ASSET PURCHASE AND EXCHANGE AGREEMENT
THIS ASSET PURCHASE AND EXCHANGE AGREEMENT (this "Agreement") is made
and entered into as of the 3rd day of February, 1997 by and between Matrix
Capital Corporation, a Colorado corporation ("Buyer") and STC Holdings, Inc., a
Texas corporation ("STC Holdings"); and is joined in, specifically for
Paragraphs 1 and 2, by the undersigned shareholders of STC Holdings, being the
holders of at least 2/3 of the voting stock of STC Holdings (collectively, the
"STC Shareholders").
W I T N E S S E T H:
WHEREAS, the STC Shareholders are the respective owners of all of the
outstanding shares of capital stock of STC Holdings; and
WHEREAS, STC Holdings is the record and beneficial owner of certain
shares of the common stock of Seller (the "Shares"), and the Shares, as of the
Closing, will comprise the sole asset (the "Assets") of STC Holdings; and
WHEREAS, Buyer desires to buy from STC Holdings, and STC Holdings
desires to sell to Buyer, and the STC Shareholders desire that STC Holdings sell
to Buyer, the Assets, on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
promises contained herein, the parties hereto covenant and agree as follows:
A G R E E M E N T:
1. Agreement to Sell and Purchase; Intended Effect.
(a) On the terms and subject to the conditions set forth in
this Agreement, immediately prior to the Effective Time (as defined in the
Agreement and Plan of Merger, dated November 22, 1996, between The Vintage
Group, Inc. ("Seller"), Matrix/Vintage Acquisition, Inc. ("Acquisition") and
Buyer (the "Merger Agreement")) (such time immediately prior to the Effective
Time being referred to herein as the "Time of Exchange"), STC Holdings shall
convey, transfer, assign, sell and deliver the Assets to Buyer, free and clear
of any liens, claims and encumbrances, and Buyer shall acquire, accept and
purchase the Assets. The STC Shareholders do hereby approve and consent to such
sale and conveyance.
(b) Buyer and STC Holdings have endeavored to structure the
asset acquisition as a tax-free "reorganization" under Section 368(a)(1)(C) of
the Internal Revenue Code of 1986, as amended. The parties represent, warrant
and agree to report the transaction in such manner.
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2. Consideration to be Paid by Buyer. The consideration (the "Purchase
Price") to be paid by Buyer for the Assets shall be the issuance by Buyer to the
STC Shareholders, in the aggregate, as of the Effective Time, of a number of
shares of Common Stock as is equal to STC Holdings' pro rata portion (based upon
the number of shares of Seller common stock owned by Buyer as of the Effective
Time bears to the total number of shares of Seller common stock issued and
outstanding as of the Effective Time) of the Merger Consideration (as defined in
the Merger Agreement). The Purchase Price shall be paid to the STC Shareholders
pro rata based upon the number of shares of capital stock of STC Holdings held
by a particular STC Shareholder bears to the total number of shares of capital
stock of STC Holdings held by all STC Shareholders.
3. Closing; Conditions; Termination.
3.1 Time and Place of Closing. The sale and purchase provided
for in this Agreement shall be consummated at a closing (the "Closing") to be
held at the principal offices of Jenkens & ▇▇▇▇▇▇▇▇▇, a Professional
Corporation, in Dallas, Texas immediately prior to the Effective Time (the
"Closing Date"), or at such other place, time and date as the parties may agree.
3.2 Actions to be taken at Closing by STC Holdings. At the
Closing, STC Holdings shall execute and deliver to Buyer the following, which
shall constitute a condition precedent to Buyer's obligation to close hereunder:
(a) a ▇▇▇▇ of sale, in form acceptable to Buyer,
conveying title to the Assets, free and clear of any liens, claims and
encumbrances, as well as the stock certificates evidencing all of the Shares,
duly endorsed to Buyer or accompanied by stock powers duly executed in blank;
and
(b) a certificate of the President of STC
Holdings certifying that the Shares comprise the sole asset of STC Holdings; and
(c) STC Holdings shall cause ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
to deliver his legal opinion certifying as to the accuracy of the matters
represented and warranted by STC Holdings set forth in Section 4 hereof (the
"Legal Opinion"); and
(d) such other documents as Buyer may reasonably
request.
3.3 Actions to be Taken at Closing by Buyer. At the Closing,
Buyer shall execute and deliver to STC Holdings and/or the STC Shareholders, as
the case may be, the following, which shall constitute a condition precedent to
STC Holdings's obligations to close hereunder:
(a) stock certificates, registered in the
respective names of the STC Shareholders, evidencing the Purchase Price; and
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(b) such other documents as the STC Shareholders
may reasonably request.
