STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the
“Agreement”) is made and entered into as of November 5, 2009, among Xxxx
Xxxxxxxx (“Purchaser”), Xxxxxxxx Xxxxx & Co. (“Seller”), and XxXxx Mobility,
Inc. (the “Company”).
WHEREAS, Seller owns 111 shares of
common stock of the Company (said shares hereinafter referred to as the
“Shares”);
WHEREAS, Seller wish to sell to
Purchaser, and Purchaser wishes to purchase from Seller, the Shares, for such
consideration and on such terms as set out below;
NOW THEREFORE, in consideration of the
above premises and the mutual representations, warranties, covenants and
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
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1.
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Purchase Price;
Closing Deliveries.
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(a) The
purchase price for the Shares shall be Three Hundred Thousand Dollars
($300,000).
(b) Simultaneous
with the execution and delivery of this Agreement, (i) Purchaser shall pay
Seller said purchase price, by execution and delivery of the Note attached
hereto as Exhibit
A. As the Company did not issue certificates representing Shares, the
execution and delivery of this Agreement shall effectuate the transfer of the
Shares from Seller to Purchaser.
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2.
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Representations of
Seller.
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Seller
hereby represents and warrants to Purchaser the following:
(a) Seller
is a corporation duly incorporated, organized, validly existing and in good
standing under the laws of the State of Delaware, with the corporate power and
authority to own, operate and lease its properties and to carry on its business
as now conducted, including without limitation, the sale of the Shares
contemplated by this Agreement.
(b) Neither
Seller nor any of its respective affiliates has any interest, direct or
indirect, in any shares of capital stock or other equity in the Company or has
any other direct or indirect interest in any tangible or intangible property
which the Company uses or has used in the business conducted by the Company, or
has any direct or indirect outstanding indebtedness to or from the Company, or
related, directly or indirectly, to its assets, other than the
Shares.
(c) Seller
has the absolute and unrestricted right, power, legal capacity and authority to
enter into and perform its obligations under this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the Seller. The
execution, delivery and performance of this Agreement have been duly and validly
approved and authorized by all necessary action on the part of
Seller.
(d) No
filing with, authorization from or consent or approval of any governmental body,
agency, official or authority or any other third party is necessary or required
to be made or obtained to enable Seller to enter into, and to perform its
obligations under, this Agreement.
(e) Assuming
the due authorization, execution and delivery by Purchaser, this Agreement, when
executed and delivered by Purchaser will be, valid and binding obligations of
Seller, enforceable against Seller in accordance with its terms. The individual
executing this Agreement on behalf of the Seller has been duly authorized by all
necessary and appropriate action on behalf of the Seller.
(f) Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will conflict with, or (with or without notice
or lapse of time, or both) result in a termination, breach or violation of (a)
any provision of the Certificate of Incorporation or By-laws of Seller, as
currently in effect, (b) any instrument, contract or agreement to which Seller
is a party or by which it is bound, or (c) any federal, state, local or foreign
law, ordinance, judgment, decree, order, statute, or regulation, or that of any
other governmental body or authority, applicable to Seller or its assets or
properties. Furthermore, the sale of the Shares by the Seller does not and will
not result in the creation of any security interest, pledge, claim, lien,
charge, hypothecation, assignment, offset or encumbrance whatsoever
(collectively, “Liens”), other than applicable federal and state securities
laws.
(g) The
Seller is the sole record and beneficial owner of the Shares and has good and
marketable title to the Shares, free and clear of all Liens, other than
applicable federal and state securities laws. Upon the execution and delivery of
this Agreement, Purchaser shall be the lawful record and beneficial owner of the
Shares, free and clear of all Liens, other than applicable federal and state
securities laws. Other than this Agreement, there are no stockholders’
agreements, voting trust, proxies, options, rights of first refusal or any other
agreements or understandings with respect to the Shares.
(h) Seller
is not party to or threatened with, any litigation, suit, action, investigation,
proceeding or controversy before any court, administrative agency or other
governmental authority (collectively, “Legal Proceedings”) relating to or
affecting the Shares.
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3. Purchaser’s
Representations.
(a) Purchaser
has the absolute and unrestricted right, power, legal capacity and authority to
enter into and perform its obligations under this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Purchaser.
(b) No
filing with, authorization from or consent or approval of any governmental body,
agency, official or authority or any other third party is necessary or required
to be made or obtained to enable Purchaser to enter into, and to perform its
obligations under, this Agreement.
(c) Assuming
the due authorization, execution and delivery by Seller, this Agreement, when
executed and delivered by Seller will be, valid and binding obligations of
Purchaser, enforceable against Purchaser in accordance with its
terms.
(d) Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will conflict with, or (with or without notice
or lapse of time, or both) result in a termination, breach or violation of (a)
any instrument, contract or agreement to which Purchaser is a party or by which
it is bound, or (b) any federal, state, local or foreign law, ordinance,
judgment, decree, order, statute, or regulation, or that of any other
governmental body or authority, applicable to Purchaser or his assets or
properties.
(c)
Purchaser is acquiring the Shares for its own
account, for investment purposes only and not with a view to the resale or
distribution of any part thereof.
4.
