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EXHIBIT 10.4
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement, dated as of April 27, 2000 (this
"Agreement"), among FNC Holdings Inc., a New York Corporation (the "Seller"),
Cypress Merchant Banking Partners, L.P., a Delaware limited partnership
("CMBP"), and Cypress Garden Ltd., a Cayman Islands exempted company with
limited liability ("Cypress Garden"; together with CMBP, the "Cypress
Entities").
WITNESSETH:
WHEREAS, on the Closing Date (defined below), the Cypress Entities
desire to make an additional investment in the Seller, through the purchase from
the Seller of 2,801,204 shares of its common stock, par value $1.00 per share
(the "Stock"); and
WHEREAS, the Seller has agreed to sell to the Cypress Entities, and the
Cypress Entities have agreed to purchase from the Seller, such shares of Stock,
all pursuant to the terms and conditions of this Agreement; and
WHEREAS, the Seller and the Cypress Entities desire to set forth herein
certain representations, warranties and covenants made by each to the other as
an inducement to the consummation of the transactions contemplated hereby; and
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. Defined Terms. For purposes of this Agreement, the term:
"Closing" is defined in Section 3.
"Closing Date" is defined in Section 3.
"Governmental Entity" means any court or tribunal in any jurisdiction
or any public, governmental or regulatory body, agency, department, commission,
board, bureau or other authority or instrumentality.
"Lien" means any mortgage, chattel mortgage, deed of trust, pledge,
claim, charge, attachment, security interest, financing statement, encumbrance,
lien, easement, restriction, judgment, segregation, charge, deposit arrangement,
conditional sales contract or other contractual restriction of any nature
whatsoever upon any of the assets of any Person.
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"Person" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust,
governmental authority or body, unincorporated organization, other
entity or group.
SECTION 2. Purchase of Stock. (a) On the terms and subject to the
conditions of this Agreement, the Seller shall, at the Closing and on the
Closing Date, sell, transfer, convey and deliver to CMBP, and CMBP shall
purchase from the Seller, 2,663,282 shares of Stock (the "CMBP Purchased Stock")
for the cash purchase price of $14,261,449.85 (the "CMBP Purchase Price").
(b) On the terms and subject to the conditions of this Agreement, the
Seller shall, at the Closing and on the Closing Date, sell, transfer, convey and
deliver to Cypress Garden, and Cypress Garden shall purchase from the Seller,
137,922 shares of Stock (the "Cypress Garden Purchased Stock") for the cash
purchase price of $738,550.15 (the "Cypress Garden Purchase Price").
(c) On the terms and subject to the conditions of this Agreement, at
the Closing and on the Closing Date, (i) Cypress Garden shall pay, or cause to
be paid, to the Seller by wire transfer in immediately available funds to one
or more bank accounts designated by the Seller an aggregate amount equal to the
Cypress Garden Purchase Price; (ii) CMBP shall pay, or cause to be paid, to the
Seller by wire transfer in immediately available funds to one or more bank
accounts designated by the Seller, an aggregate amount equal to the CMBP
Purchase Price and (iii) the Seller shall deliver to the Cypress Entities (A) a
certificate, registered in CMBP's name, representing the CMBP Purchased Stock
and (B) a certificate, registered in Cypress Garden's name, representing the
Cypress Garden Purchased Stock.
SECTION 3. Closing Date. The closing (the "Closing") of the purchase
and sale of the Stock provided for in Section 2 shall take place at the offices
of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00
a.m., New York City time, on April 27, 2000, or at such other place and time or
on such other date as the parties may agree. The date on which the Closing
occurs is herein called the "Closing Date".
SECTION 4. Representations and Warranties of the Seller. (a) The Seller
hereby represents and warrants to each of the Cypress Entities as of the date
hereof and as of the Closing on the Closing Date that:
(i) Execution and Validity of Agreement. The Seller is a
corporation duly organized, validly existing and in good standing under
the laws of the state of its organization. The Seller has all requisite
power and authority to execute and deliver this Agreement and to
perform its respective obligations hereunder and consummate the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement by the Seller and the consummation by the
Seller of the transactions contemplated hereby have been duly
authorized by the Seller. This Agreement has been duly executed and
delivered by the Seller and, assuming due authorization, execution and
delivery by Cypress Entities, will constitute a legal, valid and
binding agreement of the
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Seller, enforceable against the Seller in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
(ii) No Conflict. The execution and delivery of this Agreement and the
performance by the Seller of the transactions contemplated hereby will not (A)
violate or conflict with any provision of the Seller's articles of
incorporation, (B) result in the violation or breach of, or constitute (with or
without the giving of notice or the lapse of time or both) a default (or give
rise to any right of termination, cancellation or acceleration) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture, deed
of trust, lease, contract, agreement, license or other instrument or obligation
to which the Seller is a party or by which any of its properties or assets may
be bound, (C) result in the creation of any Lien or the loss of any license or
other contractual right with respect thereto, or (D) violate any provision of
any law, order, writ, injunction, decree, statute, rule, judgment, decree,
restriction or ruling of any Governmental Entity applicable to either of the
Cypress Entities or their properties or assets.
