STOCK PURCHASE AGREEMENT
EXHIBIT
4.1
STOCK
PURCHASE AGREEMENT
(this
“Agreement”),
entered into as of and effective the 31st
day of
May 2005, by and among Sequiam
Corporation,
a
California corporation (the “Buyer”)
and
the
individuals whose names appear on Exhibit
A
hereto (the
“Shareholders”
or
“Sellers”),
and
Constellation
Biometrics Corporation,
a
Florida corporation (the “Company”
or
“Constellation”);
W
I T N E S S E T H:
WHEREAS,
the
Company is engaged in the business of the development, marketing and sale of
biometric technology products (the “Business”);
and
WHEREAS,
the
Company owns 100% of the outstanding capital stock of Xxxxxxxxxx.xx.xx, a
company organized under the laws of South Africa (the “Subsidiary”);
and
WHEREAS,
the
Shareholders are the record owners of one hundred percent (100%) of the issued
and outstanding capital stock of the Company (the “Stock”)
as set
forth opposite their respective names on Exhibit
A
attached
hereto and made a part hereof; and
WHEREAS,
the
Shareholders had originally acquired their interests in the Company and the
Subsidiary with a view toward combining the Company with the Buyer once the
Buyer was able to arrange for the purchase of the Company and the Subsidiary;
and
WHEREAS,
it is
the intent of the parties that the Buyer stand in the place of the Shareholders
in the acquisition, and that the Shareholders be reimbursed for their
investment, without deriving any substantial profit on the transaction; and
WHEREAS,
the
Buyer desires to purchase from the Shareholders, and the Shareholders desire
to
sell to the Buyer, upon the terms and subject to the conditions set forth in
this Agreement, all (and not less than all) of the Stock, and through such
Stock
ownership of the Business as a going concern.
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants herein contained, the
parties hereby agree as of the date hereof, as follows:
1. RECITALS.
The
foregoing recitals are true and accurate and by this reference incorporated
herein.
2. ACQUISITION
OF THE STOCK; CONSIDERATION.
2.1 Purchase
and Sale of Stock. Subject to the terms and conditions of this Agreement, at
the Closing (defined below) the Buyer shall purchase and acquire from the
Shareholders, and the Shareholders shall sell and transfer to the Buyer, all
(and not less than all) of the Stock, in exchange for the consideration provided
in Section 2.2. In furtherance thereof, the Shareholders shall deliver the
certificates representing all of their Stock (duly endorsed for transfer or
accompanied by stock powers executed in blank for transfer) to Buyer at
Closing.
2.2 Consideration.
In exchange for the shares of Stock owned by each Shareholder, the Buyer will
issue and deliver to each Shareholder the number of shares of common stock
of
Buyer as set forth opposite each Shareholder’s name on Exhibit B attached
hereto and made a part hereof, representing a total of 1,635,514 shares of
common stock of Buyer (the “Sequiam
Shares”).
The
exchange of stock for Sequiam Shares is intended to qualify as a tax-free
exchange under Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended, and regulations promulgated thereunder (collectively, the
“Code”).
3. CLOSING.
3.1 Closing.
Subject to the conditions stated in Section 8 and Section 9, the closing of
the
transactions contemplated hereby (the “Closing”)
shall
be held at 10:00 a.m., eastern time, on May 31, 2005, or if the conditions
set
forth in Section 8 or Section 9 have not been satisfied or waived on such date,
on the fifth (5th)
business day after all such conditions shall have been satisfied or waived
(the
“Outside
Closing Date”),
at
the offices of Xxxxxxxxx Xxxxxxx, P.A., 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, or at such other location, or such earlier or later
date
or time as the parties may mutually agree. The date upon which the Closing
occurs is hereinafter referred to as the “Closing
Date.”
3.2 Deliveries
by the Shareholder. At or prior to the Closing, the Shareholders shall
deliver to the Buyer:
(a) stock
certificates representing the Stock, duly endorsed by the Shareholders or
accompanied by executed stock powers;
(b) a
certificate executed by each Shareholder to the effect that the conditions
set
forth in Section 9 have been satisfied;
(c) any
other
documents or instruments deemed reasonably necessary by Buyer or Shareholder
to
consummate the transactions contemplated hereby.
