SECURITIES ASSIGNMENT AND CANCELLATION AGREEMENT
THIS SECURITIES ASSIGNMENT AND CANCELLATION AGREEMENT (this "Agreement")
is made and entered into as of November 22, 2002 by and among TMI
Holdings, Inc., a Florida corporation ("TMI" or the "Company"), Marc Douglas, an
individual ("Douglas"), Douglas Family Holdings, Inc., a Florida corporation
("DFCorp"), Douglas Family Limited Partnership, a Florida limited partnership
("DFPartnership"), and Thrift Ventures, Inc., a Florida corporation ("TVI").
Each of TMI, Douglas, DFCorp, DFPartnership, and TVI shall be referred to as a
"Party" and collectively as the "Parties."
RECITALS
A. TVI is the obligor under that certain promissory note dated as of
August 27, 2001 (the "2001 Note") in favor of TMI (referred to in the note as
Thrift Management, Inc., the prior name of TMI) in the original principal amount
of $1,175,000 (the "2001 Note Principal").
B. As of the date of this Agreement, the accrued interest under the
2001 Note is $116,405.48 (the "2001 Note Interest").
C. Douglas is a party, along with Matthew P. Dwyer, an individual
("Dwyer"), to that certain Stock Purchase Agreement dated October 28, 2002 (the
"Stock Purchase Agreement") which requires, as a condition to the closing of the
transactions contemplated thereby, the taking of the actions set forth in this
Agreement.
D. TMI desires to assign to Douglas, DF Corp and DFPartnership, and
Douglas, DF Corp, and DFPartnership, and each of them, desires to accept the
assignment of, that portion of the 2001 Note Principal equal to $675,000, plus
all of the 2001 Note Interest, effective as of the date hereof, as set forth on
Schedule A attached hereto and incorporated herein by reference (the "2001
Assignment").
E. Pursuant to the terms of the Stock Purchase Agreement, and as a
condition to the closing of the transactions contemplated thereby, TMI has
agreed to enter into a Consulting Agreement with Douglas (the "Consulting
Agreement"), which provides for compensation to Douglas equal to $100,000 per
year for each of five years, all of which is to be applied towards the payment
of principal due to TMI under the 2001 Note.
F. Pursuant to the terms of the Stock Purchase Agreement, and as a
condition to the closing of the transactions contemplated thereby, Douglas,
DFCorp, and DFPartnership, and each of them, has agreed to cancel (i) an
aggregate of 1,567,167 shares of TMI common stock as set forth on Schedule B
attached hereto and incorporated herein by reference (the "TMI Shares"), (ii)
any and all of the options and warrants to acquire TMI securities currently held
by Douglas or his affiliates, including but not limited to the option to acquire
105,000 shares as set forth in that certain Incentive Stock Option Agreement
dated as of December 27, 1998 and the warrant to acquire 500,000 shares as set
forth in that certain Warrant dated as of March 16, 2001 (the "TMI Options"),
and (iii) all consulting and reimbursement agreements between TMI and Douglas,
including but not limited to those set forth in the Written Consent of Directors
effective as of August 1, 2002 and the Written Consent of Directors dated May
15, 2002 (the "2002 Consulting Agreements").
NOW, THEREFORE, in reliance on the foregoing recitals and in consideration
of and for the mutual covenants contained herein, the Parties hereto agree as
follows:
AGREEMENT
1. ASSIGNMENT OF 2001 NOTE. TMI hereby assigns that portion of the
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2001 Note Principal equal to $675,000, plus all of the 2001 Note Interest, to
Douglas, DFCorp, and DFPartnership as set forth on Schedule A. TMI further
agrees that effective as of the date of this Agreement, after giving effect to
the assignment, the outstanding principal balance under the 2001 Note is
$500,000, and that no further interest shall accrue under the 2001 Note as long
as the Consulting Agreement is in effect. TMI agrees to apply the compensation
due to Douglas under the Consulting Agreement against the outstanding principal
balance of the 2001 Note at the rate of $100,000 per year, with the first
payment to be applied as of January 1, 2003. TVI acknowledges and consents to
the 2001 Assignment and the other actions set forth in this Agreement.
2. CANCELLATION OF SHARES, OPTIONS, AND WARRANTS. Douglas, DFCorp and
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DFPartnership shall, simultaneous with the execution and delivery of this
Agreement, deliver to TMI the TMI Shares, along with an irrevocable stock power
with signature medallion guaranteed, for cancellation by TMI. In addition,
Douglas, DFCorp and DFPartnership shall deliver to TMI the TMI Options, along
with written instructions to cancel same.
