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EXHIBIT 10.8
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 17th of September, 1999, by
and among The Synergy Plan, Ltd., an Illinois corporation (the "Company"), and
Argo Bancorp., Inc., a Delaware corporation (the "Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Stock.
(a) The Company shall adopt and file with the Secretary of State of
Illinois on or before the Closing (as defined below) Articles of Amendment to
the Articles of Incorporation (the "Amended Charter") to create a preferred
class of stock (the "Preferred Stock") with the designations, preferences, and
special rights set forth on Exhibit A.
(b) Subject to the terms and conditions of this Agreement, the Investor
agrees to purchase at the Closing and the Company agrees to sell and issue to
the Investor at the Closing, (i) 16,667 shares of the Company's Preferred Stock
for a purchase price of $15.00 per share and (ii) 16,666 shares of the Company's
Class A Stock for a purchase price of $15.00 per share.
1.2 Closing. The purchase and sale of the Preferred Stock and the Class A
Stock shall take place at the offices of Schwartz & Freeman, 401 North Michigan
Avenue, Suite 1900, Chicago, Illinois 60611, at 10:00 A.M., on September 22,
1999 or at such other time and place as the Company and the Investor agree upon
orally or in writing (which time and place are designated as the "Closing"). At
the Closing the Company shall deliver to the Investor certificates representing
the Preferred Stock and the Class A Stock against delivery to the Company by the
Investor of a certified check or wire transfer in the amount of the purchase
price therefor payable to the Company's order.
2. Representations and Warranties of the Company.
The Company hereby represents and warrants to each Investor that:
2.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Illinois and has all requisite corporate power and authority to
carry on its business as now conducted. The Company is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a material adverse effect on its business or
properties.
2.2 Capitalization and Voting Rights. The authorized capital of the Company
consists, or will consist prior to the Closing, of:
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(i) Preferred Stock. 16,667 shares of Preferred Stock (the "Preferred
Stock"), all of which will be sold pursuant to this Agreement. The rights,
privileges and preferences of the Preferred Stock will be as stated in the
Company's Amended Charter.
(ii) Common Stock. 1,000,000 shares of Class A Stock of which 524,560
shares are issued and outstanding and are owned by the persons, and in the
numbers specified in Exhibit B hereto and 200,000 shares of Class B stock of
which 200,000 shares are issued and outstanding and are owned by the persons and
in the numbers specified in Exhibit B.
(iii) Except for those options set forth on Exhibit B, there are no
outstanding options, warrants, rights (including conversion or preemptive
rights) or agreements for the purchase or acquisition from the Company of any
shares of its capital stock.
2.3 Authorization. This Agreement constitutes the valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
2.4 Valid Issuance of Stock. The Preferred Stock and Class A Stock when
issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly issued, fully paid and
nonassessable. The Class A Stock issuable upon conversion of the Preferred Stock
purchased under this Agreement has been duly and validly reserved for issuance
and, upon issuance in accordance with the terms of the Amended Charter, shall be
duly and validly issued, fully paid and nonassessable.
3. Representations and Warranties of the Investor.
The Investor hereby represents and warrants that:
3.1 Authorization. This Agreement constitutes its valid and legally binding
obligation, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
3.2 Purchase Entirely for Own Account. This Agreement is made by the
Company in reliance upon the Investor's representation to the Company that the
Preferred Stock and the Class A Stock to be received by the Investor
(collectively, the "Securities") will be acquired for investment for the
Investor's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that the Investor has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Agreement, the Investor further represents that such
Investor does not have any
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contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Securities. The Investor has informed the Company that it
may take title to the Securities in its own name or in the name of a wholly
owned subsidiary of the Company or may transfer the Securities to a wholly owned
subsidiary.
3.3 Disclosure of Information. The Investor has had an opportunity to
complete its due diligence on the Company. The Company has made available to the
Investor and as requested to any of the Investor's attorneys, accountants or
investor representatives all documents that the Investor or any of the foregoing
has requested relating to an investment in the Company and has provided answers
to all of the Investor's questions concerning an investment in the Company. In
evaluating the suitability of an investment in the Company and acquiring the
Securities, the Investor has not been furnished with or relied upon any
representations or other information (whether oral or written) other than as
contained in any documents or answers to questions furnished to the undersigned
by the Company. The Investor further represents that it has had an opportunity
to ask questions and receive answers from the Company regarding :the terms and
conditions of the offering of the Preferred Stock and the Class A Stock.
3.4 Accredited Investor. The Investor is an "accredited investor" within
the meaning of SEC Rule 501 of Regulation D, as presently in effect. The
Investor represents it has not been organized for the purpose of acquiring the
Preferred Stock and the Class A Stock.
