Exhibit 10(i)
STOCK PURCHASE AGREEMENT
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THIS AGREEMENT made this 11th day of April, 2000, by and between Public Venture
Capital, LLC, a New Jersey Limited Liability Company, hereinafter referred to as
"Seller" and Techlabs, Inc., a Florida corporation, hereinafter referred to as
"Purchaser" or "Techlabs". HandRes, Inc. a New Jersey corporation (the
"Company") and each of the stockholders of the Company named on the signature
page hereof (the "Stockholders") shall also execute this Agreement.
RECITAL
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The Company is in the business of developing technology and,
manufacturing, distributing and otherwise providing products and services
relating to wireless travel and reservations applications, including those
involving the Internet and hand held and portable computers.
1. SALE OF SHARES
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Subject to the terms and conditions herein the Seller shall sell to the
Purchaser 1,250,000 shares of the Company's Common Stock ("Common Stock"), no
par value (the "Purchased Shares"). The Purchased Shares will be offered and
sold to the Purchaser without being registered under the Securities Act of 1933,
as amended (the "Act"), or in reliance on exemptions therefrom. Moreover, the
Purchaser shall be entitled to the benefits of a Company Registration Rights
Agreement dated the 28th day of January, 2000, a copy of which is attached as
Exhibit A hereto (the "Company Registration Rights Agreement"). The assignment
of the Company Registration Rights Agreement to the Purchaser shall be a
condition precedent to the Purchaser's obligations hereunder.
In consideration for the sale of the Purchased Shares by the Seller to
the Purchaser hereunder, the Purchaser shall issue to the Seller at the Closing
(as hereinafter defined) 300,000 shares of its common stock, $.01 par value per
share (the "Purchase Price"). The shares of common stock representing the
Purchase Price are being issued to the Seller hereunder pursuant to Rule 506 of
Regulation D of the Act. In connection with such issuance, the Purchaser has
granted registration rights to the Seller with respect to such common stock
pursuant to a Registration Rights Agreement dated the date hereof by and between
Purchase and Seller (the "Purchaser Registration Rights Agreement"), a copy of
which is attached as Appendix 1 hereto.
2. REPRESENTATIONS AND WARRANTIES.
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The Seller represents and warrants to and agrees with the Purchaser
that:
(a) As of the Closing Date, the Company shall have the authorized,
issued
and outstanding capitalization set forth on Schedule 2A. The Company has no
subsidiaries; all of the outstanding shares of Common Stock of the Company is
duly authorized and validly issued, are fully paid and nonassessable and were
not issued in violation of any preemptive or similar rights; there are no
classes of capital stock or securities of the Company, other than the Common
Stock and the preferred stock set forth on Schedule 2A; all of the Purchased
Shares will be validly issued and outstanding; the Purchaser will be vested with
good and marketable title to the Purchased Shares, free and clear of all liens,
encumbrances, equities and claims, security interests, agreements, rights of
third parties or restrictions on transferability ("Liens") (other than those
imposed by this Agreement and the Act and the securities or "Blue Sky" laws of
certain jurisdictions); there are no (i) options warrants or other rights to
purchase, (ii) agreements or other obligations to issue or (iii) other rights to
convert any obligation into, or exchange any securities for, shares of capital
stock of or ownership interests (including preferred stock) in the Company. The
Company does not own, directly or indirectly, any shares of capital stock or any
other equity or long term debt securities or have any equity interest in any
firm, partnership, joint venture or other entity. Moreover, the Purchaser
acknowledges the restrictions and other provisions contained in that certain
Purchase Agreement by and between the Company and the Seller dated January 28,
2000, as amended pursuant to the Amendment No. 1 To Purchase Agreement dated
February 18, 2000 (the "Purchase Agreement"). Such restrictions and provisions
shall continue to apply to the shares of Common Stock held by the Seller and the
Stockholders immediately following the Closing. The Company, the Seller and the
Stockholders hereby agree that the Purchased Shares, upon transfer to the
Purchaser at the Closing, shall no longer be subject to any of the terms and
conditions set forth in the Purchase Agreement.
