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EXHIBIT 1
STOCK PURCHASE AGREEMENT
by and between
XXXXX X. XXXXXX
and
XXXX X. XXXXXX
a Shareholder of
PANJA INC.
dated as of
January 30, 2001
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of January
30, 2001, is by and between Xxxxx X. Xxxxxx (the "Buyer") and Xxxx X. XxXxxx
(the "Shareholder"), a shareholder of Panja Inc., a Texas corporation (the
"Company").
RECITALS:
A. The Shareholder is the owner of 900,000 shares of the common stock,
$0.01 par value, of the Company (the "Shares").
B. The Buyer desires to purchase from the Shareholder and the
Shareholder desires to sell to the Buyer the Shares pursuant to the terms and
conditions hereof.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and conditions
hereof, the Shareholder shall sell, and the Buyer shall purchase, the Shares.
2. Purchase Price. The purchase price shall be $6.00 in cash per Share,
or an aggregate of $5,400,000, subject to adjustment as provided in Section 4
(such aggregate price being referred to herein as the "Purchase Price"). At the
Closing (as defined below), the Buyer shall pay the Purchase Price by means of
wire transfer or official bank check payable to the order of the Shareholder.
3. Other Actions at the Closing. At the Closing the Shareholder shall
deliver to the Buyer certificates representing the Shares duly endorsed to the
Buyer or accompanied by stock powers duly executed by the Shareholder, in form
and substance reasonably satisfactory to the Buyer, or shall arrange for the
book-entry delivery of the Shares by causing The Depository Trust Company
("DTC") to transfer the Shares into the account of a financial institution
identified by the Buyer that is a participant in the DTC in accordance with
DTC's procedures for such transfer.
4. Adjustment Upon Changes in Capitalization. In the event of any
change in the number or kind of Shares by reason of stock dividends, stock
splits, mergers, recapitalizations, combinations, conversions, exchanges of
shares or the like prior to the Closing, the number and kind of shares or
securities subject to this Agreement and the per share Purchase Price (but not
the aggregate Purchase Price) shall be appropriately adjusted.
5. Closing. Subject to the terms and conditions hereof, the
consummation of the transactions contemplated in this Agreement (the "Closing")
shall occur at the offices of Xxxxxx
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& Xxxxxx L.L.P., 3700 Xxxxxxxx Xxxx Center, 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx, at
9:00 a.m., on a date selected by the Buyer (with at least one business day prior
notice of such date given to the Shareholder by the Buyer) prior to the
Termination Date (as defined below).
6. Representations and Warranties.
(a) The Shareholder hereby represents and warrants to the Buyer
that:
(i) The Shareholder has the capacity to enter into
this Agreement and to sell, assign, transfer and deliver to
the Buyer, pursuant to the terms and conditions of this
Agreement, the Shares;
(ii) Except for this Agreement, there are no
outstanding options, warrants or rights to purchase or
acquire, or agreements (whether voting or otherwise) relating
to, the Shares;
(iii) The Shareholder owns of record and beneficially
all of the Shares, free and clear of all liens, claims,
encumbrances and security interests of any nature whatsoever.
Upon purchase of the Shares pursuant to this Agreement, the
Buyer shall receive good and marketable title to the Shares,
free and clear of all liens, claims, encumbrances and security
interests of any nature whatsoever other than any such lien,
claim, encumbrance or security interest resulting from the
actions of the Buyer;
(iv) The execution and delivery of this Agreement by
the Shareholder does not, and the performance by the
Shareholder of the transactions contemplated hereby will not,
(A) violate, conflict with or result in the violation or
breach of, or constitute a default under, the terms,
conditions or provisions of any agreement to which the
Shareholder is a party, (B) violate any order, writ, judgment,
injunction, decree, statute, rule or regulation of any court
or federal, state or local administrative agency or commission
or other governmental authority or instrumentality (a
"Governmental Entity") applicable to the Shareholder or (C)
require the consent, approval, order or authorization of,
registration, declaration or filing with, or notice to, any
Governmental Entity or third party;
(v) This Agreement is a legal, valid and binding
agreement of the Shareholder enforceable against the
Shareholder in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights
generally and except that the availability of equitable
remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor
may be brought;
(vi) The Shareholder acquired, and fully paid for,
the Shares on the dates and in the manner set forth on
Exhibit A hereto; and
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(vii) The Shareholder is not an affiliate (within the
meaning of Rule 144 under the Act (as defined below)) of the
Company and has not been such an affiliate since January 2,
2001.
