Exhibit 10.1
STOCK PURCHASE
AGREEMENT
This Stock Purchase Agreement (this
“ Agreement ”) is made and entered into on
February 14, 2007, by and among First American Capital
Corporation, a Kansas corporation (“ Buyer ”),
and Brooke Brokerage Corporation, a Kansas corporation (“
Seller ”).
RECITALS
A. Seller owns all of the issued and
outstanding shares of capital stock of Brooke Savings Bank (the
“ Bank ”).
B. Seller desires to sell to Buyer,
and Buyer desires to purchase from Seller, all of the foregoing
shares of capital stock of Bank in exchange for shares of
Buyer’s capital stock, all upon, and subject to, the terms
and conditions of this Agreement.
AGREEMENT
ACCORDINGLY,
for and in consideration of the
premises and the mutual covenants and agreements herein contained
and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF
STOCK
Section 1.1 Purchase and
Sale of Stock . Subject to the terms and conditions of this
Agreement, at the Closing on the Closing Date (as hereinafter
defined in Section 2.1), Buyer agrees to buy from Seller, and
Seller agrees to sell to Buyer, eight million
(8,000,000) shares of common stock of Bank, such shares
representing all of the issued and outstanding shares of capital
stock of Bank (the “ Shares ”). In consideration
of Seller’s transfer of the Shares to Buyer, Buyer will issue
to Seller 6,047,904 shares of the authorized but unissued shares of
common stock of Buyer, shares of common stock of Buyer held by
Buyers as treasury shares, or a combination of such authorized but
unissued shares and treasury shares (the “ Buyer
Shares ”).
Section 1.2 Transfer and
Issuance of Stock . At the Closing, Buyer agrees to deliver to
Seller the Buyer Shares, represented by stock certificates
accompanied by stock powers duly endorsed in blank, and Seller
shall deliver to the Buyer the Shares, represented by stock
certificates accompanied by stock powers duly endorsed in blank,
and other items specified in Section 2.2 of this
Agreement.
Section 1.3 Purchase for Own
Account . The Buyer Shares are being acquired by Seller for its
own account and with no intention of distributing or reselling such
shares or any part thereof in a transaction that would be in
violation of the securities laws of the United States or any state,
without prejudice. Seller is an “accredited investor”
within the meaning of the Securities Act. Seller acknowledges that
Buyer has afforded Seller’s representatives and
Seller’s advisors the opportunity to discuss an investment in
Buyer and ask questions of representatives of Buyer concerning the
terms and conditions of the purchase of the Buyer Shares and
such
representatives have provided answers to all
such questions. Seller and its advisors have examined or have had
the opportunity to examine this Agreement and all information that
Seller or any advisor deems to be material to an understanding of
Buyer, the proposed business of Buyer, and the purchase of the
Buyer Shares. The nature and amount of the investment is suitable
for Seller and consistent with its overall investment program and
financial condition. Seller has carefully evaluated the merits and
risks of an investment in the Buyer and has evaluated
Seller’s financial resources and investment position, and
Seller has decided that it is able to bear the economic risks of
purchasing the Buyer Shares. Seller agrees to the imprinting of a
legend on all certificates representing the Buyer Shares to the
following effect:
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE OFFERED FOR SALE OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM
SUCH REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS. THIS
CERTIFICATE IS SUBJECT TO, AND IS TRANSFERABLE ONLY UPON COMPLIANCE
WITH, THE PROVISIONS OF A STOCK PURCHASE AGREEMENT DATED
FEBRUARY 14, 2007. A COPY OF THE ABOVE REFERENCED AGREEMENT IS
ON FILE AT THE OFFICE OF THE BUYER AT 1303 SW FIRST AMERICAN PLACE,
TOPEKA KANSAS 66604.
ARTICLE II
THE CLOSING
Section 2.1 The Closing
. The closing of the purchase and sale of the common stock owned by
Seller as provided hereunder (herein sometimes referred to as the
“ Closing ”) shall take place at the office of
the Seller, 10950 Grandview Drive, Suite 500, Overland Park, KS
66210, within ten (10) calendar days, as mutually agreed by
the Buyer and Seller, after the last governmental, committee, or
regulatory action has been taken (whether in the form of a notice
given to the appropriate party or in the form of the lapse of any
applicable waiting period without receipt of a notice of
disapproval) which is necessary to consummate the transactions
contemplated under this Agreement (the “ Closing Date
”).