3.5 Restricted Securities. The Investor understands that the shares of
Preferred Stock and Class A Stock are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without
registration under the Securities Act of 1933, as amended (the "Act"), only in
certain limited circumstances. In this connection, each Investor represents that
it is familiar with SEC Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Act.
3.6 Legends. The Investor acknowledges that the certificates evidencing the
Preferred Stock, and the Class A Stock shall bear the following legends:
(a) "The securities represented hereby have not been registered under the
Securities Act of 1933, as amended (the "Act"). They may not be sold, offered
for sale, pledged, hypothecated or transferred in the absence of a registration
statement in effect with respect to the securities under such Act or an
exemption from registration established to the satisfaction of the Corporation
that registration is not required under the Act."
(b) "The transfer of securities of the Corporation represented by this
certificate is subject to the restrictions of a Shareholders Agreement entered
into by the Corporation and its shareholders. A copy of this Agreement is on
file at the Corporation's principal place of
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business, and may be inspected during normal business hours by any potential
transferee with the approval of any shareholder of record."
4. Conditions of the Company's Obligations at Closing. The obligations of
the Company under subsection 1.1 of this Agreement is subject to the approval of
the Board of Directors and shareholders of the Company necessary for the
authorization, issuance and delivery of the Preferred Stock and Class A Stock
being sold hereunder, and the filing of the Amended Charter with the Illinois
Secretary of State.
5. Option. The Company hereby grants to the Investor the right and option
(the "Option") to purchase on or before March 31, 2000 up to 33,333 shares of
Class A Stock for a purchase price of $15.00 per share. The Investor may
exercise the Option at any time and from time to time during the term of the
Option.
5.1. Limited Transferability. This Option shall be neither transferable
nor assignable by the Investor except to a wholly owned, whether directly or
indirectly, subsidiary of the Investor.
5.2 Adjustment in Option Shares. In the event any change is made to the
Class A Stock issuable upon exercise of the Option by reason of any stock split,
stock dividend, recapitalization, combination of shares, exchange of shares, or
other change affecting the outstanding Class A Stock as a class without receipt
of consideration, then appropriate adjustments shall be made to
(i) the total number and/or class of shares subject to this Option and
(ii) the price payable per share in order to reflect such change and
thereby preclude the dilution or enlargement of the Investor's rights and
benefits hereunder.
5.4 Manner of Exercising Option. In order to exercise this Option with
respect to all or any part of the shares, the Investor must execute and deliver
to the Secretary of the Corporation a written notice of exercise in which there
is specified the number of shares for which the Option is exercised and pay the
aggregate Option Price for the purchased shares. As soon as practical after the
exercise of the Option, the Company shall issue to the Investor (or to any other
person or persons exercising this option) a certificate or certificates
representing the shares purchased. In no event may this Option be exercised for
any fractional shares.
6. Miscellaneous.
6.1 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns
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any rights remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
6.2 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Illinois as applied to agreements among Illinois
residents entered into and to be performed entirely within Illinois.
6.3 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
6.4 Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
6.6 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
6.7 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be liable
or bound to any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
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IN WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement
as of the date first above written.
THE SYNERGY PLAN, LTD.
By: /s/ Jon A. Skulborstad
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Jon A. Skulborstad, President
Address: 180 North Michigan Avenue, Suite 1110
Chicago, Illinois 60601
ARGO BANCORP., INC.
By: /s/ John G. Yedinak
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John G. Yedinak, President
Address: 7600 West 63rd Street
Summit, Illinois 60501
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EXHIBIT A
1 Designation. The series of stock shall be designated "Preferred
Stock."
2. Number of Shares. The number of shares constituting the Preferred
Stock shall be 16,667.
3. Dividend Provisions.
(a) The holders of shares of Preferred Stock shall be entitled to
receive dividends, out of any assets legally available therefor, prior and in
preference to any declaration or payment of any dividend (payable other than in
securities and rights convertible into or entitling the holder thereof to
receive, directly or indirectly, additional securities of the Company) on the
Class A Stock and Class B Stock of the Company, at the rate of $.90 per share
per annum, payable quarterly when, as and if declared by the Board of Directors.
Such dividends shall be cumulative.
4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the Company, either voluntary or involuntary, the holders of Preferred Stock
shall be entitled to receive, prior and in preference to any distribution of any
of the assets of the Company to the holders of Class A Stock and Class B Stock
by reason of their ownership thereof, an amount per share equal to the sum of
(i) $15.00 for each outstanding share of Preferred Stock and (ii) an amount
equal to all cumulative but unpaid dividends on such share. If upon the
occurrence of such event, the assets and funds thus distributed among the
holders of the Preferred Stock shall be insufficient to permit the payment to
such holders of the full aforesaid preferential amounts, then the entire assets
and funds of the Company legally available for distribution shall be distributed
ratably among the holders of the Preferred Stock in proportion to the amount of
Preferred Stock owned by each holder.