(iii) Consents and Approvals. No registration, filing, application,
notice, consent, approval, order, qualification or waiver is required to be
made, filed, given or obtained by the Seller with, to or from any Persons or
Governmental Entity or private agencies in connection with the execution,
delivery or performance by the Seller of this Agreement or the consummation of
the transactions contemplated hereby.
(iv) Share Capital. The authorized capital stock of the Seller consists
of 100,000,000 shares of common stock, of which 31,000,000 shares are
outstanding (excluding shares to be purchased under this Agreement) and
69,000,000 shares are reserved for issuance. The CMBP Purchased Stock and the
Cypress Garden Purchased Stock are duly authorized, validly issued, fully paid
and non-assessable shares of the Seller.
(b) The representations and warranties made by the Seller shall survive
the closing of the transactions contemplated hereby.
SECTION 5. Registration Rights. Seller hereby grants to each of CMBP
and Cypress Garden the rights to have the Stock registered under the Securities
Act of 1933 as provided in the Registration Rights Agreement entered into among
Seller and the Cypress Entities as of December 23, 1997.
SECTION 6. Further Actions. Subject to the terms and conditions hereof,
each of the parties hereto agrees to use its reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective the transactions
contemplated by this Agreement.
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SECTION 7. Execution in Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become a binding agreement when one or more counterparts
have been signed by each party and delivered to the other parties.
SECTION 8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Miscellaneous. (a) Seller agrees that, whether or not the
transactions contemplated by this Agreement are consummated, Seller will pay or
cause to be paid all costs and expenses arising in connection with the
preparation, execution, administration and enforcement of, and the preservation
of rights under, this Agreement, and all taxes (other than taxes based on
income), fees or other charges that may be payable in connection with the
transactions contemplated hereby.
(b) Whether or not the transactions contemplated hereby are
consummated, Seller agrees to indemnify and hold harmless each Cypress Entity
and all limited and general partners or shareholders of each Cypress Entity from
and against any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, attorneys' fees, expenses and disbursements of
any kind which may be imposed upon, incurred by or asserted against each Cypress
Entity (or any partner or shareholder thereof) in any manner relating to or
arising out of (i) such Cypress Entity's purchase and/or ownership of the Stock
or (ii) any litigation to which such Cypress Entity (or any of its partners or
shareholders) is made a party in its capacity as a shareholder or owner of
securities (or a partner or shareholder of a shareholder or owner of securities)
of Seller.
(c) Notwithstanding any other provision of this Agreement, neither the
general partner nor the limited partners nor the shareholders nor any future
general or limited partner or shareholder of a Cypress Entity shall have any
liability for performance of any obligation of a Cypress Entity under this
Agreement in excess of the respective capital contribution of such general
partner, limited partners or shareholders to such Cypress Entity.
SECTION 10. Titles and Headings. Titles and headings to Sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
SECTION 11. Successors and Assigns. This Agreement may be assigned by
either Cypress Entity without the prior written consent of the Seller. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors in interest and assigns.
SECTION 12. Severability. If any provision of this Agreement shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement shall not be affected and
shall remain in full force and effect.
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SECTION 13. Submission To Jurisdiction. Each party hereto expressly
waives its own jurisdiction or any other jurisdiction that would be available to
it, and hereby expressly, irrevocably unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof,
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by courier (or any substantially similar
form of delivery) to its address; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to xxx
in any other jurisdiction.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered on the date first set forth above.
FNC HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
CYPRESS MERCHANT BANKING PARTNER,
L.P.
By: Cypress Associates, L.P., as
General Partner
By: The Cypress Group, L.L.C, as
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Member
CYPRESS GARDEN LTD.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Director
