0000930661-01-501766.txt : 20011008
0000930661-01-501766.hdr.sgml : 20011008
ACCESSION NUMBER: 0000930661-01-501766
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20010918
GROUP MEMBERS: JAMES M. FAIL
GROUP MEMBERS: JAMES M. FAIL LIVING TRUST
GROUP MEMBERS: KATHRYN FAIL LUTTRULL
GROUP MEMBERS: P.S.F. HOLDINGS LIMITED PARTNERSHIP
GROUP MEMBERS: STONE CAPITAL, INC.
GROUP MEMBERS: STONE HOLDINGS, INC.
GROUP MEMBERS: STONE INVESTMENTS, INC.
GROUP MEMBERS: THE MARITAL TRUST
GROUP MEMBERS: WINN HOLDINGS, LLC
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: IMAGINE INVESTMENTS INC
CENTRAL INDEX KEY: 0001051043
STANDARD INDUSTRIAL CLASSIFICATION: []
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0930
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: 8150 N CENTRAL EXPRESSWAY STE 1901
CITY: DALLAS
STATE: TX
ZIP: 75206
BUSINESS PHONE: 2143651900
MAIL ADDRESS:
STREET 1: 8150 N CENTRAL EXPRESSWAY STE 1901
CITY: DALLAS
STATE: TX
ZIP: 75206
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: WICKES INC
CENTRAL INDEX KEY: 0000910620
STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-LUMBER & OTHER BUILDING MATERIALS DEALERS [5211]
IRS NUMBER: 363554758
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1228
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-42945
FILM NUMBER: 1739652
BUSINESS ADDRESS:
STREET 1: 706 N DEERPATH DR
CITY: VERNON HILLS
STATE: IL
ZIP: 60061
BUSINESS PHONE: 8473673400
MAIL ADDRESS:
STREET 1: 706 NORTH DEERPATH DR
CITY: VERNON HILLS
STATE: IL
ZIP: 60061
FORMER COMPANY:
FORMER CONFORMED NAME: WICKES LUMBER CO /DE/
DATE OF NAME CHANGE: 19930813
SC 13D/A
1
dsc13da.txt
AMENDMENT NO. 4 TO SCHEDULE 13D
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 4)(1)
Wickes, Inc.
(Name of Issuer)
Common Stock, par value $.01 per share
(Title of Class of Securities)
967 446 10 5
(CUSIP Number)
Gary M. Goltz
Imagine Investments, Inc.
8150 North Central Expressway, Suite 1901
Dallas, Texas 75206
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 20, 2001
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the following
box [_].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
(1)The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see, the
Notes).
CUSIP No. 967 446 10 5
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only).
Imagine Investments, Inc.
75-270944
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
00
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
5 [_]
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF --
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,082,000
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING --
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,082,000
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,082,000
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions)
[_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13.1%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (See Instructions)
14
CO
------------------------------------------------------------------------------
CUSIP No. 967 446 10 5
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only).
Stone Investments, Inc.
86-0740106
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
00
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
5 [_]
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF --
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,082,000
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING --
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10 1,082,000
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,082,000
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions)
[_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13.1%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (See Instructions)
14
HC.CO
------------------------------------------------------------------------------
CUSIP No. 967 446 10 5
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only).
Stone Capital, Inc.
75-2262907
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
OO
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF --
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,082,000
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING --
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,082,000
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,082,000
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions)
[_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13.1%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (See Instructions)
14
HC, CO
------------------------------------------------------------------------------
CUSIP No. 967 446 10 5
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only).
Stone Holdings, Inc
75-2681508
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
OO
------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF --
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,082,000
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING --
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10 1,082,000
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 1,082,000
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions)
[_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13.1%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (See Instructions)
14
HC, CO
------------------------------------------------------------------------------
CUSIP No. 967 446 10 5
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
P.S.F. Holdings Limited Partnership
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
OO
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
5 [_]
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Texas
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF --
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,082,000
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING --
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,082,000
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,082,000
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions)
[_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13.1%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (See Instructions)
14
HC, PN
------------------------------------------------------------------------------
CUSIP No. 967 446 10 5
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
The Marital Trust established pursuant to the provisions of Section 3 of
Article B of the agreement establishing the James M. Fail Living Trust.
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
OO
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
5 [_]
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Alaska
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF --
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,082,000
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING --
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,082,000
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,082,000
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions)
[_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13.1%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (See Instructions)
14
OO
------------------------------------------------------------------------------
CUSIP No. 967 446 10 5
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities Only).
James M. Fail Living Trust
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX [_] IF A MEMBER OF A GROUP (See Instructions)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
00
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Alaska
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF --
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,082,000
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING --
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,082,000
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,082,000
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions) [_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13.1%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (See Instructions)
14
00
-------------------------------------------------------------------------------
CUSIP No. 967 446 10 5
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
James M. Fail
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX [_] IF A MEMBER OF A GROUP (See Instructions)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
00
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF --
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,082,000
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING --
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,082,000
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,082,000
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions) [_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13 13.1%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (See Instructions)
14
00
------------------------------------------------------------------------------
CUSIP No. 967 446 10 5
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only).
Winn Holdings, LLC
75-2891040
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
OO
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Texas
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF --
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,082,000
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING --
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,082,000
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,082,000
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions)
[_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13.1%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (See Instructions)
14
HC, OO
------------------------------------------------------------------------------
CUSIP No. 967 446 10 5
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only).
Kathryn Fail Luttrull
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC Use only
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
OO
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF --
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,082,000
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING --
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,082,000
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,082,000
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
12
[_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13.1%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (See Instructions)
14
IN
------------------------------------------------------------------------------
SCHEDULE 13D/A
This Amendment No. 4 to the Statement on Schedule 13D filed on October
15, 1998 with the Securities and Exchange Commission, as amended by that certain
Amendment No. 1 to Schedule 13D filed on November 24, 1998, that certain
Amendment No. 2 to Schedule 13D filed on January 19, 1999, and that certain
Amendment No. 3 to Schedule 13D filed on February 8, 1999 (as so amended, the
"Schedule 13D"), with respect to the common stock, par value $.01 per share of
Wickes, Inc., a Delaware corporation. The Schedule 13D is hereby incorporated by
reference for all purposes. Capitalized terms used but not defined herein shall
have the meanings subscribed to them on Schedule 13D.
