EXHIBIT 10.3
INVESTMENT AGREEMENT
by and between
AJG FINANCIAL SERVICES, INC.
a Delaware corporation
and
INTREPID CAPITAL CORPORATION
a Delaware corporation
Dated as of December 31, 2001
TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINED TERMS...........................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Construction of Certain Terms and Phrases.......................................................4
ARTICLE 2 INVESTMENT TRANSACTION..................................................................................5
2.1 Bridge Loan.....................................................................................5
2.2 Issuance of the Class A Shares..................................................................5
2.3 Option to Purchase Common Stock.................................................................6
2.4 Registration Rights Agreement...................................................................6
2.5 Acquisition of Portfolio Investments............................................................6
2.6 Closing.........................................................................................7
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY...........................................................7
3.1 Organization; Good Standing.....................................................................7
3.2 Authority.......................................................................................7
3.3 Capitalization..................................................................................7
3.4 Binding Effect..................................................................................8
3.5 No Conflict.....................................................................................8
3.6 Property; Title.................................................................................9
3.7 Brokerage Fee...................................................................................9
3.8 Contracts.......................................................................................9
3.9 No Default.....................................................................................10
3.10 Required Consents..............................................................................11
3.11 Intellectual Property..........................................................................11
3.12 Litigation.....................................................................................12
3.13 Material Contracts.............................................................................12
3.14 Business Records...............................................................................12
3.15 Insurance......................................................................................12
3.16 Taxes..........................................................................................12
3.17 Accounting and Regulatory Controls.............................................................12
3.18 Dividends; Distribution........................................................................13
3.19 Employees......................................................................................13
3.20 No Material Adverse Effect.....................................................................13
3.21 Stabilization..................................................................................13
3.22 Financial Statements...........................................................................14
3.23 Pre-emptive Rights.............................................................................14
3.24 Investment Company.............................................................................14
3.25 Exchange Listing...............................................................................14
3.26 Full Disclosure................................................................................14
3.27 Use of Proceeds................................................................................14
3.28 Securities Laws................................................................................14
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF INVESTOR.............................................................15
4.1 Good Standing..................................................................................15
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4.2 Authority......................................................................................15
4.3 Binding Effect.................................................................................15
4.4 No Conflict....................................................................................15
4.5 Brokerage Fee..................................................................................16
4.6 Investment Representations.....................................................................16
4.7 Legends........................................................................................16
4.8 Accredited Investor............................................................................17
ARTICLE 5 ADDITIONAL COVENANTS AND AGREEMENTS....................................................................17
5.1 Publicity......................................................................................17
5.2 Due Diligence..................................................................................17
5.3 Expenses.......................................................................................18
5.4 Cooperation on Tax And Other Matters...........................................................18
5.5 Amendment to the Company's Organizational Documents............................................18
5.6 Board Representation...........................................................................19
ARTICLE 6 ACTION TO BE TAKEN AT CLOSING..........................................................................22
6.1 Action To Be Taken by the Company..............................................................22
6.2 Action To Be Taken By Investor.................................................................23
6.3 Form of Documents..............................................................................23
6.4 Further Assurances.............................................................................23
ARTICLE 7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.............................................................23
ARTICLE 8 INDEMNIFICATION........................................................................................24
8.1 Indemnification by the Company.................................................................24
8.2 Indemnification by Investor....................................................................24
8.3 Procedure for Indemnification..................................................................24
8.4 Excluded Liability.............................................................................25
ARTICLE 9 MISCELLANEOUS..........................................................................................25
9.1 Written Agreement to Govern....................................................................25
9.2 Severability...................................................................................26
9.3 Notices and Other Communications...............................................................26
9.4 Counterparts...................................................................................27
9.5 Facsimile Signatures...........................................................................27
9.6 No Third Party Beneficiaries...................................................................27
9.7 Interpretation.................................................................................27
9.8 Schedules and Exhibits.........................................................................28
9.9 Waiver of Provisions...........................................................................28
9.10 Modification...................................................................................28
9.11 Law to Govern; Jurisdiction....................................................................28
9.12 Successors and Assigns.........................................................................28
9.13 Specific Performance...........................................................................28
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A - Convertible Note Agreement
Exhibit B - Certificate of Amendment
Exhibit C - Option Agreement
Exhibit D - Registration Rights Agreement
Exhibit E - Standstill Agreement
Exhibit F - Letter Agreement
Exhibit G - Form of Opinion of the Company's Counsel
Schedule 3.3 - Capitalization
Schedule 3.7 - Brokerage Fee
Schedule 3.8(a) - Contracts
Schedule 5.5 - Officers and Directors
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INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (this "Agreement") is made and entered into
this 31st day of December, 2001 by and between AJG FINANCIAL SERVICES, INC., a
Delaware corporation ("Investor") and INTREPID CAPITAL CORPORATION, a Delaware
corporation (the "Company") (collectively, the "Parties", and each, a "Party").
R E C I T A L S
WHEREAS, the Company is pursuing acquisition opportunities relating to
an investment management firm for an acquisition price of approximately Six
Million Dollars ($6,000,000), one-half of which shall be payable in cash and
one-half of which shall be payable by the delivery of common stock of the
Company valued at not less than Three Dollars ($3.00) per share (the "Investment
Management Acquisition"), and a specialized bank that accepts customer deposits
and makes investments but does not provide ordinary commercial bank services
(the "Depository Bank Acquisition"); and
WHEREAS, Company desires to obtain a bridge loan from Investor in
connection with the Investment Management Acquisition, which loan would be
convertible into convertible preferred stock of the Company upon receipt of
appropriate stockholder approval authorizing the issuance of preferred stock of
the Company (the "Bridge Loan", as more fully described in SECTION 2.1 hereof);
and
WHEREAS, the Company desires to issue to Investor additional shares of
convertible preferred stock of the Company in connection with the Depository
Bank Acquisition and an option to purchase additional shares of the Company's
common stock in consideration for Investor's extension of the Bridge Loan and
for Investor's additional investment in connection with the Depository Bank
Acquisition, or another future investment.
NOW, THEREFORE, in consideration of Investor providing the Bridge Loan
to the Company, the mutual covenants and agreements of the parties and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the Parties hereby agree as
follows:
ARTICLE 1
DEFINED TERMS
1.1 DEFINED TERMS. Capitalized terms used but not otherwise
defined herein shall have the meanings given to such terms as follows:
"Additional Shares" means those shares of Convertible Class A Preferred
Stock issued by the Company to Investor in connection with the closing of the
Depository Bank Acquisition or an Alternate Acquisition, or more than one of
them, as more fully described in SECTION 2.2(B) hereof.
"Business Day" means any day other than (i) a Saturday or Sunday or
(ii) a day on which commercial banks in Chicago, Illinois are authorized or
required to be closed.
"Certificate of Amendment" means the Certificate of Amendment setting
forth the designations, rights, preferences and other terms of the Convertible
Class A Preferred Stock and attached hereto as EXHIBIT B.
"Claim" means a written demand, claim, complaint, cross-demand,
cross-claim, counterclaim, cross-complaint, summons, notice of violation,
arbitration notice, or other written notice, communication or action pursuant to
which a Person (including a Governmental Authority) (a) notifies another Person
that the first Person has suffered or incurred Losses for which the second
Person may be liable or responsible; (b) alleges that such second Person has
violated a Law or is otherwise liable or responsible for Losses arising under a
Law; (c) asserts legal, equitable, contractual or other rights or remedies
against such second Person; (d) institutes or commences a Proceeding against
such second Person; (e) otherwise makes any demand or claim on such second
Person; or (f) threatens to do any of the foregoing.
"Class A Shares" means all or such portion of the Initial Shares and
the Additional Shares, as applicable, all of which shall have the rights,
preferences and designations set forth in the Certificate of Amendment.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Shares" means the shares of common stock, par value $.01 per
share, of the Company received by Investor indirectly as a result of the
conversion of the Bridge Loan, upon conversion of any of the Class A Shares or
upon exercise of the Option.
"Consent" means any consents or approval of any Governmental Authority
or any other Person.
"Convertible Class A Preferred Stock" means the class of preferred
stock of the Company to be designated as Class A Cumulative Convertible
Pay-In-Kind Preferred Stock, par value $.01 per share, which shall have the
rights, preferences and designations set forth in the Certificate of Amendment.
"Convertible Note" means that certain Convertible Note issued by the
Company to Investor pursuant to the Convertible Note Agreement.
"Convertible Note Agreement" has the meaning set forth in SECTION 2.1
hereof.
