Exhibit 99
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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
IMPERIAL CREDIT INDUSTRIES, INC.
AND
IMPERIAL BANK
DATED MAY 17, 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
1.1 Defined Terms..........................................................1
ARTICLE II
PURCHASE AND SALE OF STOCK
2.1 Transfer of Stock......................................................2
2.2 Purchase Price Paid by the Company.....................................2
ARTICLE III
CLOSING
3.1 Closing................................................................2
3.2 The Bank's Deliveries at the Closing...................................2
3.3 Company's Deliveries at the Closing....................................2
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BANK
4.1 Authorization..........................................................2
4.2 Ownership of Stock.....................................................3
4.3 Brokers................................................................3
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
5.1 Organization of the Company............................................3
5.2 Authorization..........................................................3
5.3 No Conflict or Violation...............................................3
5.4 Consents and Approvals.................................................4
5.5 Compliance with Law....................................................4
5.6 Brokers................................................................4
5.7 Accuracy of Representations............................................4
ARTICLE VI
ACTIONS PRIOR TO THE CLOSING
6.1 Best Efforts...........................................................4
6.2 Further Assurances.....................................................4
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions to Obligations of the Bank..................................5
7.2 Conditions to Obligations of the Company...............................5
ARTICLE VIII
TERMINATION AND ABANDONMENT
8.1 Methods of Termination.:...............................................6
8.2 Procedure Upon Termination.............................................6
8.3 Effect of Termination..................................................6
ARTICLE IX
MISCELLANEOUS
9.1 Specific Performance...................................................6
9.2 Assignment.............................................................7
9.3 Notices................................................................7
9.4 Choice of Law and Jury Waiver..........................................7
9.5 Expenses in Disputes...................................................7
9.6 Entire Agreement; Amendments and Waivers...............................7
9.7 Counterparts...........................................................8
9.8 Invalidity.............................................................8
9.9 Headings...............................................................8
9.10 Expenses...............................................................8
This Stock Purchase Agreement, dated May 17, 1999, the "AGREEMENT"), is by and
between Imperial Credit Industries, Inc., a California corporation (the
"COMPANY"), and Imperial Bank, a California banking corporation (the "BANK").
RECITALS
WHEREAS, the Company desires to acquire from the Bank 3,682,536
shares (the "STOCK") of the Common Stock, no par value, of the Company; and
WHEREAS, the Bank desires to sell and transfer to the Company the
Stock upon the terms and subject to the conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto agree as follows:
I.
DEFINITIONS
A. DEFINED TERMS. Capitalized words and phrases used and not otherwise
defined in this Agreement shall have the following meanings:
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on which
commercial banks in Los Angeles, California are authorized or required by law to
close.
"CLOSING" is defined in Section 3.1.
"CLOSING DATE" means May 17, 1999.
"CONTRACTS" means all agreements, contracts, commitments, undertakings,
instruments, indentures, licenses, authorizations, concessions and franchises to
which any person is a party, an obligator or a beneficiary.
"ENCUMBRANCE" means any claim, lien, pledge, option, charge, easement, security
interest, right-of-way, restriction, encumbrance or other similar right of a
third party.
"ORGANIZATIONAL DOCUMENTS" means the articles of incorporation and the bylaws
of the Company.
"PERSON" means an individual, a partnership, a limited partnership, a limited
liability company, a joint venture, a corporation, a trust, an unincorporated
organization, a division or operating group of any of the foregoing, a
government or any department or agency thereof or any other entity.
"REPRESENTATIVE" means any officer, director, principal, employee or other
authorized representative of a Person.
II.
PURCHASE AND SALE OF STOCK
A. TRANSFER OF STOCK. Subject to the terms and conditions of this
Agreement, on the Closing Date, the Bank shall sell, transfer,
assign and convey to the Company, and the Company shall purchase and
acquire from the Bank, the Stock.
