STOCK PURCHASE AGREEMENT
BILTMORE VACATION VILLAGE, INC.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made and entered into
this 18th day of February, 1997 by and among BILTMORE VACATION VILLAGE, INC., an
Arizona corporation (hereinafter "Biltmore" or "Buyer") and Xxxxx Xxxx Xxxxxxx,
individually (hereinafter "Seller"), currently President of CYBER INFORMATION,
INC., a Nevada Corporation (hereinafter `Target"), with certain warranties and
assurances also being made by Cyber Information, Inc., the corporation
("Target"), through its current President, Xxxxx Xxxx Xxxxxxx, Xxxxxx Xxxxxxxx,
individually (hereinafter "Wuagneux"), and Xxxxxx Xxxxx, individually
(hereinafter "Henin").
RECITALS
A. Seller owns or has rights to 1,190,117 shares of the capital stock,
and interests therein, of Target, and
B. Biltmore wishes to buy, and Seller wish to sell, subject to the
provisions of this Agreement, all right, title and interest in such capital
stock.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements contained herein, the parties agree as follows:
1. PURCHASE AND SALE.
1.01. Purchase and Sale of TargetShares.
Biltmore agrees to acquire from Seller and Seller agrees to transfer,
assign, convey and deliver to Biltmore at the Closing, all right, title and
interest in and to an aggregate of one million one hundred ninety thousand one
hundred seventeen (1,190,117) shares of capital stock of Target (hereinafter the
"TargetShares"), including 500,000 shares not currently in his possession but
subject to a stop transfer order, in exchange for the sum of ten dollars
($10.00);
2. CLOSING.
Unless extended or varied by the parties, the Closing of the
transactions contemplated hereby shall be held on February 24, 1998, at 3:00
p.m. at a location in Ft. Lauderdale, Florida as agreed
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by the parties, or at such other place or on such other date as be shall
mutually agreed to in writing by the parties or their agents, but in no event
later than February 25, 1998. The date on which the Closing occurs is herein
referred to variously as the "Closing Date" and the "Closing." At the Closing:
2.01. SELLER. Seller shall deliver or cause to be delivered to
Biltmore:
(a) certificates representing the TargetShares duly endorsed for
transfer and conveyance to Biltmore, and actually received by the Transfer Agent
of Target;
(b) a corporate resolution of the Board of Directors of Target
approving the transactions contemplated by this Agreement;
(c) the resignation of the sole officer and director of Target, Xxxxx
Xxxx Xxxxxxx, and the appointment of Xxxxxx Xxxxxxxx as the new individual to
act as sole director and officer, effective no later than 2-24-98;
(d) a list of all accounts in which the funds or other assets of Target
are deposited, as set forth in SECTION 2.01(d) of the Target Disclosure
Schedule, and
(e) the corporate records, including the charter documents, minutes of
meetings and actions of the board of directors and minutes of meetings and
actions of the stockholders, the corporate seal if any and all books of accounts
of Target, including executed contacts currently in force, and copies of
completed contracts, all of which will remain at its current offices in Las
Vegas, Nevada, possession thereof being conveyed to Biltmore or an agent thereof
at Closing or thereafter; Seller will be allowed to retain copies.
3. REPRESENTATIONS AND WARRANTIES OF TARGET AND SELLER.
Except as set forth in the disclosure schedule delivered to Biltmore on
the date hereof, and signed by the President and Secretary of Target (the
"Target Disclosure Schedule"), the sections of which are numbered to correspond
to the subsection numbers of this Agreement, Target and Seller hereby represent
and warrant to Biltmore as follows:
3.01. ORGANIZATION, QUALIFICATION. Target is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. Target has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
Target has no assets, offices or operations located in any place other than
within the state of Nevada.
