EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of March 10, 2005 (this "Agreement"),
by and among the Castle and Xxxxxx Holdings, Inc., a Delaware Corporation (the
"Company"), the persons listed on Schedule A to this Agreement (each a "Seller"
and collectively, the "Sellers") and the persons listed on Schedule B to this
Agreement (each a "Purchaser" and collectively, the "Purchasers"). The Company,
each Seller and each Purchaser are referred to herein as a "Party" and
collectively, as the "Parties".
BACKGROUND
The Sellers are collectively the owners of 2,384,584 shares (the "Seller
Shares") of the common stock of the Company, each holding the number of shares
set forth opposite his name on Schedule A. The Seller Shares represent
approximately 62.6% of the issued and outstanding capital stock of the Company
as of the date hereof calculated on a fully-diluted basis. In addition, one of
the Sellers, Internet Finance International Corporation, is the holder of a note
in the face amount of $52,920 payable by the Company which is convertible into
shares of common stock of the Company (the "Note"). The Purchasers desire to
purchase the Note and all of the Seller Shares by purchasing the number of
Seller Shares set forth opposite the Sellers' names on Schedule B.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, the Company, the Sellers and the Purchasers
hereby agree as follows:
1. Purchase and Sale.
Each Seller shall sell, transfer, convey and deliver unto the Purchasers
the face amount of the Note and the number of Seller Shares set forth opposite
each such Seller's name on Schedule A to this Agreement, and each Purchaser
shall acquire and purchase from the Sellers the face value of the Note and
number of Seller Shares set forth opposite each such Purchaser's name on
Schedule B to this Agreement.
2. Purchase Price.
(a) General. The purchase price (the "Purchase Price") for the
Seller Shares and Note, in the aggregate, is Four Hundred Thousand Dollars
($400,000) payable as specified in this Section 2 subject to the other
terms and conditions of this Agreement. Purchasers shall also pay Sellers'
legal fees of Two Thousand Five Hundred Dollars ($2,500) (the "Legal
Fees").
(b) Cash Deposit. Concurrent with the execution of this Agreement,
Purchasers shall deliver a non-refundable (subject to the provisions of
par. 8, below) cash deposit to the Seller Representative in the amount of
Twenty-Five Thousand Dollars ($25,000) which shall be fully credited
against the Purchase Price at the Closing (the "Cash Deposit").
(c) Payment at Closing. At the Closing, the Purchasers shall pay to
the Sellers Three Hundred Seventy Seven Thousand Five Hundred Dollars
($377,500), representing the balance of the Purchase Price and the Legal
Fees, which together with the Cash Deposit, shall be payable in the
amounts set forth in Schedule A and allocated as set forth in Schedule B.
(d) Adjustment for Outstanding Liabilities. In the event that the
Company shall have any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to
become due), including any liability for taxes ("Liability"), as of the
Closing, the portion of the Purchase Price payable at the Closing shall be
reduced on a dollar for dollar basis by the amount of such Liability.
3. The Closing.
(a) General. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place by exchange of documents among
the Parties by fax or courier, as appropriate, following the satisfaction
or waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions
with respect to actions the respective Parties will take at the Closing
itself) not later than March 10, 2005 or such other date as the Purchasers
and the Sellers may mutually determine (the "Closing Date").
(b) Delivery of Certificates in Escrow. Concurrent with or
immediately following the execution of this Agreement, each Seller shall
deliver certificates evidencing all of the Seller Shares held by such
Seller and the ownership of the Note (collectively, the "Certificates") to
the Law Offices of Xxxxxx X. X. Xxxxxx ("Law Firm") on the date hereof.
The Law Firm shall hold such certificates in escrow pursuant to the Escrow
Agreement (the "Escrow Agreement") in the form of Exhibit A being entered
into on the date hereof by the Law Firm, the Seller Representative (as
defined below) and the Purchaser Representative. Pursuant to the Escrow
Agreement, the Certificates and the Note will be held in escrow until the
Closing at which time the Law Firm shall deliver the Certificates and the
Note to the Purchasers against delivery to the Sellers of the portion of
the Purchase Price and Legal Fees that are due at Closing.
