Exhibit 10.18
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of November 6, 2003 (this
"Agreement"), by and between the ▇▇▇▇▇ First Revocable Trust (the
"Shareholder"), ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇").
WHEREAS, the Shareholder is the record and beneficial owner of 50
shares (the "G&G Shares") of common stock, $100.00 par value (the "Common
Stock"), of G & G Holdings, Inc., a Florida corporation (the "Company");
WHEREAS, the Shareholder desires to sell and ▇▇▇▇▇ desires to purchase
all of the Shares, all on the terms set forth in this Agreement and the
agreements referred to herein; and
WHEREAS, the Company owns a building (the "Property") located at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, covenants, agreements and conditions
hereinafter set forth, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. THE ▇▇▇▇▇ STOCK PURCHASE.
1.1. PURCHASE AND SALE OF ▇▇▇▇▇ SHARES. Simultaneously with the
execution of this Agreement and subject to, and on the terms and conditions of,
this Agreement, ▇▇▇▇▇ will purchase from the Shareholder and the Shareholder
will sell, transfer, convey, assign and deliver to ▇▇▇▇▇ all of the G&G Shares
owned by the Shareholder free and clear of all liens, claims, restrictions and
encumbrances of any kind whatsoever.
1.2. PURCHASE PRICE FOR THE SHARES. ▇▇▇▇▇ shall purchase the G&G Shares
for the aggregate consideration of (a) Two Hundred and Fifty Thousand Dollars
($250,000) in cash, which shall be paid to the Shareholder, by wire transfer to
an account previously designated by the Shareholder, (b) 5,100 shares
(collectively, the "Empire Shares") of common stock, $0.01 par value, of Empire
Financial Holding Company, a Florida corporation ("Empire Financial"), (c) a
promissory note in the principal amount of Five Hundred Thousand Dollars
($500,000) (the "▇▇▇▇▇ Indebtedness"), (d) 100,000 shares of convertible
preferred stock, $.01 par value, of Empire Financial and (e) an additional
amount of cash equal to one half of the cash in all accounts of the Company less
one half of all accrued and unpaid expenses incurred by the Company in the
ordinary course of business. Prior to the execution of this Agreement, ▇▇▇▇▇ has
delivered a report which sets forth a summary of the deposits made into the
Company's account since May 1, 2003, a summary of all expenses actually paid by
the Company since May 1, 2003, a summary of all accrued and unpaid expenses
incurred by the Company and the balance in any Company accounts maintained by
the Company with Empire Financial Holding Company or any of its subsidiaries
(collectively, the "Company Report").
1.3. CLOSING. The closing of the purchase of the G&G and Empire Shares
shall occur at the offices of ▇▇▇▇▇▇▇▇▇ Traurig, P.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, on
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Shareholder:________ ▇▇▇▇▇:________ ▇▇▇▇▇:________
the date hereof. Simultaneously with the execution hereof and in connection with
the purchase of the G&G and Empire Shares, the following shall occur:
(a) The Shareholder will deliver to ▇▇▇▇▇ a certificate or
certificates, as the case may be, representing the G&G Shares, duly endorsed,
accompanied by any necessary transfer stamps, and otherwise in form for transfer
to the Company free and clear of all liens, claims, restrictions and
encumbrances of any kind whatsoever.
(b) ▇▇▇▇▇ will pay to the Shareholder the cash consideration
for the G&G Shares described in Section 1.2.
(c) ▇▇▇▇▇ will cause the Company to deliver to the Shareholder
a certificate or certificates, as the case may be, representing the Empire
Shares, duly endorsed, accompanied by any necessary transfer stamps, and
otherwise in form for transfer to the Shareholder, free and clear of all liens,
claims, restrictions and encumbrances of any kind whatsoever.
2. REPRESENTATIONS AND WARRANTIES.
2.1. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇ AND THE SHAREHOLDER. The
Shareholder and ▇▇▇▇▇ hereby represents and warrants to ▇▇▇▇▇ as follows:
(a) CORPORATE POWER. The Shareholder has the requisite trust
power and authority to enter into this Agreement and consummate the transactions
contemplated hereby.
(b) AUTHORITY. This Agreement and the transactions
contemplated hereby have been authorized by all necessary trust action of the
Shareholder and is a valid and binding agreement of the Shareholder enforceable
against the Shareholder in accordance with its terms.
