STOCK PURCHASE AGREEMENT
(XXXXXXX.XXX, INC. AND W. A. XXXXXX COMPANY)
This Stock Purchase Agreement (together with the Exhibits hereto, the
"Agreement") is entered into as of March 20, 2000, by and between XxxxXxx.xxx,
Inc., a Nevada corporation ("Buyer") and W. A. Xxxxxx Company, an Ohio
corporation ("Seller").
RECITALS
Seller desires to sell, and Buyer desires to purchase, for the
consideration and on the terms set forth in this Agreement, two thousand (2,000)
membership shares (the "Shares") of VetMall, LLC., a Nevada limited liability
company (the "Company"), which Shares constitute twenty (20%) percent of the
issued and outstanding membership shares of the Company.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. SALE AND TRANSFER OF SHARES; CLOSING
1.1 SHARES. Subject to the terms and conditions of this
Agreement, Seller hereby sells and transfers the Shares to Buyer, and Buyer
hereby purchases the Shares from Seller.
1.2 PURCHASE PRICE AND CLOSING. The purchase price for the
Shares is One Million Dollars ($1,000,000) plus the issuance to Seller of
twenty-five thousand (25,000) shares of the $0.001 par value common stock of
Buyer ("Buyer Stock"). The closing shall take place on March 20, 2000 in Tampa,
Florida, concurrent with execution of this Agreement (the "Closing").
1.3 DELIVERIES BY SELLER AND BUYER.
(a) Seller herewith delivers to Buyer:
(i) A certificate representing the Shares,
duly endorsed (or accompanied by duly executed stock powers), for transfer to
Buyer; and
(ii) an opinion of counsel in the form of
Exhibit 1.3(a)(ii).
(b) Buyer herewith delivers to Seller:
(i) $1,000,000 by wire transfer to the
following bank account of Seller: First Union Operating Account Number
2100017024692, Account Name - W. A. Xxxxxx Company, (First Union's ABA number is
000000000); and
(ii) a certificate representing the Buyer
Stock registered on the books of Buyer in the name of Seller; and
(iii) an opinion of counsel in the form of
Exhibit 1.3(b)(iii).
2. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
2.1 SECURITIES LAW MATTERS. (a) Seller: (A) understands that
the Buyer Stock received by it in this transaction has not been registered under
the Securities Act of 1933, as amended, or under any state securities laws, and
is delivered by the Buyer in reliance upon federal and state exemptions for
transactions not involving any public offering; (B) is acquiring the Buyer Stock
solely for its own account for investment purposes, and not with a view to the
distribution thereof; (C) is a sophisticated investor with knowledge and
experience in business and financial matters; (D) has received sufficient
information concerning Buyer, and has had the opportunity to obtain additional
information as desired by it or its legal and financial advisors, in order to
evaluate the merits and risks inherent in holding the Buyer Stock; and (E)
understands that the Buyer Stock delivered to Seller is subject to resale
restrictions and may be sold by Seller only in compliance with applicable laws,
rules and regulations of applicable federal and state securities laws.
(b) Seller is acquiring the Buyer Stock for its own
account and not with a view to its distribution within the meaning of Section
2(11) of the Securities Act of 1933, as amended. Seller is an "accredited
investor" as such term is defined in Rule 501(a) under the Securities Act of
1933, as amended.
2.2 ORGANIZATION AND GOOD STANDING. Seller is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Ohio.
2.3 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes a legal, valid, and
binding obligation of Seller, enforceable against Seller in accordance with its
respective terms. Seller has the absolute and unrestricted right, power,
authority, and capacity to execute and deliver this Agreement and to perform its
respective obligations hereunder.
(b) The execution, delivery or performance of this
Agreement will not, directly or indirectly (with or without notice or lapse of
time) contravene, conflict with, or result in a violation or breach of any
provision of, or give any person the right to declare a default or exercise any
remedy under, or to accelerate the maturity or performance of, or to cancel,
terminate, or modify, any agreement to which the Seller is a party.
(c) The Seller is not required to give any notice to
or obtain any consent from any person in connection with the execution and
delivery of this Agreement or the performance thereof which notice has not been
given and which consent has not been obtained.
2.4 CERTAIN PROCEEDINGS. There is no pending proceeding that
has been commenced against Seller and that challenges, or may have the effect of
preventing, making illegal, or otherwise interfering with, performance of its
obligations under this Agreement. To Seller's knowledge, no such proceeding has
been threatened.
