EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "AGREEMENT") dated as of the 20th
day of January 2003, is by and amongst XXXXX XXXXX, an individual residing in
Palm Beach County, Florida (hereinafter referred to as "Buyer" or "Xxxxx") and
KC Investment Management Inc. (a Kansas Corporation) and Sequoia Corporation (a
Kansas Corporation) (collectively the " Shareholders").
WHEREAS, the respective parties deem the purchase and sale of the
Heritage Companies, Inc. (the "Company" or "Heritage") common stock to be
desirable generally to the welfare and advantage of each;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants herein contained, and for the purpose of prescribing
the terms and conditions of such acquisition, the mode of carrying it into
effect, and such other details and provisions as are necessary or desirable, the
parties hereto hereby represent, warrant, covenant and agree as follows:
ARTICLE I
PLAN OF AGREEMENT
1.01 (a) Number of Shares and other Consideration. Subject to the
further conditions of this Agreement and the truth of the representations and
warranties provided herein, the Shareholders set forth in Exhibit 1.01(a) agree
to transfer to Buyer a total of 1,188,088 shares of the common stock of Heritage
(the "Shares").Said Shares will, at the Closing, represent approximately 52% of
the issued and outstanding shares of common stock of Heritage.
The Purchase Price for the Shares shall be $225,000 to be paid
pursuant to a promissory note. The note shall be non- interest bearing and
provide for payment in full 90 days following the closing of this transaction.
The note will be guaranteed by Traderight Corp. form of the promissory note and
guarantee is attached hereto as Exhibit 1.01.
At Closing, the Shareholders will deliver the Shares to Xxxxx
with appropriate stock powers and Medallion Signature Guaranteed.
(b) Adjustments to the Purchase Price:
There shall be a dollar for dollar reduction in the purchase
price and any amounts due under the promissory note if the total liabilities
(valid cash liability determined in accordance with Generally Accepted
Accounting Principles or claims which require cash payments to creditors or
shareholders) of the Company at closing exceed $5,000. Shareholders will, at
their cost, deliver to Buyer within 45 days of closing, a certified audit report
on Heritage Companies, Inc. financial statements as of and for the year ended
December 31, 2002.
1.02. Releases. Concurrently with the Closing, the Shareholders shall
execute a general release as to all promissory notes or other obligations due
the Shareholders from Heritage.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMPANY AND THE SHAREHOLDERS
The Shareholders represent and warrants to Buyer that:
2.01 (a) Incorporation, Common Stock, Etc. Heritage is a
corporation duly organized and existing in good standing under the laws of
Nevada. Attached hereto as Schedule 2.01 is a copy of the Company's Articles of
Incorporation. Company has full corporate power and authority to carry on its
business as it is now being conducted and to own and operate its assets,
businesses and properties. Company has authorized capital stock consisting of
20,000,000 shares of Common Stock, par value $0.001 per share, of which
2,291,836 are issued and outstanding. There are no preferred shares authorized.
There are, and at the Closing will be no outstanding subscriptions, options,
warrants, convertible securities, calls, commitments or agreements calling for
or requiring issuance or transfer, sale or other disposition of any shares of
capital stock of the Company or calling for or requiring the issuance of any
securities or rights convertible into or exchangeable (including on a contingent
basis) for shares of capital stock. All of the outstanding shares of the Company
are duly authorized, validly issued, fully paid and non-assessable. There are no
dividends due, to be paid or in arrears with respect to any of the capital stock
of Company.
(b) The Company's stock and minute books made available to the
Buyer for review, are correct and complete as of the date provided. The copies
of the Articles of Incorporation, Bylaws and
Stock Registrar of the Company provided to Buyer are true and accurate and
reflect all amendments made thereto through the date of this Agreement.
2.02 Company Financial Statements. Attached hereto as Schedule 2.02 are
the year end audited financial statements for the Company dated December 31,
2001 and the quarterly financial statements dated September 30, 2002. Said
statements have been prepared using Generally Accepted Accounting Principles.
These financial statements fairly present in all material respects the financial
position of the Company. All known liabilities of the Company are set forth in
the financial statements and there are not undisclosed liabilities of any kind
or nature. All indicated accounts receivable arose from bona fide transactions
in the ordinary course of business, and the goods or services involved have been
sold, delivered and performed to the account. As of the Closing Date, the
Company's financial position will approximate zero assets and zero liabilities
as determined by Generally Accepted Accounting Principles.
