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EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as
of this 2nd day of January, 2001, by and between Xxxxxxx X. Xxxxxxx, an
individual resident of the State of Georgia ("Seller"), and the and the
individuals and/or entities listed in Schedule A hereto (individually, a
"Purchaser", collectively, the "Purchasers").
Whereas, Seller is a stockholder of WebCatalyst, Inc., a Georgia
corporation ("Company"), and
Whereas, Seller desires to sell to Purchasers, and Purchasers desire to
purchase from Seller, 3,130,525 shares of the common stock Seller owns in the
Company (the "Shares") and 1,802,757 options to purchase shares of the common
stock of the Company (the "Options");
Now, therefore, in consideration of the covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. PURCHASE OF STOCK. Purchasers hereby agree to
purchase from Seller the number of shares of Purchaser's no par value common
stock and the number of set forth opposite such Purchaser's name on Schedule A
("Shares") for a total purchase price of $7,692.32 ("Purchase Price"), payable
by check to the order of Seller.
SECTION 2. CLOSING. The closing of this transaction ("Closing")
shall occur upon execution and delivery hereof. At the Closing, Seller shall
sell, assign, convey, transfer and deliver, or cause to be delivered, to each
Purchasers or his designee, and each Purchaser shall purchase, for the part of
the part of the Purchase Price set forth opposite his name on Schedule A, the
Shares and Options.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
hereby represents, warrants, covenants and agrees with Purchaser as follows:
3.1 OFFER AND SALE OF THE SHARES. Seller hereby represents and
warrants to Purchaser, and to Company as a third party beneficiary of these
representations and warranties, as follows, with respect to the Shares:
(a) No person served as Seller's selling agent in
connection with such sale; the number and nature of offerees contacted
by Seller in connection with such sale was limited, and all offers were
made by Seller through direct communication with qualified offerees;
and there has not been any general advertising or solicitation or mass
media circulation in such connection;
(b) Seller is neither an "issuer" within the meaning of
Section 2(4) of the Securities Act, nor a "dealer" within the meaning
of Section 2(12) thereof; and
(c) Seller owns, beneficially and of record, all right,
title and interest in and to the Shares, which are fully paid and
non-assessable, and free and clear of any security interests, claims,
liens, pledges, options, encumbrances, charges, agreements, voting
trusts, proxies, restrictions on transfer or other arrangements,
restrictions or limitations of any kind; and the delivery to Purchaser
or his designee of a certificate evidencing the Shares will transfer
good and valid title to the Shares to Purchasers.
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3.3 POWER AND AUTHORITY. Seller has the full right, power,
authority, and capacity to enter into and perform his obligations hereunder, and
this Agreement constitutes a valid and binding obligation of Seller enforceable
in accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other laws of general application
relating to or affecting enforcement of creditors' rights and rules or laws
concerning equitable remedies.
3.4 CONSENTS AND APPROVALS. No consent, approval, or authorization
or designation, declaration, or filing with any governmental authority on the
part of Seller is required in connection with the valid execution, delivery or
performance hereof.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
4.1 ACKNOWLEDGMENT OF STATUS OF SHARES. Purchasers hereby,
severally and not jointly, represent and warrant to Seller, and to Company as a
third party beneficiary of these representations and warranties, as follows,
with respect to the Shares and Options:
(a) The securities being acquired by Purchaser will be
acquired for Purchaser's own account without the participation of any
other person, with the intent of holding the securities for investment
and without the intent of participating, directly or indirectly, in a
distribution of the securities, and not with a view to, or for resale
in connection with, any distribution of the securities, nor is
Purchaser aware of the existence of any distribution of the securities.
Purchaser has no contract, undertaking, agreement or arrangement with
any person to sell, transfer or pledge to such person or anyone else
any of the securities (or any portion thereof or interest therein)
which Purchaser hereby purchases, and Purchaser has no present plan or
intention to enter into any such contract, undertaking, agreement or
arrangement;
(b) Purchaser is not acquiring the securities based upon
any representation, oral or written, by any person with respect to the
future value of, or income from, the securities but rather upon an
independent examination and judgment as to the prospects of the
Company;
(c) The securities were not offered to Purchaser by means
of publicly disseminated advertisements or sales literature, nor is
Purchaser aware of any offers made to other persons by such means;
(d) Purchaser understands and agrees that the securities
have not been registered under the Securities Act or any state
securities acts or laws, in reliance on exemptions contained in such
acts;
(e) The securities cannot be offered for sale, sold or
transferred by Purchaser other than pursuant to: (A) an effective
registration under the Securities Act or in a transaction otherwise in
compliance with the Securities Act; and (B) evidence satisfactory to
the Company of compliance with applicable state securities laws. The
Company shall be entitled to rely upon an opinion of counsel
satisfactory to it with respect to compliance with the above laws.