(b) The Company is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite corporate power and authority to own its properties and conduct its
business as now conducted; copies of the current Certificate of Incorporation
and Bylaws of the Company are attached as Exhibits 2B and 2C hereto. The Company
is duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to
be so filed would not, individually or in the aggregate, have a material adverse
effect on the era affairs, management, business, condition (financial or
otherwise), prospects or results of operations of the Company.
(c) The Seller has all requisite corporate power and authority to
execute and deliver this Agreement and perform its obligations hereunder and to
transfer the Company Registration Rights Agreement to the Purchaser. This
Agreement, the Company Registration Rights Agreement and the Purchaser
Registration Rights Agreement have each been executed and delivered, and
constitute the valid and legally binding agreements of the Company and the
Seller, enforceable against the Company and the Seller and in accordance with
its terms, except that (A) the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
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principles of equity and the discretion of the court before which any proceeding
therefor may be brought and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public policy
considerations. The Seller hereby assigns to the Purchaser, and the Purchaser
hereby assumes from the Seller, all of the Seller's rights and obligations in,
to and under the Company Registration Rights Agreement with respect to the
Purchased Shares, and the Company and the Stockholders hereby consent to such
assignment and assumption.
(d) No consent, approval, authorization, order of, license,
filing, recording or registration with or exemption by any court or governmental
agency or body or third party is required for (i) the issuance and sale by the
Seller of the Purchased Shares, or (ii) the consummation by the Company and each
of its Stockholders of the other transactions contemplated hereby, except such
as have been obtained. and such as may be required under state securities or
"Blue Sky" laws in connection with the purchase and resale of the Purchased
Shares by the Purchaser. The Seller is not (i) in violation of its certificate
of formation or operating agreement, (ii) in breach or violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them or any of
their respective properties or assets, or (iii) in breach of or default under
(nor has any event occurred which, with notice or passage of time or both, would
constitute a default under) or in violation of any of the terms or provisions of
any indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract or other agreement or
instrument (collectively, a "Contract").
(e) There is not pending or, to the knowledge of the Company and/or
Seller, threatened, any action, suit, proceeding, inquiry or investigation to
which the Company is a party, or to which the property or assets of the Company
is subject, before or brought by any court, arbitrator or governmental agency or
body.
(f) The Company has filed all necessary federal, state and foreign
income and franchise tax returns (the "Returns"), and has paid all taxes shown
as due thereon. The Returns accurately reflect in all material respects all
liability for taxes of the Company for the periods concerned thereby and there
is no tax deficiency that has been asserted against the Company that would have,
individually or in the aggregate, a Material Adverse Effect.
(g) The Company owns all right, title and interest in and to any and
all technology, patents, trademarks and intellectual property in any way related
to or associated with the Company's Business previously owned in whole or in
part at any time by any of the Stockholders, Syvax, Inc. or any affiliate of any
of the foregoing, including the intellectual property described in Exhibit 5A
(the "Technology"); provided, that no representation is made that there are not
any persons or entities with competing ownership claims to any of the
Technology, provided, further, that none of the Stockholders has any knowledge
of any such competing ownership claims. The Company has good and marketable
title to the Technology free and clear of all Liens.
(h) The Company does not have, nor has it ever had, any employees other
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Xxxxx Xxxx, Xxxx Xxxxx, Xxxx X Xxxxxx, Xxxxxx X Xxxx, Xxxxxxx Xxxxxxx and Xxxxx
Xxxxxx.
(i) No holder of securities of the Company is currently entitled to
have such securities registered under the registration statements required to be
filed by the Company pursuant to the Company Registration Rights Agreement other
than as expressly permitted thereby.
(j) Neither the Company, the Seller, nor any of its respective
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
directly, or through any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any "security" (as defined in the
Act) that is or could be integrated with the sale of the Purchased Shares in a
manner that would require the registration under the Act of the Purchased Shares
or (ii) engaged in any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Act) in connection with the
offering of the Purchased Shares or in any manner involving a public offering
within the meaning of Section 4(2) of the Act.
