EXHIBIT 10.9
STOCK PURCHASE AGREEMENT
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This STOCK PURCHASE AGREEMENT ("Agreement") is made and effective as of
December 31, 2000 (the "Effective Date") by and among Fechtor, Detwiler,
Mitchell & Co., a Delaware corporation ("Purchaser"), on the one hand, and K. &
S., Inc., a Massachusetts corporation (the "Company"), and Kenneth M. King, an
individual, and Kerry King, an individual (collectively, the "Shareholders"), on
the other hand, and is made with reference to the following:
A. The issued and outstanding shares of the Company consist of 50 shares
of common stock (the "Shares"), all of which shares are owned of record and
beneficially by Shareholders.
B. The Company owns and operates a specialist business on the Boston
Stock Exchange (the "Business").
C. All in accordance with the terms and conditions set forth herein,
Shareholders desire to sell all of the Shares and Purchaser desires to purchase
all of the Shares.
D. As an essential inducement for Purchaser to enter into this Agreement,
Shareholders have agreed to (i) make certain representations, warranties and
covenants regarding certain stock, assets and property to be transferred to
Purchaser, as well as other related matters, and (ii) provide Purchaser with
certain indemnification rights with respect to such representations, warranties
and covenants.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
of the parties contained herein, and for other good and valuable consideration,
the sufficiency and receipt of which is hereby acknowledged, the parties agree
as follows:
ARTICLE 1
TRANSACTIONS
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1.1 Purchase and Sale. Subject to the terms of this Agreement, on the
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Closing Date (as hereinafter defined) Purchaser shall buy and Shareholders shall
sell, transfer, convey and assign to Purchaser the Shares held by Shareholders,
constituting all of the outstanding shares of the Company.
1.1.1 Employment Agreement. On the Closing Date and effective as of
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the Effective Date (as hereinafter defined), Purchaser and the Company shall
enter into a three-year employment agreement with Kenneth M. King, substantially
in the form attached hereto as Exhibit "A" and by this reference incorporated
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herein (the "Employment Agreement"). Without limitation, the Employment
Agreement shall provide for an annual right on the part of the Company to extend
the term of such Employment Agreement for a one-year period
beginning on the third anniversary of the Effective Date and shall provide for
non-competition by Kenneth M. King with the Company as provided therein.
1.2 Purchase Price.
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1.2.1 Base Purchase Price of Shares. Without affecting the amounts
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payable pursuant to the Employment Agreement, the purchase price for the Shares
(the "Purchase Price"), shall be payable by Purchaser's delivery on the Closing
Date of the following:
a. A cashier's check or wire transfer from Purchaser to Kenneth
King in the amount of ONE MILLION FIFTY THOUSAND DOLLARS ($1,050,000) plus
interest thereon at six percent (6%) per annum from the Effective Date to the
closing;
b. A cashier's check or wire transfer from Purchaser to Kerry
King in the amount of ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000) plus
interest thereon at six percent (6%) per annum from the Effective Date to the
closing;
c. Purchaser's promissory note ("Promissory Note") in the
principal amount of THREE HUNDRED THOUSAND DOLLARS ($300,000) in the form
attached hereto as Exhibit "B". Such note shall bear variable interest at the
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Prime Interest Rate as quoted in The Wall Street Journal from time to time
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payable in two equal annual installments of principal plus accrued interest on
the first and second anniversaries of the Effective Date;
d. Certificate(s) for 100,000 shares of Purchaser's fully paid
and nonassessable Common Stock (the "FEDM Shares"); and
e. A ten-year Option to Kenneth King to purchase 200,000 shares
of Purchaser's fully paid and nonassessable Common Stock exercisable at the
closing price per share of Purchaser's Common Stock on the trading day
immediately preceding the Effective Date (the "FEDM Option"). The FEDM Option
shall vest in equal installments over three years following the Effective Date
in accordance with its terms and shall be in the form attached hereto as Exhibit
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"C".
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1.2.2 Adjustments. Notwithstanding the provisions of Section 6.2
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below, Purchaser may elect, in Purchaser's sole discretion, to waive any failure
to pay prior to the Closing Date any or all of the liabilities of the Company as
of the Effective Date, and the Purchase Price shall be reduced, on a dollar-for-
dollar basis, to the extent of the value of such liabilities by a reduction in
the amount of the cash portion of the Purchase Price. The cash portion of the
Purchase Price shall be increased in like fashion for any cash constituting as
asset of the Company on the Effective Date and remaining as asset of the Company
following the Closing Date.
1.3 Lease of Boston Stock Exchange Seats.
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1.3.1 Mechanics of Lease transaction. In connection with the sale of
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stock effected hereby, Shareholders shall lease to the Company, and the Company
shall lease from Shareholders for so long as the Company elects to do so, two
(2) seats on the Boston Stock Exchange ("BSE") owned individually by
Shareholders pursuant to Leases in form attached hereto as Exhibit "D" (the
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"Leases").
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1.3.2 Lease Consideration. Without limiting the foregoing, Purchaser
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shall pay to Shareholders in consideration for the rights transferred under the
Leases the amount of annual dues to the BSE required to maintain ownership of
such seats.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
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2.1 Shareholders. Shareholders hereby jointly and severally represent and
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warrant to Purchaser as follows:
2.1.1 Title.
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a. Shares.
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(i) The authorized capital of the Company consists solely
of 100 shares, of which 50 shares are issued and outstanding and are owned of
record and beneficially by Shareholders. All of the issued and outstanding
Shares are duly and validly authorized and issued, fully paid and nonassessable,
and were issued in compliance with all applicable federal and state securities
laws. The transfer of the Shares to be transferred to Purchaser pursuant to this
Agreement, when transferred in accordance herewith, will be in compliance with
all applicable federal and state securities laws. Except for the transactions
expressly contemplated by this Agreement, (i) there are no outstanding options,
warrants, rights (including conversion or preemptive rights) or agreements for
the purchase or acquisition from the Company, Shareholders or any other person
or entity of any shares of the capital stock of the Company, and (ii) there is
no agreement or understanding between any persons and/or entities which affects
or relates to the voting or giving of written consents with respect to any
security or by a director or shareholder of the Company.
