EXECUTION COPY
STOCK PURCHASE AGREEMENT
AGREEMENT dated as of January 1, 2004, by and among Gilman + Ciocia, Inc.,
a Delaware corporation with a principal office at 11 Raymond Avenue,
Poughkeepsie, NY 12603 ("Seller"), and Daniel R. Levy ("Levy"), and Joseph H.
Clinard ("Clinard"). individuals with an address at 1895 Walt Whitman Road,
Melville, New York 11747 (collectively the "Purchasers").
W I T N E S S E T H :
WHEREAS, Seller desire to sell to Purchaser, and Purchaser desires to
purchase from Seller, all of the authorized, issued and outstanding capital
stock of North Shore Capital Management Corp., a New York corporation ("North
Shore"), and North Ridge Securities Corp., a New York Corporation ("North
Ridge") (collectively, North Shore and North Ridge will be referred to herein as
the "Company"), upon the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the covenants set forth herein and in
reliance on the representations and warranties contained herein, the parties
hereto hereby agree as follows:
Section 1. Purchase and Sale of Stock.
On the Closing Date (hereinafter defined), Seller shall sell, assign,
transfer and deliver, unto Purchaser, and their successors and assigns forever,
free and clear of all Liens (as defined in Section 5.5 hereof) all right, title,
interest and claims in or to all of the authorized, issued and outstanding
capital stock (the "Shares") of the Company. Levy shall purchase eighty (80%)
percent of the Shares and Clinard shall purchase twenty (20%) percent of the
Shares.
Section 2. Status of Assets and Liabilities.
2.1. Acquired Assets. Seller represents and warrants to Purchaser and
acknowledges and confirms that each such representation and warranty shall be
deemed to be material and that Purchaser is relying upon such representations
and warranties in connection with the execution, delivery and performance of
this Agreement, any investigation made by Purchaser or on its behalf
notwithstanding, except as otherwise specifically set forth herein and in the
Schedules hereto: the Company owns free and clear of Liens (as defined in
Section 5.5 hereof) or is using, pursuant to a valid and effective license or
lease described in the Schedules hereto, all of the business, properties,
contracts and assets of the Company or used by the Company in its business as
conducted through the Closing Date, real, personal or mixed, tangible or
intangible, together with the goodwill of the Company, all as the same exist on
the Closing Date, and as are located at the business premises on the Closing
Date, except for those assets disposed of in the ordinary course of business
consistent with past practice in arms-length transactions with unaffiliated
parties, together with any additions thereto after such date, (hereinafter,
other than the Excluded Assets (as defined in Section 2.2 below) sometimes
together referred to as the "Acquired Assets").
2.2. Excluded Assets. The Acquired Assets do not include the assets
(herein collectively referred to as the "Excluded Assets") of the Company as
follows:
(a) counterclaims and cross claims to the extent relating to any
liability against which the Seller indemnify Purchaser hereunder; and
(b) insurance claims and rights under insurance policies to the
extent relating to any liability against which the Seller indemnify Purchaser
hereunder; and
in each case, to the extent not reflected as an asset on any balance sheet of
the Company.
Section 3. Consideration. The purchase price (the "Purchase Price") for
the Shares shall be total consideration of $1,100,000 to be allocated as
follows: $1,050,000 to the Shares of North Ridge and $50,000 to the Shares of
North Shore.
3.1 Payment of the Purchase Price. The Purchase Price shall be paid as
follows:
(a) $200,000 shall be wired to the Seller by Clinard on the Closing
Date.
(b) $862,500 shall be paid to the Seller by the Purchaser in
accordance with the terms of the Promissory Note (the "Note") annexed
hereto as Schedule 3.2(b).
(c) $37,500 shall be paid to the Seller by Clinard in accordance
with Section 3.2.
(d) The Note shall be secured by the Stock Pledge Agreement annexed
hereto as Schedule 3.2(d).
3.2 Payment of $37,500. On the Closing Date, Purchaser shall deposit the
sum of $37,500 in the attorney escrow account of Steinberg, Fineo, Berger &
Fischoff (the "Escrow Agrent"). The Escrow Agent shall wire the $37,500 to the
Seller when the following three contingencies are met:
(a) The Seller's subsidiary, Prime Capital Services, Inc.
("Prime"), implements a commission payment system for North
Ridge registered representatives similar to the system in
existence at the Closing Date.
(b) The customer accounts presently at Prime for the registered
representatives listed in Schedule 3.2(b) are moved over to
North Ridge.
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(c) Prime updates its Win-Ops Computer System to reflect proper
commissions and product information for all North Ridge
registered representatives.
If the parties do not agree that the $37,500 should be paid to the Seller on or
before sixty (60) days from the Closing Date, the disputes concerning the
release of the $37,500 shall be submitted to arbitration as provided in Section
25 of this agreement.
Section 4. Closing. The consummation of the purchase and sale of the
Shares contemplated by this Agreement (the "Closing") shall take place when all
parties execute this Agreement (the "Closing Date").
Section 5. Representations and Warranties of Seller. Seller, represents
and warrants to Purchaser as follows, and acknowledges and confirms the accuracy
of, and that each such representation and warranty shall be deemed to be
material, and a precondition of Purchaser's obligation to close, and that
Purchaser is relying upon such representations and warranties in connection with
the execution, delivery and performance of this Agreement, notwithstanding any
investigation made by Purchaser or on its behalf.
5.1. Proper Authority and Structure.
(a) The Company has the power and authority to own, lease and operate its
properties and to carry on its business as now conducted. The Company has no
subsidiaries or equity investments in any entities.
(b) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all requisite
power and authority to carry on its business as now conducted, and is duly
qualified to do business and is in good standing in each other jurisdiction in
which the ownership or operation of it's properties or assets or the conduct of
its business requires such qualifications. The Seller has all requisite
corporate power and lawful authority and all necessary licenses and permits to
own, lease and operate the Business and properties related to the Business and
to carry on the business of Company in the manner in which the Business is now
being conducted.
5.2. Consents, Authorizations and Binding Effect.
(a) Seller may execute, deliver and perform this Agreement without
the necessity of obtaining any consent, approval, authorization or waiver or
giving any notice or otherwise, except that: (i) the Seller's board of directors
must pass a resolution authorizing the sale; and (ii) the Seller must obtain the
consent to the sale of Wachovia Bank National Association which is the Seller's
senior lender.
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(b) This Agreement has been duly authorized, executed and delivered
by Seller and constitutes the legal, valid and binding obligation of Seller,
enforceable in accordance with its terms. The execution, delivery and
performance of this Agreement will not:
(i) conflict with, result in the breach of, constitute a default,
with or without notice and/or lapse of time, under, result in being declared
void or voidable any provision of, or result in any right to terminate or cancel
any contract, lease, agreement, license, commitment or purchase order to which
the Company or the Seller or any of their properties is bound;
(ii) conflict with the Seller's or either Company's Certificates of
Incorporation or By-Laws, together with all amendments thereto;
(iii) constitute a violation of any statute, judgment, order, decree
or regulation or rule of any court, governmental authority or arbitrator
applicable or relating to any of Seller, the Company's assets or the business
and operations of either of North Ridge or North Shore (collectively, the
"Business"), excluding, however, the following: any consent, approval,
authorization or similar action that may be required by any federal, state,
and/or municipal agency, the National Association of Securities Dealers, Inc.,
or any other regulatory body with regard to securities or anti-trust laws
governing Purchaser, Purchaser's business, or Purchaser's involvement in the
transaction contemplated hereby; or
(iv) result in the acceleration of any debt or other obligation of
Seller or the Company or the creation of any Lien (as defined in Section 5.5)
upon any of the Company's assets.
(c) To the extent that any consent, approval, authorization or similar
action may be required by any federal, state, and/or municipal agency, the
National Association of Securities Dealers, Inc., or any other regulatory body
with regard to securities or anti-trust laws governing Purchaser, Purchaser's
business, or Purchaser's involvement in the transaction contemplated hereby, the
parties shall cooperate with each other to obtain such consents, approvals and
authorizations.
5.3. Owner of Company. Seller is the only beneficial or registered owner
of the Company, and the true and correct address of its principal office is set
forth on the first page of this Agreement.
5.4. Financial Representations.
(a) The Seller has caused to be maintained the Company's books of
account in accordance with applicable laws, rules and regulations, and such
books and records are and, during the periods covered by the Financial
Statements (hereinafter defined), were correct and complete in all respects, and
completely and accurately reflect the transactions of the Business and the
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income, expenses, assets and liabilities of the Business, including the nature
thereof and the transactions giving rise thereto.
(b) The Financial Statements have been prepared from the books of
account of the Seller, in conformity with generally accepted accounting
principles consistently applied ("GAAP"), and present fairly the financial
position of the Business as of the date of such statements and the results of
operations of the Business for the periods covered thereby. The Financial
Statements reflect all necessary adjustments and reserves for losses and
contingencies.
