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EXHIBIT 10.13
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SAMCO REORGANIZATION AGREEMENT
AMONG
PENSON WORLDWIDE, INC.
SAI HOLDINGS, INC.
PENSON FINANCIAL SERVICES, INC.
AND
SAMCO CAPITAL MARKETS, INC.
SAMCO HOLDINGS, INC.
DATED ____________, 2006
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SAMCO REORGANIZATION AGREEMENT
SAMCO REORGANIZATION AGREEMENT (this "Agreement"), dated as of
__________________, 2006, by and between Penson Worldwide, Inc.
("PWI"), SAI
Holdings, Inc. ("SAI") and Penson Financial Services, Inc. ("PFSI"
and together
with PWI and SAI the "Contributors" and each a "Contributor") and
SAMCO Capital
Markets, Inc. a Texas corporation ("SCMI") and SAMCO Holdings,
Inc., a Texas
corporation (the "SHI").
WHEREAS, SAI and PFSI are, direct or indirect, wholly owned
subsidiaries of
PWI and are primarily engaged in the business of providing
securities processing
infrastructure products and services.
WHEREAS, in preparation for the initial public offering of PWI
stock (the
"IPO"), the Contributors have determined that they should focus
their activities
on their core business operations and have, therefore, determined
to reorganize
certain of their non-core business operations (including the SAMCO
Capital
Markets Business currently operated by PFSI) under a new holding
company, SHI.
WHEREAS, in
conjunction with its IPO, and conditional upon the IPO becoming
effective, PWI intends to offer to its shareholders the opportunity
to exchange
shares of common stock of PWI for the capital stock of SHI. The
entire capital
stock of SHI will be offered in exchange for an aggregate of 2.5
million (pre
split) shares of common stock of PWI (the "Penson Exchange
Stock").
NOW,
THEREFORE, in consideration of the foregoing, and the
representations,
warranties, covenants and agreements herein contained, the receipt
and adequacy
of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein,
have the
following meanings:
"Ancillary Agreements" means the conveyance documents as set forth
in
Exhibit E, the Transition Services Agreement, the Confidentiality
Agreement and
the Subleases.
"Assumed Liabilities" means liabilities, obligations and
commitments
identified on Exhibit C.
"Bank Liens" means any Liens granted by any Contributor to the
Guaranty
Bank.
"Cash Contribution" means the capital contribution to be made by
PWI to SHI
in cash in an amount equal to the sum of (1) the product of the
Penson Exchange
Stock multiplied by the
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Penson Offering Price minus (2) the sum of the SAMCO Net Book Value
and the
Keefe Net Book Value.
"Closing Date" means the date of the SCM Closing.
"Confidentiality Agreement" means the Confidentiality and
Non-Disclosure
Agreement, substantially in the form of Exhibit K.
"Excluded Assets" means the assets, properties and rights of PFSI
listed on
Exhibit B.
"Excluded Liabilities" means any liabilities, obligations and
commitments
of relating to or arising out of the following:
(i)
any liability in respect of any Excluded Asset;
(ii)
any liability in respect of bank credit facilities of the
Contributors; and
(iii) except as otherwise expressly provided herein, liabilities
for any
Tax relating to or arising out of PFSI's operation of the SCM
Business or the
operations of SFSI, SFAI or SBD, which accrues, or with respect to
any event or
time period occurring, at or prior to the Closing Date.
"IRS" shall mean the Internal Revenue Service.
"Keefe Securities" means the securities identified on Exhibit
D.
"Keefe Net Book Value" means the net book value, as shown in the
books of
PWI at March 31, 2006, of the Keefe Securities.
"Lien" means any mortgage, liability, lien (including any tax
lien),
pledge, charge, security interest or encumbrance of any kind, other
than a
Permitted Lien.
"Material Agreements" means all contracts, agreements, leases,
licenses,
commitments, sales and purchase orders described on Exhibit F.
"Penson Offering Price" means the initial offering price of a share
of
common stock of PWI in the IPO.
