STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made and entered into as of the _____
day of August 1999 by and among, XXXXXXXX XXXXX COLGATE (the "Seller") and
PLATINUM EXECUTIVE SEARCH INC., a New York corporation (the "Purchaser").
W I T N E S S E T H
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WHEREAS, the Seller collectively owns 100 percent of the stock (the
"Shares") of UNITED STATES LAWYERS, INC., a Florida corporation (the "Company"),
which constitute all of the issued and outstanding shares of stock of the
Company; and
WHEREAS, the Seller wishes to sell to the Purchaser, and the Purchaser
wishes to purchase from the Seller, the Shares, upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Purchaser and the Seller
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES, KEEPWELlS
Section 1.01 Purchase and Sale of Shares. Subject to the terms and
conditions hereof, on the Closing Date (as defined below) the Seller agrees to
sell to the Purchaser, and the Purchaser agrees to purchase from the Seller, the
Shares in exchange for 125,000 shares of the common stock of Purchaser ("Common
Stock"), which the parties hereto value at $250,000, plus the additional,
contingent payment provided in Section 1.07 hereof (the "Purchase Price").
Nothing herein shall require the Purchaser to purchase less than all of the
issued and outstanding Shares of the Company.
Section 1.02 Closing Date. The consummation of the purchase and sale of
the Shares hereunder (the "Closing") shall be held at the offices of Xxxxxx &
Xxxxx LLP, located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 9:00 A.M..
(New York time) on August __, 1999 or at such other time and place as the Seller
and the Purchaser may mutually agree (the "Closing Date").
Section 1.03 Merger of Purchaser. The parties hereto hereby acknowledge
that each of them is entering into this Agreement in contemplation of Purchaser
completing a merger (the "Merger") into First Sunrise, Inc., a Delaware
corporation, by December 31, 1999. Seller hereby acknowledges and agrees that
she will vote in favor of the Merger and that upon completion of the Merger, all
of their Shares in the Purchaser shall convert into shares of the common stock
of the surviving entity (the "Merged Entity"). The parties hereto hereby agree
and acknowledge that in the event that the Merger does not occur by December 31,
1999, the unwind provisions
set forth in Section 7.01 shall govern. The parties hereto hereby acknowledge
that the Seller shall retain operating control over the Company during the
period commencing on the Closing Date and terminating on the date that the
Merger becomes effective. Seller hereby agrees that during such period she will
continue to operate the Company and not take any actions that would fall outside
of the ordinary course of business.
Section 1.01 Restrictions on Sale. Notwithstanding any of the other
provisions of this Agreement, Seller hereby agrees that she will not sell,
assign, transfer or convey any of the shares of Common Stock of the Purchaser.
Additionally, Seller hereby agrees that she will not sell, assign, transfer or
convey any shares of the Merged Entity's stock until the date (the "Market
Date") that the Merged Entity's Form S-4 is declared effective by the Securities
and Exchange Commission (the "SEC"). S4 declare effective ~ Dec. 9.
Section 1.05 Anniversary Keepwell. On the one year anniversary of the
Market Date (the "Anniversary Date"), the common stock in the Merged Entity then
owned by Seller ("Residual Shares") shall be subject to a keepwell feature (the
"Anniversary Keepwell Guarantee"). The Anniversary Keepwell Guarantee shall
require that in the event that the average of the mean of the last bid and asked
prices quoted by the primary market maker for the Merged Entity on each of the
five (5) business days preceding the Anniversary Date (the "Average Mean Price")
does not equal at least $2.20 per share, Seller shall receive additional shares
so that the value of the Residual Shares plus the value of the additional shares
issued to Seller pursuant to this Section 1.05, determined using the Average
Mean Price, is equal to the amount, $275,000 (i.e., $2.20/share times 125,000
shares) minus the aggregate consideration the Seller has received for sales of
shares of the common stock of the Merged Entity originally issued to Seller. In
the event that, as of the Anniversary Date, the Seller has received $275,000 or
more from sales of her shares of common stock in the Merged Entity issued to her
pursuant to this Agreement, the Anniversary Keepwell Guaranty shall not apply.
Section 1.06 Termination of Keepwell. The parties hereto hereby agree
and acknowledge that in the event that the mean of the last bid and asked prices
quoted by the Primary market maker for the Merged Entity exceeds $3.00 for any
period consisting of at least twenty (20) consecutive business days, the
Anniversary Keepwell Guarantee shall become void and Seller shall retain no
rights to any keepwell features or guarantees. In the event that the Anniversary
Keepwell Guarantee is voided, Seller shall have no restrictions on her rights to
sell their shares of stock in the Merged Entity.