3.02. CAPITALIZATION. As of the Closing Date there will be no
outstanding rights, warrants, options, agreements ox commitments giving anyone
any right to require Target to sell or issue any capital stock or other
securities. Between the date hereof and the Closing, Target will not, without
the prior written consent of Biltmore, issue any additional shares of stock,
stock options, warrants,
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convertible notes or other securities exercisable for or convertible into shares
of equity securities of Target.
3.03. SUBSIDIARIES. Target does not have and has never had any
subsidiaries and does not directly or indirectly own any equity interest in, or
any interest convertible into or exchangeable for any equity or similar interest
in, any corporation, partnership, joint venture or other business association or
entity.
3.04. AUTHORITY RELATIVE TO THIS AGREEMENT. Target has full corporate
power to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by the Board of Directors, and no other
corporate proceedings on the part of Target are necessary for Target to
authorize this Agreement or to consummate the transactions contemplated hereby
and thereby. This Agreement has been duly and validly executed and delivered by
Target. This Agreement constitutes the valid and binding agreement of Target,
enforceable against Target in accordance with its terms.
3.05. AND APPROVALS & NO VIOLATION. Except as may be required by the
Securities Act of 1933. as amended (the "Securities Act"), state securities
laws, and applicable corporate law, there is no requirement applicable to Target
to make any filing with, or to obtain any permit, authorization, consent or
approval of;, any governmental or regulatory authority as a condition to the
lawful consummation by Target of the transactions contemplated by this Agreement
Target does not know of any reason why any required permit, authorization,
consent or approval could not be obtained. Neither the execution and delivery of
this Agreement by Target nor the consummation by Target of the transactions
contemplated by this Agreement will (a) conflict with or result in any breach of
any provision of the Articles of Incorporation or Bylaws of Target, (b) result
in a material breach or default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license agreement, lease or other
material contract, instrument or obligation to which Target is a party or by
which Target or any of its assets may be bound, (c) or violate in any material
respect any statute, rule, regulation, order, writ, injunction or decree
applicable to Target or any of its assets, or (d) result in the creation of' any
material (individually or in the aggregate) liens, charges or encumbrances on
any of the material assets of Target.
3.06. FINANCIAL STATEMENTS OF TARGET. Target has delivered to Biltmore
audited financials of Target (the "Target Financials"). The Target Financials
have been prepared in accordance with generally accepted accounting principles,
applied on a consistent basis throughout the periods covered by such statements.
The Target Financials, with any notes thereto, are in accordance with the books
and records of Target and present fairly Target's financial position and results
of operations and cash flows as of the dates and for the periods indicated
therein.
3.07. UNDISCLOSED LIABILITIES. Target does not have any material
liabilities, whether absolute, accrued, contingent or otherwise, and whether due
or to become due, except for those liabilities found in SECTION 6.05(a) of
Target Disclosure Schedule to be attached hereto and made a part hereof at
Closing;
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3.08. LITIGATION. Except as act forth in SECTION 3.08 of the Target
Disclosure Schedule, Target is not engaged in, nor has it been threatened with,
any material litigation (which for this purpose shall mean a potential liability
in excess of $5,000 or potential liabilities in the aggregate in excess of
$5,000), arbitration, investigation or other legal proceeding relating to Target
or its business or property, nor, to the knowledge of Target, is there any valid
basis for any such proceeding. Further, Target and Xxxxxxx represent that Target
has no pending litigation as of the date of this Agreement, and further
represent that any conceivable threatened litigation has no merit.
3.09. INVESTMENT BANKING AND FINDER FEES. Target has not incurred nor
will incur any obligation for investment banking or finder fees in connection
with this Agreement or the transactions contemplated hereby.
3.10. STATE SECURITIES LAWS. If the state of domicile of principal
office of Target is different than the state of domicile or principal office of
Biltmore based in part on the representations of Biltmore, the transfer and
conveyance of the TargetShares as provided for in this Agreement is exempt from
registration or qualification under any "Blue Sky," securities or similar laws
of the state of by virtue of exemptions available thereunder, including but not
limited to the "isolated sale" or "isolated transaction" exemption.