(c) Except as indicated on Schedule 5.9(a) hereto, the Business and
the Company have no liabilities (including, without limitation, unasserted
claims, whether known or unknown, matured or unmatured, absolute, contingent or
otherwise) that, in accordance with GAAP, are required to be reflected, and are
not reflected or are in excess of the amount reflected, in the Financial
Statements or notes thereto except those incurred since the date of the
Financial Statements in the ordinary course of business, consistent with past
practice, in arms' length transactions with unrelated parties, and which do not
have and cannot reasonably be expected to have, in the aggregate, a material
adverse effect on the business, financial condition or prospects of the Business
(a "Material Adverse Effect").
5.5. Title and Condition of Assets.
(a) The Seller at the Closing Date will transfer to the Purchaser
good and marketable title to the Shares, free and clear of liens, encumbrances,
claims of third parties, security interests, mortgages, pledges, agreements,
options and rights of others of any kind whatsoever, whether or not filed,
recorded or perfected, and including, without limitation, any conditional sale
or title retention agreement or lease in the nature thereof or any financing
statements filed in any jurisdiction or any agreement to give any such financing
statements (hereinafter collectively referred to as "Liens")
(b) North Ridge and North Shore at the Closing Date will have good
and marketable title to the Acquired Assets free and clear of Liens or are using
them pursuant to a valid and effective license or lease described in the
Schedules hereto.
(c) The equipment and the other tangible assets included in the
Acquired Assets are in good operating condition, order and repair, are suitable
for the purposes for which they are being used and constitute all of the assets
used in the operations of, and necessary to operate, the Business as conducted
during the two years prior to the date hereof. None of the Acquired Assets has
been affected by any fire, accident, act of God or any other casualty that
materially and adversely impairs its function in the Business. The Business is
not conducted under any restriction imposed upon the company (but not imposed
upon other similar businesses in the locality where its business is located).
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5.6. Insurance.
(a) All insurance policies maintained by the Company are
underwritten by financially sound and reputable insurers.
(b) No claims are pending or, to the knowledge of the Seller,
threatened under any of the Company's casualty or liability insurance policies.
All premiums due and payable thereon have been paid, and all such policies are
in full force and effect in accordance with their respective terms. No
outstanding claims or liabilities, exist, whether fixed or contingent, under any
medical reimbursement plan or any other plan or policy under which the Company
acts as a self-insured.
5.7 and 5.8 are Intentionally Omitted.
5.9. Litigation and Compliance.
(a) Except as disclosed on Schedule 5.9 (a) annexed hereto, there
are no actions, suits, arbitrations, claims, judgments or proceedings or
governmental or administrative investigations pending or, to the knowledge of
Seller, threatened, nor, to the knowledge of Seller, is there any reasonable
basis for any such action, suit, claim or proceeding (i) by, against or
otherwise involving the Company, or any of Company's officers, directors,
employees or agents, any of the Acquired Assets or any asset or property of
others leased or used by the Company pursuant to an agreement or (ii) which
questions or challenges the validity of this Agreement or any action taken or to
be taken pursuant to this Agreement.
(b) Except as described on Schedule 5.9(b), the Company is in
substantial compliance with, is not in default or violation in any material
respect under, and has not been charged with or received any notice at any tine
of any violation by it of, any statute, law, ordinance, regulation, rule, decree
or order applicable to the business or operations of the Company. North Ridge is
registered with the National Association of Securities Dealers (the 'NASD') as a
registered Broker/Dealer and such registration is current in all respects.
Neither the Company nor to the best knowledge of the Company any of its
employees is the subject of any disciplinary proceedings before, or under
investigation by, the NASD, the United States Securities and Exchange Commission
(the 'SEC'), any securities exchanges or markets, any state securities division
or other regulatory bodies, except as provided on Schedule 5.9(b). Except as
provided in Schedule 5.9(b), neither the Company nor the Seller have received
during the two years prior to the date hereof any written complaints or requests
for refunds of commissions paid.
(c) The Forms U-4 for all registered representatives and principals
of the Company and all Forms BD and amendments thereto filed with the SEC during
the three years prior to the date hereof were to the best knowledge of the
Company true and accurate in all material respects when filed and no further
amendment thereof is currently (until the execution hereof) required.
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(d) None of the Company, nor any of the Acquired Assets or
transactions contemplated under this Agreement, is subject to any judgment,
order or decree entered in any lawsuit or proceeding applicable to the Business
and operations of the Company.
(e) The Company has duly filed all reports and returns required to
be filed by it with governmental authorities and has obtained all governmental
permits and licenses and other governmental consents, except as may be required
after the execution of and closing under this Agreement. All of such material
permits, licenses and consents are in full force and effect, and no proceedings
for the suspension or cancellation of any of them, and no investigation relating
to any of them, is pending or, to the best knowledge of Seller, threatened, and
none of them will be affected by the consummation of the transactions
contemplated hereby.
(f) The Company has operated, and will through the Closing Date
operate, in material compliance with all laws, rules, statutes, ordinances,
orders and regulations, including, without limitation, those applicable to the
Company under the Occupational Safety and Health Act of 1970, as amended, or any
equivalent state law. The Company has received no notice of any violation
thereof nor are Seller or the Company aware of any basis therefor.
5.10. Taxes.
(a) The Company has, or on or before the Closing Date will have,
duly filed all tax reports and returns required to be filed in respect of its
business and operations and the Acquired Assets as of December 31, 2003, or will
have duly filed extension for such returns and reports. All taxes and required
estimated tax payments have been paid through the Closing Date. All such tax
reports and returns are or will be complete, accurate and in compliance with all
relevant laws and regulations in all material respects, and, none has been
audited by any governmental authority. The Company has, or on or before the
Closing Date will have, paid and discharged all federal, state, local and
foreign taxes, interest, penalties or other payments required, as the case nay
be, to be paid and then currently due as shown on such tax reports and returns
or otherwise in respect of the Acquired Assets and the business, operations and
employees of the Company as of December 31, 2003. To the knowledge of Company,
no audit of the Company is planned or threatened. The Company has withheld
proper and accurate amounts from its employees' compensation in substantial
compliance with all withholding and similar provisions of the IRS Code of 1986,
as amended and any other applicable law.
(b) The Company has received no notice of any tax deficiency
outstanding, proposed or assessed against it, nor does the Company have any
knowledge of any basis for any tax deficiency or assessment, nor has the company
executed any waiver of any statute of limitations on the assessment or
collection of any tax. No tax liens are upon, pending against or, to the
knowledge of the Seller or the Company, threatened against any Acquired Assets.
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5.11. Intangible Assets.
(a) "Intellectual Property" means and includes:
(i) trademarks, trademark registrations, service marks,
service mark registrations, applications for trademark and service mark
registrations, trade names, copyrights and copyright registration;
(ii) license agreements with respect to any of the foregoing
intellectual property;
(iii) all printed or other written material and all other
copyrightable property;
(iv) all material trade secrets; and
(v) all computer software, programs, and applications.
(b) No material Intellectual Property other than that included in
the Acquired Assets ("Company Intellectual Property") is used or necessary in
connection with the conduct of the Business. No claim is pending or to the best
knowledge of the Company threatened against Seller or the Company by any person
or entity relating to (i) any of the Company Intellectual Property, or its use
included in the Acquired Assets; (ii) infringement by the Company on the
Intellectual Property rights of any person or entity; or (iii) infringement by
any person or entity on the Company Intellectual Property rights included in the
Acquired Assets. To the knowledge of the Company and Seller, no valid basis
exists for any claims referred to in this Section 5.11(b).
(c) The current computer software, programming and applications used
by the Company, or held by it for use in the operation of the Business (the
"Software") , to the extent they have been designed or developed by Seller or by
consultants on Seller's behalf or on behalf of the Company, are original and are
protected by the copyright laws of the United States, and Seller or the Company
have complete rights to and ownership of such Software. All work performed in
connection therewith was "work-for-hire" under the United States Copyright Act,
or the product thereof has been assigned in full to Seller or the Company. To
the best knowledge of the Company, no part of such Software or the use thereof
infringes upon the rights of any other person or entity, or violates or
infringes upon any common law or statutory rights of any other person or entity,
including, without limitation, rights relating to defamation, contractual
rights, copyrights, patents, trade secrets and rights of privacy or publicity.
Neither the Seller nor the Company has sold, assigned, licensed, distributed or
in any other way disposed of or encumbered the Software.
(d) The Software, to the extent it is licensed from any third party
licensor or constitutes "off-the-shelf" software, is held by the Company
legitimately and is fully and freely transferable without any third party
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consent and is not limited to use on any hardware and/or any site or sites. All
of the Company's computer hardware, and all computer hardware of the Seller used
or dedicated to use in the Business, has, and has had, only
legitimately-licensed software installed therein.
(e) To the best knowledge of the Company, the Software is free from
any significant software defect or programming or documentation error, operates
and runs in a reasonable and efficient business manner, conforms to the
specifications thereof, and, with respect to owned Software, the applications
can be recreated from their associated source code, which is in the Company's
sole custody and control.
(f) Neither of the Seller nor the Company nor any employee or agent
of either of the Seller or the Company has knowingly altered the data, or any
Software or supporting software that may in turn damage the integrity of the
data, stored in electronic, optical or magnetic form. Seller has no knowledge of
the existence of any bugs or viruses with respect to the Software.
