EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
This Agreement made this 31st day of March, 1999, by and
between XXXXXXXX XXXXXXXX (hereinafter "SELLER") and FIRST RESERVE, INC., a
Florida corporation (hereinafter ""BUYER").
The BUYER and SELLER have reached an agreement with respect to
the sale and purchase of all the outstanding corporate shares of Columbia Title
of Florida, Inc., a Florida corporation engaged in the business of closing real
estate and mortgage loan transactions (hereinafter the "COMPANY").
It is therefore agreed:
1. SALE OF CORPORATE SHARES. The SELLER shall sell to the BUYER and the
BUYER shall purchase from SELLER all of SELLER's shares of the COMPANY at the
price of One Hundred and no/100ths Dollars ($100.00) on the terms set forth
herein.
As additional consideration for the purchase of all of SELLER's stock
in the COMPANY, BUYER agrees that if SELLER within 90 days after the closing
herein, negotiates to conclusion the sale of the assets of the Key Largo branch
office, SELLER shall receive the net proceeds of the sale of the assets. Net
proceeds is the gross proceeds less any expenses and/or tax liabilities (tax
liabilities estimated to be 15% of the gross sales price) incurred by the
COMPANY. In the event, SELLER is unable to effectuate the sale of the assets of
the Key Largo branch office within 90 days after the closing herein, BUYER
agrees to transfer the Key Largo branch office within 90 days after the closing
herein, BUYER agrees to transfer the Key Largo branch assets to SELLER's
existing corporation, Columbia Title of the Florida Keys, Inc. and BUYER will
absorb up to $3,000.00 in costs associated with the necessary application of
Columbia Title of the Florida Keys, Inc. to be appointed a title insurance agent
and related costs such as E & O insurance and posting of a surety bond. During
the ninety days after closing herein, if the Key Largo branch office has excess
income over and above expenses, BUYER agrees that the COMPANY will pay the
excess income to SELLER as additional salary.
2. CLOSING. The closing of the sale shall take place at 0000 Xxxxx xx
Xxxx Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx on March 31, 1999. At the closing, BUYER
shall deliver to SELLER a check for One Hundred Dollars ($100.00) in exchange
for SELLER's
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certificate of shares equalizing the total shares of outstanding stock, with all
requisite transfer stamps attached. In addition, BUYER will deposit in COMPANY's
account a check for One Hundred and Fifty Thousand Dollars ($150,000.00) as
additional paid-in capital. BUYER will assume responsibility for the payment of
the unreimbursed corporate expenses and accounts payable of the COMPANY attached
hereto and made a part hereof as Exhibit A.-1.
3. REPRESENTATIONS AND WARRANTIES. The SELLER represents and warrants
as follows:
A. Organization and standing of company. The COMPANY is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of Florida. Copies of the COMPANY's Certificate of
Incorporation, and all amendments thereof to date, certified by the Secretary of
the State of Florida, and of the COMPANY's By-Laws as amended to date, certified
by the COMPANY's Secretary have been delivered to the BUYER or shall be
delivered to the BUYER at least one week before the closing; are complete and
correct as of the date of this Agreement. The COMPANY is duly licensed or
qualified as a title insurance agency by the State of Florida.
B. Subsidiaries. The COMPANY has no subsidiaries.
C. Capitalization. The aggregate number of shares which the
COMPANY is authorized to issue is 100 common shares, of which 98 shares are
issued and presently outstanding. All such issued shares have been validly
issued and are fully paid. The COMPANY has no outstanding subscriptions,
contracts, options, warrants or other obligations to issue, sell or otherwise
dispose of, or to purchase, redeem or otherwise acquire any of its shares.
D. Share Ownership. SELLER represents and warrants that she is
the owner, free and clear of any encumbrances, of all of the COMPANY's shares of
outstanding stock and has full right and authority to transfer said shares to
BUYER and that there are no other shares of the COMPANY owned or claimed by any
other person or entity.
E. Absence of certain changes. Since December 31, 1998, there
has not been (1) any change in the COMPANY's financial condition, assets,
liabilities, or business, other than changes in the ordinary course of business,
none of which has been materially adverse; (2) any damage, destruction, or loss,
whether or not covered by insurance, materially and adversely affecting the
COMPANY's assets or business; (3) any declaration
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or setting aside, or payment of any dividend or other distribution in respect of
the COMPANY's shares, or any direct or indirect redemption, purchase or other
acquisition of any of such shares; (4) any increase in the compensation payable
or to become payable by the COMPANY to any of its officers, employees, or
agents, or any bonus payment or arrangement made to or with any of them; or (5)
any event or condition of any character, materially and adversely affecting the
COMPANY's business or prospects.
