or under any
schedule, certificate or agreement furnished to Buyer by either Seller
or Group pursuant to this Agreement;
5.2 Indemnification by Buyer. Buyer hereby agrees to indemnify and
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save harmless Seller from and against any and all Losses, incurred or suffered
by Seller arising out of or related to any of the following:
(a) the falsity or incorrectness of any representation or
warranty made by the Buyer in this Agreement or in any Schedule,
certificate or agreement furnished to Seller by Buyer pursuant to this
Agreement (determined without
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regard for any materiality qualifications in such agreements, schedules
or certificates);
(b) the failure of Buyer to perform when required any covenant
or agreement to be performed by it under this Agreement or under any
schedule, certificate or agreement furnished to Seller by Buyer
pursuant to this Agreement; or
(c) the conduct of the business of the Company from and after
the date of this Agreement.
ARTICLE VI
Miscellaneous
6.1 Entire Agreement. Except for documents executed by Seller and
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Buyer pursuant hereto, this Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter of this
Agreement, and this Agreement, including Exhibits hereto and the other documents
delivered in connection herewith, contain the sole and entire Agreement between
the parties hereto with respect to the subject matter hereof.
6.2 Expenses. Except as otherwise expressly provided in this
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Agreement, each party will pay its own costs and expenses in connection with
this Agreement and the transactions contemplated hereby.
6.3 Amendment. This Agreement may be modified or amended only by a
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subsequent written agreement duly executed by all parties hereto.
6.4 Number/Gender. Wherever used herein, the singular shall include
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the plural and the plural shall include the singular. Wherever used herein, the
genders shall be interchangeable.
6.6 Counterparts. This Agreement, may be executed simultaneously in
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any number of counterparts, each of which will be deemed an original, but all of
which will together constitute one and the same instrument.
6.7 Governing Law. This Agreement will be governed by and construed
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in accordance with the laws of the State of South Carolina (without regard to
the principals of conflict of laws embodied therein) applicable to a contract
executed and performed, in such state.
6.8 Binding Effect. This Agreement is binding upon and will inure to
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the benefit of the parties and their respective successors and permitted
Assignees.
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6.9 No Assignment. Except as otherwise provided herein, neither this
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Agreement or any part hereof, nor any rider obligation hereunder may be assigned
by any party hereto without the prior written consent of the other parties
hereto, and any attempt to do so will be void.
6.10 Invalid Provisions. If any provision of this Agreement is held to
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be illegal, invalid, or unenforceable under any present or future law, and if
the rights or obligations of Seller and Buyer under this Agreement will not be
materially and adversely affected thereby (a) such provision will be fully
severable; (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised of a part hereof; (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be effected by the illegal, invalid or unenforceable provision or by
its severance therefrom; and (d) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms that such
illegal, invalid or unenforceable provision as may be possible.
6.11 Arbitration. (a) Any dispute, controversy, difference or claim
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arising out of, relating to or in connection with this Agreement, any
transaction hereunder or breach hereof shall be finally settled by arbitration
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect by one arbiter appointed in accordance with such
rules. The arbiter's award shall be final and binding. Judgment upon the award
rendered by the arbiter may be entered in any court having jurisdiction thereof.
The arbitration shall take place in Richmond, Virginia or such other place as
the parties may agree. The arbitral award shall include (i) a provision that the
prevailing party in such arbitration shall recover its costs of the arbitration
and reasonable attorneys' fees from the other party, and (ii) the amount of such
costs and fees.
(b) Notwithstanding subsection (a), either party may, if it believes that it
requires or is entitled to injunctive relief, file a civil action in any court
having jurisdiction seeking injunctive relief. Any claim to or demand for
monetary damages shall, however, be governed exclusively by the provisions for
arbitration set forth in subsection (a).
6.12 Third Parties. This Agreement is not intended to confer upon any
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person or entity who or which is not a party to this Agreement any rights or
remedies hereunder.
6.13 Additional Documents. The parties shall execute and deliver any
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and all additional instruments and agreements that may be necessary or proper to
carry out the purposes of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties as of the date first above
written.
Attest: Xxxxxxx Insurance Group, Inc.
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(Attach Seal)
/s/ Xxxxx X. Xxxx By /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxx, Secretary Xxxxx X. Xxxxxxx, President
Attest: The Xxxxxxx Group, Inc.
(Attach Seal)
/s/ Xxxxx X. Xxxx By /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxx, Secretary Xxxxx X. Xxxxxxx, President
Attest: Xxxxxxx Life Partners, Inc.
(Attach Seal)
/s/ Xxxxx X. Xxxxxxxxxx By /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxxxxx, Secretary Xxxxx X. Xxxxxxx, President
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