Exhibit 31.0.5
PROMISSORY NOTE AND SECURITY AGREEMENT
March 9, 2001
This Promissory Note and Security Agreement ("Note") is given effect as
of March 9, 2001, BY Xxxxxx X. Xxxxxx, an individual having an address at 0000
Xxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx, hereinafter referred to as
"Borrower", IN FAVOR OF, Penn-America Insurance Company, a Pennsylvania
corporation, with offices located at 000 X. Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx,
hereinafter referred to as "Lender". The word "Lender" means the original Lender
and anyone else who takes this Note by transfer.
1. Sole Purpose of the Loan. This credit evidenced hereby is given by the Lender
pursuant to Section 1502 of the Pennsylvania Corporation Law and the
authorization of the Board of Directors of Lender, and its parent insurance
holding company, Penn-America Group, Inc., dated February 28, 2001. Any funds
provided under this Note may solely be used by Borrower to purchase $.001 par
value common stock of the Lender (the "Common Stock"), including brokerage
commissions and transaction costs. Such funds will be provided by Lender to
Borrower by way of Borrower's authorized broker, Fahnstock and Company, who will
relay Borrower's request for funds from Lender and who will then receive said
funds from Lender and apply them towards the purchase of $.001 par value PNG
common stock as directed by Borrower.
2. Borrower's Promise to Pay Principal and Interest. In return for the funds
loaned by Lender to Borrower for the acquisition of PNG common stock, Borrower
promises to pay $37,361.25 (the "Principal"), plus interest to the order of the
Lender. Interest, at an annual rate of (5.07%) percent will be charged on that
part of the Principal which has not been paid from the date of this Note until
all Principal has been paid in full, with interest to be accrued semi-annually.
See attached Addendum A, incorporated herein by reference, for specifics of the
transaction(s), which generated the principal due and owing herein.
3. Payments.
(a) Generally: Unless otherwise specifically set forth herein,
Borrower will pay all principal, interest, costs and charges due
and owing under this Note no later than March 9, 2006. All
payments will be made to Lender at the address shown above or to
such other address as Lender may notify Borrower of, in writing.
Notwithstanding the foregoing, Borrower may instruct Lender to
sell some or all of the Common Stock, which is the subject of this
Promissory Note and Security Agreement. The proceeds from such
sale will be used by Lender towards repayment of Borrower's loan
and shall be applied by Lender to repay an amount equal to the
cost basis for the shares of Common Stock sold, including
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commissions, costs and interest incurred. Such repayment shall be
entered onto Lender's books within five (5) business days of the
receipt of settlement proceeds by Lender.
(b) Acceleration: Lender may not accelerate repayment by Borrower
under this Note, unless Borrower's employment with Lender is
terminated prior to March 9, 2006 due to fraud, embezzlement,
conviction of a crime or grossly negligent conduct on the part of
Borrower that results in injury or damage to Lender. In the event
of such an occurrence(s), Lender shall accelerate the loan and
require immediate payment from Borrower of all principal,
interest, costs and charges due and owing under this Note.
Repayment by Borrower under this Note will not accelerate, other
than as a result of the above.
4. Early Payments. Borrower has the right to make payments at any time before
they are due. These early payments will mean that this Note will be paid in less
time.
5. Late Charge for Overdue Payments. If the Lender has not received any payment
within fifteen (15) days after its due date, Borrower will pay the Lender a late
charge of (4%) percent of the payment. This charge will be paid with the late
payment.
6. Default. If Borrower fails to make any payment required by this Note within
fifteen (15) days after its due date, or if Borrower fails to keep any other
promises that Borrower makes in this Note, or if those promises made in the
Security Agreement bearing even date herewith are not kept, Lender may declare
that Borrower is in default on this Note and the Security Agreement. Upon
default, Borrower must immediately pay the full amount of all unpaid principal,
interest, other amounts due on this Note and the Security Agreement and the
Lender's costs of collection and reasonable attorney fees.
7. Waivers. Borrower gives up its right to require that the Lender do the
following: (a) to demand payment (called "presentment"); (b) to notify Borrower
of nonpayment (called "notice of dishonor"); and (c) to obtain an official
certified statement showing nonpayment (called a "protest"). The Lender may
exercise any right under this Note or the Security Agreement or under any law,
even if Lender has delayed in exercising that right or has agreed in an earlier
instance not to exercise that right. Lender does not waive its right to declare
that Borrower is in default by making payments or incurring expenses on
Borrower's behalf.