Item 2. Identity and Background.
Item 2 is hereby amended and restated to read as follows:
(a) This statement is filed by (i) Imagine Investments, Inc., a
Delaware corporation ("Imagine Investments"), (ii) Stone Investments, Inc., a
Delaware corporation ("Stone Investments"), (iii) Stone Capital, Inc., a
Delaware corporation ("Stone Capital"), (iv) Stone Holdings, Inc., a Delaware
corporation ("Stone Holdings"), (v) P.S.F. Holdings Limited Partnership, a Texas
limited partnership ("P.S.F."), (vi) the Marital Trust established pursuant to
the provisions of Section 3 of Article B of the agreement establishing the James
M. Fail Living Trust (the "Marital Trust"), (vii) James M. Fail Living Trust
(the "Living Trust"), (viii) James M. Fail, (ix) Winn Holdings, LLC, a Texas
limited liability company ("Winn Holdings"), and (x) Kathryn Fail Luttrull
(collectively, the "Reporting Persons").
Imagine Investments is a wholly-owned subsidiary of Stone
Investments. Stone Investments is a wholly-owned subsidiary of Stone Capital.
Stone Capital is a wholly-owned subsidiary of Stone Holdings. Each of the
Marital Trust, Living Trust and P.S.F. owns approximately 50%, 20% and 30%,
respectively, of the common stock of Stone Holdings. Additionally, the Marital
Trust and the Living Trust own, in the aggregate, approximately 22.6% of the
preferred stock of Stone Holdings. Mr. Fail is a trustee of each of the Marital
Trust and the Living Trust and has sole voting and dispositive power with
respect to each of such trusts. Winn Holdings has a 1% general partnership
interest in and is the general partner of P.S.F. Kathryn Fail Luttrull is the
sole member and manager of Winn Holdings.
(b) The business address of each of the Reporting Persons is c/o
Stone Investments, Inc., 8150 North Central Expressway, Suite 1901, Dallas,
Texas 75206.
(c) The principal business of Imagine Investments, Stone Investments,
Stone Capital, Stone Holdings, P.S.F, and Winn Holdings is investments,
including investing in securities of other entities. The principal business of
each of the Marital Trust and Living Trust is to implement and effectuate the
investment activities of Mr. Fail and his family, including investing in
securities of other entities. The present principal occupation of James M. Fail
is Chairman of the Board and Chief Executive Officer of Stone Holdings and
serving in other principal positions in certain other of the Reporting Persons
as more fully described on Schedule 1 attached hereto and incorporated herein by
reference. The present principal occupation of Kathryn Fail Luttrull is manager
and sole member of Winn Holdings and serving in other principal positions in
certain other of the Reporting Persons as more fully described on Schedule 1
attached hereto and incorporated herein by reference.
(d) During the last five years, none of the Reporting Persons or the
Covered Persons (as hereinafter defined) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons or the
Covered Persons has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, Federal or
State securities laws or finding any violation with respect to such laws.
(f) The place of organization for each of Imagine Investments, Stone
Investments, Stone Capital, and Stone Holdings is Delaware. The place of
organization of each of P.S.F. and Winn Holdings is Texas. The place of
organization of each of the Marital Trust and the Living Trust is Alaska. The
place of citizenship of James M. Fail and
Kathryn Fail Luttrull is the United States of America. Unless otherwise
indicated on Schedule I annexed hereto and incorporated herein by reference, the
place of citizenship of each of the Covered Persons is the United States of
America.
For additional information required by Instruction C to Schedule 13D
with respect to the general partners, controlling persons, executive officers
and directors of the foregoing Reporting Persons, to the extent applicable
(collectively, "Covered Persons"), please see Schedule I annexed hereto and
incorporated herein by reference.
Item 5. Interest in Securities of the Issuer.
(a) Imagine Investments is the record owner of 13,210 shares of
Common Stock of the Corporation (constituting .16% of the issued and outstanding
shares of the Common Stock of the Corporation as of the date of event requiring
the filing of this Amendment No. 4). Stone Investments is the record owner of
467,000 shares of Common Stock of the Corporation (constituting 5.6% of the
issued and outstanding shares of the Common Stock of the Corporation as of the
date of event requiring the filing of this Amendment No. 4). Additionally, on or
about March 20, 2001 and April 6, 2001, Imagine Investments entered into several
individual Purchase and Sale in Collateral Documents Agreement (the "Purchase
Agreements") with various holders ("Holders") of 11% Secured Notes Dated as of
April 1, 1999 (the "Notes") issued by Riverside Group, Inc., a Florida
corporation, pursuant to which Imagine Investments acquired the Notes in
exchange for cash and delivery of an aggregate of 601,790 shares of Common Stock
of the Corporation held by Imagine Investments. The Purchase Agreements provide
that Imagine Investments shall have the absolute, irrevocable and unconditional
right and the option to purchase the shares sold thereunder in consideration for
the Notes ("Note Shares") between the date of closing of the purchase of the
Notes and December 31, 2001, at a price of $5.025, subject to adjustment as
provided therein. The Purchase Agreements also provide that the Holders shall
have the absolute, irrevocable and unconditional right and option to require
Imagine Investments to purchase the Note Shares between the date of closing of
the purchase of the Notes and December 31, 2001, at a price of $5.025, subject
to adjustment as provided therein. Additionally, between the date of closing of
the purchase of the Notes and December 31, 2001, Imagine Investments has the
right to vote the Note Shares. As a result of the put/call option and voting
provisions of the Purchase Agreements, Imagine Investments is deemed to be the
beneficial owner of the 601,790 Note Shares (constituting 7.3% of the issued and
outstanding shares of the Common Stock of the Corporation as of the date of
event requiring the filing of this Amendment No. 4). As a result of the
relationships described above, each of the Reporting Persons may be deemed to be
the beneficial owner of all of the shares of Common Stock of the Corporation
owned of record by Imagine Investments and Stone Investments and the Note
Shares.