(c) NO DEFAULTS. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby by
the Company, do not and will not constitute a breach or violation of, or a
default under, the trust agreement of the Shareholder.
(d) COMPANY REPORT. To the knowledge of ▇▇▇▇▇, the Company
Report is true and correct in all material respects.
(e) BASE RENT AND ADDITIONAL RENT. The Company has received
payment in full of the base rent and the additional rent for the each of the
months May, June and July, 2003 from Empire Financial Holding Company pursuant
to the applicable lease agreements.
(f) COMPANY EXPENSES. To the knowledge of ▇▇▇▇▇, the Company
is not past due in the payment of any expenses incurred by the Company.
(g) IMPROVEMENTS; LIENS. ▇▇▇▇▇ has not approved or authorized
any improvements, alterations or repairs to the Property since May 1, 2003 and
has not employed any contractor, subcontractor, laborer or materialman, or other
party who has any right to a mechanic's lien against the Property or any part
thereof.
(h) POSSESSION. ▇▇▇▇▇ has not authorized any party to possess,
or claim
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Shareholder:________ ▇▇▇▇▇:________ ▇▇▇▇▇:________
possession to, the Property or any part thereof, other than those who
properly entered into leases with the Company and has not and will not execute
any instrument or document that could adversely affect the title to the Property
or create a lien or encumbrance upon the Property.
2.2. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇. ▇▇▇▇▇ represents and
warrants to the Shareholder that this Agreement is a legal, valid and binding
obligation of ▇▇▇▇▇, enforceable against ▇▇▇▇▇ in accordance with its terms.
3. MISCELLANEOUS.
3.1. NO ASSIGNMENT. Except as provided herein, the parties hereby
represent and warrant to each other that they have not made any sale,
assignment, transfer, conveyance or other disposition of any of their actual or
potential claims, actions, cross-claims, counterclaims, defenses and causes of
action against each other and that they are authorized to execute, deliver and
perform under this Agreement.
3.2. SURVIVAL AND TERMINATION. All representations and warranties
contained herein or made in writing by any party in connection herewith will
survive the execution and delivery of this Agreement for a period of three
months.
3.3. TIME IS OF THE ESSENCE. Time is of the essence.
3.4. VENUE. Sole and exclusive venue for enforcement of this Agreement
and any subsequent court proceedings thereon or relating thereto shall be in the
trial courts in and for Seminole County, Florida.
3.5. WAIVER. The failure of any party to declare any default
immediately upon occurrence thereof, or delay in taking any action in connection
therewith, shall not waive such default, but the parties hereto shall have the
right to declare any such default at any time. No waiver by any party of a
default by another party shall be implied, and no express waiver by any party
shall affect any default other than the default specified in such waiver and
then only for the time and extension stated therein. No waiver of any term,
provision, condition or covenant of this Agreement by any party shall be deemed
to imply or constitute a further waiver by any party of any other term,
provision, condition or covenant of this Agreement. Notwithstanding any
applicable law, the terms of this Section and the other provisions of this
Agreement may not be waived by any prior, contemporaneous, concurrent, or
subsequent course of dealing, course of conduct or trade practice.
3.6. ARMS-LENGTH AGREEMENT. The parties hereto mutually acknowledge and
agree that this Agreement and the matters memorialized herein have been fully
negotiated with the assistance of counsel at arms-length. The parties further
stipulate and agree that (a) the choice of law, venue and jurisdiction clauses
contained in this Agreement are reasonable, (b) neither party had overwhelming
bargaining power and (c) all parties were represented by counsel of their choice
and were fully advised concerning this Agreement.
3.7. ENTIRE AGREEMENT. The parties are not relying upon any prior,
contemporaneous, or concurrent oral, tacit, or written representation,
statement, letter agreement, understanding,
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Shareholder:________ ▇▇▇▇▇:________ ▇▇▇▇▇:________
side-deal, inducement, warranty, or utterance as an inducement to enter into
this Agreement. This written Agreement constitutes the entire understanding of
the parties with respect to the disposition of the matters contained herein and
all oral, tacit, or written representations, side-deals, conversations,
inducements, understandings, warranties, utterances or agreements made prior to,
contemporaneously with, and/or concurrently with the execution and delivery of
this Agreement are merged into this written document and are of no further force
and effect.
