STOCK PURCHASE AGREEMENT
THIS AGREEMENT, dated as of December 23, 2002, among UNITED
FINANCIAL HOLDINGS, INC., a Florida corporation (the "Company"), and
Xx. Xxx X. Xxxxx (the "Director"),
W I T N E S S E T H:
WHEREAS, the Director is a member of the Board of Directors of the
Company and directly beneficially owns in excess of 5 percent of the outstanding
shares of the common stock, par value $.01 per share, of the Company; and
WHEREAS, on the terms and conditions hereinafter set forth, the Company
desires to issue and sell to the Director, and the Director desires to purchase
from the Company, 7,000 shares of the Company's 7% preferred stock, par value
$10.00 per share (the "Preferred Shares"), in exchange for $972,440.00 in cash
(the "Cash Purchase Price").
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration hereinafter set forth,
the parties hereto agree as follows:
ARTICLE I
PURCHASE
Section 1.01 PURCHASE OF SHARES. On the terms and subject to the
conditions of this Agreement, the Company agrees to issue and sell the Preferred
Shares to the Director, and the Director agrees to purchase the Preferred Shares
from the Company, in exchange for the Cash Purchase Price set forth above.
Section 1.02 CLOSING. If this Agreement shall not have been terminated
pursuant to Section 7.04 hereof, the sale and purchase of the Shares
contemplated hereby shall take place at a closing (the "Closing") to be held at
such time and place as soon as practicable after the execution and delivery
hereof (the "Closing Date"). At the Closing, the Company will deliver to the
Director:
(a) certificates representing the Preferred Shares, with all
original issuance and other taxes paid, free and clear of all liens
and encumbrances; and
(b) such other certificates, opinions and documents as the
Director may reasonably request.
At the Closing, the Director shall deliver to the Company:
(y) the Cash Purchase Price in immediately available funds; and
(z) such other certificates, opinions and documents as the
Company may reasonably request.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations and warranties
to the Director:
Section 2.01 ORGANIZATION, POWER, ETC. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Florida and has all requisite power and authority to execute, deliver
and perform this Agreement. The execution, delivery and performance of this
Agreement by the Company have been duly authorized by all requisite corporate
action on behalf of the Company, and no other corporate action is required for
such execution, delivery and performance. This agreements of the Company
contained herein constitute valid and legally binding obligations of the Company
enforceable in accordance with their respective terms.
Section 2.02 CONFLICTS. The execution and delivery of this Agreement by
the Company and the consummation of the transactions contemplated hereby in
accordance with the terms hereof, will not violate any existing provision of any
law or violate any existing term or provision of any order, writ, judgment,
injunction or decree of any court or any other governmental department,
commission, board, bureau, agency or instrumentality applicable to the Company
or conflict with or result in a breach of any of the terms, conditions, or
provisions of the Articles of Incorporation, Bylaws or other organizational
documents of the Company or any agreement, instrument or right to which it is a
party or by which any of its assets are bound, or constitute an event that might
permit an early termination of or acceleration under any document or instrument
applicable, or binding on, the Company or any of its assets, or otherwise
adversely affect the Company.
Section 2.03 THE PREFERRED SHARES. (a) The Preferred Shares have been
duly and validly authorized and, upon receipt of the consideration therefor in
accordance with the terms hereof, will be duly and validly issued, fully paid
and nonassessable, free and clear of liens, charges, security interests or
encumbrances.
(b) The shares of Common Stock initially reserved for issuance and to
be issued upon conversion of the Preferred Shares have been duly and validly
authorized and are sufficient in number for the conversion of all the Preferred
Shares, and such shares of Common Stock, when so issued upon such exercise, will
be duly and validly issued, fully paid and nonassessable, free and clear of
liens, charges, security interests or encumbrances.
Section 2.04 CONSENTS. The execution and delivery of this Agreement by
the Company and the performance of its obligations hereunder do not require any
consent or approval of, or action or filing with, or notice to, any corporation
or any person, firm or governmental department, commission, board, bureau,
agency or instrumentality.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE DIRECTOR
The Director hereby makes the following representations and warranties
to the Company:
Section 3.01 BINDING EFFECT. This agreements of the Director contained
herein constitute valid and legally binding obligations of the Director
enforceable in accordance with their respective terms.
Section 3.02 CONFLICTS. The execution and delivery of this Agreement by
the Director and the consummation of the transactions contemplated hereby in
accordance with the terms hereof, will not violate any existing provision of any
law or violate any existing term or provision of any order, writ, judgment,
injunction or decree of any court or any other governmental department,
commission, board, bureau, agency or instrumentality applicable to the Director
or conflict with or result in a breach of any of the terms, conditions, or
provisions of any agreement, instrument or right to which he or it is a party or
by which any of his or its assets are bound, or constitute an event that might
permit an early termination of or acceleration under any document or instrument
applicable, or binding on, the Director or any of his or its assets, or
otherwise adversely affect the Director.
Section 3.03 CONSENTS. The execution and delivery of this Agreement by
the Director and the performance of his or its obligations hereunder do not
require any consent or approval of, or action or filing with, or notice to, any
corporation or any person, firm or governmental department, commission, board,
bureau, agency or instrumentality, other than securities filings required to be
made after the Closing.
