Exhibit 2.13
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into this 2nd
day of May, 2002, by and among Packers Service Group, Inc., a Nebraska
corporation (the "Buyer" or the "Company", as applicable) and Infovisa, Inc., a
Colorado corporation (the "Seller").
RECITALS
A. Seller owns title and beneficial ownership interest in 100.0%
of all of the issued and outstanding preferred stock (the "Stock") of the
Company;
B. The parties desire that Seller sells to Buyer and Buyer
purchases from Seller upon the terms and conditions hereinafter set forth all of
the Stock representing an interest in 100.0% of the preferred stock of the
Company immediately after all transactions contemplated or referenced in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and in
consideration of and in reliance upon the representations, warranties and
obligations in this Agreement, the parties agree as follows:
ARTICLE I
PURCHASE OF STOCK
1.1 Definition Reference. Certain capitalized terms are defined in
Section 8.1.
1.2 Purchase of Stock. Subject to the terms of this Agreement,
Seller agrees to sell, transfer and assign (or cause to be sold, transferred and
assigned) to Buyer free of all Liens, and Buyer agrees to purchase 10,000 shares
of the Stock representing 100.0% of the authorized and issued shares of
preferred stock of the Company.
ARTICLE II
CONSIDERATION
2.1 Purchase Price. In consideration of the Purchased Stock, Buyer
will pay Seller the aggregate purchase price of $10,000,000 together with all
earned and undistributed dividends on the stock through the Closing Date (the
"Purchase Price"), payable as set forth below.
2.1.1 Closing Payment. At the Closing, Buyer will pay
Seller the Purchase Price by either delivery of immediately available funds or a
promissory note issued by Buyer as may mutually be agreed upon by the parties at
closing.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date of this
Agreement and as of Closing, as follows:
3.1 Ownership of Stock. Seller is, as of the date of this
Agreement, the record title and beneficial owner of 10,000 shares of the Stock,
and will be the record title and beneficial owner of such Stock as of Closing,
free and clear from all Liens of any nature, and upon the delivery to Buyer of
the endorsed Stock certificates Buyer will be the title and beneficial owner of
10,000 shares of Stock, which shall constitute 100% of the issued and
outstanding preferred stock of the Company, which shall be free and clear from
all Liens of any nature.
3.2 Authorization; Organization and Standing; Non-Contravention.
Seller has the necessary power and authority to execute and deliver this
Agreement and to perform the obligations to be performed by Seller hereunder,
and this Agreement is valid and binding upon Seller and enforceable in
accordance with its terms. The execution and delivery of this Agreement by
Seller do not, and the consummation of the transactions contemplated hereby and
the performance by Seller of the terms of this Agreement will not (a) violate
any Law, (b) conflict with, result in a breach of, constitute a default under,
result in the acceleration of, create in any Person the right to accelerate,
modify or cancel, or require any notice under any contract to which the Company
is a party or by which the Company is bound or which any of its assets are
subject, (c) violate provisions of the Company's articles of incorporation or
bylaws, or (d) result in acceleration of any obligation under, or constitute an
event of default under any order, judgment or decree to which the Company or
Seller are bound. No approval, authorization, license, permit or other action
by, or filing with, any Governmental Authority or non-governmental third party,
or of the directors of the Company is required that has not been obtained in
connection with the execution and delivery of this Agreement by Seller or the
consummation by Seller of the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization and Power. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nebraska.
Buyer has full corporate power to execute, deliver and perform this Agreement
and all other agreements and documents to be executed and delivered by it in
connection herewith.
4.2 Authority; Noncontravention. Buyer has the necessary corporate
powers and authority to execute and deliver this Agreement and to perform the
obligations to be performed by Buyer hereunder, and this Agreement is valid and
binding upon Buyer and enforceable in accordance with its terms. The execution
and delivery of this Agreement will not (a) violate any Law, (b) conflict with,
result in a breach
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of, constitute a default under, result in acceleration of, create in any Person
the right to accelerate, modify or cancel, or require any notice under any
contract to which Buyer is a party or by which Buyer is bound or which any of
its assets are subject, (c) violate the articles of incorporation or bylaws of
Buyer, or (d) result in acceleration of any obligation under, or constitute an
event of default under, any order, judgment or decree to which Buyer is bound.
