STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made and entered into this 17th day of
December, 1997, by and between X. X. Xxxxxxx ("Seller") and Xxxx Xxxx Capital
[S] Private Limited, a Singapore corporation ("Purchaser").
RECITALS
A. Seller is a shareholder of Fronteer Financial Holdings, Ltd., a Colorado
corporation (the "Corporation").
B. Seller desires to sell and Purchaser desires to purchase 3,556,777 of
Seller's shares of the common stock of the Corporation.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and agreements contained herein, the parties hereto do hereby represent,
warrant, covenant and agree as follows:
ARTICLE 1.
TERMS OF TRANSACTION
1.1. Purchase and Sale. Purchaser hereby agrees, subject to the terms and
conditions of this Agreement, to purchase from Seller, and Seller hereby agrees,
subject to the terms and conditions of this Agreement, to sell to Purchaser
3,556,777 shares of the common stock of the Corporation (the "Shares").
1.2. Purchase Price. The total consideration ("Purchase Price") to be paid
by Purchaser to Seller for the Shares is $3,129,963.80. Purchaser shall pay the
Purchase Price by cashier's check at the Closing.
ARTICLE 2.
CLOSING
The transaction contemplated herein shall be consummated (the "Closing") at
the offices of the Corporation, 0000 Xxxxxxx Xxxxxx, 00 Xxxxx, Xxxxxx, Xxxxxxxx
00000, at 10:00 a.m. MST on the date the Escrow Agent is required to disburse
such amount to Seller pursuant to the Escrow Agreement of even date herewith by
and among the Corporation, the Purchaser, the Seller and Berliner Xxxxxx Xxxxxx
& Xxxxxxxx, P.C., ("Escrow Agreement") or at such other place as the parties
hereto may mutually agree.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement and to consummate
the transactions contemplated hereby, Purchaser represents and warrants to
Seller and to the Corporation as follows:
3.1. Investment Intent. Purchaser acknowledges that the sale of the Shares
will not be registered under the Securities Act of 1933, as amended ("Act").
Purchaser affirms that Purchaser is acquiring the Shares for Purchaser's own
account for investment and not with a view to, or for sale or other disposition
in connection with, any distribution thereof, nor with any present intention of
selling or otherwise disposing thereof.
3.2. Information Available. The Purchaser understands that all documents,
records, and books pertaining to this investment have been made available for
inspection by the Purchaser and by the Purchaser's attorney and/or accountant
including, but not limited to, the Corporation's Annual Reports on Form 10-K and
Form 10-K/A for the fiscal year ended September 30, 1996, the Corporation's
Quarterly Reports on Form 10-Q and Form 10-Q/A for the quarterly periods ending
December 31, 1996, March 31, 1997, and June 30, 1997, and the Corporation's
Current Reports on Form 8-K and Form 8-K/A dated July 23, 1996, February 25,
1997, and September 15, 1997. The Purchaser had reasonable opportunity to ask
questions of and receive answers from a person or persons acting on behalf of
the Corporation concerning the Corporation and the sale of the Shares
contemplated hereby and all such questions have been answered to the full
satisfaction of the Purchaser.
3.3. Accredited Investor. The Purchaser is an "accredited investor" as
defined in Rule 501 adopted under the Act.
3.4. Risks. The Purchaser recognizes that an investment in the Shares
involves a number of significant risks and that the Purchaser could lose the
Purchaser's entire investment. The Purchaser is able to bear the substantial
economic risks of an investment in the Shares for an indefinite period of time,
has no need for liquidity in such investment and, at the present time, could
afford a complete loss of such investment.
3.5. Solicitation. The Purchaser is not subscribing for the Shares as a
result of or subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising, or any solicitation
of a subscription by a person not previously known to the Purchaser in
connection with investments in securities generally.
3.6. Experts. The Purchaser has or together with the Purchaser's advisor(s)
has such knowledge and experience in financial, tax and business matters so as
to enable the Purchaser to utilize the information made available to the
Purchaser in connection with the sale of the Shares in order to evaluate the
merits and risks of an investment in the Shares and to make an informed
investment decision with respect thereto.
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3.7. No Transfer. The Purchaser will not sell or otherwise transfer the
Shares, without registration under the Act or an exemption therefrom and fully
understands and agrees that the Purchaser must bear the economic risk of the
Purchaser's purchase for an indefinite period of time because, among other
reasons, the Shares have not been registered under the Act or under the
securities laws of any state and, therefore, cannot be resold, pledged, assigned
or otherwise disposed of unless they are subsequently registered under the Act
and under the applicable securities laws of such states or unless an exemption
from such registration is available.