8. Pledge of Collateral. In order to protect the Lender if the promises made in
this Note are not kept, and as security for the Borrower's repayment of its
obligations as set forth in this Note (the "Obligations"), the Borrower hereby
grants to the Lender a security interest in and a lien on the Common Stock (the
"Collateral") purchased in accordance with this Note and held by Lender in its
safe at Penn-America Insurance Company, under the control of the General
Counsel. The parties intend that this Note shall constitute a "security
agreement" within the meaning and for purposes of, and as defined in the
Pennsylvania Uniform Commercial Code, 13 PACSA Section 4101 et seq. (the
"Code").
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9. Escrow of Collateral.
A. Simultaneously with the Borrower's execution of this Note, the
Borrower shall execute and deliver to Lender any and all forms, instruments,
certificates and other documents required by Lender that are sufficient for
Lender to establish possession or control of the Common Stock to be purchased in
order to perfect the Lender's lien on such Common Stock, together with such
other reasonable terms and conditions to preserve the Collateral and to protect
the rights of Lender in the Collateral.
B. Lender shall hold the Collateral and the Assignment thereof in
escrow in accordance with the following provisions:
(1) If Borrower is in Default, Lender shall liquidate the Collateral
and shall first apply the proceeds therefrom against all fees and
expenses incurred by Lender in connection with liquidating the
Collateral, then second shall apply any remaining proceeds
therefrom against all accrued and unpaid interest (including any
late payment charges incurred pursuant to Section 5 hereof), then
third against outstanding principal.
(2) When the Obligations have been paid in full or satisfied, the
Lender shall release the remainder of the Collateral, in any, to
the order of the Borrower.
10. Rights Retained by the Borrower.
A. Until the Lender exercises its rights under this Agreement to the
Collateral, the Borrower shall retain any voting rights, rights to receive cash
dividends, liquidating stock dividends and dividends paid in stock, new
securities or other property which the Borrower is entitled to receive by virtue
of such dividend, and all other rights associated with the Collateral, except
those expressly limited in this Agreement.
B. In addition, the Borrower shall, at all times until the Collateral
is sold and title thereto is actually transferred, have the absolute right to
redeem the Collateral upon payment to the Lender of the then outstanding balance
of the Obligations.
11. Borrower's Default. If the Borrower defaults in the payment of its
Obligations pursuant to this Note, upon the Lender's demand, the Borrower will
execute any other assignment or document necessary or advisable to liquidate or
assign the Collateral to the Lender, make payment pursuant to this Note, and to
carry out the purposes of this Agreement.
12. Lender's Rights. The rights, powers and remedies given to the Lender by this
Agreement are in addition to all rights, powers and remedies given to the Lender
by statute or rule of law, unless otherwise limited in this Agreement. A
forbearance or failure or a delay by the Lender in exercising any one or more of
its rights, powers or remedies is not a waiver of any such right, power or
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remedy, and any exercise of a right, power or remedy does not preclude its
further exercise. Until the Obligations of the Borrower are fully satisfied, the
rights, powers and remedies of the Lender continue to exist and may be exercised
by the Lender at any time not limited in this Agreement.
13. Change in Control. In the event of a "change in control" of Lender, as
defined at Addendum B and incorporated herein by reference, all obligations of
Borrower under this Note are immediately forgiven and satisfied, effective as of
the date of the change of control.
14. Further Assurances. The Borrower and the Lender hereby agree to execute and
deliver in the future any and all assignments, agreements, instruments and/or
documents as may reasonably be required and as may be necessary or expedient to
effect or facilitate the transfer of the Collateral in order to effect the
intents and purposes of this Agreement.
15. Miscellaneous.
A. This Agreement applies to and shall inure to the benefit of the
Lender's successors and assigns and binds the Borrower's heirs and assigns.
B. This Agreement may not be modified except by a written agreement
executed by both the Borrower and the Lender.
C. This Agreement contains the entire agreement between the parties as
to the subject matter set forth therein and supersedes any and all prior written
or oral understandings or agreements with respect to the subject matter hereof.
D. This Agreement may not be assigned by the Borrower. Lender may
assign this Promissory Note and Security Agreement and shall provide written
notification thereof to Borrower.
E. Any and all notices and other correspondence required or permitted
to be given hereunder shall be in writing and shall either be (i) personally
delivered; (ii) transmitted by telefax and followed by sending same via United
States first class mail; or (iii) sent by United States certified or registered
mail, return receipt requested, with full postage prepaid, and addressed to the
parties at their respective addresses herein set forth (or to such other address
as the parties may from time to time designate by notice to the others given in
the foregoing manner. All notices shall be deemed effective when given.
F. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania unless preempted by Federal law,
without regard to its principles of conflict of laws.
G. In the event that any provision or part thereof set forth herein is
held to be invalid by a court of competent jurisdiction, or otherwise conflicts
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with applicable law, such provision or part hereof shall be deemed to be deleted
from this Agreement, and this Agreement shall be construed to give effect to the
remaining provisions hereof.
H. Captions in this Agreement are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
PENN-AMERICA INS. CO.
By:
BORROWER:
WITNESS:
STATE OF PENNSYLVANIA )
)ss.
COUNTY OF )
BE IT REMEMBERED, that I hereby certify that on this ______ day of
_________ , 2002, before me, the undersigned authority, personally appeared
Xxxxxx X. Xxxxxx, who I am satisfied is the person mentioned in the within
instrument, and he acknowledged that he signed, sealed and delivered the same as
his voluntary act and deed.
_________________________________
Notary Public of Pennsylvania
NOTARIALSEAL
My Commission Expires ______________
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STATE OF PENNSYLVANIA )
)ss.
COUNTY OF )
BE IT REMEMBERED, that on this _____ day of__________, 2002, before
me, the subscriber, a Notary Public of the State of Pennsylvania, personally
appeared Xxxxxxx X. Xxxxxxxx, to me known, who, being by me duly sworn upon his
oath according to law, did depose and say that she is Vice President, Secretary
and General Counsel of Penn-America Insurance Company, the Lender in the within
Pledge Agreement, and that in her capacity aforesaid she executed the within
Pledge Agreement on behalf of the said corporation; she did duly acknowledge to
me that she signed, sealed and delivered the same as her voluntary act and deed
and as such officer of the said corporation; that the within instrument is the
voluntary act and deed of the said corporation, by virtue of authority granted
by its Board of Directors; that this person knows the proper seal of the
corporation which was affixed to this Pledge Agreement.
________________________________________
Notary Public of Pennsylvania
NOTARIALSEAL
My Commission Expires ______________
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Addendum A
This Addendum forms a part of the Promissory Note and Security Agreement by and
between Xxxxxx X. Xxxxxx ("Borrower") and Penn-America Insurance Company
("Lender"), effective March 9, 2001.
The common stock acquired by Borrower, which gives rise to the Note in
the amount of $ 37,361.25 [which is the principal amount of the loan
($37,200), plus brokerage commissions (.04 cents per share = $160.00)
and transaction costs ($1.25)] is the result of the acquisition by
Borrower on March 6, 2001 of 4,000 shares of PNG common stock at a
price of $9.30 per share.
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Addendum B
For purposes of the within Agreement, "change in control" shall be deemed to
have occurred upon the earliest to occur of the following events:
(i) the date the shareholders of the Company (or the Board of
Directors, if shareholder action is not required) approve a plan
or other arrangement pursuant to which the Penn-America Insurance
Company (the "Company") will be dissolved or liquidated, or
(ii) the date the shareholders of the Company (or the Board of
Directors, if shareholder action is not required) approve a
definitive agreement to sell or otherwise dispose of substantially
all of the assets of the Company, or
(iii) the date the shareholders of the Company (or the Board of
Directors, if shareholder action is not required) and the
shareholders of the other constituent corporation (or its board of
directors, if shareholder action is not required) have approved a
definitive agreement to merge or consolidate the Company with or
into such other corporation, other than, in either case, a merger
or consolidation of the Company in which holders of shares of the
Company's Common Stock immediately prior to the merger or
consolidation will have at least a majority of the ownership of
common stock of the surviving corporation (and, if one class of
common stock is not the only class of voting securities entitled
to vote on the election of directors of the surviving corporation,
a majority of the voting power of the surviving corporation's
voting securities) immediately after the merger or consolidation,
which common stock (and, if applicable, voting securities) is to
be held in the same proportion as such holders' ownership of
Common Stock of the Company immediately before the merger or
consolidation, or
(iv) the date any entity, person or group, other than Penn-America
Group, Inc., its subsidiaries, Penn Independent Corporation or
those individuals and trusts who comprise the shareholders of Penn
Independent Corporation , shall have become the beneficial owner
of, or shall have obtained voting control over, more than thirty
percent (30%) of the outstanding Shares of the Company's Common
Stock, or
(v) the first day when directors are elected such that a majority of
the Board of Directors shall have been members of the Board of
Directors for less than two (2) years, unless the nomination for
election of each new director who was not a director at the
beginning of such two (2) year period was approved by a vote of at
least two-thirds of the directors then still in office who were
directors at the beginning of such period.
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