F. Title to assets. The COMPANY has good and marketable title
to all its assets, including those reflected in the Balance Sheet (except as
sold or otherwise disposed of in the ordinary course of business), subject to no
security interests, mortgage, pledge, lien, encumbrance, or charge, except for
liens shown on the Balance Sheet as securing specified liabilities set forth
therein (with respect to which no default exists).
G. Condition of equipment. All COMPANY equipment is in good
operating condition and repair.
H. Contracts. The COMPANY has no contract or commitment
extending beyond 3-31-99, or involving payment by the COMPANY of more than $300
per month, except as follows: Contract for storage at approximately $200 per
month and subleases for space within COMPANY's leased premises, monthly
contracts for 5 parking spaces at $30.00 per space per month, E & O insurance
and group health insurance. True and complete copies of all of the foregoing
have been delivered to the BUYER. The COMPANY has complied with all the
provisions of such instruments and of all other contracts and commitments to
which it is a party and is not in default under any of them.
I. Litigation. SELLER represents that there is no litigation
or proceeding pending, or the SELLER's knowledge threatened, against or relating
to the COMPANY, its assets or business, nor does the SELLER know or have reason
to know or have reasonable grounds to know of any basis for any such action, or
of any governmental investigation relative to the COMPANY, and/or its business.
J. Leases, Contracts, and Licenses. SELLER represents and
warrants that the transfer of its shares in accordance with the terms of this
agreement will not constitute a prohibited assignment or transfer of any of its
licenses, leases, or contracts, and that all of the foregoing will remain in
full force and effect without acceleration as a result of this transaction.
K. Disclosure. No representation or warrant by the SELLER in
this Agreement, nor any statement or certificate furnished or to be furnished to
the buyer
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pursuant hereto, or in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements contained
herein or therein not misleading.
4. ACCESS AND INFORMATION. The SELLER shall cause the COMPANY to give
the BUYER and BUYER's counsel, accountants, and other representatives full
access, during normal business hours throughout the period prior to the closing,
to all of the COMPANY's books, contracts, commitments and records and shall
furnish to BUYER during such period with all such information concerning the
company's affairs as the BUYER reasonably may request.
5. CONDUCT OF BUSINESS PENDING CLOSING The SELLER covenants that,
pending the closing:
A. The COMPANY's business will be conducted only in the
ordinary course.
B. No change will be made in the COMPANY's Certificate of
Incorporation or by-Laws, except as may be first approved in writing by the
BUYER.
C. No change will be made in the COMPANY's authorized or
issued corporate shares.
D. No dividend or other distribution or payment will be
declared or made in respect of the COMPANY's corporate shares.
E. No increase will be made in the compensation payable or to
become payable by the COMPANY to any officer, employee, or agent nor will any
bonus payment or arrangement or other benefit be paid by the COMPANY to or with
any officer, employee or agent.
F. NO change will be made affecting the personnel,
compensation payments, or banking or safe deposit arrangements referred to in
subparagraph (m) of paragraph 4, without the BUYER's priori written approval.
G. Except as otherwise requested by the BUYER, the SELLER will
cause the COMPANY to use its best efforts (without making any commitment on the
BUYER's behalf) to preserve the COMPANY's business organization intact; to keep
available to the COMPANY the services of its present officers and employees; and
to preserve for the COMPANY the goodwill of its suppliers, customers and others
having business relations with the COMPANY.
H. All debts will be paid as they become due.
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I. No contract right of the COMPANY will be waived.
J. No material physical damage for loss will occur to the
assets or business of the COMPANY.
K. No obligations except current liabilities under contacts
entered into the ordinary course of business will be incurred.
6. COMPANY PERSONNEL. At the closing:
A. Changes. The SELLER shall make available to the buyer,
unless otherwise requested by it, the written resignations of the COMPANY's
directors and officer shall take, or cause to be taken, such action as the BUYER
may request with respect to changes in directors and officers.
B. Employment Contracts. The SELLER shall cause employment
contracts to be entered into between the COMPANY and Xxxxxxxx X. Xxxxxxxx in the
form which the SELLER has initialed for identification and delivered to the
BUYER, and attached hereto as Exhibit A.
7. CONDITION PRECEDENT FOR BUYER. All obligations of the BUYER under
this agreement are, at its option, subject to the fulfillment, prior to or at
the closing, of each of the following conditions:
A. Representations and Warranties True at Closing. The
SELLER's representations and warranties contained in this Agreement shall be
true at the time of closing as though such representations and warranties were
made at closing.