(b) As a result of the relationships described above, each of the
Reporting Persons shares or may be deemed to share the power to vote and dispose
of all of the shares of Common Stock of the Corporation owned of record by
Imagine Investments and Stone Investments and the Note Shares.
(c) On or about December 19, 2000, Imagine Investments transferred to
its parent corporation, Stone Investments 1,082,000 shares of common stock of
the Corporation for and in consideration for $3.29 per share or $3,557,250 in
the aggregate. Additionally, on or about March 5, 2001, Stone Investments
transferred to Imagine Investments 615,000 shares of common stock of the
Corporation for and in consideration for $4.00 per share, or $2,460,000 in the
aggregate.
Additionally, on or about March 20, 2001 and April 6, 2001, as
more fully described above, Imagine Investments entered into the Purchase
Agreements pursuant to which Imagine Investments acquired the Notes in exchange
for cash and delivery of an aggregate of 601,790 shares of Common Stock of the
Corporation held by Imagine Investments.
(d) None
(e) Not applicable
Item 6. Contracts, Arrangements, Understanding or Relationships With Respect
to Securities of the Issuer.
Item 6 is amended to include the following paragraph.
On or about March 20, 2001 and April 6, 2001, Imagine Investments
entered into the Purchase Agreements with the Holders of the Notes, pursuant to
which Imagine Investments acquired the Notes in exchange for cash and delivery
of an aggregate of 601,790 shares of Common Stock of the Corporation held by
Imagine Investments. The Purchase Agreements provide that Imagine Investments
shall have the absolute, irrevocable and unconditional right and the option to
purchase the Note Shares sold thereunder in consideration for the Notes between
the date of closing of the purchase of the Notes and December 31, 2001, at a
price of $5.025, subject to adjustment as provided therein. The Purchase
Agreements also provide that the Holders shall have the absolute, irrevocable
and unconditional right and option to require Imagine Investments to purchase
the Note Shares between the date of closing of the purchase of the Notes and
December 31, 2001, at a price of $5.025, subject to adjustment as provided
therein. Additionally, between the date of closing of the purchase of the Notes
and December 31, 2001, Imagine Investments has the right to vote the Note
Shares.
Item 7. Material to be Filed as Exhibits:
1. Form of Purchase and Sale of Notes and Interest in Collateral
Documents Agreement entered into as follows:
Party Date
--------------------------------------------------------------
Kenneth M. Kirschner March 20, 2001
Lovco, Inc. March 20, 2001
Creek Farms Corp. March 20, 2001
East Adams Corporation March 20, 2001
Frederick H. Schultz 1994 Trust March 20, 2001
North American Company for April 6, 2001
Life and Health Insurance
SIGNATURE
After reasonable inquiry, and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
IMAGINE INVESTMENTS, INC.
a Delaware corporation
By: /s/ Harry T. Carneal
------------------------------
Name: Harry T. Carneal
----------------------------
Title: Executive Vice President
---------------------------
STONE INVESTMENTS, INC.
a Delaware corporation
By: /s/ Harry T. Carneal
------------------------------
Name: Harry T. Carneal
----------------------------
Title: President
---------------------------
STONE CAPITAL, INC.
a Delaware corporation
By: /s/ Harry T. Carneal
------------------------------
Name: Harry T. Carneal
----------------------------
Title: President
---------------------------
STONE HOLDINGS, INC.
a Delaware corporation
By: /s/ Harry T. Carneal
------------------------------
Name: Harry T. Carneal
----------------------------
Title: President
---------------------------
P.S.F. HOLDINGS LIMITED PARTNERSHIP
a Texas limited partnership
By: Winn Holdings, LLC
a Texas limited liability company
By: /s/ Kathryn Fail Luttrull
------------------------------
Kathryn Fail Luttrull
Its: Sole Member
THE MARITAL TRUST
By: /s/ James M. Fail
------------------------------
James M. Fail
Its: Trustee
THE JAMES M. FAIL LIVING TRUST
By: /s/ James M. Fail
------------------------------
James M. Fail
Its: Trustee
/s/ James M. Fail
---------------------------------
James M. Fail
WINN HOLDINGS, LLC
a Texas limited liability company
By: /s/ Kathryn Fail Luttrull
------------------------------
Kathryn Fail Luttrull
Its: Sole Member
/s/ Kathryn Fail Luttrull
---------------------------------
Kathryn Fail Luttrull
SCHEDULE I
IMAGINE INVESTMENTS, INC.
The following is a list of all executive officers and directors of Imagine
Investments, Inc., the present principal occupation of each of which (unless
otherwise indicated) is serving in the capacities hereinafter set forth and in
other capacities set forth on this Schedule 1, as applicable. Unless otherwise
indicated, each officer's and director's business address is c/o Stone
Investments, Inc., 8150 North Central Expressway, Suite 1901, Dallas, Texas
75206. Unless otherwise indicated, the name, principal business and address of
any corporation or other organization in which such present principal occupation
or employment of the following persons is conducted is c/o Stone Investments,
Inc., 8150 North Central Expressway, Suite 1901, Dallas, Texas 75206.
Robert T. Shaw President and Director
Harry T. Carneal Executive Vice President and Director
R. Brad Oates(1) Director
Gary M. Goltz Vice President and Secretary
Charles Greiner(2) Vice President
Patricia W. Gliessner Vice President and Assistant Secretary
B. Kent Hill Vice President and Treasurer
Gordon Lewaren Assistant Treasurer
Dianne Richardson Assistant Secretary
STONE INVESTMENTS, INC.