(ii) Shareholders have good and marketable title, as sole
owners, to all of the Shares to be transferred by Shareholders to Purchaser
pursuant to this Agreement and the Shares constitute all outstanding equity
securities of the Company.
b. Assets. The Company has good and marketable title, as sole
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owner, to all of the assets used in connection with the Business (such other
assets are further defined on Schedule 2.1.1B attached hereto and are referred
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to herein as the "Assets"). The Assets shall specifically exclude all cash, cash
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equivalents, accounts receivable.
c. No Liens. All of (i) the Shares to be transferred to Purchaser
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pursuant to this Agreement, and (ii) the Assets are (or will be, as of the
Effective Date) free and clear of any and all liens, mortgages, pledges,
security interests, conditional sales or title retention agreements,
assessments, covenants, commitments or any other encumbrances of any nature,
except as otherwise noted on Schedule 2.1.1C attached hereto, all of which liens
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and encumbrances shall be extinguished and released as of the Effective Date.
When the Shares are delivered and paid for pursuant to the terms of this
Agreement, Purchaser will have good and marketable title to the Shares, free and
clear of any and all adverse claims.
2.1.2 No Contravention of Laws. The execution, delivery and
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performance by Shareholders of this Agreement and the consummation of the
transactions contemplated hereby
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will not cause Shareholders or the Company to violate or contravene (i) any
provision of law, (ii) any rule or regulation of any agency or government, or
(iii) any order, writ, judgment, injunction, decree, determination or award to
which Shareholders, the Company or any of the Shares or Assets are subject.
2.1.3 Good Standing. The Company (i) is a corporation duly organized,
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validly existing and in good standing under the laws of the State of
Massachusetts, (ii) has the corporate power to own its property and to carry on
its business as now being conducted and (iii) is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
properties owned by it therein or in which the transaction of its business makes
such qualification necessary.
2.1.4 Binding Agreement. This Agreement constitutes the valid and
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legally binding obligation of the Company and Shareholders, and is enforceable
in accordance with its terms. Shareholders have full power, authority and legal
right and capacity to execute and deliver this Agreement, to transfer such
Shareholder's right, title and interest in the Shares and the Assets and to
perform and observe the terms and conditions hereof.
2.1.5 No Conflict. No provision of any mortgage, indenture, contract,
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agreement or other commitment binding on the Company, the Assets, Shareholders
or any of the Shares or affecting the Company, the Assets, Shareholders or any
of the Shares in any way (collectively, the "Obligations," a list of which is
attached hereto as Schedule 2.1.5), conflicts with, or in any way prevents or
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threatens to prevent, the execution, delivery or performance of this Agreement
by the Company or Shareholders (including, without limitation, the transfer of
any of the Shares to Purchaser). No event of default (or event which, with the
passing of time or the giving of notice, or both, would constitute such an event
of default) exists under any Obligation, and the execution, delivery and
performance of this Agreement by the Company or Shareholders (including, without
limitation, the transfer of any of the Shares to Purchaser) will not result, or
threaten to result, in such an event of default or any basis for any claim of
such an event of default. All Obligations affecting any of the Shares or the
Assets existing as of the Effective Date shall be paid or otherwise satisfied at
or prior to the Closing Date.
2.1.6 Compliance with Charter Documents and Laws. The Articles of
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Incorporation and Bylaws of the Company, as amended and intended to be in effect
on the Closing Date, are attached hereto as Schedules 2.1.6A and 2.1.6B. The
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Company has complied with and is not in violation of the following: (a) any
material term or provision of its Articles of Incorporation or Bylaws or any
resolutions adopted by its Board of Directors or shareholders; and (b)
applicable federal, state or local statutes, laws and regulations (including,
without limitation, (i) any applicable environmental, health, building, zoning,
employment, occupational safety or other law, ordinance or regulation, and (ii)
any laws, ordinances or regulations (including, without limitation, regulations
of the BSE, the National Association of Securities Dealers ("NASD"), the
Securities and Exchange Commission ("SEC")) affecting the business, properties,
assets or operation of a specialist business affecting the Company, the Assets,
and/or the operation of the Business. All reports required to be filed by the
Company with the BSE, NASD or SEC or any other regulatory agency in respect of
the Business have been duly filed and copies thereof for the past five years are
attached as Schedule 2.1.6C.
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2.1.7 Other Approvals. Any and all consents, approvals,
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authorizations and ratifications required by the Company or Shareholders under
all applicable laws, regulations and agreements in order to execute, deliver and
perform under this Agreement (including the consummation of all transactions
contemplated hereby) are set forth on Schedule 2.1.7. All consents, approvals,
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authorizations and ratifications set forth on Schedule 2.1.7 have been or will
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be obtained prior to the Closing Date.
2.1.8 Brokers or Finders. No person has or, as a result of the
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transactions contemplated hereby, will have, directly or indirectly, any valid
claim against or upon the Company, Shareholders, Purchaser or any of the Shares
or the Assets for any compensation as a finder, broker or agent, or in any
similar capacity with respect to the transactions contemplated hereby.
2.1.9 Financial Information. Schedule 2.1.9A to this Agreement
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contains balance sheets of the Company as of September 30, 2000 and December 31,
2000, and related statements of income for the twelve months ended September 30,
2000 and the three months ended December 31, 2000 (the financial statements
contained in Schedule 2.1.9A are referred to as the "Financial Statements" and
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December 31, 2000 is referred to as the "Financial Statement Date").
a. Preparation of Financial Statements. All of the Financial
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Statements have been prepared in accordance with the books and records of the
Company on a consistent basis. The Financial Statements fairly present the
financial position of the Company as of the respective dates for balance sheets
and for the periods indicated for the statements of income. There are no
liabilities of the Company, contingent or otherwise, except as set forth on the
Financial Statements. The Financial Statements do not contain any untrue
statement of material fact or omit or fail to state any material fact necessary
to make the Financial Statements not misleading to an entity contemplating the
acquisition of either (i) the Shares, the Assets, or any portion thereof, or
(ii) the Business.
b. Financial Statement Schedules. To the extent that a specific
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and descriptive reference thereto is not made on Schedule 2.1.9A, a true,
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correct and complete list of any and all contracts, leases, agreements and other
obligations of the Company which have not been fully performed as of the
Effective Date is set forth on Schedule 2.1.9B, which Schedule includes the
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identity of the parties involved, the nature of the obligations of the Company
thereunder and the assets which have been committed to the fulfillment of such
obligations.