(b) The Buyer hereby represents and warrants to the Shareholder
that:
(i) The Buyer has the capacity to enter into this
Agreement and to buy the Shares from the Shareholder pursuant
to the terms and conditions of this Agreement;
(ii) This Agreement is a legal, valid and binding
agreement of the Buyer enforceable against it in accordance
with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights generally and except that the
availability of equitable remedies, including specific
performance, is subject to the discretion of the court before
which any proceeding therefor may be brought;
(iii) The Buyer understands that the sale of the
Shares hereunder has not been registered under the Securities
Act of 1933, as amended (the "Act"), based on the exemption
from registration provided by Section 4(1) of the Act, and
that the Shareholder's reliance on such exemption depends in
part on the Buyer's representations and warranties in this
Agreement;
(iv) The Buyer is purchasing the Shares without a
view to the distribution thereof except in compliance with the
Act and applicable state securities laws; provided, that the
Buyer may at any time sell or otherwise dispose of all or any
part of the Shares pursuant to a registration under the Act
and under applicable state securities laws or pursuant to an
exemption from such registration available thereunder. The
Buyer will not sell or otherwise transfer any interest in the
Shares except in compliance with the registration
requirements, or an exemption therefrom, of the Act and
applicable state securities laws;
(v) The Buyer is an "accredited investor," as such
term is defined in Rule 501(a) under the Act, who by reason of
his business and financial experience has such knowledge and
experience in financial and business matters that he is
capable of evaluating the merits and risks of an investment in
the Shares;
(vi) The execution and delivery of this Agreement by
the Buyer does not, and the performance by the Buyer of the
transactions contemplated hereby will not, (A) violate,
conflict with or result in the violation or breach of, or
constitute a default under, the terms, conditions or
provisions of any agreement to which the Buyer is a party, (B)
violate any order, writ, judgment, injunction, decree,
statute, rule or regulation of any Governmental Entity
applicable to the Buyer or (C) require the consent, approval,
order or authorization of, registration, declaration or filing
with, or notice to, any Governmental Entity or third party;
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(vii) The Buyer understands that the portion of the
Shares that were acquired by the Shareholder from the Company
pursuant to that certain Subscription Agreement, dated as of
January 15, 1999, between the Shareholder and the Company (the
"Subscription Agreement") constitute "restricted securities"
within the meaning of Rule 144 under the Act (the
"Subscription Shares") and may not be sold, pledged or
otherwise disposed of unless they are subsequently registered
under the Act and applicable state securities laws or unless
an exemption from registration is available;
(viii) The Buyer understands that no Governmental
Entity has passed upon or made any recommendation or
endorsement with respect to the Shares;
(ix) The Buyer has cash on hand, or sufficient liquid
assets that can be exchanged for cash prior to the Termination
Date, in an amount sufficient for the Buyer to pay the
Purchase Price for the Shares; and
(x) The Buyer understands that any certificates
evidencing the Subscription Shares may bear substantially the
following legend:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
REQUIREMENTS OF SUCH ACT AND THE APPLICABLE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION."
7. Buyer's Conditions to Closing. The obligation of the Buyer to
purchase the Shares under this Agreement is subject to the following conditions:
(a) no preliminary or permanent injunction or other decree or ruling issued by a
court of competent jurisdiction in the United States is in effect that would
prevent the sale or purchase of the Shares, (b) the representations and
warranties of the Shareholder contained in Section 6(a) hereof shall be true and
correct as of the date hereof and true and correct at the time of the Closing as
if made on and as of such time, and (c) the Shareholder shall have performed its
covenants contained in the Agreement in all material respects.
8. Shareholder's Conditions to Closing. The obligation of the
Shareholder to sell the Shares under this Agreement is subject to the condition
set forth in Section 7(a) of this Agreement (as if such condition ran in favor
of the Shareholder) and is further subject to the conditions that (a) the
representations and warranties of the Buyer contained in Section 6(b) hereof
shall be true and correct as of the date hereof and true and correct at the time
of the Closing as if made on and as of such time, and (b) the Buyer shall have
performed its covenants contained in this Agreement in all material respects.