3.3 Deliveries
by Buyer.
(a) the
Sequiam Shares issued in the name of each Shareholder as set forth on
Exhibit
B
hereto,
or alternatively the delivery of a letter to the Buyer’s transfer agent
instructing the transfer agent to issue the Sequiam Shares to the Shareholders
in accordance with Exhibit
B;
(b) a
certificate executed by the Buyer to the effect that the conditions set forth
in
Section 8 have been satisfied;
(c) a
copy of
resolutions adopted by Buyer’s Board of Directors authorizing the transactions
contemplated herein and the issuance of the Sequiam Shares;
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(d) any
other
documents or instruments deemed reasonably necessary by Buyer or Shareholder
to
consummate the transactions contemplated hereby.
3.4 Ancillary
Documents. The following documents may be sometimes referred to herein
collectively as the “Ancillary
Documents”:
any or
all other agreements, instruments or documents required or expressly provided
under this Agreement to be executed and delivered in connection with the
transactions contemplated by this Agreement.
3.5 Allocation
of Closing Costs. All expenses incurred by the Buyer or the Shareholders in
connection with the transactions contemplated hereby, including legal, financial
advisory, accounting, and other expert fees, shall be the responsibility of
and
for the account of the party who ordered the particular service or incurred
the
particular expense.
4. REPRESENTATIONS
AND WARRANTIES OF SHAREHOLDERS.
In
connection with the sale of the Stock to the Buyer, the Shareholders, each
separately, only as such representation relates to each such Shareholder,
represent and warrant to the Buyer as follows;
4.1 Title
to the Stock. The Shareholder is the valid and lawful record and beneficial
owner of all of the Stock set forth opposite the Shareholder’s name on
Exhibit A hereto, all of which has been duly authorized and validly
issued and is fully paid and non-assessable, and is free and clear of all
pledges, liens, claims, charges, options, calls, encumbrances, restrictions
and
assessments whatsoever (except any restrictions which may be created by
operation of state or federal securities laws). On the Closing Date, the Buyer
shall receive from the Shareholder good, valid and marketable title to all
of
such Stock free and clear of all pledges, liens, claims, charges, options,
calls, encumbrances, restrictions and assessments whatsoever (except any
restrictions which may be created by operation of state or federal securities
laws).
4.2 Rights
to Acquire Capital Stock.
To the
best of Shareholder’s knowledge, there are no outstanding subscriptions,
options, rights, warrants, convertible securities or other agreements or calls,
demands or commitments obligating the Company or the Subsidiary to issue,
transfer or purchase any shares of its capital stock, or obligating the
Shareholder to transfer any shares of Stock.
4.3 Valid
and Binding Agreement; No Breach.
(a) The
Shareholder has full legal right, power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. This
Agreement constitutes the legal, valid and binding obligations of the
Shareholder, enforceable against the Shareholder in accordance with their
respective terms, except as such enforcement may be limited by general equitable
principles or by applicable bankruptcy, insolvency, reorganization or other
laws
and judicial decisions from time to time in effect which affect creditors’
rights generally.
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4.4 Affiliated
Transactions.
Other
than as disclosed in this Agreement (including any exhibits annexed hereto),
neither the Company nor the Subsidiary is a debtor or creditor of the
Shareholder, nor are the Company or the Subsidiary subject to any agreement
between either of them and the Shareholder.
4.5 Brokers.
No broker or finder is involved in this transaction or is entitled to receive
a
fee, commission or other compensation from the Shareholder or the Company with
respect to the transactions contemplated in this Agreement.
4.6 No
Other Consideration. The only consideration being paid by the Shareholder
for the Sequiam Shares is the Shareholder’s Stock and no other consideration in
any form whatsoever, including but not limited to any real or personal property,
securities or cash, has been or will be received by the Shareholder in exchange
for the Shareholder’s Stock.
4.7 Investment
Intent; Accredited Investor Status. Each Shareholder is an “accredited
investor” within the meaning of Regulation D promulgated under the Securities
Act of 1933, as amended (the “Securities
Act”).