2.1.10 Maintenance of Financial Condition. Except as set forth on
Schedule 2.1.10, since the Financial Statement Date, there has not been:
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a. Any change in the condition or title of the Company, the
Business, the Assets or any of the Shares except changes in the ordinary course
of business, none of which (individually or in the aggregate) has been
materially adverse;
b. Any change in the compensation or benefits of, or any bonuses
paid or promised to, any employees, officers or directors of the Company;
c. The loss of any vendor to the Company whose services could
not easily be replaced at substantially the same costs;
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d. Any declaration of any dividend or other distribution to any
shareholder or other holder of any beneficial interest in the Company; or
e. Any other occurrence, event or condition of any similar or
dissimilar character which has materially adversely affected, or may materially
adversely affect (individually or in the aggregate), the Company or the
Business.
2.1.11 Good Condition and Sufficiency. The assets used in the Business
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(including, without limitation, the Assets) are in good operating condition and
repair (subject to ordinary wear and tear) and are adequate and sufficient for
use in the ordinary course of business. The Assets are the only assets
reasonably necessary or advisable for the conduct of the Business as such
business is presently conducted. The Assets have been properly maintained and
have been repaired or replaced when necessary.
2.1.12 Insurance. The Company, the Business and the Assets are each
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covered by insurance policies in commercially reasonable amount and with
commercially reasonable terms and provisions. Such insurance policies, each of
which is listed and summarized on Schedule 2.1.12, shall remain binding and in
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full force and effect through the Closing Date and otherwise in accordance with
their respective provisions. Schedule 2.1.12 also includes a list of all
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liability insurance coverage maintained with respect to the Company, the
Business and the Assets during any part of the last five years, including the
name of the insuring entity and policy number as well as the amount of insurance
coverage.
2.1.13 Litigation. Except as provided on Schedule 2.1.13, there is no
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legal, administrative or arbitration proceeding ("Proceeding") pending or
threatened against or affecting the Company, the Business, the Assets, any of
the Shares or Shareholders in any court or before any governmental entity or
authority. Except as provided on Schedule 2.1.13, there is no outstanding
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judgment, order, writ, injunction or decree of any court, governmental agency,
authority or arbitration tribunal against or affecting the Company, the
Business, the Assets, any of the Shares or Shareholders. Except as set forth
on Schedule 2.1.13, there exists no basis for any Proceeding against or
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affecting the Company, the Business, the Assets, any of the Shares or
Shareholders including, without limitation, any condition which, if revealed to
all interested parties, would give rise to a Proceeding.
2.1.14 Licenses. The Company possesses from the appropriate
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governmental body (including, without limitation, the BSE, NASD, and the SEC)
all licenses, permits, authorizations, approvals and rights ("Licenses") as are
necessary for such entity to engage in the Business as such business is
currently conducted. Lists of all Licenses currently held by the Company and
required in the operation of the Business, including their respective expiration
dates and any conditions to their validity, are set forth on Schedule 2.1.14,
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attached hereto. All such Licenses have been lawfully and validly issued and
are in full force and effect. No violation of such Licenses has been recorded
and there is no pending or threatened proceeding that may revoke or limit any or
all of them. Licenses with respect to the Business shall continue in full force
and effect through the Closing Date; moreover, Licenses with respect to the
Business constitute Assets and shall be transferred to Purchaser through the
purchase of the Shares by or as of the Effective Date without interruption.
2.1.15 Patents, Trademarks, Service Marks, Logos and Trade Names. All
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of the patents, trademarks, service marks, logos and trade names which are
currently being used in the
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operation of the Business, which are listed on Schedule 2.1.15 attached hereto
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are valid, in good standing and free and clear of all liens and encumbrances of
any nature whatsoever, and have not been (a) challenged in any way or (b)
involved in any interference claim or proceeding. Operation of the Business in
the ordinary course will not involve infringement or claimed infringement of any
issued or applied-for United States patent or trademark and are in the name of
the Company.
2.1.16 Third Parties. The Business operating in the ordinary course,
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(a) does not, and will not as of the Closing Date, infringe upon or violate any
rights of any third party, and (b) does not, and will not as of the Closing
Date, violate any right of privacy or any personal or proprietary right.
2.1.17 Taxes. The Company and Shareholders have filed, on a timely
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basis, (or will file within the time required by this Agreement) all tax
returns, reports and declarations required to be filed for all periods prior to,
and those periods including, the Effective Date. Federal and state tax returns
for the prior three fiscal years for the Company are attached hereto as
Schedules 2.1.17A, 2.1.17B and 2.1.17C, respectively. No time in which to file
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any such unfiled returns, reports or declarations has been extended. The
Company and Shareholders have each paid, at the time and in the manner required,
and where payment is not yet due have accrued on their respective balance
sheets, all taxes for all periods prior to and those periods including the
Effective Date. All taxes shown to be due on any returns, reports and
declarations have been paid, and neither the Company nor Shareholders are
delinquent in the payment of any tax, estimated tax, assessment or governmental
charge payable by or on behalf of such party. There is no tax audit of any kind
pending or threatened against the Company or Shareholders nor has a claim for
assessment, proposed assessment or collection of any tax been received or
threatened. Neither the Company nor Shareholders have any outstanding agreement
or waiver extending or waiving any statute of limitations with respect to the
collection or assessment of any tax, nor will such an agreement be entered into
prior to the Closing Date. There are no tax liens on any portion of the Shares,
the Business or the Assets. For purposes of this Agreement, the term "tax"
shall include all federal, state, local, foreign or other governmental income,
franchise, gross-receipts, property, sales, use, transfer, excise, employment,
and other taxes of any nature whatsoever including, without limitation, all
interest, penalties, fines, assessments and deficiencies relating thereto.