3.8. No Registration. The Purchaser understands that, the Company is under
no obligation to register the Shares on the Purchaser's behalf or to assist the
Purchaser in complying with any exemption from registration under the Act.
3.9. Restrictive Legend. The Purchaser understands that a legend
restricting the transfer of the Shares will appear on the certificates
evidencing the Shares.
3.10. Independent Investigation. Purchaser has made an independent
investigation of the financial condition and business of the Corporation and has
determined that the financial condition and the business of the Corporation are
satisfactory to Purchaser. For purposes of making this determination, Purchaser
is relying on Purchaser's and Purchaser's agents' own independent investigation
and not on any representations and warranties made by any party.
3.11. Authority. Purchaser has full power and authority to make, execute
and perform this Agreement and the transactions contemplated hereby. This
Agreement is a valid and binding obligation of Purchaser enforceable in
accordance with its terms.
3.12. No Default Resulting From Agreement. Neither the execution and
delivery of this Agreement nor the performance of its terms by Purchaser will
result in any material breach of the terms and conditions of, or constitute a
default under, any material agreement, lease, mortgage, note, instrument,
undertaking, judgment, decree, governmental order or other restriction or
obligation to which Purchaser is a party which prohibits Purchaser's ability to
perform its obligations pursuant to this Agreement.
3.13. No Brokers or Finders. No broker or finder has acted on Purchaser's
behalf in connection with this Agreement or the transaction contemplated hereby.
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3.14. Required Consents and Approvals. No application, notice, order,
registration, qualification, waiver, consent, approval, or other action is
required to be filed, given, obtained, or taken by Purchaser by virtue of the
execution, delivery, and performance of this Agreement or the consummation of
the transactions contemplated hereby.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into this Agreement and to
consummate the transactions contemplated hereby, Seller represents and warrants
to Purchaser as follows:
4.1. Authority. Seller has full power and authority to make, execute and
perform this Agreement and the transactions contemplated hereby and the
execution, delivery and performance of this Agreement and that this Agreement
has been duly and validly executed and delivered by Seller and is a valid and
binding obligation of Seller enforceable in accordance with its terms.
4.2. Title. When issued, sold, transferred and delivered to Purchaser upon
payment of the Purchase Price therefor, the Shares will be fully paid and
non-assessable, free and clear of all mortgages, pledges, liens, security
interests, conditional sale agreements, charges, encumbrances and, except as
provided by this Stock Purchase Agreement, restrictions of every nature.
ARTICLE 5.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
All of the obligations of Seller under this Agreement are subject to the
fulfillment prior to or at the Closing of each of the following conditions, any
one or more of which may be waived in writing by Seller:
5.1. Accuracy of Representations and Warranties. The representations and
warranties of Purchaser contained herein or in any certificate, schedule, or
other document delivered by Purchaser pursuant to the provisions hereof, or in
connection herewith, shall be true and correct in all material respects as of
the Closing with the same effect as though such representations and warranties
had been made at the Closing, except to the extent such representations and
warranties expressly relate only to an earlier date, and except for changes
contemplated by this Agreement or approved in writing by Seller.
5.2. Compliance With Conditions. Purchaser shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
5.3. Closing Documents. Purchaser shall have delivered to Seller the
Purchase Price.
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ARTICLE 6.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER
All of the obligations of Purchaser under this Agreement are subject to the
fulfillment prior to or at the Closing of each of the following conditions, any
one or more of which may be waived in writing by Purchaser:
6.1. Accuracy of Representations and Warranties. The representations and
warranties of Seller contained herein shall be true and correct in all material
respects as of the Closing with the same effect as though such representations
and warranties had been made at the Closing, except to the extent such
representations and warranties expressly relate only to an earlier date, and
except for changes contemplated by this Agreement or approved in writing by
Seller.
6.2. Compliance With Conditions. Seller shall have performed and complied
with all agreements and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing.
6.3. Closing Documents. Seller shall have delivered to Escrow Agent
pursuant to the Escrow Agreement the certificate(s) for the Shares duly endorsed
for transfer and shall contemporaneously with the Closing deliver the
Resignation, Trade Secrets and Noncompetition Agreement in the form of Exhibit
"A" hereto.