3.8. MODIFICATIONS. No change, modification or waiver of any provision
of this Agreement shall be valid or binding unless it is in writing and signed
by all parties to this Agreement. Notwithstanding any applicable law, the terms
of this Section and all other provisions of this Agreement may not be waived by
any prior, contemporaneous, concurrent, or subsequent course of dealing, course
of conduct, trade practice or attempted modification.
3.9. SUCCESSORS AND PARTIES IN INTEREST. This Agreement is binding upon
all parties and, as applicable, its or his respective officers, directors,
shareholders, affiliates, parent companies, subsidiaries, related entities,
employees, representatives, legal representatives, assigns, transferees,
predecessors, heirs, partners, principals, attorneys and agents.
3.10. CONSTRUCTION. This Agreement was negotiated and prepared jointly
by the parties hereto and their respective legal counsel. The provisions of this
Agreement shall be construed according to their fair meaning and neither for nor
against any party hereto irrespective of which party caused such provisions to
be drafted. The headings in this Agreement are only for convenience and cannot
be used in interpretation.
3.11. ATTORNEYS' FEES. In any proceeding to enforce or concerning this
Agreement, in addition to any other relief that the prevailing party may be
entitled to, the prevailing party shall be entitled to recover their attorneys'
fees and costs incurred at the trial and appellate levels, including, without
limitation, any attorneys' fees and costs incurred in litigating the entitlement
to and amount of such attorneys' fees and costs.
3.12. CHOICE OF LAW. This Agreement shall be construed in accordance
with the laws of the State of Florida, and any dispute arising out of, connected
with, related to, or incidental to the relationship between the parties in
connection with this Agreement, whether arising in tort, contract, equity or
otherwise, shall be resolved in accordance with the internal laws (as opposed to
the conflicts of laws provisions) and decisions of the State of Florida.
3.13. SEVERABILITY. Wherever possible, each portion of this Agreement
shall be interpreted in such a manner as to be valid, effective and enforceable
under the applicable law. If any portion of this Agreement is held to be
invalid, illegal, against public policy or unethical by a court of competent
jurisdiction or other regulatory or administrative authority, under the terms
hereof, such provision shall be severed therefrom and such invalidity shall not
affect any other portion of this Agreement, the balance of which shall remain
in, and have its intended, full force and effect.
3.14. NOTICES. All notices permitted under this Agreement shall be sent
to:
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Shareholder:________ ▇▇▇▇▇:________ ▇▇▇▇▇:________
FOR ▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 407.805.0900
WITH A COPY TO: ▇▇▇ & ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇, Esq.
Facsimile: 561.981.9980
FOR ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Preserve Trail
SHAREHOLDER: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 407.682.1664
WITH A COPY TO: Fisher, Rushmer, Werrenrath, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: 407.422-1080
or such other addresses which the parties may designate in writing from time to
time.
3.15. COUNTERPARTS. If the parties deem it expedient, this Agreement
may be executed in counterparts with each counterpart being of equal dignity.
3.16. FURTHER DOCUMENTS. In the event that further documents are
required or permitted to be executed in order to effectuate the purposes of this
Agreement, then each of the Shareholder and ▇▇▇▇▇ hereby covenant and agree that
they shall execute such documents within three business days of receipt of such
request, together with a copy of the proposed documents.
3.17. MUTUAL SIGNATURE. The parties expressly acknowledge and agree
that this Agreement is not binding on any party unless and until it has been
signed by all parties in the spaces provided below or in counterparts.
3.18. LEGALITY. The parties represent, warrant and covenant that they
know of no reason why this Agreement is in violation of any federal, state, or
local statute, regulation, rule or ordinance.
3.19. JURY TRIAL. AS A MATERIAL INDUCEMENT TO ENTER INTO THIS
AGREEMENT, THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL OR
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Shareholder:________ ▇▇▇▇▇:________ ▇▇▇▇▇:________
TO HAVE A JURY PARTICIPATE IN RESOLVING A DISPUTE, WHETHER SOUNDING IN TORT,
CONTRACT, EQUITY, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement on the date first set forth above.
▇▇▇▇▇ FIRST REVOCABLE TRUST, a
revocable living trust
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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