EXHIBIT 5
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of May 3,
2002, is entered into by and between zum Tobel Family Limited Partnership, a
Florida limited partnership (the "Seller") and Xxxxxxx X. Xxxxxx (the
"Purchaser").
WITNESSETH:
WHEREAS, the Purchaser desires to purchase from the Seller,
and the Seller desires to sell to the Purchaser, the number of shares of common
stock (the "Common Stock") of TradeStation Group, Inc., a Florida corporation
(the "Company"), par value $.01 per share, listed under the Seller's name on
Schedule A attached hereto (such shares, collectively, the "Shares").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Sale and Purchase of the Shares. The Seller hereby sells to
the Purchaser, and the Purchaser hereby purchases from the Seller, the Shares to
be sold by the Seller as set forth on Schedule A attached hereto. The closing of
the purchase and sale of the Shares shall occur on the date of this Agreement.
2. Payment for the Shares. Concurrent with the execution and
delivery of this Agreement, the Purchaser is hereby delivering to Bilzin Xxxxxxx
Xxxx Xxxxx Price & Xxxxxxx LLP, as escrow agent (the "Escrow Agent"), by wire
transfer to a trust account designated by Escrow Agent, an amount equal to the
purchase price for all of the Shares being purchased and sold, as listed on
Schedule A attached hereto, as payment in full of the purchase price for all of
the Shares. Escrow Agent shall release the funds to the Seller in accordance
with the wire instructions set forth on Schedule A upon Escrow Agent's receipt
of all the documents listed in Section 3. In the event that Escrow Agent does
not receive all of the documents listed in Section 3 by Friday, May 10, 2002,
Escrow Agent shall return the funds to the Purchaser and the escrow and this
Agreement shall be terminated and of no further force or effect.
3. Deliveries by Purchaser, Seller and Voting Trustee. The
Purchaser and the Seller are hereby delivering to the Escrow Agent at least one
executed counterpart of this Agreement. Concurrently with the execution and
delivery of this Agreement, the Seller is hereby delivering to the Escrow Agent
(a) if not already in the possession of Escrow Agent, a voting trust certificate
(or certificates) representing a beneficial interest in at least such number of
shares of Common Stock as equal the Shares to be sold by the Seller, (b) a duly
executed stock power from Xxxx X. Xxxxx, as Voting Trustee (a "Voting Trustee
Stock Power"), in favor of the Seller transferring those shares of Common Stock
that are beneficially owned by the Seller and are represented by stock
certificates registered in the name of Xxxx X. Xxxxx, as Voting Trustee (the
"Stock Certificates") and (c) a duly executed stock power with signature
guaranteed from the Seller (a "Seller Stock Power") in favor of the Purchaser
transferring the Shares to be sold by the Seller to the Purchaser. Concurrently
with the execution and delivery of this Agreement, Xxxx X. Xxxxx, as Voting
Trustee, is hereby delivering the Stock Certificates and any voting trust
certificate(s) not already in the possession of the Escrow Agent to the Escrow
Agent. Escrow Agent shall cancel the voting trust certificate(s) deposited in
escrow or already in its possession and shall deliver the Voting Trustee Stock
Power, the Seller Stock Power and the Stock Certificates to the Company's
transfer agent.
4. Representations and Warranties by Seller. The Seller
represents and warrants the following to the Purchaser in order to induce the
Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and
deliver this Agreement and to consummate the transactions to be consummated by
Seller. The execution and delivery by Seller of this Agreement and the
consummation by Seller of the transactions contemplated by this Agreement have
been duly authorized by Seller, and no organizational or other action on the
part of Seller or any other person or entity is necessary to authorize the
execution and delivery of this Agreement by Seller or the consummation by Seller
of the transactions contemplated by this Agreement. This Agreement has been
properly and validly executed and delivered by Seller and is a valid, binding
and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to
transfer the Shares to be sold by Seller to the Purchaser as contemplated
herein, free and clear of all liens, security interests, charges, claims,
pledges, encumbrances and restrictions and rights and interests of any other
party whatsoever and of any nature (other than restrictions imposed by federal
or state securities laws).
