Exhibit 1
STOCK TRANSFER AGREEMENT
This STOCK TRANSFER AGREEMENT (this "Agreement"), dated December 29, 2000,
is by and among Chaucer Investments Co, LLC, a Delaware limited liability
company (the "Investor"), and the parties listed under the heading "Sellers" on
the signature page hereto (collectively with their successors and assigns, the
"Sellers").
RECITALS
A. The Sellers own the equity securities listed on Schedule 1 hereto and
5,827,400 shares of common stock of XxxxXxxxxx.XXX, Inc.. Such equity securities
are hereinafter collectively referred to as the "Securities" and the issuers of
the Securities are hereinafter collectively referred to as the "Issuers."
B. Subject to the terms and conditions set forth in this Agreement, the
Investor desires to purchase from the Sellers, and the Sellers desire to sell to
the Investor, the Securities.
Now, therefore, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
I. PURCHASE AND SALE
1.1. Purchase and Sale. On the terms and subject to the conditions herein,
and in reliance on the representations, warranties and covenants set forth
herein, at the Closing the Investor will purchase from each Seller, and each
Seller will sell to the Investor, such Seller's Securities. The sale will
include all registration and other rights associated with any particular
Securities, as well as any dividends or distributions on or in respect of such
Securities paid or declared between the date hereof and the Closing Date. Except
as aforesaid, the Investor will assume all of the Sellers' rights and
obligations in respect of the Securities from and after the Closing. The amount
payable for the Securities (the "Purchase Price") will be the aggregate amount
separately agreed to by the Investor and Communicade Investment Company of
Nevada, Inc. ("Communicade") and will be allocated among and paid to each of the
Sellers as determined by Communicade on behalf of all Sellers.
1.2. Closing. Subject to the satisfaction or waiver of the conditions set
forth in Section 4, the closing (the "Closing") of the sale and purchase of the
Securities will take place at the offices of Communicade on such date, time and
place between February 15, 2001 and May 31, 2001 as may be mutually agreed upon
by the Investor and Communicade on behalf of all of the Sellers (the "Closing
Date"). At the Closing, each Seller will deliver certificates representing such
Seller's Securities, in each case free and clear of any and all liens, claims,
options, charges, pledges, security interests, voting agreements, trusts,
encumbrances, rights or restrictions of any nature ("Claims"), against payment
of the Purchase Price, and the Investor and each relevant Seller will sign all
agreements and instruments required to be signed by them and take all other
required actions, including without limitation the Joinder/Administrative
Actions (as defined in Section 2.3), so that the Investor succeeds to any
Seller's rights relating to Securities being purchased and sold hereunder. All
cash payments hereunder will be
made by wire transfer of immediately available funds to an account designated by
Communicade at least two business days prior to the Closing Date.
II. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
2.1. In order to induce the Investor to enter into this Agreement and
consummate the transactions contemplated hereby, each Seller, severally and not
jointly, makes the following representations and warranties to the Investor with
respect to such Seller and such Seller's Securities.Organization and Corporate
Power. The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the state under which it is incorporated. The Seller
has all requisite corporate power to enter into and perform this Agreement and
to carry out the transactions contemplated hereby, including the sale of such
Seller's Securities.
2.2. Authorization. The execution, delivery and performance by the Seller
of this Agreement and the sale and delivery of the Seller's Securities have been
duly authorized by all necessary corporate and other action of the Seller. This
Agreement is a valid and binding obligation of the Seller and enforceable in
accordance with its terms.
2.3. Non-Contravention. Except for any consents, opinions of counsel or
joinder agreements required as a result of the transactions contemplated hereby
pursuant to the agreements set forth on Schedule 2.3 (the
"Joinder/Administrative Actions"), the execution, delivery and performance by
the Seller of this Agreement and the sale and delivery of the Seller's
Securities and the rights associated therewith do not and will not require any
action under, violate or conflict with in any respect or result in a material
breach of, any material contract, license, order or law applicable to such
Seller.
2.4. Ownership of Shares; Title. Except as set forth in Schedule 2.4, as
of the date hereof and immediately prior to the Closing, all of the Securities
are lawfully owned of record and beneficially by such Seller, free and clear of
any Claim. Such Seller has the full legal right, power and authority to transfer
all of its Securities in accordance with the terms of this Agreement. Upon the
acquisition of the Seller's Securities by the Investor, the Investor will
acquire good title thereto free and clear of any Claim.