Assuming the accuracy of the representations and warranties of the
Parties hereto, it is not necessary in connection with the offer, sale and
delivery of the Purchased Shares to the Purchaser in the manner contemplated by
this Agreement to register any of the Purchased Shares under the Act.
3. THE CLOSING.
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3.1 The "Closing" shall take place at the Purchaser's Office, 0000 Xxxx
Xxxxx Xxxxx, Xx. Xxxxxxxxxx, XX 00000, simultaneously with the execution and
delivery of this Agreement.
3.2. Simultaneously with the execution and delivery of this Agreement,
at the Closing (or such later date indicated below), the Seller, as applicable,
are delivering or causing to be delivered to the Purchaser the following:
(i) within ten business days hereof, certificates representing
the Purchased Shares;
(ii) a duly executed copy of each of this Agreement and the
Purchaser Registration Rights Agreement (the "Transaction Agreements");
(iii) a copy of the resolutions of the Members of the Seller
duly authorizing the execution and delivery of this Agreement and each of the
other agreements and documents referred to herein and the performance of the
transactions contemplated hereby and thereby, which resolutions shall be
certified as true, correct and effective as of the date hereof by the Secretary
of the Seller and which shall be satisfactory to the Purchaser; and
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(iv) such other instruments and documents as the Purchaser's
Attorney shall reasonably request.
(b) Simultaneously with the execution and delivery of this Agreement,
at the Closing (or such later date indicated below), the Purchaser is delivering
to the Company the following:
(i) Certificates representing the Purchaser's shares of its
Rule 144 Common Stock comprising the Purchase Price, pursuant to Paragraph 1
above; and
(ii) A duly executed copy of each of the Transaction
Agreements to which the Purchaser is a party.
4. Covenants of the Seller.
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The Seller covenants and agrees with the Purchaser that:
(a) Registration of Transfer by the Purchaser. No transfer of the
Purchased Shares by the Purchaser (other than transfers pursuant to a Registered
Offering) shall be effective (and the Company shall not transfer on its books
any such shares) unless (i) the certificates representing such Purchased Shares
issued to the transferee shall bear the legends provided herein, if required by
such Section. In addition, no transfer of Purchased Shares shall be made by any
Purchaser unless such transfer is effected in connection with a Registered
Offering or is exempt from registration under Act, and the Company, should it so
request, has received a written legal opinion reasonably satisfactory to its
counsel that the proposed transfer is exempt from such registration and
otherwise complies with all applicable securities laws. No transfer of Purchased
Shares shall be effective unless the transferee agrees in writing to be subject
to the restrictions of this Section and Section 5.
(b) Legend. In the event that any shares of Purchased Shares become
free of the rights and restrictions imposed by this Agreement, the Purchaser
shall be entitled to receive promptly upon presentment to the Company of the
certificate or certificates evidencing the same, a new certificate or
certificates not bearing the restrictive legend provided for herein. In the
event that any shares of Purchased Shares are (i) transferred in connection with
a Registered Offering, or (ii) transferred pursuant to an exemption from
registration under the Securities Act and the Company has received a written
legal opinion, reasonably satisfactory to its counsel, as to the availability of
and compliance with such exemption and that such shares need not bear the
restrictive legend set forth herein, the Company shall issue a new certificate
or certificates representing such securities not bearing such legend.
5. Legend. Each stock certificate representing shares of Purchased
Shares, including any shares upon subsequent transfer, shall bear the following
legend:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
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REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS, AND MAY BE OFFERED, PLEDGED, SOLD, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF ONLY IF REGISTERED PURSUANT TO THE
PROVISIONS OF THE ACT AND SUCH LAWS, OR IF AN EXEMPTION FROM REGISTRATION IS
AVAILABLE.
6. Purchaser's Representations. The Purchaser represents and warrants
that:
(a) The Purchaser understands that (i) the Common Stock have not been
registered under the Act or registered or qualified under applicable state
securities laws by reason of their issuance by the Company and the Stockholders,
as applicable, in a transaction exempt from the registration and qualification
requirements of the Securities Act and applicable state securities laws, and
(ii) the Common Stock may be transferred by the Purchaser only if a subsequent
disposition thereof is registered or qualified under the Securities Act and
applicable state securities laws or is exempt from such registration or
qualification.