B. PURCHASE PRICE PAID BY THE COMPANY. Subject to the terms and
conditions of this Agreement, on the Closing Date, the Company shall
pay or cause to be paid to the Bank the amount of $29,460, 288 (the
"PURCHASE PRICE").
III.
CLOSING
A. CLOSING. Unless the parties otherwise agree in writing, the closing
of the transactions contemplated by this Agreement (the "CLOSING")
shall take place on the Closing Date. The Closing shall be held at
9:00 a.m. local time on the Closing Date at the Headquarters offices
of Imperial Bank or at such other place as may be determined by the
parties.
B. THE BANK'S DELIVERIES AT THE CLOSING. At the Closing, the Bank shall
deliver, or cause to be delivered, to the Company certificate(s)
evidencing the Stock, free and clear of any Encumbrances of any
nature whatsoever.
C. COMPANY'S DELIVERIES AT THE CLOSING. At the Closing, the Company
shall deliver to the Bank the Purchase Price by wire transfer of
immediately available funds in lawful money of the United State of
America to the account that the Bank shall designate in writing to
the Company prior to the Closing Date.
IV.
REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank hereby represents and warrants to the Company as follows:
A. AUTHORIZATION. The Bank has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and
has taken all action necessary to execute and deliver this Agreement
and to consummate the transactions contemplated hereby and to
perform its obligations hereunder. This Agreement has been duly
executed and delivered by the Bank and, assuming the due execution
and delivery of this Agreement by the Company, is a legal, valid and
binding obligation of the Bank, enforceable against the Bank in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
B. OWNERSHIP OF STOCK. The Bank owns the Stock of record and
beneficially, free and clear of any Encumbrance.
C. BROKERS. The Bank has not employed, and is not subject to any valid
claim of, any broker, finder, investment banker, consultant or other
intermediary in connection with the transactions contemplated by
this Agreement who will be entitled to a fee or commission in
connection with such transactions. The Bank is solely responsible
for any payment, fee or commission that may be due to each advisor,
if any, in connection with the transactions contemplated hereby.
V.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Bank as follows:
A. ORGANIZATION OF THE COMPANY. The Company is duly organized, validly
existing and in good standing under the laws of the State of
California and has full corporate power and authority to conduct its
business as it is presently being conducted and to own, lease and
use its properties and assets.
B. AUTHORIZATION. The Company has full corporate power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder and has taken all action necessary to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby and to perform its obligations hereunder. This Agreement has
been duly executed and delivered by the Company and, assuming the
due execution and delivery of this Agreement by the Bank, is a
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights
and to general equity principles.
C. NO CONFLICT OR VIOLATION. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated
hereby will result in (a) a violation of or a conflict with any
provision of the Organizational Documents of the Company, (b) a
breach of, a default under, or a right of termination, cancellation,
acceleration or payment with respect to, or the creation of any
Encumbrance upon, any of the assets or properties of the Company
pursuant to, any Contract to which the Company is a party or is
subject or by which any asset of the Company is bound other than
breaches, defaults, rights of termination, cancellation,
acceleration or payment or Encumbrances which could not reasonably
be expected to have individually or in the aggregate a material
adverse effect on the business or financial condition of the Company
or on the transactions contemplated hereby, or (c) a violation by
Company of any statute, rule, regulation, ordinance, code, order,
judgment, writ, injunction, decree or award.
D. CONSENTS AND APPROVALS. No consent, approval, authorization or other
action by, or filing with or notification to, any governmental or
regulatory authority or other third party is required to be made or
obtained by the Company on or prior to the Closing Date in
connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement, except where failure to obtain such consent,
approval, authorization or action, or to make such filing or
notification, would not interfere with the ability of the Company to
consummate the transactions contemplated by this Agreement and
individually and in the aggregate could not reasonably be expected
to have a material adverse effect on the business or financial
condition of the Company or on the transactions contemplated hereby.