The following is a list of all executive officers and directors of Stone
Investments, Inc., the present principal occupation of each of which (unless
otherwise indicated) is serving in the capacities hereinafter set forth and in
other capacities set forth on this Schedule 1, as applicable. Unless otherwise
indicated, each officer's and director's business address is c/o Stone
Investments, Inc., 8150 North Central Expressway, Suite 1901, Dallas, Texas
75206. Unless otherwise indicated, the name, principal business and address of
any corporation or other organization in which such present principal occupation
or employment of the following persons is conducted is c/o Stone Investments,
Inc., 8150 North Central Expressway, Suite 1901, Dallas, Texas 75206.
James M. Fail Chairman of the Board, Chief Executive
Officer and Director
Harry T. Carneal President, Treasurer and Director
R. Bryce Fowler Director
Joseph M. Sumanck Director
R. Brad Oates(1) Executive Vice President and Director
Jay Bryan Vice President
B. Kent Hill Vice President
Patricia L. Robinson Vice President
Kevin Robertson Vice President
Michael Shannon Vice President
Gary E. Clayton(3) Vice President
Ross Mandel Vice President
Kevin Fox(4) Vice President
Gary M. Goltz Vice President, General Counsel and Secretary
Gordon Lewaren Assistant Treasurer
Mark S. Powell Assistant Secretary
Kathryn Fail Luttrull Assistant Secretary
STONE CAPITAL, INC.
The following is a list of all executive officers and directors of Stone
Capital, the present principal occupation of each of which (unless otherwise
indicated) is serving in the capacities hereinafter set forth and in other
capacities set
forth on this Schedule 1, as applicable. Unless otherwise indicated, each
officer's and director's business address is c/o Stone Investments, Inc., 8150
North Central Expressway, Suite 1901, Dallas, Texas 75206. Unless otherwise
indicated, the name, principal business and address of any corporation or other
organization in which such present principal occupation or employment of the
following persons is conducted is c/o Stone Investments, Inc., an investment
company, 8150 North Central Expressway, Suite 1901, Dallas, Texas 75206.
James M. Fail Chairman of the Board and Director
Harry T. Carneal Chief Executive Officer, President, Treasurer,
Secretary and Director
Gary M. Goltz Vice President, General Counsel and Assistant
Secretary
Victoria L. Garrett (5) Assistant Vice President, Assistant Secretary
and Assistant Treasurer
Gordon Lewaren Assistant Treasurer
Kathryn Fail Luttrull Director
STONE HOLDINGS, INC.
The following is a list of all executive officers and directors of Stone
Holdings, the present principal occupation of each of which (unless otherwise
indicated) is serving in the capacities hereinafter set forth and in other
capacities set forth on this Schedule 1, as applicable. Unless otherwise
indicated, each officer's and director's business address is c/o Stone
Investments, Inc., 8150 North Central Expressway, Suite 1901, Dallas, Texas
75206. Unless otherwise indicated, the name, principal business and address of
any corporation or other organization in which such present principal occupation
or employment of the following persons is conducted is c/o Stone Investments,
Inc., an investment company, 8150 North Central Expressway, Suite 1901, Dallas,
Texas 75206.
James M. Fail Chairman of the Board, Chief Executive Officer
and Director
Harry T. Carneal President, Treasurer, Secretary and Director
R. Brad Oates(1) Executive Vice President
Jay Bryan Vice President
Gary M. Goltz Executive Vice President, General Counsel and
Assistant Secretary
Kathryn Fail Luttrull Vice President
Gordon Lewaren Assistant Treasurer
Mark S. Powell Assistant Secretary
Tom Dwyer Vice President of Strategy and Special Counsel
P.S.F. HOLDINGS LIMITED PARTNERSHIP
The General Partner of P.S.F. Holdings Limited Partnership is Winn
Holdings, LLC, a Texas limited liability company. For information pertaining to
Winn Holdings, LLC, please see the cover pages and Items 2-6 contained in this
Schedule 13D of which this Schedule 1 is a part.
THE MARITAL TRUST
James M. Fail is a trustee of the Marital Trust. For information pertaining
to Mr. Fail, please see the cover pages and Items 2-6 contained in this Schedule
13D of which this Schedule 1 is a part.
THE JAMES M. FAIL LIVING TRUST
James M. Fail is a trustee of the James M. Fail Living Trust. For
information pertaining to Mr. Fail, please see the cover pages and Items 2-6
contained in this Schedule 13D of which this Schedule 1 is a part.
WINN HOLDINGS, LLC
Kathryn Fail Luttrull is the sole member and manager of Winn Holdings, LLC.
For information pertaining to Ms. Luttrull, please see the cover pages and Items
2-6 contained in this Schedule 13D of which this Schedule 1 is a part.
(1) Mr. Oates' present principal occupation/employer is Senior Strategic
Advisor of Lexis-Nexis Risk Solutions Group, the address of which is 9443
Springboro Pike, Miamisburg, Ohio 45342.
(2) Mr. Greiner's present principal employer is Azair, Inc., the address of
which is 4540 Glenn Curtiss Drive, Dallas, Texas 75248.
(3) Gary Clayton's present principal occupation is Chief Executive Officer of
Privacy Council, Inc., the address of which is 1300 Arapaho, Richardson, Texas
75081
(4) Kevin Fox's present principal occupation is Chief Operating Officer of
Riskwise, LLC, the address of which is 1010 St. Germaine, Suite 300, St. Cloud,
Minnesota 56301.
(5) Ms. Garrett's present principal employer is Delaware Trust Capital
Management Company, the address of which is 300 Delaware Avenue, 9th Floor,
Wilmington, DE 19801.
EX-1
3
dex1.txt
PURCHASE AND SALE AGREEMENT
EXHIBIT 1
Option B: Cash and Wickes Shares
PURCHASE AND SALE OF NOTES AND INTEREST
IN COLLATERAL DOCUMENTS AGREEMENT
THIS PURCHASE AND SALE OF NOTES AND INTEREST IN COLLATERAL DOCUMENTS
AGREEMENT ("the Agreement") is made and entered into as of the ___ day of
_________, 2001, by and between ___________, whose address is __________
(hereinafter referred to as "Holder"), and (ii) IMAGINE INVESTMENTS, INC., a
Delaware corporation, with principal office and place of business at Suite 1901,
8150 North Central Expressway, Dallas, TX 75206 (hereinafter referred to as
"Imagine") and Stone Holdings; Inc, a Delaware corporation, with its principal
office and place of business at 8150 North Central Expressway, Dallas, TX 75206
(hereinafter referred to as "Guarantor").