(c) The execution and delivery of this Agreement and the
performance and compliance with its terms by Seller will not (i) conflict with,
or result in the breach of, or trigger or accelerate any right or obligation
(including prepayment penalties), or constitute a default or an event of default
or an occurrence, circumstance, act or failure to act that, with the passage of
time, the giving of notice, or both, would become a default, or give rise to any
right of contingent payment, termination, cancellation, acceleration or
non-renewal, or (ii) result in the creation of any liens, charges, rights,
claims, interests, options or other encumbrances, restrictions or limitations of
any kind upon the Shares to be sold by Seller, whether tangible or intangible,
under (A) the Seller's organizational or constituent instruments, if any
(including, without limitation, articles of incorporation, articles of
organization, certificate of limited partnership, bylaws, resolutions of the
board of directors or shareholders, partnership agreement, operating agreement
or shareholders agreement), (B) any contract, understanding, covenant,
commitment, understanding, arrangement, or other agreement or instrument of any
kind whether oral or written, (C) any law, rule, regulation, policy, ruling or
other interpretation, guideline, circular, judgment, order, decree or other
directive or advice of any kind of any governmental or quasi-governmental
authority, agency or instrumentality or (D) any restriction, condition, covenant
or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim,
demand, notice, hearing, arbitration, investigation, inquiry or any other
proceeding, at law or in equity or before any administrative or enforcement
agency or body (a "Lawsuit") pending or threatened, affecting, directly or
indirectly, the Shares to be sold by Seller and Seller does not know of any
valid basis for any such Lawsuit. There is no judgment, order, writ, injunction,
decree or other similar command or directive of any court or federal, state,
local or foreign governmental or
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quasi-governmental authority, agency or instrumentality that restricts Seller
from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with
the Company including, without limitation, as an entity controlled by a former
officer and director of TradeStation Securities, Inc., a Florida corporation
that is currently the primary operating subsidiary of the Company, and as an
entity controlled by a former executive officer and/or director of the Company,
so as to be able to evaluate the risks and merits of consummating the
transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors,
executives, partners and/or principals who are acting on Seller's behalf) is
fully familiar with all facts and circumstances attendant to Seller's decision
to sell the Shares to be sold by Seller, has reviewed all of the Company's
filings with the Securities Exchange Commission and its recent press releases,
has had an opportunity to ask questions of, and receive answers from,
representatives of the Company and has available to him or it such information
related to the Company and its business, prospects, affairs and plans as Seller
deems necessary and sufficient to make Seller's decision to sell his or its
Shares, and all investigations, due diligence, and questions have been completed
or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors,
executives and/or principals and Seller's representatives, if any, who are
acting on Seller's behalf have) such knowledge and experience in financial and
business matters so as to be capable of evaluating, alone or together, the
merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the
Company's Annual Report of Form 10-K (and its audited financial statements
included therein) for the fiscal year ended December 31, 2001 and its Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has
also reviewed the business outlook for the Company for the fiscal year beginning
January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed
on January 17, 2002. However, Seller specifically understands and agrees that
the business outlook represents only a prediction of future events and is based
largely on current expectations and beliefs concerning future events,
occurrences and circumstances that are subject to substantial risks,
uncertainties and change; accordingly, no assurance can be given that the
operating results forecasted will prove to be accurate and, in fact, the actual
operating results of the Company may prove to be materially different than those
forecasted.
(i) Seller has been represented by such business, legal
and tax counsel and advisors and others, each of whom has been personally
selected by Seller, as Seller has found necessary to consult concerning the
consummation of the transactions contemplated by this Agreement, and such
representation has included an examination of all tax, financial and legal
aspects of the transactions contemplated by this Agreement.
5. Acknowledgements by Purchaser. The Purchaser acknowledges and
agrees that it may not sell, transfer, or otherwise dispose of the Shares unless
(a) such sale, transfer, or other disposition has been registered under the
Securities Act of 1933, as amended (the "Securities Act"), (b) to the extent
applicable, such sale, transfer, or other disposition is made in conformity with
the volume and other limitations of Rule 144 or (c) in the opinion of
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counsel reasonably acceptable to the Company, such sale, transfer, or other
disposition is otherwise exempt from registration under the Securities Act. The
Purchaser also acknowledges that, with respect to the certificates representing
the Shares purchased by the Purchaser, each stock certificate representing the
Shares shall bear such legend(s) as the Company might reasonably require from
time to time with respect to the securities laws restrictions on resale.