Except for the disposition of Xxxxx Consulting Group, LLC, and matters
related thereto and in connection with the December 17, 2002 meeting of the
Board of Directors, there has been no material change in the financial
conditions or operations of the Company.
2.03 Litigation. There are no actions, proceedings, or investigations
pending or, to the best of its knowledge, threatened or contemplated against the
Company or any of its subsidiaries at law or in equity, before any federal,
state, municipal or other governmental department, commission, board, agency or
instrumentality, domestic or foreign. The Company is not subject to any
outstanding judgments or operating under or subject to or in default with
respect to any order, writ, injunction or decree of any court or federal, state,
municipal or other governmental department, commission, board, agency or
instrumentality, domestic or foreign.
2.04 Compliance with Laws. The Company has complied in all material
respects with all laws, regulations, orders, domestic and foreign, and neither
the present uses of its properties nor the conduct of its business violates any
such laws, regulations, orders or requirements, where such violation would have
a material adverse effect on the Company, and except as set forth in Schedule
2.04, the Company has not received any notice of any claim or assertion that it
is not so in compliance.
Except as set forth on Schedule 2.04(b), there have never been any
hazardous materials stored on the property. The Company is currently in
compliance with all applicable environmental laws, the Company has never
received any inquiry from any governmental organization and there are no pending
or contemplated investigations regarding the same.
2.05 Indebtedness. Except as set forth on Schedule 2.05 or as reflected
on the financial statements, the Company, has not executed any instruments, or
entered into any agreements or arrangements pursuant to which the Company has
borrowed any money, incurred or guaranteed any indebtedness or established any
line of credit which represents a liability of the Company as of the date
thereof.
2.06 No Defaults. Neither the execution nor delivery of this Agreement
nor the consummation of the contemplated transaction are events which, of
themselves or with the giving of notice or passage of time or both, could
constitute a violation of or conflict with or result in any breach of or default
under the terms, conditions or provisions of any judgment, law, regulation or
agreement, or the Company's Articles of Incorporation or Bylaws, or of any
agreement or instrument to which Company or any Shareholder is a party or by
which it is bound; or could result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever on the property or assets of
Company; and no consent of any third party except as expressly contemplated
herein is required for the consummation of this Agreement by the Shareholders.
2.07 Authority, Approval and Enforceability. This Agreement has been
duly executed and delivered by the Shareholders. The Shareholders have all
requisite power and legal capacity to execute this Agreement. This Agreement
will constitute the legal, valid and binding obligation of such party,
enforceable in accordance with its terms. This Agreement constitutes a valid,
legal and binding agreement of Shareholders and is enforceable in accordance
with its terms. Upon delivery to the Buyer of certificates representing the
Shares, good and valid title to the Shares will pass to the Buyer free and clear
of all liens and encumbrances.
The Company obtained all required consents in connection with the
disposition of the membership interests owned in Xxxxx Consulting Group, LLC.
There are no liabilities of any kind or nature in connection with
either the operations of Heritage Brick, LLC or the termination of its option to
purchase a manufacturing facility.
The issuance or redemption of any of the Company's shares of common
stock has been in compliance with applicable state and federal securities laws
and the Company has made all required filings with the SEC and any state
regulatory authority in connection therewith.
2.08 Liabilities.. As of the September 30, 2002 Balance Sheet date (see
attached), the Company has not incurred any other liabilities except those
incurred in the ordinary course of business. The September 30, 2002 Balance
Sheet sets forth all liabilities of the Company, contingent or otherwise as of
that date.
2.09 Taxes. All federal, state, and local tax returns, reports and
declarations of estimated tax or estimated tax deposit forms required to be
filed by Company have been duly filed; the Company has paid or reserved for all
taxes which have become due pursuant to such returns or pursuant to any
assessment received by it, and has paid all installments of estimated taxes due;
and all taxes, levies and other assessments which it is required by law to
withhold or to collect have been duly withheld and collected and have been paid
over to the proper governmental authorities. The Company has no knowledge of any
tax deficiency which has been or might be asserted against it which would
materially and adversely affect the business or operations of the Company. Prior
to Closing, the Company shall provide Buyer with copies of all tax returns, of
any kind or nature, filed by Company, together with all accounting information.