"Person" means an individual, corporation, partnership,
association, trust
or other entity or organization, including a government or
political subdivision
or an agency or instrumentality thereof.
"Permits" means the licenses, permits, certificates of
authority,
authorizations, approvals and consents issued by any governmental
or regulating
authority described on Exhibit G.
"Permitted Lien" means (a) any Lien for Taxes, assessments and
other
governmental charges not yet due and (b) unfiled mortgages,
liabilities, liens,
pledges, charges, security interests or encumbrances of any kind
arising or
incurred in the ordinary course of business.
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"PFSI Distribution" means the distribution by PFSI to SAI pursuant
to
Section 3.01(a).
"PWI
Contribution" means the capital contribution by PWI to SHI pursuant
to
Section 3.02.
"SAI
Distribution" means the distribution by SAI to PWI pursuant to
Section
3.01(b).
"SAMCO Net Book Value" means the net book value, as shown in the
books of
PWI at March 31, 2006, of the SFSI Securities, SFAI Securities and
SBD
Securities and SCM Assets.
"SAMCO Securities" means collectively the SCMI Securities, SFSI
Securities,
SFAI Securities and SBD Securities.
"SBD" means SAMCO BD LLC.
"SBD
Securities" means all of the membership interests in SBD.
"SCM
Assets" means the properties, assets and rights of every kind,
nature,
character and description (whether tangible or intangible, whether
absolute,
accrued, contingent, fixed or otherwise and wherever situated)
primarily used in
the SCM Business including, without limitation, all right, title
and interest in
and to the assets listed on Exhibit A, the Material Agreements, the
Permits and
all goodwill associated with SCM Assets or the SCM Business;
provided, that "SCM
Assets" shall not include the Excluded Assets.
"SCM
Business" means the activities primarily associated with the
SAMCO
Capital Markets Division operated by PFSI prior to the SCM
Closing.
"SCM
Closing" has the meaning ascribed in Section 2.05.
"SCM
Division Employee" means the persons employed by PFSI prior to
the
date of the SCM Closing in the SCM Business, as further identified
in Exhibit H.
"SCMI Contribution Securities" means all of the securities of SCMI
issued
to PFSI in respect of the contribution of the SCM Assets.
"SCMI Securities" means all of the issued and outstanding
securities of
SCMI.
"SFAI" means SAMCO Financial Advisors Inc.
"SFAI Securities" means all of the issued and outstanding
securities of
SFAI.
"SFSI" means SAMCO Financial Services Inc.
"SFSI Securities" means all of the issued and outstanding
securities of
SFSI.
"SHI
Securities" means the issued and outstanding securities of SHI.
"Subleases" means those certain Sublease Agreements in respect of
premises
occupied by SAMCO Companies identified on Exhibit J.
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"Tax" means any net income, alternative or add-on minimum, gross
income,
gross receipts, sales, use, ad valorem, franchise, capital, paid-up
capital,
profits, greenmail, license, withholding, payroll, employment,
excise,
severance, stamp, occupation, premium, property, environmental or
windfall
profit tax, custom, duty or other tax, governmental fee or other
like assessment
or charge of any kind whatsoever, together with any interest or any
penalty,
addition to tax or additional amount imposed by any governmental
authority
(domestic or foreign) responsible for the imposition of any such
tax.
"Transition Services Agreement" means that certain Transition
Services
Agreement between PWI and SHI substantially in the form attached as
Exhibit I.
ARTICLE II
REORGANIZATION OF SAMCO CAPITAL MARKETS
SECTION 2.01. Contribution of SCM Assets. Upon the terms and
subject to the
conditions set forth in this Agreement, effective as of the SCM
Closing, PFSI
shall contribute and otherwise convey, transfer, assign and deliver
to SCMI, and
SCMI shall purchase and accept from the PFSI all right, title and
interest of in
and to the SCM Assets, wherever located, free and clear of all
Liens except
Permitted Liens and the Assumed Liabilities. SCMI acknowledges and
agrees that
Excluded Assets are not being acquired by SCMI and are not part of
the SCM
Assets.