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2.5 TAX MATTERS. Buyer has made no representations to Seller
regarding any federal, state, or local tax matters that may affect Seller as a
result of its participation in this Agreement and Seller has relied solely upon
its own legal and tax advisors for advice as to such matters.
2.6 BROKERS OR FINDERS. Seller and its officers and agents
have incurred no obligation or liability, contingent or otherwise, for brokerage
or finders' fees or agents' commissions or other similar payment in connection
with this Agreement or other similar payment in connection with this Agreement
and Seller will indemnify and hold Buyer harmless from any such payment alleged
to be due by or through Buyer as a result of the action of Seller or its
officers or agents.
2.7. THE SHARES. Seller is the sole record and beneficial
owner of the Shares and is transferring the Shares to the Buyer pursuant to this
Agreement free and clear of any and all security interests, liens or other
encumbrances created by the Seller.
3. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
3.1 SECURITIES LAW MATTERS. (a) Buyer: (A) understands that
the Shares received by it in this transaction have not been registered under the
Securities Act of 1933, as amended, or under any state securities laws, and are
delivered by the Seller in reliance upon federal and state exemptions for
transactions not involving any public offering; (B) is acquiring the Shares
solely for its own account for investment purposes and not with a view to the
distribution thereof; (C) is a sophisticated investor with knowledge and
experience in business and financial matters; (D) has received sufficient
information concerning the Company, and has had the opportunity to obtain
additional information as desired by it or its legal and financial advisors, in
order to evaluate the merits and risks inherent in holding the Shares; and (E)
understands that the Shares delivered to Buyer are subject to contractual resale
restrictions and may be sold by Buyer only in compliance with applicable laws,
rules and regulations of applicable federal and state securities laws.
(b) Buyer is acquiring the Shares for its own account
and not with a view to their distribution within the meaning of Section 2(11) of
the Securities Act of 1993, as amended. Buyer is an "accredited investor" as
such term is defined under the Securities Act of 1933, as amended.
3.2 ORGANIZATION AND GOOD STANDING. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Nevada?].
3.3 AUTHORITY; NO CONFLICT. (a) This Agreement constitutes the
legal, valid, and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms. Buyer has the absolute and unrestricted right, power,
authority and capacity to execute and deliver this Agreement and to perform its
obligations under this Agreement.
(b) The execution, delivery, or performance of this
Agreement will
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not, directly or indirectly (with or without notice or lapse of time),
contravene, conflict with, result in a violation or breach of any provision of,
or give any person the right to declare a default or exercise any remedy under,
or to accelerate the maturity or performance of, or to cancel, terminate or
modify, any agreement to which the Buyer is a party.
3.4 CERTAIN PROCEEDINGS. There is no pending proceeding that
has been commenced against Buyer and that challenges, or may have the effect of
preventing, making illegal, or otherwise interfering with, performance of its
obligations under this Agreement. To Buyer's knowledge, no such proceeding has
been threatened.
3.5 TAX MATTERS. Seller has made no representation to Buyer
regarding any federal, state, or local tax matters that may affect Seller as a
result of its participation in this Agreement and Buyer has relied solely upon
its own legal and tax advisors for advice as to such matters.
3.6 BROKERS OR FINDERS. Buyer and its officers and agents have
incurred no obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other similar payment in connection with
this Agreement and Buyer will indemnify and hold Seller harmless from any such
payment alleged to be due by or through Buyer as a result of the action of Buyer
or its officers or agents.
4. ABSENCE OF REPRESENTATIONS AND WARRANTIES PERTAINING TO THE COMPANY
Buyer acknowledges that Buyer has had, prior to the execution
of this Agreement, and prior to Buyer's purchase of the Shares, an opportunity
to conduct all due diligence required or desired by the Buyer with respect to
the Company and the LLC. The Buyer is, in connection with entering into this
Agreement and acquiring the Shares, not relying on any materials or information
with respect to the Company or the LLC that may have been provided to the Buyer
by the Seller or any officers, directors, agents, or affiliates of the Seller.
Seller hereby disclaims with respect to the Company and the LLC any and all
representations and warranties, express or implied, with respect to the Company
and the LLC. The Buyer hereby accepts such disclaimer and agrees that the Buyer
is entering into this Agreement and purchasing the Shares solely in reliance
upon the express terms and conditions of this Agreement and the Buyer's own due
diligence with respect to the Company and the LLC.
