Exhibit 10.1
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement dated this 31st day of March, 1999, is made
and entered into by and between AMERI-CAP MORTGAGE GROUP, INC., a Florida
corporation ("Ameri-Cap"), FINANTRA CAPITAL, INC., a Delaware corporation
("Finantra"), BRISTOL INVESTMENT GROUP L.L.C., a Florida limited liability
company ("Bristol") and TITAN MORTGAGE GROUP, INC., a Florida corporation
("Titan").
W I T N E S S E T H :
WHEREAS, Titan is a corporation organized and existing under the laws of
the state of Florida and is capitalized with one million shares of common stock
having a par value of $.01 per share, and
WHEREAS, Titan as of the date of executing this agreement has a net
tangible net worth in the sum of $100,000.00 as represented on its Statement of
Financial Condition attached hereto as Exhibit "A", and
WHEREAS, Bristol has agreed to invest up to an additional $50,000.00 in
capital as may be needed or required by Titan in the future for working capital,
and
WHEREAS, Titan will be engaged in the origination and processing of
mortgage loans in furtherance of its Branch Office Agreement to be executed with
Ameri-Cap Mortgage Group, Inc., a copy of said agreement being attached hereto
and made a part hereof as Exhibit "B", and
WHEREAS, Bristol is the owner of 100% of the authorized, issued and
outstanding common shares of Titan, and
WHEREAS, Ameri-Cap is desirous of acquiring on the closing date 80% of
the authorized, issued and outstanding common shares of Titan (the "Shares")
upon the terms and
conditions set forth in this agreement together with the right to acquire the
balance of Bristol's common shares of Titan in the future, and
WHEREAS, the parties desire to document their representations,
warranties, covenants, agreements and conditions in a written instrument.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained and for such other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. RECITALS: The above and foregoing recitals are true and correct and
are incorporated herein.
2. EXCHANGE OF SHARES: Finantra shall exchange, transfer and convey to
Bristol 400,000 shares of Finantra common stock in exchange for 800,000 shares
of the authorized, issued and outstanding common shares of Titan on the closing
date. Finantra agrees to use its best efforts to file a registration statement
to register 209,000 shares of the Finantra exchange shares as soon as
practicable but no later than 45 days from the date hereof.
3. FINANTRA'S ACQUISITION OF BALANCE OF TITAN SHARES: The balance of
Bristol's shares in Titan not conveyed on the closing date shall be acquired by
Finantra annually commencing one year from the closing date and on the same day
each year ("Exchange Date") thereafter over the next three (3) years by Bristol
exchanging 5% of the authorized, issued and outstanding common shares of Titan
for an amount of Finantra's shares equal to the prorate after tax net profit of
Titan during the previous calendar year based upon Bristol's percentage of
common stock being exchanged multiplied by 15 and divided by the fair market
value of Finantra's common shares as determined by the average closing share
price for
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the 20 previous trading days prior to the exchange date. For example, if the net
profit after taxes were one million dollars and the percentage of common stock
being exchanged is 5%; 5% produces $50,000.00 which times 15 equals $750,000.00.
If the stock price of Finantra were $5.00 per share, then Bristol would be
entitled to 150,000 shares in exchange for the 5% of its original amount of
common shares being exchanged. Expressed as a fraction this calculation would
appear as follows:
Net profit after taxes x percentage of common stock being exchanged x 15 = Number of Exchanged Shares
------------------------------------------------------------------------
Average Share Sales Price
In the event the common shares of Finantra are not publicly traded on the
exchange date and the Branch Office Agreement is still in full force and effect,
Bristol shall be entitle to 150,000 common shares of Finantra for the common
shares of Titan being exchanged on the Exchange Date. Notwithstanding the
foregoing formula, the maximum number of shares that can be exchanged in any one
year shall not exceed 150,000 common shares of Finantra.