B. Performance. The SELLER shall have performed and complied
with all agreements and conditions required by this Agreement to be performed or
complied with by them prior to or at the closing.
C. Officer's Certificate. The SELLER shall have delivered to
the BUYER a certificate of the COMPANY's president and treasurer, dated the
closing date, certifying to the fulfillment of the conditions specified in
subparagraphs A and B of this paragraph as set forth in Exhibit B.
D. Officer's Affidavit. The SELLER, as President of the
COMPANY shall have delivered to the BUYER an affidavit dated the closing date,
that the COMPANY's corporate existence, good standing, and authorized and issued
stock are as stated in subparagraphs A and C of paragraph 3, that the COMPANY
has good and marketable title to all its property and assets as set forth in
subparagraph F of paragraph 3, and that except as may be specified, she does not
know or have any reasonable grounds to know
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of any litigation, proceeding or governmental investigation pending or
threatened against, or relating to, the COMPANY, its properties or business.
8. INDEMNIFICATION. The SELLER shall indemnify and hold harmless the
COMPANY and the BUYER, at all times after the date of this Agreement, against
and in respect of:
A. Undisclosed Liabilities. All liabilities of the company of
any nature, whether accrued, absolute, contingent, or otherwise, existing at
closing.
B. Misrepresentations. Any damage or deficiency resulting from
any misrepresentation, breach of warranty, or nonfulfillment of any agreement on
the part of the SELLER under this Agreement, or from any misrepresentation in or
omission from any certificate or other instrument furnished to the BUYER
hereunder;
C. Incidental Expenses. All actions, suits, proceeding,
demands, assessments, judgments, costs, attorney's fees and expenses incident to
any of the foregoing. The SELLER shall reimburse the COMPANY or the buyer on
demand, for any payment made by the COMPANY or the buyer at any time after
closing in respect of any liability or claim to which the foregoing indemnity
relates.
9. BROKERAGE. The SELLER represents and warrants that all negotiations
relative to this Agreement have been carried on by her directly with the BUYER,
without the intervention of any person, and the SELLER shall indemnify the BUYER
and hold it harmless against and in respect of any claim for brokerage or any
other commissions relative to this Agreement, or to the transactions
contemplated hereby, and also in respect of all expenses of any character
incurred by the SELLER in connection with this agreement or such transactions.
10. NATURE AND SURVIVAL OF REPRESENTATIONS. All statements contained in
any certificate or other instrument delivered by or on behalf of the seller
pursuant hereto, or in connection with the transactions contemplated hereby,
shall be deemed representations and warranties by the SELLER hereunder. All
representations, warranties, and agreements made by the SELLER in this
agreement, or pursuant hereto, shall survive the closing ANY AND [SIC]
investigation at any time made by or on behalf of the BUYER.
11. BENEFIT. This Agreement shall be binding upon, and inure to the
benefit of the respective legal representatives of the SELLER, and the
successors and assigns of the buyer. Without limiting the foregoing, the
COMPANY's rights hereunder may be enforced by it in its own name. IN the event
that the buyer causes the assets and
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business of the company to be transferred to some other corporation, the rights
of the buyer and of the COMPANY hereunder may be enforced by such other
corporation in its own name.
12. CONSTRUCTION. This Agreement is being delivered and is intended to
be performed in the State of Florida and shall be construed and enforced in
accordance with the laws of the State of Florida.
13. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing, and shall be deemed to have been duly given if
delivered or mailed, first class postage prepaid, if to SELLER at 0000 Xxxxx xx
Xxxx Xxxx., Xxxxx Xxxxxx, Xxxxxxx 00000, or at such other address as she may
have furnished to the BUYER in writing, or if to the buyer at 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000, with a copy to Xxxxx X. Xxxxx, Esquire,
Xxxxx & Xxxxx, P.A., 0000 Xxxxx xx Xxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx
00000.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this agreement on
the date indicated.
/S/ XXXXXX XXXXX
------------------------------- /S/ XXXXXXXX X. XXXXXXXX
------------------------------------
Xxxxxxxx X. Xxxxxxxx
SELLER
/S/ XXXXXXX X. XXXXX
-------------------------------
First Reserve, Inc., a Florida Corp.
BUYER
/S/ XXXXXX XXXXX By: /S/ XXXXXX X. XXXXXXXXX
-------------------------------- ---------------------------------
/S/ XXXXXXX X. XXXXX Attest: /S/ XXXXX X. XXXXXXXX
-------------------------------- ---------------------------------
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EXHIBIT "A"
EMPLOYMENT CONTRACT
An agreement made this 31st day of March, 1999, by and between
COLUMBIA TITLE OF FLORIDA, INC., a Florida corporation (hereinafter "COMPANY")
and XXXXXXXX XXXXXXXX, (hereinafter "XXXXXXXX").