2.5. Litigation. Except as disclosed in Schedule 2.5, there is no action,
suit, investigation, arbitration or administrative or other proceeding pending
or, to the knowledge of such Seller threatened, against or affecting such Seller
before any court or arbitrator or any governmental agency which, if determined
or resolved adversely to such Seller could, individually or when considered
together with all other such matters, adversely affect the right or ability of
such Seller to consummate the transactions contemplated by this Agreement, and
such Seller does not know of any valid basis for any such action, suit
proceeding, investigation, arbitration other proceeding.
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to each Seller that:
3.1. Investment Status. The Investor is an "accredited investor" as such
term is defined in Rule 501 under the Securities Act of 1933, as amended (the
"Securities Act").
The Investor is purchasing the Securities for its own account and not with a
view to, or any present intention of, effecting a distribution of such
securities or any part thereof except pursuant to a registration or an available
exemption under applicable law. All of such Securities are being purchased for
investment only and the Investor does not have any intention to effect any
transaction of a type that would require any disclosure pursuant to Paragraph
(b) of Item 4 of Schedule 13D (assuming that Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), applied to each class of
Securities and that the Investor owned over 5% thereof). The Investor
acknowledges that certain of the Securities have not been registered under the
Securities Act or the securities laws of any state or other jurisdiction and
cannot be disposed of unless they are subsequently registered under the
Securities Act and any applicable state laws or exemption from such registration
is available.
3.2. Authority. The Investor has full right, authority and power under its
charter and bylaws or similar constituent documents to enter into this Agreement
and to carry out the transactions contemplated hereby, and the execution,
delivery and performance by the Investor of this Agreement have been duly
authorized by all necessary action under the Investor's charter and bylaws or
similar constituent documents. This Agreement constitutes, or when executed and
delivered will constitute, a valid and binding obligation of the Investor
enforceable in accordance with its terms.
3.3. Investment Banking; Brokerage Fees. The Investor has not incurred or
become liable for any broker's or finder's fee, banking fees or similar
compensation relating to or in connection with the transactions contemplated
hereby.
3.4. Due Diligence, Etc. The Investor acknowledges that the Sellers own
the Securities to be purchased by the Investor hereunder for investment purposes
only and that, prior to the date hereof, the Investor has had the opportunity to
conduct such investigation as it deems appropriate with respect to each of the
Issuers, including, if applicable, by examination of each Issuer's public
filings under the Securities Act and the Exchange Act. The Investor's decisions
to purchase the Securities are based on Seller's own evaluation of the risks and
merits of the purchase and not any information furnished by or on behalf of any
Seller or other Person; provided, however, that nothing contained herein will
limit any of the express representations or warranties of the Sellers set forth
herein.
IV. CLOSING CONDITIONSClosing Conditions of the Investor. The Investor's
obligation to purchase and pay for the Securities to be purchased by it
hereunder will be subject to the fulfillment to the satisfaction of, or the
waiver by, the Investor, on or before and at the Closing Date of the following
conditions (with respect to such Seller):
(a) Representations and Warranties; Covenants. The representations and
warranties of such Seller contained in this Agreement shall be true and correct
in all material respects. Such Seller shall have performed in all material
respects all the covenants required to be performed by it hereunder prior to the
Closing Date.
(b) Delivery by the Sellers to the Investor. On the Closing Date, each
Seller shall have delivered, or shall have caused to be delivered, to the
Investor the certificates representing such Seller's Securities.
(c) All Proceedings Satisfactory. All corporate and other proceedings
taken prior to or at the Closing in connection with the transactions
contemplated by this Agreement, and all documents and evidences incident
thereto, shall be reasonably satisfactory in form and substance to the Investor
and the sale of the Securities shall be made in compliance with applicable
federal and state laws.
(d) HSR Act. The waiting period (and any extension thereof) applicable to
the purchase of the Securities, if any, under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), shall have been terminated
or have expired or the parties shall have mutually determined that no such
period shall apply to the transactions herein provided.
(e) No Violation or Injunction. The consummation of the transactions
contemplated by this Agreement shall not be in violation of any law or
regulation, and shall not be subject to any injunction, stay or restraining
order.
(f) Consents. The consents, if any, of Issuers required to effectively
transfer the Securities as herein contemplated shall have been obtained.
4.2. Closing Conditions of the Sellers. The Sellers' obligation to sell
the Securities will be subject to the fulfillment to the satisfaction of, or the
waiver by, the Investor, on or before and at the Closing Date of the following
conditions:
(a) Representations and Warranties; Covenants. The representations and
warranties of the Investor contained in this Agreement shall be true and correct
in all material respects. The Investor shall have performed in all material
respects all the covenants required to be performed by it hereunder prior to the
Closing Date.