The
Shareholder is acquiring the Sequiam Shares for his own account for the purpose
of investment and not with a view to, or for sale in connection with, the
distribution thereof, and it has no present intention of distributing or selling
such Sequiam Shares. The Shareholder understands that the Sequiam Shares have
not been registered under the Securities Act, or the securities laws of any
state or other jurisdiction, and hereby agrees not to make any sale, transfer
or
other disposition of such Sequiam Shares unless either (i) such Sequiam Shares
have been registered under the Securities Act and all applicable state and
other
securities laws and any such registration remains in effect or (ii) Buyer shall
have received an opinion of counsel in form and substance reasonably
satisfactory to Buyer that registration is not required under the Securities
Act
or under applicable state securities laws.
4.8 Opportunity
to Investigate. The Shareholder (i) has received copies of the Buyer’s Form
10-KSB for the fiscal year ended December 31, 2004 and subsequent filings of
the
Buyer made pursuant to the Securities and Exchange Act of 1934, as amended
(the
“Exchange
Act”)
(ii)
has had the opportunity to ask questions concerning Buyer and all such questions
posed have been answered to his satisfaction; (ii) has been given the
opportunity to obtain any additional information it deems necessary to verify
the accuracy of any information obtained concerning Buyer; and (iii) has such
knowledge and experience in financial and business matters that it is able
to
evaluate the merits and risks of the Buyer acquiring the Company and to make
an
informed investment decision relating thereto. The opportunity to so investigate
Buyer and information obtained therefrom shall not affect the Shareholder’s
representations and warranties set forth in this Agreement.
5. REPRESENTATIONS
AND WARRANTIES OF THE BUYER.
In
connection with the Buyer’s purchase of the Stock from the Shareholder, the
Buyer represents and warrants to the Shareholders as follows:
5.1 Existence. The
Buyer
is now, and on the Closing Date will be, a corporation, organized and existing
and in good standing under the laws of the State of California and has the
requisite power and authority to own or lease its properties and to carry on
its
business as now being conducted.
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5.2 Power
and Authority. The Buyer has the power, legal capacity and authority to
enter into, and perform its obligations under this Agreement and the Ancillary
Documents. The Buyer has taken all action necessary to authorize the execution
and delivery of this Agreement and the Ancillary Documents, the performance
of
its obligations hereunder and thereunder, and the consummation of the
transactions contemplated hereby and thereby.
5.3 Enforceability.
This Agreement and the Ancillary Documents have been duly authorized by all
necessary corporate action, executed and delivered by the Buyer and constitute
the legal, valid and binding obligation of the Buyer, enforceable against it
in
accordance with its terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the
enforcement of creditors’ rights generally and general equitable principles
regardless of whether such enforceability is considered in a proceeding at
law
or in equity.
5.4 No
Default or Consents. Neither
the execution or delivery of this Agreement and the Ancillary Documents by
Buyer, nor the carrying out of the transactions contemplated hereby will:
(a) violate
the Articles of Incorporation or Bylaws of the Buyer; (b) violate,
conflict with, result in a breach of, constitute a default under (whether with
or without notice or the lapse of time or both), or accelerate or permit the
acceleration of the performance required by, or give any other party the right
to terminate, any material contract or other instrument applicable to Buyer;
(c) result
in the creation of any material lien, charge or other encumbrance on any
property of the Buyer; (d) require
the Buyer to obtain or make any waiver, consent, action, approval or
authorization of, or registration, declaration, notice of filing with, any
private non-governmental third party or any governmental agency, except as
otherwise required under applicable federal securities laws, or (e) violate
or conflict with any law, statute, ordinance, rule, regulation, judgment, order,
injunction, or decree to which the Buyer is a party, or by which the Buyer
is
bound.
5.5 No
Proceedings. No suit, action or other proceeding is pending or, to the
Buyer’s knowledge, threatened by any third party seeking to restrain the Buyer
or prohibit Buyer’s entry into this Agreement or the Ancillary Documents or
prohibit the Closing, or seeking damages against the Buyer or Buyer’s properties
as a result of the consummation of this Agreement.
5.6 No
Other Consideration.
The only
consideration being paid by the Buyer for the Stock is the Sequiam Shares and
no
other consideration in any form whatsoever (including, but not limited to,
any
real or personal property, securities or cash) has been or will be received
by
the Buyer in exchange for the Sequiam Shares.