2.10 Title to Property; Leases. The Company has good and defensible
title in fee simple to, or valid and enforceable leasehold estates in, all
properties and assets, which are material to its continued operations, free and
clear of all liens, encumbrances, charges or restrictions except those which are
not materially significant or important in relation to its operations and
business. Except as set forth in Schedule 2.11, all of such leases and subleases
under which Company is the lessor or sublessor, lessee or sublessee of
properties or assets or under which Company holds properties or assets as lessee
or sublessee are in full force and effect. The Company is not in default in any
material respect of any of the terms or provisions of any of such leases or
subleases, and no claim has been asserted by anyone adverse to the Company's
rights as lessor, sublessor, lessee or sublessee under any of the leases or
subleases mentioned above, or affecting or questioning the Company's rights to
continued possession of the leased or subleased premises or assets under any
such lease or sublease; and Company either owns or leases all such properties as
are necessary to its operations as now conducted.
2.11 Licenses. The Company has obtained all required licenses, permits
or other governmental authorization for the conduct of its business as now being
conducted.
2.12 Bank Accounts. Attached hereto as Schedule 2.13 is a listing of
all bank accounts and account numbers which are currently held by the Company.
Concurrent with the Closing, the Company shall take such steps as necessary in
order to close any and all such accounts.
2.13 Contracts and Commitments. Except as set forth in Schedule 2.14,
there are no contracts nor commitments of the Company requiring any future
payment to an officer, director, employee, agent or shareholder of Company. Also
attached and marked as Schedule 2.14(b) is a list of all current employees and
the salary of each. As of the Closing Date, all salaries due and payable have
been paid or properly accrued. The Company is not a party to any Agreement,
which requires the payment of more than $5,000 on any annual basis. Any
agreements listed on this schedule are valid and binding agreements of the
Company.
2.14 Representations True and Correct. This Agreement and the Exhibits
attached hereto do not contain any untrue statement of a material fact
concerning Company or omit any material fact concerning Company or the
Shareholders which is necessary in order to make the statements therein not
misleading. All of the representations and warranties contained herein(including
all statements contained in any certificate or other instrument delivered by or
on behalf of the Shareholders pursuant hereto or in connection with the
transactions contemplated hereby) shall survive the Closing.
2.15 Retirement Plans. Neither the Company nor any of its subsidiaries
are obligated under any pension plan, profit sharing or similar employee benefit
plan. Any pension liabilities have been satisfied in full and there is no
obligation on the part of the Company to fund any pension plans.
2.16 Intellectual Property Rights. Attached hereto as Schedule 2.17 is
a list of all trademarks, trade names and formulas which are owned by the
Company, both domestic and foreign, together with copies of any official notices
from any issuing governing organization. The Company has valid ownership to all
trademarks identified in Schedule 2.17 and has been granted by the United States
Patent and Trademark Office valid trademarks. The Company is not aware of any
claims for trademark or patent infringement in connection with any of its
products or services. The Company owns or has the right to use any information,
know-how, trade secrets, patents, copyrights, trademarks, trade names, trade
secrets, software and other intangible property rights used in its business
operation.
2.17 Inventory and Product. The Company as of the date of Closing will
have no inventory of any kind or nature.
2.18 Indemnification. The Shareholders shall indemnify and hold Buyer,
its officers and directors, harmless of and in respect of:
(1) Any damage or loss resulting from any breach of a
representation or warranty, or non-fulfillment of an agreement on the part of
the Company under this Agreement or from any misrepresentation or omission from
any certificate or other instrument furnished to Buyer pursuant to this
Agreement. or from any misrepresentation or omission from any certificates or
other instrument furnished to Buyer pursuant to this Agreement.
The foregoing indemnification shall apply to claims for indemnification
that in the aggregate exceed $5,000 and shall be limited to a term of one year
following Closing. The Buyer shall promptly after receipt by it of notice of the
assertion or the commencement of any claim with respect to an issue giving rise
to indemnification advise the Shareholders and keep them so advised.
Notwithstanding the foregoing, the Buyer shall be indemnified and held harmless
from any claims by any shareholder for rescission or similar remedy in
connection with the sale of the Company's common stock
Shareholders may defend at own cost and expense with counsel
satisfactory to the Buyer, any indemnification claim.