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9. Termination.
(a) This Agreement may be terminated prior to the Closing:
(i) by either the Buyer or the Shareholder in the
event of a breach by the other party of any representation,
warranty, covenant or other agreement contained in this
Agreement which (A) would give rise to the failure of a
condition set forth in Section 7(b) or (c) or Section 8(a) or
(b), as applicable, and (B) cannot be or has not been cured on
or before the Termination Date after the giving of prompt
written notice to the breaching party of such breach (a
"Material Breach") (provided that the terminating party is not
then in Material Breach of any representation, warranty,
covenant or other agreement contained in this Agreement); or
(ii) if the Closing has not occurred on or before
5:00 p.m., Dallas, Texas time, on February 8, 2001 (the
"Termination Date"); provided that the right to terminate this
Agreement under this clause (ii) shall not be available to a
party whose breach of this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before
such date.
(b) Termination of this Agreement pursuant to Section 9(a)
shall terminate all rights and obligations of the parties hereunder and
neither party shall have any liability to the other party hereunder;
provided that this Section 9 and Sections 10, 11, 13, 14, 15, 16, 17,
19 and 21 shall remain in effect; and provided further that termination
of this Agreement shall not relieve any party from liability for any
breach of this Agreement by such party prior to such termination.
10. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
on the second business day after such notice or communication has been sent by
registered or certified mail, postage prepaid, with return receipt requested, as
follows:
If to the Buyer, to:
Xx. Xxxxx X. Xxxxxx
00000 Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
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with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esquire
Telecopy: (000) 000-0000
If to the Shareholder:
Xxxx X. XxXxxx
0000X Xxxxxxx xx Xxxxx Xxx.
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx & Xxxx, L.L.P.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: J. Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
11. Waiver and Amendment. Any provision of this Agreement may be waived
at any time by the party that is entitled to the benefits thereof, and this
Agreement may be amended or supplemented at any time by the written consent of
the parties hereto.
12. No Prior Agreements. This Agreement (a) contains the entire
agreement, and supersedes all other prior agreements and understandings, both
written and oral, between the parties hereto with respect to the subject matter
hereof, and (b) is not intended to confer upon any other person any rights or
remedies hereunder.
13. Successors and Assigns. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by and against the parties hereto and their
successors (including administrators and executors of individuals) and assigns.
14. Remedies. The Shareholder acknowledges and agrees that the Buyer
would be irreparably damaged in the event that any of the provisions of this
Agreement to be performed by the Shareholder were not performed by it in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the Buyer shall be entitled to an injunction or
injunctions to redress any breaches of this Agreement and to specifically
enforce the terms and provisions hereof in any action instituted in any court of
the United States or any state thereof having jurisdiction, in addition to any
other remedy to which the Buyer may be entitled at law or
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in equity. In the event litigation shall be necessary to enforce, interpret or
rescind the provisions of this Agreement, the prevailing party shall be entitled
to recover from the other party, in addition to other relief, the prevailing
party's reasonable attorneys' fees for services before trial, at trial and on
any appeal therefrom.
15. Expenses. Except as set forth in Section 14, each of the parties
shall pay its own expenses in connection with the negotiation, execution and
performance of the Agreement. No party has incurred any broker's or finder's fee
in connection with this Agreement that the other party will be obligated to pay.
16. Counterparts. This Agreement and any amendments hereto may be
executed in two or more counterparts, each of which shall be considered to be an
original, but all of which together shall constitute the same instrument.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to its conflict
of laws doctrine.
18. Severability. If any term, provision or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
19. Effect of Headings. The section headings herein are for convenience
only and shall not affect the meaning or interpretation of this Agreement.
20. Survival. All representations, warranties, covenants and other
agreements and assignments of the parties hereto shall survive the Closing.
21. Public Statement. Each party agrees that it will make no press
release or other public statement or announcement of the terms of this Agreement
or other matters, past, present, or future, relating to the Buyer's or the
Shareholder's dealings with the Company; provided, however, that nothing
contained herein shall prohibit any party from disclosing the terms of this
Agreement or such other matters if required by law, rule or regulation.