3.4 Conditions to STC Holdings' Obligations. In addition to
those items reflected in Section 3.3, the obligations of STC Holdings to
consummate the transactions provided for by this Agreement are subject to the
satisfaction of each of the following conditions, any of which may be waived by
STC Holdings:
(a) Representations and Warranties. Each of the
representations and warranties of Buyer made in this Agreement shall be true and
correct in all material respects on and as of the Closing.
(b) Covenants. Buyer shall have performed and
complied in all material respects with all covenants and agreements required to
be performed or complied with by it at or prior to the Closing.
(c) Consents. All consents of any governmental
authorities and third parties necessary to consummate the transactions
contemplated hereunder shall have been obtained.
(d) No Proceeding or Litigation. There shall not
exist, nor shall there be threatened, any litigation, action, suit,
investigation, claim or proceeding challenging the legality of, or seeking to
restrain, prohibit or materially modify, the transactions provided for in this
Agreement.
3.5 Conditions to Buyer's Obligations. In addition to those
items reflected in Section 3.2, the obligations of Buyer to consummate the
transactions provided for by this Agreement are subject to the satisfaction of
each of the following conditions, any of which may be waived by Buyer:
(a) Representations and Warranties. Each of the
representations and warranties of STC Holdings made in this Agreement shall be
true and correct in all material respects on and as of the Closing.
(b) Covenants. STC Holdings and the STC
Shareholders shall have performed and complied in all material respects with all
covenants and agreements required to be performed or complied with by them at or
prior to the Closing.
(c) Consents. All consents of any governmental
authorities and third parties necessary to consummate the transactions
contemplated hereunder shall have been obtained.
(d) No Proceeding or Litigation. There shall not
exist, nor shall there be threatened, any litigation, action, suit,
investigation, claim or proceeding challenging the legality of, or seeking to
restrain, prohibit or materially modify, the transactions provided for in this
Agreement.
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(e) The Legal Opinion shall have been delivered
to Buyer.
(f) Each of the representations and warranties
of Seller contained in the Merger Agreement shall have been true and correct on
the date of execution of the Merger Agreement (the "date thereof") and shall be
true and correct in all material respects on the Closing Date with the same
effect as if made on the Closing Date, and the Seller shall have executed and
delivered to the Buyer at the closing of the Merger (the "Merger Closing") a
certificate of an officer of the Seller to that effect.
(g) All of the covenants and agreements of the
Seller contained in the Merger Agreement and required to be performed on or
before the Closing Date shall have been performed in all material respects, and
the Seller shall have delivered to the Buyer at the Merger Closing a certificate
of the Seller to that effect.
(h) (i) There shall not have been instituted or
threatened any legal proceeding seeking to prohibit the consummation of the
transactions contemplated by the Merger Agreement or to obtain substantial
damages with respect thereto.
(ii) None of the parties to the Merger
Agreement shall be prohibited by any law, order, writ, injunction or decree of
any governmental body of competent jurisdiction from consummating the
transactions contemplated by the Merger Agreement and no action or proceeding
shall then be pending that questions the validity of the Merger Agreement, any
of the transactions contemplated thereby or any action that has been taken by
any of the parties in connection therewith or in connection with any of the
transactions contemplated thereby.
(i) Since the date of the September 30, 1996
financial statements listed in the Merger Agreement, there shall have been no
Material Adverse Effect (as defined in the Merger Agreement).
(j) Seller shall have obtained the consents and
approvals of third parties set forth in EXHIBIT E to the Merger Agreement.
(k) The Merger shall have been approved by the
shareholders of Seller in accordance with the TBCA and the Seller's Articles of
Incorporation.
(l) The Nasdaq National Market shall have
approved the listing, subject to official notice of issuance, of the Common
Stock to be issued in the Merger and hereunder.
(m) Persons holding not more than 10% of the
Common Shares (as defined in the Merger Agreement) and persons holding not more
than 10% of the Preferred Shares (as defined in the Merger Agreement) shall have
perfected their dissenters' appraisal rights pursuant to the TBCA with respect
to the Merger prior to the Closing Date.
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(n) Buyer shall have received a letter from
Ernst & Young LLP, in form reasonably acceptable to Buyer, to the effect that
the transactions contemplated by the Merger Agreement, and this Agreement, will
be accounted for as a "pooling of interests" under GAAP.
(o) Seller shall have delivered to Buyer the
Agreements of Affiliates called for the SECTION 5.12 of the Merger Agreement.