Except as specifically set forth in this Agreement, no approval, authorization,
license, permit or other action by, or filing with, any Governmental Authority
or non-governmental third party, or of the shareholders or directors of Buyer is
required that has not been obtained in connection with the execution and
delivery of this Agreement by Buyer or the consummation by Buyer of the
transactions contemplated hereby.
4.3 Brokers and Finders. Buyer has not employed any broker or
finder or incurred any Liability for any brokerage fees, commissions or finder's
fees in connection with this Agreement.
ARTICLE V
CLOSING
5.1 Closing. If the conditions to the parties' obligations
enumerated below in Sections 5.2 and 5.3 are satisfied, consummation of the
transactions contemplated hereby (the "Closing") shall take place as of the date
first set forth above (the "Closing Date"), by delivery or facsimile copies of
documents, or on such other date or at such other location as the parties may
agree. The transfers and deliveries herein contemplated will be mutually
interdependent and regarded as occurring simultaneously; and no such transfer or
delivery will become effective until all of the transfers and deliveries
provided for in Sections 5.2 and 5.3 have been consummated. Notwithstanding the
date of Closing, the transactions consummated herein shall be effective as of
May 3, 2002.
5.2 Conditions to Buyer's Obligations. The obligation of Buyer to
perform this Agreement is subject to satisfaction (or written waiver by Buyer in
Buyer's sole discretion) of the following conditions at or before the Closing,
it being an explicit condition that all agreements and documents to be delivered
to Buyer which are not attached as Schedules (and therefore deemed satisfactory
to Buyer) must be in form and substance reasonably satisfactory to Buyer:
5.2.1 Agreements Performed. Seller shall have performed all
of the obligations under this Agreement to be performed by Seller at or before
the Closing, and Buyer shall have received a certificate to such effect,
executed by the Seller and dated as of the Closing Date;
5.2.2 Representations Accurate. The representations and
warranties of Seller contained herein will continue to be accurate in all
material respects just as if made as of the Closing, without giving effect to
any supplemental disclosure, update or modification and Buyer shall have
received a certificate to such effect, executed by the Seller and dated as of
the Closing Date, if requested by Buyer;
5.2.3 Legal Action. There will be no pending or threatened
legal action or inquiry which challenges the validity or legality of or seeks or
could reasonably be expected to prevent, delay or impose conditions on the
consummation of the transactions contemplated by this Agreement;
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5.2.4 Stock Certificates. Buyer will have received stock
certificates either duly endorsed in blank or with stock powers so endorsed and
attached thereto ready for immediate transfer into Buyer's name, representing
the transfer of the Seller's Stock to Buyer, free of all Liens, as well as all
other documents to be delivered pursuant to Section 5.5.1 hereof;
5.2.5 Access to Records. Buyer shall have been afforded an
opportunity to review all books and records of the Company and its Subsidiaries;
5.2.6 Due Diligence. Buyer will have completed its due
diligence review with respect to the Company and the results thereof shall have
been to the satisfaction of Buyer in its sole discretion;
5.2.7 Others. Buyer will have received each other document
required to be delivered to Buyer hereunder.
5.3 Conditions to Seller's Obligations The obligation of Seller
to perform this Agreement is subject to satisfaction (or written waiver of
Seller in Seller's sole discretion) of the following conditions at or before the
Closing, it being an explicit condition that all agreements and documents to be
delivered to Seller which are not attached as Schedules (and therefore deemed
satisfactory to Seller) must be in form and substance reasonably satisfactory to
Seller:
5.3.1 Agreements Performed Buyer will have performed all
of the obligations under this Agreement to be performed by it at or before the
Closing;
5.3.2 Representations Accurate. The representations and
warranties of Buyer contained herein will continue to be accurate in all
material respects just as if made as of the Closing without giving effect to any
supplemental disclosure, update or modification;
5.3.3 Legal Action. There will be no pending or threatened
legal action or inquiry which challenges the validity or legality of or seeks or
could reasonably be expected to prevent, delay or impose conditions on the
consummation of the transactions contemplated by this Agreement;
5.3.4 Closing Payment. Seller will have received
immediately available funds by wire transfer in the amount of the Purchase Price
and each of the other documents required to be delivered pursuant to Section
5.5.2 hereof;
5.3.5 Others. Seller and the Company will have received
each other document required to be delivered to them hereunder.