"DGCL" means the Delaware General Corporation Laws, as amended from
time to time.
"GAAP" means generally accepted accounting principles as recognized by
the American Institute of Certified Public Accountants, as in effect from time
to time, consistently applied and maintained on a consistent basis for a Person
throughout the period indicated and consistent with such Person's prior
financial practice.
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"Governmental Authority" means any governmental department, commission,
board, bureau, agency, court or other instrumentality of any country, state,
province, county, parish or municipality, jurisdiction, or other political
subdivision thereof.
"Holder" means Investor, or if Investor shall have transferred its
rights hereunder to any unaffiliated third party, "Holder" shall mean the
holders of at least 66 2/3% of the Common Shares.
"Initial Shares" means those shares of Convertible Class A Preferred
Stock into which the Convertible Note is convertible in connection with the
closing of the Investment Management Acquisition, as more fully described in
SECTION 2.2(A) hereof.
"Law" means any applicable constitutional provision, statute, act, code
(including the Code), law, regulation, rule, ordinance, order, decree, ruling
proclamation, resolution, judgment, decision, declaration, or interpretative or
advisory opinion or letter of a Governmental Authority having valid
jurisdiction.
"Letter Agreements" means the Letter Agreements executed by the
Company's officers and directors with respect to voting shares of the Company's
common stock, as set forth in SECTION 5.5 hereof.
"Lien" means all burdens, encumbrances and defects affecting the
ownership of an asset, including (a) liens, security interests, mortgages, deeds
of trust, pledges, conditional sale or trust receipt arrangement, consignment or
bailment for security purposes, finance lease, or other encumbrances of any
nature whatsoever securing any obligation, whether such interest is based on
common law, statute or contract; (b) any rights of first refusal or any
restriction on use, voting, transfer, receipt of income or exercise of any other
attribute of ownership; and (c) any other reservations, exceptions, covenants,
conditions, restrictions, leases, subleases, licenses, easements, servitudes,
occupancy agreements, equities, charges, assessments, defects in title,
liabilities, claims, agreements, obligations, encroachments and other burdens,
and other title exceptions and encumbrances affecting property of any nature,
whether accrued or unaccrued, absolute or contingent, legal or equitable, real
or personal, or otherwise.
"Losses" means losses, liabilities, assessments, cleanup, removal,
remediation and restoration obligations, judgments, awards, damages, natural
resource damages, contribution, cost-recovery and compensation obligations,
fines, fees, penalties, and costs and expenses (including litigation costs and
attorneys' and experts' fees and expenses).
"Material Adverse Effect" means any event that would cause a material
adverse change or any development involving a prospective material adverse
change in the business, prospects, properties, operations, condition (financial
or other) or results of operations of the Company and its subsidiaries taken as
a whole, whether or not arising from transactions in the ordinary course of
business.
"NASD" means the National Association of Securities Dealers, Inc.
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"Option" means the option granted by the Company to Investor to
purchase shares of the Company's common stock pursuant to the Option Agreement.
"Option Agreement" has the meaning set forth in SECTION 2.3 hereof.
"Permit" means any permit, certificate, license, franchise,
authorization, variance, exemption, concession, lease, instrument, order,
consent, authorization or approval of any Governmental Authority.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization, or other
entity.
"Proceeding" means a judicial, administrative or arbitral proceeding
(including a lawsuit or an investigation by a Governmental Authority),
commencing with the institution of such proceeding through the issuance, service
or delivery of the applicable Claim or other applicable event.
"Registration Rights Agreement" has the meaning set forth in SECTION
2.4 hereof.
"SEC" means the Securities and Exchange Commission.
"Standstill Agreement" means that certain Standstill Agreement by and
between Investor and the Company on the Closing Date, attached hereto as EXHIBIT
E.
"Target Companies" means the companies, or each of them, that are the
target for acquisition by the Company in each of the Investment Management
Acquisition, the Depository Bank Acquisition, and any Alternate Acquisition.
"Tax" or "Taxes" means any taxes, assessments, fees and other
governmental charges imposed by any Governmental Authority, including profits,
gross receipts, net proceeds, alternative or add-on minimum, ad valorem, value
added, turnover, sales, use, property, personal property (tangible and
intangible), environmental, stamp, leasing, lease, user, excise, duty,
franchise, capital stock, transfer, registration, license, withholding, social
security (or similar), unemployment, disability, payroll, employment, fuel,
excess profits, occupational, premium, windfall profit, severance, estimated, or
other tax of any kind whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not.
"Transaction Documents" means, collectively, the Convertible Note
Agreement, the Convertible Note, the Registration Rights Agreement, the
Certificate of Amendment, the Standstill Agreement, and the Option Agreement and
the Letter Agreements.
1.2 CONSTRUCTION OF CERTAIN TERMS AND PHRASES. Titles appearing at
the beginning of any Articles, Sections, subsections, or other subdivisions of
this Agreement are for convenience only, do not constitute any part of such
Articles, Sections, subsections or other subdivisions, and shall be disregarded
in construing the language contained therein. The words
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"this Agreement," "herein," "hereby," "hereunder," and "hereof," and words of
similar import, refer to this Agreement as a whole and not to any particular
subdivision unless expressly so limited. The words "this Article," "this
Section," "this subsection" and words of similar import, refer only to the
Articles, Sections or subsections hereof in which such words occur. The word
"or" is not exclusive, and the word "including" (in its various forms) means
"including without limitation." Pronouns in masculine, feminine, or neuter
genders shall be construed to state and include any other gender and words,
terms, and titles (including terms defined herein) in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
expressly requires. Unless the context otherwise requires, all defined terms
contained herein shall include the singular and plural and the conjunctive and
disjunctive forms of such defined terms, and the term "Exhibit" or "Schedule"
shall refer to an Exhibit or Schedule attached to this Agreement. All references
to the Code, U.S. Treasury regulations or other governmental pronouncements
shall be deemed to include references to any applicable successor statute,
regulations or amending pronouncement.
ARTICLE 2
INVESTMENT TRANSACTION
2.1 BRIDGE LOAN. If Investor shall approve of the terms and
conditions of the Investment Management Acquisition, then contemporaneously with
the execution of this Agreement and with the closing of the Investment
Management Acquisition, and as consideration for the Company's agreements
hereunder, Investor shall loan to the Company, as a Bridge Loan in connection
with the Investment Management Acquisition, an amount equal to Three Million
Five Hundred Thousand Dollars ($3,500,000) pursuant to the terms and conditions
of that certain Convertible Note Agreement between the Company and Investor, to
be dated as of the Closing Date (the "Convertible Note Agreement"), the form of
which is attached hereto as EXHIBIT A.
2.2 ISSUANCE OF THE CLASS A SHARES.
(a) Upon receipt by the Company of the necessary
stockholder approval for the authorization of preferred stock of the
Company as provided herein, then the Company shall issue to Investor
One Million One Hundred Sixty-Six Thousand Six Hundred Sixty-Six
(1,166,666) shares of Convertible Class A Preferred Stock having the
designations, rights and preferences set forth on the Certificate of
Amendment attached hereto as EXHIBIT B (the "Initial Shares") in
conversion of and consideration for the cancellation of the
indebtedness under the Bridge Loan, as more fully set forth in the
Convertible Note Agreement.
(b) If and to the extent that the Company proceeds toward
a closing of the Depository Bank Acquisition, if (i) Investor shall
approve of the terms and conditions of the Depository Bank Acquisition,
and (ii) the Company has obtained the necessary stockholder approval of
the authorization of the preferred stock of the Company as described
above, then contemporaneously with the closing of the Depository Bank
Acquisition, the Company shall issue to Investor an additional One
Million Five Hundred
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Thousand (1,500,000) shares of Convertible Class A Preferred Stock
having the designations, rights and preferences set forth on the
Certificate of Amendment attached hereto as EXHIBIT B (the "Additional
Shares"); provided, however, that if the Company does not proceed
toward a closing with respect to the Depository Bank Acquisition, then
the Company shall provide Investor with the right of first refusal to
purchase the aggregate amount of Additional Shares set forth above in
one or more transactions contemporaneously with closing of any other
acquisition, investment, funding, loan, joint venture or participation
consummated by the Company (each, an "Alternate Acquisition"), if
Investor shall approve of the terms and conditions thereof, in amounts
equal to 100% of the Company's interest therein; and provided, further,
that if Investor does not approve of the terms and conditions of any
such Alternate Acquisition (which approval or disapproval will not be
unreasonably delayed), that the Company may obtain financing for such
Alternate Acquisition from a third party. The aggregate consideration
for the Additional Shares issued in connection with the Depository Bank
Acquisition and/or one or more Alternate Acquisitions shall be an
amount equal to Four Million Five Hundred Thousand Dollars
($4,500,000).
