Exhibit 10.14
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is made and entered into as of
the 26th of July, 2001, by and between the following:
XXXXXXX X. XXXXX, an individual residing in the State of California
(hereinafter "BUYER")
and EMB CORPORATION, a Hawaii corporation (hereinafter "EMB").
W I T N E S S E T H
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WHEREAS, subject to the terms and conditions of this Agreement, BUYER and
EMB desire for BUYER to purchase from EMB and for EMB to sell to BUYER all of
the oustanding common stock of EMB MORTGAGE CORPORATION, a California
corporation (the "EMB Mortgage Stock" and "EMB Mortgage", respectively); and
WHEREAS, BUYER deems it desirable and in his best interests to purchase the
EMB Mortgage Stock in consideration of the delivery by BUYER to EMB of cash in
the amount of Ten Dollars ($10.00); and
WHEREAS, the Board of Directors of EMB deems it desirable and in the best
interests of EMB and its stockholders that EMB sell the EMB Mortgage Stock,
which constitutes a minority portion of its assets, as determined by the current
book and fair market values of all of its assets; and
WHEREAS, BUYER and EMB desire to provide for certain undertakings,
conditions, representations, warranties, and covenants in connection with the
transactions contemplated by this Agreement; and
WHEREAS, the Board of Directors of EMB has approved and adopted this
Agreement, subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto do hereby agree as follows:
SECTION 1
DEFINITIONS
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1.1 "Agreement," "BUYER", "EMB" and "EMB Mortgage Stock"" and "EMB
Mortgage", respectively, shall have the meanings defined on the cover page and
in the foregoing preamble and recitals to this Agreement.
1.2 "Closing Date" shall mean 10:00 a.m., local time, July 26, 2001, at
0000 Xxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000, the date on
which the parties hereto shall close the transactions contemplated herein;
provided that the parties can change the Closing Date and place of Closing to
such other time and place as the parties shall mutually agree, in writing. As of
the Closing Date, all Exhibits to this Agreement shall be complete and attached
to this Agreement.
SECTION 2
AGREEMENT FOR PURCHASE AND SALE OF EMB MORTGAGE STOCK
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2.1 Substantive Terms of the Purchase and Sale of EMB Mortgage Stock.
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(a) EMB shall sell and deliver to BUYER the EMB Mortgage Stock in a
form enabling BUYER then and there to become the record and beneficial
owner of said common stock.
(b) EMB shall continue to bear all expenses of litigation, including
attorneys fees and associated costs, which are associated with that certain
pending legal proceedings entitled (i) "EMB Corporation and EMB Mortgage
Corporation vs. Xxxxxx X. Brick, Xxxxxxxx X. Brick, FMB Corporation and
Does 1 through 00, Xxxxxxxx Xxxxx of the State of California, County of
Orange, Case No. 00CC08083 (the "Brick California Case") and (ii) IMPAC
Funding Corporation vs. EMB Mortgage Corporation, et. al., Superior Court
of the State of California, County of Monterey, Case No. M50028 (the "IMPAC
case"). With respect to the Brick California Case, EMB shall be entitled to
the entire judgment, if any, obtained by plaintiffs therein against
defendants therein. With respect to the IMPAC case, EMB, at its sole
option, elect to assist EMB Mortgage in reaching a resolution of the
pending legal action.
2.2 Consideration Paid by BUYER. BUYER shall deliver to EMB $10.00 in good
funds.
SECTION 3
CLOSING AGREEMENTS AND POST-CLOSING
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3.1 Closing Agreements. On the Closing Date, the following activities shall
occur, the following agreements shall be executed and delivered, and the
respective parties thereto shall have performed all acts that are required by
the terms of such activities and agreements to have been performed
simultaneously with the execution and delivery thereof as of the Closing Date:
(a) EMB shall have executed and delivered documents to BUYER
sufficient then and there to transfer record and beneficial ownership of
the EMB Mortgage Stock to BUYER;
(b) BUYER shall have delivered to EMB $10.00 in good funds.
SECTION 4
MISCELLANEOUS
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4.1 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if written and delivered in person or sent
by registered mail, postage prepaid, addressed as follows:
to EMB: EMB Corporation
Attention: Chief Executive Officer
0000 Xxxxxx, Xxxxx X
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
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copy to: Xxxxx Xxxx LLP
(which shall not Attention: Xxxxxxx X. Xxxx, Esq.
constitute notice) 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
to BUYER: Xxxxxxx X. Xxxxx
or such other address as shall be furnished in writing by the appropriate
person, and any such notice or communication shall be deemed to have been given
as of the date so mailed.
4.2 Time of the Essence. Time shall be of the essence of this Agreement.
4.3 Costs. Each party will bear the costs and expenses incurred by him or
it in connection with this Agreement and the transactions contemplated hereby.
4.4 Entire Agreement and Amendment. This Agreement and documents delivered
at the Closing Date hereunder contain the entire agreement between the parties
hereto with respect to the transactions contemplated by this Agreement and
supersedes all other agreements, written or oral, with respect thereto. This
Agreement may be amended or modified in whole or in part, and any rights
hereunder may be waived, only by an agreement in writing, duly and validly
executed in the same manner as this Agreement or by the party against whom the
waiver would be asserted. The waiver of any right hereunder shall be effective
only with respect to the matter specifically waived and shall not act as a
continuing waiver unless it so states by its terms.
4.5 Counterparts. This Agreement may be executed in one or more
counterparts each of which shall be deemed to constitute an original and shall
become effective when one or more counterparts have been signed by each party
hereto and delivered to the other party.
4.6 Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of California.
4.7 Attorneys' Fees and Costs. In the event any party to this Agreement
shall be required to initiate legal proceedings to enforce performance of any
term or condition of this Agreement, including, but not limited to, the
interpretation of any term or provision hereof, the payment of monies or the
enjoining of any action prohibited hereunder, the prevailing party shall be
entitled to recover such sums, in addition to any other damages or compensation
received, as will reimburse the prevailing party for reasonable attorneys' fees
and court costs incurred on account thereof (including, without limitation, the
costs of any appeal) notwithstanding the nature of the claim or cause of action
asserted by the prevailing party.
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4.8 Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, successors, and assigns, as the case may be.
4.9 Access to Counsel. Each party hereto acknowledges that each has had
access to legal counsel of her or its own choice and has obtained such advice
therefrom, if any, as such party has deemed necessary and sufficient prior to
the execution hereof. Each party hereto acknowledges that the drafting of this
Agreement has been a joint effort and any ambiguities or interpretative issues
that may arise from and after the execution hereof shall not be decided in favor
or, or against, any party hereto because the language reflecting any such
ambiguities or issues may have been drafted by any specific party or her or its
counsel.
4.10 Captions. The captions appearing in this Agreement are inserted for
convenience of reference only and shall not affect the interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EMB CORPORATION
by: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, President
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
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