5.4 Closing Covenants.
5.4.1 Supplemental Disclosure. Until the Closing, the
parties hereto will immediately notify the other party of any event or
circumstance that:
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(a) makes it necessary to correct any
representation and warranty in Article III or IV that has been
rendered inaccurate thereby; or
(b) arises hereafter and which, had it existed
on or prior to the date hereof, would have resulted in an
inaccuracy in a representation and warranty in Article III or
IV.
5.4.2 Termination. This Agreement may be terminated:
(a) by written agreement of Buyer and Seller, or
if Buyer determines to terminate after due diligence
investigation by Buyer is not satisfactory in Buyer's
discretion; or
(b) by Buyer, if there has been a material
breach by Seller or the Company or its Subsidiaries of any of
the Seller's representations, warranties, covenants or
agreements set forth in this Agreement which breach cannot be
cured promptly by the Seller or the Company or its
Subsidiaries.
If this Agreement is terminated pursuant to paragraph (a) of this Section, all
provisions of this Agreement will become void without any liability on the part
of any party. If this Agreement is terminated pursuant to paragraph (b) of this
Section, all rights and remedies of each party hereunder and all other
provisions hereof related thereto will survive termination to the extent
required so that any party responsible for any breach or nonperformance of its
obligations hereunder prior to termination will remain liable for the damages
resulting therefrom. All rights and remedies of each party hereunder and all
other provisions hereof related thereto will survive termination to the extent
required so that any party responsible for any breach or nonperformance of its
obligations hereunder prior to termination will remain liable for the damages
resulting therefrom.
5.5 Closing Deliveries. At the Closing, the parties hereto will
make the transfers and deliveries hereinafter set forth. The transfers and
deliveries herein contemplated will be mutually interdependent and regarded as
occurring simultaneously; and no such transfer or deliver will become effective
until all of the transfers and deliveries provided for hereunder have been
consummated. The transfers and deliveries herein contemplated will be deemed to
have occurred and the Closing will be effective as of the close of business on
May 3, 2002.
5.5.1 Deliveries from Seller to Buyer. At the Closing,
Seller shall deliver or cause to be delivered the following to Buyer:
(a) certificates representing all of the
purchased Stock duly endorsed by Seller, fully registered in
the name of Buyer and duly recorded on the stockholder and
transfer records of the Company, free of all Liens and
assessments;
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(b) each other document reasonably requested to
be delivered to Buyer hereunder.
5.5.2 Deliveries from Buyer to Seller. At the Closing,
Buyer shall deliver or cause to be delivered the following to Seller:
(a) evidence of wire transfer of the Purchase
Price;
(b) each other document reasonably requested to
be delivered to Seller hereunder.
ARTICLE VI
COVENANTS
6.1 Miscellaneous Covenants.
6.1.1 Publicity. All public announcements relating to this
Agreement or the transactions contemplated hereby will be made only as may be
authorized mutually by Buyer and Seller or as required by Law.
6.1.2 Expenses. Except to the extent otherwise specifically
provided herein, each party will pay all of its own respective expenses incident
to the transactions contemplated by this Agreement which are incurred by such
party or its representatives.
6.1.3 No Assignment. Except as provided in Article IX, no
assignment of any part of this Agreement or any right or obligation hereunder
may be made without the prior written consent of all other parties, and any
assignment attempted without that consent will be void.