ARTICLE 7.
TERMINATION
This Agreement may be terminated at any time by Seller prior to the
Closing, upon written notice, if the terms, covenants or conditions of this
Agreement to be complied with or performed by Purchaser at or before the Closing
shall not by that time have been complied with or performed in all material
respects and such noncompliance or nonperformance shall not have been waived in
writing by Seller. Upon any such termination Seller shall not have any liability
to Purchaser.
This Agreement may be terminated at any time by Purchaser prior to the
Closing, upon written notice, if the terms, covenants or conditions of this
Agreement to be complied with or performed by Seller at or before the Closing
shall not by that time have been complied with or performed in all material
respects and such noncompliance or nonperformance shall not have been waived in
writing by Purchaser. Upon any such termination Purchaser shall not have any
liability to Seller.
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ARTICLE 8.
MISCELLANEOUS
8.1. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or mailed, first class, certified mail, postage
prepaid, return receipt requested:
a. To Purchaser at: Xxxx Xxxx Capital [S] Private Limited
0 Xxxxxxx Xxxxxxxxx
#00-00 Xxxxxx Xxxxx Xxx
Xxxxxxxxx 000000
b. To Seller at: Fronteer Financial Holdings, Ltd
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: X. X. Xxxxxxx, Xx.
8.2. Entire Agreement. This Agreement supersedes all prior discussions and
agreements between Purchaser and Seller with respect to the matters contained
herein and this Agreement constitutes the sole and entire agreement between the
parties hereto with respect to the subject matter hereof.
8.3. Amendments and Waivers. This Agreement may be amended only by an
instrument in writing executed by the party against whom enforcement of the
amendment is sought. Seller and Purchaser may, by a signed writing, give any
consent, take any action, waive any inaccuracies in representations or other
compliance by the other party to any of the covenants or conditions herein,
modify the terms of this Agreement, or take any other action deemed by Seller or
Purchaser to be necessary or appropriate to consummate the transactions
contemplated by this Agreement.
8.4. Counterparts; Headings. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument. The headings herein set out are
for convenience of reference only and shall not be deemed a part of this
Agreement.
8.5. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns, but no party may assign, delegate or
otherwise transfer any of such party's rights, duties or obligations hereunder
or interest herein without the written consent of the other party hereto.
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8.6. Further Assurances. After the Closing, each party, at the request of
the other party, shall execute, deliver and acknowledge where necessary from
time to time such other and further acts and things as may be reasonably
necessary to more fully and effectively consummate the transactions contemplated
by this Agreement.
8.7. Governing Law. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Colorado.
IN WITNESS WHEREOF, the parties have caused this Agreement to be made
effective on the day and year first above written.
SELLER:
/s/ X. X. Xxxxxxx
--------------------------------------------
X. X. Xxxxxxx
PURCHASER:
XXXX XXXX CAPITAL [S] PRIVATE LIMITED,
a Singapore corporation
By: /s/ Xxxx Xxx Xxxx
-----------------------------------------
Its: Director
----------------------------------------
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EXHIBIT "A"
RESIGNATION, TRADE SECRETS AND NONCOMPETITION AGREEMENT
THIS RESIGNATION, TRADE SECRETS AND NONCOMPETITION AGREEMENT is made by and
between Fronteer Financial Holdings, Ltd. ("Fronteer") and Xxxxxx X. Xxxxxxx
("Xxxxxxx") this _____ day of December, 1997, to become effective upon the
second closing of the sale by Xxxxxxx of stock in Fronteer to Xxxx Xxxx Capital
[S] Private Limited ("Capital") as described in paragraph 2 of the
Contemporaneous Closing Agreement.
1. Resignation. Xxxxxxx resigns as an officer, employee, consultant and any
and all other positions with Fronteer and all of its subsidiaries. Xxxxxxx
acknowledges that this resignation is his free and voluntary act, that through
and including the effective date hereof he will have been paid any and all
compensation and fees to which he is entitled, and that he is not entitled to
any deferred salary, severance pay, compensation, royalties, fees, commissions,
license fees, pension, profit sharing or other compensation or remuneration of
any type or kind whatsoever from Fronteer or any of its subsidiaries.