Section 2.2 Purchase and
Sale . At the Closing, Seller shall deliver to Buyer:
(a) the Shares, represented by stock certificates, together
with stock powers executed in blank; (b) a certificate of
Seller certifying that all the representations and warranties of
Seller are true and accurate as of the Closing Date; and
(c) such other documents reasonably requested by Buyer to
evidence the sale and purchase and compliance of Seller with the
terms of this Agreement.
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ARTICLE III
REPRESENTATIONS AND
WARRANTIES
Section 3.1 Seller’s
Representations . Except to the extent disclosed on Schedule
3.1 attached hereto and made a part hereof (the “
Seller Disclosure Schedule ”), Seller makes the
following representations and warranties to Buyer, each of which is
true and correct on the date hereof, and will be true and correct
on the Closing Date except as the terms of this Agreement may
otherwise require:
(a) Ownership . Such Seller
is the owner, beneficially and of record, of all of the issued and
outstanding shares of common stock of Bank.
(b) Power . Such Seller has
complete and unrestricted power to enter into this Agreement and
all other agreements to be executed and delivered by such Seller
hereunder, and to perform its obligations hereunder and
thereunder.
(c) Binding Obligation . This
Agreement has been, and all other agreements and documents to be
executed and delivered by Seller hereunder will be at or prior to
the Closing, duly authorized, executed and delivered by such Seller
and constitutes the legal, valid and binding obligations of Seller
enforceable against Seller in accordance with its terms.
(d) No Violations or Defaults
. The execution and delivery of this Agreement and all other
agreements to be executed and delivered by Seller hereunder, and
the consummation of the transactions contemplated hereby and
thereby, by Seller will not violate any provision of, or constitute
a default under, Seller’s articles of incorporation or
bylaws, Bank’s charter or bylaws, any law, regulation, order
or judgment or any contract or other agreement to which Seller is a
party or by which any of them is bound or result in the creation or
imposition of any lien, claim, charge or encumbrance of any nature
whatsoever upon the outstanding capital stock of Bank.
(e) No Consent or Approval .
Neither the execution and delivery by Seller of this Agreement, nor
the consummation of the transactions contemplated by this
Agreement, requires the consent, authorization or approval of, or
the giving of notice by Seller to, or the registration by Seller
with, or the taking of any other action by Seller in respect of,
any federal, state or local governmental authority or any third
party, except as contemplated by Article VI of this
Agreement.
(f) Title to Shares . Upon
delivery to Buyer of the certificates representing the Shares and
the related signed stock powers sold by the Seller pursuant to this
Agreement and for the consideration provided herein, Buyer will be
vested with full right and title, free of all liens, claims,
charges and encumbrances of others of every character, to the
Shares, subject to no restrictions as to transferability,
assignment or hypothecation.
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(g) Corporate Matters and Capital
Stock . (1) Bank is duly organized, validly existing and
in good standing under the laws of the United States of America;
(2) Bank owns no direct, or indirect equity interest in any
entity; (3) Seller owns the Shares free of all liens, claims,
charges and encumbrances of every character; (4) Bank has the
requisite corporate power and authority to own its properties and
to carry on its business as and where such are now conducted;
(5) the authorized capital stock of the Bank consists solely
of eight million (8,000,000) shares of common stock, par value
$1.00 per share, which are represented as the Shares and held of
record and beneficially by Seller, and there are no shares held as
treasury stock; (6) the Shares have been legally and validly
authorized and issued, in accordance with applicable laws and the
preemptive rights of its shareholders, if any, and are fully paid
and nonassessable; (7) there are no outstanding or authorized
options, subscriptions, agreements, warrants, contracts, calls,
commitments, demands or rights of any character, including without
limitation securities convertible into or evidencing the right to
purchase or receive any capital stock of the Bank, whereby Bank
could be required to issue or sell additional capital stock to any
person; (8) there are no restrictions on the transfer of the
Shares or of any of shares of capital stock of Bank contained in
the articles of incorporation, bylaws or other governing document
of the Seller or in any contract to which the Bank or the Seller is
a party; (9) Seller has not given any proxies or any other
assignment of the right to vote with respect to the Shares; and
(10) Seller is not a party to any shareholder agreement,
voting agreement or voting trust with respect to the Shares or any
shares of capital stock of Bank.