SECTION 2.02. Assumption of Liabilities. At the SCM Closing, SCMI
shall
assume, and from and after the Closing Date, shall agree to
perform, pay, honor
and discharge when due the Assumed Liabilities; provided that SCMI
shall not
assume, and the Assumed Liabilities shall not include, any Excluded
Liabilities.
SECTION 2.03. Assignment of Contracts and Rights. Anything in
this
Agreement to the contrary notwithstanding, this Agreement shall not
constitute
an agreement to assign any SCM Asset or any claim or right or any
benefit
arising thereunder or resulting therefrom if an attempted
assignment thereof,
without consent of a third party thereto (which consent has not
been obtained)
would constitute a breach or other contravention thereof or in any
way adversely
affect the rights of SCMI or PFSI thereunder. SCMI and PFSI will
use their
commercially reasonable efforts (but without any payment of money
by SCMI or
PFSI) to obtain the consent of the other parties to any such SCM
Asset or claim
or right or any benefit arising thereunder for the assignment
thereof to SCMI as
SCMI may request. If such consent is not obtained, or if an
attempted assignment
thereof would be ineffective or would adversely affect the rights
of PFSI
thereunder so that SCMI would not in fact receive all such rights,
SCMI and PFSI
will cooperate in a mutually agreeable arrangement under which SCMI
would obtain
the benefits and assume the obligations thereunder in accordance
with this
Agreement, including, without limitation, subcontracting,
sub-licensing, or
subleasing to SCMI, or under which PFSI would enforce for the
benefit of SCMI,
with SCMI assuming PFSI's obligations, any and all rights of PFSI
against a
third party thereto.
SECTION 2.04. Capital Contribution. In exchange for the capital
contribution by PFSI of the SCM Assets, upon and subject to the
terms of this
Agreement, SCMI shall effective
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as of the SCM Closing assume the Assumed Liabilities and issue to
PFSI the SCMI
Contribution Securities.
SECTION 2.05. Closing of SCM Asset Contribution. The closing (the
"SCM
Closing") of the contribution and transfer of the SCM Assets and
the assumption
of the Assumed Liabilities hereunder shall take place at the
offices of PWI,
upon satisfaction of the conditions set forth in Article VIII, or
at such other
time or place as PFSI shall specify. Unless a different time is
specified by
PFSI, the timing of the SCM Closing shall be immediately upon the
satisfaction
of the condition stated in Section 7.01(g) and shall be deemed to
take place
immediately prior to the PFSI Distribution, SAI Distribution and
PWI
Contribution and prior to the IPO becoming effective.
At
the SCM Closing,
(a) SCMI shall issue to PFSI the SCMI Contribution Securities;
(b) SCMI and PFSI shall enter into the Bill of Sale and Instrument
of
Assignment in substantially the form attached hereto as Exhibit E,
and PFSI
shall deliver to SCMI (i) such deeds, assignments of leases, bills
of sale,
endorsements, consents, assignments and other good and sufficient
instruments of
conveyance and assignment as the parties and their respective
counsel shall deem
reasonably necessary or appropriate to vest in SCMI all right,
title and
interest in, to and under the SCM Assets and (ii) all of the SCM
Assets;
(c) PFSI shall deliver, to the extent available, copies of all
third
party consents required for the transfer of the SCM Assets and
Assumed
Liabilities;
(d) the applicable parties shall enter into the Subleases;
(e) PWI and SHI shall enter into the Transition Services
Agreement;
(f) the Contributors, SCMI, SFSI, SFAI and SHI shall enter into
the
Confidentiality Agreement; and
(g) PFSI and SCMI shall also execute and deliver all such
instruments,
documents and certificates as may be reasonably requested by the
other party
that are necessary, appropriate or desirable for the consummation
at the SCM
Closing of the transactions contemplated by this Agreement.
SECTION 2.06. Employee Matters.