Recitals:
A. On or about April 1, 1999, Holder made a loan to Riverside Group, a
Florida corporation ("Borrower"), in the original principal amount of $100,000,
as evidenced by one or more Promissory Notes, dated April 1, 1999 (the "Note").
B. The Note was made pursuant to a Credit Agreement dated as of April 1,
1999 (the "Credit Agreement") pursuant to which the Holder and others
(collectively, the "Holders") made loans to the Borrower aggregating
$10,000,000.00 (collectively, the "Loan"). The Credit Agreement was entered into
between the Borrower, the parties executing same as Holders, and Mitchell W.
Legler (the "Agent"), as agent for the Holders.
c. In accordance with the Credit Agreement, the Agent, acting for the
Holders, entered into a certain Intercreditor Agreement, dated as of August 24,
1999, with American Founders Life Insurance Company and certain collateral
documents with the Borrower, encumbering assets of the Borrower. Further, the
Agent, acting for the Holders, entered into a Forbearance Agreement, dated as of
May 8, 2000, and an Amendment to Forbearance Agreement, dated as of August 14,
2000 (together the "Forbearance Agreements"). Pursuant to the Fobearance
Agreement, additional collateral for the Loan was granted by the Company to the
Agent, acting for the Holders (all collateral presently securing the Loan is
referred to herein as the "Collateral", and all documentation evidencing the
encumbrance and pledging of such collateral is referred to herein as the
"Collateral Documents"). The Credit Agreement, the Intercreditor Agreement, the
Note, the Forbearance Agreement and the Collateral Documents together are
referred to herein as the "Loan Documents"). The Loan is in default and the
Agent, on behalf of the Holders, has demanded payment and commenced action to
liquidate the Collateral.
D. Imagine now desires to purchase all of Holder's right, title and
interest in and to the Loan, the Note, all Collateral and any other security
therefor, the Collateral Documents and all other Loan Documents, without
recourse or warranties, except as expressly provided in this Agreement, in
exchange for payment of the consideration hereinafter described, upon the terms
and conditions set forth herein.
E. Imagine has conducted its own, independent examination of the Borrower's
financial condition, the Loan Documents, the Collateral and the prospects for
repayment of the Loan. Imagine has not relied upon any statement or assurance
from Holder, any other Holder or the Agent regarding the Borrower, the
Collateral or repayment of the Loan, except as expressly provided in this
Agreement.
F. Guarantor directly or indirectly owns all the outstanding stock of
Imagine.
Agreement:
NOW, THEREFORE, in consideration of payment of the "Consideration," as
hereinafter defined, by Imagine to Holder, and the mutual promises and covenants
contained herein and intending to be legally bound, the parties hereby agree as
follows:
1. Consideration. As consideration for the sale of the Note, Imagine shall
pay, transfer and deliver cash, and Guarantor shall cause Imagine to pay,
transfer and deliver, to Holder at the "Note Closing" (as defined in Section 7
hereof) (i) the sum of $______ in ("Cash Payment"), and (ii) ______ shares of
common stock in Wickes, Inc. (the "Wickes Shares"). (The Cash Payment and the
Wickes Shares are referred to herein as the "Consideration"). The Wickes Shares
shall be represented by either (i) a stock certificate in the name of Holder or
(ii) a stock certificate in the name of Imagine duly executed and assigned into
the name of Holder, signature guaranteed, with duly executed stock power and all
other actions necessary to transfer the Wickes Shares into the name of Holder.
After the Note Closing, Holder shall be deemed for all purposes to be the legal
and beneficial owner of the Wickes Shares, subject only to the Put/Call
described in Section 8 hereof.
2. Assignment of Note. At the Note Closing, Holder shall sell, assign and
deliver to Imagine, without warranty or recourse except as provided in this
Agreement, Holder's entire right, title and interest in and to the Loan, the
Note, all Collateral and other security therefor, the Collateral Documents and
all other Loan Documents, together with any claims that Holder may have against
Borrower arising out of, or in connection with, the Loan, and at the Note
Closing, Imagine agrees to accept such assignment and agrees to be bound by and
perform all of the provisions undertaken by Holder therein. This assignment
specifically includes all "voting" or "consent" rights of Holder under or
related to any and all of the Loan Documents.
3. Representation and Warranties of Imagine and Guarantor. Imagine and
Guarantor, jointly and severally, make the following representations and
warranties to Holder, each of which is true and correct on the date hereof,
shall remain true and correct to and including the Note Closing, shall be
unaffected by any investigation hereinafter made by Holder, and shall survive
the closing of the transactions provided for herein:
(a) Imagine and Guarantor are each corporations duly organized, validly
existing and in good standing under the laws of Delaware with full corporate
power and authority to carry on their respective business as now conducted and
to consummate the
2
transactions contemplated by this Agreement. Imagine and Guarantor have full
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement constitutes the valid and
binding obligation of Imagine and Guarantor in accordance with its terms.
(b) Imagine and Guarantor have previously delivered to Agent copies
of (1) the audited financial statements of Guarantor, prepared on a
consolidating and consolidated basis, for the year ended September 30, 1999,
(the "Audited Financial Statements") and the unaudited interim financial
statements of Guarantor, dated September 30, 2000 (the "Interim Financial
Statement") ("The Audited Financial Statement and the Interim Financial
Statement are collectively referred to herein as the "Financial Statements").
The Audited Financial Statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered by such statements and fairly and accurately present the
financial position of Guarantor. Since the date of the Interim Financial
Statement, Guarantor's financial condition has not deteriorated in any material
respect and Guarantor and its subsidiaries have not suffered any material
adverse change in its business, condition (financial or otherwise), results of
operations, properties or assets.