5.7 Investment.
The Buyer is purchasing the Stock for its own account for investment, and not
with a view to the resale or distribution thereof in violation of any applicable
securities laws. The officers and directors of Buyer have such knowledge and
experience in financial and business matters that they are able to evaluate
the
merits and risks of the Buyer aquiring the Stock and to make an informed
investment decision relating thereto.
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5.8 Brokers.
No broker or finder is involved in connection with this transaction or is
entitled to receive a fee, commission or other compensation from the Buyer
with
respect to the transactions contemplated in this Agreement.
5.9 Authorization. The
Buyer
has duly authorized the issuance of the Sequiam Shares to the Shareholders
by
all necessary corporate action and, when paid for in accordance with the terms
of this Agreement, the Sequiam Shares will be validly issued and outstanding,
fully paid and nonassessable shares of common stock of Buyer.
6. THE
SHAREHOLDERS’ OBLIGATIONS BEFORE THE CLOSING DATE.
The
Shareholders, jointly and severally, hereby covenant and agree that, from the
date hereof until the Closing Date:
6.1 Corporate
Matters. Except as otherwise contemplated by this Agreement, neither the
Company nor the Subsidiary will, without the prior written consent of the Buyer,
permit the Company or the Subsidiary to:
(a) amend
its
Articles of Incorporation or By-Laws or other applicable governing
document;
(b) issue
any
shares of the Company’s or Subsidiary’s capital stock;
(c) issue
or
create any warrants, obligations, subscriptions, options, convertible securities
or other commitments under which any additional shares of the Company’s or
Subsidiary’s capital stock might be directly or indirectly issued;
(d) declare,
pay, set aside or make any dividend(s) or other distribution(s) of cash or
other
property, or redeem any outstanding shares of the Company’s or Subsidiary’s
capital stock;
(e) forgive
any liability or indebtedness owed to the Company or Subsidiary by any
Shareholder or any of his Affiliates;
(f) agree
to
do, or take any action in furtherance of, any of the foregoing.
7. [RESERVED].
8. CONDITIONS
PRECEDENT TO THE BUYER’S PERFORMANCE.
The
obligations of the Buyer to consummate the transactions contemplated by this
Agreement are further subject to the satisfaction, at or before the Closing
Date, of all the following conditions, any one or more of which may be waived
in
writing by the Buyer:
8.1 Accuracy
of Representations and Warranties;. All representations and warranties made
by the Shareholders in this Agreement, in any Schedule(s) hereto, and/or in
any
written statement delivered to the Buyer under this Agreement shall be true
and
correct in all material respects on and as of the Closing Date as though such
representations and warranties were made on and as of that date.
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8.2 Performance.
Each Shareholder shall have performed, satisfied and complied with all
covenants, agreements, and conditions required by this Agreement to be
performed, satisfied or complied with by the Shareholder on or before the
Closing Date.
8.3 Certification.
The Buyer shall have received a certificate, dated the Closing Date, signed
by
each Shareholder, certifying, in such detail as the Buyer and its counsel may
reasonably request, that the conditions specified in Sections 8.1 and 8.2 have
been fulfilled.
8.4 Absence
of Litigation. No action, suit or proceeding by or before any court or any
governmental body or authority, against the Company or pertaining to the
transactions contemplated by this Agreement or their consummation, shall have
been instituted on or before the Closing Date, which action, suit or proceeding
would, if determined adversely, have a material adverse effect on the Company,
the Subsidiary, their business or any material portion of their
assets.
8.5 Consents.
All necessary disclosures to and agreements and consents of (a) any
parties
to any material contracts and/or any licensing authorities which are material
to
the Company’s business, and (b) any governmental authorities or agencies to
the extent required in connection with the transactions contemplated by this
Agreement, shall have been obtained and true and complete copies thereof
delivered to the Buyer.
8.6 No
Material Adverse Change. On the Closing Date, there shall not have occurred
any event or condition materially and adversely affecting the financial
condition, results of operations or business prospects of the Company, except
for matters resulting from adverse changes in economic conditions affecting
businesses generally.
8.7 Proceedings
and Instruments Satisfactory. All proceedings, corporate or other, to be
taken in connection with the transactions contemplated by this Agreement, and
all documents incidental thereto, shall be reasonably satisfactory in form
and
substance to the Buyer and its counsel.
