STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement, dated this 3rd day of June, 1998, is made
and entered into by and between Ameri-Cap Leasing Corp., a Florida corporation
["Buyer"] Xxx Xxxxxxx ["Xxxxxxx"], Xxxxxx Xxxxx ["Xxxxx"] and Xxxxx Xxxxx
["Xxxxx"] [collectively referred to as "Seller" and Medley Credit Acceptance
Corp., a Delaware corporation ["Medley"]. [The Buyer and Seller may be referred
to collectively throughout this Agreement as "Parties" for convenience
W I T N E S S E T H:
WHEREAS, the Seller collectively owns 100% of the authorized, issued,
and outstanding shares of MFC Financial Corp. [the "Corporation"], and
WHEREAS, the Corporation is organized and existing under the laws of the
State of Florida and is engaged in the financing business, including but not
limited to equipment leasing, and
WHEREAS, the Buyer is a Florida corporation ant is desirous of
purchasing from the Seller 80% of the authorized, issued, and outstanding
common shares of the Corporation (the "Shares") and the Seller is desirous of
selling same to the Buyer, and
WHEREAS, the Buyer is a wholly owed subsidiary of Medley, and
WHEREAS, Medley is a publically traded over-the-counter company, and
WHEREAS, Epstein, Kalus and Xxxxx are key employees of the Corporation
and the Buyer desires for them to become employees of the Buyer and have agreed
to enter into Employment Agreements, and
WHEREAS, the Buyer shall have an operating committee initially comprised
of Xxxxxxx. Kalus and Xxxxx, and
WHEREAS the Panties desire to document their representations,
warranties, covenants, agreements, and conditions relating to the purchase and
sale of the shares in a written agreement.
NOW THEREFORE; in consideration of the mutual promises and covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. RECITALS: The above and foregoing recitals are true and correct and
are incorporated herein.
2. SALE AND TRANSFER OF STOCK: The Seller shall sell, transfer and
convey to the Buyer and the Buyer shall purchase and acquire from the Seller
80% of the authorized, issued and outstanding common shares of the Corporation
consisting of_____ shares (the "Shares").
3. PURCHASE PRICE AND METHOD OF PAYMENT: The purchase price for the
Shares shall be 10,000 shares of Medley's common stock which will be
transferred on the closing date to each Seller on a pro rata basis in exchange
for the Seller's stock in the Corporation being sold pursuant to this
Agreement. The Seller acknowledges that the Medley common stock being exchanged
have not been registered under the Securities Act of 1933 (the "Act") for
resale and may not be offered or sold except pursuant to an effective
registration under the Act or to the extent applicable, Rule 144 under the Act
or such other exemption from registration as may be given in an option of
counsel acceptable for Medley.
4. BUYER'S OBLIGATION TO ACQUIRE BALANCE OF SELLER'S SHARES: The Buyer
agrees to acquire the balance of the Seller's shares in the Corporation
annually in equal installments 0 ver a three year period from the date of
closing, with the first installment commencing one-year from the date of
closing and on the same day each year thereafter. The acquisition consideration
for the balance of the Seller's shares shall be an amount of Medley common
stock equal to two and one-half times the net pre-tax income of the Leasing
Division in the first year, three times the net pre-tax income of the Leasing
Division in the second year, and four times the net pre-tax income of the
Leasing Division in the third year. The Buyer and Seller agree that the number
of shares to be issued shall be based upon the closing share price of Medley's
common stock on the date of each exchange
5. DUE DILIGENCE PERIOD AND RIGHT OF TERMINATION:
(A) By Buyer: The Seller and Buyer hereby acknowledge that the
Buyer, as of the effective date of this Agreement, has not had the opportunity
to review and evaluate all aspects of the Corporation, as represented by the
Seller. Therefore, the Buyer shall have, from the effective date through the
end of business 10 days thereafter (Due Diligence Period) to inspect and assess
all aspects of the Corporation, financial and otherwise, and to make such
investigations as the Buyer deems necessary in the Buyer's sole discretion. The
Seller agrees to assist the Buyer in reviewing all records of the Corporation
and to aid and assist the Buyer in reviewing all records of the Corporation and
to aid and assist the Buyer in arranging meetings and providing documents,
records, and/or information reasonably required by the Buyer or the Buyer's
attorneys or other agents including accountants, in order that the Buyer may
determine the viability of the transaction contemplated by this Agreement.