3.11. TAX CONSEQUENCES. Each party understands that no assurance is
given by any other that such transaction shall be deemed by the Internal Revenue
Service to be a transaction upon which no gain or loss is recognized. Each party
assumes the obligation for the payment of taxes, if any, related to any gain or
loss to such party as a result of the transactions contemplated by this
Agreement.
4. REPRESENTATIONS AND WARRANTIES OF BILTMORE.
Biltmore hereby represents and warrants to the Seller as
follows:
4.01. ORGANIZATION. Biltmore (a) is a corporation (i) duly organized,
validly existing and in good standing under the laws of the State of Arizona,
and (ii) duly qualified and in good standing as a foreign corporation in each
state in which it does business, except where the failure to so qualify would
not have a materially adverse effect on its business or assets, and (b) has the
corporate power and authority to own its properties and to carry on its business
as now being conducted.
4.02. AUTHORITY, BINDING AGREEMENT. This Agreement has been approved by
the Board of Directors of Biltmore. No consents, authorizations or approvals,
whether of a governmental agency or instrumentality or otherwise, are necessary
in order to enable Biltmore to enter into and perform this Agreement. This
Agreement constitute legal, valid and binding obligations of Biltmore and is
enforceable against Biltmore in accordance with its terms.
4.03. INVESTMENT REPRESENTATIONS. Buyer (either alone or in conjunction
with his or her professional advisers) has such experience and knowledge in
investment, financial and business matters in investments that he is capable of
protecting his own interest in connection therewith an qualifying for relevant
exemptions. Buyer understands that representing the certificates representing
the
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TargetShares will be stamped with a legend substantially in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE SOLD OR OFFERED FOR SALE N THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR
AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
5. CONDITIONS TO THE CLOSING.
The obligations of the parties hereunder are subject to the
satisfaction at or by the Closing of each of the conditions set forth below. Any
of such conditions may be waived by the other party but only in writing.
5.01 COMPLIANCE WITH TERMS. On the Closing Date, all the terms,
conditions and covenants of this Agreement to be complied with and performed by
the respective parties shall have been complied with and performed in all
material respects.
5.02. NO MATERIAL CHANGE IN TARGET. There shall be no material change
in the business, assets, liabilities or financial condition of Target.
6. OTHER TERMS AND REPRESENTATIONS.
6.01. Upon purchase of the shares of Seller, Biltmore and its
assignees, if any, and the subsequent contemporaneous purchase of other shares
as indicated in Section 6.02 below, Biltmore will own at least sixty percent
(60%) of the Common Stock of Target.
6.02. Xxxxxxx will utilize his best efforts to obtain a stock transfer
power, and induce the following respective entities and individuals to send
their certificates to the transfer agent of Target, as the following amounts of
stock in Target must be tendered prior to Closing:
1. Xxxxx Xxxxx, custodian for Xxx 6,250 shares
2. Xxxxx Xxxxx, custodian for Siena 6,250 shares
3. Xxxxx Family Trust 6,250 shares
4. Xxxxxx Xxxxx 106,250 shares
5. Xxxx and Xxxxxx Xxxxxxx 6,250 shares
6. Xxxxxxx Xxxxxxxx 315,000 shares
7. Xxxxx and Xxxxx Xxxx 250,000 shares
8. Xxx Xxxxxxx 6,250 shares
9. Xxxxx Xxxxxxx 18,750 shares
10. Xxxxxxx Children Trust One 10,000 shares
11. Xxxxxxx Children Trust Two 40,000 shares
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The above stock, in the form of certificates, must be in receipt as indicated
above, prior to Closing. In respect to Xxxxxxx (Xxxxx Xxxx Xxxxxxx) and Xxxxxxx
Xxxxxxxx, who will not be tendering all of their shares, a new certificate will
be issued as necessary to break up a certificate, to allow for the tendering of
the amounts indicated above, and 1,190,117 shares for Xxxxxxx. Further, the
transfer agent for Target is hereby authorized to do this. In the meantime, the
transfer agent for Target is authorized to place a stop transfer order on the
above stock in the meantime. The parties further agree that no further stock of
Target will be issued from on or after the date of this Agreement, executed
below, at least until Wuagneux becomes the President of Target.