9. CONDITIONS
PRECEDENT TO EACH SHAREHOLDERS PERFORMANCE.
The
obligations of each Shareholder to consummate the transactions contemplated
by
this Agreement are further subject to the satisfaction, at or before the Closing
Date, of all of the following conditions, any one or more of which may be waived
in writing by the Shareholders:
9.1 Accuracy
of Representations and Warranties. All representations and warranties made
by the Buyer in this Agreement and/or in any written statement delivered by
the
Buyer under this Agreement shall be true and correct in all material respects
on
and as of the Closing Date as though such representations and warranties were
made on and as of that date.
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9.2 Performance.
The Buyer shall have performed, satisfied and complied with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Buyer on or before the Closing Date.
9.3 Certification.
The Shareholder shall have received a certificate, dated the Closing Date,
signed by the Buyer, certifying, in such detail as the Shareholder and his
counsel may reasonably request, that the conditions specified in Sections 9.1
and 9.2 have been fulfilled.
9.4 Proceedings
and Instruments Satisfactory. All proceedings to be taken in connection with
the transactions contemplated by this Agreement, and all documents incidental
thereto, shall be reasonably satisfactory in form and substance to the
Shareholders and their counsel.
10. ADDITIONAL
AGREEMENTS OF THE PARTIES.
10.1 Assumption
of Promissory Note by Buyer: The promissory note of the Company in favor of
Xxx Xxxxxxxx Xxxxxx, Attorney-in-Fact for the Trust under the Will of Xxxx
Xxxxxxxxxxx (the “Trust”) in the principal amount of $200,000.00 and dated March
23, 2005 [sic] (the “March Note”) shall be assumed by the Buyer and consolidated
with the promissory note dated May 18, 2005 by Buyer in favor of the Trust
in
the principal amount of $3,450,000 (the “May Note”), and shall be subject to the
same terms and conditions as the May Note. In connection therewith, the Buyer
and the Company shall execute any and all documents necessary or reasonably
desirable for the Company and its assets to become subject to, by joinder or
otherwise, the security provisions securing the May Note, including but not
limited to the Master Security Agreement dated May 18, 2005, the Stock Pledge
Agreement dated May 18, 2005, a Subsidiary Guaranty, and all related documents
executed in connection with the $3,450,000 loan (the “Loan’).
10.2 Issuance
of Warrant. The Buyer acknowledges that the common stock purchase warrant
for 600,000 shares of common stock of the Buyer provided for under Section
3 of
the March Note was never issued and in lieu thereof, the Buyer agrees to issue
such warrant to the Trust, which warrant shall have an exercise price of $0.14
per share and shall expire on March 23, 2010.
11. INDEMNIFICATION.
11.1 Survival.
The representations, warranties, and indemnities of the parties set forth in
this Agreement or in connection with the transactions contemplated hereby shall
not survive the Closing.
11.2 Indemnity
by the Shareholder.
From
and after the Closing, each Shareholder, individually and not jointly, hereby
agrees to indemnify and hold harmless the Buyer and the Company and its
Shareholders, directors, officers and employees (the “Buyer
Indemnified Parties”),
from
and against any and all damages, liabilities, obligations, penalties, fines,
interest, judgments, claims, deficiencies, losses, costs, expenses and
assessments (including without limitation income and other taxes, interest,
penalties and attorneys’ and accountants’ fees and disbursements) (“Damages”)
suffered or incurred by the Buyer Indemnified Parties arising out of, resulting
from or in any way related to a breach of, or the failure to perform or satisfy
any of, the representations, warranties, covenants and agreements made by the
Shareholder in this Agreement, or any certificate delivered by the Shareholder
at the Closing pursuant hereto.
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11.3 Post-Closing
Indemnity by the Buyer. From and after the Closing, the Buyer hereby agrees
to indemnify and hold harmless the Shareholder and his successors in interest,
estate and beneficiaries (the “Shareholder
Indemnified Parties”),
from
and against any and all Damages suffered or incurred by the Shareholder
Indemnified Parties arising out of, resulting from or in any way related to:
(a)
a breach of, or the failure to perform or satisfy any of, the representations,
warranties, covenants and agreements made by the Buyer in this Agreement, any
Ancillary Document or certificate delivered by the Buyer at the Closing pursuant
hereto; and (b) any litigation brought by (i) Constellation Biometrics Ltd.,
a
South African company (the “Seller”) and/or (ii) the shareholders of the
shareholders of Seller or their respective heirs and legatees, in connection
with the acquisition of the assets of the Seller by the Company.