(g) Seller and the Company shall, to the maximum possible extent,
pass through to Purchaser all manufacturer's and supplier's warranties and
support contracts for the Software that is not owned by Seller or the Company,
and Seller shall upon Purchaser's reasonable request, execute each and every
document that is necessary or appropriate to effectuate Purchaser's obtaining
and enjoying the benefits of any such pass-through warranty.
(h) Seller has furnished all documentation relating to the use,
maintenance and operation of the Software, all of which, to the knowledge off
Seller, is true and accurate.
(i) Schedule 5.11(i) includes a list of all trademarks, service
marks and copyrights included in the Acquired Assets and indicating those which
are subject to the filing of an affidavit of use or renewal.
5.12. Employees. The Company has good relations with its current and
former employees and current and former independent contractors and has not
received any material complaint from, and has not engaged in any material
dispute with, any of such employees and independent contractors and affiliated
brokers during the twelve (12) months prior to the date hereof except for
terminations set forth on Schedule 5.12. Any provision in this Section 5.12 to
the contrary notwithstanding, Seller gives no assurance or guarantee that any
one or more employees and/or independent contractors will not terminate his or
her relationship with the Company upon or at any time after the execution
hereof, although neither the Company nor the Seller has received any notice that
any such termination is planned.
5.13. ERISA. Apart from a health plan that is not unusual in the Company's
industry, the Company has no employee benefit plan (within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), written or oral employment or consulting agreement, severance pay
plan, employee relations policy, practice or arrangement, agreements with
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respect to leased or temporary employees, vacation plan or arrangement, sick
plan, stock purchase plan, stock option plan, fringe benefit plan, bonus plan
and any deferred compensation agreement, plan or program covering any present or
former employee of the company including any plan which is, or at any time was,
sponsored or maintained by (or to which contributions are, were, or at any time
were required to have been, made by) the Company or any other organization which
is a member of a controlled group of organizations (within the meaning of
Sections 414(b), (c), (in) or (o) of the Internal Revenue Code of 1986, as
amended) of which the Company is a member (the "Controlled Group").
5.14. Labor Relations.
(a) No employee of the Company is covered by any collective
bargaining agreement.
(b) The Company has complied, and is currently in compliance, in all
material respects with applicable laws (including, without limitation, ERISA) ,
rules and regulations relating to the employment of labor, including without
limitation those relating to wages, hours, unfair labor practices,
discrimination and payment of social security and similar taxes.
5.15. Contracts, Etc..
All contracts, leases, agreements, licenses, commitments and orders
to which the Seller in connection with the Business or the Company is a party or
by which the Company or any of its assets is bound ("Contracts") are listed on
Schedule 5.15 and are valid and in full force and effect and constitute the
legal, valid and binding obligations of the Company and the other parties
thereto, and there are no existing defaults by the Company, or, to the knowledge
of the Company, by any other party thereto, and, to the knowledge of the
Company, no event, act or omission has occurred that (with or without notice,
lapse of time and/or the happening or occurrence of any other event) would
result in a material default thereunder. No option exists or will arise as a
result of the closing to amend or terminate any Contract. No party to any
Contract is paying liquidated damages in lieu of performance.
5.16. Customers and Suppliers.
(a) The Company is unaware of any loss or threatened loss of any
business from any customer. The Company has not received any material complaint
from, and is not engaged in any material dispute with, any customer or supplier.
(b) Nothing has come to the attention of either the Seller or the
Company that should reasonably lead them to believe that any customers or
suppliers of the Company will terminate or curtail its business relationship
with the Company as a result of the closing hereunder.
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5.17. Absence of Certain Changes. Etc. No event or other development has
occurred that would indicate that a material loss or decline in business will
occur in the future; no compensation increase for any employee in excess of 10%
on an annual basis has been granted or promised; the Company has not established
or made any bonus, profit sharing, retirement or other similar payment, plan or
arrangement, nor has the Company entered into any union contract or any
employment agreement, or agreement with any preparer or sales agent or any
franchise agreement, independent dealer/distributor agreement or other contract
or arrangement with respect to the performance of services for the Company; no
new employee has been retained; nothing has come to the attention of the Company
that would lead it to believe that any material adverse change in the business,
operations, or prospects of the Business or in the condition of any of the
Acquired Assets, or the assets or properties of others leased or used by
Company, has occurred or is likely to occur; the Company has not suffered any
material damage, destruction or loss to any of its material assets; the company
has not entered into any transaction or contract, or amended any contract, which
might have a Material Adverse Effect on the business, financial condition or
prospects of the Company; the Company has not canceled or waived any claim or
right of material value; neither the Company nor the Seller has leased or
allowed any Lien to arise upon any of the Acquired Assets, or acquired or
committed to acquire any material capital assets except for fair market price,
in the ordinary course of business, consistent with prior practice, in
arms-length transaction with unaffiliated parties; the Company has not delayed
or accelerated collection of any note or receivable beyond the usual and
customary period therefor or the legal maturity thereof; the Company has not
entered into any contract for the purchase of real property or exercised any
option to extend or terminate any lease of real property; the company has not
declared or paid any dividend or distributed any asset in respect of any
security, whether as a distribution, repurchase, redemption or otherwise; Seller
has operated the Business diligently and only in the usual, ordinary manner and,
to the extent consistent with such operation, (i) preserved its current business
organization intact, (ii) preserved its current relationships with employees,
customers, suppliers and all other persons having business dealings with them
and (iii) maintained in force the insurance policies referred to in Section 5.8
hereof; Seller has caused the Company to maintain its books, accounts and
records in the usual and ordinary manner, and in a manner that fairly and
correctly reflects its income, expenses, assets and liabilities in accordance
with GAAP; Seller has not modified or changed any existing right, concession,
license, lease, contract, commitment or agreement, and no sale or other
disposition of any right or privilege accruing to the Seller relating to the
Business has occurred, except as otherwise provided herein; the Company has not
delayed in the payment of any account payable or indebtedness beyond the usual
and customary period therefor or the legal maturity thereof; neither the Company
nor the Seller has incurred any indebtedness other than that (i) incurred in the
usual and ordinary course of business, or (ii) incurred pursuant to existing
contracts disclosed in the Schedules hereto, in all cases not exceeding $5,000
in the aggregate; and the Company has not made any agreement, commitment or
arrangement to take any action inconsistent with the obligations under, or
prohibited by, this Section 5.17.
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5.18. Fraudulent Conveyances; Bankruptcy. Seller is not entering into this
Agreement with the intent to hinder, delay or defraud present or future
creditors of Seller or of the Company. Seller is now solvent and is not involved
as debtor in any bankruptcy or similar proceeding.
5.19. Related Party Transactions. The Company has not engaged in any
transactions, or entered into any contracts with, in the last year, any other
person, corporation or entity, directly or indirectly, affiliated with any of
Seller or the Company.
Section 6. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller as follows, and acknowledges that Seller is
relying upon such representations and warranties in connection with the
execution, delivery and performance of this Agreement, notwithstanding any
investigation made by Seller or on its behalf.
6.1. Authorizations and Binding Effect. This Agreement has been duly
executed and delivered by Purchaser and constitutes the legal, valid and binding
obligation of Purchaser, enforceable in accordance with its terms. The
execution, delivery and performance of this Agreement does not and will not:
(i) conflict with, result in the breach of, constitute a default,
with or without notice and/or lapse of time, under, result in being declared
void or voidable any provision of, or result in any right to terminate or cancel
any contract, lease or agreement to which Purchaser or any of his properties is
bound;
(ii) constitute a violation of any statute, judgment, order, decree
or regulation or rule of any court, governmental authority or arbitrator
applicable or relating to Purchaser;
(iii) result in the acceleration of any debt or other obligation of
Purchaser;
(iv) render Purchaser insolvent as that term is defined under 11
U.S.C. Section 101(32).
6.2. Judgments. No judgments exist against Purchaser or any of Purchaser's
assets.
6.3. Litigation. No actions, suits, claims, proceedings or investigations
(whether or not purportedly on behalf of or against Purchaser) , are pending or
threatened against Purchaser at law or in equity that relate to the transactions
contemplated by this Agreement or that will prohibit purchaser from performing
the obligations to be performed by it hereunder.
6.4. Nonreliance. Purchaser has not relied in entering into this Agreement
on any representation or warranty of Seller regarding the revenues of the
Company, except indirectly as specifically set forth herein.
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6.5. Financing. Purchaser has sufficient liquid assets or available credit
to complete the terms of the transaction contemplated by this Agreement.
6.6. Execution. Purchaser may execute, deliver and perform this Agreement
without the necessity of obtaining any consent, approval, authorization or
waiver or giving any notice or otherwise.
Section 7. Covenants.
7.1. Taxes. Seller shall pay all of the sales taxes or transfer taxes or
fees payable as a direct result of the consummation of the transactions
contemplated hereby, including the New York State stock transfer tax, and
provide proof of such payment at the Closing.
7.2. Performance of Contracts. Purchaser shall cause the Company to
perform its obligations under each of the contracts listed on Schedule 5.15 to
the extent arising from and after the Closing, except to the extent that the
Company asserts defenses in good faith to such performance.