Section 3.04 SECURITIES LAWS. The Director understands that neither the
purchase and sale of the Preferred Shares hereunder nor the conversion thereof
will be registered under the Securities Act of 1933, as amended (the "1933
Act"), or any securities act of any state or other jurisdiction, in reliance on
registration exemptions under such statutes. The Preferred Shares are being
acquired solely for the Director's own account, for investment, and are not
being purchased with a view to or for the distribution thereof. The Director
will not sell or otherwise transfer the Preferred Shares or any shares of common
stock received on conversion thereof except in accordance with the 1933 Act and
all other applicable securities laws, and prior to any transfer (other than
pursuant to an effective registration statement under the 1933 Act and otherwise
in compliance with applicable law) the Director will furnish to the Company a
written opinion of counsel in form and substance satisfactory to the Company to
the effect that registration under the 1933 Act is not required and that all
requisite action has been taken under all applicable securities laws in
connection with the proposed transfer. The Director acknowledges his
understanding that the certificates representing the Preferred Shares and any
shares of Common Stock issued upon conversion thereof will bear an appropriate
legend with respect to the foregoing matters until the Company's counsel
determines that the legend is no longer advisable. The Director also
acknowledges that appropriate stop transfer orders will be noted on the
Company's transfer records with respect to such shares.
ARTICLE V
CONDITIONS PRECEDENT
The obligation of each of the Director and the Company to consummate
the transactions contemplated hereby is subject to satisfaction, or waiver by
them, at or prior to the Closing, of each of the following conditions precedent:
Section 5.01 PERFORMANCE OF AGREEMENTS. The other party hereto shall
have performed and complied with all of its agreements, covenants and
obligations hereunder.
Section 5.02 REPRESENTATION TRUE. All of the representations and
warranties made by the other party hereunder shall be true and accurate as of
the Closing Date with the same force and effect as though made on and as of the
Closing Date.
Section 5.03 CORPORATE APPROVALS. All corporate action, if any,
necessary to authorize the execution, delivery and performance by the other
party of this Agreement and the transactions contemplated hereby shall have been
duly and validly taken.
Section 5.04 PROCEEDINGS AND DOCUMENTS. All proceedings taken in
connection with the transactions contemplated hereby and all documents incident
to such transactions shall be reasonably satisfactory in form and substance to
the party and its counsel; the party shall have received all documents that it
or he and its or his counsel may have reasonably requested in connection with
such transaction, in form and substance satisfactory to the party.
ARTICLE VI
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; INDEMNIFICATION
Section 6.01 SURVIVAL. All representations and warranties contained in
this Agreement or any certificate, exhibit, financial statement or other
document or instrument furnished pursuant to the express terms of this Agreement
to the Director by or on behalf of the Company or to the Company by or on behalf
of the Director, in connection with the transactions contemplated hereby shall
survive any investigation made at any time with respect to any of the foregoing
and shall survive the execution, delivery and performance of this Agreement. All
certificates, exhibits, financial statements or other documents or instruments
furnished to the parties hereto pursuant to this Agreement by or on behalf of
another party hereto shall constitute representations and warranties hereunder.
Section 6.02 INDEMNIFICATION. The Director agrees to indemnify and hold
harmless the Company, and the Company agrees to indemnify and hold harmless the
Director, against, and in respect of, liabilities, losses, claims, costs or
damages (including attorneys' fees incurred in connection with any of the
foregoing) resulting from or arising out of (i) any breach of any representation
or warranty made by them and (ii) any failure to perform any of their
obligations or agreements hereunder.
ARTICLE VII
MISCELLANEOUS
Section 7.01 EXPENSES. Each of the parties to this Agreement
shall pay its own expenses in connection with the transactions
contemplated hereby.
Section 7.02 BROKERS. The parties hereto each represent to the others
that no broker was involved in the transactions contemplated hereby and that
there is no obligation for any sales commission due to any party.
Section 7.03 TERMINATION. This Agreement may be terminated as
to all parties and the transactions contemplated hereby abandoned at any time
prior to the Closing by:
(a) the mutual consent of the parties; or
(b) either party at any time after December 31, 2002.
Section 7.04 MANNER AND EFFECT OF TERMINATION. The power of termination
provided for by Section 7.03 hereof will be effective only after notice is given
in writing and signed on behalf of the party for whom it is given, in the case
of the Company by its President or any Vice President. If this Agreement is
terminated it shall no longer be of any force or effect and there shall be no
further liability on the part of any party in respect of the subject matter
hereof, except for a breach of any covenant or obligation hereunder.
Section 7.05 WAIVER. The terms and provisions of this Agreement may be
waived at any time by the party which is entitled to the benefit thereof, but
only by a written instrument executed by the party waiving compliance.
Section 7.06 AMENDMENT, ETC. Anything herein or elsewhere to the
contrary notwithstanding, to the extent permitted by law this Agreement may be
amended or supplemented at any time, but only by a written instrument executed
by the parties hereto.
Section 7.08 MISCELLANEOUS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement
supersedes all prior negotiations and agreements (written or oral) among the
parties with respect to the subject matter covered hereby and constitutes the
entire understanding among the parties hereto. This Agreement shall inure to the
benefit of and be binding upon the parties named herein and their respective
successors. This Agreement may not be assigned, except that the Director may
assign its right hereunder to purchase the Company Shares, and nothing in this
Agreement, express or implied, is intended to confer upon any other person, any
rights or remedies under or by reason of this Agreement. the section headings
contained in this Agreement are for convenience only and shall not control or
affect the meaning or construction of any of the provisions of this Agreement.
This Agreement shall be construed and enforced in accordance with the laws of
the State of Florida.
IN WITNESS WHEREOF, each of the parties hereto has, as appropriate,
either executed this Agreement or caused this Agreement to be executed on its
behalf, by an officer thereunto duly authorized, all as of the date first above
written.
THE COMPANY:
UNITED FINANCIAL HOLDINGS, INC.
By /S/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
President and Chief Executive Officer
THE DIRECTOR:
/S/ XXX X. XXXXX
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Xxx X. Xxxxx, Individually