4. CLOSING DATE: The closing date of this agreement shall take place on
or before March_, 1999 or at such other time as shall be set forth in a writing
signed by the parties hereto.
5. REPRESENTATIONS AND WARRANTIES OF BRISTOL:
5.1 Titan is a corporation organized and existing under the laws
of the state of Florida.
5.2 Bristol has the power to enter into and carry out its
obligations under this agreement.
5.3 The shares being exchanged in Titan are fully paid and
non-assessable.
5.4 The aggregate number of common shares that Titan is authorized
to have
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outstanding as of the date hereof is one million shares of common stock having a
par value of $.01 per share. Titan has no other class of common shares
authorized nor are there any shares of preferred stock authorized.
5.5 Bristol is and will be on the closing date the sole owner of
all of the authorized, issued and outstanding shares of common stock of Titan,
free and clear of any and all liens and encumbrances.
5.6 As of the date of executing this agreement as well as on the
date of closing, Titan shall have no debts, liabilities or obligations which are
not reflected on the Statement of Condition attached hereto as Exhibit "A" or as
otherwise set forth on Exhibit "C" attached hereto.
5.7 Titan is not a party to any long term contract or commitment
except for the Branch Office Agreement attached as Exhibit "B" and such other
agreements as may be itemized on Exhibit "D" attached hereto.
5.8 Bristol represents that there are no liabilities, including
but not limited to liabilities for federal, state and local taxes, penalties,
assessments, lawsuits or claims against Titan or Bristol which in any way could
effect the assets of Titan or the fulfillment of this agreement by Bristol.
6. REPRESENTATIONS AND WARRANTIES OF FINANTRA AND/OR AMERI-CAP: Finantra
and/or Ameri-Cap represent and warrant to Bristol as follows:
6.1 Finantra is a duly organized and existing corporation under
the laws of the state of Delaware and is authorized to conduct business in the
state of Florida.
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6.2 Finantra has the power and authority to enter into this
agreement and the execution, delivery and performance of this agreement has been
duly approved or will be duly approved by all requisite corporate actions by the
closing date.
6.3 Finantra is a publicly traded company, whose registered shares
trade in the over-the-counter market.
6.4 The Finantra shares being exchanged have not been registered
under the Securities Act of 1933, as amended (the "Act") for resale and may not
be offered or sold except pursuant to an effective registration statement under
the Act or to the extent applicable, Rule 144 under the Act or such other
exemptions from registration as may be given in an opinion of counsel acceptable
to counsel for Finantra and the terms and conditions contained in this
agreement.
6.5 Finantra is not subject to any order, judgment, decree,
stipulation or other agreements with any governmental body or agency unless
specifically set forth in this agreement.
6.6 Finantra, Ameri-Cap or any affiliate agrees that during the
term of this agreement and for a period of six (6) months following the
termination of this agreement, they will not hire or employ any person who was
employed by Titan during the term of this agreement without the written consent
of Titan.
6.7 Provided Titan complies with the terms and conditions of the
Branch Office Agreement and follows the rules and regulations of all governing
organizations having jurisdiction over the mortgage lending industry, Finantra
and Ameri-Cap will not prohibit the growth of Titan's business unless the growth
involves business which is of a type that is
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unacceptable to Ameri-Cap.
7. RESTRICTION OF TRANSFER OF SHARES: Bristol agrees that it will not
sell, transfer or otherwise dispose of its remaining shares in Titan so that
said shares will always be available to exchange as described in paragraph 3
above.