Release. In
consideration for the execution and delivery of this Agreement and the Note and
other good and valuable consideration not otherwise due, the receipt and
sufficiency of which is hereby acknowledged, Seller and his officers, directors,
stockholders, agents, representatives, advisors, heirs, and direct and indirect
affiliates and their respective successors and assigns (collectively, the
“Releasors”) hereby irrevocably and unconditionally release, and forever
discharge Purchaser and the Company, its employees, stockholders, officers,
directors, agents, advisors, representatives and direct and indirect affiliates
and their respective successors and assigns, and all persons, firms,
corporations, and organizations acting on their behalf (collectively referred to
as the “Company Related Persons”) of and from any and all actions, causes of
actions, suits, debts, charges, demands, complaints, claims, administrative
proceedings, liabilities, obligations, promises, agreements, controversies,
damages and expenses (including but not limited to compensatory, punitive or
liquidated damages, attorney’s fees and other costs and expenses incurred), of
any kind or nature whatsoever, in law or equity, whether presently known or
unknown (collectively, the “Claims”), which any of the Releasors ever had, now
have, or hereafter can, shall, or may have, for, upon, or by reason of any
matter, cause, or thing whatsoever against Purchaser and the Company
or any of the Company Related Persons, including without limitation any Claims
relating directly or indirectly to the Consulting Agreement dated December 28,
2006 between the Company and Seller, other than (i) this Agreement and the Note
and (ii) the indebtedness owed by the Company to Seller in the amount of $35,000
plus accrued interest at the rate of 1% per annum, which Seller has agreed shall
be settled by the payment of $25,000, which shall become due and payable upon
the closing of the private placement contemplated by the
Company.
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5. Non-Disparagement. Seller
hereby agrees that it shall not make any public disparaging statements
concerning Purchaser, the Company or any Company Related Persons.
6. Confidentiality.
(a) Confidential
Information. For purposes of this Agreement, "Confidential
Information" means this Agreement and the terms hereof and any information
relating to the business, operations, affairs, assets or condition (financial or
otherwise) of the Company which is not generally known by non-business
personnel, or is proprietary, or in any way constitutes a trade secret
(regardless of the medium in which information is maintained or whether it is
identified as confidential by the Company), or which Seller obtained knowledge
of or access to through or as a result of its relationship with the Company,
including without limitation, the proposed reverse merger (the “Reverse Merger”)
between the Company and a public company (“Newco”), business and marketing
plans, financings, cost and pricing information, supplier information, proposed
design and specifications for future products and products in development, and
all other technical and business information considered confidential by the
Company. Confidential Information shall not include any information
that is generally publicly available or otherwise in the public domain other
than as a result of a breach by the Seller of its obligations
hereunder.
(b) Confidentiality
Obligations. From and after the date hereof, Seller shall,
directly or indirectly, use, make available, sell, or disclose or otherwise
communicate to any third party any of the Company's Confidential
Information.
7.
Indemnification.
(a) Seller
and its officers, directors, employees, trustees, employees, agents,
stockholders, beneficiaries, affiliates, representatives and their successors
and assigns shall indemnify and hold harmless Purchaser and his employees,
trustees, agents, beneficiaries, affiliates, representatives and
their successors and assigns from and against any and all damages, losses,
liabilities, taxes and costs and expenses (including, without limitation,
attorneys’ fees and disbursements) resulting from any misrepresentation, breach
of warranty or nonfulfillment of any covenant or agreement on the part of
Seller.
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(b) Purchaser
and his employees, trustees, employees, agents, beneficiaries, affiliates,
representatives and their successors and assigns shall indemnify and hold
harmless Seller and its officers, directors, employees, trustees, employees,
agents, stockholders, beneficiaries, affiliates, representatives and their
successors and assigns from and against any and all damages, losses,
liabilities, taxes and costs and expenses (including, without limitation,
attorneys’ fees and disbursements) resulting from any misrepresentation, breach
of warranty or nonfulfilllment of any covenant or agreement on the part of
Seller.
8.
Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York.
(b) If
any covenant or agreement contained herein, or any part hereof, is held to be
invalid, illegal or unenforceable for any reason, such provision will be deemed
modified to the extent necessary to be valid, legal and enforceable and to give
effect of the intent of the parties hereto.
(c) This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof. This Agreement supersedes all prior
agreements between the parties with respect to the subject matter hereof or
thereof. There are no representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein or in the other agreements referenced
herein.
(d) This
Agreement may not be amended or modified except by the express written consent
of the parties hereto. Any waiver by the parties of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof or of any other provision.
(e) This
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties hereto and their respective successors and permitted assignees and
heirs and legal representatives.
(f) The
parties hereto intend that this Agreement shall not benefit or create any right
or cause of action in or on behalf of any person other than the parties
hereto.
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(g) The
parties hereto agree to execute and deliver such further documents and
instruments and to do such other acts and things any of them, as the case may
be, may reasonably request in order to effectuate the transactions contemplated
by this Agreement.
(h) This
Agreement may be executed in counterparts and by facsimile, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, each of the
undersigned has caused this Agreement to be executed by its duly authorized
officer or representative as of the date first above written.
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/s/ Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx
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XxXxx
Mobility, Inc.
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/s/ Xxxx Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title:
CEO/President
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Xxxxxxxx
Xxxxx & Co.
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/s/ Xxxx X. Nokenna
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Name:
Xxxx X. Nokenna
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Title:
CEO
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