11.4 Claims
for Indemnity. For purposes of this Article 11, a party making a claim for
indemnity under this Agreement is hereinafter referred to as an “Indemnified
Party” and the party against whom such claim is asserted is hereinafter
referred to as the “Indemnifying Party.” All claims by any Indemnified
Party under this Agreement shall be asserted and resolved in accordance with
the
following provisions. If any claim or demand for which an Indemnifying Party
would be liable to an Indemnified Party is asserted against or sought to be
collected from such Indemnified Party by such third party, said Indemnified
Party shall with reasonable promptness notify in writing the Indemnifying Party
of such claim or demand stating with reasonable specificity the circumstances
of
the Indemnified Party’s claim for indemnification; provided,
however, that any failure to give such notice will not waive any rights
of the Indemnified Party. After receipt by the Indemnifying Party of such
notice, then upon reasonable notice from the Indemnifying Party to the
Indemnified Party, or upon the request of the Indemnified Party, the
Indemnifying Party shall defend, manage and conduct any proceedings,
negotiations or communications involving any claimant whose claim is the subject
of the Indemnified Party’s notice to the Indemnifying Party as set forth above,
and shall take all actions necessary, including but not limited to the posting
of such bond or other security as may be required by any governmental agency,
so
as to enable the claim to be defended against or resolved without expense or
other action by the Indemnified Party. Upon request of the Indemnifying Party,
the Indemnified Party shall, to the extent it may legally do so and to the
extent that it is compensated in advance by the Indemnifying Party for any
costs
and expenses thereby incurred, (i) take such action as the Indemnifying Party
may reasonably request in connection with such action, (ii) allow the
Indemnifying Party to dispute such action in the name of the Indemnified Party
and to conduct a defense to such action on behalf of the Indemnified Party,
and
(iii) render to the Indemnifying Party all such assistance as the Indemnifying
Party may reasonably request in connection with such dispute and
defense.
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11.5 Limitations
on Certain Indemnity. The
indemnification obligations of the parties hereto pursuant to this Agreement
shall be limited to actual damages and shall not include incidental,
consequential, indirect, punitive, special, or exemplary damages, except that
any incidental, consequential, indirect, punitive, specific or exemplary damages
recovered by any third party against any indemnified party under this Agreement
shall be included in Damages recoverable under the indemnification obligations
of the parties hereto pursuant to this Agreement. In
any
event, the aggregate liability of the Buyer under the indemnification
obligations of the Buyer pursuant to this Agreement shall not exceed
$175,000.00. In addition, the aggregate liability of any Shareholder under
the
indemnification obligations of the Shareholders hereunder pursuant to this
Agreement shall not exceed the purchase price received by such Shareholder
for
the Shares sold hereunder, and the Buyer Indemnified Parties agree to look
solely to the Shares issued to the Shareholder hereunder for indemnification,
and the Shareholders shall not otherwise be liable to any Buyer Indemnified
Party for any amount.
12. MISCELLANEOUS.
12.1 Effect
of Headings. The Article and Section headings used in this Agreement and the
titles of the Schedules hereto are included for purposes of convenience only,
and shall not affect the construction or interpretation of any of the provisions
hereof or of the information set forth in such Schedules. Whenever required
by
the context, and as used in this Agreement, the singular number shall include
the plural and pronouns and any variations thereof shall be deemed to refer
to
the masculine, feminine, neuter, singular or plural.
12.2 Entire
Agreement; Waivers. This Agreement and the other agreements and instruments
referred to herein constitute the entire agreement between the parties
pertaining to the subject matter hereof, and supersede all prior agreements
or
understandings as to such subject matter. No party hereto has made any
representation or warranty or given any covenant to the other except as set
forth in this Agreement, the Schedules hereto, and the other agreements and
instruments referred to herein. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other
provisions, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
12.3 Parties
in Interest. Nothing in this Agreement, whether expressed or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to it and their respective heirs,
executors, administrators, personal representatives, successors and permitted
assigns, nor is anything in this Agreement intended to relieve or discharge
the
obligations or liability of any third persons to any party to this Agreement,
nor shall any provision give any third persons any right of subrogation or
action over or against any party to this Agreement.