Section 1.07 Additional Contingent Consideration. As an additional
payment in consideration for the transfer of the Shares to Purchaser, Purchaser
shall pay to Seller, in either cash or by issuance of additional common stock of
the Purchaser, at the option of Seller, in the amount determined as follows:
Additional Consideration = 0.5[V - ($250,000 + I + R)]
where,
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V = the value of the Company on the third anniversary of the Closing, as
determined by a qualified independent investment bank or other third
party appraiser selected by Purchaser and approved by Seller;
I = the amount of cash invested by Purchaser in Company, whether directly
by cash or other asset contribution or indirectly by payment of costs,
expenses or other liabilities incurred by the Company, from the Closing
up to and including the third anniversary of the Closing; and
R = the amount of a 40 percent per annum compound return on each and every
amount, I, in each case calculated from the date made through and
including the third anniversary of the Closing.
If the amount so determined is negative, no additional payment shall be due. The
parties shall be reasonable and act in good faith in selecting an independent
appraiser of the Company. If Purchaser fails to propose at least one candidate
for Seller's consideration within thirty (30) days of the third anniversary of
the Closing and thereafter fails to propose any candidates within ten days
following receipt of written notice of such failure from Purchaser, Purchaser
may select the independent appraiser. The independent appraiser shall have
access to Company and other business records of Purchaser as necessary to
properly value the Company, and shall meet at least once with the parties to
review his preliminary report to discuss his results and methodology with the
parties in advance of submitting a final report. The determination of the
independent appraiser in his final report shall be binding on the parties in the
absence of evidence of manifest or gross incompetence or outright errors in
mathematical calculation. Payment, whether in the form of cash or issuance of
additional common stock of Purchaser, shall be made to Seller of any amount due
under this Section 1.07 within ten (10) business days following delivery of the
appraiser's final report, accompanied by a statement showing a detailed
calculation and itemization of the components of the calculation of the amount
payable. If Seller requests payment in the form of common stock of the
Purchaser, such stock shall be valued, for purposes of determining the amount
issued to her in payment of the additional consideration under this Section
1.07, using the average of the mean of the bid and asked prices quoted by the
primary market maker for the Purchaser on each of the five (5) business days
preceding the date of the final report, or such other obvious indication of
market value as Purchaser and Seller may agree upon if Purchaser's stock is
traded on NASDAQ or on an exchange. Upon Seller's request made no more
frequently than semi-annually (on a calendar year basis), Purchaser will provide
Seller with an itemization of the amount invested (I) by it in the Company.
Section 1.08 Employment Agreement. On the Closing Date, the Purchaser
shall enter into an employment agreement with Seller containing terms and
conditions substantially similar to the form of employment agreement annexed as
Exhibit A hereto.
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Section 2.01 Representations of the Seller. The Seller represents and
warrants to the Purchaser that the following is true and correct as of the date
hereof and shall be true and correct as of the Closing Date:
(a) Government and Other Consents. No authorization or approval or
other action by, and no notice to or filing with, any governmental or regulatory
authority is required to be obtained or made, and no consent of any third party
is required t be obtained by, Seller for the due execution, delivery and
performance by the Seller of this Agreement.
(b) Enforceable Obligations. This Agreement has been duly executed
and delivered on behalf of Seller and constitutes the legal, valid and binding
obligation of Seller enforceable against Seller in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity.
(c) No Litigation. No claim, action, suit, investigation or
proceeding of or before any arbitrator or governmental authority is pending or,
to the knowledge of Seller, threatened by or against either Seller with respect
to the Company, this Agreement or any of the transactions contemplated hereby.
No judgment, order, writ, injunction, decree or award issued by any governmental
authority is applicable to either Seller which affects any of the Shares, the
Company, this Agreement or any of the transactions contemplated hereby.
(d) Ownership of the Shares. Seller is the owner of record and
beneficially of all of the issued and outstanding shares of the Company. All of
the Shares are free and clear of any liens, claims and encumbrances
(collectively, "Encumbrances"). Seller has the right to transfer title to the
Shares to the Purchaser. There are no commitments, agreements or rights relating
the purchaser, sale or other disposition of the Shares (including, without
limitation, any subscription agreement, preemptive right or right of first
refusal). None of the Shares are subject to any voting trust, voting agreement,
or other similar agreement or understanding with respect to the voting or
control thereof.