Section 8. Survival of Representations and Warranties; Indemnifications
8.1. Survival. The representations, warranties and agreements made in
Sections 5 and 6 hereof and in the Schedules hereto by Seller, Purchaser and the
Company shall remain operative and in full force for a period of twenty four
(24) months after the Closing Date, except with respect to Sections 5.3, 5.5 and
with respect to tax matters, as to which such representations and warranties
shall continue to survive for a period of any applicable statutes of limitation,
regardless of any investigation made by or on behalf of any party.
8.2. Indemnification by Seller. Seller shall defend and indemnify
Purchaser from any and all losses, liabilities, proceedings, claims,
settlements, judgments, fines, assessments, damages and expenses (including
reasonable attorneys' fees and litigation expenses, whether arising out of a
third party claim or relating to recovering indemnifiable damages from Company
(collectively, the "Indemnifiable Damages") that Purchaser may suffer or incur
in whole or in part by reason of, or which may arise out of: (i) the inaccuracy
of any of the representations or warranties of the Company or of the Seller in
this agreement subject to the time periods as set forth in 8.1; (ii) the breach
by Company or of the Seller of any of the representations, covenants, warranties
or obligations herein subject to the time periods as set forth in 8.1; (iii) any
and all liabilities (including, without limitation, unasserted claims, whether
known or unknown, matured or unmatured, absolute, contingent or otherwise) that
are not reflected or are in excess of the amount reflected, in the Balance Sheet
or notes thereto except those incurred since the date of the Balance Sheet in
the ordinary course of business, consistent with past practice, in arms' length
transactions with unrelated parties so long as Purchaser's claim under this
13
clause is made in writing to Seller prior to 36 months after Closing; and (iv)
any fine or claim concerning the calculation of the net capital of North Ridge
Securities Corp. prior to the Closing Date. However, the Seller's
indemnification shall not extend to any action or inaction by Purchaser or by
any person who was supervised by Purchaser, either prior to or after the Closing
Date (the "Indemnification Exclusion"). The Indemnification Exclusion shall not
apply to any actions performed or taken by Seller or Prime, or to any actions
which were required to be taken by Seller or Prime and which were not.
8.3. Indemnification by Purchaser. Purchaser shall defend, hold harmless
and indemnity Seller from any and all Indemnifiable Damages that Seller may
suffer or incur by reason of: (i) the inaccuracy of any of the representations
and warranties of Purchaser herein; (ii) the breach by Purchaser of any of the
representations, covenants, warranties or obligations herein; (iii) any claim
for breach of Purchaser's obligation to perform contracts under Section 7.2
above; (iv) failure of Purchaser to comply with any rule or regulation of the
Securities and Exchange Commission or the National Association of Securities
Dealers, Inc.; (v) the operation of the Business after the Closing Date; and
(vi) any action or inaction by Purchaser, or by any person who was supervised by
Purchaser, either before or after the Closing Date. However, Purchaser's
indemnification shall not extend to any actions performed or taken by Seller or
Prime, or to any actions which were required to be taken by Seller or Prime and
which were not.
8.4. Notice and Right to Defend Third Party Claims and Perform
Remediation.
(a) Promptly upon receipt of notice of any third party claim, demand
or assessment or the commencement of any suit, action or proceeding in respect
of which indemnity may be sought on account of an indemnity agreement contained
in this Section 8, the party seeking indemnification (the "lndemnitee") shall
notify in writing, within sufficient time to respond to such claim or answer or
otherwise plead in such action, the party from whom indemnification is sought
(the "Indemnitor") thereof; provided, however, that failure or delay to supply
such notice shall not relieve Indemnitor of their indemnification obligation
hereunder except to the extent that Indemnitor is actually prejudiced by such
failure or delay, and only to the extent of such prejudice.
(b) In case any claim, demand or assessment is asserted or suit,
action or proceeding commenced against an Indemnitee (collectively a "Claim")
and it notifies the Indemnitor of the commencement thereof, if the Indemnitor
acknowledges its indemnification obligations therefor hereunder, then, the
Indemnitor shall be entitled to participate therein, and, to the extant that it
may wish, to assume the defense, conduct or settlement thereof, with counsel
satisfactory to the Indemnitee, whose consent to the election of counsel shall
not unreasonably be withheld. After notice from the Indemnitor to the Indemnitee
of its election so to assume the defense, conduct or settlement thereof, the
Indemnitor shall not be liable to the Indemnitee for any legal or other expenses
subsequently incurred by the Indemnitee in connection with the defense, conduct
or settlement thereof; provided, however, that if the Indemnitee has any
separate defense from those of the Indemnitor, or if a conflict of interest
14
exists, the Indemnitee shall have the right to be represented by its own counsel
at the lndemnitor's expense. The Indemnitee shall have the right in any event to
participate in any such defense with its own counsel at its own expense. The
Indemnitee will cooperate with the indemnitor in connection with any such Claim
and make personnel, books and records relevant to the Claim available to the
Indemnitor at Indemnitor's expense. In the event that the Indemnitor fails
timely to defend, contest or otherwise protect against any such Claim, the
Indemnitee shall have the right to defend, contest or otherwise protect against
the same and may make any compromise or settlement thereof and recover the
entire cost thereof from the Indemnitor, including, without limitation,
reasonable attorneys' fees, disbursements and all amounts paid as result of such
Claim or compromise or settlement thereat.
(a) Anything to the contrary herein notwithstanding, prior to
finally settling any such Claim, the Indemnitor shall give to the Indemnitee
prompt notice of its intention to settle same arid the terms of such proposed
settlement and acknowledging its indemnification responsibility therefor
hereunder. If the lndemnitee shall object to such proposed settlement within 10
days, then the Indemnitee shall thereafter, at its sole expense, assume the
control and defense of such claim, suit, action, investigation or proceeding and
in such event the liability at the Indemnitor shall be limited to the amount for
which the same could have been settled as proposed by the Indemnitor. If the
Indennitee does not object to the terms of the proposed settlement within the
aforesaid 10-day period, then the indemnitor shall have the right to consummate
such proposed settlement upon the terms set forth in the aforesaid notice.
Section 9. Further Actions. From time to time, as and when requested by
Purchaser, Seller shall execute and deliver such documents and instruments and
shall take such further or other actions as Purchaser reasonably may deem
necessary or desirable to carry out the intent and purposes of this Agreement,
to convey, transfer, assign and deliver to Purchaser, and its successors and
assigns, the Shares, to vest in the Company the Acquired Assets (or to evidence
any of the foregoing) and to consummate and give effect to the other
transactions contemplated hereby.
Section 10. Broker's Fees. Each of the Company, Seller and Purchaser
represents that it has not used or retained any broker or finder in connection
with the transactions contemplated hereby.
Section 11. Expenses. Except as otherwise specifically provided herein,
Seller and Purchaser shall bear their own, legal fees and other costs and
expenses with respect to the negotiation, execution and the delivery of this
Agreement and the consummation of the transactions hereunder, and the Acquired
Assets shall not be reduced or impaired by the payment or accrual of any such
costs and expenses by Company.
Section 12. Entire Agreement. This Agreement, which includes the Schedules
and Exhibits hereto and the other documents, agreements and instruments executed
and delivered pursuant to or in connection with this Agreement, contains the
entire agreement between Seller and Purchaser with respect to the transactions
contemplated by this Agreement and supersedes all prior arrangements or
understandings with respect thereto.
15
Section 13. Construction.
(a) The descriptive headings of this Agreement are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Agreement.
(b) Any pronoun herein shall include all genders and/or the plural
or singular as appropriate from the context. Section 14. Notices. All notices or
other communications which are required or permitted hereunder shall be in
writing and sufficient when delivered personally or telecopied by confirmed
facsimile, or three (3) business days after mailing by registered or certified
mail, return receipt requested, or the next business day if sent by nationally
recognized overnight courier providing for a return receipt, in each case
postage prepaid, addressed as follows:
If to Seller:
Gilman + Ciocia, Inc.
11 Raymond Avenue
Poughkeepsie, NY 12603
Attn: Chief Executive Officer
Facsimile: (845)622-3665
If to Purchaser:
Daniel R. Levy
Joseph H. Clinard
1895 Walt Whitman Road
Melville, New York 11747
With a copy to:
Steinberg, Fineo, Berger & Fischoff
Stuart Steinberg, Esq.
401 Broadhollow Road
4th Floor
Melville, NY 11747
Facsimile: (631) 715-4186
Any party may by notice change the address to which notice or other
communications to it are to be delivered or mailed, effective ten (10) days
after such notice.
Section 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts entered into, executed and to be performed wholly in such state.
16
Section 16. Assignability. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other party, and any
purported assignment without such prior written consent shall be void, except
that Purchaser may assign this agreement to a corporation controlling,
controlled by or under common control with the Purchaser, provided that in such
case Purchaser individually shall retain responsibility for the performance
hereunder of all terms and provisions, including but not limited to, the
indemnification and non-compete provisions.