2.3 OPTION TO PURCHASE COMMON STOCK. In consideration for the
making of the Bridge Loan and the execution of this Agreement, the Company
hereby grants to Investor the right, privilege and option, for a period of three
(3) years from the date hereof, to purchase that number of shares of common
stock of the Company which, when issued and taking into account the other
amounts of common stock of the Company then owned by Investor (for this purpose,
shares of common stock issuable to Investor upon full conversion of the
Convertible Class A Preferred Stock then held by Investor to Common Shares),
shall result in Investor owning fifty-one (51%) of the issued and outstanding
common stock of the Company (the "Option"), in accordance with the terms and
conditions as set forth in the Option Agreement attached hereto as EXHIBIT C.
2.4 REGISTRATION RIGHTS AGREEMENT. As further consideration for
the making of the Bridge Loan and the execution of this Agreement, the Company
shall grant certain registration rights to Investor with respect to the Common
Shares of the Company that Investor will own upon conversion of any of the
Convertible Class A Preferred Stock then held by Investor or upon the exercise
of the Option, in accordance with the terms and conditions as set forth in the
Registration Rights Agreement attached hereto as EXHIBIT D.
2.5 ACQUISITION OF PORTFOLIO INVESTMENTS. If Investor and the
Company agree that the Company shall acquire certain minority investments held
by the Investor in investment-related entities, then the Company shall acquire
such minority investments in such entities in consideration for seven (7) year
promissory notes. The terms and conditions of such acquisitions and such notes
shall be agreed to by Investor and the Company and the notes related thereto
shall be payable only from earnings generated by such minority investments.
2.6 CLOSING. The execution of this Agreement, the consummation of
the Bridge Loan, the grant of the Option and the execution of the Registration
Rights Agreement and the Standstill Agreement (the "Closing") shall take place
at the offices of the Company,
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commencing at 10:00 a.m. local time on the 31st of December, 2001, or upon such
time and date and at such other place as the Parties may hereafter mutually
agree (the "Closing Date").
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Investor as of the date
hereof, as of the Closing Date, upon the issuance of any Convertible Class A
Preferred Stock and upon the issuance of any Common Shares pursuant to the
exercise of the Option, as follows:
3.1 ORGANIZATION; GOOD STANDING. Each of the Company and its
subsidiaries has been duly organized and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation. Each of the
Company and its subsidiaries is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the nature or conduct of its business
makes such qualification necessary, except for those failures to be so qualified
or in good standing which do not and would not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect. Each of the
Company, its subsidiaries and, as applicable, its principals, agents and
employees, has all requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, qualifications, licenses and
permits of and from all public, regulatory or governmental agencies and bodies,
including the SEC and the NASD, all applicable self-regulatory organizations and
all applicable state securities regulatory agencies or authorities, to own,
lease and operate its properties and conduct its business as now being conducted
and as expected to be conducted in the foreseeable future, except where the
failure to do so does not and would not reasonably be expected to have a
Material Adverse Effect; provided, however, that the foregoing exception shall
not apply to any necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from the SEC and the
NASD.
3.2 AUTHORITY. The Company has the requisite power and authority
to execute and deliver this Agreement and to perform its obligations hereunder.
The execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby have been
duly authorized by all requisite corporate action on the part of the Company.
3.3 CAPITALIZATION. The authorized capital stock of the Company
consists of 15,000,000 shares of common stock, par value $.01 per share. As of
the date of this Agreement, after the consummation of the Investment Management
Acquisition, there are 3,350,183 shares of Company common stock issued and
outstanding. All of such outstanding shares of the Company's common stock are
duly authorized, validly issued, fully paid and nonassessable, with no personal
liability attaching to the ownership thereof, and have not been issued in
violation of any pre-emptive rights. Except for the Convertible Note being
issued as of the date hereof, and except as disclosed on SCHEDULE 3.3 hereto,
there are no outstanding securities of the Company convertible into or
evidencing the right to purchase or subscribe for any shares of stock of the
Company. Except for the Convertible Note Agreement and the Option Agreement
between the Company and Investor, each dated as of the date hereof, and except
as disclosed on SCHEDULE 3.3 hereto, there are no outstanding or authorized
options, warrants, calls, subscriptions, rights, commitments or any other
agreements of any character obligating the Company to issue any
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shares of its stock or any securities convertible into or evidencing the right
to purchase or subscribe for any shares of such stock, and there are no
agreements or understandings with respect to the voting, sale or transfer of any
shares of stock of the Company to which the Company is a party. All of the Class
A Shares, and any portion thereof, when issued, delivered and sold as
contemplated by this Agreement, will be duly and validly authorized, issued and
outstanding, fully paid and nonassessable, and will not have been issued in
violation of or be subject to any pre-emptive rights, except such rights as have
been waived. The Company had an authorized and outstanding capitalization at
December 31, 2000 as set forth in the financial statements and notes thereto
included in the Form 10-KSB for the fiscal year ending December 31, 2000 (the
"Year 2000 Annual Report") and, at September 30, 2001, as set forth in the
financial statements and notes thereto included in the Form 10-QSB for the
period ended September 30, 2001 (the "3rd Quarter Periodic Report"), and such
capitalization has not changed since the 3rd Quarter Periodic Report. The shares
of common stock of the Company conform to the descriptions thereof contained in
the Year 2000 Annual Report. With respect to subsequent issuances of Convertible
Class A Preferred Stock or Common Shares issuable upon exercise of the Option,
this representation shall relate to the most recent annual and quarterly
periodic report of the Company, as applicable, under the Securities Exchange Act
of 1934, as amended.
3.4 BINDING EFFECT. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and subject to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity).
3.5 NO CONFLICT. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or result in the creation
or imposition of any Lien, charge or encumbrance upon any properties or assets
of the Company or any of its subsidiaries pursuant to, any agreement,
instrument, franchise, license or permit to which the Company or any of its
subsidiaries is a party or by which any of such entities or their respective
properties or assets may be bound, except where such conflict, breach or default
does not and would not reasonably be expected to have a Material Adverse Effect;
or (ii) violate or conflict with any provision of the then current certificate
of incorporation or by-laws of the Company or any of its subsidiaries or any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their respective properties or assets.
3.6 PROPERTY; TITLE. The Company and its subsidiaries own no real
property and have good and marketable title to all personal property owned by
them which is material to the business of the Company and its subsidiaries, in
each case free and clear of all liens, encumbrances and defects, except such as
do not materially affect the value of such property and do not materially
interfere with the use made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions
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as are not material and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries.
3.7 BROKERAGE FEE. Except as disclosed on SCHEDULE 3.7 hereto,
neither the Company nor any of its subsidiaries have incurred any liability to
any broker, finder or agent in connection with the transactions contemplated by
this Agreement and, in any event, the Company shall be responsible for the
payment of any and all such fees.
3.8 CONTRACTS.
(a) SCHEDULE 3.8(A) constitutes a full and complete list
of each contract or agreement to which the Company is a party or by
which the Company is bound, whether oral or written ("Contracts"),
including, without limitation, any and all:
(i) contracts or agreements for the disposition,
by sale, lease or otherwise, of equipment, goods, materials,
research and development, supplies, studies or capital assets,
or for the performance of services involving at least $10,000;
(ii) contracts or agreements for the joint
performance of work or services, and all other joint venture,
partnership or other similar agreements;
(iii) powers of attorney or similar authorizations
granted by the Company to any third party;
(iv) licenses, sublicenses, royalty agreements
and any other contract or agreement to which the Company is a
party, or otherwise subject, relating to technical assistance,
intellectual property rights, confidentiality, non-disclosure,
non-use or other similar contracts or agreements;
(v) leases, whether as lessor or lessee, with
respect to individual items of real or personal property
involving at least $10,000;
(vi) contracts or agreements for the purchase of
any equipment, capital assets or services, except individual
service orders made in the ordinary course of business
involving less than $25,000;
(vii) requirements contracts or agreements in
which the Company is the purchaser or the seller;
(viii) any material contract or agreement, not of
the type covered by or excluded from any of the other items of
this SECTION 3.8, which by its terms is either not to be
completely performed by the Company within thirty (30) days of
the date hereof or is not to terminate or is not terminable by
the Company without penalty to the Company prior to thirty
(30) days from the date hereof; and
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(ix) any other contract or agreement which by its
terms, is either not to be completely performed by the Company
within twelve (12) months of the date hereof or is not to
terminate, or is not terminable by the Company, without
penalty to the Company, prior to twelve (12) months from the
date hereof.