Purchaser's securities are not transferable, Purchaser shall not,
directly or indirectly, sell, assign, convey, hypothecate or otherwise
transfer Purchaser's securities (or any portion thereof or interest
therein), and the certificate evidencing the securities shall be
legended to reflect the foregoing;
(f) The Company will be under no obligation to register
the securities or to comply with any exemption available for sale of
the securities without registration or filing, and the information or
conditions necessary to permit routine sales of securities of the
Company under Rule 144 of the Securities Act are not now available and
no assurance has been given that it or
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they will become available. The Company is under no obligation to act
in any manner so as to make Rule 144 available with respect to the
securities;
(g) Purchaser has had complete access to and the
opportunity to review and make copies of all material documents related
to the business of the Company, including contracts, financial
statements, tax returns, leases, deeds, and other books and records.
Purchaser has examined such of these documents as Purchaser has wished
and is familiar with the business and affairs of the Company. Purchaser
realizes that the purchase of the securities is a speculative
investment and that any possible profit therefrom is uncertain.
Information with respect to existing business and historical operating
results of the Company and estimates and projections as to future
operations involve significant subjective judgment and analysis, which
may or may not be correct; and the Company cannot, and does not, make
any representation or warranty as to the accuracy of the information
concerning the past or future results of the Company;
(h) Purchaser has had the opportunity to ask questions of
and receive answers from the Company and any person acting on its
behalf and to obtain all material information reasonably available with
respect to the Company and its affairs. Purchaser has received all
information and data with respect to the Company that Purchaser has
requested and that Purchaser has deemed relevant in connection with the
evaluation of the merits and risks of Purchaser's investment in the
Company;
(i) Purchaser has such knowledge and experience in
financial and business matters that Purchaser is capable of evaluating
the merits and risks of the purchase of the securities. Purchaser has
sought such accounting, legal and tax advice as Purchaser considered
necessary to make an informed investment decision. The financial
condition of Purchaser is such that Purchaser has no need for liquidity
with respect to Purchaser's investment in the securities and no need to
dispose of any portion of the securities to satisfy any existing or
contemplated undertaking or indebtedness; and the overall commitment by
Purchaser to investments which are not readily marketable is not
disproportionate to Purchaser's net worth and will not become excessive
as a result of investment in the securities;
(j) Purchaser understands that a purchase of securities
involves certain risks, including the potential loss of all or a part
of Purchaser's investment;
(k) Purchaser expressly acknowledges that:
(i) No federal, state or other governmental
agency has passed upon the adequacy or
accuracy or the information concerning the
Company or made any finding or determination
as to the fairness of the investment, or any
recommendation or endorsement of the
securities as an investment;
(ii) Purchaser is not dependent upon a current
cash return with respect to the Purchaser's
investment in the securities, and the
Purchaser understands that distributions are
not required to be made and that returns on
an investment in the securities may not be
realized for years; and
(iii) The securities are being offered and sold to
prospective purchasers directly, and neither
Seller nor the Company (nor any person
acting on behalf of the Company) has offered
to sell the securities to Purchaser by means
of any form of general solicitation or
advertising, such as media advertising or
public seminars;
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(l) Purchaser is at least 21 years of age; and
(m) Purchaser certifies under penalties of perjury that
(i) Purchaser's taxpayer identification number (social security number
for an individual Purchaser) as set forth on the signature page hereof
is correct; (ii) Purchaser's home address (in the case of an
individual) or office address (in the case of an entity) as set forth
on the signature page hereof is correct; and (iii) Purchaser is not
subject to backup withholding either because Purchaser has not been
notified by the Internal Revenue Service ("IRS") that Purchaser is
subject to backup withholding as a result of a failure to report all
interest or dividends, or because the Purchaser has been notified by
the IRS that the Purchaser is no longer subject to backup withholding.
If Purchaser is subject to backup withholding, Purchaser should cross
through clause (iii) and check the following box: [ ].