Section 17. Waivers and Amendments. Any waiver of any term or condition of
this Agreement, or any amendment or supplementation of this Agreement, shall be
effective only if in writing executed by the party against whom such waiver,
amendment or supplementation is sought to be charged. A waiver of any breach or
failure to enforce any of the terms or conditions of this Agreement shall not in
any way affect, limit or waive a party's rights hereunder at any time to enforce
strict compliance thereafter with every term or condition of this Agreement.
Section 18. Third Party Rights. Any other provision of this Agreement to
the contrary notwithstanding, this Agreement shall not create benefits for any
third party.
Section 19. Illegalities. In the event that any provision contained in
this Agreement shall be determined to be invalid, illegal or unenforceable in
any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and the remaining provisions of this
Agreement shall not, at the election of the party for whose benefit the
provision exists, be in any way impaired.
Section 20. Cancellation of Stock Options. On the Closing Date, the 83,000
options granted to Purchaser to purchase common stock in Seller contained in
Section 4(a) of his Employment Agreement dated November 19, 1998, shall be
cancelled and no longer binding against the Seller.
Section 21.1 Non-Solicitation of Employees and Registered Representatives.
(a) Each of Seller, including Prime and all subsidiary corporations wholly
owned by Seller, Purchaser and the Company agree that until December 31, 2005
(the "Time Period"), they, nor any affiliates controlled by them, shall directly
or indirectly, (i) solicit, employ or otherwise engage, as an employee,
registered representative, independent consultant or otherwise, any employee or
registered representative who is, or prior to January 1, 2004 was, employed by
Seller, by Prime or by the Company; or (ii) in any manner, induce or attempt to
induce any employee or registered representative to terminate such person's
employment, engagement or business dealings with the other party.
(b) Should Seller, Prime, Purchaser, or the Company, or any of their
affiliates or employees, directly or indirectly benefit from the separation of
service of a registered representative, tax or accounting professional during
the Time Period, Seller, Prime, Purchaser and the Company respectively agree to
17
pay to the other 50% of the trailing 12 months gross dealer concession and tax
and accounting billing generated by said registered representative or employee.
Said payments to be in cash with half due within 30 days after the severance of
the individual's employment with the respective entity, and the balance due
within one year.
Section 21.2 Non-Solicitation of Customers.
(a) Each of Seller, including Prime and all subsidiary corporations wholly
owned by Seller, Purchaser and the Company agree that until December 31, 2005
(the "Time Period"), they, nor any affiliates controlled by them, shall directly
or indirectly, (i) solicit in any manner, induce or attempt to induce any
customer to terminate or transfer any of the customer's accounts (the "Customer
Accounts") with the other party. In addition, neither Seller, any subsidiary
corporations wholly owned by Seller, Purchaser or Company will permit any
Customer Accounts to be transferred from the other party's broker dealer to its
broker dealer.
(b) Should Seller, Prime, Purchaser or the Company, or any of their
affiliates or employees, directly or indirectly benefit from the transfer of a
Customer Account during the Time Period, Seller, Prime, Purchaser and the
Company respectively agree to pay to the other 50% of the trailing 12 months
gross dealer concession and tax and accounting billing generated by said
customer. Said payments to be in cash with half due within 30 days after the
transfer of the Customer Account and the balance due within one year.
Section 22. Non-Disparagement and Non-Interference. Each of Seller, Prime,
Purchaser and the Company agree that they will not make, or cause to be made,
any statement or observation, or articulate any opinion, or communicate any
information (whether oral or written) that disparages or reflects negatively on
the reputation or business of the other party or any of its officers, directors
or employees. Each agree that they will not take any action which would
interfere with or cause confusion with the other party's name, logo or
trademarks, including the names: "GTAX", "GC", and "Gilman + Ciocia", "Prime
Capital Services", "Prime" and "Prime Financial Services", "North Ridge
Securities", "North Ridge", "North Shore Capital Management", or "North Shore".
Section 23. Injunctive Relief and Reasonable Scope. The parties
acknowledge and agree that, in the event of an actual or threatened breach of
Section 22 above, the non-breaching party will suffer irreparable damages and,
in addition to any other remedies which are available to such non-breaching
party, the non-breaching party shall be entitled to injunctive or other
equitable relief without the necessity of posting a bond or other security. Each
party acknowledges that the provisions of Sections 21.1, 21.2 and 22 are
necessary for the protection of each party, are reasonable in scope and content
and that such provisions are a material inducement to the parties to enter into
this Agreement.
Section 24. Jurisdiction. The parties hereby irrevocably submit to the
exclusive jurisdiction and venue of Kings County, New York in any action, suit,
or proceeding (i) for injunctive relief relating to or in connection with this
18
Agreement or any transaction contemplated hereby, or (ii) to enforce the terms
of any arbitration award relating to or in connection with this Agreement or any
transaction contemplated hereby. To the extent permitted by applicable law, each
party hereby waives and agrees not to assert by way of motion, as a defense or
otherwise, in any such suit, action or proceeding, any claim that either it is
not personally subject to the jurisdiction of such courts, that the suit,
action, or proceeding is brought in an inconvenient forum, that the venue of the
suit, action, or proceeding is improper, or that this Agreement or any
instrument, agreement, or document referred to herein or the subject matter
hereof may not be litigated in or by such courts.
Section 25. Arbitration. In the event of any dispute, controversy, or
claim related to or arising from the terms of this Agreement, other than
injunctive relief, the parties hereto agree that any such dispute, controversy
or claim shall be settled by arbitration in accordance with the Rules of the
NASD and judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof. If possible, said arbitration shall be
conducted in New York City by a single arbitrator. Such dispute resolution shall
be in accordance with the applicable substantive laws of the State of New York.
The parties hereby agree to share equally in the costs of said arbitration
Section 26. Miscellaneous Agreement Terms.
Section 26.1 Processing of Commissions At Purchaser's option, Seller
agrees that Prime will process North Ridge's commissions and commission checks
on securities' business until December 31, 2006 as an independent contractor.
North Ridge will pay to Prime $2,000 per month for such services commencing on
January 1, 2005. The parties agree that the services will be provided for no
charge through December 31, 2004. After December 31, 2006, the monthly fee will
be changed as mutually agreed to.
Section 26.2 NFS Clearing Agreement. If North Ridge registered
representatives desire, they may continue to use NFS to clear trades by North
Ridge "piggy backing" on PCS's Clearing Agreement with NFS.
Section 26.3 Haenel and Huggins. Registered representatives Alan Haenel
and Bruce Huggins will become registered with North Ridge effective January 1,
2004. All reasonable efforts will be made to accommodate a transfer of their
customer accounts to North Ridge as quickly as possible after the Closing Date.
Section 26.4 Joint Cooperation with Vendors. The Seller, North Ridge and
PCS will cooperate to get the lowest prices from vendors such as Statement One.
Section 26.5 Procedural and Compliance Memos. As permitted by the NASD and
other regulatory agencies, all PCS and NFS procedural and compliance memos will
be sent directly to Purchaser who will distribute them to North Ridge registered
representatives and employees as required.
19
Section 26.6 12b-1 Ticket Charges. Seller and PCS will drop the $10 per
fund family 12b-1 ticket charges to North Ridge registered representatives.
Section 26.7 Access to PCS Website. North Ridge registered representatives
will continue to have access to the PCS website for commission review purposes,
statements, etc. They will also continue to have access to the Streetscape
trading system at the same rates as PCS registered representatives pay.
Section 26.8. Mutual Cooperation. North Ridge will be permitted to consult
with PCS employees, its Chief Operating and Chief Executive Officers to discuss
NASD and other procedural matters. North Ridge and PCS will cooperate with each
other on past, present and future NASD audit requests, customer complaints and
Focus data.
Section 26.9 Platinum Sponsor Program. Until December 31, 2006, Purchaser
and North Ridge agree that all of North Ridge's business will continue to be
included in Prime's business for the calculation of basis points to be paid to
Prime in its Platinum Sponsor Program. If North Ridge is not using Prime to
process its commissions, North Ridge will send to Prime its quarterly reports so
that Prime can include North Ridge's business in Prime's calculation of Prime's
basis points. The parties agree that Prime is entitled to include North Ridge's
business only for the calculation of basis points in its Platinum Sponsor
Program, and that North Ridge will receive from wholesaler's payments for trips,
luncheons and dinners. The parties hereby acknowledge and agree that the
intention of the parties is to continue the practices and the computations in
existence prior to the Closing Date.
Section 27. Counterparts. This Agreement may be executed in multiple
counterparts all of which taken together shall constitute one and the same
instrument.
20
IN WITNESS WHEREOF, Purchaser has signed, and Seller has caused this
Agreement to be executed by its duly authorized officer, as of the date first
above written.
GILMAN + CIOCIA, INC.
By:
--------------------------- ---------------------------
Name: Michael P. Ryan DANIEL R. LEVY
Title: President
---------------------------
JOSEPH H. CLINARD
NORTH RIDGE SECURITIES CORP.
By:
---------------------------
Name: Daniel R. Levy
Title: President
PRIME CAPITAL SERVICES, INC.
By:
---------------------------
Name: Michael P. Ryan
Title: President
NORTH SHORE CAPTIAL MANAGEMENT CORP.