(b) The Company has made available to Investor or
representatives of Investor, for their review and examination, written
summaries of all oral contracts and agreements referred to in this
SECTION 3.8 and all of the written contracts and agreements referred to
in this SECTION 3.8, and have provided true and correct copies of all
of such written contracts and agreements, and all written summaries of
oral contracts are accurate in all material respects. As used in this
Agreement, the terms "contract" and "agreement" each mean and include
every contract, agreement, commitment, understanding and promise,
whether written or oral.
3.9 NO DEFAULT. The Company and each of its subsidiaries have in
all respects performed, or are now performing, the obligations of, and are not
in violation or default (and would not by the lapse of time and/or the giving of
notice be in violation or default), nor have any of them received notice of
violation or default or notice of termination, in respect of (i) any provision
of its certificate of incorporation or by-laws (or other organizational
documents), (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its property
is subject, except where such violation, default or termination does not or
would not reasonably be expected to have a Material Adverse Effect, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any Governmental
Authority, including, without limitation, the SEC, the NASD, self-regulatory
organizations, and any applicable state securities regulatory authorities or
agencies, having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except where such violation, default or termination
does not or would not reasonably be expected to have a Material Adverse Effect;
provided, however, that the foregoing exception shall not apply to any statute,
law, rule, regulation, judgment, order or decree of the SEC, the NASD,
self-regulatory organizations and any applicable state securities regulatory
authorities or agencies. Each of the contracts, agreements or other instruments
required to be shown on the Schedules referred to in this Agreement is in full
force and effect and is a legal, binding and enforceable obligation of or
against the Company and, to the knowledge of the Company, each other party
thereto. No party with whom the Company has an agreement, contract or commitment
is in material default thereunder or has breached any material terms or
provisions thereof and no third party has raised any Claim, dispute or
controversy with respect to such agreements, contracts or commitments which is
still pending.
3.10 REQUIRED CONSENTS. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any court or
any Governmental Authority having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets is required for the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, including the issuance, sale and delivery of
the Class A Shares or the Common Shares to be issued, sold and delivered by the
Company hereunder, other than the approval of the stockholders and the filing of
those Proposed
10
Amendments as shall be required by applicable law or the certificate of
incorporation or by-laws of the Company as contemplated by SECTION 5.5 hereto,
and such consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state securities
or Blue Sky laws and the rules of the NASD.
3.11 INTELLECTUAL PROPERTY. The Company and its subsidiaries own,
possess, license or have rights to use all patents, patent applications, trade
and service marks, trade and service xxxx registrations, trade names,
copyrights, licenses, inventions, technology, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of the
Company's business as now conducted. There is no (i) pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any such Intellectual Property, and
the Company is unaware of any facts which would form a reasonable basis for any
such claim; (ii) pending or, to the Company's knowledge, threatened action,
suit, proceeding or claim by others challenging the validity or scope of any
such Intellectual Property, and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (iii) pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others that the
Company infringes or otherwise violates any patent, trademark, copyright, trade
secret or other proprietary rights of other, and the Company is unaware of any
other fact which would form a reasonable basis for any such claim; or (iv) prior
art of which the Company is aware that may render any U.S. patent held by the
Company invalid or any U.S. patent application held by the Company unpatentable
which has not been disclosed to the U.S. Patent and Trademark Office. To the
Company's knowledge, there is no (x) material infringement by third parties of
any such Intellectual Property, and (y) U.S. patent or published U.S. patent
application which contains claims that dominate or may dominate any Intellectual
Property as being owned by or licensed to the Company or that interferes with
the issued or pending claims of any such Intellectual Property. True and correct
copies of all material licenses and other material agreements between the
Company, its subsidiaries and any third parties relating to the Intellectual
Property, and all amendments and supplements thereto, have been provided to
Investor or its counsel.
3.12 LITIGATION. There is no Proceeding, nor any order, decree or
judgment pending or, to the knowledge of the Company, threatened, against,
affecting or involving the Company or its subsidiaries or the transactions
provided for in this Agreement, at law or in equity, or before or by any court,
arbitrator or Governmental Authority. The Company is not operating under or
subject to an order, award, judgment, writ, decree, determination or injunction
of any court, arbitrator or Governmental Authority. Neither the Company nor any
of its subsidiaries has received a Claim or any written notice of a Claim with
respect to the Company or any of its subsidiaries.
3.13 MATERIAL CONTRACTS. Other than as provided for herein, there
are no contracts, agreements, commitments or other arrangements which exist on
the Closing Date and are related to the Company which will be binding on or
otherwise obligate Investor on or after the Closing Date.
11
3.14 BUSINESS RECORDS. No material records of accounts,
acquisitions, dispositions, personnel records, stock records or other business
records related to the Company or any of its subsidiaries ("Records") have been
destroyed within the last five (5) years, other than in the ordinary course of
business consistent with past practice, and there exists no such Records other
than those Records delivered by the Company to Investor on or prior to the
Closing Date. The Company has not failed to include, and has no knowledge that
any other Person has failed to include, in the Records any information, the
omission of which from the Records would make them inaccurate or misleading in
any material respect. Neither the Company, nor any Person acting on behalf of
the Company or any of its subsidiaries has prepared Records that are misleading
in any material respect.
3.15 INSURANCE. The Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as (i) the Company believes are prudent and
customary in the businesses in which it is engaged, and (ii) are consistent with
insurance coverage maintained by similar companies in similar businesses.
Neither the Company nor any such subsidiary has been refused any insurance
coverage sought or applied for, and neither the Company nor any such subsidiary
has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a
cost that would not reasonably be expected to result in a Material Adverse
Effect.
3.16 TAXES. There are no transfer taxes or other similar fees or
charges under any Laws required to be paid in connection with the execution and
delivery of this Agreement or the issuance by the Company or sale by the Company
of the Class A Shares or the Common Shares.
3.17 ACCOUNTING AND REGULATORY CONTROLS. The Company and each of
its subsidiaries maintain a system of internal accounting and regulatory
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences, and (v) requirements as to qualifications,
transactions and record-keeping of the SEC, the NASD, any self-regulatory
organization to which the Company or its subsidiaries are subject or any
applicable state securities regulatory authorities or agencies are complied
with.
3.18 DIVIDENDS; DISTRIBUTION. Except as prohibited or restricted by
the SEC or any inter-dealer quotation system or exchange, or any commission,
board, agency or body that is charged with the supervision or regulation of
brokers, dealers, securities underwriting or trading, stock exchanges,
commodities exchanges, insurance companies or agents, investment companies or
investment advisers, no subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such
12
subsidiary from the Company or from transferring any of such subsidiary's
property or assets to the Company or any other subsidiary of the Company.
3.19 EMPLOYEES. No labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing, threatened or imminent
labor dispute or disturbance by the employees of any of its principal customers,
suppliers, contractors or providers of outsourced services that might reasonably
be expected to have a Material Adverse Effect.
3.20 NO MATERIAL ADVERSE EFFECT. Subsequent to the respective dates
as of which information is given in the Year 2000 Annual Report, except as
disclosed in the Year 2000 Annual Report, or as updated or superseded by the 3rd
Quarter Periodic Report, there has been no Material Adverse Effect, and since
the date of the latest balance sheet presented in the Year 2000 Annual Report,
or as updated or superseded by the 3rd Quarter Periodic Report, neither the
Company nor any of its subsidiaries has incurred or undertaken any liabilities
or obligations, direct or indirect, which are material to the Company and its
subsidiaries taken as a whole, except for liabilities or obligations which are
reflected in the Year 2000 Annual Report, or as updated or superseded by the 3rd
Quarter Periodic Report. With respect to subsequent issuances of Convertible
Class A Preferred Stock or Common Shares issuable upon exercise of the Option,
this representation shall relate to the most recent annual and quarterly
periodic report of the Company, as applicable, under the Securities Exchange Act
of 1934, as amended.
3.21 STABILIZATION. The Company has not taken, and will not take
upon issuance of any of the Class A Shares or the Common Shares, directly or
indirectly, any action designed to cause or result in, or which constitutes or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of shares of common stock of the Company to facilitate
the sale or resale of the Common Shares.