22. Attorney-In-Fact and Proxy.
(a) From and after the Closing, the Shareholder hereby
irrevocably constitutes and appoints the Buyer as the true and lawful
agent and attorney-in-fact of the Shareholder with respect to the
Shares (and any Distributions, as hereinafter defined), with full power
of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest), to (i) present such Shares
and related certificates (and any Distributions) for transfer on the
books of the Company or the Company's stock transfer agent and (ii)
receive all benefits and otherwise exercise all rights of record and
beneficial ownership of the Shares (and any Distributions). From and
after the Closing, the Shareholder, upon request, shall (i) execute and
deliver any additional documents
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deemed by the Buyer to be necessary or desirable to transfer the Shares
(and any Distributions) into the name of the Buyer and (ii) deliver or
cause to be delivered to the Company or the Company's stock transfer
agent any documents, including, without limitation, opinions of
counsel, required to be delivered pursuant to the Subscription
Agreement in order to transfer the Shares to the Buyer, including
causing certificates evidencing the Shares to be issued in the name of
the Buyer. In addition, from and after the Closing, the Shareholder
shall promptly remit and transfer to the Buyer any and all
Distributions, accompanied by appropriate documentation of transfer,
and, pending such remittance and transfer, the Buyer shall be entitled
to all rights and privileges as owner of any such Distributions. For
purposes of this Agreement, "Distributions" shall mean any and all
distributions, rights and securities issued or issuable in respect of
the Shares with a payment date on or after the date of the Closing.
From and after the Closing, the Shareholder shall provide the Company
with any information required by the Company under the Subscription
Agreement, including, without limitation, information in connection
with the Buyer's request to eliminate or remove legends from
certificates evidencing the Shares.
(b) From and after the Closing, the Shareholder hereby
irrevocably appoints the Buyer as the attorney-in-fact and proxy of the
Shareholder, with full power of substitution, to the full extent of the
Shareholder's rights with respect to the Shares (and any
Distributions), including without limitation the right to vote the
Shares (and any Distributions) in such manner as the Buyer or his
substitute shall, in his sole and absolute discretion, deem proper. All
such powers of attorney and proxies shall be considered coupled with an
interest in the Shares and therefore shall be irrevocable. All prior
powers of attorney and proxies given by the Shareholder with respect to
the Shares (and any Distributions) are hereby revoked effective as of
the Closing, and no subsequent powers of attorney and proxies may be
given by the Shareholder with respect to the Shares or any
Distributions (and, if given, shall be deemed ineffective). From and
after the Closing, the Buyer or his substitute will, with respect to
the Shares (and any Distributions), be empowered to exercise all voting
and other rights of the Shareholder with respect to the Shares (and any
Distributions) as they in their sole and absolute discretion may deem
proper, including, without limitation, in respect of any annual or
special meeting of the shareholders of the Company, or any adjournment
or postponement thereof, in connection with any action by written
consent in lieu of a meeting or otherwise. In addition, from and after
the Closing, the Shareholder agrees to execute any proxy, ballot or
written consent in lieu of a meeting with respect to the Shares upon
the request of and as directed by the Buyer.
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IN WITNESS WHEREOF, the parties have executed this Agreement to take
effect as of the date set forth above.
SHAREHOLDER:
/s/ XXXX X. XXXXXX
---------------------------------------
Xxxx X. XxXxxx
BUYER:
/s/ XXXXX X. XXXXXX
---------------------------------------
Xxxxx X. Xxxxxx
The terms and provisions of this
Agreement are agreed to by the
undersigned spouse of Xxxx X. XxXxxx
as of January 30, 2001.
/s/ X.X. XXXXXXXX
-------------------------------------
Spouse of Xxxx X. XxXxxx
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EXHIBIT A
Number of Shares Date Acquired Manner Acquired
---------------- ------------- ---------------
623,520 03/09/99 From the Company
60,000 07/23/99 On open market
15,000 07/26/99 On open market
33,800 07/28/99 On open market
12,500 07/29/99 On open market
5,000 07/30/99 On open market
16,500 08/02/99 On open market
30,000 08/03/99 On open market
3,680 08/04/99 On open market
75,000 08/06/99 On open market
25,000 08/09/99 On open market
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900,000
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