By:
---------------------------
Name: Daniel R. Levy
Title: President
21
LIST OF SCHEDULES AND OTHER DOCUMENTS
Schedule Description
- -------- -----------
3.2(b) Promissory Note
3.2(d) Stock Pledge Agreement
5.9(a) Pending Actions, Suits, Arbitrations
5.9(b) NASD Notices
5.12 Employee and Registered Representative Terminations
5.15 Contracts
22
Schedule 3.2(b)
U.S. $862,500
Melville, New York
January 29, 2004
PROMISSORY NOTE
This note (the "Note") is issued pursuant to that certain Stock Purchase
Agreement dated as of January 1, 2004 (the "Purchase Agreement") between GILMAN
+ CIOCIA, INC. (the "Payee") and DANIEL R. LEVY (the "Payor"), to which Purchase
Agreement reference is hereby made for a statement of the terms and provisions
under which this Note may or must be paid. Capitalized terms used and not
otherwise defined herein shall have the meanings given to them in the Purchase
Agreement.
For value received, the Payor hereby unconditionally promises to pay to
the order of the Payee the principal amount of $862,500.00 (the "Principal"),
together with accrued and unpaid interest thereon. The Payor further agrees to
pay interest equal to the Prime rate of Chase Bank plus two (2%) on the
outstanding Principal (the "Interest Rate") commencing on February 1, 2004 and
on the first day of each month thereafter (the "Interest Payment Date") until
the Principal is paid in full. The Interest Rate shall be adjusted monthly ten
(10) days prior to each Interest Payment Date. The Interest Rate may not exceed
eight (8%) until January 1, 2009.
All amounts payable hereunder shall be payable to Payee in United States
dollars at such bank account as shall be designated by the Payee in immediately
available funds or as otherwise specified to Payor in writing. Payment on this
note shall be applied first to any expenses of collection, then to accrued
interest, and thereafter to the outstanding principal balance hereof.
The Principal shall be paid as follows:
The sum of $5,989.58 on the first day of each month commencing on May 1,
2004 and continuing through and including April 1, 2016.
The following events shall each be an "Event of Default" under this Note
under the Purchase Agreement and under the Stock Pledge and Security Agreement:
(a) The Payor becomes insolvent or generally fails to pay, or
admits in writing its inability or refusal to pay, debts as
they become due; or Payor applies for, consents to or
acquiesces in the appointment of a trustee, receiver or other
custodian for the Payor or any substantial part of its
property, or makes a general assignment for the benefit of
creditors; or, in the absence of such application, consent or
acquiescence, a trustee, receiver or other custodian is
appointed for the Payor, or for a substantial part of its or
his property, and is not discharged within 60 days; or any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding, is commenced in respect
of the Payor, and if such case or proceeding is not commenced
by the Payor, it is consented to or acquiesced in by the
Payor, or remains for 60 days undismissed; and
(b) Payor's failure to pay any of the Principal due under this
Note on the date the same become due and payable, or any
accrued Interest or other amounts due under this Note within
five (5) days after the same becomes due and payable.
(c) Failure to comply, after applicable notice and failure to
cure, with any term in that certain Stock Pledge and Security
Agreement dated as of January 23, 2004.
(d) The Payor sells or transfers any of the Shares, except as
provided in Section 16 of the Purchase Agreement.
(e) The Company cumulatively sells more than twenty (20%) percent
of the Acquired Assets, or issues additional capital stock so
that the Payor does not own 80% or more of the authorized
issued and outstanding capital stock of both North Shore
Capital Management Corp. and North Ridge Securities Corp.
(f) The Payor fails to acquire by April 1, 2004, or fails to
maintain until this Note is paid in full, a term life
insurance policy in an amount not less than the outstanding
Principal. The policy must be collaterally assigned to the
Payee with notice of cancellation sent to the Payee by the
insurance company.
Upon the occurrence of an Event of Default, the unpaid Principal, all
unpaid accrued Interest thereon and all other amounts owing hereunder shall
automatically become immediately due and payable. Effective upon an Event of
Default, the interest rate on this Note shall increase to16%, or to such lesser
interest rate as is permitted by applicable law.
This Note is made with full recourse to the Payor including without
limitation with full recourse to all assets of the Payor and pursuant to and
upon all warranties, representations, covenants and agreements on the part of
the Payor as contained herein.
Payor waives presentment and written demand for payment, notice of
dishonor, protest and notice of protest of this Note, and shall pay all costs of
collection when incurred, including, without limitation, reasonable attorneys'
fees, costs and other expenses. Payor waives his rights to a jury trial in
connection with any claims arising under this Note to the fullest extent
permitted by law. If there has been an Event of Default by Payor hereunder,
Payee shall be entitled to receive and Payor agrees to pay all costs of
enforcement and collection incurred by Payee, including, without limitation,
reasonable attorneys' fees relating thereto.
2
The provisions of this Note shall inure to the benefit of and be binding
on any successor to Payor and shall extend to any holder hereof.
This Note may not be changed, modified or terminated orally.
This note shall be governed by and construed in accordance with the laws
of the State of New York without regard to any principles of conflicts of law.
The Payor submits to the jurisdiction of the New York State Supreme Court, Kings
County, for any collection lawsuits.
This Note shall be non-negotiable until January 1, 2006, at which date it
shall become a fully negotiable promissory note.
---------------------------
Daniel R. Levy
3
Schedule 3.2(d)
STOCK PLEDGE AND SECURITY AGREEMENT
Stock Pledge and Security Agreement (this "Pledge Agreement"), dated as of
the 23rd day of January, 2004, by DANIEL R. LEVY ("Levy") and JOSEPH H. CLINARD
("Clinard") individuals having an address at 1895 Walt Whitman Road, Melville,
New York 11747 (collectively the "Pledgor"), to and in favor of GILMAN + CIOCIA,
INC., having an office at 11 Raymond Avenue, Poughkeepsie, New York 12603 (the
"P1edgee").
WHEREAS, Levy has executed a Promissory Note dated as of January 23, 2004
(the "Note") to Pledgee containing payments and other obligations (the
"Obligations") which has been delivered by Levy pursuant to a Stock Purchase
Agreement dated as of January 1, 2004 (the "Purchase Agreement") and;
WHEREAS, Clinard is a Co-Purchaser under the Stock Purchase Agreement and
has agreed to join in this Stock Pledge and Security Agreement; and
WHEREAS, Pledgor is now the direct and beneficial owner of all of the
authorized issued and outstanding shares of capital stock of North Shore Capital
Management Corp. and North Ridge Securities Corp. (the "Pledged Securities");
and
WHEREAS, Pledgor has agreed to secure the payment and performance of
Levy's obligations under the Note by (i) executing and delivering to Stuart
Steinberg, Esq.(the "Escrow Agent") this Pledge Agreement, (ii) delivering to
the Escrow Agent the Pledged Securities which are registered in the name of
Pledgor, together with appropriate powers duly executed in blank by Pledgor, and
(iii) delivering to the Escrow Agent any and all other documents which Pledgee
deems necessary to protect Pledgee's interests hereunder;
NOW, THEREFORE, in consideration of the shares identified in the Purchase
Agreement and for other good and valuable consideration, receipt of which is
hereby acknowledged, Pledgor hereby agrees as follows:
1. CERTAIN DEFINITIONS
As used above and elsewhere in this Pledge Agreement the following terms
shall have the following meanings (all terms defined in the Uniform Commercial
Code which are not otherwise defined herein or in the Purchase Agreement, shall
have the meanings set forth therein):
(a) "Issuer" shall mean, individually and collectively, and include
each and every issuer of the Pledged Securities.
(b) "Pledged Property" shall mean the (i) Pledged Securities
together with all cash dividends, stock dividends, redemptions, stock,
securities options, substitutions, exchanges and other distributions now or
hereafter distributed by the Issuer with respect to the Pledged Securities and
which hereinafter shall be delivered into the possession of Pledge; (ii)
Pledgor's records with to the foregoing, and (iii) the proceeds of all of the
foregoing.
(c) Purchase Agreement Terms. Terms used herein which are defined in
the Purchase Agreement and are not otherwise defined herein shall have the
meanings set forth in the Purchase Agreement
2. PLEDGE AND GRANT OF SECURITY INTEREST
As security for the prompt and unconditional payment and performance when
due of Levy's Obligations under the Note, Pledgor hereby pledges, hypothecates,
assigns, transfers and sets over to Pledgee, the Pledged Property, and grants to
Pledgee a continuing security interest in the Pledged Property and the proceeds
thereof.