(e) Disclosure. No representation or warranty made by Seller in this
Agreement and no schedule, writing, certificate, exhibit, list or other document
finished by or on behalf of the Seller to the Purchaser in connection with this
Agreement contains or will contain any untrue statement of a material fact or
omits or will omit any material fact necessary in order to make the statements
and information contained therein not misleading.
(f) Exemption From Securities Laws. The offer, sale and transfer of
the Shares contemplated hereby are exempt from the registration requirements of
the securities laws of the United States or any state of the United States and
from any securities laws of any other state or country (provided that for
purposes of this section, Seller has relied on the representation of the
Purchaser in Section 3.01(g)).
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(g) Brokers, Finders. Seller has not retained any Person to act on
its behalf, nor has any Person contended that such Person was so retained, to
assist Seller as a broker, finder or agent in connection with any of the
transactions contemplated hereby.
Section 2.02 Representations of the Seller as to the Company. The
Seller represents and warrants to the Purchaser that the following are true and
correct with respect to the Company as of the date hereof and shall be true and
correct as of the Closing Date:
(a) Organization, Standing and Qualification of the Company. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida and the Company has all necessary
corporate power and authority to engage in the business in which it is presently
engaged. The Company conducts business only in Florida and does not do business
in any other jurisdiction. Seller has delivered to the Purchaser true, correct
and complete copies of the Company's certificate of incorporation, by-laws and
any amendments thereto.
(b) Capital Structure of the Company. The issued and outstanding
Shares of the Company consist of 50,000 shares of common stock, all of which are
held by the Seller. All of the Shares are validly issued, fully paid and
non-assessable. All of the Shares were issued in compliance with all applicable
requirements of law and in compliance with the articles of organization and
operating agreement of the Company. There are no outstanding subscriptions for
any Shares or units to be issued by the Company.
(c) No Violation of Statute or Breach of Contract. The Company is
not in default under, or in violation of, (a) any material applicable
requirement of law, or (b) any material contractual obligation. The Company has
not received notice that any Person claims that the Company has committed such a
default or violation.
(d) Government and Other Consents. No consent, authorization,
license, permit, registration or approval of, or exemption or other action by,
any Governmental Authority is required to be obtained or made, and no consent of
any third party is required to be obtained by the Company in connection with the
execution and delivery of this Agreement or with the consummation of the
transactions contemplated hereby.
(e) Effect of Agreement. The execution and delivery of this
Agreement by the Seller, performance of the obligations of the Seller hereunder
and consummation of the transactions contemplated hereby will not (i) result in
a breach or violation of any requirement of law applicable to the Company; (ii)
result in the breach of, or be in conflict with, any term, covenant, condition
or provision of, any contractual obligation of the Company; or (iii) result in
the creation or imposition of any Encumbrance upon any assets of the Company.
(f) Financial Statements. Seller has furnished the Purchaser with
(i) a list and valuation of the Assets of the Company as of August 25, 1999 and
(ii) a balance sheet and income statement of the Company as of August 25, 1999,
copies of which are attached hereto as Exhibit B (collectively, the "Financial
Statements"). The Financial Statements are complete and
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accurate and fairly present the assets and liabilities of the Company as of the
dates and for the periods therein specified.
(g) Assets and Business. All assets owned by the Company are listed
on Schedule 2.02(g) (the "Assets"). The Company has good and marketable title to
the Assets, free and clear of all Encumbrances. The Company is not engaged in
any business or activity other than owning the Assets.
(h) Absence of Liabilities. The Company does not have any debt,
liability, or obligation as of the Closing Date of any nature, accrued, absolute
or contingent, due or to become due, liquidated or unliquidated (each
"Undisclosed Liability").
(i) Tax Returns and Payments. All tax returns, federal, state,
local, foreign and other, including, without limitation, all federal tax returns
and reports for each fiscal year of the Company through the fiscal year ended
December 31, 1998 required to be filed by and/or on behalf of the Company in
respect of any taxes (including without limitation all foreign, federal, state,
county and local income, ad valorem, excise, sales, use, transfer and other
taxes and assessments) have been filed, and all taxes due and payable thereon,
or otherwise due and payable by the Company have been paid. The Company does not
have or will not have any liability for unpaid taxes. There are no deficiency
assessments against the Company with respect to any foreign, federal, state,
local or other taxes. The Seller has heretofore made available to the Purchaser
copies of all federal, state, local and foreign tax returns or reports of the
Company filed prior to the Closing Date. All tax returns filed by or on behalf
of the Company are true, correct and complete. All taxes that the Company is or
was required to withhold or collect (including, without limitation, payroll
taxes) have been duly withheld or collected and paid to the proper Governmental
Authority.