5. Conversion. The holders of the Preferred Stock shall have conversion
rights as follows: (the "Conversion Rights"):
(a) Right to Convert.
i) Subject to Section 6, each share of Preferred Stock shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share at the office of the Company or any transfer agent for
the Preferred Stock, into one fully paid and nonassessable share of Class A
Stock. Any accumulated, but unpaid dividends shall be paid to such holder upon
the conversion of the Preferred Stock.
ii) Each share of Preferred Stock shall automatically be
converted into one share of Class A Stock immediately upon the earlier of (A)
the consummation of the Company's sale of any class of common stock in a bona
fide, firm
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commitment underwriting pursuant to a registration statement under the
Securities Act of 1933, as amended, (B) the date upon the Company shall sell all
or substantially all of its assets, merge with or into or consolidate with any
corporation or other entity, or (C) September 30, 2004.
(b) Mechanics of Conversion. Before any holder of Preferred Stock
shall be entitled to convert the same into shares of Class A Stock, the holder
shall surrender the certificate or certificates therefor, duly endorsed, at the
office of the Company or of any transfer agent for the Preferred Stock, and
shall give written notice by mail, postage prepaid, to the Company at its
principal corporate office, of the election to convert the Preferred Stock. The
Company shall, as soon as practicable thereafter, issue and deliver at such
office to such holder of Preferred Stock a certificate or certificates for the
number of shares of Class A Stock to which such holder shall be entitled. Such
conversion shall be deemed to have been made immediately prior to the close of
business, on the date of the surrender of the shares of Preferred Stock to be
converted, and the person or persons entitled to receive the shares of Class A
Stock issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such shares of Class A Stock as of such date.
(c) Recapitalization. If at any time or from time to time there
shall be a recapitalization of the Common Stock, then provision shall be made so
that the holders of the Preferred Stock shall thereafter be entitled to receive
upon conversion of the Preferred Stock the number of shares of stock or other
securities or property of the Company or otherwise, to which a holder of Common
Stock deliverable upon conversion would have been entitled on such
recapitalization. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 5 with respect to the rights of
the holders of the Preferred Stock after the recapitalization to the end that
the provisions of this Section 5.
(d) Reservation of Stock Issuable Upon Conversion. The Company shall
at all times reserve and keep available out of its authorized but unissued
shares of Class A Stock solely for the purpose of effecting the conversion of
the shares of the Preferred Stock such number of its shares of Class A Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Preferred Stock; and if at any time the number of
authorized but unissued shares of Class A Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Preferred Stock, in
addition to such other remedies as shall be available to the holder of such
Preferred Stock, the Company will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Class A Stock to such number of shares as shall be sufficient for such
purposes.
6. Redemption. On September 30, 2002, (the "Redemption Date") the
Company may, at its option, redeem all or any part of the outstanding Preferred
Stock (by written notice to the holders of the Preferred Stock) in accordance
with the provisions set forth in this Section. If less than all of the Preferred
Stock is redeemed, then such redemption shall be pro rata among all of the
holders of the Preferred Stock in proportion to the number of shares of
Preferred Stock owned by each holder. The redemption price for each share of
Preferred Stock to be redeemed shall be equal to $25.00 per share plus all
cumulative
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dividends (without regard to whether such dividends were declared or whether
funds were legally available to pay such dividends) from the issue date of the
share of Preferred Stock to the date of redemption less the amount of dividends
declared and paid on each such share of Preferred Stock during that period (the
"Redemption Price").
The Company may redeem the Preferred Stock in accordance with this Section 6, by
mailing written notice (the "Redemption Notice"), postage prepaid, to the
holders of the Company at least 30 days prior to the Redemption Date set by such
holder for redemption of Preferred Stock, which date shall be the first business
day of a calendar month. The Redemption Notice shall state (i) the number of
shares of Preferred Stock held by the holder which the holder is requiring be
redeemed, (ii) the Redemption Date and the total Redemption Price and (iii) that
such holder will surrender to the Company, in the manner and at the place
designated by the Company, such holder's certificate or certificates
representing the shares of Preferred Stock to be redeemed. If any holder of
Preferred Stock elects to convert on or before the Redemption Date, such shares
of Preferred Stock shall be converted to Class A stock pursuant to Section 5,
and shall no longer be subject to the redemption provisions of this Section 6.
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