During the Due Diligence Period, Seller shall advise the Buyer of any negative
information learned by the Seller which would have a material, financial impact
upon the Seller. In the event the Buyer determines in its sole and absolute
discretion that the representations made by the Seller prior to execution of
this Agreement or those made in this Agreement are false, misleading or
incomplete so that the acquisition of the Shares would have a negative
financial impact on the Buyer or Medley, the
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Buyer may notify the Seller in writing prior to the termination of the Due
Diligence Period and the Buyer may at the Buyer's sole discretion terminate
this Agreement. The Buyer's failure to provide written notice of termination
within the time period set forth in this section shall be deemed conclusive
evidence that the Buyer has waived his right to terminate as contained herein.
(B) By Seller: During the due diligence period described in A,
above, the Seller shall have the right to assess all aspects of the Buyer and
Medley as the Seller deems appropriate. Buyer and Medley agree to assist Seller
in reviewing all records necessary for its due diligence by making these
records available to Seller, attorneys, accounts, or other agents. In the event
the Seller determines in their sole opinion that the representations made by
the Buyer or Medley are false, misleading or incomplete so that the Seller
would sustain an economic loss on the exchange of the Seller's shares for that
of Medley, the Seller shall notify the Buyer in writing prior to the
termination of the due diligence period, and Sellers may at their sole
discretion terminate this Agreement.
6. CLOSING DATE: The Closing under this Agreement shall take place on or
before June 30, 1998 at the Law Offices of Xxxxxxx X. Xxxxxxx, Esquire, 0000
Xxxxx xx Xxxx Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 or at such other time and
place as shall be set forth in a writing signed by the Parties hereto.
7. REPRESENTATIONS AND WARRANTIES OF SELLER: The Seller represents and
warrants to the Buyer as follows:
(a) The Corporation is a validly existing Corporation in good
standing under the laws of the State of Florida and is validly conducting
business pursuant to the laws of the State of Florida.
(b) The Seller has the power to enter into and carry out their
obligations under this Agreement.
(c) The Corporation holds all licenses necessary to conduct the
business of the Corporation and complies with all laws, rules and regulations
presently established by all governmental agencies in connection with same.
(d) The Shares being sold by the Seller to the Buyer are fully
paid and non assessable.
(e) The aggregate number of shares that the Corporation is
authorized to have issued and outstanding as of the date hereof are shares of
common stock, which are presently all issued and outstanding and held
collectively in the name of the Seller.
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(f) The only stock authorized to be outstanding by the Corporation
is one class of common stock represented by the shares owned by the Seller.
(g) The Seller is and will be on the closing date the sole owners
of all of the authorized, issued. and outstanding shares of the common stock of
the Corporation, free and clear of any and all liens and encumbrances.
(h) That as of the date of executing, this Agreement as well as on
the date of closing, the Corporation shall have no debts, liabilities, or
obligations for which payment needs to be made except for those debts,
liabilities. and obligations set forth on Exhibit "A" attached to this
Agreement.
(i) The Seller does not have any knowledge or any basis for the
assertion of any material liability against the Corporation.
(j) The Corporation is not subject to any order, judgment, decree,
stipulation, or any other agreements untie any governmental body or agency with
respect to the Corporation unless set forth in this Agreement.
(k) The Corporation is not a party to any long-term contract or
commitment unless specifically set forth in this Agreement on Exhibit "B"
attached hereto.
(1) Neither the Sellers nor the Corporation have received notice
nor have any claims been made against the Corporation or the Sellers by any
governmental authority to the effect that the Corporation or the business of
the Corporation fails to comply in any material respect to any law, rule,
regulation, or ordinance or that a license, permit, or order which is not in
the possession of the Corporation is necessary for the Corporation to conduct
its business.
(m) On the day of closing, the Seller will have the full and
unrestrictive legal and equitable title to the shares being sold to the Buyer,
free and clear of all liens and encumbrances.
(n) Any action required to be taken by the Corporation in order to
complete the transaction contemplated in this Agreement has been or will be by
the closing date duly approved by the Board of Directors and Shareholders of
the Corporation.