5. INDEMNIFICATION; REMEDIES
5.1 SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY
KNOWLEDGE. All representations, warranties, covenants, and obligations in this
Agreement will survive the Closing. The right to indemnification, payment of
Damages (as hereinafter defined) or other remedy based on such representations,
warranties, covenants, and obligations will not be affected by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
acquired) at any time, whether before or after the execution and delivery of
this Agreement or the Closing, with respect to the accuracy or inaccuracy of or
compliance with, any such representation, warranty, covenant, or obligation.
5.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER. Seller
will
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indemnify and hold harmless Buyer, its legal and financial advisors, controlling
persons, and affiliates (collectively, the "Buyer Indemnified Persons") for, and
will pay to the Buyer Indemnified Persons the amount of, any loss, liability,
claim, damage (including incidental and consequential damages), expense
(including costs of investigation and defense and reasonable attorneys' fees) or
diminution of value, whether or not involving a third-party claim (collectively,
"Damages"), arising, directly or indirectly, from or in connection with: (a) any
breach of any representation or warranty made by Seller in this Agreement; (b)
any breach by Seller of any covenant or obligation of Seller in this Agreement;
or (c) any claim by any person for brokerage or finder's fees or commissions or
similar payments based upon any agreement or understanding alleged to have been
made by any such person with Seller (or any person acting on its behalf) in
connection with the subject matter of this Agreement. The remedies provided in
this Section 5.2 will not be exclusive of or limit any other remedies that may
be available to Buyer or the other Indemnified Persons.
5.3 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER. Buyer
will indemnify and hold harmless Seller, its legal and financial advisors,
controlling persons and affiliates (collectively, the "Seller Indemnified
Persons") for, and will pay to the Seller Indemnified Persons the amount of any
Damages arising, directly or indirectly, from or in connection with (a) any
breach of any representation or warranty made by Buyer in this Agreement, (b)
any breach by Buyer of any covenant or obligation of Buyer in this Agreement; or
(c) any claim by any person for brokerage or finder's fees or commissions or
similar payments based upon any agreement or understanding alleged to have been
made by such person with Buyer (or any person acting on its behalf) in
connection with the subject matter of this Agreement.
5.4 PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS.
(a) Promptly after receipt by an indemnified party of
notice of the commencement of any proceeding against it, such indemnified party
will, if a claim is to be made against an indemnifying party hereunder, give
notice to the indemnifying party of the commencement of such claim, but the
failure to notify the indemnifying party will not relieve the indemnifying party
of any liability that it may have to any indemnified party, except to the extent
that the indemnifying party demonstrates that the defense of such action is
prejudiced by the indemnifying party's failure to give such notice.
(b) If any proceeding referred to in Section 5.4(a)
is brought against an indemnified party and it gives notice to the indemnifying
party of the commencement of such proceeding, the indemnifying party will be
entitled to participate in such proceeding and, to the extent that it wishes
(unless (i) the indemnifying party is also a party to such proceeding and the
indemnified party determines in good faith that joint representation would be
inappropriate, or (ii) the indemnifying party fails to provide reasonable
assurance to the indemnified party of its financial capacity to defend such
proceeding and provide indemnification with respect to such proceeding), to
assume the defense of such proceeding with counsel satisfactory to the
indemnified party and, after notice from the indemnifying party to the
indemnified party of its election to assume the defense of such proceeding, the
indemnifying party will not, as long as it diligently conducts such defense, be
liable to the indemnified party under this Section 5.4 for any
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fees of other counsel or any other expenses with respect to the defense of such
proceeding, in each case subsequently incurred by the indemnified party in
connection with the defense of such proceeding, other than reasonable costs of
investigation. If the indemnifying party assumes the defense of a proceeding,
(i) it will be conclusively established for purposes of this Agreement that the
claims made in that proceeding are within the scope of and subject to
indemnification; (ii) no compromise or settlement of such claims may be effected
by the indemnifying party without the indemnified party's consent unless (A)
there is no finding or admission of any violation of legal requirements or any
violation of the rights of any person and no effect on any other claims that may
be made against the indemnified party, and (B) the sole relief provided is
monetary damages that are paid in full by the indemnifying party; and (iii) the
indemnified party will have no liability with respect to any compromise or
settlement of such claims effected without its consent. If notice is given to an
indemnifying party of the commencement of any proceeding and the indemnifying
party does not, within ten days after the indemnified party's notice is given,
give notice to the indemnified party of its election to assume the defense of
such proceeding, the indemnifying party will be bound by any determination made
in such Proceeding or any compromise or settlement effected by the indemnified
party.