12.4 Notices.
All notices, requests, demands and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given on the date
of
service if served personally on the party to whom notice is to be given, on
the
day after the delivery thereof to a recognized overnight courier service for
next-day delivery with all charges prepaid or billed to the account of the
sender, or on the third day after mailing if mailed to the party to whom notice
is to be given, by first class mail, registered or certified, postage prepaid,
and properly addressed to the Shareholder at the address contained in the
Company’s shareholder records, and if to the Company, c/o Xxxx Xxxxxxxxxxx,
Chief Financial Office, Sequiam Corporation, 000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx
00000, or to such other address as either party shall have specified by notice
in writing given to the other party.
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12.5 Amendments
and Modifications. No amendment or modification of this Agreement or any
Schedule hereto shall be valid unless made in writing and signed by the party
to
be charged therewith.
12.6 Non-Assignability;
Binding Effect. Neither this Agreement, nor any of the rights or obligations
of the parties hereunder, shall be assignable by either party hereto without
the
prior written consent of the other party hereto. Otherwise, this Agreement
shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and permitted assigns.
12.7 Governing
Law; Jurisdiction; Venue; Waiver of Jury Trial. This Agreement and the
documents delivered pursuant hereto shall be governed by and construed in
accordance with the laws of the State of Florida without regard to any conflicts
of law rules thereof. Each party hereto irrevocably submits to the exclusive
jurisdiction of the Circuit Court of the State of Florida, Orange County, in
any
action or proceeding arising out of or relating to this Agreement or any of
the
Ancillary Documents, and each party hereby irrevocably agrees that all claims
in
respect of any such action or proceeding must be brought and/or defended in
such
court; provided, however, that matters which are under the exclusive
jurisdiction of the Federal courts shall be brought in the Federal District
Court for the Middle District of Florida. Each party hereto consents to service
of process by any means authorized by the applicable law of the forum in any
action brought under or arising out of this Agreement or any of the Ancillary
Documents, and each party irrevocably waives, to the fullest extent each may
effectively do so, the defense of an inconvenient forum to the maintenance
of
such action or proceeding in any such court. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY
AND
EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING
HEREUNDER.
12.8 Remedies.
Except
as set forth in Article 11, the rights and remedies provided by this Agreement
are cumulative, and the use of any one right or remedy by any party hereto
shall
not preclude or constitute a waiver of its right to use any or all other
remedies. Such rights and remedies are given in addition to any other rights
and
remedies a party may have by law, statute or otherwise.
12.9 Exhibits.
The
exhibits referred to herein are attached hereto and incorporated herein by
this
reference.
12.10
Survival.
Any
provision of this Agreement which contemplates performance or the existence
of
obligations after the Closing Date, and any and all representations and
warranties set forth in this Agreement, shall not be deemed to be merged into
or
waived by the execution and delivery of the instruments executed at the Closing,
but shall expressly survive Closing and shall be binding upon the party or
parties obligated thereby in accordance with the terms of this Agreement,
subject to any limitations expressly set forth in this Agreement.
12.11
Attorneys’
Fees.
In the
event any suit or other legal proceeding is brought for the enforcement of
any
of the provisions of this Agreement, the parties hereto agree that the
prevailing party or parties shall be entitled to recover from the other party
or
parties upon final judgment on the merits reasonable attorneys’ fees (and sales
taxes thereon, if any), including attorneys’ fees for any appeal, and costs
incurred in bringing such suit or proceeding.
11
12.12
Severability.
If any provision of this Agreement is held by a court of competent jurisdiction
to be contrary to law, then the remaining provisions of this Agreement, as
applicable, if capable of substantial performance, shall remain in full force
and effect.
12.13
Further
Assurances. From time to time from and after the Closing Date, the parties
will execute and deliver to each other any and all further agreements,
instruments, certificates and other documents as may reasonably be requested
by
the other party in order more fully to consummate the transactions contemplated
hereby.
12.14
Counterparts.