6.03. The representations of this Agreement shall survive the
transition of management of Target, and shall be binding on the respective
parties to this Agreement, and their successors and assigns.
6.04. All individuals and entities selling shares of Target, which are
indicated or referenced in this Agreement, shall receive at Closing the sum
often ($10.00) dollars, regardless of the number of shares involved.
6.05. There will be a final accounting prepared no later than this
Friday, 2-20-98.
(a) All known liabilities must be disclosed, as found in SECTION
6.05(a) of Target Disclosure Schedule, and Xx. Xxxxxxx hereby indemnifies and
holds harmless Xxxxxx Xxxxxxxx. the Buyer and its assignees of any undisclosed
liabilities. Further, a complete list of assets (with an indication of their
location) and outstanding contracts must also be attached.
(b) Conversely, Xxxxxxx discloses items in SECTION 6.05(b) of Target
Disclosure Schedule which ho has personally consigned for Target, and Wuagneux,
the Buyer and its assignees agrees to work out a payment plan with such
creditors promptly after Closing. and hereby indemnifies and holds harmless
Xxxxxxx of personal liability on these matters, along with any matters
concerning Xxxxxxx'x services as officer and director of Target. However, the
Buyers and Target will not assume any liability for any credit card debt of
Target or on the credit cards of Xxxxxxx, for charges made until date of
Closing, which the parties understand will be the sole responsibility of
Xxxxxxx.
6.06. Any outstanding legal bills for the preparation of this Agreement
and effecting the transactions contemplated by this Agreement shall be paid in
full at Closing, details to be provided in SECTION 6.06 of Target Disclosure
Schedule. Any outstanding legal bills accrued for services prior to 2-16-98
shall be paid no later than ten (10) days after the $300,000 loan (the "Loan")
is received by Target, but will be advanced in full at Closing by Henin, who
would become an assignee for these monies, and as such reimbursed directly by
Biltmore. Full details shall also be found in Section 6.06 of Target Disclosure
Schedule.
6.07. The name of Target shall be changed to "Biltmore Vacation
Resorts, Inc." prior to or contemporaneous with Closing. At a minimum, the
resolution to do so shall be prepared and executed by Xxxxxxx prior to his
contemplated resignation. Should the Loan not be funded as indicated above, this
name shall remain the property of Buyer, and Buyer shall retain all rights to
it, without the need for further notice, and Target shall change name with the
Nev. Sec. of State.
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6.08. Any stock of Target to be tendered as referenced in this
Agreement shall be placed in escrow with National Control Escrow, Inc. or
"Diversified Title," of which Xxxxx X. Xxxxxx is President ("Escrow Agent"),
although Buyer may continue to vote the stock while it is in escrow. The escrow
agreement is attached in SECTION 6.08 of Biltmore Disclosure Schedule. The stock
will be released from escrow when the Arizona property ("Property") appraised at
$6,850,000 is placed in Target directly and $750,000 ("$750,000") is funded as
indicated below. A contract ("Contract") will be entered into between Target,
its name changed as indicated in Section 6.07 above, and Biltmore Vacation
Village, Inc., an Arizona corporation. This Contract will have the Property
owned by Biltmore deeded to Target when Target funds or arranges the funds to
pay $750,000 to the heirs of Xxxxx X. Xxxxxx, deceased, to be raised in full no
later than six (6) months from Closing, and this shall be regarded by the
parties as a most important component of this Agreement. In return for placing
the Property into Target, the conveyor of such Property or his assignee(s) will
receive ten million (10,000,000) shares of the restricted common stock of Target
for the remaining equity of $6,100,000 for the Property, released from escrow
upon raising of the $750,000. Other real property, before or after the
above-referenced event, may be placed into Target, but the execution of Contract
will be seen as a condition precedent to the obligation of Henin, individually
or as agent for other individuals or entities, to fund his promised Loan.
