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EX-10.(c)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into this 18th
of October, 1995, by and among EDNET, INC., formerly AP Office Equipment, Inc.,
a Colorado corporation (hereinafter referred to as "Buyer"); and Xxxxx Xxxxxx,
Xxx and Xxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxxx and Xxx Xxxxxxx,
LucasArts Entertainment Co., Xxxxxxxx Xxxxxxxx and Xxxx Xxxxxxxxxx, Xxxx
Xxxxxxxx, Xxxxxx Xxxxxx, and the Takashi and Xxxxxxx Xxxxxxxxx Trust dated April
27, 1988 (hereinafter collectively referred to as "Seller"), being the remaining
stockholders of Entertainment Digital Network, a California corporation (the
"Company"), other than Buyer.
WHEREAS, Seller is the owner of record and beneficially owns Two
Hundred Seventy Eight Thousand Five Hundred Fifty Four (278,554) shares of the
issued and outstanding shares of Common Stock of the Company (the "Shares"); and
WHEREAS, on September 25, 1995, Buyer, the Company and the seven
primary stockholders of the Company entered into a Stock Purchase Agreement (the
"First Agreement") whereby Buyer purchased from those stockholders all shares of
Common and Preferred Stock of the Company which they owned on the terms and
conditions set forth in the First Agreement; and
WHEREAS, one of the conditions to the consummation of the First
Agreement was that Buyer would offer to purchase from the remaining holders of
the shares of the Common Stock of the Company all such shares they owned after
the closing of the First Agreement; and
WHEREAS, Seller desires to sell all of the Shares to Buyer, and Buyer
desires to purchase the Shares, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
I.
SALE AND PURCHASE OF THE SHARES
1.1 SALE AND PURCHASE. Subject to the terms and conditions hereof, at
the Closing (as defined in paragraph 1.2 below), Seller agrees to sell, assign,
transfer, convey and deliver to Buyer, and Buyer agrees to purchase from Seller,
the Shares listed in Exhibit "A", attached hereto. Each purchase and sale of
shares between Buyer and a member of the Seller shall be deemed a separate
transaction, and the consummation of any purchase and sale of Shares between
Buyer and any member of Seller shall not be conditioned upon or subject to the
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consummation of the purchase and sale of Shares between Buyer and any other
member of Seller.
1.2 CLOSING. The purchase shall be consummated at a closing ("Closing")
to take place at 11:00 o'clock a.m., at the offices of Buyer's counsel on
October __, 1995 ("Closing Date").
1.3 PURCHASE PRICE. The aggregate purchase price ("Purchase Price") for
the Shares shall be 243,720 shares of Common Stock of the Buyer ("Buyer's
Shares"). This portion of the Purchase Price shall be paid at Closing, by
issuance and delivery of Buyer's Shares to Seller against receipt of
certificates representing the Shares, duly endorsed for transfer to Buyer.
1.4 ALLOCATION OF SHARES. All shares of stock of Buyer to be issued to
Seller pursuant to this Agreement shall be issued to the respective Sellers in
proportion to their respective ownership of stock of the Company as described in
Exhibit "A" hereto.
1.5 OTHER AGREEMENTS. At the Closing, the indicated parties shall
execute and deliver the following additional agreements in substantially the
form attached hereto:
(a) Stock certificates representing all of the Shares,
duly endorsed to Buyer and in blank or assignments separate from the
certificates, transferring the Shares from Seller to Buyer, copies of which are
attached hereto as Exhibit "B".
1.6 BASIC AGREEMENTS AND TRANSACTIONS DEFINED. This Agreement and other
agreement listed in paragraph 1.5, are sometimes referred to as the "Basic
Agreements". The transactions contemplated by the Basic Agreements are sometimes
referred to as the "Transactions".
II.
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Each member of Seller
represents and warrants to Buyer, with respect to the Shares owned by Seller, as
follows:
(a) TITLE TO THE SHARES. At Closing, Seller shall own of
record and beneficially the number of the Shares listed in Exhibit "A", of the
Company, free and clear of all liens, encumbrances, pledges, claims, options,
charges and assessments of any nature whatsoever, with right and lawful
authority to transfer the Shares to Buyer. No person has any preemptive fights
or rights of first refusal with respect to any of the Shares. There exists no
voting agreement, voting trust, or outstanding proxy with respect to any of the
Shares. There are no outstanding rights, options, warrants, calls, commitments,
or any other agreements of any character, whether oral or written, with respect
to the Shares.