(j) Contracts. Attached hereto as Schedule 2.02(j) is a list of all
agreements, contracts, indebtedness, liabilities and other obligations to which
the Company is a party or by which it is bound (the "Contracts"). The Contracts
are valid, legally binding and enforceable in accordance with their terms and
are in full force and effect. Copies of the Contracts have been delivered to the
Purchaser.
(k) Litigation. No claim, action, suit, investigation or other
proceeding against the Company is pending or, to the knowledge of any Seller, is
threatened before or by any court, administrative or regulatory body, or other
Governmental Authority. No judgment, order, writ, injunction, decree or award
issued by any Governmental Authority is applicable to the Company.
(l) Accounts, Powers of Attorney. There are no persons holding a
power of attorney on behalf of the Company or otherwise holding the right to act
as an agent on behalf of the Company. Schedule 2.02(l) lists the names and
addresses of each bank or other financial institution in which the Company has
an account, deposit or safe-deposit box, including the number of each such
account, deposit and safe-deposit box.
(m) Insurance. There are no insurance policies maintained by or on
behalf of the Company in effect on the Closing Date.
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(n) Accounts Receivable. Schedule 2.02(n) contains a complete and
accurate list of all accounts receivable of the Company as of the Closing Date.
(o) Minute Books. All minute books and ledgers of the Company have
been made available to Purchaser for review.
(p) Employees. Except as set forth on Schedule 2.02(p) the Company
has no employees and no employee benefit plans or pension plans (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA"))
or any incentive, bonus, option or parachute program or any other type of
employee compensation arrangement or program. Neither the Company nor any
employee benefit or pension plan previously maintained by the Company has any
unsatisfied liability or obligation to any former employee of the Company or in
connection with any employee benefit or pension plan or any incentive, bonus,
option or parachute program.
(q) ERISA Affiliates. Except as set forth on Schedule 2.02(q)(i) no
employee benefit plan (as defined in Section 3(3) of ERISA) of an ERISA
Affiliate (as hereinafter defined) is covered by Title IV of ERISA, (ii) no
prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code")) or breach of a
fiduciary duty under ERISA has occurred with respect to any plan of an ERISA
Affiliate, (iii) no action, suit or proceeding, hearing, or investigation of the
assets of any plan of an ERISA Affiliate is pending or threatened, (iv) none of
the shareholders, directors or officers of the Company has any knowledge of any
basis for any such action, suit, proceeding, hearing or investigation, and (v)
there has been no waived or unwaived "accumulated funding deficiency" within the
meaning of Section 3.02(a)(2) of ERISA with respect to any plan or an ERISA
Affiliate. "ERISA Affiliate" shall mean an organization (whether or not
incorporated) which is under common control, or a member of an affiliated
service group, with the Company and, with the Company, is treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code.
(r) Permits, Licenses, Etc. No franchise, license, permit,
certificate, authorization, right or other approval issued or granted by an
Governmental Authority to or for the benefit of the Company is in existence or
effect.
(s) Officers; Directors. Schedule 2.02(s) contains a complete and
correct list of all of the officers and directors of the Company.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Section 3.01 The Purchaser hereby represents and warrants to the Seller
as follows:
(a) Existence. The Purchaser is a corporation duly incorporated and
validly existing under the laws of the State of New York.
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(b) Authorization; No Violation. The execution, delivery and
performance by the Purchaser of this Agreement are within the Purchaser's
corporate powers and have been duly authorized by all necessary action, and do
not contravene in any material respect any requirement of law or contractual
obligation of the Purchaser.
(c) Government Authorization. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority is
required to be obtained or made by the Purchaser for the due execution, delivery
and performance by the Purchaser of this Agreement.
(d) Enforceable Obligations. This Agreement has been duly executed
and delivered on behalf of the Purchaser and constitutes the legal, valid and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
(e) No Litigation. No claim, action, suit, investigation or other
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Purchaser, threatened by or against the Purchaser with
respect to this Agreement or any of the transactions contemplated hereby.
