STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement"), is entered into on the
17th day of April, 1998, by and between Westmark Group Holdings, Inc., a
Delaware corporation, hereinafter referred to as "Seller," and Xxxx Xxxxxxxxxx,
hereinafter referred to as "Buyer."
WITNESSETH
WHEREAS, the Buyer wishes to purchase shares of common stock of the
Seller upon the terms and subject to the conditions of this Agreement, subject
to acceptance of this Agreement by the Seller.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AGREEMENT To PURCHASE AND PURCHASE PRICE.
a. Purchase. The undersigned hereby agrees to purchase 103,333
shares of restricted common stock of Seller for the sum of $219,583. The
purchase price shall be payable in United States dollars.
b. Terms of Payment. Buyer shall pay to seller the sum of
$170,000 within thirty (30) days from the date of this agreement (the "initial
payment"). The balance in the sum of $49,583 shall be paid in accordance with
the terms and conditions of a promissory note, a copy of which is attached
hereto, marked Exhibit "A" and by this reference made part hereof.
2. BUYER REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION. The Buyer represents and warrants to, and covenants
and agrees with, the Seller as follows:
a. The Buyer is purchasing the shares for its own account for
investment only and not with a view toward the public sale or distribution
thereof;
b. All subsequent offers and sales of the shares by the Buyer
shall be made pursuant to registration of the shares under the Securities Act of
1933 or pursuant to an exemption from registration;
c. The Buyer understands that no federal or state agency or
any other government or governmental agency has passed on or made any
recommendation or endorsement of the shares;
d. This Agreement is a valid and binding agreement of the
Buyer enforceable in accordance with its terms, subject as to enforceability to
general principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors' rights generally;
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3. SELLER'S REPRESENTATIONS. The Seller represents and warrants to
the Buyer that:
a. Concerning the Shares. The shares, when delivered and paid
for in accordance with this Agreement, will be duly and validly authorized and
issued, fully paid and non-assessable and will not subject the holder thereof to
personal liability by reason of being such holder;
b. Purchase Agreement. This Agreement has been duly and
validly authorized, executed and delivered on behalf of the Seller and is a
valid and binding agreement of the Seller enforceable in accordance with its
terms, subject as to enforceability to general principles of equity and to
bankruptcy or other laws affecting the enforcement of creditors' rights
generally;
c. Non-Contravention. The execution and delivery of this
Agreement by the Seller and the consummation by the Seller of the sale of the
shares and the other transactions contemplated by this Agreement do not and will
not conflict with or result in a breach by the Seller of any of the terms and
provisions of, or constitute a default under the certificate of incorporation or
by-laws of the Seller or any indenture, mortgage, deed of trust or other
material agreement or instrument to which the Seller is a party or by which it
or any of its properties or assets are bound, or any existing applicable law,
rule or regulation or any applicable decree, judgment or order of any court,
United States federal or state regulatory body, administrative agency or other
governmental body having jurisdiction over the Seller or any of its properties
or assets; and
d. Approvals. The Seller is not aware of any authorization,
approval or consent of any governmental body which is required to be obtained by
the Seller for the issuance and sale of the sharks as contemplated by this
Agreement.
4. CERTAIN COVENANTS AND ACKNOWLEDGEMENTS
a. Transfer Restrictions. The Buyer acknowledges that (1) the
shares to be sold to it hereunder have not been and are not being registered
under the provisions of the Securities Act of 1933 and may not be transferred
unless (A) the shares are subsequently registered thereunder or (B) the Buyer
shall have delivered to Westmark Group Holdings, Inc. an opinion of counsel,
reasonably satisfactory in form, scope and substance to Westmark Group Holdings,
Inc., to the effect that the shares may be sold or transferred pursuant to an
exemption from such registration, (2) any sale of the shares made in reliance on
Rule 144 promulgated under the Securities Act of 1933 may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale such shares under circumstances in which the Seller, or
the person through whom the sale is made, may be deemed to be an underwriter, as
that term is used in the Securities Act of 1933, may require compliance with
some other exemption under the Securities Act of 1933 or the rules and
regulations of the SEC thereunder, and (3) neither Westmark Group Holdings, Inc.
nor any other person is under any obligation to register the shares under the
Securities Act of 1933 or to comply with the terms and conditions of any
exemption thereunder.
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b. Restrictive Legend. The Buyer acknowledges and agrees that
the certificates for the shares may bear a restrictive legend in substantially
the following form (and a stop-transfer order may be placed against transfer of
the certificates for the shares):
"The shares represented by this certificate have not been registered
under the Securities Act of 1933. The shares have been acquired for
investment and may not be sold, transferred or assigned in the absence
of an effective registration statement for these shares under the
Securities Act of 1933 or an opinion of the Seller's counsel that
registration is not required under said Act."
5. STOCK DELIVERY INSTRUCTIONS. The certificate or certificates for
the shares shall be delivered by the Seller to Buyer upon receipt of the initial
payment and an executed promissory note as hereinabove set forth.
6. CONDITIONS TO THE SELLER'S OBLIGATION TO SELL. The Buyer
understands that the Seller's obligation to sell the shares to the Buyer
pursuant to this Agreement is conditioned upon:
a. The receipt and acceptance by the Seller of an executed
duplicate original of this Agreement;
b. Receipt by Seller of the initial payment from Buyer as
hereinabove set forth, and an executed promissory note in accordance with the
terms and conditions set forth in Exhibit "A."
7. GOVERNING LAW; MISCELLANEOUS. This Agreement shall be governed by
and interpreted in accordance with the laws of the State of Florida. A facsimile
transmission of this signed agreement shall be legal and binding on all parties
hereto. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement. If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement or the validity or
enforceability of this Agreement in any other jurisdiction. This Agreement may
be amended only by an instrument in writing signed by the party to be charged
with enforcement. Any notices required or permitted to be given under the terms
of this Agreement shall be sent by mail or delivered personally or by courier
and shall be effective five (5) days after being placed in the mail, if mailed,
or upon receipt, if delivered personally or by courier, in each case addressed
to a party at such party's address shown on the signature page of this Agreement
or such other address as a party shall have provided by notice to the other
party in accordance with this provision.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the Buyer
as of the date set forth below.
SELLER: BUYER:
WESTMARK GROUP HOLDINGS, INC. XXXX XXXXXXXXXX
0000 Xxxxx Xxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000 Xxxx Xxxxx, XX 00000
Dated: 4/17/98 Dated: 4/17/98
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By: /s/ X.X. Xxxxx /s/ Xxxx Xxxxxxxxxx
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XXXX XXXXXXXXXX
Its: C.F.O.
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