2.19 Ownership of the Shares. The Shares are owned in fee simple by the
Shareholders. The Shares are owned free and clear of any liens or encumbrances
of any kind or nature except for any applicable restrictions imposed by Rule
144.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Shareholders that:
3.01 Authority, Approval and Enforceability. This Agreement has been
duly executed and delivered by Buyer which has all requisite power and legal
capacity to execute this Agreement. This Agreement constitutes the legal, valid
and binding obligation of Buyers, enforceable in accordance with its terms.
3.02 Representations, True and Correct. This Agreement does not contain
any untrue statement of a material fact concerning the Buyer or omit any
material fact concerning the Buyer which is necessary in order to make the
statements therein not misleading. The representations and warranties contained
herein shall survive the Closing.
3.03 Indemnification. The Buyer shall indemnify and hold the
Shareholders harmless of and in respect of:
(1) Any damages or loss resulting from any breach of a representation
or warranty, or nonfulfillment of an agreement, on the part of the Buyer under
this Agreement.
The Shareholders shall promptly after receipt by them of notice of the
assertion or the commencement of any claim with respect to any issues giving
rise to indemnification pursuant to this Section 3.03 advise the Buyer and
thereafter keep Buyer informed with respect thereto. In the case of any such
claim, the Buyer shall be entitled to assume the defense thereof with counsel
reasonably satisfactory to Shareholders and at the Buyer's own expense.
Buyer may defend at own cost and expense with counsel satisfactory to
the Shareholders, any indemnification claim.
ARTICLE IV
CONDITIONS TO THE OBLIGATIONS OF BUYER TO CLOSE
The obligations of Buyer under this Agreement are subject to the
fulfillment of the following conditions at, or prior to, the Closing Date:
4.01 Representations, Warranties and Covenants. All representations and
warranties of the Shareholders contained in this Agreement and in any statement,
certificate, schedule or other document delivered by Shareholders pursuant
hereto or in connection herewith shall have been true and accurate in all
respects as of the date when made and as of the Closing Date.
4.02 Covenants, Etc. Shareholders shall have substantially performed
and complied with each and every covenant, agreement and condition required by
this Agreement to be performed or complied with by them prior to, or at, the
Closing Date including delivery of all required schedules as set forth in
Article II.
4.03 Certificate. Shareholders shall have delivered to Buyer, a
certificate of the President and Secretary of the Shareholders, dated the
Closing Date, certifying to the fulfillment of the conditions set forth in
Schedules 4.01 and 4.02.
4.04 Proceedings. No action or proceedings shall have been instituted
or threatened against the Company which could materially adversely affect the
business of the Company. No action or proceeding shall have been instituted or
threatened against any of the parties to this Agreement or their directors or
officers before any court or governmental agency to restrain, prohibit or obtain
substantial damages in respect of this Agreement or the consummation of the
transaction contemplated hereby.
4.05 Corporate Documents. Prior to Closing, the Shareholders shall
furnish to Buyer copies of the Articles of Incorporation of Company and each
amendment thereto, if any, which shall be certified by a proper Company
official; one copy of the By-Laws and minutes of Company by its secretary or an
assistant secretary as being currently in effect.
4.06 Document & Production. This Agreement is expressly conditioned on
Shareholders providing all identified schedules and exhibits at the time of
Closing.
4.07 Resignation and Election of Directors. At Closing, the
Shareholders shall provide Buyers with the signed resignation of all Company
officers and directors of the Company and provide for the appointment of
individuals to be designated by the Buyer.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF THE SHAREHOLDERS
The obligations of the Company and the Shareholders under this
Agreement are subject to the fulfillment of the following conditions at or prior
to th Closing Date:
5.01 Representations, Warranties and Covenants. All representations and
warranties of Buyer contained in this Agreement and in any statement,
certificate, schedule or other document delivered pursuant hereto, or in
connection herewith, shall have been true and accurate in all respects as of the
date when made and as of the Closing Date:
5.02 Covenants, Etc. Buyer shall have substantially performed and
complied with each and every covenant, agreement and condition required by this
Agreement to be performed or complied with by it prior to, or at, the Closing
Date.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 Abandonment of Agreement. This Agreement may be terminated and the
transaction hereby contemplated abandoned at any time prior to the Closing Date,
whether before or after the approval and adoption hereof by the Shareholders by
(a) the mutual consent of the parties, (b) by Buyer, if any condition to its
obligations provided in this Agreement has not been met at the time such
condition is to be met and has not been waived by it and (c) by Shareholders, if
any condition to its obligations provided in this Agreement has not been met at
the time such condition is to be met and has not been waived by it.