3.22 FINANCIAL STATEMENTS. The financial statements set forth in
the Year 2000 Annual Report and in the 3rd Quarter Periodic Report, including
the notes thereto, present fairly the consolidated financial position of the
Company and its subsidiaries as of the dates indicated and the consolidated
results of their operations and cashflows for the periods specified, except that
the financial statements set forth in the 3rd Quarter Periodic Report are
subject to normal non-material year-end audit adjustments and accruals; said
financial statements have been prepared in conformity with GAAP applied on a
consistent basis. With respect to subsequent issuances of Convertible Class A
Preferred Stock or Common Shares issuable upon exercise of the Option, this
representation shall relate to the most recent annual and quarterly periodic
report of the Company, as applicable, under the Securities Exchange Act of 1934,
as amended.
3.23 PRE-EMPTIVE RIGHTS. No holder of securities of the Company has
any pre-emptive rights to purchase the securities of the Company because of the
filing of a Registration Statement pursuant to the Registration Rights Agreement
or otherwise in connection with the sale or issuance of the Convertible Class A
Preferred Stock or Common Shares issuable upon exercise of such Convertible
Class A Preferred Stock or the Option contemplated hereby.
13
3.24 INVESTMENT COMPANY. The Company is not, and upon consummation
of the transactions contemplated hereby will not be, subject to registration as
an "investment company" under the Investment Company Act of 1940.
3.25 EXCHANGE LISTING. The common stock of the Company trades on
the over-the-counter market and is quoted on the NASDAQ OTC Bulletin Board under
the symbol "ICAP".
3.26 FULL DISCLOSURE. No information contained in this Agreement or
any written statement furnished by or on behalf of the Company, which has
previously been delivered to the Investor, contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading at the time and in light of the
circumstances under which made.
3.27 USE OF PROCEEDS. The proceeds of the issuance of the
Convertible Note at the Closing shall be used by the Company to pay the cash
portion ($2,825,942) of the purchase price in connection with the Investment
Management Acquisition and to pay the Company's costs and expenses in connection
with such acquisition and for working capital purposes.
3.28 SECURITIES LAWS. In reliance on the investment representation
contained in SECTION 4.6, and subject to SECTION 4.7, the offer, issuance, sale
and delivery of the Convertible Note Agreement and the Initial Shares issuable
upon conversion thereof, and the Common Shares issuable upon conversion of the
Initial Shares, as provided in this Agreement and the Convertible Note
Agreement, are exempt from the registration requirements of the Securities Act
of 1933, as amended, and all applicable state securities laws. The Company has
filed with the SEC all material contracts, amendments to the Company's
certificate of incorporation, and other documents required to be filed.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor hereby represents and warrants to the Company as of the date
hereof, upon issuance of any Class A Shares and upon the issuance of any Common
Shares pursuant to the exercise of the Option, as follows:
4.1 GOOD STANDING. Investor is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and is duly qualified to transact business and to own, lease and operate its
properties in, and is in good standing under the Laws of, all other
jurisdictions where such qualification is required by Law, except where the
failure to do so does not have a Material Adverse Effect on Investor.
4.2 AUTHORITY. Investor has the requisite power and authority to
execute and deliver this Agreement and the documents and instruments referred to
herein, and to perform its obligations hereunder and thereunder. The execution,
delivery and performance of this Agreement and the documents and instruments
referred to herein, by Investor and the
14
consummation by Investor of the transactions contemplated hereby and thereby
have been duly authorized by all requisite corporate action on the part of
Investor.
4.3 BINDING EFFECT. This Agreement has been duly executed and
delivered by Investor and constitutes the legal, valid and binding obligation of
Investor, enforceable against Investor in accordance with its terms, except to
the extent that enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
4.4 NO CONFLICT. Neither the execution and delivery of this
Agreement by Investor nor the performance of its obligations hereunder will
conflict with or result in a breach of any of the provisions of, or constitute a
default under, the certificate of incorporation or by-laws of Investor, as
amended to date, or violate, conflict with, or result in a violation or breach
of, or constitute a default (with or without due notice or lapse of time or
both) under, or permit the termination of, or result in the acceleration of, or
entitle any Person to accelerate any obligation, or result in the loss of any
benefit, or give any Person the right to require any security to be repurchased,
or affect its rights under any of the terms, conditions, or provisions of any
loan or credit agreement, note, bond, mortgage, indenture, or deed of trust, or
any license, lease, agreement, or other instrument or obligation to which
Investor may be bound or subject, or violate any applicable Law.
4.5 BROKERAGE FEE. Investor has not engaged, or incurred any
liability to, any broker, finder or agent in connection with the transactions
contemplated by this Agreement.
4.6 INVESTMENT REPRESENTATIONS. Investor represents and warrants
that it is purchasing the Convertible Note and the Initial Shares issuable upon
conversion thereof and the Common Shares issuable upon conversion of the Initial
Shares (collectively, the "Securities") for its own account, for investment
purposes and not with a view to the distribution thereof. Investor agrees that
it will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of any of the Securities (or solicit any offers
to buy, purchase, or otherwise acquire or take a pledge of any of the
Securities), except in compliance with the Securities Act of 1933, as amended
(the "Act"), and the rules and regulations thereunder. In determining to proceed
with the transactions contemplated hereby, Investor has relied solely on the
results of Investor's own independent investigation with respect to the Company,
the Common Shares, the Initial Shares and the Additional Shares, upon the
representations, warranties, covenants and statements of the Company set forth
herein and in the other Transaction Documents and in Investor's own independent
investigation of the Company's business. Investor acknowledges that the
representations, warranties, covenants and statements to Investor by the Company
set forth herein and in the other Transaction Documents constitute the sole and
exclusive representations, warranties, covenants and statements of the Company
or any of its officers, directors, stockholders of other affiliates in
connection with the transactions contemplated hereby, and Investor understands,
acknowledges and agrees that all other representations, warranties, covenants
and statements of any kind or nature, whether oral or contained in any writing
other than this Agreement and any Exhibit or Schedule hereto and in the other
15
Transaction Documents and any Exhibit or Schedule thereto are specifically
disclaimed by the Company.
4.7 LEGENDS. It is understood that the Convertible Note being
issued under the Convertible Note Agreement (and the Initial Shares issuable
upon conversion thereof and the Common Shares issuable upon conversion of the
Initial Shares) will bear a legend substantially similar to the following:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR REGISTERED OR OTHERWISE QUALIFIED FOR
SALE UNDER ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED OR SOLD OR OFFERED FOR SALE OR OTHERWISE TRANSFERRED,
PLEDGED, HYPOTHECATED OR DISPOSED OF UNLESS IT HAS BEEN REGISTERED
UNDER THE ACT AND REGISTERED OR OTHERWISE QUALIFIED FOR SALE UNDER SUCH
STATE SECURITIES LAWS OR AN EXCEPTION FROM REGISTRATION THEREUNDER IS
AVAILABLE."
4.8 ACCREDITED INVESTOR. Investor is an Accredited Investor within
the definition set forth in Rule 501(a) under the Act.
ARTICLE 5
ADDITIONAL COVENANTS AND AGREEMENTS
In consideration of the representations, warranties and other
agreements contemplated hereunder, the Parties hereby undertake the following
additional covenants and agreements:
5.1 PUBLICITY. Except for statements made or press releases issued
(i) pursuant to the Securities Act of 1933 or the Securities Exchange Act of
1934 and/or any rules and regulations promulgated hereunder, (ii) pursuant to
any listing agreement with any "national securities exchange," "national market
system" (as such terms are used under the Securities Exchange Act of 1934, as
amended) or other principal securities exchange on which the shares of common
stock of the Company are then listed, or the NASD, (iii) pursuant to the Bank
Holding Company Act of 1956, the Xxxxx-Xxxxx-Xxxxxx Act and/or any rules and
regulations promulgated thereunder, or (iv) as otherwise required by law, no
Party shall issue any press release or otherwise make any public statements with
respect to this Agreement or the transaction contemplated hereby without the
prior written consent of the other Party, such consent not to be unreasonably
withheld; provided, however, that any Party proposing to make any statement or
press release in accordance with subsection (i), (ii), (iii) or (iv) of this
SECTION 5.1 shall first provide a copy of such proposed statement or press
release to the other Party at least twenty-four (24) hours prior to the time
such statement would be made or press release issued, and the Party not making
such statement or issuing such press release shall have the opportunity to
propose reasonable modifications to the proposed statement or press release. The
foregoing prohibition
16
does not apply to disclosure to any Governmental Authority or to a Party's
attorneys, accountants, lenders, bankers, investment bankers and employees.