This Agreement may be executed simultaneously in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN
WITNESS WHEREOF, the
parties have executed this Agreement on and as of the date first set forth
above.
|
COMPANY:
|
BUYER:
|
|
CONSTELLATION
BIOMETRICS CORPORATION
|
SEQUIAM
CORPORATION
|
|
By:
/s/
Xxxxxxxx XxxxxxXxxxxx
|
By:
Xxxx
X. Xxxxxxxxxxx
|
|
Name:
Xxxxxxxx XxxxxxXxxxxx
|
Name:
Xxxx X. Xxxxxxxxxxx
|
|
Title:
President
|
Title:
Senior Vice President and Chief Financial
Officer
|
12
|
SELLERS:
|
|
|
/s/
Xxxxxx X. Xxxxxxxx III
|
|
|
Xxxxxx
X. Xxxxxxxx, III
|
|
|
/s/
Xxx Xxxxxxxxx Xxxxxx
|
|
|
Xxx
Xxxxxxxx Xxxxxx, Attorney-in-Fact for the Trust under the Will of
Xxxx
Xxxxxxxxxxx
|
|
|
/s/
Xxx Xxxxxxxx Xxxxxx
|
|
|
Xxx
Xxxxxxxx Xxxxxx
|
|
|
/s/
Xxxx XxxxxxXxxxxx
|
|
|
Xxxx
XxxxxxXxxxxx
|
|
|
/s/
Xxxx Xxxxxxxxxxx
|
|
|
Xxxx
Xxxxxxxxxxx
|
13
EXHIBIT
A
Constellation
Biometrics Corporation
Capitalization
of Constellation
Source
of
Funds and Shares
|
Shareholders
|
Percent
Ownership
|
Shares
|
Capital
Stock(1)
|
Loans(2)
|
Total
Funds
|
Sequiam
Common Shares(3)
|
Basis
In
Stock
|
Total
Basis
|
Sequiam
Share Exchange
|
|||||||||||||||||||
|
Xxxxxx
X. Xxxxxxxx III
|
32
|
%
|
320
|
$
|
4,800
|
$
|
30,200
|
$
|
35,000
|
80,000
|
14,400
|
49,400
|
461,682
|
|||||||||||||||
|
Xxxxxxxxxxx
Trust
|
25
|
%
|
250
|
3,750
|
56,250
|
60,000
|
62,500
|
11,250
|
71,250
|
665,888
|
||||||||||||||||||
|
Xxx
Xxxxxxxx Xxxxxx
|
7
|
%
|
70
|
1,050
|
8,950
|
10,000
|
17,500
|
3,150
|
13,150
|
122,897
|
||||||||||||||||||
|
Xxxx
XxxxxxXxxxxx
|
18
|
%
|
180
|
2,700
|
9,800
|
12,500
|
45,000
|
8,100
|
20,600
|
192,523
|
||||||||||||||||||
|
Xxxx
Xxxxxxxxxxx
|
18
|
%
|
180
|
2,700
|
9,800
|
12,500
|
45,000
|
8,100
|
20,600
|
192,523
|
||||||||||||||||||
|
Total
|
100
|
%
|
1,000
|
$
|
15,000
|
$
|
115,000
|
$
|
130,000
|
250,000
|
45,000
|
175,000
|
1,635,514
|
|||||||||||||||
___________________
(1) Cash
paid
for stock.
(2) Loans
made to Company.
(3) Shares
of
common stock of Sequiam Corporation contributed to the Company.
EXHIBIT
B
|
Shareholders
|
Percent
Ownership
|
Basis
in CBC
Stock
|
Sequiam
Shares @
$0.107*
|
|||||||
|
Xxxxxx
X. Xxxxxxxx III
|
28
|
%
|
49,400
|
461,682
|
||||||
|
Xxxxxxxxxxx
Trust
|
41
|
%
|
71,250
|
665,888
|
||||||
|
Xxx
Xxxxxxxx Xxxxxx
|
8
|
%
|
13,150
|
122,897
|
||||||
|
Xxxx
XxxxxxXxxxxx
|
12
|
%
|
20,600
|
192,523
|
||||||
|
Xxxx
Xxxxxxxxxxx
|
12
|
%
|
20,600
|
192,523
|
||||||
|
Total
|
100
|
%
|
175,000
|
1,635,514
|
||||||
*
Market
value $0.107 at closing.