6.02 Liabilities. In the event this Agreement is terminated pursuant to
Section 6.01, no party hereto shall have any liability to the other and each
party shall bear their own costs incurred.
6.03 Survival of Representations and Warranties.
Shareholders and Buyers agree all representations and warranties contained
herein or made hereunder shall survive until the first anniversary of the
Closing, except that any breach disclosed in writing to either party prior to
Closing is waived by such party if it elects to close notwithstanding such
breach.
6.04 Notices. All notices, demands and other communications, which may
or are required to be given pursuant to this Agreement shall be given pursuant
to this Agreement shall be given or made when personally delivered or when sent
via overnight delivery service, postage pre-paid, addressed as follows:
Sequoia Corporation
0000 Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxx 00000
KC Investment Management, Inc.
0000 XX Xxxxxx Xxxxx
Xxxxxxxxx, Xx. 00000
Xxxxx Xxxxx
0000 X. Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000.
With a copy to:
Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxx & Xxxxx
0000 XX Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
6.05 Closing. The closing date for the contemplated transaction shall
be on or before January 20, 2003.
6.06 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes and cancels any and all prior agreements
between the parties relating to its subject matter. The representations,
warranties, covenants and conditions of the obligations of the parties hereto
may not be orally amended, modified or altered, but may be amended, modified or
altered in a writing signed by each of the parties, whether before or after the
meeting of shareholders of Company contemplated herein.
6.07 Captions. The captions of Articles and Sections of Articles hereof
are for convenience only and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
6.08 Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Florida and jurisdiction
for any dispute shall be in Palm Beach County, Florida. By entering into this
Agreement, the parties agree to the jurisdiction of the state courts within the
state of Florida. In the event of any litigation arising out of this Agreement,
the prevailing party shall be entitled to recover from the other party all costs
including reasonable attorneys fees.
6.09 Waivers. Any failure of either party hereto to comply with any of
its obligations or agreements, or to fulfill conditions herein contained may be
waived in writing by the other party. No waiver by any party of any condition or
the breach of any provision, term, covenant, representation or warranty
contained in this Agreement, whether by conduct or otherwise, shall be deemed to
be or construed as a further or continuing waiver of any such condition or of
the breach of any other provision, term, covenant, representation, or warranty
of this Agreement.
6.10 Counterparts. This Agreement may be executed in several
counterparts and all so executed shall constitute one agreement, binding upon
all of the parties hereto, notwithstanding that not all of the parties are
signatory to the original or the same counterpart.
6.11 Successors. The terms covenants and conditions of the Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective heirs, legal representatives, successors and assigns.
6.12 Binding Agreement. This Agreement represents the entire agreement
among the parties hereto with respect to the matters described herein and is
binding upon and shall inure to the benefit of the parties hereto and their
legal representatives. This Agreement may not be assigned and, except as stated
herein, may not be altered or amended except in writing executed by the party to
be charged.
6.13 Confidentiality. Each of the parties hereto and their respective
agents will maintain the confidentiality of all information provided in
connection with this Agreement which has not been publicly disclosed.
THIS AGREEMENT ENTERED INTO THE DATE SET FORTH ABOVE.
THE SHAREHOLDERS:
KC INVESTMENT MANAGEMENT, INC.
/s/Xxxxxx Xxxxxxx
--------------------------------
BY:
ITS:
SEQUOIA CORPORATION
/s/Xxx Xxxxx
--------------------------------
BY:
ITS:
/s/Xxxxxx Xxxxxxx
--------------------------------
XXXXXX XXXXXXX, INDIVIDUALLY
As to Articles II, IV and VI
/s/Xxx Xxxxx
--------------------------------
XXX XXXXX, INDIVIDUALLY
As to Articles II, IV and VI
BUYER:
/s/Xxxxx Xxxxx
--------------------------------
XXXXX XXXXX