2.1.18 Environmental Matters. Except as set forth on Schedule 2.1.18
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hereto, neither the Company, the Business nor the Assets, nor any portion of any
of the foregoing, have been associated with any spill, disposal, storage,
discharge or release of any Hazardous Materials (as hereinafter defined) into or
upon or over any real property or into or upon ground or surface water. Neither
the Assets nor the Business includes any asbestos-containing materials nor do
they include any electrical transformer, fluorescent light fixture with ballasts
or other equipment containing polychlorinated biphenyls or any underground
storage tanks. As used herein, the term "Hazardous Materials" shall mean any
hazardous or toxic substance, material or waste which is regulated by any local
government authority, the Commonwealth of Massachusetts or the government of the
United States of America.
2.1.19 Employees. Schedules of all current employees for the Company,
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their current rates of compensation (and any other remuneration of any kind) and
benefits and date of last compensation increase, any accrued vacation and all
compensation, benefits and bonuses
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paid (i) from October 1, 1999 to September 30, 2000 and (ii) since October 1,
2000 are attached hereto as Schedule 2.1.19. Except as set forth on Schedule
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2.1.19, there has been no hiring of new employees or termination of existing
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employees since September 30, 2000. All contracts and relationships between the
Company and its current or former officers, directors, principals, employees or
consultants who are or were employed or otherwise compensated in connection with
activities of the Company ("Employees") are and have been in full compliance
with law and are terminable at-will. None of the Employees belong to a union,
and the Company is not bound, in any way, by any collective bargaining
agreements or consent decrees involving the Employees. Except for the benefits
set forth on Schedule 2.1.19, on the Closing Date, there shall be outstanding as
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of the Effective Date no liabilities, obligations, expenses or commitments in
respect of any Employees including, without limitation, any liabilities or
obligations relating to any employee benefit plans, pension plans, welfare
benefit plans, retirement, disability, medical, dental or other health insurance
plans, life insurance or other death benefit plans, profit-sharing, deferred
compensation, severance, bonus, stock purchase, stock ownership or other
compensation plans or arrangements, accrued but unpaid vacation, sick-leave or
personal time, or any other liabilities, whether similar or dissimilar to the
foregoing unless Purchaser and Shareholders shall have agreed to the contrary,
in which event Shareholders shall deposit with Purchaser on or before the
Closing Date amounts in cash necessary to fund any such liability or obligation
outstanding as of the Effective Date. Copies of any of the foregoing plans are
attached, as appropriate, to Schedule 2.1.19. Neither the Company nor any
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Related Party ("Related Party" means any company, trade or business, whether or
not incorporated, which is considered a single employer with the Company under
Section 4001 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) has sponsored, been obligated to contribute to, terminated or
withdrawn from any employee pension benefit plan (within the meaning of Section
3(2) of ERISA) which is a multi-employer plan (as defined in Section 3(37) of
ERISA), and neither the Company nor any Related Party has incurred any
withdrawal liability (as defined in Section 4201 of ERISA) with respect to any
multi-employer plan, and no such withdrawal liability will result from this
Agreement or the consummation of any of the transactions contemplated hereby. No
liability under Title IV of ERISA which has not been satisfied has been incurred
by the Company or by any Related Party with respect to an employee pension
benefit plan (within the meaning of Section 3(2) of ERISA), and no proceedings
by the Pension Benefit Guaranty Corporation to terminate any such plan pursuant
to Title IV of ERISA have been instituted or threatened under which the Company
or any Related Party could have any present or future liability. Neither the
Company nor any member of a group described in Internal Revenue Code (the
"Code") Sections 414(b), (c), (m), (n) or (o) which includes the Company has
violated the requirements of Code Section 4980B or Sections 601, et seq. of
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ERISA.
2.1.20 Investment Representations. Shareholders acknowledge that the
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Promissory Note, the FEDM Shares and the FEDM Option to be transferred to
Shareholders pursuant to this Agreement (i) constitute "securities" under
federal and applicable state securities laws, (ii) will be unregistered as such,
and (iii) are being transferred in reliance upon exemptions from registration
based, in part, upon Shareholders' representations contained herein.
Shareholders are acquiring such securities for their own account and not with a
view to, or for sale in connection with, any distribution thereof. Shareholders
acknowledge that such securities may not be sold or transferred unless such sale
or transfer is registered or qualified with the appropriate securities
authorities or unless an opinion of counsel, satisfactory to Purchaser is
rendered which states that such sale or transfer is exempt from registration and
qualification.
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Shareholders further acknowledge that they have had an opportunity to review the
reports filed by Purchaser with the SEC and that they have had an opportunity to
ask questions of members of senior management of Purchaser about its business
and prospects. Shareholders each constitute an "Accredited Investor" as that
term is defined in regulations promulgated by the SEC.
2.1.21 Disclosure. No representation, warranty or covenant by the
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Company or any Shareholders contained in this Agreement, or in any schedule,
exhibit, statement or certificate furnished, or to be furnished, to Purchaser by
the Company or Shareholders pursuant to this Agreement or in connection with the
transactions contemplated herein, contains or will contain any untrue or
misleading statement of any material fact, or omits or will omit, or fail to
state any material fact necessary to make any such representation, warranty or
covenant not misleading to a prospective purchaser of any of the Shares, the
Assets, the Business or any portion of the foregoing.
2.2 Purchaser. Purchaser hereby represents and warrants to Shareholders as
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follows:
2.2.1 Good Standing. Purchaser (a) is a corporation duly organized,
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validly existing and in good standing under the laws of the jurisdiction of its
incorporation, (b) has the corporate power to own its property and to carry on
its business as now being conducted and (c) is duly qualified to do business and
is in good standing in each jurisdiction in which the character of the
properties owned by it therein or in which the transaction of its business makes
such qualification necessary.
2.2.2 Binding Agreement. This Agreement constitutes the valid and
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legally binding obligation of Purchaser and is enforceable in accordance with
its terms. Purchaser has full power, authority and legal right to execute and
deliver this Agreement and to perform and observe the terms and conditions
hereof, all of which has been fully authorized by all necessary and proper
corporate actions of Purchaser.
2.2.3 No Conflict. No provision of any mortgage, indenture, contract,
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agreement or other commitment binding on Purchaser or affecting Purchaser in any
material way conflicts with, or in any way prevents, the execution, delivery or
performance of this Agreement by Purchaser.