5.2 DUE DILIGENCE. Upon the execution of this Agreement and from
time to time thereafter through the closing date of each of the Investment
Management Acquisition, the Depository Bank Acquisition, and each Alternate
Acquisition, the Company shall make available to Investor and its duly
authorized representatives, including, without limitation, Investor's
accountants and attorneys, complete and unrestricted access, during the
Company's and the Target Companies' normal business hours, to the premises,
books, records, data, properties, assets and personnel of the Company and the
Target Companies for such investigation, review and discussion as Investor or
such authorized representative shall deem reasonably necessary or appropriate.
Investor and each such duly authorized representative of Investor shall have the
right to make copies, extracts, analyses, compilations, photos, diagrams or
other recordation of such due diligence review materials, items or persons, as
the case may be, wherever same may be located. Any non-public or confidential
information pertaining to the Company or the Target Companies obtained by
Investor or its representatives as part of its due diligence investigation,
shall be kept in the strictest confidence and shall not be disclosed by the
Investor or its representatives to anyone without the Company's prior written
permission or as required by Law.
5.3 EXPENSES. Unless otherwise provided herein or in the
Transaction Documents, the Parties shall each be solely responsible for the fees
and disbursements of their respective counsel and other professional advisors.
Investor shall be responsible for all Taxes, if any, imposed by any Governmental
Authority arising as a result of the purchase of the Class A Shares or the
Common Shares by Investor.
5.4 COOPERATION ON TAX AND OTHER MATTERS. Investor and the Company
shall cooperate fully, as and to the extent reasonably requested by the other
Party, in connection with any audit, litigation or other proceeding with respect
to tax related or any other matters. Such cooperation shall include the
retention and (upon the other Party's request) the provision of records and
information that are reasonably relevant to any such audit, litigation or other
proceeding and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided
hereunder. Investor and the Company agree (a) to retain all books and records
with respect to tax matters relating to all taxable periods beginning before the
Closing Date until the expiration of the statute of limitations (and any
extensions thereof) of the respective taxable periods, and to abide by all
record retention agreements entered into with any taxing authority, and (b) to
give the other Party reasonable written notice prior to transferring, destroying
or discarding any such books and records. The Company, at its sole cost and
expense, will prepare and file a Form 13D or 13G, and any other forms required
to be filed with the SEC or NASD, on a timely basis, on behalf of Investor upon
review and execution by Investor, whenever necessary as determined by counsel to
the Company and/or Investor.
5.5 AMENDMENT TO THE COMPANY'S ORGANIZATIONAL DOCUMENTS. In
connection with, and in consideration for, Investor providing the Bridge Loan
and in contemplation of the issuance of the Class A Shares and the grant of the
Option, the Board shall use its best efforts to:
17
(a) On or prior to the Closing Date, duly adopt an
amendment to its certificate of incorporation to create a new class of
convertible preferred shares designated as Convertible Class A
Preferred Stock, as more fully set forth in the Certificate of
Amendment attached hereto as EXHIBIT B (the "Certificate of
Amendment"); and
(b) duly adopt an amendment to the Company's by-laws
to increase the number of members of the board of directors of the
Company to nine (9) and provide for the appointment of Investor's
designees to the board of directors of the Company as contemplated in
SECTION 2.5 hereof (the "By-Laws Amendment," collectively with the
Certificate of Amendment, the "Proposed Amendments"); and
(c) with respect to those Proposed Amendments that are
required by applicable law or by the Company's certificate of
incorporation and by-laws then in effect to be approved by the
stockholders of the Company, submit the Proposed Amendments to the
stockholders of the Company, in accordance with Section 242 of the
DGCL, and any other applicable Delaware and federal Laws, and the
Company's certificate of incorporation and by-laws then in effect,
prior to February 22, 2002 for the purpose of obtaining the stockholder
approval of the matters set forth in the Proposed Amendments, and shall
take any and all necessary, advisable and desirable actions required to
obtain such approval.
In furtherance of the Company's obligations set forth in this SECTION
5.5, each of the Company's officers and directors identified on SCHEDULE 5.5
hereto shall execute the Letter Agreement attached hereto as EXHIBIT F, whereby
each of them will agree to vote any and all shares of common stock of the
Company held or controlled by such person in favor of the Proposed Amendments.
Upon receiving the required stockholder approval, the Company shall file or
shall cause to be filed with the Delaware Secretary of State, the Certificate of
Amendment in the form attached hereto as EXHIBIT B constituting an Amendment to
the Company's Certificate of Incorporation, to reflect the adoption by the
Company upon the approval of the stockholders, of the Proposed Amendments as
soon thereafter as practicable. The Company shall promptly deliver or cause to
be delivered to Investor a certified copy of such Certificate of Amendment,
attached hereto as EXHIBIT B, constituting an Amendment to the Company's
Certificate of Incorporation as filed with the Delaware Secretary of State. If
the Proposed Amendments have not been approved and adopted by the Company and
its stockholders as provided herein by April 1, 2002, then the Bridge Loan shall
become due and payable in accordance with the terms of the Convertible Note.
5.6 BOARD REPRESENTATION. (a) In connection with the Bridge Loan,
the issuance of the Class A Shares and the Option, the Company will cause
Messrs. Xxxxx Xxxx and Xxxx Xxxxxxx to be elected to the Board as promptly as
practicable. Thereafter, until the date that Investor ceases to own beneficially
20% or more (on a fully-diluted basis with respect to common stock of the
Company beneficially owned by Investor, through its ownership of the
indebtedness representing the Bridge Loan, the Class A Shares, the Common
Shares, or otherwise, or any combination thereof) of the Company's common stock
as a result of a sale by Investor of Common Shares but not as a result of
additional issuances of common stock by the Company (i) management of the
Company shall recommend to the Board that such persons or any two (2) other
persons designated by Investor and reasonably acceptable to the Company be
included in
18
the slate of nominees recommended by the Board to stockholders for election as
directors at each annual meeting of stockholders of the Company commencing with
the annual meeting of stockholders next following the date hereof, and (ii) the
Company shall not cause the Board to exceed nine (9) members without the prior
written consent of Investor.
5.7 RIGHT OF FIRST REFUSAL. Prior to making any offer to sell,
sale or transfer of any shares of any class of stock of the Company or
securities exchangeable for or convertible into such shares of any class of
stock of the Company (collectively, the "Offered Stock"), the Company shall give
Investor the opportunity to purchase such Offered Stock in the following manner:
(a) The Company shall give notice (the "Offer Notice") to
Investor in writing of such intention, specifying the number of shares
proposed to be disposed of, the manner of such disposition, the name of
the prospective purchaser(s) and the proposed price therefor.
(b) Investor shall have the right, exercisable by written
notice given by Investor to the Company within ten (10) business days
after receipt of such Offer Notice, to purchase the number of Offered
Shares of the same class as the shares described in the Offer Notice
that would enable Investor to maintain, on a fully diluted basis,
ownership of fifty-one percent (51%) of the Company's common stock, for
cash at the proposed price set forth in such Offer Notice (the "Right
of First Refusal Shares"). If the purchase price specified in the Offer
Notice includes any property other than cash, such purchase price shall
be deemed to be the amount of any cash included in the purchase price
plus the value (as jointly determined by a nationally recognized
investment banking firm selected by each party or, in the event such
firms are unable to agree, a third nationally recognized investment
banking firm to be selected by them) of such other property included in
such price. For this purpose:
(i) The Parties shall use their best efforts to
cause any determination of the value of any securities
included in the purchase price to be made within three (3)
business days after the date of delivery of the Offer Notice.
If the firms selected by Investor and the Company are unable
to agree upon the value of any such securities within such
three-day period, the parties shall promptly select a third
firm whose determination shall be made within an additional
three-day period and shall be conclusive.
(ii) The Parties shall use their best efforts to
cause any determination of the value of property other than
securities to be made within seven (7) business days after the
date of delivery of the Offer Notice. If the firms selected by
Investor and the Company are unable to agree upon a value
within such seven-day period, the parties shall promptly
select a third firm whose determination shall be made within
an additional three-day period and shall be conclusive.
19
(iii) The date on which Investor must exercise its
right of first refusal shall be extended until three (3)
business days after the determination of the value of property
included in the purchase price.