(o) The Sellers represent that there are no liabilities, including
but not limited to liabilities for federal, state, and local taxes, penalties,
assessments, lawsuits or claims against the Corporation or the Sellers, whether
such liabilities, suits, or claims are contingent or absolute, direct or
indirect, matured or unmatured, which could in any way affect the shares being
conveyed hereunder, the assets of the Corporation, or the Corporation's ability
to conduct its business.
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(p) The Articles of Incorporation and By-laws attached to this
Agreement as Exhibit "C" are complete and accurate as of the date hereof and
contain all amendments through the date hereof. The Minute Book of the
Corporation is complete and accurate and reflects all proceedings of
Shareholders and Directors of the Corporation through the date of this
Agreement.
(q) The transfer and delivery of the shares to the Buyer, pursuant
to this Agreement will be valid and will vest title to the shares in the Buyer
free and clear of all liens, encumbrances, conditions, and restrictions of any
kind.
(r) The Corporation will not issue any additional shares of its
common stock prior to the closing. There are no outstanding options, contracts,
commitments, warrants or other rights of any character affecting or relating in
any manner to the common stock of the Corporation.
(s) The documents, agreements, and materials delivered or to be
delivered by the Seller to the Buyer in furtherance of the Buyer's Due
Diligence examination of the Corporation shall be complete and accurate in all
material respects and will not have been amended or modified by any oral
agreements.
(t) Financial Statements: The Corporation has furnished the Buyer
with Financial Statements of the Corporation as of _____________________. The
Financial Statements fairly present the financial condition of the Corporation
on such date. To the best of the Seller's knowledge, there are no matters
pending which would have an adverse or material affect on the Financial
Statements of the Corporation.
(u) Subsequent to the date of the Corporation's last Financial
Statement, the business of the Corporation has been conducted in its ordinary
course of business and to the best of the Seller's knowledge there has been no
material loss of any of the Corporation's customers and clients which would
have an adverse affect on the Corporation's future income and profitability.
The representations and warranties set forth above shall survive the
closing.
8. REPRESENTATIONS AND WARRANTIES OF THE BUYER: The Buyer represents and
warrants to the Sellers as follows:
(a) The Buyer is a Corporation, duly organized and validly
existing in good standing under the laws of the State of Florida with full
power and authority to own and lease properties and to carry on its business.
(b) The execution, delivery, and performance of this Agreement has
been duly approved or will be duly approved by all requisite corporate actions
by the closing date.
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(c) The Buyer has the power to enter into and carry out its
obligations under this Agreement.
(d) The common stock of Medley being transferred to the Seller
will be fully paid and non-assessable.
(e) The authorized capital stock of the Buyer consists of one
class of common stock having one million shares authorized at $.01 per share
all of which stock is owned by Medley.
(f) The Buyer is not subject to any order, judgment, decree,
stipulation or other agreement which would prohibit the transaction
contemplated under this Agreement.
(g) Any action required to be taken by the Buyer in order to
complete the action contemplated in this Agreement has been or will be by the
closing date duly approved by the Board of Directors of the Buyer.
(h) The transfer and delivery of the shares contemplated under
this Agreement will vest title to said shares in the Seller free of all liens,
encumbrances, conditions and restrictions except those pertaining to the
Federal Securities Act of 1933, as amended and such State Securities laws as
may be applicable.
(i) Buyer represents that it is not executing this Agreement with
the intention of selling or otherwise transferring Corporation or Buyer.
9. REPRESENTATIONS AND WARRANTIES OF MEDLEY: Medley represents and
warrants to the Seller as follows:
(a) Medley is a duly organized and existing corporation under the
laws of the State of Delaware and is authorized to conduct business in the
state of Florida.
(b) Medley has the power and authority to enter into this
Agreement and the execution delivery and performance of this Agreement has been
duly approved or will be duly approved by all requisite corporate actions by
the closing date.
(c) The authorized capital stock of Medley consists of the
following:
1. 15 million shares of Common Stock having a
par value of $.001
per share
2. five million shares of Preferred Stock
3. five million Warrants
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(d) Medley is a publicly traded company and to the best of its
knowledge all filings with the Securities and Exchange Commission or other
public and private governing bodies were accurate as of the date of their
filing.
(e) The documents, agreements and materials delivered to the
Seller in furtherance of the Seller's due diligence of Medley and the Buyer are
complete and accurate in all material respects.