2. Trade Secret Covenants.
A. Trade Secrets. Xxxxxxx acknowledges that Fronteer and its
subsidiaries (collectively, "the Company") have developed certain proprietary,
confidential information which is used in conducting the Company's business (the
"Trade Secrets"). The Trade Secrets provide the Company with a competitive
advantage in the marketplace and are therefore a valuable asset of the Company.
The Trade Secrets include, but are not limited to, the following information and
materials, whether or not reduced to writing or otherwise recorded in any media:
a. All customer lists, which shall include but not be limited
to customer names, addresses, telephone numbers, summaries of purchases
and business dealings and any other information maintained from time to
time by the Company with respect to its customers and prospective
customers;
b. All employee and personnel information, which shall include
but not be limited to names, addresses, telephone numbers, compensation
information, results of tests administered by the Company and any other
information maintained from time to time by the Company with respect to
its employees;
c. All of the Company's marketing and promotional materials,
techniques, pricing policies, financial information, requirements and
other data, and information concerning the manner in which the Company
does business and its relationships with third parties;
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d. All of the Company's techniques for compensating its
employees; and
e. All other business methods, procedures and techniques now
or hereafter used by the Company in the operation of its business.
B. Title to Trade Secrets. Xxxxxxx agrees that the Trade Secrets are
and shall at all times remain the sole and exclusive property of the Company.
All notes, data, reference materials, sketches, drawings, memoranda and records
in any way relating to any of the Trade Secrets shall belong exclusively to the
Company, and Xxxxxxx agrees to turn over to the Company all copies of such
materials in Xxxxxxx'x possession at the request of the Company or, in the
absence of such a request, upon the termination of Xxxxxxx'x services with the
Company.
C. Covenant of Non-Disclosure. Xxxxxxx shall not sell, transfer,
publish, discuss, disclose, display or otherwise reveal or make available in any
media to any third party any of the Trade Secrets. Xxxxxxx shall not use the
Trade Secrets for any purpose.
D. Misappropriation. Xxxxxxx shall not, directly or indirectly, perform
or permit any act which would result in misappropriation of any Trade Secret by
Xxxxxxx or by a third-party. As used in this paragraph, the term
"misappropriation" shall have the meaning assigned to it by section 7-74-102(2),
C.R.S. or any successor law or regulation.
E. Enticement of Employees. Xxxxxxx acknowledges that other employees
and independent contractors of the Company have access to certain of the
Company's Trade Secrets. Xxxxxxx further acknowledges that the Trade Secrets may
be misappropriated through the enticement of Company employees or independent
contractors to business entities which compete with the Company. In order to
protect the Company's Trade Secrets, Xxxxxxx agrees that he shall not
participate in any enticement of any of the Company's employees or independent
contractors on behalf of any entity or person who competes or intends to compete
with the Company.
F. Equitable Relief. Xxxxxxx acknowledges and agrees that any breach of
this Agreement by Xxxxxxx would cause immediate irreparable harm to the Company
and monetary damages may be difficult if not impossible to ascertain. Xxxxxxx
agrees that should he or she violate any of the terms and conditions of this
Agreement, the Company shall be entitled to seek and obtain immediate injunctive
relief and enjoin further and future violations of this Agreement to the maximum
extent permitted by Colorado law, including but not limited to the injunctive
relief authorized by section 7-74-103, C.R.S. However, nothing contained herein
shall affect the right of the Company to seek and obtain monetary damages in
addition to or in substitution for such equitable relief.
G. Damages. In addition to the equitable relief specified above, the
Company shall be entitled to recover compensatory and punitive damages in the
event of a misappropriation of any Trade Secret or upon any other breach of this
Agreement to the maximum extent permitted by Colorado law, including but not
limited to the compensatory and punitive damages authorized by section
7-74-104(1), C.R.S. -
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3. Noncompetition. For a period of five (5) years following the date of
this Agreement, Xxxxxxx agrees not to compete with the Company, directly or
indirectly, including (without limitation) engaging in any business competitive
with the business conducted by the Company within two years before the date
hereof.
4. Cooperation. The parties agree to cooperate with one another and to
execute any other documents that may be necessary or desirable to effectuate the
purpose of this Agreement, without unreasonable delay or additional
compensation.
5. Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, representatives,
successors and assigns.
6. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
effective on the day and year first above written.
FRONTEER:
FRONTEER FINANCIAL HOLDINGS, LTD.,
a Colorado corporation
By:
-------------------------------------------
XXXXXXX:
---------------------------------------------
Xxxxxx X. Xxxxxxx
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