(h) Financial . (1) The
statements of condition of Bank dated December 31, 2004 and
December 31, 2005 (the “ Statement of Condition
Date ”), and the related statements of profit and loss
for the 12-month periods then ended, respectively (together with
related notes, if any), provided by Seller to Buyer prior to
execution of this Agreement accurately reflect the financial
condition of Bank as of their respective dates and the results of
their operations for the respective periods shown, all prepared in
accordance with generally accepted accounting principles on a basis
consistent with that of prior periods; and (2) There has not
been, after the Statement of Condition Date: (i) any increase
in the compensation payable or to become payable to any employee or
agent of Bank, other than the normal annual increases and such
other compensation as has been or may be approved by the
Bank’s Executive Committee or Board of Directors made for
employees of the Bank or any bonuses to be paid or promised to
employees to be paid at any time after Closing; (ii) any
mortgage, pledge or subjection to lien, charge or encumbrance of
any kind of (or on) any of the assets of Bank or Bank, except for
liens of taxes not yet payable and other pledges, liens or
encumbrances in the ordinary course of business; (iii) the
establishment of any new, or any increase in the formula for, or
any payment of contributions to or benefits under any existing
retirement, pension, profit sharing, stock bonus, savings or thrift
plan, or any similar plan of deferred compensation of Bank, whether
funded or unfunded and whether qualified (within the meaning of the
Internal Revenue Code) or unqualified; (iv) any action seeking
any cancellation of, or decrease in the insured limit under, or
increase in the deductible amount or
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the insured’s retention
(whether pursuant to coinsurance or otherwise) under, any policy of
insurance maintained directly or indirectly by Bank on its business
or any of its assets, except as may have occurred in connection
with the acquisition of Bank by Seller or the inclusion of Bank as
a named insured in insurance policies maintained by Seller or its
affiliates; (v) any purchase of or commitment to purchase by
Bank, whether for cash or secured or unsecured obligations
(including finance leases), any fixed asset for a purchase price in
excess of $25,000, or any sale or transfer of any asset, other than
in the ordinary course of business; (vi) any amendment or
termination, other than in the ordinary course of business of any
material lease, contract, license, agreement, other commitment,
involving the payment of more than $10,000 in any calendar year, or
any material, power of attorney arrangement or plan of Bank;
provided, however, that the amendment or termination of any
contract involving the payment of $10,000 or more in any calendar
year is disclosed on the Seller Disclosure Schedule; (vii) any
default under any lease (including any finance lease) pursuant to
which Bank enjoys the use or occupancy of any real or personal
property or fixture, or any event which, with notice or lapse of
time or both, would be such a default or would cause any
acceleration of any obligation of Bank; (viii) other than in
the ordinary course of business, any forgiveness or cancellation by
Bank of any debt owing to it or any claim by it, or any waiver by
it of any of its rights; (ix) any damage or destruction of, or
loss (whether or not covered by insurance) by Bank to or of any of
its property that adversely affects the condition (financial or
otherwise) of it, or its business, operations or prospects;
(x) any event or condition of any character (other than
changes in legal, economic or other conditions which are not
specially or uniquely applicable to any of them) which in
Bank’s reasonable judgment has adversely affected its assets
or business, or might reasonably be expected so to affect its
assets or business thereafter; (xi) any issuance or sale by
Bank of any shares of its capital stock of any class (except for
the issuance of shares of capital stock to Seller on
January 8, 2007, in connection with its purchase of all of the
capital stock of Bank from Kansas City Life Insurance Company) or
any options, warrants, conversions or other rights to purchase any
such shares or any securities convertible into or exchangeable for
such shares, or any other change in the outstanding stock of Bank;
(xii) the incurring by Bank of any indebtedness for borrowed
money or its issuance or sale of any debt securities, other than in
the ordinary course of business; (xiii) except as set forth on
the Seller Disclosure Schedule, any incurrence of intracompany or
intercompany debt with Seller or any other affiliate of Seller; or
(xiv) other action taken by Bank, or which the Bank has failed
to take, which has resulted in the Bank conducting its business
other than in the ordinary and normal course.
(i) Undisclosed Liabilities .
Bank has no liabilities or obligations of any nature, whether
accrued, absolute, contingent or otherwise, except those
(1) as set forth in the statements of condition dated the
Statement of Condition Date and which have not heretofore been paid
or discharged, and (2) incurred in or as a result of the
normal and ordinary course of business since the Statement of
Condition Date, all of which have been consistent with past
practices and none of which is materially adverse.
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(j) Title to Property .
(1) Bank owns no real property, including real property
foreclosed upon by Bank other than fixtures, if any owned by the
Bank located in the lease premises; (2) has good and
marketable title to Bank’s assets free and clear of all
mortgages, liens, pledges, charges, claims, leases, restrictions or
encumbrances of any nature whatsoever, and subject to no
restrictions with respect to transferability, except (i) as
reflected on the statement of condition dated the most recent
Statement of Condition Date and (ii) for the lien of taxes not
yet payable; (3) All currently used property and assets of
Bank or in which it has an interest or which it has in its
possession conform to all applicable laws, including, without
limitation, building and zoning laws.