(c) Imagine has good and marketable title to the Wickes Shares, free
and clear of all liens, encumbrances, contracts, rights, options, restrictions
or assignments whatsoever. The document selling, assigning, conveying and
otherwise transferring from Imagine to Holder the Wickes Shares will grant and
transfer to Holder good and marketable title to the Wickes Shares, free and
clear of all liens, encumbrances, contracts, rights, options, restrictions and
assignments whatsoever, except for the Put/Call provisions contained in Section
8 of this Agreement. The Wickes Shares are not subject to any legend or transfer
restriction and to the best of Imagine's knowledge are duly and validly issued,
fully paid and nonassessable.
4. Representations and Warranties of Holder. Holder makes the following
representation and warranty to Imagine, which is true and correct on the date
hereof, shall remain true and correct to and including the Note Closing, shall
be unaffected by any investigation hereinafter made by Imagine, and shall
survive the closing of the transactions provided for herein;
(a) Holder is the owner and holder of the Note and the rights
assigned hereunder, free and clear of all rights, liens, security interests,
encumbrances and the like, and has not previously pledged, discounted, sold or
released any interest in the Note or rights assigned hereunder. No other party
has any rights in the Note or interest in any of Holder's interests being
assigned hereunder.
(b) To the knowledge of Holder, (i) the only principal payment on the
Note was in the amount of $5,000.00, paid to the Holder; and (ii) interest
payments totaling $298,000.00 were paid to all of the Holders during the year
2000.
3
Except for the foregoing representation and warranty, the Holder makes no
representations or warranties with respect to the Note, the Loan, the
Collateral or repayment prospects. The sale is "AS IS" and Holder does not
guarantee payment by Borrower.
5. Imagine's Deliveries at Note Closing. Imagine shall deliver, and
Guarantor shall cause Imagine to deliver, to Holder at the Note Closing, the
following documents, in each case duly executed and otherwise in proper form
(unless delivery is otherwise waived by the Agent):
(i) Cash Payment (by bank cashier's check or wire transfer of
immediately available funds, as may be requested by Holder).
(ii) A stock certificate or certificates representing the Wickes
Shares, duly endorsed for transfer or with duly executed stock
powers attached, signatures guaranteed.
(iii) Escrow Agreement in the form attached as Exhibit A hereto,
executed by Imagine.
(iv) Payment of all unpaid fees and expenses of Agent and Agent's
counsel, including without limitation the cost of publication of
notices of foreclosure sales and real estate foreclosure title
searches; provided, however, that if less than all of the
Holders agree to sell their Notes to Imagine, then Imagine's
payment of all unpaid fees and expenses of Agent and Agent's
counsel shall be treated as an advance and deducted, pro rata,
from future distributions on all notes. (The parties estimate
that such fees and expenses will be approximately $175,000.)
(v) General Release executed by Borrower in favor of Holder and
Agent in the form attached as Exhibit B.
(vi) Estoppel Agreement executed by Borrower in favor of Imagine
confirming outstanding principal balance and accrued by unpaid
interest on Note and that Note are free of counterclaims or
defenses, in form attached as Exhibit C.
6. Holder's Deliveries at Note Closing. Holder shall deliver to Imagine
at the Note Closing the following documents, in each case duly executed and
otherwise in proper form (unless delivery is otherwise waived by Imagine):
(i) The original Note, accompanied by separate "endorsement" (the
"Endorsements" referencing the Note, executed by Holder "Pay to
the Order of Imagine Investments, Inc. without recourse."
(ii) Notice of Assignment Addressed to Agent.
4
(iii) The Escrow Agreement, together with delivery to Escrow Agent of
the Wickes Shares and stock powers executed in blank to be held
pursuant to the Escrow Agreement.
(iv) Limited Release by Agent in favor of Holder, which release
shall not relieve the Holder of its obligations to indemnify
the Agent pursuant to the Credit Agreement, in the form
attached as Exhibit D.
7. Time and Location of Note Closing. The closing of the assignment of
Note (the "Note Closing") shall occur as soon as practical, but in no event more
than 15 business days from the date of this Agreement. The Parties acknowledge
that the Note Closing may be accomplished by exchange of documents by overnight
courier and telecopy. The parties acknowledge the Note Closing shall be deemed
to have occurred in Jacksonville, Florida.
8. Terms of "Call" and "Put" Upon Wickes Shares.
(a) Call. Except as otherwise provided in Section 8(c),
beginning on the Note Closing Date and ending on December 31, 2001, the Imagine
shall have the absolute, irrevocable and unconditional right and the option to
purchase the Wickes Shares (including, without limitation, all dividends,
distributions, stock splits and the like paid or received with respect of the
Wickes Shares, all of which shall be held by the Escrow Agent) from the Holder
at the Purchase Price as set forth in Section 9(a) hereof and upon the Payment
Terms set forth in Section 9(b) hereof (the "Call"). Imagine shall, if it
desires to exercise the Call, deliver to the Escrow Agent the certificate
attached as Exhibit A to the Escrow Agreement together with payment of the
Purchase Price by wire transfer to the Escrow Agent, both on or before December
31, 2001.
(b) Put. The Holder shall have the absolute, irrevocable and
unconditional right and option to require Imagine to purchase the Wickes Shares
for the Purchase Price as set forth in Section 9(a) hereof and upon the Payment
Terms set forth in Section 9(b) hereof (the "Put"). Except as otherwise provided
in Section 8(c), Holder shall, if it desires to exercise this Put, deliver at
any time on or before December 26, 200l to the Escrow Agent and Imagine the
Certificate attached as Exhibit B to the Escrow Agreement. Imagine shall be
obligated to pay the Purchase Price and close on or before December 31, 2001
unless the Put is accelerated pursuant to Section 8(c) hereof, in which case
Imagine must pay the Purchase Price and close within four (4) business days
following delivery of such accelerated Put notice.