3. REPRESENTATIONS, COVENANTS AND WARRANTS
Pledgor hereby covenants, represents and warrants, that:
(a) The Pledged Securities are authorized, validly issued, fully
paid and non-assessable capital stock of the Issuer;
(b) The Pledged Property is directly, legally and beneficially owned
by Pledgor free and clear of all claims, liens, pledges and encumbrances or any
kind, nature or description, except in favor of Pledgee;
(c) Other than under applicable securities laws and subject to
Section 5(c) hereof, the Pledged Property is not subject to any restrictions
relative to the transfer and Pledgor has the might to transfer and hypothecate
the Pledged Property free and clear of any liens, encumbrances or restrictions,
except as otherwise provided herein;
(d) The Pledged Property is duly and validly pledged to Pledgee and
no consent or approval of any governmental or regulatory authority or of any
securities exchange or the like, nor any consent or approval of any other third
parry is necessary to the validity of this Pledge Agreement which has not been
obtained and a copy of which has not been furnished to Pledgee;
(e) During the term of this Pledge Agreement, if Pledgor shall
receive, have registered in its name or become entitled to receive or acquire,
or have registered in its name any stock certificate, option, or right with
respect to the Pledged Property (including without limitation, any certificate
representing a dividend or a distribution or exchange of or in connection with
any reclassification of the Pledged Securities) whether as an addition to, in
substitution of, or in exchange for any of the Pledged Property or otherwise,
Pledgor agrees to accept same as Pledgee's agent, to hold same in trust for
Pledgee and to deliver same forthwith to Pledgee or Pledgee's agent or bailee in
the form received, with the endorsement(s) of Pledgor where necessary and/or
appropriate powers and/or assignments duly executed to be held by Pledgee or
Pledgee's agent or bailee subject to the terms hereof or if any of the foregoing
is uncertificated, register same with the Pledgee's security interest; noted
therein as further security for the Obligations to Pledgee;
(f) Except as provided in Paragraph 3(g), during the term of this
Pledge Agreement, Pledgor shall not directly or indirectly sell, assign,
transfer, or otherwise dispose of, or grant any option with respect to the
Pledged Property, nor shall Pledgor create, incur or permit any further pledge,
hypothecation, encumbrance, lien, mortgage or security interest with respect to
thc Pledged Property ("Transfer"); and
(g) Notwithstanding, the provisions of 3(f) above, the Pledgor shall
have the right to Transfer up to 10% of the Pledged Property to an employee or
employees of the Company after written notice to the Pledgee; and
(h) So long as no default hereunder has occurred and is continuing,
Pledgor shall have the right to vote and exercise all corporate rights and to
receive cash dividends or real or personal property distributed by Issuer with
respect to the Pledged Securities, provided that any stock of the Issuer, or any
options with respect to stock of the Issuer, so distributed shall be subject to
the security interest therein of Pledgee, as provided in subparagraph (e) above.
4. EVENTS OF DEFAULT
An Event of Default under the Note shall constitute a default under this
Pledge Agreement and under the Purchase Agreement.
5. REMEDIES AFTER DEFAULT
Immediately upon the occurrence of a default hereunder, and during the
continuance thereof, in addition to all other rights and remedies of Pledgee,
whether provided under law, the Note, the Purchase Agreement or otherwise,
Pledgee shall have the following rights amid remedies which may be exercised
without notice to, or consent by, the Pledgor, except as such notice or consent
is expressly provided for hereunder:
(a) Pledgee, at its option, shall be empowered to exercise its
continuing right to instruct appropriate transfer agent of the Pledged
Securities to register any or all of the Pledged Property in the name of Pledgee
or in the name of Pledgee's nominee and Pledgee may complete, in any manner
Pledgee may deem expedient, any and all stock powers, assignments or other
documents heretofore or hereafter executed in blank by Pledgor and delivered to
Pledgee and, in furtherance of the foregoing, Pledgor shall execute and deliver
to Pledgee together herewith a Special Power of Attorney in the form of EXHIBIT
1 hereto. After said instruction and without further notice, Pledgee may
exercise all voting and corporate rights with respect to the Pledged Securities
and may exercise any and all rights of conversion, redemption, exchange,
subscription or any other rights, privileges, or options pertaining to any
shares of the Pledged Securities as if Pledgee were the absolute owner thereof
including without limitation, the right to exchange, at its discretion, any and
all of the Pledged Securities upon any merger, consolidation, reorganization,
recapitalization or other readjustment with respect thereto. Upon the exercise
of any such rights, privileges or options by Pledgee. Pledgee shall have the
right to deposit and deliver any amid all of the Pledged Securities to any
committee, depository, transfer agent, registrar or other designated agency upon
such terms amid conditions as Pledgee may determine, all without liability,
except (i) for the gross negligence or willful misconduct of Pledgee, and (ii)
to account for property actually received by Pledgee. However, Pledgee shall
have no duty to exercise any of the aforesaid rights, privileges or options and
shall not be responsible for any failure to do so or delay in doing so.
(b) Subject to Paragraph (c) below, in addition, to all of the
rights and remedies of a secured party under the Uniform Commercial Code or
other applicable law, after the occurrence of a default hereunder and during its
continuation, Pledgee shall have the right, at any time and without demand of
performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or upon
Pledgor, or any other Person (all and each of which demands, advertisements
and/or notices are hereby expressly waived to the extent permitted by law), to
proceed forthwith to collect, redeem, receive, appropriate, sell, or otherwise
dispose of and deliver the Pledged Property or any part thereof in one or more
lots at public or private sale or sales at any exchange, brokers board or at any
of Pledgee's offices or elsewhere at such prices and on such terms as Pledgee
may deem best. The foregoing disposition(s) may be for cash or on credit or for
future delivery, without assumption of any credit risk by Pledgee, with Pledgee
having the right to purchase all or any part of said Pledged Property so sold at
any such sale or sales, public or private, free of any right or equity of
redemption in Pledgor, which right or equity is hereby expressly waived or
released by Pledger. The proceeds of any such collection, redemption, recovery,
receipt, appropriation, realization or sale, after deducting all costs and
expenses of every kind incurred relative thereto or incidental to the care,
safekeeping or otherwise of any and all Pledged Property or in any way relating
to the rights of Pledgee hereunder (including, without limitation, appraisal,
accountants, and attorneys' fees and legal expenses whether or not due) shall be
applied to the Obligations in such order and manner as determined by Pledgee in
its sole discretion. Pledgor agrees that five (5) days prior notice by Pledgee,
sent by certified mail, postage prepaid, designating the date after which a
private sale may take place or a public auction may be held, is reasonable
notification of such matters.
(c) Pledgor recognizes that Pledgee may be unable to effect a public
sale of all or part of the Pledged Property by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, as now or hereafter in
effect or in applicable Blue Sky or other state securities law, as now or
hereafter in effect, but may be compelled to resort to one or more private sales
to a restricted group of purchasers who will be obliged to agree, among other
things, to acquire such Pledged Property for their own account (or investment
and nor with a view to the distribution or resale thereof. If at the time of any
sale of the Pledged Property or any part thereof the same shall not be
effectively registered (if required) under the Securities Act of 1933 (or other
applicable state securities law), as then in effect, Pledgee in its sole and
absolute discretion is authorized to sell the Pledged Property, or such part
thereof by private sale in such manner and under such circumstances as Pledgee
or its counsel may deem necessary or advisable in order that such sale may
legally be effected without registration. Pledgor acknowledges and agrees that
private sales so made may be at prices and other terms less favorable to the
seller than if the Pledged Property were sold at public sale, and that Pledgee
has no obligation to delay the sale of any Pledged Property for the period of
time necessary to permit the Issuer of the Pledged Property, even if such Issuer
would agree, to register the Pledged Property for public sale under such
applicable securities laws. Pledgor acknowledges and agrees that any private
sales made under the foregoing circumstances shall be deemed to have been in a
commercially reasonable manner.
(d) All of the Pledgee's rights and remedies, including but not
limited to the foregoing amid those otherwise arising under this Pledge
Agreement, the Note, the Purchase Agreement, the instruments and securities
comprising the Pledged Property, applicable law or otherwise, shall be
cumulative and not exclusive and shall be enforceable alternatively,
successively or concurrently as Pledgee may deem expedient. No failure or delay
on the part of Pledgee in exercising any of its options, powers or rights or
partial or single exercise thereof, shall constitute a waiver of such option,
power or right.
6. FURTHER ASSURANCES
Pledgor agrees that at any time, and from time to time, upon the request
of Pledgee, Pledgor will execute and deliver such further documents, including
but not limited to stock powers, or other appropriate instruments of transfer in
form reasonably satisfactory to counsel for Pledgee, and will take or cause to
be taken such further acts as Pledged may reasonably request in order to effect
the purposes of this Pledge Agreement and perfect or continue the perfection of
the security interest in the Pledged Property granted to Pledgee hereunder, in
conformity with applicable law.
7. MISCELLANEOUS
(a) Beyond the exercise of reasonable care to assure the safe
custody of the Pledged Property while held by Pledgee hereunder, Pledgee or
Pledgee's agent or bailee shall have no duty or liability to protect or preserve
any rights pertaining thereto and shall be relieved of all responsibility for
the Pledged Property upon surrendering it to Pledgor.
(b) Upon payment in full of all principal and interest due under the
Note this Agreement shall terminate and Pledgee shall execute and deliver all
instruments as may be necessary or proper to return or release its security
interest in the Pledged Property.
(c) No course of dealing between Pledgor and Pledgee, nor any
failure or delay by Pledgee to exercise any right, power or privilege under this
Pledge Agreement, the Note, the Purchase Agreement or under any of the other
documents or agreements between Pledgor and Pledged, shall operate as a waiver
hereof or thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No waiver of any
provision of this Pledge Agreement shall be effective unless the same shall be
in writing and signed by Pledgee, and then such waiver shall be effective only
in the specific instance and for the purpose for which given.