In consideration of the several provisions hereinafter
contained, it is agreed between the parties hereto as follows:
The COMPANY hereby employs Xxxxxxxx as Senior Vice President
Underwriting of the COMPANY for a term of two years beginning April 1, 1999.
Xxxxxxxx agrees to well and faithfully serve the COMPANY in such capacity, and
agrees at all times to devote her whole time, attention, and energies to the
performance of such services, acts, and anything connected therewith as the
COMPANY shall from time to time direct and of a kind properly belonging to the
duties of a Senior Vice President of Underwriting. Xxxxxxxx agrees to work
Monday through Friday (a 35 hour week). Xxxxxxxx and COMPANY agree that during
the first ninety (90) days of this contract, some of Xxxxxxxx'x time will be
allocated to the Key Largo branch office.
The COMPANY shall pay to Xxxxxxxx a salary of One Hundred
Thousand Dollars per year, payable monthly in the gross amount of Eight Thousand
Three Hundred Thirty Three Dollars and thirty four cents. The COMPANY shall
provide Xxxxxxxx with a car (1991 Cadillac) and cover the insurance costs
related thereto. At the end of this agreement, the COMPANY agrees that it will
transfer title of the 1991 Cadillac to Xxxxxxxx. The COMPANY also agrees that it
will provide Xxxxxxxx with group health insurance during Xxxxxxxx'x employment
period. The COMPANY shall give Xxxxxxxx two (2) weeks per year paid vacation
time and four (4) personal days and six (6) sick days per annum.
IN WITNESS WHEREOF, the parties have executed this agreement
on the date indicated by their signatures.
___________________________________ COLUMBIA TITLE OF FLORIDA, INC.
___________________________________ By:_________________________________
Xxxxxxx X. Xxxxx, President
Date:_______________________________
___________________________________ ____________________________________
Xxxxxxxx Xxxxxxxx
___________________________________ Date:_______________________________
EXHIBIT A-1
BUYER will assume responsibility for the payment of the unreimbursed Corporate
Expenses and Accounts Payable of the COMPANY as itemized below:
PAYEE ACCOUNT NUMBER AMOUNT
----- -------------- ------
Internal Revenue Service (past due payroll taxes) $ 9,756.28
Xxxxx Xxxx (accounting services) 9,300.00
First Union Bank (line of credit) 0000-0000-0000-0000 35,000.00
MBNA America (credit card) 0000-0000-0000-0000 16,800.00
NationsBank/US Air (credit card 0000-0000-0000-0000 1,100.00
American Express/Delta Airlines (credit card) 0000-000000-00000 2,900.00
American Express/Centurion Bank (credit card) 0000-0000-0000-0000 16,900.00
American Express/Optima (credit card) 0000-000000-00000 9,600.00
American Express/Small Business Line of Credit 0000-000000-00000 5,800.00
NationsBank Mastercard (credit card) 0000-0000-0000-0000 8,000.00
SunTrust Visa (credit card) 0000-0000-0000-0000 10,800.00
Citibank Visa (credit card) 0000-0000-0000-0000 8,800.00
American Express/Platinum Card (credit card) 0000-000000-00000 10,400.00
American Express/Small Business Line of Credit 0000-000000-00000 4,843.72
------------
TOTAL PAYMENTS $ 150,000.00
EXHIBIT "B"
OFFICER'S CERTIFICATE
I, Xxxxxxxx X. Xxxxxxxx, as President and Secretary of
Columbia Title of Florida, Inc., hereby certifies the following:
1. That all of SELLER's representatives and warranties
contained in the Stock Purchase Agreement are true as
of March 31, 1999.
2. That SELLER has performed and complied with all
agreements and conditions required by the Stock
Purchase Agreement prior to closing.
Signed and witnessed this 31st day of March, 1999.
Witnesses: COLUMBIA TITLE OF FLORIDA, INC.
__________________________________
__________________________________ ______________________________________
XXXXXXXX X. XXXXXXXX
President and Secretary
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, personally appeared XXXXXXXX X. XXXXXXXX, who is (a) either
personally known to me, or (b) produced __________________ as identification.
WITNESS my had and official seal in the County and State last
aforesaid, this _____ day of __________________ , 1999.
_______________________________________
Notary Public - State of Florida
_______________________________________
(Stamped Commission of Notary)