(a) PFSI agrees to make SCM Division Employees an offer of transfer
of
their employment to SCMI on terms initially no less favorable than
presently
applicable to such employee ("Transfer Offer"). For those SCM
Division Employees
who accept the Transfer Offer ("Transferred Employees"), PFSI shall
transfer to
SCMI immediately after the SCM Closing, all personnel files and
employment
information on each Transferred Employee, including the Transfer
Offer signed by
each Transferred Employee. For those SCM Division Employees who do
not accept
the Transfer Offer ("Terminated Employees"), PFSI shall terminate
their
employment immediately prior to the SCM Closing, to be effective
immediately
after the SCM
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Closing. SCMI hereby agrees to assume any liability incurred by a
Contributor as
a result of the termination (the "Termination Liability") of any
SCM Division
Employee other than any liability for any wages, salary, benefits
(other than
severance, pay in lieu of notice or other termination related
claims) or related
employment taxes accrued prior to the Closing Date, and to
indemnify and hold
the Contributors harmless from any such liability, which liability
shall be
deemed to be an Assumed Liability hereunder.
(b) Nothing contained in this Agreement shall confer upon any
SCM
Division Employee any right with respect to employment, or
continuance thereof,
with SCMI nor shall anything herein interfere with the right of
SCMI to
terminate the employment of any of the SCM Division Employees at
any time, with
or without cause, or restrict SCMI in the exercise of its
independent business
judgment in modifying any of the terms and conditions of the
employment of the
SCM Division Employees.
SECTION 2.07. Closing Costs; Transfer Taxes and Fees; Proration
(a) SCMI shall be responsible for (i) any documentary and
transfer
taxes and any sales, use or other taxes imposed by reason of the
transfers of
SCM Assets and any deficiency, interest or penalty asserted with
respect
thereto, and (ii) the fees and costs of recording or filing all
applicable
conveyancing instruments. The parties shall otherwise bear their
own expenses.
PFSI and SCMI shall negotiate in good faith to mutually agree on
the allocations
of basis or deemed purchase price required to arrive at any
valuations upon
which such taxes are based. The parties shall co-operate with each
other in the
production of any necessary Tax filings in connection with the
foregoing.
ARTICLE III
CONTRIBUTION OF SAMCO SECURITIES AND KEEFE SECURITIES
SECTION 3.01. Distribution of SCMI Securities.
(a) Effective immediately following the SCM Closing, PFSI shall
make a
distribution of the SCMI Contribution Securities to SAI.
(b) Upon receipt of the PFSI Distribution, SAI shall make a
distribution of the SCMI Securities, SFSI Securities, SFAI
Securities and Keefe
Securities to PWI.
SECTION 3.02. Capital Contribution to SHI.
(a) Effective immediately following the distributions set forth
in
Section 3.01 and immediately prior to the effectiveness of the IPO,
PWI shall
contribute to SHI, as a capital contribution, the SAMCO Securities
and the Keefe
Securities.
(b) Upon the SCM Closing, PWI agrees to make the Cash
Contribution.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTORS
EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE IV, NO CONTRIBUTOR
MAKES ANY
WARRANTIES RELATED TO THE SCM ASSETS, THE ASSUMED LIABILITIES, THE
SAMCO
SECURITIES OR OTHERWISE AND ALL SCM ASSETS AND SAMCO SECURITIES ARE
SOLD,
LICENSED OR CONVEYED "AS IS" AND "WHERE IS" WITHOUT WARRANTY,
EXPRESS OR
IMPLIED, AND ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION,
IMPLIED
WARRANTIES AS TO TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND
NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES
ARE HEREBY
DISCLAIMED.
Each
Contributor hereby severally represents and warrants to SCMI and
SHI,
as applicable, and as to itself only, that:
SECTION 4.01. Organization and Qualification. Such Contributor is
a
corporation duly organized, validly existing and in good standing
under the laws
of its state of incorporation and has the requisite corporate power
and
authority to enter into this Agreement and the Ancillary Agreements
to which it
is party and to perform its obligations hereunder.
