EXHIBIT 1
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement dated as of November 19, 2002 (the
"Agreement") is among Xxxxxxx Xxxxxxx (the "Purchaser"), Xxxxxx OTC and Emerging
Growth Fund and Xxxxxx Emerging Information Sciences Trust (collectively, the
"Sellers").
RECITALS
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WHEREAS, Xxxxxx OTC and Emerging Growth Fund ("Xxxxxx OTC") is the
beneficial owner of 763,358 shares of common stock of InfoNow Corporation, held
in the name of Muico & Co., the nominee of the custodian for such fund;
WHEREAS, Xxxxxx Emerging Information Sciences Trust is the beneficial owner
of 190,839 shares of common stock of InfoNow Corporation, held in the name of
Xxxx & Co., the nominee of the custodian for such fund (collectively with the
shares held Xxxxxx OTC, the "Shares");
WHEREAS, the Purchaser desires to purchase from the Sellers, and the
Sellers desire to sell to the Purchaser, the number of Shares set forth on the
signature page hereto upon the terms and subject to the conditions set forth in
this Agreement; and
WHEREAS, simultaneously with the closing of the purchase and sale of Shares
to the Purchaser, the Sellers will be selling the remainder of the Shares to
other purchasers pursuant to agreements substantially identical to this
Agreement (the "Related Agreements");
AGREEMENT
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NOW THEREFORE, in consideration of the premises and mutual promises herein
made, and in consideration of the representations and warranties herein
contained, the Purchaser and the Sellers hereby agree as follows:
1. PURCHASE AND SALE OF SHARES.
1.1. Purchase and Sale of Shares. At the Closing (defined
hereinafter), subject to the terms and conditions of this
Agreement, the Sellers will sell, transfer and deliver to the
Purchaser, and the Purchaser will purchase from the Sellers, the
number of the Shares set forth on the signature page hereto.
1.2. Purchase Price. The aggregate consideration for all of the Shares
under this Agreement and the Related Agreements will be six
hundred sixty-seven thousand and nine hundred thirty-seven
dollars and ninety cents ($667,937.90) (the "Aggregate Purchase
Price"). The purchase price to be paid by the Purchaser is set
forth on the signature page hereto and shall be equal to the
number of Shares set forth on the signature page hereto
multiplied by $0.70.
1.3. The Closing. The purchase and sale of all of the Shares pursuant
to this Agreement and the Related Agreements (the "Closing") will
take place at the offices of Ropes & Xxxx at Xxx Xxxxxxxxxxxxx
Xxxxx, Xxxxxx, XX, 00000-0000 on November 27, 2002 (the "Closing
Date") or at such other place and on such other date as the
parties hereto may agree in writing. The failure to consummate
the purchase and sale provided for in this Agreement on the date
and time and at the place specified herein will not relieve any
party to this Agreement of any obligation under this Agreement.
2. DELIVERIES AT CLOSING
2.1. At the Closing, the Purchaser and the other purchasers under the
Related Agreements will deliver the Aggregate Purchase Price by
wire transfer, from a single bank or investment account, of
immediately available federal funds in the amounts and to the
accounts designated in Exhibit A.
2.2. At the Closing, upon confirmation of the receipt of the full
amount of the Aggregate Purchase Price in accordance with Section
2.1, the Sellers shall deliver to the Purchaser and the
purchasers under the Related Agreements certificates evidencing
the Shares duly endorsed for transfer to the Purchaser and the
purchasers under the Related Agreements. The obligations of the
Sellers to make the deliveries contemplated by this Section 2.2
are expressly conditioned upon the prior receipt in full of the
Aggregate Purchase Price. The Purchaser hereby directs that such
delivery shall be made by the Seller's sending of the
certificates and related stock powers (in separate packages) via
Federal Express to the following address: Xxxxxx X. Xxxxxxx,
Xxxxxxx & Xxx, LLC, 000 00xx Xxxxxx, Xxxxx 0000 Xxxxx, Xxxxxx, XX
00000.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller, severally and not jointly, hereby represents and warrants to the
Purchaser, solely as to such Seller, that:
3.1. Power and Authority. The execution, delivery and performance by
such Seller of this Agreement is within the power and authority
of such Seller and has been duly authorized by all necessary
action on the part of such Seller. This Agreement has been duly
executed and delivered by such Seller and is a legal, valid and
binding obligation of such Seller, enforceable against such
Seller in accordance with its terms.
3.2. Title. Such Seller has good and valid title to the Shares, free
and clear of all encumbrances except as are imposed by applicable
securities laws. Such Seller has full right, power and authority
to transfer and deliver to the Purchaser valid title to the
Shares held by such Seller.
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4. MISCELLANEOUS
4.1. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter
hereof and supersedes any and all prior discussions,
negotiations, proposals, undertakings, understandings, and
agreements, whether written or oral, with respect hereto.
4.2. Governing Law. This Agreement, the rights of the parties and all
actions arising in whole or in part under or in connection
herewith, will be governed by and construed in accordance with
the domestic substantive laws of the State of Delaware, without
giving effect to any choice or conflict of law provision or rule
that would cause the application of die laws of any other
jurisdiction.
4.3. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all
of which together will constitute but one and the same
instrument. This Agreement will become effective when duly
executed by each party hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as
an agreement under seal as of the date first above written.
THE PURCHASER:
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Number of Shares being purchased: 28,623
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Purchase price for such Shares: $20,036.10
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THE SELLERS:
XXXXXX OTC AND EMERGING
GROWTH FUND
By: Xxxxxx Investment Management,
LLC
/s/ Xxxxxxx X. Xxxx xx Xxxxx
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Name:Xxxxxxx X. Xxxx xx Xxxxx
Title: Managing Director
XXXXXX EMERGING INFORMATION
SCIENCES TRUST
By: The Xxxxxx Advisory Company
LLC
/s/ Xxxxxxx X. Xxxx xx Xxxxx
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Name:Xxxxxxx X. Xxxx xx Xxxxx
Title: Managing Director
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