Wuagneux warrants and represents that the Contract will be prepared and executed
a soon as possible, but in no event more than twenty (20) days from the date of
Closing, to allow for Henin to meet his obligations to promptly fund the Loan.
6.09. The Loan shall be for up to eighteen (18) months at ten (10%)
percent annual interest, payable quarterly, with no prepayment penalty, and the
respective lenders shall receive one share of the restricted common stock of
Target every two dollars they lend. Henin or his agents will receive a five (5%)
percent fee payable at funding. The stock shall have a contractual restriction
for a period of one year from-the date the funds are advanced to Target. Whether
Henin is individually providing this Loan in whole or in part, or whether he is
in whole or in part an agent of others, he nonetheless individually commits and
takes the responsibility to provide this Loan in a timely manner, pursuant to
this Agreement, no later than forty five (45) day. from the date after Closing
when the promissory note and related documents are prepared by Target and
presented to Henin. Should the Loan not be funded in full as required under this
Agreement, this Agreement will immediately become null and void, and future
leasehold interests, telephone and infrastructure arrangements, furniture and
fixtures, acquired by Buyer, shall be regarded by all parties as the property of
Buyer, and not the property of Target further, in that event, all parties shall
be restored to their status prior to the execution of this Agreement, promptly
return whatever property and records were received from the other, and also
restore the officers and directors as before.
6.10. At Closing, Xxxxxxx shall deposit with Escrow Agent or in another
escrow arrangement acceptable to Buyer, 20,000 shares of the common stock of
Target, with details disclosed in Section 6.08 of Biltmore Disclosure Schedule,
and Xxxxx Xxxxxxxx shall deposit with his Attorney 60,000 shares of the common
stock of Target, in a similar escrow agreement, attached as Section 6.10 of
Target Disclosure Schedule, with the restrictive legend to be removed pursuant
to Rule 144(k) of the Securities Act of 1933 in each instance upon deposit into
escrow, but with a contractual restriction such that the stock may not be sold
until the earlier of the passage of one year from date of Closing, or the
approval of listing of the common stock of Target on either NASDAQ
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Small-Cap or National Market or a Regional or National Stock Exchange, the stock
currently trading on the OTCBB of the NASD. The stock must be promptly released
from escrow and sent to the respective parties, Xxxxxxx and Xxxxxxxx, after the
passage of the one year or the earlier event described above, as applicable.
6.11. All of the undersigned agree, to an obligation which all
successors are bound. including future officers and directors of Target, that
there will be no reverse stock split for the common stock of Target for at least
fifteen (15) full months after date of Closing.
7. MISCELLANEOUS.
7.01. OTHER DOCUMENTS. Seller shall, at any time after the Closing upon
the request of Biltmore, execute and deliver to Biltmore such documents or
instruments of conveyance, license or assignment or take such other action as is
reasonably necessary to complete the transfer of the TargetShares or other
transactions contemplated by this Agreement or to perfect the interest of
Biltmore therein.
7.02. COSTS. Except as otherwise specifically provided herein, Biltmore
shall pay the Closing costs and transfer cost applicable to this Agreement arid
the transfer of the shares hereunder.
7.03. INVALIDITY, MODIFICATION AND WAIVER. If any provision of this
Agreement shall be held to be invalid or void, the remaining provisions shall
nevertheless remain in effect. No provision of this Agreement may be modified
and the performance or observance thereof may not be waived except by written
agreement of the parties affected thereby. No waiver of any violation or
nonperformance of any provision of this Agreement shall be deemed to be a waiver
of any subsequent violation or nonperformance of the same or any other provision
of this Agreement.