(b) The Purchaser has not employed any broker or finder or similar
person in connection with the transactions contemplated by this Agreement.
(c) The Company has made available to the Purchaser or its
representatives all agreements, documents, records and books that the Purchaser
has requested relating to an investment in the Common Stock. The Purchaser has
had an opportunity to ask questions of, and receive answers from, Persons acting
on behalf of the Company and the Stockholders concerning the terms and
conditions of this investment. The Purchaser has such knowledge and experience
in financial and business matters that it is capable of evaluating the risks and
merits of its investments in the Common Stock.
(d) The Purchaser further understands that this Agreement is made with
the Purchaser in reliance in part upon the Purchaser's representations to the
Company contained in this Section.
(e) As of the Closing Date, the Purchaser shall have the authorized,
issued and outstanding capitalization set forth in its financial statements
dated September 30, 1999 (the "Purchaser Financial Statement Date"), a copy of
which are attached as Appendix 6A hereto (the "Purchaser Financial Statements"),
except that the Purchaser has issued additional shares of common stock since the
Purchaser Financial Statement Date such that the number of shares of common
stock outstanding is now approximately 7,300,000, but not more than 7,400,000;
all of the outstanding shares of Common Stock of the Purchaser is duly
authorized and validly issued, are fully paid and nonassessable and were not
issued in violation of any preemptive or similar rights; there are no classes of
capital stock or securities of the Purchaser except those disclosed in the
Financial Statements; all of the shares of common stock of the Purchaser
representing Purchase Price will be validly issued and outstanding; the Seller
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will be vested with good and marketable title to the Purchased Shares, free and
clear of all liens, encumbrances, equities and claims, security interests,
agreements, rights of third parties or restrictions on transferability ("Liens")
(other than those imposed by this Agreement and the Act and the securities or
"Blue Sky" laws of certain jurisdictions); except as disclosed in the Purchaser
Financial Statements, there are no (i) options warrants or other rights to
purchase, (ii) agreements or other obligations to issue or (iii) other rights to
convert any obligation into, or exchange any securities for, shares of capital
stock of or ownership interests (including preferred stock) in the Purchaser.
The Purchaser does not own, directly or indirectly, any shares of capital stock
or any other equity or long term debt securities or have any equity interest in
any firm, partnership, joint venture or other entity.
(f) The Purchaser is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite corporate power and authority to own its properties and conduct its
business as now conducted; copies of the current Certificate of Incorporation
and Bylaws of the Purchaser are attached as Exhibits 6B and 6C hereto. The
Purchaser is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so filed would not, individually or in the aggregate,
have a material adverse effect on the era affairs, management, business,
condition (financial or otherwise), prospects or results of operations of the
Purchaser.
(g) The Purchaser has all requisite corporate power and authority to
execute and deliver this Agreement and the Purchaser Registration Rights
Agreement and perform its obligations hereunder and thereunder and to assume the
Company Registration Rights Agreement from the Purchaser. This Agreement has
been executed and delivered, and, this Agreement and the Company Registration
Rights Agreement as assumed hereunder each constitutes the valid and legally
binding agreement of the Purchaser and the Purchaser, enforceable against the
Purchaser and the Purchaser and in accordance with its terms, except that (A)
the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought and (B) any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy considerations.
(h) No consent, approval, authorization, order of, license, filing,
recording or registration with or exemption by any court or governmental agency
or body or third party is required for (i) the issuance and sale by the
Purchaser to the Seller of the shares of common stock representing the Purchase
Price, or (ii) the consummation by the Purchaser of the other transactions
contemplated hereby, except such as have been obtained and such as may be
required under state securities or "Blue Sky" laws in connection with the
purchase and resale of the Purchased Shares by the Purchaser. The Purchaser is
not (i) in violation of its Articles of Incorporation or bylaws, (ii) in breach
or violation of any statute, judgment, decree, order, rule or regulation
applicable
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to any of them or any of their respective properties or assets, or (iii) in
breach of or default under (nor has any event occurred which, with notice or
passage of time or both, would constitute a default under) or in violation of
any of the terms or provisions of any indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, permit, certificate,
contract or other agreement or instrument (collectively, a "Contract").