7.1 Bristol, for itself, its successors and assigns with respect
to the Finantra shares being exchanged agrees that it shall not sell. transfer
or otherwise dispose of, directly or indirectly, during any given three month
period, shares of Finantra's common stock in an amount greater than the average
weekly reported volume of trading in such common stock on all national security
exchanges and/or reported through the automatic quotation system of a registered
securities association during the four calendar weeks preceding the sale of the
common stock in question. In the event Bristol seeks to sell more than its
allotted shares set forth herein, Bristol shall give Finantra prior notice and
the opportunity to purchase such shares at a price equal to the value of the
consideration offered by a perspective transferee or the bid share price on the
day of transfer, whichever is lower. Upon receipt of any such notice, Finantra
shall have twenty-four (24) hours to exercise its first refusal right and three
(3) days thereafter to close on the purchase. Failure of Finantra to exercise
its right of first refusal within the time frame set forth herein shall
authorize the holder to sell the shares offered and Finantra's right of first
refusal as to the shares contained in the notice shall expire and be of no
further force and effect.
8. PIGGYBACK REGISTRATION: If at any time following the execution of this
agreement Finantra proposes to register any of its common shares under the Act,
it will give written notice by registered mail at lease 30 days prior to the
filing of each registration
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statement so that the holder of any Finantra shares obtained pursuant to this
agreement of its intention to do so. If the holder of any such Finantra shares
within 20 days after receipt of such notice desires to include any of its shares
in the proposed registration statement, it shall so notify Finantra in writing
and be given the opportunity to have the shares of Finantra registered.
Notwithstanding the foregoing, in the event the underwriter involved in the
registration limits the number of shares subject to piggyback rights being
registered then the holders of the shares described herein shall only be
entitled to register shares prorate with all other holders desiring to exercise
their piggyback rights. Furthermore, the maximum amount of shares from the
initial 400,000 share exchange which are subject to piggyback rights shall be
200,000 shares.
9. MANAGEMENT AGREEMENT: Simultaneously with the execution of this
agreement Titan shall enter into a Management Agreement with Bristol (the
"Manager") for the day to day management of Titan's business. The Management
Agreement shall contain such terms and conditions as are mutually acceptable to
Finantra, Titan and Bristol.
10. CONDITIONS PRECEDENT TO CLOSING: The obligations to close the
transaction contemplated by this agreement is subject to the following
conditions:
10.1. The representations and warranties of the parties contained
in this agreement are true and correct in all material respects on the closing
date.
10.2 A Branch Office Agreement with Ameri-Cap Mortgage Group, Inc.
has been entered into by Titan.
10.3 A Management Agreement between Titan and Bristol or its
assigns has been executed.
10.4 Titan has a minimum tangible net worth of $100,000.00 on the
closing
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date.
11. DISTRIBUTION OF PROFITS: Notwithstanding the ownership percentages of
the common stock of Titan, Ameri-Cap and Bristol agree that they shall be paid
special management fees consisting of a percentage of the pre-tax net profit
earned by Titan shall be distributed follows:
11.1 An amount equal to 30% shall be paid to the Manager described
in paragraph 9 above monthly during the calendar year, within fifteen days
following the end of the previous month. An estimated after tax profit shall be
calculated for disbursement purposes with a final annual accounting performed
not later than March 31st of each year.
11.2 The balance of the management fees as calculated above shall
be distributed annually on or before March 31st as follows:
YEAR AMERI-CAP BRISTOL
---- --------- -------
1999 35% 35%
2000 43.75% 26.25%
2001 52.50% 17.50%
2002 61.25% 8.75%
2003 70.00 -0-
12. TERMINATION: This agreement may be terminated upon the written notice
by either party as follows:
12.1 The failure to close this transaction on or before the
closing date unless extended by a written instrument executed by the parties
hereto.
12.2 A breach of the representations and warranties of either
party not cured by the closing date or extended closing date, if applicable.
12.3 The failure of any conditions precedent to closing not being
satisfied.
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13. OPTION OF FINANTRA TO REACQUIRE SHARES: Finantra shall have the
option upon written notice to Bristol to terminate this agreement and to
reacquire 200,000 of the unregistered Finantra common shares exchanged pursuant
to paragraph 2 above by returning to Bristol all the shares held in its name of
Titan upon the happening of any one of the following events:
13.1 Upon written notice to that effect at any time within 90 days
from the closing date.