(f) Brokers, Finders. The Purchaser has not retained any person to
act on its behalf as a broker or finder in connection with the purchase of the
Shares.
(g) Investment Intent. The Shares are being acquired by the
Purchaser for its own account and not with a view to distribution within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"). The
Purchaser acknowledges that there is no existing public market for the Shares
and that no registration statement relating to the Shares has been filed under
the Securities Act or any applicable state securities laws, and that the Shares
must be held by it for an indefinite period of time unless the Shares are
subsequently registered under the Securities Act and state securities laws or
unless an exemption from any such applicable registration requirement is
available, and the Purchaser acknowledges that there is no assurance or
obligation as to any such registration or exemption.
ARTICLE IV.
CONDITIONS TO CLOSING
Section 4.01 Conditions to Purchaser's Obligations. The obligation of
the Purchaser to purchase the Shares at the Closing is subject to the
fulfillment on or prior to the Closing Date of the following conditions:
(a) Representations and Warranties Correct; Performance of
Obligations. The representations and warranties made by the Seller in Article II
hereof shall be true and correct when made, and shall be true and correct on the
Closing Date with the same force and effect as if
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they had been made on and as of the Closing Date. The Seller shall have
performed all obligations and conditions herein required to be performed or
observed by it on or prior to the Closing Date.
(b) Qualifications. All actions and steps necessary to assure
compliance with applicable federal and state securities laws shall have been
duly obtained and shall be effective on and as of the Closing, except for such
filings as are required or permitted by state or federal securities laws
subsequent to the Closing. All other authorizations, approvals or permits of any
other Governmental Authority that are required in connection with the lawful
issuance and sale of the Shares under this Agreement shall have been duly
obtained and effective.
(c) Incumbency Certificates of the Seller. The Purchaser shall have
received a certificate of the Secretary of the Company, certifying the names and
signatures of the persons authorized to sign this Agreement and the other
documents to be delivered hereunder on behalf of Seller.
Section 4.02 Conditions to Obligations of the Seller. The Seller's
obligation to sell the Shares at the Closing is subject to the fulfillment on or
prior to the Closing Date of the following conditions:
(a) Representations and Warranties Correct; Performance of
Obligations. The representations and warranties of the Purchaser in Article II
hereof shall be true and correct when made, and shall be true and correct on the
Closing Date with the same force and effect as if they had been made on and as
of the Closing Date, and the Purchaser shall have performed all obligations and
conditions herein required to be performed by it on or prior to the Closing
Date.
(b) Incumbency Certificate of the Purchaser. The Seller shall have
received a certificate of the President of the Purchaser certifying the names
and signatures of officers of the Purchaser authorized to sign this Agreement
and the other documents to be delivered hereunder.
ARTICLE V.
CLOSING DELIVERS
Section 5.01 Seller's Deliveries. At the Closing, in addition to any
other documents or agreements required under this Agreement, the Seller shall
deliver or cause to be delivered to the Purchaser the following:
(a) Certificates evidencing the Shares duly endorsed in blank, or
accompanied by stock powers duly executed in blank, in a form reasonably
satisfactory to the Purchaser.
(b) Copies of all consents and approvals obtained, and all
registrations, qualifications, declarations, filings and notices made, by the
Seller pursuant to Section 4.01(b) hereof.
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(c) All records, documents and files of the Company including,
without limitation, all minute books, stock records and internal accounting
records.
(d) Resignations of all directors and officers of the Company.
(e) Balance sheet of the Company as of August 25, 1999.
(f) Profit and Loss Statements of the Company as of August 25, 1999.
(g) Such other documents, assignments, instruments of conveyance and
certificates as reasonably may be required by the Purchaser to consummate this
Agreement and the transactions contemplated hereby.
Section 5.02 Purchaser's Deliveries. At the Closing, in addition to any
other documents or agreements required under this Agreement, the Purchaser shall
deliver to the Seller the Purchase Price in accordance with the instructions of
Seller, together with such other documents as reasonably may be required by the
Seller to consummate this Agreement and the transactions contemplated hereby.
ARTICLE VI.
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 6.01 Survival of Representations. The parties agree that,
notwithstanding any right or ability of the Purchaser fully to investigate the
affairs of the Company, any knowledge of facts determined or determinable by the
Purchaser pursuant to such investigations or right of or ability to investigate,
the Purchaser has the right to rely fully upon the representations, warranties,
covenants and agreements of the Seller contained in this Agreement and on the
accuracy of any schedule, exhibit, document or certificate annexed hereto or
delivered to the Purchaser pursuant hereto. All representations and warranties
of the parties contained herein shall survive the Closing until the third
anniversary of this Agreement.