(i) There is not pending or, to the knowledge of the Purchaser and/or
Purchaser, threatened, any action, suit, proceeding, inquiry or investigation to
which the Purchaser is a party, or to which the property or assets of the
Purchaser is subject, before or brought by any court, arbitrator or governmental
agency or body.
(j) The Purchaser has filed all necessary federal, state and foreign
income and franchise tax returns (the "Returns"), and has paid all taxes shown
as due thereon. The Returns accurately reflect in all material respects all
liability for taxes of the Purchaser for the periods concerned thereby and there
is no tax deficiency that has been asserted against the Purchaser that would
have, individually or in the aggregate, a Material Adverse Effect.
(k) The Purchaser Financial Statements present fairly in all material
respects the financial position, results of operations and cash flows of the
Purchaser the dates and for the periods to which they relate and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis, except as otherwise stated therein. Reel and Xxxxxxxx (the
"Independent Accountants") is an independent public accounting firm within the
meaning of the federal securities laws.
(l) Since the Purchaser Financial Statement Date, except as disclosed
in filings with the United States Securities and Exchange Commission, (i) the
Purchaser has not incurred any liabilities or obligations, direct or contingent,
or entered into or agreed to enter into any transactions or contracts (written
or oral) not in the ordinary course of business, which liabilities, obligations,
transactions or contracts would, individually or in the aggregate, be material
to the general affairs, management, business, condition (financial or
otherwise), prospects or results of operations of the Purchaser, (ii) the
Purchaser has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its capital
stock (other than with respect to any of such Subsidiaries, the purchase of, or
dividend or distribution on, capital stock owned by the Company), (iii) there
shall not have been any material change in the capital stock or long-term
indebtedness of the Purchaser and (iv) no event or circumstance has occurred
that has had, or could reasonably be expected to have, a material adverse effect
on the business or property of the Purchaser.
(m) The Purchaser does not have any liability for any prohibited
transaction or funding deficiency or any complete or partial withdrawal
liability with respect to any pension, profit sharing or other plan which is
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), to which the Purchaser makes or
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ever has made a contribution and in which any employee of the Purchaser is or
has ever been a participant. With respect to such plans, the Purchaser is in
compliance in all material respects with all applicable provisions of ERISA.
(n) The Purchaser (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable assurance
that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(o) The Purchaser is not and will not be an "investment company" or
"promoter" or "principal underwriter" for an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
(p) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair salable value of
the assets of the Purchaser will exceed the sum of its stated liabilities and
identified contingent liabilities; the Purchaser is not, and will not be, after
giving effect to the execution, delivery and performance of this Agreement, and
the consummation of the transactions contemplated hereby, (a) left with
unreasonably small capital with which to carry on its business as it is proposed
to be conducted, (b) unable to pay its debts (contingent or otherwise) as they
mature or (c) otherwise insolvent.
(q) It is not necessary in connection with the offer, sale and delivery
of the common stock of the Purchaser representing the Purchaser Price being
transferred to the Seller in the manner contemplated by this Agreement to
register any of such common stock under the Act.
(r) The Purchaser has not taken, nor will any of them take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the securities
of the Purchaser being transferred to the Seller hereunder as the Purchase
Price.
(s) No filing made by the Purchaser with the United States
Securities and Exchange Commission or state government or agency regulating
securities (including reports on Form 10-K or 10-Q) includes any statement that
is misleading in any material respect or omits any information that makes such
filing misleading in any material respect.