4.2 POWER AND AUTHORITY. Each Purchaser has the full right, power,
authority, and capacity to enter into and perform such Purchaser's obligations
hereunder, and this Agreement constitutes a valid and binding obligation of each
Purchaser enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of
general application relating to or affecting enforcement of creditors' rights
and rules or laws concerning equitable remedies.
4.5 CONSENTS AND APPROVALS. No consent, approval, or authorization
or designation, declaration, or filing with any governmental authority on the
part of each Purchaser is required in connection with the valid execution,
delivery or performance hereof.
SECTION 5. GENERAL PROVISIONS.
5.1. GOVERNING LAWS. This Agreement shall be construed,
administered and enforced according to the laws of the State of Georgia without
giving effect to its conflicts of law provisions.
5.2. SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of the heirs, legal representatives, successors, and permitted
assigns of the parties. Neither party may assign this Agreement without the
other's prior written consent; any attempted assignment otherwise shall be void.
5.3. SEVERABILITY. In the event that any one or more of the
provisions hereof or portion thereof shall for any reason be held to be invalid,
illegal or unenforceable in any respect, the same shall not invalidate or
otherwise affect any other provisions hereof, and this Agreement shall be
construed as if the invalid, illegal or unenforceable provision or portion
thereof had never been contained herein.
5.4. INTERPRETATION. Headings used herein are for convenience of
reference only and shall not be considered in construing this Agreement. The
words "hereof," "herein" or the like shall refer to this Agreement as a whole.
"Including" means including, without limitation.
5.5 THIRD PARTY BENEFICIARY. The Company is a third party
beneficiary of Seller's representations and warranties in Section 3.1 and of
Purchaser's representations and warranties in Sections 4.1.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first set forth above.
Seller: Purchasers:
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Xxxxxxx X. Xxxxxxx Xxxx X. Xxxxxxx, Xx.
Shares: 121,232
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Options: 300,159
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Price: $528.24
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Address:
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Taxpayer I.D.#:
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Xxxx Xxxxxxx, III
Shares: 200,000
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Options: N/A
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Price: $376.27
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Address:
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Taxpayer I.D.#:
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Xxxx Xxxxxxx Xxxxxxx
Shares: 200,000
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Options: N/A
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Price: $376.27
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Address:
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Taxpayer I.D.#:
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Xxxxxx X. Xxxxxx
Shares: 579,617
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Options: 334,412
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Price: $1,424.86
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Address:
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Taxpayer I.D.#:
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Xxxxxx X. Xxxxxxx
Shares: 232,207
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Options: N/A
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Price: $433.86
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Address:
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Taxpayer I.D.#:
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Xxxxxxxx X. Xxxxxxx
Shares: N/A
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Options: 133,404
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Price: $133.40
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Address:
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Taxpayer I.D.#:
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Xxxxxx Xxxxxxx
Shares: 232,207
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Options: 133,404
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Price: $570.26
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Address:
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Taxpayer I.D.#:
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Xxx Xxxxxx
Shares: 182,631
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Options: 450,689
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Price: $794.28
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Address:
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Taxpayer I.D.#:
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By:
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Print Name:
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As: Trustee of the Xxx Xxx Xxxxxx 2000
Gen.Skip.Exe. Trust
Shares: 200,000
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Options: N/A
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Price: $376.27
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Address:
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Taxpayer I.D.#:
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By:
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Print Name:
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As: Trustee of the Xxxxxxx Xxx Xxxxxx 2000
Gen.Skip.Exe. Trust
Shares: 200,000
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Options: N/A
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Price: $376.27
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Address:
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Taxpayer I.D.#:
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By:
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Print Name:
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As: Trustee of the Xxx X. Xxxxxx 2000
Gen.Skip.Exe. Trust
Shares: 200,000
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Options: N/A
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Price: $376.27
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Address:
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Taxpayer I.D.#:
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Xxxxx Xxxxxx
Shares: 182,631
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Options: 450,689
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Price: $794.28
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Address:
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Taxpayer I.D.#:
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Xxxxx Xxxxxx, III
Shares: 200,000
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Options: N/A
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Price: $376.27
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Address:
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Taxpayer I.D.#:
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Xxxxx Xxxxxx, IV
Shares: 200,000
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Options: N/A
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Price: $376.27
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Address:
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Taxpayer I.D.#:
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By:
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Print Name:
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As: Trustee of the Xxxxxxxx Xxxx Silver
Gen.Skip.Exe. Trust
Shares: 200,000
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Options: N/A
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Price: $376.27
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Address:
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Taxpayer I.D.#:
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