Note Purchase Agreement - Ladenburg Thalmann Financial Services Inc. and Berliner Effektengesellschaft AG
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT, dated as of March 29, 2004 ("Agreement"),
between Ladenburg Thalmann Financial Services Inc., a Florida corporation (the
"Company"), and Berliner Effektengesellschaft AG, a German corporation
("Berliner")
RECITALS:
A. Berliner is the holder of a senior convertible promissory note due
December 31, 2005 issued by the Company to Berliner in the principal amount of
$1,990,000 (plus all accrued but unpaid interest thereon) (the "Note");
B. The Company desires to repurchase from Berliner, and Berliner
desires to sell to the Company, the Note on the terms and conditions set forth
herein;
NOW THEREFORE, the parties hereto agree as follows:
1. PURCHASE AND SALE OF NOTES. Subject to the terms and conditions
herein set forth, Berliner hereby agrees to sell to the Company, and the Company
hereby agrees to repurchase the Note, for an aggregate purchase price of
$1,000,000.
2. CLOSING. The closing of the purchase and sale of the Note
("Closing") shall take place on the third business day following the execution
of this Agreement at the offices of Graubard Miller, 600 Third Avenue, New York,
New York 10016 or on such other date as the Company and Berliner mutually agree.
At the Closing, Berliner, against receipt of the purchase price in good funds by
wire transfer to an account designated in writing by Berliner, will deliver the
Note to the Company.
3. REPRESENTATIONS OF BERLINER. Berliner hereby represents and warrants
to the Company as follows:
(a) Berliner is the record and beneficial owner of, and has
good and marketable title to, the Note, free and clear of all liens, security
interests, charges, claims, restrictions and other encumbrances. No other person
or entity has any interest in the Note of any nature.
(b) Berliner has the full legal power to execute and deliver
this Agreement and to perform its obligations hereunder and thereunder. All acts
required to be the taken by Berliner to enter into this Agreement and to carry
out the transactions contemplated hereby have been properly taken; and this
Agreement constitutes the legal, valid and binding obligation of Berliner,
enforceable in accordance with its terms.
(c) Berliner recognizes that its right to acquire equity
securities of the Company by converting the Note will be surrendered as a result
of the transactions contemplated by this Agreement and that it will no longer
have any right to receive any payment of principal or accrued but unpaid
interest on the Note.
(d) Berliner has had both the opportunity to ask questions and
receive answers from the officers and directors of the Company concerning the
business and operations of the Company and to obtain any additional information
regarding the
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Company and its business and operations to the extent the Company possesses such
information or can acquire it without unreasonable effort or expense necessary
to verify the accuracy of such information, including reports filed by the
Company with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended.
(e) Berliner possesses sufficient knowledge and experience in
financial and business matters to enable it to evaluate the merits and risks of
the sale of the Note to the Company and the transactions contemplated by this
Agreement.
(f) Berliner acknowledges that, simultaneously with the
consummation of the transactions contemplated by this Agreement, New Valley
Corporation and Frost-Nevada Investments Trust are entering into an agreement to
convert the full face value of the $18.01 million principal amount of Senior
Convertible Promissory Notes held by such parties, plus all accrued interest
thereon, into common stock of the Company at conversion prices of $1.10 per
share and $0.70 per share, respectively.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Berliner as follows:
(a) The Company has the full legal power to execute and
deliver this Agreement and to perform its obligations hereunder and thereunder.
All acts required to be the taken by the Company to enter into this Agreement
and to carry out the transactions contemplated hereby have been properly taken;
and this Agreement constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms.
5. MISCELLANEOUS.
(a) The warranties and representations of the Company and
Berliner contained in or made pursuant to this Agreement shall survive the
closing of the transaction contemplated by this Agreement and they shall in no
way be affected by any investigation of the subject matter thereof made by or on
behalf of the Company or Berliner.
(b) This Agreement shall be binding upon and inure to the
benefit of each party hereto, and its respective heirs, executors, legal
representatives, successors and assigns. This Agreement constitutes the entire
understanding and agreement between the parties with regard to the subject
matter hereof and may not be amended or modified except by a written agreement
specifically referring to this Agreement signed by all the parties. No waiver of
any breach or default hereunder shall be considered valid unless in writing and
signed by the party giving such waiver, and no such waiver shall be deemed a
waiver of any subsequent breach or default of the same or similar nature.
(c) This Agreement shall be governed by and construed under
the internal laws of the State of New York, disregarding any principles of
conflicts of laws. The parties acknowledge that this selection of law is
reasonable because of the diversity of jurisdictions in which the parties are
domiciled and operate their businesses.
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(d) In the event of any dispute under this Agreement among or
between the parties, but not as to any third parties, then and in such event,
each party agrees that the same shall be submitted to the American Arbitration
Association (AAA) in the City of New York, State of New York, for its decision
and determination in accordance with its rules and regulations then in effect.
The panel shall consist of three arbitrators, as mutually determined, provided
that if the parties cannot agree on one or more of the arbitrators, then the AAA
will designate the arbitrators. Each of the parties agrees that the decision and
or award made by the AAA may be entered as a judgment of the courts of the State
of New York and shall be enforceable as such.
(e) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The parties agree that
this Agreement may be executed by facsimile copy, which signature will be
treated for all purposes as an original signature.
(f) Any notice required or permitted under this Agreement
shall be given in writing and shall either be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, or by Federal Express
next business day service with signed receipt required, to the addresses set
forth on the signature page, or to such other address as either shall have
specified by notice in writing to the other, and shall be deemed duly given
hereunder when so delivered.
(g) The section headings are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
or intent of any provision of this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed and
delivered this Agreement as of the date first above written.
BERLINER EFFEKTENGESELLSCHAFT AG
By: /s/ Holger Timm
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Name: Holger Timm
Title: Chief Executive Officer
Address: Kurfustendamm 119
10711 Berlin, Germany
LADENBURG THALMANN FINANCIAL SERVICES INC.
By: /s/ Salvatore Giardina
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Name: Salvatore Giardina
Title: Vice President and Chief
Financial Officer
Address: 590 Madison Avenue
New York, New York 10016
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