(b) Delivery by the Investor to the Sellers. At the Closing, the Investor
shall deliver, or shall have caused to be delivered, to the Sellers a wire
transfer of immediately available funds in an amount equal to the Purchase
Price.
(c) No Violation or Injunction. The consummation of the transactions
contemplated by this Agreement shall not be in violation of any law or
regulation, and shall not be subject to any injunction, stay or restraining
order.
(d) Consents. The consents, if any, of Issuers required to effectively
transfer the Securities as herein contemplated shall have been obtained.
4.3. Entire Transaction. The parties intend that the Securities be
purchased together in a single transaction. Accordingly, no party will be
obligated to proceed with the Closing unless the conditions specified herein
have been satisfied as to all of the Securities, taken as a whole.
V. COVENANTS
5.1. Certain Actions. Prior to the Closing, neither the Sellers nor the
Investor will take any action that would result in a breach of any of the
representations and
warranties set forth in Section 2 without the prior written consent of the
Investor or the Sellers, as applicable.
5.2. HSR Filing. If any of the Sellers and the Investor mutually determine
that any filings are required in order for the Investor to be in compliance with
the requirements of the HSR Act with respect to the purchase of such Seller's
Securities in accordance herewith, the Investor shall, on a date that is
mutually determined by the Investor and such Seller, file with the United States
Federal Trade Commission (the "FTC") and the United States Department of Justice
(the "DOJ") the notification and report form required for the purchase of such
Seller's Securities and any supplemental information requested in connection
therewith pursuant to the HSR Act. In light of the recently announced changes to
such filing requirements, no such filing will be made prior to February 1, 2001
unless all parties hereto agree that such filing should be made earlier. Any
such notification and report form and supplemental information shall be in
substantial compliance with the HSR Act. Each of the Investor and such Seller
shall use commercially reasonable efforts to cause the Issuer of such Securities
to cooperate therewith and to file with FTC and the DOJ the notification and
report form required for such purchase and any supplemental information
requested therewith pursuant to the HSR Act. The Investor shall use commercially
reasonable efforts to obtain any clearance required under the HSR Act for such
purchase.
5.3. Further Assurances. The Sellers and the Investor, without further
consideration, will execute and deliver further instruments of transfer and
assignment and take such other action as may reasonably be required to more
effectively transfer and assign to, and vest in, the Investor the Securities to
be sold hereunder (including the Joinder/Administrative Actions) and all rights
incident thereto (including but not limited to any registration rights of the
Investor relating to such Securities), and to fully implement the provisions of
this Agreement.
VI. GENERAL
6.1. Amendments, Waivers and Consents. For the purposes of this Agreement,
no course of dealing between or among any of the parties hereto and no delay on
the part of any party hereto in exercising any rights hereunder or thereunder
will operate as a waiver of the rights hereof and thereof. No provision hereof
may be waived otherwise than by a written instrument signed by the party or
parties so waiving such covenant or other provision. No amendment to this
Agreement may be made without the written consent of Communicade (on behalf of
the Sellers) and the Investor.
6.2. Governing Law. This Agreement will be deemed to be a contract made
under, and will be construed in accordance with, the laws of the State of New
York without giving effect to conflict of laws principles thereof.
6.3. Section Headings and Gender. The descriptive headings in this
Agreement have been inserted for convenience only and will not be deemed to
limit or otherwise affect the construction of any provision thereof or hereof.
6.4. Notices and Demands.Any notice or demand which is required or
provided to be given under this Agreement will be deemed to
have been sufficiently given
and received for all purposes when delivered by hand, telecopy, telex or other
method of facsimile, provided that such notice is received prior to 5:00 p.m. in
the place of receipt and such day is a business day (otherwise such notice will
be deemed received on the next succeeding business day in the place of receipt)
or five business days after being sent by certified or registered mail, postage
and charges prepaid, return receipt requested, or two business days after being
sent by overnight delivery by a reputable overnight courier service providing
receipt of delivery, to the principal executive offices of the Investor or
Communicade (on behalf of all the Sellers).
6.5. Remedies; Severability. It is specifically understood and agreed that
any breach of the provisions of this Agreement by any person subject hereto will
result in irreparable injury to the other parties hereto, that the remedy at law
alone will be an inadequate remedy for such breach, and that, in addition to any
other remedies which they may have, such other parties may enforce their
respective rights by actions for specific performance (to the extent permitted
by law). Whenever possible, each provision of this Agreement will be interpreted
in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement is deemed prohibited or invalid under such
applicable law, such provision will be ineffective to the extent of such
prohibition or invalidity, and such prohibition or invalidity will not
invalidate the remainder of such provision or the other provisions of this
Agreement.