(c) Notwithstanding the foregoing, if an indemnified
party determines in good faith that there is a reasonable probability that a
proceeding may adversely affect it or its affiliates other than as a result of
monetary damages for which it would be entitled to indemnification under this
Agreement, the indemnified party may, by notice to the indemnifying party,
assume the exclusive right to defend, compromise, or settle such proceeding, but
the indemnifying party will not be bound by any determination of a proceeding so
defended or any compromise or settlement effected without its consent (which may
not be unreasonably withheld).
5.5 PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A claim for
indemnification for any matter not involving a third-party claim may be asserted
by notice to the party from whom indemnification is sought.
6. GENERAL PROVISIONS
6.1 EXPENSES. Each party to this Agreement will bear its
respective expenses incurred in connection with the preparation, execution, and
performance of this Agreement, including all fees and expenses of agents,
representatives, counsel, and accountants. Buyer and Seller will pay equally the
professional fees and disbursements of Xxxxx Xxxxxxxx LLP in connection with
their audit of the Company as of December 31, 1999.
6.2 PUBLIC ANNOUNCEMENTS. Any public announcement or similar
publicity with respect to this Agreement will be issued, if at all, at such time
and in such manner as Buyer determines; provided, however, that Buyer shall give
Seller a reasonable opportunity to participate in the preparation of any such
public announcement or similar publicity prior to the release of same to any
third party.
6.3 NOTICES. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a)
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delivered by hand (with written confirmation of receipt), (b) sent by telecopier
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
Seller:
W. A. Xxxxxx Company
0000 Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: President
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Stradley, Ronon, Xxxxxxx & Xxxxx, LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Buyer:
XxxxXxx.xxx, Inc.
00000 Xxxxxxx Xxxx, Xxxxx X
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, President
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Johnson, Blakely, Pope, Bokor, Xxxxxx & Xxxxx, P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
6.4 JURISDICTION; SERVICE OF PROCESS. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the State
of Florida, County of Hillsborough, or, if it has or can acquire jurisdiction,
in the United States District Court for the Middle District of Florida, and each
of the parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding referred to
in the preceding sentence may be served on any party anywhere in the world.
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6.5 FURTHER ASSURANCES. The parties agree (a) to furnish upon
request to each other such further information, (b) to execute and deliver to
each other such other documents, and (c) to do such other acts and things, all
as the other party may reasonably request for the purpose of carrying out the
intent of this Agreement.
6.6 WAIVER. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power, or privilege under this Agreement
or the documents referred to in this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement or the documents referred to in this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
6.7 ENTIRE AGREEMENT AND MODIFICATION. This Agreement
supersedes all prior agreements between the parties with respect to its subject
matter and constitutes, together with (a) a Termination Agreement dated as of
March 20, 2000 by and among Seller, the Company, Desktop Corporation, and
Desktop Ventures, Inc., a Texas corporation ("Desktop Ventures") (the
"Termination Agreement"), (b) those agreements and other undertakings described
on Exhibit 1 to the Release Agreement (as such term is defined in the
Termination Agreement) to which the parties hereto are bound, and (c) a
Shareholders' Agreement of even date herewith entered into by and among the
Company, the Buyer, the Seller and Desktop Ventures, a complete and exclusive
statement of the terms of the agreement between the parties with respect to the
sale of the Shares.
6.8 NO THIRD-PARTY RIGHTS. Nothing expressed or referred to in
this Agreement will be construed to give any person other than the parties to
this Agreement any legal or equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement.
6.9 SEVERABILITY. If any court of competent jurisdiction holds
any provision of this Agreement invalid or unenforceable, the other provisions
of this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
6.10 HEADINGS. The headings of Sections in this Agreement are
provided for convenience only and will not affect its construction or
interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or
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terms.
6.11 CONSTRUCTION. The parties have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement.
6.12 GOVERNING LAW. This Agreement will be governed by the
laws of the State of Florida without regard to conflicts of law principles.
6.13 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
Buyer: XXXXXXX.XXX, INC. Seller: W. A. XXXXXX COMPANY
By:/S/ Xxxxxxx X. Xxxxxxx By:/S/ Xxxxxx X. Deputy
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxx X. Deputy
Title: President Title: President
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EXHIBIT 1.3(A)(II)
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EXHIBIT 1.3(B)(III)
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