2.2.4 Compliance with Charter Documents and Laws. Purchaser has
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complied with and is not in violation of, nor will the execution of this
Agreement or the consummation of the transactions contemplated hereby fail to
comply with or cause a violation of, the following: (a) any material term or
provision of its Articles of Incorporation or Bylaws or any resolutions adopted
by its board of directors or shareholders; and (b) applicable federal, state or
local statutes, laws and regulations.
2.2.5 SEC Reports. All of Purchaser's reports filed with the SEC were
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true and correct in all material respects at the time they were filed.
2.2.6 FEDM Shares. The FEDM Shares and the shares issuable upon
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exercise of the FEDM Option, when issued, will be duly and validly authorized
and issued, fully paid and nonassessable, and, based in part upon the
representations of Shareholders in this Agreement, will be issued in compliance
with federal and state securities laws.
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2.2.7 Investment Representations. Purchaser acknowledges that the
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Shares to be transferred to Purchaser pursuant to this Agreement (i) constitute
"securities" under federal and applicable state securities laws, (ii) will be
unregistered as such, and (iii) are being transferred in reliance upon
exemptions from registration based, in part, upon Purchaser's representations
contained herein. Purchaser is acquiring such securities for its own account
and not with a view to, or for sale in connection with, any distribution
thereof. Purchaser acknowledges that such securities may not be sold or
transferred unless such sale or transfer is registered or qualified with the
appropriate securities authorities or unless an opinion of counsel, satisfactory
to the Company is rendered which states that such sale or transfer is exempt
from registration and qualification.
2.2.8 Disclosure. No representation, warranty or covenant by
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Purchaser contained in this Agreement, or in any schedule, exhibit, statement or
certificate furnished, or to be furnished, to Shareholders by Purchaser pursuant
to this Agreement or in connection with the transactions contemplated herein,
contains or will contain any untrue or misleading statement of any material
fact, or omits or will omit, or fail to state any material fact necessary to
make any such representation, warranty or covenant contained herein not
misleading to Shareholders.
2.3 Survival of Representations and Warranties. The representations and
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warranties of each party contained herein shall continue and be true and correct
on and as of the Closing Date and shall survive the consummation of the
transactions contemplated herein.
ARTICLE 3
ACCESS AND INFORMATION
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Purchaser and its officers, directors, employees, counsel and other
authorized representatives, throughout the period prior to the Closing Date,
shall be provided with reasonable access (during normal business hours and
without undue interference with normal business activities) to the Assets and to
any other property, books and records relating to the Company, the Business,
any of the Shares and Shareholders for the purpose of facilitating a due
diligence review thereof by Purchaser. Purchaser agrees to exercise its
commercially reasonable best efforts to cause any information obtained as a
result to be treated as confidential. Notwithstanding Purchaser's rights and
the obligations of any other party hereunder, Purchaser may or may not conduct
such investigations and/or review such information and the provisions of this
Article 3 shall in no way be deemed to lessen Purchaser's entitlement to rely on
the representations and warranties of any other party contained herein; rather,
Purchaser is, and shall continue to be, entitled to rely absolutely on such
representations and warranties.
ARTICLE 4
CONDITIONS PRECEDENT TO CLOSING
-------------------------------
4.1 Conditions to Obligations of Purchaser. The obligations of Purchaser
--------------------------------------
under this Agreement are, at the option of Purchaser (in its sole and absolute
discretion), subject to the following conditions precedent:
-10-
4.1.1 All consents required in order for the transfer to Purchaser of
good title to any or all of the Shares shall have been obtained and such
transfer shall be in accordance with all applicable laws and regulations
(including applicable regulatory and licensing approvals);
4.1.2 Purchaser shall have obtained the authorized approval from the
Purchaser's Board of Directors to proceed with the transactions contemplated by
this Agreement;
4.1.3 Between the Financial Statement Date and the Closing Date,
there shall have been no materially adverse change in the condition or title of
the Company, the Business, the Assets or any of the Shares, except changes in
the ordinary course of business, none of which has been materially adverse;
4.1.4 Purchaser's investigations and review, if any, pursuant to
Article 3 hereof shall not have revealed any information which materially and
adversely reflects upon the Company, the Business, Shareholders or any of the
Shares;
4.1.5 All parties to this Agreement, other than Purchaser shall have
taken all requisite action for the valid performance of this Agreement,
including the transfer of the Shares to Purchaser, lien-free and in the
condition otherwise required herein;
4.1.6 Purchaser shall have received an executed form of Release of
Financing Statement on Form UCC-2, or such other form of release reasonably
acceptable to Purchaser, for each lien or other encumbrance shown on Schedule
--------
2.1.1C hereto, and such form(s) of release shall, in the reasonable opinion of
- ------
Purchaser, effect a complete release thereof (collectively, the "Executed
Releases");
4.1.7 All representations and warranties of parties to this Agreement
other than Purchaser shall be true and correct in all material respects as of
the Closing Date;
4.1.8 No covenant of a party to this Agreement other than Purchaser
shall be in default nor shall a default be threatened with solely the passing of
time, the giving of notice, or both; and
4.1.9 No impediments shall exist or be threatened with respect to the
execution, delivery and performance by the parties to the Employment Agreement
other than Purchaser.
4.2 Conditions to Obligations of Parties other than Purchaser. The
--------------------------------------------------------
obligations of Shareholders under this Agreement are, at the option of
Shareholders (in their sole discretion), subject to the following conditions:
4.2.1 Purchaser shall have taken all requisite corporate action for
the valid performance of this Agreement;
4.2.2 Purchaser's representations and warranties contained herein
shall be true and correct in all material respects as of the Closing Date; and
4.2.3 Purchaser shall have made the following grants to the named
individuals pursuant to Purchaser's 2000 Omnibus Equity Incentive Plan:
-11-
a. Kerry King - options to purchase 65,000 shares of Purchaser
Common Stock on the same terms provided in Paragraph 1.2.1.d;
b. Keith King - options to purchase 27,000 shares of Purchaser
Common Stock on the same terms provided in Paragraph 1.2.1.d;
c. Christine Keenan - options to purchase 27,000 shares of
Purchaser Common Stock on the same terms provided in Paragraph 1.2.1.d; and
d. Domenic Galluzzo - options to purchase 13,000 shares of
Purchaser Common Stock on the same terms provided in Paragraph 1.2.1.d.