(p) ▇▇. ▇▇▇▇▇▇▇ shall have duly executed and
delivered the Employment Agreement (as defined in the Merger Agreement).
(q) Buyer shall have received the Piper Consent
(as defined in the Merger Agreement).
(r) The Texas Department of Banking shall have
approved the Merger and the transactions contemplated by this Agreement.
(s) Buyer shall have received the Resignations
(as defined in the Merger Agreement).
3.6 Termination. Notwithstanding anything else contained
herein to the contrary, this Agreement may be terminated, without any liability
or further obligations of the parties hereto, (a) by either Buyer or by STC
Holdings if the transactions and agreements contemplated by the Merger Agreement
have not been consummated, executed and/or delivered for any reason other than
the failure of the Texas Department of Banking to have yet approved the Merger
(in which case the date shall be March 31, 1997) on or prior to February 1,
1997; or (b) by Buyer if there has been a material breach of any representation
or warranty of STC Holdings contained herein or if STC Holdings shall have
failed to comply in any material respect with any of its covenants or agreements
contained herein; or (c) by STC Holdings if there has been a material breach of
any representation or warranty of Buyer contained herein or if Buyer shall have
failed to comply in any material respect with any of its warrants and agreements
contained herein; or (d) by mutual written agreement between STC Holdings and
Buyer.
4. Representations and Warranties of STC Holdings. STC Holdings
represents and warrants to Buyer as follows:
4.1 Ownership. Except as set forth in SCHEDULE 4.1(A), STC
Holdings has good and marketable title to the Shares, free and clear of all
liens, claims and encumbrances. Upon the Closing, Buyer will receive good and
marketable title to such Shares, free and clear of all liens, claims and
encumbrances. STC Holdings has, and at the time of delivery of the Shares to be
sold hereunder STC Holdings will have, full legal right, power, authority and
capacity to execute, deliver and perform this Agreement, and to consummate the
transactions contemplated hereby. SCHEDULE 4.1(B) hereto sets forth a true,
correct and complete list of all of the Assets. At the Time of Exchange, the
sole asset of STC Holdings shall be the Shares.
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4.2 Capitalization.
(a) EXHIBIT A attached hereto sets forth the
authorized capitalization of STC Holdings, the number of shares outstanding of
STC Holdings, and the names of and the number of shares owned by each of the
shareholders of record as of the date hereof. No person or entity, other than as
shown on such EXHIBIT A, owns of record any of the outstanding shares of capital
stock of STC Holdings. At the Effective Time, all of the outstanding shares of
STC Holdings will be owned of record by the STC Shareholders, as set forth in
EXHIBIT A hereto, which will comprise all of the issued and outstanding capital
stock of STC Holdings. All of the outstanding shares of STC Holdings are and
will be validly issued and outstanding, fully paid and nonassessable. Such
outstanding shares are not subject to and were not issued in violation of any
preemptive rights. Each such share was issued in conformity with applicable law
and neither any party to whom such shares were issued nor any person claiming
through any such party has any claim against STC Holdings in respect of any such
issuance. There are no voting trusts or other agreements or understandings to
which STC Holdings is a party with respect to the voting of the capital stock of
STC Holdings. Except as disclosed on SCHEDULE 4.2(A) hereto, STC Holdings is not
party to or bound by any shareholder's agreement.
(b) There are no outstanding subscriptions,
options, rights, warrants, convertible securities or other agreements or
commitments ("Stock Rights") obligating STC Holdings to issue or to transfer
from the treasury any additional shares of capital stock or any securities
convertible into, or exchangeable or exercisable for, or otherwise evidencing a
right to acquire, any shares of capital stock of STC Holdings, and no unissued
shares of stock are subject to any preemptive rights. Except as set forth in
SCHEDULE 4.2(A) hereto, there are no outstanding contractual obligations of STC
Holdings to repurchase, redeem or otherwise acquire any outstanding shares of
capital stock of or other ownership interest in STC Holdings.
4.3 Enforceability. This Agreement is, and the other
agreements, documents and instruments required hereby will be, when executed and
delivered by the parties hereto and thereto, enforceable against STC Holdings
and the STC Shareholders in accordance with their respective terms.
4.4 Agreement Not in Breach of Other Instruments. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not result in a
breach of any of the terms or provisions of, or constitute a default under, or
conflict with, (a) any material agreement, indenture or other instrument to
which STC Holdings and/or the STC Shareholders are a party or by which any of
them is bound, including without limitation those items listed in SCHEDULES
4.1(A), 4.1(B) and 4.2(A) hereto; (b) any judgment, decree, order or award of
any court, governmental body or arbitrator applicable to STC Holdings or such
STC Shareholders; or (d) any law, rule or regulation applicable to STC Holdings
or such STC Shareholders.