E. COMPLIANCE WITH LAW. The Company has complied and is in compliance
with all laws, rules, regulations, codes, and plans, and all
injunctions, judgments, orders, decrees or rulings of every court
and Governmental Body (the "REGULATIONS") and has not received
notice of any unremedied violation of any Regulation, except in each
case for such instances of non-compliance or violation as could not
reasonably be expected to have a material adverse effect on the
business or financial condition of the Company or on the
transactions contemplated hereby.
F.
BROKERS. The Company has not
employed, and is not subject to any valid claim of, any
broker, finder, investment banker, consultant or other intermediary
in connection with the transactions contemplated by this Agreement
who will be entitled to a fee or commission in connection with such
transactions. The Company is solely responsible for any payment, fee
or commission that may be due to each advisor, if any, in connection
with the transactions contemplated hereby.
G. ACCURACY OF REPRESENTATIONS. No representation or warranty made by
the Company in this Agreement or any document or statement
delivered, or to be delivered, by or on behalf of the Company
pursuant hereto contains or, as of the Closing Date, will contain
any untrue statement of a material fact or omits or, as of the
Closing Date, will omit to state a material fact necessary to make
the statements contained herein or therein not misleading.
VI.
ACTIONS PRIOR TO THE CLOSING
A. BEST EFFORTS. The parties hereto will cooperate and use their mutual
best efforts to consummate the transactions contemplated hereby.
B. FURTHER ASSURANCES. At any time after the Closing Date, the Bank and
the Company shall promptly execute, acknowledge and deliver any
other assurances or documents reasonably requested by the Bank and
the Company, as the case may be, and necessary for the Bank and the
Company, as the case may be, to satisfy their respective obligations
hereunder or obtain the benefits contemplated hereby.
VII.
CONDITIONS TO CLOSING
A. CONDITIONS TO OBLIGATIONS OF THE BANK. The obligations of the Bank
to consummate the transactions contemplated by this Agreement shall
be subject to the fulfillment or waiver, at or prior to the Closing,
of each of the following conditions:
1. REPRESENTATIONS AND WARRANTIES; COVENANTS. The representations
and warranties of the Company contained in this Agreement
shall be true and correct as of the Closing, with the same
force and effect as if made on and as of the Closing Date, and
all the covenants contained in this Agreement to be complied
with by the Company on or before the Closing Date shall have
been complied with in all material respects; and
2. NO PROHIBITION. There shall not exist any temporary
restraining order, preliminary or permanent injunction, final
judgment, law or regulation prohibiting the consummation of
this Agreement or the transactions contemplated hereby, or, to
the knowledge of any party, any pending or threatened action
by any governmental authority or private party prohibiting or
seeking to prohibit the consummation of this Agreement or the
transactions contemplated hereby.
B. CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligations of the
Company to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment or waiver, at or prior
to the Closing, of each of the following conditions:
1. REPRESENTATIONS AND WARRANTIES; COVENANTS. The representations
and warranties of the Bank contained in this Agreement shall
be true and correct as of the Closing, with the same force and
effect as if made on and as of the Closing Date, and all the
covenants and other obligations contained in this Agreement to
be complied with by the Bank on or before the Closing Date
shall have been complied with in all material respects; and
2. NO PROHIBITION. There shall not exist any temporary
restraining order, preliminary or permanent injunction, final
judgment, law or regulation prohibiting the consummation of
this Agreement or the transactions contemplated hereby, or, to
the knowledge of any party, any pending or threatened action
by any governmental authority or private party prohibiting or
seeking to prohibit the consummation of this Agreement or the
transactions contemplated hereby.
VIII.
TERMINATION AND ABANDONMENT
A. METHODS OF TERMINATION. The transactions contemplated herein may be
terminated and/or abandoned at any time prior to the Closing:
1. by mutual written consent of the Company and the Bank;
2. by the Company and the Bank if either party has materially
breached any representation, warranty, or covenant contained
in this Agreement; or
3. by the Company and the Bank in the event any court or
governmental agency of competent jurisdiction shall have
issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the
transactions contemplated hereby and such order, decree or
ruling or other action shall have become final and
nonappealable.