(c) Expiration; Acceleration. The Put Option shall expire and be
of no force and effect unless the written exercise notice is delivered on or
before December 31, 2001. The Call Option shall expire and be of no force and
effect unless the written notice and payment of the Purchase Price to the Escrow
Agent has been received on or before December 31, 2001. In addition, Holder, in
its discretion, may immediately accelerate the Put (and if the Put is exercised
and Imagine fails to pay within four (4) business days) the Call shall be deemed
to be canceled) by written notice to Imagine,
5
Guarantor and Escrow Agent in the event that Imagine or Guarantor (i)
voluntarily files a petition under any chapter of the Bankruptcy Code; (ii) is
subject to an involuntary bankruptcy which is not dismissed within 60 days; or
(iii) commences an assignment for the benefit of creditors or similar insolvency
proceeding.
(d) Time is of the Essence. Time is of the essence for exercise
of the Put and Call and Payment of the Purchase Price.
(e) Guarantee by Guarantor. Guarantor hereby unconditionally and
irrevocably guarantees the payment and performance of Imagine under the Put/Call
option, including without limitation the timely payment of the Purchase Price,
including any increase in the Purchase Price following default and collection
expenses. Imagine and Guarantor agree that if the Put or Call is exercised,
payment of the Purchase Price shall be made in full without offset, deduction,
setoff or defense of any kind or nature whatsoever, and the entire Purchase
Price must be paid in cash.
(f) Default Interest Rate. In the event the Put or Call is
exercised and Imagine fails to pay to Holder the Purchase Price when due, the
amount due shall be increased by eighteen percent interest per annum, accruing
on a daily basis, until actually paid.
9. Purchase Price and Payment Terms.
(a) Purchase Price. The "Purchase Price" shall be $5.025 per share.
The Purchase Price per Wickes Share shall increase $0.05 each calendar month
beginning March 1, 2001, until the Put/Call Closing, which $0.05 increase shall
be pro rated over the course of the month in which the Put/Call Closing occurs.
For example, if the Put/Call Closing occurs in a thirty-day month, then on the
first day of such month the Purchase Price shall be the Purchase Price as of the
end of the prior month plus $0.00167, and if the Put/Call Closing occurs on the
thirtieth day of such thirty-day month, then the Purchase Price shall be the
Purchase Price as of the end of the prior month plus $0.05. The amount of the
Purchase Price shall be calculated by multiplying the number of Wickes Shares
initially deposited in escrow by the appropriate Purchase Price per share (based
on the month). The Purchase Price shall not be adjusted for stock splits,
dividends or distribution with regard to the Wickes Shares. The Purchase Price
shall be paid by wire transfer of immediately available Funds.
(b) Payment Terms. The Purchase Price shall be due and payable by
Imagine to Holder entirely in immediately available funds at the time of
delivery to Escrow Agent of the Call Notice or within four business days
following delivery of the Put Notice, which Put Notice may be delivered at any
time before December 26, 2001, provided that in no event shall the Purchase
Price be due and payable before December 26, 2001, except in the event of
acceleration as provided in Section 8(c) hereof. Payment shall be by wire
transfer of immediately available Funds to the Escrow Agent, for the account of
Holder (the "Payment Terms").
6
(c) No Sales. Until the Put/Call Closing or January 2, 2001 (whichever
occurs first), Holder shall not sell, or offer for sale, any of the Wickes
Shares or sell or offer for sale to Imagine in accordance with the Call or Put
rights set forth in this Assignment any sale which is expressly subject to the
Put/Call option and proxy and in which the Holder expressly agrees to be bound
by this Agreement and the Escrow Agreement and deliver documentation reasonably
acceptable to Escrow Agent and Imagine. Holder acknowledges that in any such
sale, the certificate shall not be delivered to the Holder until expiration of
the Put/Call and no such Put or Call being exercised.
(d) Closing in Third Party's Name. In the event the Put or Call is
exercised, Imagine may cause the purchase to be closed in the name of a third
party purchaser designated by Imagine, provided that Imagine and Guarantor shall
not be directly and primarily liable for the payment of the Purchase Price to
Holder and any assignment shall not release Imagine or Holder from any
obligations under this Agreement.
10. Imagine's Grant of Proxy. Effective at the Note Closing and
termination December 31, 2001 (or the earlier exercise of the Put/Call option),
Holder grants Imagine an irrevocable proxy, coupled with an interest, to vote
the Wickes Shares and to any successor proxies to vote the Wickes Shares.
11. Further Acts. Holder agrees that the Holder will, at any time, and
from time to time, after the date hereof, upon the request of Imagine, do,
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, all such future acts, assignments, transfers,
conveyances, documents and assurances, as may be requested to complete the
transactions contemplated herein.
12. Counterparts and Facsimile. This Assignment, and any other documents
referenced herein, may be executed by counterparts, and by signatures to
documents transmitted by facsimile, and all such facsimile signatures and
counterparts shall be deemed original signatures binding on the parties.
13. Binding Effect. This Assignment shall be binding upon and inure to
their respective heirs, personal representatives, successors and assigns of
Holder and Imagine.
14. Law Governing Agreement. This Agreement shall be governed, construed
and interpreted according to the internal laws of the State of Florida,
excluding any choice of law rules that may direct the application of the laws of
another jurisdiction.