4.3 Impossibility. If, except as otherwise provided in this Agreement, any
-------------
of the parties shall be prevented from closing, completing or proceeding with
any of the transactions contemplated herein for any cause beyond the reasonable
power and control of that party, Shareholders, if the impossibility is on the
part of Purchaser, or Purchaser, if the impossibility is on the part of
Shareholders, may elect to (i) accept a partial performance as dictated by the
circumstance, or (ii) terminate this Agreement in lieu of any other remedy.
ARTICLE 5
CLOSING
-------
5.1 Time and Place. The transactions provided for herein shall be
--------------
consummated at 10:00 a.m. on January 17, 2001, or such other date and time as
the parties may agree (the "Closing Date"), at the offices of Purchaser, located
at 225 Franklin Street, 20/th/ Floor, Boston, Massachusetts, or such other
location as the parties may agree, effective for all purposes as of the
Effective Date.
5.2 Actions and Deliveries. On the Closing Date, the following actions and
----------------------
deliveries shall take place:
5.2.1 Delivery by Parties other than Purchaser.The parties other than
----------------------------------------
Purchaser shall deliver to Purchaser the following:
a. a Certificate executed by Shareholders and dated as of the
Closing Date to the effect that the representations and warranties contained
herein are true and correct as of the Closing Date;
b. the Executed Releases;
c. certificates representing the Shares to be transferred by
Shareholders to Purchaser, together with duly executed and appropriate
Assignments Separate from Certificate transferring title to such Shares to
Purchaser;
d. the Employment Agreement executed by Kenneth M. King;
e. the Leases executed by Shareholders;
-12-
f. Resignations of each of the officers and directors of the
Company; and
g. Such other documents as are necessary to effect the intent
of this Agreement and confirm the performance by Shareholders of their
obligations hereunder (including Schedules revised as of the Effective Date) as
Purchaser may reasonably request.
5.2.2 Delivery by Purchaser. Purchaser shall deliver to Shareholders
---------------------
the following:
a. A cashier's check (or wire transfer) in the amount of the
cash portion of the Purchase Price payable to Shareholders;
b. the Promissory Note;
c. the FEDM Shares;
d. the FEDM Option;
e. writings evidencing the grants of Purchaser options called
for by Paragraph 4.2.3;
f. a certificate executed by the President of Purchaser and
dated as of the Closing Date to the effect that the representations and
warranties of Purchaser and contained herein are true and correct as of the
Closing Date;
g. the Employment Agreement executed by the Chairman of the
Company;
h. the Leases executed by the Chairman of the Company; and
i. such other documents as are necessary to effect the intent
of this Agreement and confirm the performance by Purchaser of its obligations
hereunder as any party other than Purchaser may reasonably request.
5.3 Further Acts. On the Closing Date, Shareholders shall deliver to
------------
Purchaser such bills of sale, endorsements, assignments, and other good and
sufficient instruments of conveyance and assignment, reasonably satisfactory in
form and substance to Purchaser and its counsel, as shall be effective to vest
in Purchaser all right, title and interest in and to each of the Shares.
Simultaneously with such delivery, Shareholders shall take all additional steps
as may be reasonably necessary to put Purchaser into full possession, enjoyment
and operating control of each of the Shares, the Company, the Business and the
Assets. It is understood that the transactions contemplated by this Agreement,
when closed, shall be effective as of the Effective Date and that any
transactions not fully completed and conducted as of 8:00 a.m. local time on the
Effective Date shall be for the account of Purchaser.
5.4 Simultaneous Transactions and Duration of Closing. All transactions on
-------------------------------------------------
the Closing Date shall be deemed to have taken place simultaneously, and no
transaction shall be deemed to have been completed until all transactions are
completed and all documents delivered.
-13-
ARTICLE 6
OBLIGATIONS BEFORE CLOSING
--------------------------
6.1 Conduct of Business in Normal Course. From the Effective Date of this
------------------------------------
Agreement until the Closing Date, each of the Company and Shareholders shall
carry on the Business diligently and in substantially the same manner as it
previously has been carried on, and shall not make or institute any unusual or
novel methods of purchase, sale, lease, commitment, management, accounting or
operation that will vary materially from the methods used by it as of the date
of this Agreement. Without limiting the generality of the foregoing, the
Company shall not make any distribution to Shareholders other than a
distribution representing cash, cash equivalents and accounts receivable as of
the Effective Date, which shall not constitute assets of the Company as of the
Closing Date.
6.2 Full Payment of Liabilities. Shareholders covenant that any and all
---------------------------
liabilities of the Company and the Business existing as of the Effective Date
shall be paid in full at or prior to the Closing Date (including, as of the date
of such returns, without limitation, taxes which may be shown as payable
pursuant to stub period returns prepared with respect to the Company pursuant to
Paragraph 8.1.2 below) and any and all liens, claims and encumbrances affecting
the Assets shall be removed to the reasonable satisfaction of Purchaser.
Shareholders shall not incur any liability on behalf of the Company from and
after the Effective Date other than in the ordinary course of business.
6.3 Preservation of Business and Relationships. The Company and
------------------------------------------
Shareholders shall use their best efforts, without making any commitments on
behalf of Purchaser, to preserve its business organization intact, to keep
available to its business its present Employees, and to preserve its present
relationships with customers and others having business relationships with it.
6.4 Existing Agreements. The Company and Shareholders shall not modify,
-------------------
amend, cancel or terminate any of its existing contracts or agreements, or agree
to do any of those acts.
6.5 Governmental Filings. Shareholders shall cooperate fully with Purchaser
--------------------
in preparing and filing all information and documents deemed necessary or
desirable by Purchaser under any statutes or governmental rules or regulations
pertaining to the transactions contemplated by this Agreement.