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(b) INVESTMENT INTENT. Seller is acquiring the shares of
Buyer for his or her own account, for investment purposes only, and not with a
view to the sale or distribution of any part thereof, and Seller has no present
intention of selling, granting participation in, or otherwise distributing the
same. Seller understands the specific risks related to an investment in the
shares of Buyer, especially as it relates to the financial performance of Buyer.
(c) DISCLOSURE STATEMENT. Seller has received and
carefully reviewed the Joint Disclosure Statement dated September 20, 1995 (the
"Disclosure Statement") relating to the transactions.
2.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows:
(a) ORGANIZATION. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of Colorado. Buyer has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business. Buyer is duly qualified
and in good standing as a foreign corporation in each jurisdiction where its
ownership of property or operation of its business requires qualification,
except where the failure to be qualified would not have a material adverse
effect on the Company. The Certificate of Incorporation and the Bylaws of Buyer
presently provide that the number of members of the Board of Directors shall be
six (6).
(b) AUTHORIZED CAPITALIZATION. The authorized
capitalization of Buyer consists of 25,000,000 shares of .001 par value Common
Stock, of which Three Million Five Hundred Twenty Three Thousand Three Hundred
Eighteen (3,523,318) shares have been issued and are outstanding (after giving
effect to a one for three reverse stock split). Buyer's Shares have been duly
authorized, validly issued, are fully paid and nonassessable with no personal
liability attaching to the ownership thereof and were offered, issued, sold and
delivered by Buyer in compliance with all applicable state and federal laws.
Except as set forth in Exhibit "C" attached hereto or in the Disclosure
Statement, Buyer does not have any outstanding rights, options, warrants, calls,
commitments, conversion or any other agreements of any character, whether oral
or written, obligating it to issue any shares of its capital stock, whether
authorized or not. Except as set forth in Exhibit "D attached hereto, Buyer is
not a party to and is not bound by any agreement, contract, arrangement or
understanding, whether oral or written, giving any person or entity any interest
in, or any right to share, participate in or receive any portion of, Buyer's
income, profits or assets, or obligating Buyer to distribute any portion of its
income, profits or assets.
(c) AUTHORITY. Buyer has full power and lawful authority
to execute and deliver the Basic Agreements and to consummate and perform the
Transactions contemplated thereby. The Basic Agreements constitute (or shall,
upon execution, constitute) valid and legally binding obligations upon Buyer,
enforceable in accordance with their terms. Neither the execution and delivery
of the Basic Agreements by Buyer, nor the consummation and performance of the
Transactions contemplated thereby, conflicts with, requires the consent, waiver
or approval of, results in a breach of or default under, or gives to others any
interest or right of termination, cancellation or acceleration in or with
respect to, any material agreement
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by which Buyer is a party or by which Buyer or any of its material properties or
assets are bound or affected.
(d) INVESTMENT INTENT. Buyer is acquiring the Shares for
its own account, for investment purposes only, and not with a view to the sale
or distribution of any part thereof, and Buyer has no present intention of
selling, granting participation in, or otherwise distributing the same. Buyer
understands the specific risks related to an investment in the Shares,
especially as it relates to the financial performance of the Company.
(e) BUYER'S FINANCIAL STATEMENTS. Buyer's Financial
Statements are complete, were prepared in accordance with generally accepted
accounting principles applied on a basis consistent with prior periods and
fairly present the financial position of Buyer as of June 30, 1995.
(f) NO UNDISCLOSED LIABILITIES. Except as set forth in
Buyer's Financial Statements previously delivered to the Company, Buyer is not
aware of any material liabilities for which it is liable or will become liable
in the future.
(g) MATERIAL CONTRACTS. Buyer has no purchase, sale,
commitment, or other contract, the breach or termination of which would have a
materially adverse effect on the business, financial condition, results of
operations, assets, liabilities, or prospects of Buyer.
(h) NO LITIGATION. There are no actions, suits, claims,
complaints or proceedings pending or threatened against Buyer, at law or in
equity, or before or by any governmental department, commission, court, board,
bureau, agency or instrumentality; and there are no facts which would provide a
valid basis for any such action, suit or proceeding, which, if determined
adversely to the Company, would have a material adverse effect on the Company.