(f) Medley represents that it will use its best efforts to support
the operations of the Buyer and Seller in future business dealings including
but not limited to:
1. Making available initial working capital up to
$150,000 for leasing operations.
2. Arranging for a warehouse line of credit in a maximum
amount available to increase the leasing business.
3. Arranging for bank or other institutional lines of
credit in a maximum amount available for the future
growth of the leasing business.
10. CONDITIONS PRECEDENT AT CLOSING: The Buyer's obligation to close the
transaction contemplated by this Agreement is subject to the following
conditions:
(a) The Buyer has not terminated this Agreement during its Due
Diligence Period.
(b) The representations and warranties of the Seller contained in
this Agreement are true and correct in all material respects on the closing
date.
(c) Any and all agreements to be performed by the Seller prior to
the closing date have been performed.
11. INDEMNIFICATION:
(a) By The Seller: Subject to the items disclosed in this
Agreement, the Seller shall defend, indemnify, and hold the Buyer or Medley and
any of the Buyer's or Medley's successors and assigns, harmless against all
damages, losses, costs or expenses (including reasonable attorney's fees at all
levels of trial or appeal incurred in defending any claim for such damage,
loss, cost, or expense incurred by the Buyer or Medley resulting from or in
respect to:
(1) Any breach of the Sellers' representations, warranties,
or covenants in this Agreement or any untruth or inaccuracy thereof.
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(2) Any claim by a broker, agent, or finder alleged to be
employed by, representing, or otherwise involved with the Corporation or the
Sellers relating to this transaction.
(b) By Buyer and Medley: Subject to the items disclosed in this
Agreement, the Buyer and Medley shall defend, indemnify, and hold the Seller
harmless against all damages, losses costs, or expenses, including reasonable
attorneys' fees at all levels of trial or appeal incurred in defending any
claim for damage, loss, cost or expense incurred by Seller resulting from or
in respect to:
(1) Any breach of the Buyer or Medley's representations,
warranties or covenants in this Agreement or any untruth or inaccuracy thereof.
Notice of claims: In the event any party (Indemnified Party) shall receive any
written notice of any claim or proceeding against them (or in the case of Buyer
the Corporation shall receive notice of a claim or proceeding), the Indemnified
Party shall give the Indemnifying Party written notice of any such claim or
demand and the Indemnifying Party shall have the right to contest or defend any
action brought against the Indemnified Party at the Indemnifying Party's own
expense provided, that should the Indemnifying Party fail to notify the
Indemnified Party of the assumption of the defense of any action within 10 days
of the Indemnified Party giving written notice to the Indemnifying Party, then
the Indemnified Party shall have the right to take any such action it deems
reasonable to defend, contest, settle or compromise any action or claim made
against the Indemnified Party. If the Indemnifying Party defends any action for
which indemnification is claimed, the Indemnified Party shall be entitled to
participate at its own expense in the defense of such action; provided,
however, that the Indemnifying Party shall bear the fees and expenses of the
Indemnified Party's counsel should there exist a conflict of interest between
Indemnified Party and indemnifying Party which would render it inappropriate
for counsel selected by the Indemnifying Party to represent the Indemnified
Party.
2. EMPLOYMENT OF SELLERS: The Buyer recognizes the Importance of the
Sellers for the on-going business of the Corporation. The Corporation
simultaneously with the closing of the transaction contemplated by this
Agreement shall enter into written Employment Agreements with the Sellers upon
the terms and conditions set forth in this Agreement as Exhibits "D".
13. At the Closing, the following instruments shall be executed and
delivered:
(a) Certificates representing the Shares of the Corporation being
exchanged, duly endorsed by the Sellers in favor of the Buyer with all required
transfer tax stamps affixed.
(b) A Resolution of the Board of Directors of the Corporation
authorizing the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby certified as of the closing date by an
officer of the Corporation as having been adopted being in full force and
effect and unmodified on the closing date.
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(c) An affidavit by the Sellers affirming that the warranties and
representations of the Sellers are true and correct on the closing date.
(d) A certificate by the Board of Directors of the Corporation to
the effect that the representations and warranties of the Corporation are true
and correct in all material respects as of the closing date
(e) Certificates representing 10,000 shares of Medley being duly
endorsed. being transferred to the Epstein, Kalus and Xxxxx in such prorate
amounts as they direct in writing with all required transfer tax stamps
affixed, if required.