6.6 Notice to Purchaser. Shareholders shall give prompt notice to Purchaser
-------------------
of (a) any notice of, or order or communication relating to, any default or
potential default received by Shareholders or of which Shareholders are aware
with respect to any Obligation, and (b) any notice or other communication from
any third party alleging that the consent of such third party may be required in
connection with any of the transactions contemplated by this Agreement.
6.7 Actions by Shareholders. Shareholders shall take any and all actions
-----------------------
which may be reasonably necessary to cause such party to this Agreement to
perform its obligations hereunder in a timely and appropriate manner.
6.8 Maintenance of Confidentiality. Purchaser shall maintain in confidence
------------------------------
the results of its due diligence inquiry and any and all reports generated by
third parties in connection therewith.
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ARTICLE 7
INDEMNIFICATION
---------------
7.1 Indemnification.
---------------
7.1.1 Shareholders. Shareholders shall indemnify, defend (with
------------
counsel reasonably acceptable to Purchaser and/or the Company, as the case may
be) and hold Purchaser and the Company harmless from and against any and all
costs, actions, expenses (including reasonable attorneys' fees), claims, demands
and liabilities arising from:
a. Any misrepresentation or inaccuracy in, breach or
nonperformance of, any warranty, representation, covenant or agreement made by
Shareholders in this Agreement; and
b. Any acts, events or omissions of Shareholders, the Company
or the Business prior to or as of the Closing Date.
7.1.2 Purchaser. Purchaser shall indemnify, defend (with counsel
---------
reasonably acceptable to Shareholders) and hold Shareholders harmless from and
against any and all costs, actions, expenses (including reasonable attorneys'
fees), claims, demands and liabilities arising from:
a. Any misrepresentation or inaccuracy in, breach or
nonperformance of, any warranty, representation, covenant or agreement made by
Purchaser in this Agreement; and
b. Any acts, events or omissions of Purchaser relating to the
Company or the Business after the Closing Date.
7.1.3 Mutual Cooperation. Each party to this Agreement shall
------------------
cooperate with the other party(ies) in defending claims for which the other
party(ies) is/are or may be liable under this Article 7 by giving prompt notice
to the other party(ies) of the existence of any such claim and by promptly
furnishing such documents and information as may be useful in defense of such
claims.
7.1.4 Offset. Without limitation, Purchaser shall be entitled to
------
offset amounts otherwise payable by Shareholders to Purchaser or the Company
pursuant to Paragraph 7.1.1 above against any payments owing from Purchaser to
Shareholders under the Promissory Note following the Closing Date provided,
however, that Purchaser shall have made such determination to offset in good
faith and shall have provided Shareholders 15 days' advance written notice of
its intention to make such an offset. If within 15 days after receipt of such
notice, Shareholders object to such offset, than the parties shall submit such
disagreement to arbitration in accordance with Section 9.5 of this Agreement.
ARTICLE 8
TAXES, FEES AND TERMINATION
---------------------------
8.1 Taxes.
-----
-15-
8.1.1 Obligation. Any sales, use, transfer or other similar taxes
----------
payable by reason of any of the transactions contemplated herein or hereby
including, without limitation, the transfers of the Shares or the Assets shall
be paid by Shareholders.
8.1.2 Stub Period Returns. Within 90 days after the Closing Date,
-------------------
Shareholders shall cause to be prepared and delivered to Purchaser, at the
expense of Shareholders, tax returns and any related payments, schedules or
filings in respect of the Company for the stub period from the most recent
fiscal year-end up to and including the Effective Date. All such returns,
schedules and filings shall be accurate and shall comply fully with applicable
law and regulations and past practice in both form and substance.
8.2 Fees and Expenses. Shareholders and Purchaser shall each pay their
-----------------
respective costs and expenses (including attorneys' fees) incurred or to be
incurred in negotiating and preparing this Agreement and in closing and
performing the transactions contemplated herein.
8.3 Termination. This Agreement may be terminated as follows:
-----------
8.3.1 Purchaser. By Purchaser if there is any breach of this
---------
Agreement by a party other than Purchaser or any condition precedent to the
obligations of Purchaser hereunder is not satisfied and such condition is not
waived by Purchaser on or prior to the Closing Date; or
8.3.2 Shareholders. By Shareholders if there is a breach of this
------------
Agreement by a party other than Shareholders or the Company or any condition
precedent to the obligations of Shareholders hereunder is not satisfied and such
condition is not waived by Shareholders on or prior to the Closing Date;
in which case, the party with a right of termination may terminate this
Agreement at its option by notice to the other parties. In the event of a
termination of this Agreement by any party as above provided due to the default
of the other party(ies), such defaulting party(ies) shall be liable to the other
parties for damages proximately caused by such default.
ARTICLE 9
MISCELLANEOUS
-------------
9.1 Warranty of Title. Shareholders' warranty of title contained herein
-----------------
with respect to the Shares or any portion thereof is hereby made a part of all
instruments of transfer by which any of the Shares are transferred to Purchaser.
9.2 Notices. Any notices or other communications pursuant to this
-------
Agreement shall be given in writing and shall be deemed to have been given when
delivered personally, or three business days after deposit in the United States
mail, registered or certified, with proper postage and registration or
certification fees prepaid, or one business day after delivery to Federal
Express or a similar overnight carrier, addressed to the following:
IF TO PURCHASER:
Fechtor, Detwiler, Mitchell & Co.
-16-
225 Franklin Street, 20/th/ Floor
Boston, Massachusetts 02110
Attn: Andrew F. Detwiler, President
Telephone: (617) 747-0159
Facsimile: (617) 747-0800
with copies of all notices to Purchaser or the Company to:
Pillsbury Winthrop LLP
101 West Broadway, Suite 1800
San Diego, CA 92101
Attn: David R. Snyder, Esq.
Telephone: (619) 544-3369
Facsimile: (619) 236-1995
IF TO SHAREHOLDERS:
Mr. Kenneth M. King
Mr. Kerry King
K. & S., Inc.
Boston Stock Exchange
100 Franklin Street
Boston, Massachusetts 02110
Telephone: (617) 235-2370
Facsimile: (617) 235-2200
with copies of all notices to Shareholders to:
Hemenway & Barnes, Counselors at Law
60 State Street
Boston, MA 02109
Attn: Frederic J. Marx
Telephone: (617) 557-9717
Facsimile: (617) 227-0781
or to such other addresses as may be designated by any of the parties from time
to time by written notice given to the other party(ies) in the aforesaid manner.