15. Submission to Jurisdiction.
(a) ANY AND ALL SUITS, LEGAL ACTIONS OR PROCEEDINGS ARISING OUT OF
THIS AGREEMENT AND THE TRANSACTIONS ARISING FROM THIS AGREEMENT SHALL BE
BROUGHT IN FLORIDA STATE COURT IN JACKSONVILLE, FLORIDA OR UNITED STATES
FEDERAL DISTRICT COURT SITTING IN THE STATE OF FLORIDA IN JACKSONVILLE,
FLORIDA AND EACH PARTY HEREBY SUBMITS TO AND ACCEPTS THE EXCLUSIVE
JURISDICTION OF
7
SUCH COURTS FOR THE PURPOSE OF SUCH SUITS, LEGAL ACTIONS OR PROCEEDINCS. IN
ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING, EACH PARTY WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE
THEREOF MAY BE MADE BY CERTIFICATE OR REGISTERED MAIL DIRECTED TO IT AT ITS
ADDRESS SET FORTH BELOW. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OR ANY SUCH SUIT, LEGAL ACTION OR
PROCEEDING IN ANY SUCH COURT AND HEREBY FURTHER WAIVES ANY CLAIM THAT ANY
SUIT, LEGAL ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. ASSIGNEE AND GUARANTOR ACKNOWLEDGE AND AGREE THAT
THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS IN JACKSONVILLE,
FLORIDA AS AN ESSENTIAL, SEPARATELY BARGAINED FOR, TERM OF THIS AGREEMENT.
(b) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS
AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THE WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER
VOLUNTARILY, AND AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
16. Notice. All notices, requests, demands and other communications
hereunder shall be given in writing and shall be: (a) personally delivered; (b)
sent by telecopier, facsimile transmission or other electronic means of
transmitting written documents; or (c) sent to the parties at their respective
addresses indicated herein by registered or certified U.S. mail, return receipt
requested and postage prepaid, or by private overnight mail courier service. The
respective addresses to be used for all such notices, demands or requests are as
follows:
(a) If to Holder, to the address set forth on the signature page
hereto;
8
(with a copy to)
Mitchell W. Legler, Esq.
300A Wharfside Way
Jacksonville, FL 32207
(and with a copy to)
Gardner F. Davis, Esq.
Foley & Lardner
200 Laura Street
Jacksonville, FL 32202
Facsimile: (904) 359-8700
or to such other person or address as Holder shall furnish to Imagine and
Guarantor in writing.
(b) If to Imagine, to:
Imagine Investments, Inc.
8105 North Central Expressway, Suite 1901
Dallas, TX 75206
Attention: Gary Goltz
Facsimile: (214) 365-6905
(with a copy to)
Michael Fleishman, Esquire
Greenbaum Doll & McDonald PLLC
3300 National City Tower
101 South Fifth Street
Louisville, KY 40202-3197
Facsimile: (502) 540-2106
or to such other person or address as Imagine shall furnish to Holder and
Guarantor in writing.
9
(c) If to Guarantor, to:
Stone Holdings, Inc.
8150 North Central Expressway, Suite 1901
Dallas, TX 75206
Attn: Gary Goltz
Facsimile: (214) 365-6905
(with a copy to)
Michael Fleishman, Esquire
Greenbaum Doll & McDonald PLLC
3300 National City Tower
101 South Fifth Street
Louisville, KY 40202-3197
Facsimile: (502) 540-2106
or to such other person or address as Guarantor shall furnish to Holder and
Imagine in writing.
If personally delivered, such communication shall be deemed delivered upon
actual receipt; if electronically transmitted pursuant to this paragraph, such
communication shall be deemed delivered the next business day after transmission
(and sender shall bear the burden of proof of delivery); if sent by overnight
courier pursuant to this paragraph, such communication shall be deemed delivered
upon receipt; and if sent by U.S. mail pursuant to this paragraph, such
communication shall be deemed delivered as of the date of delivery indicated on
the receipt issued by the relevant postal service, or, if the addressee fails or
refuses to accept delivery, as of the date of such failure or refusal. Any party
to this Agreement may change its address for the purposes of this Agreement by
giving notice thereof in accordance with this Section.
17. Costs of Litigation. The parties agree that the prevailing party in any
action, proceeding or litigation (including bankruptcy) brought with respect to
or to enforce any right or remedy under this Agreement (including without
limitation the Put and Call and enforcement of the Guarantor's obligations)
shall be entitled to recover from the other party or parties all reasonable
costs and expenses of any nature whatsoever incurred by the prevailing party in
connection with such action, including without limitation attorneys' fees and
prejudgment interest.
18. Entire Agreement. This instrument embodies the entire agreement between
the parties hereto with respect to the transactions contemplated herein, and
there have been and are no agreements, representations or warranties between the
parties other than those set forth or provided for herein. All negotiations are
merged into this Agreement.
10
19. Construction. Each of the parties to this Agreement has participated
equally in the drafting of this Agreement and this Agreement shall not be
construed against any party on the basis of the Agreement having been drafted by
such party. The language used in this Agreement shall by deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against any person.
20. Counterparts. 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.
21. Survival of Representation and Warranties. The representations,
warranties, covenants and undertakings contained in this Agreement shall survive
Closing and the consummation of the transactions contemplated herein.
22. Headings. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
23. Consent to Agent's Resignation. Holder and Imagine hereby consent to
Agent's resignation pursuant to Section 13.8 of the Credit Agreement, if Agent
deems such resignation appropriate in Agent's sole discretion, and Imagine
further hereby waives all notice requirements of Section 13.8 of the Credit
Agreement.
24. Glossary of Terms. The following sets forth the location of definitions
of capitalization terms defined in the body of this Agreement:
Call - Section 8(a)
Cash Payment - Section 1
Consideration - Section 1
Note Closing - Section 7
Payment Terms - Section 9(b)
Purchase Price - Section 9(a)
Put - Section 8(b)
Wickes Shares - Section 1
Where any group or category of items or matters is defined collectively in
the plural number, any item or matter within such definition may be referred to
using such defined term in the singular number.
25. Entire Agreement. This instrument embodies the entire agreement
between the parties hereto with respect to the transactions contemplated herein,
and there have been and are no agreements, representations or warranties among
the parties other than those set forth or provided for herein or in the
documents described herein.
11
IN WITNESS WHEREOF, this Assignment has been executed by the parties hereto
as of the day, month and year first above written.
By:_________________________________
Name:
Title
Address:
Imagine Investments, Inc.
By: _________________________________
("Imagine")
_________________________)
) SS:
_________________________)
The foregoing instrument was acknowledged before me on this day of
___________, 2001 by ___________________________.
_____________________________________
Notary Public
My Commission Expires:
12