There are no orders, judgments or decrees of any governmental authority
outstanding which specifically apply to Buyer or any of its assets.
(i) DISCLOSURE STATEMENT. The information in the
Disclosure Statement is true and correct in all material respects and contains
no misstatements or omissions of material fact.
(j) NO OPERATIONS. Except for its ownership interest in
the Company, Buyer does not currently have any business operations or material
assets.
III.
COVENANTS
3.1 COVENANTS OF BUYER. Buyer covenants and agrees to perform the
following acts:
(a) CONSENTS. Buyer will use its best good faith efforts
to obtain the consent or approval of each person or entity whose consent or
approval is required for the consummation
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of the Transactions contemplated hereby and to do all things necessary to
consummate the Transactions contemplated by the Basic Agreements.
IV.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER TO CLOSE
The obligation of Buyer to close the Transactions contemplated hereby
is subject to the fulfillment by Seller prior to Closing of each of the
following conditions, which may be waived in whole or in part by Buyer:
4.1 COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of Seller contained in this Agreement shall have
been true and correct when made and shall be true and correct as of the Closing
with the same force and effect as if made at the Closing. Seller shall have
performed all agreements, covenants and conditions required to be performed by
Seller prior to the Closing.
4.2 NO LEGAL PROCEEDINGS. No suit, action or other legal or
administrative proceeding before any court or other governmental agency shall be
pending or threatened seeking to enjoin the consummation of the Transactions
contemplated hereby.
4.3 DOCUMENTS TO BE DELIVERED BY SELLER. Seller shall have delivered
the following documents:
(a) Stock certificates representing all of the Shares,
duly endorsed to Buyer and in blank or accompanied by duly executed stock
powers, copies of which are attached as Exhibit "B".
(b) Such other documents or certificates as shall be
reasonably required by Buyer or its counsel in order to close and consummate
this Agreement.
V.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER TO CLOSE
The obligation of Seller to close the Transactions is subject to the
fulfillment prior to Closing of each of the following conditions, any of which
may be waived in whole or in part by Seller:
5.1 COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties made by Buyer in this Agreement shall have been
true and correct when made and shall be true and correct in all material
respects at the Closing with the same
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force and effect as if made at the Closing, and Buyer shall have performed all
agreements, covenants and conditions required to be performed by Buyer prior to
the Closing.
5.2 NO LEGAL PROCEEDINGS. No suit, action or other legal or
administrative proceedings before any court or other governmental agency shall
be pending or threatened seeking to enjoin the consummation of the Transactions
contemplated hereby.
5.3 OTHER AGREEMENTS. Buyer shall have executed and delivered the Basic
Agreements.
5.4 PAYMENTS. Seller shall have received from Buyer all Common Stock to
be issued at the Closing by Buyer pursuant to all the Basic Agreements.
VI.
MODIFICATION, WAIVERS, TERMINATION AND EXPENSES
6.1 MODIFICATION. Buyer and Seller may amend, modify or supplement this
Agreement in any manner as they may mutually agree in writing.
6.2 WAIVERS. Buyer and Seller may in writing extend the time for or
waive compliance by the other with any of the covenants or conditions of the
other contained herein.
6.3 TERMINATION AND ABANDONMENT. This Agreement may be terminated and
the purchase of the Shares may be abandoned before the Closing:
(a) By the mutual consent of Seller and Buyer;
(b) By Buyer, if the representations and warranties of
Seller set forth herein shall not be accurate, or the conditions precedent set
forth in Article V shall have not have been satisfied, in all material respects;
or
(c) By Seller, if the representations and warranties of
Buyer set forth herein shall not be accurate, or the conditions precedent set
forth in Article V shall not have been satisfied in all material respects.
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefor.
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VII.
MISCELLANEOUS
7.1 REPRESENTATIONS AND WARRANTIES TO SURVIVE. Unless otherwise
provided, all of the representations and warranties contained in this Agreement
and in any certificate, exhibit or other document delivered pursuant to this
Agreement shall survive the Closing for a period of two (2) years. No
investigation made by any party hereto or their representatives shall constitute
a waiver of any representation or warranty, and no such representation or
warranty shall be merged into the Closing.