(c) If Investor exercises its right of first refusal
hereunder, the closing of the purchase of the Right of First Refusal
Shares shall take place upon the date of closing of the disposition as
described in the Offer Notice, but in any event no earlier than ten
(10) Business Days after Investor gives notice of such exercise. Upon
exercise of its right of first refusal, and the subsequent completion
of a closing of the disposition of the Offered Shares at the price,
number and manner, and to the prospective purchaser(s) as described in
the Offer Notice, Investor shall be legally obligated to consummate the
purchase contemplated thereby, shall use its best efforts to secure all
approvals required in connection therewith, and shall be liable in
damages to the Company, including, without limitation, damages for the
Company's reasonable attorneys fees and expenses, if for any reason,
including, without limitation, the failure to obtain any requisite
approvals, the right of first refusal purchase is not consummated.
(d) If Investor does not exercise its right of first
refusal hereunder within the time specified for such exercise, the
Company shall be free during the period of ninety (90) calendar days
following the expiration of such time for exercise to sell such shares
specified in such Notice at the price specified therein or at any price
in excess thereof.
(e) In the case of options or SARs granted to employees,
directors, agents or consultants of the Company pursuant to an option
plan approved by the Board, notwithstanding anything to the contrary
set forth in this SECTION 5.7, Investor shall be granted corresponding
options at the equivalent exercise price and in the amount that would
enable Investor to maintain, on a fully diluted basis, ownership of
fifty-one percent (51%) of the Company's common stock in lieu of the
provisions of the remainder of this SECTION 5.7.
5.8 BASIC FINANCIAL INFORMATION AND REPORTING.
(a) The Company will maintain true books and records of
account in which full and correct entries will be made of all its
business transactions pursuant to a system of accounting established
and administered in accordance with GAAP consistently applied, and will
set aside on its books all such proper accruals and reserves as shall
be required under GAAP consistently applied.
(b) As soon as practicable after the end of each fiscal
quarter of the Company, and in any event within forty-five (45) days
thereafter, the Company will furnish to each Holder unaudited quarterly
financial statements of the Company, as at the end of such fiscal
quarter, prepared in accordance with GAAP consistently applied and
setting forth in comparative form the figures for the previous fiscal
quarter, all in reasonable detail.
(c) As soon as practicable after the end of each fiscal
year of the Company, and in any event within ninety (90) days
thereafter, the Company will furnish to each
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Holder audited annual financial statements of the Company, as at the
end of such fiscal year, prepared in accordance with GAAP consistently
applied and setting forth in comparative form the figures for the
previous fiscal year, all in reasonable detail.
5.9 INSPECTION RIGHTS. Each Holder shall have the right to visit
and inspect any of the properties of the Company or any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, and to review such information as is reasonably
requested all at such reasonable times and as often as may be reasonably
requested but during the Company's normal business hours upon forty-eight (48)
hours prior written notice; provided, however, that the Company shall not be
obligated under this SECTION 5.9 with respect to a competitor of the Company,
and (ii) with respect to information which the Board determines in good faith is
confidential and should not, therefore, be disclosed.
ARTICLE 6
ACTION TO BE TAKEN AT CLOSING
6.1 ACTION TO BE TAKEN BY THE COMPANY. At the Closing, the Company
or its officers and directors, as applicable, shall duly execute, where
appropriate, and deliver the following to Investor:
(a) the Convertible Note Agreement, in the form of
EXHIBIT A attached hereto; and
(b) the Option Agreement, in the form of EXHIBIT C
attached hereto; and
(c) the Registration Rights Agreement, in the form of
EXHIBIT D attached hereto; and
(d) the Standstill Agreement, in the form of EXHIBIT E
attached hereto; and
(e) the Letter Agreements, in the form of EXHIBIT F
attached hereto; and
(f) a certificate of good standing of the Company issued
by the Secretary of State of each of Delaware and Florida and each
other state in which the Company is required to be qualified to
transact business; and
(g) a certificate of the secretary of the Company
certifying as to the organizational documents of the Company, the
actions of the Board, the incumbency of officers executing the
Transaction Documents, and other customary matters reasonably requested
by Investor; and
(h) a copy of the resolutions duly adopted by the Board
of Directors of the Company, authorizing the execution of this
Agreement, the adoption of the Proposed Amendments and the consummation
of the transactions contemplated hereby; and
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(i) a legal opinion from the Company's counsel as to due
formation, power, valid authorizations, due execution and legal, valid
and binding obligation of the Company as set forth on EXHIBIT G hereto,
which opinion shall also be delivered to Investor upon each issuance of
any of the Class A Shares or the issuance of Common Shares upon
exercise of the Option; and
(j) all other documents and instruments reasonably
requested by the other Party to effect the transactions contemplated by
this Agreement; provided that deliveries of identical documents to
those set forth herein made contemporaneously with the Closing by the
Company pursuant to Convertible Note Agreement shall satisfy these
delivery requirements.
6.2 ACTION TO BE TAKEN BY INVESTOR. At the Closing, Investor shall
duly execute, where appropriate, and deliver the following to the Company:
(a) the Convertible Note Agreement, in the form of
EXHIBIT A attached hereto; and
(b) the Standstill Agreement, in the form of EXHIBIT E
attached hereto; and
(c) the Registration Rights Agreement, in the form of
EXHIBIT D attached hereto; and
(d) all other documents and instruments reasonably
requested by the other Party to effect the transactions contemplated by
this Agreement.
6.3 FORM OF DOCUMENTS. All documents to be furnished at the
Closing which are not exhibits to this Agreement shall be in form and substance
reasonably satisfactory to the Company and Investor and their respective
attorneys.
6.4 FURTHER ASSURANCES. At any time at or after the Closing, each
of the Parties shall execute and deliver such instruments, assignments and other
documents as may be reasonably necessary to effectuate the transactions
contemplated by this Agreement or otherwise carry out the purpose of this
Agreement.
ARTICLE 7
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations, warranties, covenants and agreements contained in
this Agreement and in any instrument or document delivered pursuant to this
Agreement have been relied upon by the Parties and shall survive the Closing as
follows: (i) the representations and warranties contained in SECTION 3.3, the
representations, warranties, covenants and agreements contained in ARTICLE 5 and
ARTICLE 8, and any representation and warranty which was known to be untrue when
made, shall survive forever; and (ii) all other representations and warranties
shall survive
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for a period of two (2) years after the Closing Date (collectively, the
"Survival Period") and shall not survive thereafter; provided, however, any
Claim made prior to the expiration of the Survival Period shall survive until
the final resolution thereof, and the representations, warranties and covenants
contained in this Agreement shall in no way be affected by any investigation of
the subject matter thereof made by or on behalf of the Investor or the Company.
Nothing contained in this ARTICLE 7 shall affect or limit the
obligations of either Party to perform the obligations to be performed by it
hereunder after the Closing Date.
ARTICLE 8
INDEMNIFICATION
8.1 INDEMNIFICATION BY THE COMPANY.(a) The Company shall indemnify
defend and hold harmless Investor, and its directors, officers, employees,
affiliates and agents (collectively, "Indemnified Persons") against, and agrees
to hold each such Indemnified Person harmless from, any and all losses, claims,
damages and liabilities, including claims brought by any stockholder or former
stockholder of the Company, and related expenses, including reasonable counsel
fees and expenses, incurred by such Indemnified Person arising out of any claim,
litigation, investigation or proceeding (whether or not such Indemnified Person
is a party thereto) relating to any material breach or violation by the Company
of any representation, warranty, covenant or agreement of the Company set forth
in this Agreement or any Exhibit attached hereto and any transactions, services
or matters that are the subject of this Agreement or any Exhibit attached
hereto; provided, however, that such indemnity shall not apply to any such
losses, claims, damages, or liabilities or related expenses determined by a
court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Indemnified Person.
8.2 INDEMNIFICATION BY INVESTOR. Investor shall indemnify, defend
and hold harmless the Company and its directors, officers, employees, affiliates
and agents from and against all losses, claims, damages and liabilities,
including reasonable counsel fees and expenses, incurred by the Company with
respect to or in connection with the existence of any fact, circumstance or
condition constituting a material breach or violation of any of the
representations and warranties of Investor contained in this Agreement, or the
breach by Investor of any of its covenants and agreements contained in this
Agreement.
8.3 PROCEDURE FOR INDEMNIFICATION. If a complaint, claim or legal
action is brought or made by a third party ("Third Party Claim") as to which the
Company or Investor is entitled to indemnification hereunder ("Indemnified
Party"), the Indemnified Party shall give written notice of such Third Party
Claim to the indemnifying party ("Indemnifying Party") promptly after the
Indemnified Party receives notice thereof, which notice shall include a copy of
any letter, complaint or similar writing received by the Indemnified Party;
provided, however, that any failure to provide, or delay in providing such
notification shall not constitute a bar or defense to indemnification except to
the extent the Indemnifying Party has suffered actual material loss thereby.