7.04. DISPUTES, CHOICE OF LAW. This Agreement, the performance of the
parties hereunder and any disputes related hereto shall be governed by the laws
of the state of Florida and subject to the exclusive jurisdiction of the courts
therein. As this Agreement was negotiated and executed, at least in part, in
Broward County, Florida, venue shall lie at the Central Court House, Broward
County, Florida. Further if either party shall initiate a legal proceeding to
enforce its rights hereunder, the prevailing party in such legal proceedings
shall be entitled to recover from the other party all costs, expenses and
reasonable attorney's fees incurred in connection with such proceedings,
including costs and expenses prior to instituting suit, and appeals.
7.05. ABANDONMENT. If this Agreement shall fail to Close as provided
for in Section 2 as a result of a failure of any of the conditions precedent set
forth in Section 5, all further obligations of the parties hereto under this
Agreement shall terminate without further liability, and each party shall bear
its own casts incident to the negotiation, preparation and anticipated Closing
of this Agreement. In such event, each party shall return any data, material or
assets of the other party received by it in contemplation of the Closing.
7.06. ENTIRE AGREEMENT. This Agreement is and represents the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes any prior or contemporaneous
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discussions or agreement. related thereto.
7.07. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be originals and enforceable, and together
shall constitute a single agreement.
7.08. BEST EFFORTS. All parties to this Agreement commit to utilize
their best efforts to meet the time deadlines and effect and perform the
actions, and meet the responsibilities, both stated and implicit in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representative as of the date first
written above.
BILTMORE VACATION VILLAGE, INC. CYBER INFORMATION, INC.
by /s/ Xxxxxx Xxxxxxxx by /s/ Xxxxx Xxxx Xxxxxxx
-------------------------------- ----------------------------------
President President
by /s/ signature by /s/ Xxxxx Xxxx Xxxxxxx
-------------------------------- ----------------------------------
Secretary Secretary
SELLER: /s/ Xxxxxx X. Xxxxxxxx 2/25/98
[notary seal of Xxxxxx X. Xxxxxxxx here]
[notary seal of S. R. Xxxxxxx here]
/s/ Xxxxx Xxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxx Xxxxxxx, Individually
XXXXXX XXXXXXXX, Individually
/s/ Xxxxxx Xxxxxxxx
---------------------------------
XXXXXX XXXXX, Individually
/s/ Xxxxxx Xxxxx
----------------------
/s/ Xxxxxx X. Xxxxxxxx
[notary seal of Xxxxxx X. Xxxxxxxx here]
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WITNESS TO ANY SIGNATURES BY XXXXXX XXXXXXXX, INDIVIDUALLY OR AS AGENT:
Xxxxx X. Xxxxxx, /s/ Xxxxx X. Xxxxxx
---------------------------------------
Print Name:
Xxxxxx X. Xxxxxx, /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Print Name:
WITNESS TO ANY SIGNATURES BY XXXXX XXXX XXXXXXX, INDIVIDUALLY OR AS AGENT:
Xxxxxxx X. Xxxxxxx Xxxx X. Xxxxxx
-------------------------------
Print Name:
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxx
---------------------------------
Print Name:
WITNESS TO ANY SIGNATURES BY XXXXXX XXXXX, INDIVIDUALLY:
Xxxxx X. Xxxxxx, /s/ Xxxxx X. Xxxxxx
----------------------------------
Print Name:
Xxxxxx X. Xxxxxx, /s/ Xxxxxx X. Xxxxxx
---------------------------------
Print Name:
EXHIBITS: Disclosure Schedules as indicated in text, with each page initialed by
the parties or their respective agents, to be provided at Closing.
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2-25-98
All parties agree that the Closing of the Agreement has concluded as of
approximately 5:00 p.m. EST.
/s/ Xxxxxx Xxxxxxxx
/s/ signatures