(f) A resolution of the Board of Directors of the Buyer
authorizing the transaction.
(g) A resolution of the Board of Directors of Medley authorizing
the transaction.
(h) A certificate by the Board of Directors of the Buyer to the
effect that the representations and warranties of the Corporation are true and
correct in all material respects as of the closing date.
(i) A certificate by the Board of Directors of Medley to the
effect that the representations and warranties of the Corporation are true and
correct in all material respects as of the closing date
14. COVENANT OF FURTHER ASSURANCES: After the closing, each party to this
Agreement shall, at the reasonable request of the other party and without
further consideration furnish, executed and deliver such documents,
instruments, certificates, notices or other further assurances as the
requesting party shall reasonably request as necessary or desirable to effect
complete consummation of this Agreement and the transaction contemplated
herein.
15. NOTICES: Except as otherwise provided for herein, all notices,
requests, demands and other communications hereunder shall be in writing and
will be deemed to have been duly given if personally delivered, or when
transmitted by facsimile with confirmation of receipt from one party to the
other or when received if mailed by the United States first class certified or
registered mail, postage prepaid, with return receipt requested and marked
delivered or refused, or via an overnight delivery service with proof of
delivery or refusal of delivery, to the other parties at the following
addresses:
To the Buyer: Medley Credit Acceptance Corporation
0000 Xxxxx xx Xxxx Xxxx.
Xxxxx Xxxxxx, Xxxxxxx 00000
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with a copy to: Xxxxxxx X. Xxxxxxx, Esq.
0000 Xxxxx xx Xxxx Xxxx.
Xxxxx Xxxxxx, Xxxxxxx 00000
To the Sellers: Xxx Xxxxxxx
0000 X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxx
0000 X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxx Xxxxx
0000 X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
To the Corporation: MFC Financial Corp.
0000 X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
with a copy to: Xxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxxxx, P.A.
00000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
16. MISCELLANEOUS PROVISIONS:
(a) Assignment: No party may assign its obligations or rights
under this Agreement without the written consent of the other parties.
(b) Modification: There are no other agreements, promises or
undertakings between the parties except as specifically set forth herein. No
alteration, change, modification or amendment to this Agreement shall be made
except in writing and signed by the parties hereto.
(c) Severability: If any provision or paragraph of this Agreement
is deemed to be unlawful or unenforceable by any court, administrative agency
or statute, law or ordinance, the said provision or paragraph shall be severed
from this Agreement without affecting the enforceability of the remainder of
this Agreement. The parties shall make a good faith effort to
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redraft the severed provision or paragraph consistent with the party's original
intention but in such a way as to be lawful and enforceable.
(d) Binding Effect: This Agreement supersedes and cancels any and
all other agreements referring to the subject matter herein. This Agreement
shall be binding upon and inure to the benefit of the respective parties, the
successors and assigns, if applicable as well as to the he and legal
representatives of the parties hereto, if applicable.
(e) Construction: This Agreement shall be construed and enforced
under the laws of the state of Florida.
(f) Counterparts: This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
counterparts collectively shall constitute one instrument representing the
agreement between the parties.
(g) Captions and Headings: The captions and headings of each
section or subsection in this Agreement arc for convenience of reference only
and shall in no manner or way whatsoever effect the interpretation or meaning
of such section or subsection.
(h) Exhibits: The exhibits attached hereto together with all
documents incorporated by reference herein form an integral part of this
Agreement and are hereby incorporated herein wherever reference is made to them
to same extent as if they were set out in full at the point at which such
reference is made.
(i) Attorney's Fees: The prevailing party in any litigation arising
out of the terms of this Agreement shall be entitled to reimbursement of
reasonable attorney's fees and costs at the trial and appellate court level.
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IN WITNESS WHEREOF, the parties have hereunto executed this Agreement the
date above written:
AMERI-CAP FINANCE GROUP, INC.
a Florida corporation
By:__________________________
Xxxxxx X. Press, President
_____________________________
XXX XXXXXXX
_____________________________
XXXXXX XXXXX
_____________________________
XXXXX XXXXX
MEDLEY CREDIT ACCEPTANCE CORP.
a Delaware corporation
By:__________________________
Xxxxxx X. Press, President
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