9.3 Survival. The indemnities, agreements and covenants made in this
--------
Agreement shall survive the Closing Date.
9.4 Assignment. This Agreement and all rights pertaining hereto may be
----------
assigned by Purchaser at any time before or after the Closing Date; however, any
such assignment shall not relieve Purchaser of any responsibility with regard to
the payments of Purchaser contemplated by this Agreement.
9.5 Arbitration. In the event of any dispute concerning or arising out of
-----------
this Agreement or any agreement or transaction contemplated hereby, including
the Exhibits and Schedules attached hereto, such dispute shall be submitted to
binding arbitration. Arbitration proceedings
-17-
may be commenced by giving the other party(ies) written notice thereof and
proceeding thereafter in accordance with the rules and procedures of the
American Arbitration Association. This arbitration shall take place before a
single arbitrator in Boston, Massachusetts. The arbitration shall be governed by
and subject to the applicable laws of the State of Delaware and the then
prevailing rules of the American Arbitration Association for the Arbitration of
Commercial Disputes. The arbitrator's or arbitrators' award shall be final and
binding, and a judgment upon the award may be enforced by any court of competent
jurisdiction.
9.6 Severability. Should any one or more of the provisions of this
------------
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable in any relevant jurisdiction, then
such illegal or unenforceable provision shall be modified by the proper court,
if possible, but only to the extent necessary to make such provision
enforceable, and such modified provision and all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement
shall be given effect separately from the provision or portion thereof
determined to be illegal or unenforceable and shall not be affected thereby;
provided, that any such modification shall apply only with respect to the
operation of this Agreement in the particular jurisdiction in which such
determination of illegality or unenforceability is made.
9.7 Attorneys' Fees. In the event of any suit, action or arbitration to
---------------
enforce any of the terms or provisions of this Agreement or arising out of the
transactions or agreements contemplated hereby, the prevailing party shall be
entitled to its reasonable attorneys' fees and costs. The foregoing entitlement
shall also include attorneys' fees and costs of the prevailing party on any
appeal of a judgment and for any action to enforce a judgment.
9.8 Brokerage Commission. Each party shall indemnify and hold harmless the
--------------------
other parties against any and all losses, costs, damages, expenses (including
attorneys' fees) and liabilities whatsoever based upon any commitment by such
indemnifying party to pay any brokerage commission by reason of the transactions
contemplated herein.
9.9 Applicable Law. This Agreement and the rights and obligations of the
--------------
parties hereunder shall be construed under, and governed by, the laws of the
State of Delaware without giving effect to conflict of laws provisions.
9.10 Binding Effect. The terms and provisions of this Agreement shall be
--------------
binding upon, and shall inure to the benefit of, the parties hereto and their
respective assigns, heirs, representatives and successors.
9.11 Further Assurances. Each party hereby agrees to execute all such
------------------
further instruments and documents and to take all such further action as the
other party(ies) may reasonably request in order to give effect to the
provisions and purposes of this Agreement.
9.12 Entire Agreement. This Agreement, the attached schedules and exhibits
----------------
referenced herein, and the instruments, agreements and certificates to be
executed and delivered pursuant hereto, constitute the entire understanding of
the parties with respect to the subject matter hereof and supersede any and all
prior letters, agreements or memorandums of understanding.
-18-
9.13 Waiver, Modification or Cancellation. Any waiver, modification or
------------------------------------
cancellation of any of the provisions of this Agreement shall not be valid
unless in writing and signed by the parties hereto.
9.14 Headings; Terminology. The various headings or titles used herein are
---------------------
for convenience only and shall not affect the interpretation of any of the
provisions hereof. All personal pronouns used in this Agreement, whether used
in the masculine, feminine or neuter gender, shall include all other genders;
and the singular number shall include the plural, and vice versa.
9.15 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.
9.16 Publicity. All notices to third parties and all other publicity
---------
concerning the transactions contemplated herein shall be jointly planned and
coordinated by and between Purchaser and Shareholders. None of the parties
shall act unilaterally in this regard without the prior written consent of the
other; however, such consent shall not be unreasonably withheld.
(Signatures on Page 20)
-19-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PURCHASER:
FECHTOR, DETWILER, MITCHELL & CO.,
a Delaware corporation
By: /s/ Andrew F. Detwiler Date: 1/24/01
-------------------------- -----------------
Andrew F. Detwiler, President
THE COMPANY:
K. & S., INC., a
Massachusetts corporation
By: /s/ Kenneth M. King Date: 1/24/01
-------------------------- -----------------
SHAREHOLDERS:
- ------------
/s/ Kerry M. King Date: 1/24/01
- ----------------------------- -----------------
Kenneth M. King
/s/ Kerry King Date: 1/24/01
- ----------------------------- -----------------
Kerry King
-20-
INDEX OF EXHIBITS
-----------------
EXHIBITS
- --------
A - Form of Employment Agreement with Kenneth M. King
B - Form of Promissory Note
C - Form of FEDM Option
D Form of Lease Agreement
INDEX OF SCHEDULES
------------------
SCHEDULES
- ---------
2.1.1B - Assets
Exhibit 1 - Furniture, Fixtures and Equipment
Exhibit 2 - Prepaid Expenses
Exhibit 3 - Records
2.1.1C - Liens
2.1.5 - Obligations
2.1.6A - Articles of Incorporation
2.1.6B - Bylaws
2.1.6C - BSE, NASD and SEC Reports
2.1.7 - Required Approvals and Consents
2.1.9A - Financial Statements and Schedules
2.1.9B - Obligations not otherwise set forth on Schedule 2.1.9A
2.1.10 - Exceptions to Financial Condition
2.1.12 - Insurance Policies
2.1.13 - Litigation
2.1.14 - Licenses
2.1.15 - Patents, Trademarks, Service Marks, Logos and Trade Names
2.1.17 - State and Federal Tax Returns
2.1.18 - Environmental Matters
2.1.19 - Employees