(d) This Pledge Agreement may not be changed, modified or amended,
in whole or in part, except by a writing signed by Pledgor and Pledgee.
(e) The provisions of this Pledge Agreement are severable, and if
any clause or provision hereof shall be held invalid or unenforceable in whole
or in part in any jurisdiction, then such invalidity or unenforceability shall
attach only to such clause or provision in any such jurisdiction or part thereof
and shall not in any manner affect such clause or provision in any other
jurisdiction or any other clause or provision in this Pledge Agreement in any
jurisdiction.
(f) THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDINIG OF ANY KIND OR NATURE IN ANY COURT WHETHER ARISING OUT OF, UNDER OR
ANY REASON OF THIS PLEDGE AGREEMENT OR THE PLEDGED PROPERTY.
(g) This Pledge Agreement shall inure to the benefit of Pledgor and
Pledgee and their respective successors, assigns, executors, administrators and
personal representatives, and shall be binding upon Pledgor and its successors,
assigns, executors, administrators and personal representatives until all of
Levy's obligations under the Note to Pledgee have been indefeasibly paid in
full.
8. GOVERNING LAW
This Pledge Agreement and the obligations of the parties hereunder shall
be governed by, and construed and interpreted in accordance with, the internal
laws of thc State of New York, without regard to the conflicts of law principles
of said State.
9. JURISDICTION
Pledgor hereby expressly submits and irrevocably consents in advance to
the exclusive jurisdiction of the Supreme Court of the State of New York for the
County of Kings and of the United States District Court of the Southern District
of New York to hear and determine any claims or disputes pertaining directly or
indirectly to this Pledge Agreement or to any matter arising therefrom in any
such action or proceeding and Pledgor waives any objection based on forum non
conveniens and any objection to venue in connection therewith. In any such
litigation, Pledgor waives personal service of the summons and complaint, or
other process or notice of motion or other application or papers issued herein,
and agrees that service of such summons and complaint, or other process or
papers shall be made inside or outside the State of New York by registered or
certified mail, return receipt requested, addressed to Pledgor at its address
set forth above, together with simultaneous delivery of a copy thereof to
Pledgor's counsel, or in such other manner as may be permissible under the rules
of said Courts.
10. ESCROW PROVISIONS
The Escrow Agent shall hold the Pledged Securities in escrow until all of Levy's
obligations under the Note to Pledgee have been indefeasibly paid in full. At
such time, the Escrow Agent shall deliver the Pledged Securities to the Pledgor.
Either party may make a written demand to the Escrow Agent for delivery of the
Pledged Securities at any time stating the reasons why such delivery should be
made. The Escrow Agent shall give written notice to the other party of such
demand. If the Escrow Agent does not receive a written objection from the other
party to the proposed delivery within 14 business days after giving of such
notice, the Escrow Agent is hereby authorized to make such delivery. If the
Escrow Agent does receive such written objection within such 14-day period, or
if for any other reason the Escrow Agent in good faith shall elect not to make
such delivery, the Escrow Agent shall continue to hold the Pledged Securities
until otherwise directed by written instructions from the parties to this
Agreement or a final judgment of a court. However, the Escrow Agent shall have
the right at any time to deposit the Pledged Securities with the Clerk of the
Supreme Court of Kings County of which the Escrow Agent shall give written
notice of such deposit to Pledgor and Pledgee. Upon such deposit, Escrow Agent
shall be relieved and discharged of all further obligations and responsibilities
hereunder.
(b) The parties acknowledge that the Escrow Agent is acting solely as a
stakeholder at their request and for their convenience, that the
Escrow Agent shall not be deemed to be the agent of either of the
parties, and that the Escrow Agent shall not be liable to either of
the parties for any act or omission on its part unless taken or
suffered in bad faith, in willful disregard of this Agreement or
involving gross negligence. The parties shall jointly and severally
indemnify and hold the Escrow Agent harmless from and against all
costs, claims and expenses, including reasonable attorneys' fees,
incurred in connection with the performance of the Escrow Agent's
duties hereunder, except with respect to actions or omissions taken
or suffered by the Escrow Agent in bad faith, in willful disregard
of this Agreement or involving gross negligence on the part of the
Escrow Agent. The Escrow Agent has acknowledged agreement to these
provisions by signing in the place indicated on the signature page
of this Agreement.
IN WITNESS WHEREOF, the undersigned has caused these presents to be duly
executed and delivered on the day and year first above written.
PLEDGOR:
--------------------------------
DANIEL R. LEVY, individually
--------------------------------
JOSEPTH H. CLINARD, individually
PLEDGEE:
GILMAN + CIOCIA, INC.
By:
----------------------------
MICHAEL P. RYAN, President
ESCROW AGENT:
--------------------------------
STUART STEINBERG, ESQ.
SCHEDULE A
PLEDGED SECURITIES
Certificate Number
Holder Issuer Class of Stock Number Stock of Shares
- ------ ------ -------------- ------------ ---------
Daniel R. Levy North Ridge Securities Corp. Common
Daniel R. Levy North Shore Capital Management Corp. Common
Joseph H. Clinard North Ridge Securities Corp. Common
Joseph H. Clinard North Shore Capital Management Corp. Common
EXHIBIT 1
SPECIAL POWER OF ATTORNEY
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
KNOW ALL MEN BY THESE PRESENTS, that DANIEL R. LEVY and JOSEPH H. CLINARD
(hereinafter collectively the "Pledgor"), hereby appoint and constitute GILMAN +
CIOCIA, INC., (hereinafter "Pledgee") and each officer thereof, its true and
lawful attorney, with full power of substitution and with full power and
authority to perform the following acts on behalf of Pledgor at any time after
the occurrence and during the continuance or a default under the Pledge
Agreement (as hereinafter defined):
1. Execution and delivery of any and all agreements, documents,
instruments of assignment, or other papers which Pledgee in its reasonable
discretion, deems necessary or advisable for the purpose of assigning, selling,
or otherwise disposing of all of the right, title, and interest of Pledgor in
and to the Pledged Securities, as deemed in the Pledge Agreement, together with
all cash dividends, stock dividends, redemptions, securities or substitutions,
exchanges or other distributions now or hereafter pledged, assigned or otherwise
transferred to Pledged by Pledgor in, respect of the Pledged Securities and all
registrations, recordings, reissues, extensions, and renewals thereof, or for
the purpose of recording, registering and filing of, or accomplishing any other
formality with respect to the foregoing.
2. Execution and delivery of any and all documents, statements,
certificates or other papers which Pledgee in its sole discretion, deems
necessary or advisable to further the purposes described in paragraph 1 hereof.
3. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed thereto or referenced in the Pledge Agreement.
This Power of Attorney, being a power coupled with an interest, is made
pursuant to a Stock Pledge and Security Agreement between Pledgor and Pledgee
dated of even date herewith (the "Pledge Agreement") and may not be revoked
until the termination of the Pledge Agreement.
Dated as of January 29, 2004.
PLEDGOR:
--------------------------------
DANIEL R. LEVY
--------------------------------
JOSEPH H. CLINARD
State of New York )
) SS:
County of Suffolk )
On the 29th day of January, 2004 before me personally appeared Daniel R. Levy
and Joseph H. Clinard personally known to me or proved to me on the basis of
satisfactory evidence to be the individuals whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in the
capacity as individuals and that by their signatures on the instrument they
executed the instruments.
- -------------------------------
Notary Public
SCHEDULE 5.9(a)
PENDING ACTIONS, SUITS AND ARBITRATIONS
Description
Anne Chulli vs. Jeffrey Lewis and North Ridge Securities Corp.
NASD Arbitration Pending in the Dispute Resolution Provision seeking $15,000
damages plus $30,000 in punitive damages.
SCHEDULE 5.9(b)
NASD NOTICES
Description
Anne Chulli vs. Jeffrey Lewis and North Ridge Securities Corp.
NASD Arbitration Pending in the Dispute Resolution Division seeking $15,000
damages plus $30,000 in punitive damages.
SCHEDULE 5.12
EMPLOYEE AND REGISTERED REPRESENTATIVE TERMINATIONS
Name of Employee or Registered Representative
Debra Serating (employee)
Michael Murray, Jim Tinnelly, James Watson, Seymour Williams, Debra Serating,
Michael Gorman, Michael Kelly, Eric Lerner, Basil Kohilakis, Steven Russo
(died), Paul Fogarty, Michael Guttman, Andre McDonnaugh (Registered
Representatives).
SCHEDULE 5.15
CONTRACTS
Contract Description
Office lease extension agreement between North Shore
and 1895 Walt Whitman Associates, LLC
Copier lease with Delange Financial
Postage machine lease with Pitney Bowes
E&O insurance premium financing with AFCO
Jaguar automobile leases for Levy and Clinard
North Ridge contract with Statement One for computer services
Insurance contracts including casualty, general liability, E&O and NASD surety
bond
Cablevision Lightpath contract for phone service and T-1 internet connection
Oral rental agreements with JJ Burns and Associates and PFF for office space
Utility contracts with AT&T wireless, Verizon and LILCO
Amex credit card