7. Indemnification and Contribution.
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(a) Indemnification by the Seller. The Seller agrees to indemnify and
hold harmless (i) the Purchaser; (ii) each Person, if any, who controls (within
the meaning of
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Section 15 of the Act or Section 20 of the Act) any such Person referred to in
clause (i) (any such Person referred to in this clause (ii), a "Controlling
Person"); and (iii) the respective officers, directors, managing directors,
stockholders, partners, employees, representatives, trustees, fiduciaries and
agents of any Person referred to in clause (i) or any such Controlling Person
(any such Person referred to in clause (i), (ii) or (iii), a "Purchaser
Indemnified Person") against any losses, claims, damages or liabilities, joint
or several, to which such Purchaser Indemnified Person may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (A) any inaccuracy in any of the
representations and warranties of the Seller contained herein and (B) the
failure of the Seller to perform its obligations hereunder and will reimburse
each such Purchaser Indemnified Person for any reasonable legal and other
expenses incurred by such Purchaser Indemnified Person in connection with
investigating or defending any such action or claims as such expenses are
incurred. Notwithstanding anything to the contrary contained herein, any claim
against Seller under this Agreement for breach of a representation or warranty
contained herein shall be made within two years after the date hereof.
Notwithstanding anything to the contrary contained herein, the Seller's
obligations to indemnify the Purchaser shall be limited as follows: (i) the
Seller shall not be liable for any claims, damages or losses arising from any
breach of a representation or warranty as to the assets, financial condition or
securities of the Company unless the Seller has received indemnification under
the Purchase Agreement for such breach, and is able to recover the related
claim, damage or loss under such Purchase Agreement indemnification provisions,
it being understood that the Seller is under no obligation to seek such
indemnification if, in its sole discretion, it deems recovery unlikely or
unadvisable, (ii) the aggregate amount of the indemnification by Seller
hereunder shall be limited to an amount equal to the number of shares of the
Purchaser's common stock representing the Purchase Price multiplied by the
average trading price per share of such stock for the five business days
preceding and including the date of the Closing, and (iii) the Seller shall not
be obligation to indemnify the Purchaser until the aggregate amount of damages,
claims and losses exceeds $5,000.
(b) Indemnification by the Purchaser. The Purchaser agrees to indemnify
and hold harmless (i) the Seller; (ii) each Controlling Person of the Seller;
and (iii) the respective officers, directors, employees, representatives and
agents of the Seller and each of its Stockholders or any such Controlling Person
(any such Person referred to in clause (i), (ii) or (iii), a "Company
Indemnified Person") against any losses, claims, damages or liabilities, joint
or several, to which such Company Indemnified Person may become subject, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any inaccuracy of any of such Purchaser's
representations and warranties contained herein and will reimburse the Seller
Indemnified Persons for any legal and other expenses reasonably incurred by the
Seller Indemnified Persons in connection with investigating or defending any
such actions or claims as such expenses are incurred. Notwithstanding anything
to the contrary contained herein; any claim against the Purchaser under this
Agreement for breach of a representation or warranty contained herein shall be
made within two years after the date hereof, except for claims resulting from
the willful misconduct or fraud of the Purchaser.
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(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by a Purchaser Indemnified Person or a Company Indemnified Person (each
"Indemnified Person") of notice of the commencement of any action, such
Indemnified Person shall, if a claim in respect thereof is to be made against an
indemnifying party under Section 7(a) or Section 7(b), as applicable, notify
such indemnifying party in writing of the commencement thereof, but the omission
so to notify the Indemnifying party will not relieve it from any liability that
it may have to any Indemnified Person otherwise than under Section 7(a) or
Section 7(b), as applicable, or to the extent it is not materially prejudiced as
approximate result of such failure. In case any such action is brought against
any Indemnified Person and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it shall elect within 30 days after receiving
any such notification, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
Indemnified Person (who shall not, except with the consent of the Indemnified
Person, be counsel to the indemnifying party, which consent shall not be
unreasonably withheld), and, after notice from the indemnifying party to such
Indemnified Person of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such Indemnified Person under such
paragraph for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such Indemnified Person, in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
the foregoing, any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the Indemnified Person
unless (i) the Indemnified Person shall have been advised by counsel that
representation of the Indemnified Person by counsel provided by the indemnifying
party would be inappropriate due to actual or potential conflicting interests
between the indemnifying party and the Indemnified Person, including situations
in which there are one or more legal defenses available to the Indemnified
Person that are different from or additional to those available to the
indemnifying party; (ii) the indemnifying party shall have authorized in writing
the employment of counsel for the Indemnified Person at the expense of the
indemnifying party; or (iii) the indemnifying party shall have failed to assume
the defense or retain counsel reasonably satisfactory to the Indemnified Person
within a reasonable period of time after receipt of the notice of commencement
of any action pursuant to Section 7(a) or 7(b); provided however, that the
indemnifying party shall not, in connection with any one such action or
proceeding or separate but substantially similar actions or proceedings arising
out of the same general allegations, be liable for the fees and expenses of more
than one separate firm of attorneys at any time for all Indemnified Persons,
except to the extent that local counsel, in addition to their regular counsel,
is required in order to effectively defend against such action or proceeding or
as otherwise provided pursuant to this Section. No indemnifying party shall,
without the written consent of the Indemnified Person, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or
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not the Indemnified Person is an actual or potential panty to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the Indemnified Person from all liability arising out
of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified Person.