6.2 Confidentiality.
6.2.1 Confidentiality Obligation. Except for a Required
Disclosure (as defined below) each party hereto agrees not to disclose or use,
directly or indirectly, any Confidential Information, at any time after
execution of this Agreement, and the Closing. In the event of a contemplated
Required Disclosure of Confidential Information by a party, such party agrees to
use his or its best efforts to provide the other party and the Company an
opportunity to object to the disclosure and as much prior written notice as is
possible under the circumstances. For purposes of this Section 6.2.1,
"Confidential Information" means (I) all information belonging to, used by, or
which is in the possession of any party hereto relating to the Company's or its
Subsidiaries' or another party hereto's business to the extent such information
is not intended to be disseminated to the public or is otherwise not generally
known to competitors of the Company or its Subsidiaries, including, but not
limited to, information relating to the Company's or its Subsidiaries' products,
services, strategies, pricing, customers, representatives, suppliers,
distributors, technology, finances, employee compensation, computer software and
hardware, inventions, developments, or trade secrets and (ii) all information
relating to the acquisition of the purchased Stock by Buyer
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hereunder, including, without limitation, all strategies, negotiations,
discussions, terms, conditions and other information relating to this Agreement
and each other document and agreement delivered in connection herewith. Each
party hereto acknowledges that following the Closing all of the Confidential
Information will be the exclusive proprietary property of the Company or of the
appropriate other parties hereto, as the case may be, whether or not prepared in
whole or in part by any party hereto and whether or not disclosed to or
entrusted to the custody of any party hereto. Nothing herein shall require any
party to withhold from disclosure of any Confidential Information hereunder
where disclosure is required by Law, required to be included in either party's
financial statements or required for the preparation and submission of any
report for any agency, commission or board requiring such information in
connection with such party's business (a "Required Disclosure"). Notwithstanding
any other provision contained in this Agreement to the contrary, Buyer may
furnish information (including Confidential Information) to third Persons who
are agents or employees of Buyer.
ARTICLE VII
INDEMNIFICATION
7.1 Survival of Representations and Warranties. The
representations and warranties of Seller in Article III and Buyer in Article IV
will survive the Closing and continue to be binding regardless of any
investigation made at any time by any party.
7.2 Indemnification by Seller. Seller will indemnify Buyer and its
Affiliates (exclusive of the Company, its Subsidiaries and the Seller) and the
shareholders, directors, employees and agents of Buyer and its Affiliates
(exclusive of the Company and the Seller) (collectively, the "Buyer Indemnified
Parties") against and hold them harmless from:
(a) Representations. All Liability, loss, damage,
deficiency or cost (including without limitation reasonable attorneys
fees) resulting from or arising out of any material inaccuracy in or
breach of any representation or warranty by Seller herein or in any
other agreement, or document referred to herein and delivered by or on
behalf of Seller in connection herewith (except, and only to the
extent, that any such agreement or document provides for an
economically equivalent remedy to Buyer as is provided hereunder, the
intentions of the parties being to avoid any duplication of recovery
for any breach hereunder); provided, however, in no event shall this
subsection (a) apply to any inaccuracy or breach caused by an event
which occurs after the Closing;
(b) Covenants. All Liability, loss, damage, deficiency or
cost (including without limitation reasonable attorneys fees) from or
arising out of any breach or nonperformance of any covenant or
obligation made or incurred by Seller herein or in any other agreement
or document referred to herein and delivered by or on behalf of Seller
in connection herewith (except, and only to the extent, that any such
agreement or document provides for an economically equivalent remedy to
Buyer as is provided hereunder, the intentions of the parties being to
avoid any duplication of recovery for any breach thereunder).
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7.3 Indemnification by Buyer. Buyer will indemnify Seller and
Seller's agents (collectively, the "Seller Indemnified Parties") against and
hold them harmless from:
(a) Representations. All Liability, loss, damage,
deficiency or cost (including without limitation reasonable attorneys
fees) from or arising out of any inaccuracy in or breach of any
representation or warranty by Buyer herein or in any other agreement,
or document referred to herein and delivered by or on behalf of Buyer
in connection herewith (except, and only to the extent, that any such
agreement or document provides for an economically equivalent remedy to
Seller as is provided hereunder, the intentions of the parties being to
avoid any duplication of recovery for any breach hereunder);
(b) Covenants. All Liability, loss, damage, deficiency or
cost (including without limitation reasonable attorneys fees) resulting
from or arising out of any breach or nonperformance of any covenant or
obligation made or incurred by Buyer herein or in any other agreement
or document referred to herein and delivered by or on behalf of Buyer
in connection herewith (except, and only to the extent, that any such
agreement or document provides for an economically equivalent remedy to
Seller as is provided hereunder, the intentions of the parties being to
avoid any duplication of recovery for any breach thereunder).
