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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
Contri