23
The Indemnifying Party shall have the right to assume the defense of
such Third Party Claim with counsel reasonably satisfactory to the Indemnified
Party. After notice from the Indemnifying Party to the Indemnified Party of the
Indemnifying Party's election so to assume the defense of such Third Party
Claim, the Indemnifying Party shall not be liable to the Indemnified Party for
any legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense of such Third Party Claim except as hereinafter
provided. If the Indemnifying Party elects to assume such defense and selects
such counsel, the Indemnified Party may participate in such defense through its
own separate counsel, but the fees and expenses of such counsel shall be borne
by the Indemnified Party unless (i) otherwise specifically agreed in writing by
the Indemnifying Party, or (ii) counsel selected by the Indemnifying Party
determines that because of a conflict of interest between the Indemnifying Party
and the Indemnified Party such counsel for the Indemnifying Party cannot
adequately represent both parties in conducting the defense of such action (in
which case the Indemnifying Party shall not have the right to direct the defense
of such Third Party Claim on behalf of the Indemnified Party). In such event,
however, the Indemnifying Party shall not be held liable for any settlement
effected without the written consent of such Indemnifying Party.
The failure of the Indemnifying Party to notify an Indemnified Party of
its election to defend such Third Party Claim within twenty-one (21) days after
notice thereof was given to the Indemnifying Party shall be deemed a waiver by
the Indemnifying Party of its rights to defend such Third Party Claim.
If the Indemnifying Party assumes the defense of such Third Party
Claim, the obligations of the Indemnifying Party shall include taking all steps
reasonably necessary in the defense of such Third Party Claim and holding the
Indemnified Party harmless from and against any and all damages caused by or
arising out of any settlement or any judgment in connection with such claim or
litigation, subject to the limitations on liability set forth herein. The
Indemnifying Party may not settle such Third Party Claim without the consent of
the Indemnified Party unless such settlement involves solely the payment of
money and the giving of customary releases.
If the Indemnifying Party does not assume the defense of such Third
Party Claim in accordance with this Section, the Indemnified Party may defend
against such claim or litigation in such manner as it deems appropriate;
provided, however, that the Indemnified Party may not settle such Third Party
Claim without the prior written consent of the Indemnifying Party; provided,
further, that the Indemnifying Party may not withhold such consent unless it has
provided security of a type and in an amount reasonably acceptable to the
Indemnified Party for the payment of its indemnification obligations with
respect to such Third Party Claim. The Indemnifying Party shall promptly
reimburse the Indemnified Party for the amount of such settlement, or for the
amount of any judgment rendered with respect to such Third Party Claim, and for
all costs and expenses incurred by the Indemnified Party in the defense of such
claim, subject to the limitations on liability set forth herein.
8.4 EXCLUDED LIABILITY. In no event shall either Party be liable
to the other hereunder for (a) consequential damages, such as lost profits or
lost business opportunities, or (b) punitive damages.
24
ARTICLE 9
MISCELLANEOUS
9.1 WRITTEN AGREEMENT TO GOVERN. This Agreement, including the
agreements contemplated to be executed and performed hereunder, sets forth the
entire understanding between the Parties and supersedes all prior and
contemporaneous oral and written agreements between the Parties relating to the
subject matter contained herein or therein, and merges all prior and
contemporaneous discussions between them. No Party shall be bound by any
definition, condition, representation, warranty, covenant or provision other
than as expressly stated in this Agreement or in the other documents referred to
herein which form a part hereof.
9.2 SEVERABILITY. The Parties expressly agree that it is not the
intention of either Party to violate any public policy, statutory or common
laws, rules, regulations, treaties or decisions of any government or agency
thereof. If any provision of this Agreement is judicially or administratively
interpreted or construed as being so in violation, such provision shall be
inoperative and the remainder of this Agreement shall remain binding upon the
Parties hereto.
9.3 NOTICES AND OTHER COMMUNICATIONS. Any notice, demand, or
instruction (each referred to herein as "notice") given in connection with this
Agreement shall be in writing and shall be made by facsimile, or by hand
delivery, or by electronic transmission ("e-mail"), or by overnight delivery
service, or by certified mail, return receipt requested, postage prepaid,
addressed to the recipient at the appropriate address set forth below or to such
other address as may be hereafter specified by written notice given by a Party
to the other Party. Notice shall be considered given as of the earlier of the
date of actual receipt, or the date of the facsimile transmission without error,
or the date of hand delivery, or the date of delivery to the recipient's
computer, or one (1) business day after delivery to a nationally recognized
overnight delivery service, or three (3) business days after the date of
mailing, independent of the date of actual delivery or whether delivery is ever
in fact made, as the case may be, provided the giver of notice can establish
that notice was given as provided herein. Failure or delay in delivering a copy
of any notice to any person designated to receive a copy shall in no way
adversely affect the effectiveness of such notice.
If to the Company: Intrepid Capital Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Fax No.: 000-000-0000
25
With a copy to: Xxxxxx X. Xxx, Esq.
Xxxxxx & Xxxxxx
2700 International Tower
Peachtree Center
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Fax No.: 000-000-0000
If to Investor: AJG Financial Services, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Assistant General Counsel
Fax No.: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
Each notice, demand or request shall be effective upon personal
delivery, or upon confirmation of receipt of the applicable telecopy, or one (1)
Business Day after delivery to a reputable overnight carrier in accordance with
the foregoing, or three (3) Business Days after the date on which the same is
deposited in the United States mail in accordance with the foregoing. Rejection
or other refusal to accept or the inability to deliver because of changed
address of which no notice was given shall not adversely impact the
effectiveness of any such notice, demand or request. Service by personal
delivery upon the Company or Investor shall be valid only if delivered
personally to an officer of the Company or Investor, respectively. Any addressee
may change its address for notices hereunder by giving written notice in
accordance with this SECTION 10.3.
9.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, including counterparts bearing faxed signatures, and no
counterpart must contain the signature of both Parties as long as at least one
separate counterpart has been signed by each Party. Each counterpart shall
constitute an original instrument, but all such separate counterparts shall
constitute one and the same agreement.
9.5 FACSIMILE SIGNATURES. Evidence of the execution of this
Agreement by either Party may be by facsimile transmitted to the other Party.
The Parties intend that facsimile signatures shall have the same force and
effect as original signatures.
9.6 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement,
expressed or implied, is intended to confer upon any person, other than the
Parties hereto and their successors and permitted assigns, any rights or
remedies under or by reason of this Agreement.
26
9.7 INTERPRETATION. The headings in this Agreement are inserted
for convenience of reference only and shall not be a part of or control or
affect the meaning of this Agreement. Unless otherwise expressly stated herein,
all references herein to sections and paragraphs are to sections and paragraphs
in this Agreement and all references herein to Schedules and Exhibits are to
Schedules and Exhibits to this Agreement.
9.8 SCHEDULES AND EXHIBITS. The Schedules and Exhibits referred to
herein, and attached to this Agreement, are incorporated herein by such
reference as if fully set forth in the text hereof.
9.9 WAIVER OF PROVISIONS. The terms, covenants, representations,
warranties and conditions of this Agreement may be waived only by a written
instrument executed by the Party waiving compliance. The failure of either Party
at any time to require performance of any provisions hereof shall, in no manner,
affect the right at a later date to enforce the same. No waiver by either Party
of any condition, or any breach of any provision, term, covenant, representation
or warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or of the breach of any other provision,
term, covenant, representation or warranty of this Agreement.
9.10 MODIFICATION. The Parties to this Agreement may modify,
supplement or amend this Agreement in such manner as may be mutually agreed upon
by them in writing.
9.11 LAW TO GOVERN; JURISDICTION. This Agreement and any Claims,
Proceedings or disputes arising hereunder shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to the
conflict of laws rules thereof.
9.12 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the Parties hereto and their respective
successors and permitted assigns.
9.13 SPECIFIC PERFORMANCE. The Parties acknowledge that there would
be no adequate remedy at law if any Party fails to perform any of its
obligations hereunder, and accordingly agree that each Party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other Party under this
Agreement in accordance with the terms and conditions of this Agreement in any
court of the United States or any state thereof having jurisdiction.
Signature page follows.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its duly authorized officer on the day
and year first written above.
COMPANY:
INTREPID CAPITAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR:
AJG FINANCIAL SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
-------------------------
Title: Executive Vice President
-------------------------
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