(k) No Breach of Statute or
Contract . To the best of Seller’s knowledge, the
execution and delivery of this Agreement and all other agreements,
instruments and documents contemplated hereby, and the consummation
of the transactions contemplated hereby and thereby, will not
conflict with or violate or constitute a breach or violation of any
of the terms and provisions of, or constitute a default under, any
indenture, mortgage, lien, deed of trust, note agreement, lease,
instrument or other agreement or restriction to which Bank is a
party or by which it is bound, Bank’s Federal Stock Savings
Bank Charter or Bylaws, or to Seller’s knowledge any statute,
order, rule, judgment, decree or regulation of any court or
governmental agency or body, domestic or foreign, having
jurisdiction over Bank, or result in the creation or imposition of
any lien, claim, charge or encumbrance of any nature whatsoever
upon, or give to others any interest or rights in, any of the
properties, assets or capital stock of Bank.
(l) No Litigation or Adverse
Events . (1) There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, arbitrator or
governmental or regulatory body involving Bank; (2) To
Seller’s knowledge, there is no claim, suit, action, or
legal, administrative, arbitration, other proceeding or
governmental investigation or to Seller’s knowledge
reasonable basis therefor, or any change in the zoning or building
ordinances affecting the real property rights or leasehold
interests of Bank, pending against Bank which could result,
aggregating all such matters, in a Material Adverse Change (as
hereinafter defined in Section 3.3) in the financial
condition, shareholders’ investment or results of operations
of Bank or the conduct of the business thereof or the ability of
Seller to consummate the transactions contemplated by this
Agreement, and to the Seller’s knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
others; and (3) To Seller’s knowledge, there is no
dispute of any kind with any person under any contract or agreement
with any Seller or with Bank which could result, aggregating all
such disputes, in a Material Adverse Change in the Bank, its
business or operations or the consummation of the transactions
contemplated by this Agreement.
(m) Compliance with Law .
Seller is not aware of being, and the consummation of the
transactions contemplated hereby will neither cause Seller nor the
Bank to be, in violation of any law, ordinance or regulation,
local, state or
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federal, pertaining to the operation
or conduct of its business, which will, aggregating all such
violations, have a Material Adverse Effect on its operation, its
financial condition or the consummation of the transactions
contemplated by this Agreement.
(n) Books and Financial
Records . (1) The financial records and books of Bank,
including the Asset and Liability Committee (“ ALCO
”) records, have been and are maintained in accordance with
sound business practices and applicable regulations and accurately
reflect the assets and liabilities of Bank, respectively, in all
material respects; and (2) The minute books of Bank are
complete, and correctly reflect in all material respects all
corporate actions taken by the Board of Directors of Bank and all
committees thereof and by Seller.
(o) Loans, Discounts, or
Commitments to Loan or Discount . Bank has no outstanding
loans, discounts or commitments to loan or discount which have not
or will not be made for good and valuable consideration in the
ordinary course of Bank’s business and the notes or other
evidences of indebtedness evidencing any loans or discounts are
true and genuine and are what they purport to be.
(p) Hazardous Waste . No
hazardous, toxic or polluting substances have been released,
discharged or disposed of on any real estate owned by the Bank,
including real estate acquired by foreclosure or deed in lieu of
foreclosure, in violation of applicable law, and the Bank has not
received from any governmental authority or third party any request
for information, notice of claim, demand letter or other
notification that it is or may be responsible or potentially
responsible with respect to any investigation or clean-up of
hazardous substance releases at any site. As of the date hereof,
the real property and the use thereof is in compliance with all
applicable laws, statutes, ordinances, rules and regulations of any
governmental or quasi-governmental authority, specifically
including, without limitation, any environmental protection or
toxic waste or hazardous substance handling, treatment, storage or
disposal laws, statutes, ordinances, rules and
regulations.
(q) Licenses and Approvals .
All licenses, permits, franchises and other governmental or
quasi-governmental authorizations and approvals required or
necessary for Bank to carry on its business have been obtained and
are in full force and effect.
(r) Good Condition and Repair
. All of the equipment, furniture and fixtures of Bank are in good
operating condition and repair and of an appropriate character for
use in the operation of its business in the ordinary
course.