6.6. Integration. This Agreement, including the schedules referred to
herein, constitutes the entire agreement, and supersedes all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
6.7. Assignability; Binding Agreement. Each Seller may assign any or all
of its rights hereunder and delegate any or all of its duties hereunder to any
transferee of such Seller's Securities prior to the Closing Date; provided,
however, that such transferee agrees in writing to be bound by the terms of this
Agreement as if it were a "Seller" hereunder. This Agreement may not otherwise
be assigned by any party hereto without the prior written consent of each other
party hereto. This Agreement will be binding upon and enforceable by, and will
inure to the benefit of, the parties hereto and their respective successors,
heirs, executors, administrators and permitted assigns, and no others. Nothing
in this Agreement is intended to give any Person not named herein the benefit of
any legal or equitable right, remedy or claim under this Agreement, except as
expressly provided herein.
6.8. Termination. This Agreement may be terminated at any time by the
mutual consent of the Sellers and the Investor and in all events will terminate
without further action unless the Closing has occurred on or prior to May 31,
2001. In the event of a termination of this Agreement pursuant to this Section
6.8, all obligations of the parties hereto will terminate.
6.9. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts (including facsimile copies), any one of which need not
contain the
signatures of more than one party, but all such counterparts taken together will
constitute one and the same Agreement.
6.10. Jurisdiction; Consent to Service of Process. Each party hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of the New York state court located in the Borough of
Manhattan, City of New York or the United States District for the Southern
District of New York (as applicable, a "New York Court"), and any appellate
court from any such court, in any suit, action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment
resulting from any such suit, action or proceeding, and each party hereby
irrevocably and unconditionally agrees that all claims in respect of any such
suit, action or proceeding may be heard and determined in the New York Court.
(b) It will be a condition precedent to each party's right to bring any
such suit, action or proceeding that such suit, action or proceeding, in the
first instance, be brought in the New York Court (unless such suit, action or
proceeding is brought solely to obtain discovery or to enforce a judgment), and
if each such court refuses to accept jurisdiction with respect thereto, such
suit, action or proceeding may be brought in any other court with jurisdiction;
provided that the foregoing will not apply to any suit, action or proceeding by
a party seeking indemnification or contribution pursuant to this Agreement or
otherwise in respect of a suit, action or proceeding against such party by a
thirty party if such suit, action or proceeding by such party seeking
indemnification or contribution is brought in the same court as the suit, action
or proceeding against such party.
(c) No party may move to (i) transfer any such suit, action or proceeding
from the New York Court to another jurisdiction, (ii) consolidate any such suit,
action or proceeding brought in the New York Court with a suit, action or
proceeding in another jurisdiction, or (iii) dismiss any such suit, action or
proceeding brought in the New York Court for the purpose of bringing the same in
another jurisdiction.
(d) Each party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, (i) any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in the New York Court,
(ii) the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court, and (iii) the right to object, with
respect to such suit, action or proceeding, that such court does not have
jurisdiction over such party. Each party irrevocably consents to service of
process in any manner permitted by law.
6.11. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF
OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.12. No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties hereto, and no presumption or burden of proof will arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
6.13. Definitions. For purposes of this Agreement, the term:
(a) "affiliate" of a Person means (i) with respect to an individual, any
member of such person's family, (ii) with respect to an entity, any officer,
director, shareholder, partner or investor in such entity or of or in any
affiliate of such entity, and (iii) with respect to an individual or entity, any
Person or entity which directly or indirectly controls, is controlled by, or is
under common control with such Person or entity; and
(b) "Person" or "person" means an individual, corporation, partnership,
limited liability company, association, trust or any unincorporated
organization.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Stock Transfer
Agreement to be duly executed and delivered by their proper and duly authorized
representatives effective as of the date first above written.
INVESTOR:
CHAUCER INVESTMENTS CO, LLC
By: /s/ XXXXXX XXXXXXXX
------------------------------------------
President
SELLERS:
COMMUNICADE INVESTMENT COMPANY OF NEVADA, INC.
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Treasurer
XXXXXXX XXXXX GROUP INC.
By: /s/ XXXXXXX X. XXXXXXXXXXXX
------------------------------------------
Executive Vice President