Section 6.02 Indemnification by the Seller.
(a) Seller shall indemnify and hold harmless the Company, the
Purchaser and their respective affiliates and the officers, partners, directors,
employees, agents, owners, successors and assigns (including, among others, the
Merged Entity) thereof from any loss, damage, liability or expense (including,
without limitation, reasonable expenses of investigation and reasonable
attorneys' fees and expenses incurred in connection with any action, suit or
proceeding against any thereof) incurred or suffered by such party and arising
out of or resulting from (i) any breach of any representation or warranty
contained in Article II of this Agreement, (ii) any Undisclosed Liability of the
Company, known or unknown, (iii) any breach of any covenant made by Seller
hereunder, or (iv) any lawsuit or other proceeding or claim brought by any third
party after the Closing against the Company, the Purchaser, or any of their
respective officers, partners, directors, employees, agents, owners, successors
and assigns with respect to
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any acts or omissions prior to the Closing, or (v) any federal, state or local
tax relating to the Shares.
Section 6.03 Indemnification by the Purchaser. The Purchaser shall
indemnify and hold Seller harmless from any loss, damage, liability or expense
(including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses) in connection with any action, suit or
proceeding brought against Seller incurred or suffered by Seller and arising out
of or resulting from any breach of any representation, warranty, or covenant
made by the Purchaser hereunder.
Section 6.04 Time Periods. The indemnification obligations under this
Article VI shall continue for three years and shall terminate with the
expiration of such period. Any claim or demand against Seller or the Purchaser
of which notice has been given pursuant to Section 6.06 at or prior to the
expiration of the related period shall continue to be subject to indemnification
hereunder notwithstanding the expiration of such period.
Section 6.05 Notice Claim. Purchaser, on the one hand, and the Seller,
on the other hand, shall promptly notify the other of any claim, suit or demand
of which the notifying party has actual knowledge which entitles it to
indemnification under this Article VI, provided, however, that the delay or
failure of any party required to provide such notification shall not affect the
liability of the indemnifying party hereunder except to the extent the
indemnifying party is harmed by such delay or failure.
Section 6.06 Defense. If the liability or claim for which
indemnification under this Article VI is sought is asserted by a third party,
the indemnifying party shall have, at its election, the right to defend any such
matter at its sole cost and expense through counsel chosen by it and reasonably
acceptable to the indemnified party (provided that the indemnifying party shall
have no such right if it is contesting its liability under this Article VI). If
the indemnifying party so undertakes to defend, the indemnifying party shall
promptly notify the indemnified party hereto of its intention to do so. The
indemnifying party shall not, without the indemnified party's written consent,
settle or compromise any claim or consent to an entry of judgment which does not
include as an unconditional term thereof a release of the indemnified party.
Section 6.07 Cooperation and Conflict. Each party agrees in all cases
to cooperate with the indemnifying party and its counsel in the defense of any
such liabilities or claims. The indemnifying party and the indemnified party or
parties may be represented by the same counsel unless such representation would
be inappropriate due to conflicts of interest between them. In addition, the
indemnified party or parties shall at all times be entitled to monitor and
participate in such defense through the appointment of counsel of its or their
own choosing, at its or their own cost and expense.
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ARTICLE VII.
MISCELLANEOUS
Section 7.01 Unwind. The parties hereto hereby acknowledge that in the
event that the Merger does not occur by December 31, 1999, the obligations of
the parties under this Agreement shall terminate and the transactions
contemplated hereby shall unwind. In the event of an unwind, Purchaser hereby
agrees that it will execute all stock powers and certificates necessary to
transfer control of the Shares to the Seller. In the event of an unwind, each of
the parties hereto shall be responsible for its costs and expenses, including,
without limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with the negotiation, preparation, execution
and delivery of this Agreement and consummation and unwinding of the
transactions contemplated hereby.
Section 7.02 Waiver. Any extension or waiver with respect to any
agreement or condition contained herein or the breach thereof shall be valid
only if set forth in a separate instrument in writing signed by the party to be
bound thereby. Any waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this Agreement. The
failure of any party to assert any of its rights hereunder shall not constitute
a waiver of any such rights.