13.2 In the event Titan has a net loss in excess of $ 150,000.00
during the calendar year 1999 by given written notice on or before 12 months
from the closing date.
13.3 In the event a demand is made by Finantra a closing on the
exchange will be held within 15 days following Bristol's receipt of the demand.
13.4 The 200,000 registered common shares of Finantra retained by
Bristol shall be subject to the restrictions set forth in Section 7.1 above
notwithstanding the termination of this agreement.
13.5 Upon the termination of this agreement as a result of the
happening of any of the events described in 13.1 or 13.2 above, Ameri-Cap shall
have the right to terminate the Branch Office Agreement upon the giving of
written notice.
14. NOTICES: Except as otherwise stated, all notices, requests, demands
and other communications required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally,
given by prepaid first class mail; registered or certified or by duly recognized
overnight carrier as follows:
To the Finantra: Attention: Xxxxxx X. Press
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Finantra Capital, Inc.
000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
With copies to: Xxxxxxx X. Xxxxxxx, Esq.
Finantra Capital, Inc.
000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
To Ameri-Cap: Ameri-Cap Mortgage Group, Inc.
Attention: Xxxxx Xxxxxx
0000 00'x Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx. XX 00000
To Bristol: Xxxxxxxx Transportation, Inc.
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
with copies to: Oceancrest Merchant Group, Inc.
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
To Titan: Xxxxxxx Jump
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
15. MISCELLANEOUS PROVISIONS:
15.1 Assignment: No party may assign its obligations or rights
under this agreement without the written consent of the other parties.
15.2 Modification: There are no other agreements, promises or
undertakings between the parties except as specifically set forth herein. No
alteration, change, modification or amendment to this agreement shall be made
except in writing and signed by the parties hereto:
15.3 Severability: If any provision or paragraph of this agreement
is deemed
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to be unlawful or unenforceable by any court, administrative agency or statute,
law or ordinance, the said provision or paragraph shall be severed from this
agreement without affecting the enforceability of the remainder of this
agreement. The parties shall make a good faith effort to redraft the severed
provision or paragraph consistent with the party's original intention but in
such a way as to be lawful and enforceable.
15.4 Binding Effect: This agreement supersedes and cancels any and
all other agreements referring to the subject matter herein. This agreement
shall be binding upon and inure to the benefit of the respective parties, their
successors and assigns, if applicable as well as to the heirs and legal
representatives of the parties hereto, if applicable.
15.5 Construction: This agreement shall be construed and enforced
under the laws of the state of Florida.
15.6 Counterparts: This agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
counterparts collectively shall constitute one instrument representing the
agreement between the parties.
15.7 Captions and Headings: The captions and headings of each
section or subsection in this agreement are for convenience of reference only
and shall in no manner or way whatsoever effect the interpretation or meaning of
such section or subsection.
15.8 Exhibits: The exhibits attached hereto together with all
documents incorporated by reference herein form an integral part of this
agreement and are hereby incorporated herein wherever reference is made to them
to the same extent as if they were set out in full at the point at which such
reference is made.
15.9 Attorney's Fees: The prevailing party in any litigation
arising out of the
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terms of this agreement shall be entitled to reimbursement of reasonable
attorney's fees and costs at the trial and appellate court level.
[SIGNATURES ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals
the date above written.
FINANTRA CAPITAL. INC.
By:
--------------------------------------
XXXXXX X. PRESS, President
AMERI-CAP MORTGAGE GROUP, INC.
By:
--------------------------------------
XXXXXXX X. XXXXXXX
Vice Persident
BRISTOL INVESTMENT GROUP, LLC
By: XXXXXXXX TRANSPORTATTON
Inc. , Member
By:
--------------------------------------
XXXXXX XXXXXX, President
TITAN MORTGAGE GROUP, INC.
By: ______________________________
XXXXXXX JUMP
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