7.2 BINDING EFFECT OF THE BASIC AGREEMENTS. The Basic Agreements and
the certificates and other instruments delivered by or on behalf of the parties
pursuant thereto, constitute the entire agreement between the parties. The terms
and conditions of the Basic Agreements shall inure to the benefit of and be
binding upon the respective heirs, legal representatives. successor and assigns
of the parties hereto. Nothing in the Basic Agreements, expressed or implied,
confers any rights or remedies upon any party other than the parties hereto and
their respective heirs, legal representatives and assigns. Whenever Seller is
authorized to act hereunder, any action authorized by members of Seller holding
a majority of the Shares shall be deemed the act of and binding on all members
of Seller.
7.3 APPLICABLE LAW. The Basic Agreements are made pursuant to, and will
be construed under, the laws of the State of California.
7.4 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, first class postage prepaid:
(a) If to Seller, to:
each individual member of Seller, whose
names and addresses are listed on Exhibit E
attached hereto.
(b) If to Buyer, to:
EDnet, Inc.
ATTN: Xxx Xxxxxxxxx, President & CEO
Xxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
These addresses may be changed from time to time by written notice to
the other parties.
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7.5 HEADINGS. The headings contained in this Agreement are for
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
7.6 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will be deemed an original and all of which together will constitute
one instrument.
7.7 SEVERABILITY. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
under applicable law this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. The
remaining provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
7.8 FORBEARANCE; WAIVER. Failure to pursue any legal or equitable
remedy or right available to a party shall not constitute a waiver of such
right, nor shall any such forbearance, failure or actual waiver imply or
constitute waiver of subsequent default or breach.
7.9 ATTORNEYS' FEES AND EXPENSES. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable attorneys'
fees and expenses and court costs.
7.10 EXPENSES. Each party shall pay all fees and expenses incurred by
it incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
7.11 EXHIBITS. All of the following Exhibits to this Agreement are
incorporated herein in the places referenced in this Agreement as if fully set
forth herein:
EXHIBIT REFERENCE ITEM
A 1.1 List of Shares of Common Stock of the Company Owned by Seller
B 1.5(a) Stock Certificates and Stock Powers
C 2.2(b) List of Existing Agreements Obligating Buyer to Issue Common
Stock
D 2.2(b) List of Existing Agreements Obligating Buyer to Distribute Assets,
Income or Profits
E 7.4(a) List of Names and Addresses of Members of Seller
7.12 INTEGRATION. This Agreement and all documents and instruments
executed pursuant hereto merge and integrate all prior agreements and
representations respecting the Transactions, whether written or oral, and
constitute the sole agreement of the parties in connection therewith. This
Agreement has been negotiated by and submitted to the scrutiny of both Seller
and Buyer and their counsel and shall be given a fair and reasonable
interpretation
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in accordance with the words hereof, without consideration or weight being given
to its having been drafted by either party hereto or its counsel.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Agreement on the date first written above.
"BUYER"
EDNET, INC.
/s/ Xxx Xxxxxxxxx
--------------------------
Xxx Xxxxxxxxx, President
"SELLER"
/s/Xxxxx Xxxxxx /s/Xxxx Xxxxxxx
---------------------------- ----------------------------------
Xxxxx Xxxxxx Xxxx Xxxxxxx
/s/Xxxxx Xxxxxxxxx /s/Xxxx Xxxxxxxx
---------------------------- ----------------------------------
Xxxxx Xxxxxxxxx Xxxx Xxxxxxxx
Takashi and Mutsuyo Trust dated /s/Xxxxxxxx Xxxxxxxx, /s/ Xxxxxx Xxxxxxxxxx
April 27, 1988 -------------------------------------------
By: /s/ Xxxxxxx Xxxxxxxxx, Trustee Xxxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxxxx
------------------------------ as Tenants in Common
/s/ Xxxxx Xxxxxxx, /s/ Xxxx Xxxxxxx /s/Xxxxxx Xxxxxx
----------------------------------- ----------------
Tadao and Xxxx Xxxxxxx as Xxxxxx Xxxxxx
Tenants in Common
Xxxxx Digital ltd..
By:/s/Xxxxxxx X. Xxxxx /s/Xxxxx Xxxxxxx, /s/Xxxx Xxxxxxx
---------------------------- ----------------------------------
Xxxxxxx X. Xxxxx Xxx and Xxxx Xxxxxxx as Tenants in Common
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