EXHIBIT 10.18
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT is made and entered into as of the 16th
day of February, 1999 by and between Xxxxxx Xxxxx (the "Seller") and Xxxxxx.xxx
Corporation, a Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the owner of 1,000 shares of common stock, no par
value, of Xxxxxxx.xxx Inc., an Illinois corporation (the "Company"), which
shares constitute all of the issued and outstanding shares of capital stock of
the Company (the "Company Stock"); and
WHEREAS, Seller desires to sell 650 shares (the "Purchased Shares") of
the Company Stock to Purchaser and Purchaser desires to purchase the Purchased
Shares from Seller, all upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Sale of Purchased Shares. On the Closing Date (as defined below),
Seller agrees to sell, transfer and assign to Purchaser and Purchaser agrees to
purchase from Seller the Purchased Shares.
2. Purchase Price. In consideration of and in exchange for the
Purchased Shares, on the Closing Date, the Purchaser shall issue to Seller
22,500 shares of the common stock, $.01 par value, of Purchaser (the "Purchase
Price"). Such shares shall be issued without regard to any subsequent stock
split or stock dividend effected by the Purchaser on its common stock.
3. Payment and Delivery. On the Closing Date, Purchaser shall deliver
to Seller the Purchase Price and Seller shall deliver to Purchaser a stock
certificate and an assignment separate from certificate endorsed to Purchaser
representing the Purchased Shares.
4. Closing Date. The closing of the purchase and sale of the Purchased
Shares shall occur on immediately subsequent to the closing of the public
offering by the Purchaser, as set forth in Paragraph 8(e) hereof (the "Closing
Date"), at the offices of Xxxxxxx Xxxxxx & Xxxx Chartered, 000 X. Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx, or at such other place as the Seller and
Purchaser shall mutually agree upon.
5 Representations and Warranties of Seller. Seller represents and
warrants to Purchaser that as of the date hereof and the Closing Date (i) Seller
has full right, power and authority to sell the Purchased Shares to Purchaser,
(ii) the Purchased Shares are free of all liens, claims, restrictions and
encumbrances, (iii) the Purchased Shares have been validly issued, are fully
paid and are non-assessable, (iv) the operations of the Company have been and
are being conducted in compliance with all laws, ordinances, codes, rules, and
regulations applicable to the Company and its operations and properties, (v) the
Company retains in good standing all permits, consents, licenses and other
authorizations of governmental authorities which are necessary for the lawful
operation of the Company's business and (vi) the Company owns all right, title
and interest in and to all intellectual
property used by the Company in the operation of its business, including,
without limitation, all rights to the name "Xxxxxxx.xxx", free and clear of all
liens and encumbrances, and such intellectual property of the Company is not
subject to any license, royalty or other agreement.
6. Acknowledgment of Seller. Seller represents and acknowledges that
Purchaser has supplied Seller with all financial records, documents and other
such information as requested by Seller with respect to the operations of the
Purchaser as Seller has requested. Seller is fully familiar with the business,
financial condition and prospects of Purchaser and has made an independent
evaluation that the Purchase Price is fair and equitable. Seller has had the
opportunity to discuss this Agreement and the transactions set forth herein with
such advisors as Seller has deemed appropriate.
7. Indemnification. Seller hereby agrees to indemnify and hold harmless
Purchaser, its affiliates, shareholders, officers, directors, employees,
successors and assigns against all claims, losses, demands, liabilities, suits,
judgments, damages, costs and expenses, including reasonable attorneys' fees,
which result from, arise out of or based upon any act, event, occurrence,
omission or other circumstance involving Seller or the Purchased Shares prior to
the Closing Date, including, without limitation, the breach of any covenant,
representation or warranty of Seller contained herein or any document delivered
pursuant hereto.
8. Conditions Precedent to Obligations of Purchaser. The obligations of
Purchaser under this Agreement are subject to the satisfaction or waiver by
Purchaser of the following conditions precedent on or before the Closing Date:
(a) the representations and warranties of Seller contained herein shall have
been accurate, true and correct on and as of the date of this Agreement and on
the Closing Date; (b) Seller shall have performed and complied with all of his
covenants, obligations and agreements contained in this Agreement to be
performed and complied with by him on or prior to the Closing Date; (c)
Purchaser shall not have discovered any facts during its investigation or review
of the Company which would negatively impact upon the operations, assets,
liabilities, results of operations, cash flows, condition (financial or
otherwise), prospects of, or other matters relating to, the Company; (d) no
action or proceeding by any governmental authority or other person or entity
shall have been instituted or threatened which (i) might have a material adverse
effect on the business or property of the Company or (ii) could enjoin, restrain
or prohibit, or could result in substantial damages in respect of, any provision
of this Agreement or the consummation of the transactions contemplated hereby or
any integration of any operations of the Company with those of Purchaser; and
(e) Purchaser shall have successfully completed an initial public offering of
its common stock and received the proceeds resulting from such offering.
9. Further Assurances. Purchaser and Seller shall execute and deliver
all such other instruments and take all such other actions as each other may
reasonably request from time to time in order to effectuate the purposes of this
Agreement.
.
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10. Miscellaneous
10.1 Entire Agreement. This Agreement, and all documents to be
delivered pursuant hereto, constitutes the entire agreement of the parties with
respect to the transactions contemplated hereby, and there are no other prior or
contemporaneous written or oral agreements, undertakings, provisions,
warranties, letters of intent or covenants not contained or expressly
incorporated herein. This Agreement may not be altered, modified, amended or
terminated except in writing signed by all of the parties.
10.2 Survival of Covenants, Warranties and Representations. All
representations, warranties and acknowledgments shall survive the closing of the
transactions contemplated hereby.
10.3 Binding Agreement. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns.
10.4 Prior Negotiations. All prior negotiations and agreements among
the parties hereto are superseded by this Agreement and there are no
representations, warranties, understandings, covenants or agreements other than
those expressly set forth herein, or contained in any instruments contemplated
by this Agreement, except as modified in writing concurrently herewith or
subsequent hereto.
10.5 Governing Law; Venue. The validity, construction and
interpretation of this Agreement shall be governed by the laws of the State of
Illinois. The parties hereto irrevocably agree that all actions or proceedings
in any way, manner or respect, arising out of or from or related to this
Agreement shall be litigated only in courts having situs in Xxxx County,
Chicago, Illinois. Each party hereby consents and submits to personal
jurisdiction in the State of Illinois and waives any right such party may have
to transfer the venue of any such action or proceeding.
10.6 Litigation Costs and Expenses. In the event of institution of
legal proceedings in connection with this Agreement or any transactions
contemplated herein, the party prevailing therein shall be entitled to recover
the reasonable costs and expenses incurred in connection therewith, including
without limitation, reasonable attorneys' and paralegals' fees.
10.7 Severability. The various terms, provisions and covenants herein
contained shall be deemed to be separable and severable and the invalidity and
unenforceability of any of them shall in no manner affect or impair the validity
or enforceability of the remainder thereof.
10.8 Assignment. Purchaser and Seller shall not assign their rights
hereunder without the prior written consent of the other party hereto.
10.9 Waiver. The waiver by any party hereto of any breach, default,
misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, shall not be deemed to extend to any prior or subsequent
breach, default, misrepresentation or breach of warranty or covenant hereunder
and shall not affect in any way any rights arising by virtue of any such prior
or subsequent occurrence.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
on the date first above written.
SELLER:
_________________________________
Xxxxxx Xxxxx
PURCHASER:
Xxxxxx.xxx Corporation
By:______________________________
Xxxxxx Xxxxxxxxx, President
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