(s) Full Disclosure . No
representation or warranty of the Seller contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to (i) make the statements contained herein
not misleading or (ii) provide a prospective purchaser of the
common stock as contemplated hereunder with all material
information as to the properties and business of the
Bank.
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(t) Employment Matters .
Seller is not aware of any material controversies pending or
threatened litigation, workers compensation claims, claims for
unemployment benefits, or employment-related investigations or
charges between or involving Bank and/or any of its employees or
former employees or independent contractors. For the purposes of
this paragraph, a pending controversy or threatened litigation
shall be deemed material if it may result in liability or an
obligation by Bank or Buyer in excess of $25,000.
(u) Legacy Accounts . The
Legacy Accounts held by the Bank are maintained in accordance with
their terms and comply with all applicable insurance industry laws
and regulations.
Section 3.2 Buyer’s
Representations . Except to the extent disclosed on
Schedule 3.2 attached hereto and made a part hereof
(the “ Buyer Disclosure Schedule ”), Buyer makes
the following representations and warranties to Seller, each of
which is true and correct on the date hereof, and will be true and
correct on the Closing Date except as the terms of this Agreement
may otherwise require:
(a) Power . Such Buyer has
complete and unrestricted power to enter into this Agreement and
all other agreements to be executed and delivered by such Buyer
hereunder, and to perform its obligations hereunder and
thereunder.
(b) Binding Obligation . This
Agreement has been, and all other agreements and documents to be
executed and delivered by Buyer hereunder will be at or prior to
the Closing, duly authorized, executed and delivered by such Buyer
and constitutes the legal, valid and binding obligations of such
Buyer enforceable against Buyer in accordance with its
terms.
(c) No Violations or Defaults
. The execution and delivery of this Agreement and all other
agreements to be executed and delivered by Buyer hereunder, and the
consummation of the transactions contemplated hereby and thereby,
by Buyer will not violate any provision of, or constitute a default
under, Buyer’s articles of incorporation or bylaws, any law,
regulation, order or judgment or any contract or other agreement to
which Buyer is a party or by which it is bound.
(d) No Consent or Approval .
Neither the execution and delivery by Buyer of this Agreement, nor
the consummation of the transactions contemplated by this
Agreement, requires the consent or approval of, or the giving of
notice by Buyer to, or the registration by Buyer with, or the
taking of any other action by Buyer in respect of, any federal,
state or local governmental authority or any third party except as
contemplated in Article VI of this Agreement.
(e) No Breach of Statute or
Contract . To the best of Buyer’s knowledge, the
execution and delivery of this Agreement and all other
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agreements, instruments and
documents contemplated hereby, and the consummation of the
transactions contemplated hereby and thereby, will not conflict
with or violate or constitute a breach or violation of any of the
terms and provisions of, or constitute a default under, any
statute, indenture, mortgage, lien, deed of trust, note agreement,
lease, instrument or other agreement or restriction to which Buyer
is a party or by which it is bound, Buyer’s Charter or
Bylaws, or any order, rule, judgment, decree or regulation of any
court or governmental agency or body, domestic or foreign, having
jurisdiction over Buyer.
(f) No Litigation or Adverse
Events . (1) There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, arbitrator or
governmental or regulatory body involving Buyer or its Executive
Officers or Directors that materially affects the ability of Buyer
to consummate the transactions contemplated by this Agreement.
(2) To the Buyer’s knowledge, there is no claim, suit,
action, or legal, administrative, arbitration, other proceeding or
governmental investigation or to the Buyer’s knowledge
reasonable basis therefor, pending against Buyer or its Executive
Officers or Directors which could result in a Material Adverse
Change in the financial condition or the conduct of the business
thereof that materially affects the ability of Buyer to consummate
the transactions contemplated by this Agreement, and to the
Buyer’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others. (3) To the
Buyer’s knowledge, there is no dispute of any kind with any
person under any contract or agreement with Buyer which could
result in a Materially Adverse Change in the Buyer, its business or
operations that materially affects the ability of Buyer to
consummate the transactions contemplated by this
Agreement.
(g) Compliance with Law .
Buyer is not aware of being, and the consummation of the
transactions contemplated hereby will neither cause Buyer to be, in
violation of any law, ordinance or regulation, local, state or
federal, pertaining to the operation or conduct of its business,
which will have a Material Adverse Effect on the Buyer, its
operations, its financial condition or the consummation of the
transactions contemplated by this Agreement.
(h) Full Disclosure . No
representation or warranty of the Buyer contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to (i) make the statements contained herein
not misleading or (ii) provide a prospective Seller of the
common stock as contemplated hereunder with all material
information as to the