Section 7.03 Further Assurances. The Seller agrees, without further
consideration, to execute and deliver following the Closing such other
instruments of transfer and take such other action as the Purchaser may
reasonably request in order to put the Purchaser in possession of, and to vest
in the Purchaser, good and valid title to the Shares free and clear of any
Encumbrances in accordance with this Agreement and to otherwise consummate the
transactions contemplated by this Agreement.
Section 7.04 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire understanding
and agreement among the parties hereto with regard to the subject matter hereof
and thereof and supersede all prior and contemporaneous agreements and
understandings, oral or written, among the parties hereto with respect to such
subject matter. Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived only with the written consent of the
parties hereto.
Section 7.05 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law, rule or
regulation or public policy, all other terms and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision in invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
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Section 7.06 Notices, etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be delivered
personally, mailed by first-class mail, postage prepaid, or sent by reputable
overnight courier service addressed (a) if to the Purchaser, at the Purchaser's
address set forth on Exhibit C hereto or at such other address as such Purchaser
shall have furnished to the Seller by 10 days' notice in writing, with a copy to
Xxxxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopy: (212)
688-2449, Attention: Xxxxxx X. Xxxxxxxxx, Esq. or (b) if to any Seller, at the
addresses set forth on Exhibit C hereto, or such other address as such Seller
shall have furnished to the Purchaser by 10 days' notice in writing.
Section 7.07 Expenses. All costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with the negotiation, preparation, execution
and delivery of this Agreement and consummation of the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses.
Section 7.08 Governing Law; Jurisdiction. This Agreement shall be
governed in all respects by the laws of the State of New York without
application of principles of conflicts of laws. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in any state or federal
court located in the State of New York, County of New York, and each of the
parties consents to the jurisdiction of such courts in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on any party
anywhere in the world.
Section 7.09 Benefit of Agreement; Assignment. This Agreement will
apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. This Agreement may not be
assigned by operation of law or otherwise by either party without the express
written consent of the other party (which consent may not be unreasonably
withheld).
Section 7.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR
AGAINST IT ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT.
Section 7.11 Titles and Subtitles. The titles of the Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
Section 7.12 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
Section 7.13 Acquiring Entity. At Purchaser's election, Purchaser may
assign its rights to acquire the Shares as provided in this Agreement to a
wholly-owned subsidiary of Purchaser,
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newly-formed for such purpose, in which case, on the Closing Date, Seller shall
transfer the Shares to such subsidiary.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth in the heading hereof.
PLATINUM EXECUTIVE SEARCH INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: President
SELLER:
/s/XXXXXXXX XXXXX COLGATE
-------------------------------------
XXXXXXXX XXXXX COLGATE
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EXHIBIT A
---------
FORM OF EMPLOYMENT AGREEMENT
----------------------------
[ATTACHED]
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EXHIBIT B
---------
FINANCIAL STATEMENTS
--------------------
[ATTACHED]
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EXHIBIT C
---------
NOTICE ADDRESSES
----------------
Xxxxxxxx X. Colgate
United States Lawyers, Inc.
0000 Xxxxxxxxx Xxx
Xxxxxxxx, XX 00000
phone: 000-000-0000
fax: 000-000-0000
e-mail: xxxxxxxx@xxxxxxx.xxx
Xxxx Mazutto
Platinum Executive Search, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
phone: 000-000-0000
fax: 000-000-0000
e-mail: xxxxxxxx@xxx.xxx
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SCHEDULE 2.02(G)
----------------
LIST OF ASSETS
[ATTACHED]
-18-
SCHEDULE 2.02(J)
----------------
LIST OF CONTRACTS
-19-
SCHEDULE 2.02(L)
----------------
BANK AND OTHER ACCOUNTS
NONE
-20-
SCHEDULE 2.02(N)
----------------
ACCOUNTS RECEIVABLE
NONE
-21-
SCHEDULE 2.02(P)
----------------
EMPLOYEES, EMPLOYEE BENEFIT OR PENSION PLANS
NONE
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SCHEDULE 2.02(Q)
----------------
PROHIBITED TRANSACTIONS, ERISA VIOLATIONS OR CLAIMS, ETC.
NONE
-23-
SCHEDULE 2.02(S)
----------------
OFFICERS AND DIRECTORS
Xxxxxxxx Xxxxx Colgate Sole director
President, Vice President, Secretary and Treasurer
Section 7.14
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