4.5 Vote for Merger. STC Holdings will vote all of the Shares
in favor of the Merger or, if requested by Buyer, will execute an irrevocable
proxy in favor of Buyer with respect to the Shares, substantially in the form
attached as EXHIBIT B to the Merger Agreement.
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5. Representations and Warranties of Buyer. Buyer represents and
warrants to STC Holdings as follows:
5.1 Organization. Buyer is a corporation duly organized and
validly existing and in good standing under the laws of its state of
incorporation and has the requisite corporate power to enter into and perform
its obligations under this Agreement and under any other agreements, documents
and/or instruments to be executed and/or delivered by it pursuant to or in
connection with this Agreement.
5.2 Authorization; Enforceability. The execution, delivery and
performance of this Agreement and of all of the agreements, documents and/or
instruments to be executed and/or delivered by Buyer pursuant to or in
connection with this Agreement have been duly authorized by all necessary
corporate action on the part of Buyer. This Agreement is, and the other
agreements, documents and instruments required hereby will be, when executed and
delivered by the parties hereto and thereto, enforceable against Buyer in
accordance with their respective terms.
5.3 Agreement Not in Breach of Other Instruments. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not result in a
breach of any of the terms or provisions of, or constitute a default under, or
conflict with, (a) any material agreement, indenture or other instrument to
which Buyer is a party or by which it is bound; (b) the articles of
incorporation or bylaws of Buyer; (c) any judgment, decree, order or award of
any court, governmental body or arbitrator applicable to Buyer; or (d) any law,
rule or regulation applicable to Buyer.
6. Miscellaneous.
6.1 Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed given as of the
date of delivery if delivered personally or two (2) business days after being
mailed by certified or registered mail, postage prepaid, return receipt
requested, to the parties, their successors in interest or their assignees at
the following addresses, or at such other addresses as the parties may designate
by written notice in the manner aforesaid:
If to STC Holdings or any
of the STC Shareholders: c/o ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
With a copy to: Jenkens & ▇▇▇▇▇▇▇▇▇,
a Professional Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
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If to Buyer: Matrix Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.:President
With a copy to: Jenkens & ▇▇▇▇▇▇▇▇▇,
a Professional Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
6.2 Assignability and Parties in Interest. This Agreement
shall not be assignable by any of the parties hereto, without the prior written
consent of the non-assigning party. This Agreement shall inure to the benefit of
and be binding upon Buyer, the STC Shareholders and STC Holdings and their
permitted successors and assigns.
6.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF COLORADO, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW
PRINCIPLES THEREOF.
6.4 Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which shall constitute but one and the same instrument.
6.5 Complete Agreement. This Agreement and the documents
delivered or to be delivered pursuant to, or in connection with, this Agreement
contain or will contain the entire agreement between the parties hereto with
respect to the transactions contemplated herein and shall supersede all previous
and contemporaneous oral and all previous written negotiations, commitments and
understandings.
6.6 Modifications, Amendments and Waivers. At any time
prior to the Closing or termination of this Agreement, the parties may, by
written agreement:
(a) extend the time for the performance of any
of the obligations or other acts of the parties hereto;
(b) waive any inaccuracies in the representations
and warranties contained in this Agreement or in any document delivered pursuant
to this Agreement;
(c) waive compliance with any of the covenants
or agreements contained in this Agreement; and
(d) amend or supplement any of the provisions of
this Agreement.
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6.7 Interpretation. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
6.8 Severability. Any provision of this Agreement which is
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of affecting in any way the remaining
provisions hereof in such jurisdiction or rendering that or any other provision
of this Agreement invalid, illegal or unenforceable in any other jurisdiction.
6.9 Survival. The representations and warranties contained
herein shall not survive the Closing, but nothing herein shall be construed to
limit or eliminate the ability of Buyer to pursue an action based upon
misrepresentations made with actual knowledge and/or fraud.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first written above.
STC HOLDINGS:
STC HOLDINGS, INC.
By:/s/
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
BUYER:
MATRIX CAPITAL CORPORATION
By:/s/
------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
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The STC Shareholders, by executing below, hereby join in the foregoing
Agreement to reflect their acknowledgment of and agreement to Paragraphs 1 and
2.
STC SHAREHOLDERS:
/s/
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ Family Trust
By: /s/
-----------------
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
/s/
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/
--------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
CORPDAL:61879.1 26059-00016