6. Confidentiality. The Seller agrees that it will not issue any
press release or make any other public disclosure of this Agreement or the
contents hereof or of the transactions contemplated herein without the prior
approval of the Purchaser, which may be withheld in the sole discretion of the
Purchaser, unless such disclosure is required by law. The Purchaser acknowledges
that the Seller may be required to make disclosure regarding certain terms of
this Agreement under federal or state securities laws. To the extent any such
disclosure is required to be made, the Seller will be permitted to make such
disclosure (including, without limitation, any Schedule 13D or amendment
thereof), but, before taking this step (the making or filing of such disclosure)
the Seller shall (a) consult with the Purchaser and its counsel and (b) provide
the Purchaser and its counsel, for comment, drafts of the proposed disclosures,
and shall include any additions or changes to such proposed disclosures
requested by the Purchaser or its counsel.
7. Survival of Severance Agreement. Seller (for itself and its
Affiliates) acknowledges and agrees that the terms of the Severance Agreement
dated as of July 20, 2001, between the Company and Seller and the General
Release of all Claims dated as of July 20, 2001 executed by Seller in favor of
the Company shall remain in full force and effect, including, without
limitation, the agreement of Seller's Affiliate that he shall not at any time
directly or indirectly through Affiliates or other persons or entities, or in
concert with any other persons or entities, acquire any shares of Common Stock
or any other security of the Company or its successors or assigns or participate
or assist in the participation of any attempt or act designed to acquire direct
or indirect control of the Company or its successors or assigns.
8. Miscellaneous.
(a) Amendment. This Agreement may be amended only by an
instrument in writing signed by all of the parties hereto.
(b) Survival. All representations and warranties
contained herein shall survive the execution and delivery of this Agreement and
the sale and delivery of the Shares.
(c) Entire Understanding. This Agreement constitutes the
entire understanding among the parties relative to the purchase and sale of the
Shares and supersedes all prior written or oral understandings, agreements,
conditions and representations, if any, relating to the purchase and sale of the
Shares.
(d) Governing Law. This Agreement shall be deemed a
contract made under the laws of the State of Florida and together with the
rights and obligations of the parties hereunder shall be construed under and
governed by the laws of such State without regard to the conflict of law
provisions thereof. Each of the parties hereto irrevocably consents to the
exclusive jurisdiction and venue of any federal or state court located within
Miami-Dade
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County in the State of Florida in connection with any matter based upon or
arising out of this Agreement or the matters contemplated herein, agrees that
process may be served upon them in any manner authorized by the laws of the
State of Florida for such persons and waives, and covenants not to assert or
plead, any objection which they might otherwise have to such jurisdiction, such
venue and such process.
(e) Third-Party Beneficiary. The Company is hereby
expressly declared to be an intended third-party beneficiary of all of Seller's
representations, warranties, covenants and agreements made pursuant to, under,
or in connection with, this Agreement.
(f) Counterparts. This Agreement may be executed in one
or more counterparts or counterpart signature pages, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Confirmation of execution by telefax of a facsimile signature page
shall be binding upon that party so confirming.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date set forth above.
SELLER:
ZUM TOBEL FAMILY LIMITED PARTNERSHIP
By: zum Tobel Holdings, Inc., the general
partner
By: /s/ E. Xxxxxx zum Xxxxx
----------------------------------
E. Xxxxxx zum Tobel
President
PURCHASER:
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
XXXXXXX X. XXXXXX
The undersigned hereby unconditionally and primarily guarantees the
truthfulness and accuracy of all of the representations and warranties of Seller
and the timely and full performance of all of the agreements and obligations of
Seller hereunder.
/s/ E. Xxxxxx zum Xxxxx
-----------------------------------------
E. Xxxxxx zum Tobel, individually
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SCHEDULE A
IDENTITY OF SELLER AND
NUMBER AND PURCHASE PRICE OF SHARES TO BE SOLD AND
WIRE TRANSFER INSTRUCTIONS
Seller: zum Tobel Family Limited Partnership, a Florida limited partnership
Number of Shares to be sold: 133,942
Purchase Price: $194,215.90 ($1.45 per Share)
Wire Transfer Instructions:
Citibank ABA #: 000000000
NEW YORK, NY
A/C Bear Xxxxxxx Securities Corp. A/C # 09253186
F/B/O Account #: 073-00001
F/B/O Account Title: ZUMTOBEL FAMILY LIMITED PARTNERSHIP
A/C OF CORR B/D STC SECURITIES CORP