3. TERMINATION OF 2002 CONSULTING AGREEMENTS. Douglas and TMI hereby
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acknowledge and agree that the 2002 Consulting Agreements are hereby terminated
in their entirety, and the obligations of all parties thereto are deemed to be
satisfied in full.
4. REPRESENTATIONS AND WARRANTIES OF DOUGLAS, DFCORP, AND
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DFPARTNERSHIP. Douglas, DFCorp, and DFPartnership, and each of them, have and
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will transfer to TMI, good, valid and marketable title to the TMI Shares and the
TMI Options, and, except with respect to the restrictions on transfer under
federal and state securities laws, there are no security interests, liens,
encumbrances, claims, charges, assessments or restrictions or any other defects
in title of any nature whatsoever on any of the TMI Shares and TMI Options.
Douglas, DFCorp, and DFPartnership, and each of them, will not assign, sell,
mortgage, lease, transfer, pledge, grant a security interest in or lien upon,
encumber, or otherwise dispose of or abandon, nor will they suffer or permit any
of the same to occur with respect to, any part or all of the TMI Shares and the
TMI Options, and have made payment or deposit or otherwise provide for the
payment, when due, of all taxes, assessments or contributions required by law
which have been or may be levied or assessed against them with respect to any of
the TMI Shares and TMI Options. Seller has the right, power, legal capacity and
authority to transfer the Shares and enter into and perform Seller's obligations
under this Agreement. Douglas, DFCorp, and DFPartnership, and each of them,
have the right, power, legal capacity and authority to transfer the TMI Shares
and TMI Options and enter into and perform their obligations under this
Agreement.
5. REPRESENTATIONS AND WARRANTIES OF TVI. TVI has the right, power,
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legal capacity and authority to enter into and perform its obligations under
this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF TMI. TMI has the right, power,
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legal capacity and authority to enter into and perform its obligations under
this Agreement.
7. BINDING UPON SUCCESSORS AND ASSIGNS. Subject to, and unless
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otherwise provided in, this Agreement, each and all of the covenants, terms,
provisions, and agreements contained herein shall be binding upon, and inure to
the benefit of, the successors, executors, heirs, representatives,
administrators and assigns of the parties hereto.
8. ENTIRE AGREEMENT. This Agreement, along with the Stock Purchase
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Agreement and other documents executed in connection with the Stock Purchase
Agreement, constitutes the entire understanding and agreement of the parties
hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements or understandings, inducements or conditions, express
or implied, written or oral, between the parties with respect hereto and
thereto.
9. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be an original as against any party whose
signature appears thereon and all of which together shall constitute one and the
same instrument.
10. AMENDMENT AND WAIVERS. Any term or provision of this Agreement may
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be amended, and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to constitute
a waiver of any other default or any succeeding breach or default.
11. ATTORNEYS' FEES. Should suit be brought to enforce or interpret
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any part of this Agreement, the prevailing party shall be entitled to recover,
as an element of the costs of suit and not as damages, reasonable attorneys'
fees to be fixed by the court (including without limitation, costs, expenses and
fees on any appeal). The prevailing party shall be the party entitled to recover
its costs of suit, regardless of whether such suit proceeds to final judgment. A
party not entitled to recover its costs shall not be entitled to recover
attorneys' fees. No sum for attorneys' fees shall be counted in calculating the
amount of a judgment for purposes of determining if a party is entitled to
recover costs or attorneys' fees.
12. GOVERNING LAW. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Florida, without regard to its
choice of law principles.
DOUGLAS: DFCORP:
Douglas Family Holdings, Inc.,
a Florida corporation
/s/ Marc Douglas /s/ Marc Douglas
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Marc Douglas By: Marc Douglas
Its: President
DFPARTNERSHIP: TVI:
Douglas Family Limited Partnership, Thrift Ventures, Inc.,
a Florida Limited Partnership a Florida corporation
/s/ Marc Douglas /s/ Marc Douglas
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By Douglas Family Holdings, Inc. By: Marc Douglas
Its: General Partner Its: President
Marc Douglas, President
TMI:
TMI Holdings, Inc.,
a Florida corporation
/s/ W. Michael Sessions
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By: W. Michael Sessions
Its: Chief Executive Officer
SCHEDULE A
2001 ASSIGNMENT
Assignment Assignment
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Name of Principal of Interest
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Marc Douglas $ 500,129.65 $ 86,248.64
Douglas Family Holdings, Inc. $ 2,584.29 $ 445.67
Douglas Family Limited Partnership $ 172,286.06 $ 29,711.17
Total $ 675,000.00 $116,405.48
SCHEDULE B
TMI SHARES TO BE CANCELLED
Name No. of Shares
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Marc Douglas 1,161,167
Douglas Family Holdings, Inc. 6,000
Douglas Family Limited Partnership 400,000
Total 1,567,167