ARTICLE VIII
CONSTRUCTION
8.1 Definitions. When used in this Agreement, the following terms
in all of their tenses and cases will have the meanings assigned to them below
or elsewhere in this Agreement as indicated below:
"Affiliate" of any Person means any person directly or indirectly
controlling, controlled by, or under common control with, any such Person and
any officer, director or controlling person of such Person.
"Buyer" means Packers Service Group, a Nebraska corporation.
"Buyer Indemnified Parties" is defined in Section 7.2.
"Closing" and "Closing Date" are defined in Section 5.1.
"Company" means Packers Service Group, Inc., a Nebraska corporation.
"Confidential Information" is defined in Section 6.2.1.
"Law" means any common law and any federal, provincial, municipal,
state, regional, local or foreign law, bylaw, rule, statutes, ordinance, rule,
order or regulation.
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"Liabilities" means responsibilities, obligations, duties, commitments,
claims and liabilities of any and every kind, whether known or unknown, accrued,
absolute, contingent or otherwise.
"Lien" means any security interest, lien, charge, covenant, condition,
easement, adverse claim, demand, encumbrance, limitation, security interest,
option, pledge, warrant or any other title defect or restriction of any kind.
"Person" means any individual, corporation, partnership, association or
any other entity or organization.
"Purchased Stock" means the Stock the Company acquired by Buyer at the
Closing and which at the Closing shall represent 100% of the issued and
outstanding preferred stock in the Company.
"Purchase Price" is defined in Section 2.1.
"Seller" means Infovisa, Inc., a Colorado corporation.
"Seller Indemnified Parties" is defined in Section 7.3.
"Stock" is defined in the Recitals.
"Subsidiaries" means any wholly owned subsidiary entities of the
Company.
8.2 Notices. All notices shall be in writing delivered as follows:
(a) If to Buyer:
Packers Service Group, Inc.
Attention: Xxxx Xxxxxx
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 402/000-0000
Facsimile: 402/323-1286
with a copy to:
Xxxxxx X. Xxxxxx
Perry, Guthery, Xxxxx
& Xxxxxxxx, P.C., L.L.O.
000 Xxxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 402/ 000-0000
Facsimile: 402/ 476-0094
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(b) If to Seller:
Infovisa, Inc.
Attention: Xxxx Xxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000 X000
Facsimile: (000) 000-0000
or to such other address as may have been designated in a prior notice. Notices
sent by registered or certified mail, postage prepaid, return receipt requested,
shall be deemed to have been given two business days after being mailed, and
otherwise notices shall be deemed to have been given when received.
8.3 Binding Effect. Except as may be otherwise provided herein,
this Agreement will be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Except as otherwise provided
in this Agreement, nothing in this Agreement is intended or will be construed to
confer on any Person other than the parties any rights or benefits hereunder.
8.4 Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be deemed an original, and all of which
together will constitute one and the same document.
8.5 Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against either party.
This Agreement shall be construed to be valid and enforceable to the full extent
allowed by law. It is agreed that if any part, term or provision of this
Agreement is determined to be illegal, unenforceable or in conflict with
applicable law, the validity of the remaining terms and provisions shall not be
affected, and the rights and obligations of the parties shall be construed and
enforced as if the Agreement did not contain the term of provision held to be
invalid.
8.6 Modification. No supplement, modification or amendment of this
Agreement will be binding unless made in a written instrument which is signed by
both parties and which specifically refers to this Agreement.
8.7 Entire Agreement. This Agreement and the agreements and
documents referred to in this Agreement or delivered hereunder are the exclusive
statement of the agreement between the parties concerning the subject matter
hereof. All negotiations between the parties are merged into this Agreement, and
there are no representations, warranties, covenants, understandings or
agreements, oral or otherwise, in relation thereto between the parties other
than those incorporated herein and to be delivered hereunder.
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INTENDING TO BE LEGALLY BOUND, the parties have signed this Stock
Purchase Agreement as of the date first above written.
PACKERS SERVICE GROUP, INC. INFOVISA, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
Title: V.P. Title: President
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