SECTION 4.02. Corporate Authorization. The execution, delivery
and
performance by such Contributor of this Agreement and each of the
Ancillary
Agreements to which it is party, and the consummation by such
Contributor of the
transactions contemplated hereby and thereby have been duly
authorized by all
necessary corporate action on the part of such Contributor. This
Agreement and
each of the Ancillary Agreements to which it is party, have been,
or, in the
case of the Ancillary Agreements, will be, duly executed and
delivered by such
Contributor and constitute valid and binding agreements of such
Contributor,
enforceable against such Contributor in accordance with their
respective terms,
except to the extent that enforceability may be limited by
applicable
bankruptcy, moratorium, insolvency, reorganization or other similar
laws
affecting the enforcement of creditors' rights generally, and by
principles of
equity.
SECTION 4.03. Governmental Authorization. The execution, delivery
and
performance by such Contributor of this Agreement and each of the
Ancillary
Agreements to which it is party, and the consummation by such
Contributor of the
transactions contemplated hereby and thereby, do not require any
action by or in
respect of, or filing with, any governmental body, agency, official
or
authority, other than with respect to the approvals required from
the National
Association of Securities Dealers.
SECTION 4.04. Title to Contributed Assets. Neither the SCM Assets
not the
SAMCO Securities are subject to any Lien other than (i) Permitted
Liens; and
(ii) the Bank Liens. Upon consummation of the transactions
contemplated hereby,
Contributors will have transferred to SCMI or SHI as applicable
good and
marketable title in and to, or a valid leasehold interest in, each
of the SCM
Assets and SAMCO Securities, free and clear of all Liens other than
Permitted
Liens and Assumed Liabilities.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SCMI AND SHI
Each
of SCMI and SHI hereby jointly and severally represents and
warrants
to each Contributor that:
SECTION 5.01. Organization and Qualification. Each of SCMI and SHI
is a
corporation duly organized, validly existing and in good standing
under the laws
of the State of Texas and has the requisite corporate power and
authority to
own, lease and operate its properties and to carry on its business
as it is now
being conducted. Each of SCMI and SHI is duly qualified or licensed
to do
business, and is in good standing (to the extent applicable), in
each
jurisdiction where the nature of its business or proposed business
makes such
qualification or licensing necessary.
SECTION 5.02. Corporate Authorization. Each of SCMI and SHI has
the
necessary corporate power and authority to execute and deliver this
Agreement
and each of the Ancillary Agreements to which it is party, to
perform its
obligations hereunder and thereunder and to consummate the
transactions
contemplated hereby and thereby. The execution, delivery and
performance by each
of SCMI and SHI of this Agreement, and each of the Ancillary
Agreements to which
it is party, and the consummation by each of SCMI and SHI of the
transactions
contemplated hereby and thereby have been duly authorized by all
necessary
corporate action on the part of each of SCMI and SHI. This
Agreement and each of
the Ancillary Agreements to which they are party have been, or, in
the case of
the Ancillary Agreements, will be, duly executed and delivered by
each of SCMI
and SHI and constitute valid and binding agreements of each of SCMI
and SHI,
enforceable against them in accordance with their respective terms,
except to
the extent that enforceability may be limited by applicable
bankruptcy,
moratorium, insolvency, reorganization or other similar laws
affecting the
enforcement of creditors' rights generally, and by principles of
equity.
SECTION 5.03. Governmental Authorization. The execution, delivery
and
performance by each of SCMI and SHI of this Agreement and each of
the Ancillary
Agreements to which they are party, and the consummation by each of
SCMI and SHI
of the transactions contemplated hereby and thereby, do not require
any action
by or in respect of, or filing with, any governmental body, agency,
official or
authority, other than with respect to the approvals required from
the National
Association of Securities Dealers.
SECTION 5.04. Title to SAMCO Securities and SHI Securities. All of
the
SAMCO Securities and SHI Securities have been duly authorized and
validly issued
and are fully paid and nonassessable. None of the SAMCO Securities
or SHI
Securities were issued in violation of the Securities Act of 1933
or any other
law or regulation applicable to SCMI or SHI. Upon co