B. PROCEDURE UPON TERMINATION. In the event of termination and
abandonment by the Company or the Bank pursuant to Section 8.1,
written notice thereof shall be given to the other party and the
transactions contemplated by this Agreement shall be terminated
and/or abandoned, without further action by the parties. If the
transactions contemplated by this Agreement are terminated and/or
abandoned as provided herein, each party hereto will redeliver all
documents, work papers and other material (and all copies thereof)
of the other party relating to the transactions contemplated hereby,
whether so obtained before or after the execution hereof, to the
party furnishing the same.
C. EFFECT OF TERMINATION. In the event of the termination of this
Agreement pursuant to Section 8.1, this Agreement shall thereafter
become void and have no effect, and no party hereto shall have any
liability or obligation to any other party hereto in respect of this
Agreement, except that the provisions of Article IX (Miscellaneous)
and Section 8.3 shall survive any such termination; provided,
however, that no party shall be released from any liability
hereunder if this Agreement is terminated and the transactions
contemplated hereby abandoned by reason of (i) willful failure of
such party to perform its obligations hereunder or (ii) any
misrepresentation made by such party of any matter set forth herein.
IX.
MISCELLANEOUS
A. SPECIFIC PERFORMANCE. It is expressly understood and agreed that the
material breach of any covenant contained in this Agreement will
result in irreparable injury to the other party and that therefore
such other party shall be entitled to specific performance thereof.
B. ASSIGNMENT. No party to this Agreement may assign any of its rights
or obligation under this Agreement without the prior written consent
of each other party hereto. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and no other Person
shall have any right, benefit or obligation hereunder.
C. NOTICES. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to
the other parties shall be in writing and delivered in person or by
courier or by facsimile transmission as follows (or at such address
or facsimile number of which notice shall have been duly given in
accordance with this Section 9.3):
If to the Company: Imperial Credit Industries, Inc.
00000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, General
Counsel
If to the Bank: Imperial Bank
0000 X. Xx Xxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, General
Counsel
With a copy to: Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Block, Esq.
or to such other place and with such other copies as either party may designate
as to itself by written notice to the other. Any failure by any party to deliver
copies of any notice shall not, in itself, affect the validity of such notice if
otherwise properly made to the other party.
1.1 CHOICE OF LAW AND JURY WAIVER. THIS AGREEMENT SHALL BE
CONSTRUED, INTERPRETED AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF. THE PARTIES WAIVE ANY RIGHT TO A TRIAL BY JURY OF ANY
DISPUTE IN CONNECTION WITH THIS AGREEMENT WHICH SHALL BE HEARD AND DECIDED BY A
JUDGE OF A COURT OF COMPETENT JURISDICTION SITTING IN LOS ANGELES COUNTY,
CALIFORNIA.
D. EXPENSES IN DISPUTES. In any action arising out of the negotiation,
terms or performance of this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees and litigation
expenses from the other party.
E. ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement constitutes
the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the
parties. No supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by all parties. No
waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
F. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
G. INVALIDITY. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
H. HEADINGS. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this
Agreement.
I. EXPENSES. Each party hereto will be liable for its own costs and
expenses incurred in connection with the negotiation, preparation,
execution or performance of this Agreement.
[Remainder of the page intentionally left blank].
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
IMPERIAL CREDIT INDUSTRIES, INC.
By:/s/ H. XXXXX XXXXXXX
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Name: H. Xxxxx Xxxxxxx
Title: Chairman, President & CEO
IMPERIAL BANK
By:/s/ XXX XXXXXX
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Name: Xxx Xxxxxx
Title: President and COO
By:/s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, General
Counsel and Secretary