(d) The rights of the Seller and the Purchaser under this Section 7
shall be the sole and exclusive remedy of the Seller and the Purchaser,
respectively, with respect to claims resulting from or relating to any
misrepresentation, breach of warranty or failure to perform any covenant or
agreement of the Seller or the Purchaser, respectively in this Agreement.
8. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements set forth in this
Agreement or made by or on behalf of them pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the any party hereto, any of its officers or directors, or any
controlling person referred to herein, (ii) delivery of and payment for the
Purchased Shares or the Purchase Price, or (iii) any sale, transfer or other
disposition of any Purchased Shares or common stock representing the Purchase
Price by either the Seller or the Purchaser.
9. Notices. All communications hereunder shall be in writing and shall
be mailed or delivered to:
If to the Company: HandRes, Inc.
000 Xxxxx Xxxx
Xxx Xxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Attn: President
With copy to: Xxxxxx Zero Xxxxx & Xxxxx, PC
1E00 Xxxxxxxx Avenue, CN 0000
Xxxxx Xxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx, Esquire
If to the Seller: Public Venture Capital, LLC
0000 Xxxxxxx 00 Xxxxx
Xxxxx 0
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: President
With a copy to: Xxxx Xxxxx & Xxxxxx PC
000 Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx
If to the Purchaser: Techlabs, Inc.
0000 Xxxx Xxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
With copy to: Xxxxx X. Xxxxxxxxx, Esquire
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
If to any of the Stockholders, to such Stockholder at the Company's
address listed above, as it may be changed as set forth below.
All such notices and communications shall be deemed to have been duly
given: on the date delivered if delivered personally or sent by facsimile (with
electronic confirmation by the sending party together with a copy sent by U.S,
mail as set forth below). one business day following deposit with a reputable
overnight courier, or three business days after deposit in the U.S. mail if
mailed by certified or registered mail, return receipt requested. The foregoing
addresses may be modified only by providing prior notice to all other parties of
such change.
10. Successors and Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their successors and assigns.
Except as provided in this Agreement, no party may assign its rights,
obligations and duties under this Agreement, without the written consent of all
of the parties hereto.
11. Applicable Law. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY PROVISIONS
THEREOF RELATING TO CONFLICTS OF LAW.
12. Entire Agreement. This Agreement (including the Appendices,
agreements, documents and instruments referred to herein) constitutes the entire
agreement, and supersedes all other prior agreements and understandings, both
written and oral, among the parties, or any of them with respect to the subject
matter hereof.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall
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constitute one and the same instrument. If the foregoing correctly sets forth
our understanding, please indicate your acceptance thereof in the space provided
below for that purpose, where upon this letter shall constitute a binding
agreement between the Seller, the Purchaser, the Company and the Stockholders.
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
PUBLIC VENTURE CAPITAL COM, LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Member
HANDRES, INC.
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: President
TECHLABS, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
Title: Chairman of the Board
STOCKHOLDERS.
---------------------------
Xxxxx Xxxx
---------------------------
Xxxx Xxxxxx
---------------------------
Xxxx Xxxxx
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