(c) Deliveries at the Closing. At the Closing: (i) the Sellers shall
deliver to the Purchasers the various certificates, instruments, and
documents referred to in Section 12(a) below, (ii) the Purchasers shall
deliver to the Sellers the various certificates, instruments, and
documents referred to in Section 12(b) below, (iii) the Sellers shall
deliver to the Purchasers the Certificates, endorsed in blank or
accompanied by duly executed assignment documents and including a
Medallion Guarantee, including delivery by releasing the Certificates from
escrow and the Note, and (iv) the Purchasers shall deliver to the Sellers
the Purchase Price and Legal Fees.
2
4. Appointment of Seller and Purchaser Representatives.
(a) Appointment of Seller Representative. The Sellers hereby
irrevocably constitute and appoint, effective as of the date hereof,
Xxxxxxxxxxx Xxxx (together with his permitted successors, the "Seller
Representative"), as their true and lawful agent and attorney-in-fact to
enter into any agreement in connection with the transactions contemplated
by this Agreement and any transactions contemplated by the Escrow
Agreement, to perform on behalf of the Sellers any obligations or
undertakings thereunder, to exercise all or any of the powers, authority
and discretion conferred on him under any such agreement, to waive any
terms and conditions of any such agreement, to give and receive notices on
their behalf and to be their exclusive representative with respect to any
matter, suit, claim, action or proceeding arising with respect to any
transaction contemplated by any such agreement and the Seller
Representative agrees to act as, and to undertake the duties and
responsibilities of, such agent and attorney-in-fact. This power of
attorney is coupled with an interest and irrevocable. The Seller
Representative shall not be liable for any action taken or not taken by
him in connection with his obligations under this Agreement as long as
such actions are taken or omitted in good faith and in the absence of
willful misconduct or gross negligence. If the Seller Representative shall
be unable or unwilling to serve in such capacity, his successor shall be
named by those persons holding more than fifty percent (50%) in interest
of the Seller Shares.
(b) Appointment of the Purchaser Representative. The Purchasers
hereby irrevocably constitute and appoint, effective as of the date
hereof, Xxxxx X. Xxxxxxxxx (together with his permitted successors, the
"Purchaser Representative"), as their true and lawful agent and
attorney-in-fact to enter into any agreement in connection with the
transactions contemplated by this Agreement and any transactions
contemplated by the Escrow Agreement, to perform on behalf of the Sellers
any obligations or undertakings thereunder, to exercise all or any of the
powers, authority and discretion conferred on him under any such
agreement, to waive any terms and conditions of any such agreement (other
than the amount of the Purchase Price), to give and receive notices on
their behalf and to be their exclusive representative with respect to any
matter, suit, claim, action or proceeding arising with respect to any
transaction contemplated by any such agreement and the Purchaser
Representative agrees to act as, and to undertake the duties and
responsibilities of, such agent and attorney-in-fact. This power of
attorney is coupled with an interest and irrevocable. The Purchaser
Representative shall not be liable for any action taken or not taken by
him in connection with his obligations under this Agreement as long as
such actions are taken or omitted in good faith and in the absence of
willful misconduct or gross negligence. If the Purchaser Representative
shall be unable or unwilling to serve in such capacity, his successor
shall be named by those persons agreeing to acquire more than fifty
percent (50%) in interest of the Seller Shares pursuant to this Agreement.
3
5. Representations and Warranties of the Sellers.
Each Seller represents and warrants to the Purchasers that the statements
contained in this Section 5 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Section 5):
(a) Each Seller has the power and authority to execute, deliver and
perform such Seller's obligations under this Agreement and to sell,
assign, transfer and deliver to the Purchasers the Seller Shares and Note
as contemplated hereby. No permit, consent, approval or authorization of,
or declaration, filing or registration with any governmental or regulatory
authority or consent of any third party is required in connection with the
execution and delivery any Seller of this Agreement and the consummation
of the transactions contemplated hereby.
(b) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby or compliance with
the terms and conditions hereof by the Sellers will violate or result in a
breach of any term or provision of any agreement to which any Seller is
bound or is a party, or be in conflict with or constitute a default under,
or cause the acceleration of the maturity of any obligation of any Seller
under any existing agreement or violate any order, writ, injunction,
decree, statute, rule or regulation applicable to any Seller or any
properties or assets of any Seller.
(c) This Agreement has been duly and validly executed by each
Seller, and constitutes the valid and binding obligation of each Seller,
enforceable against each Seller in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other laws
affecting creditors' rights generally or by limitations, on the
availability of equitable remedies. The Seller Representative has been
duly appointed herein by the Sellers and has complete authority to act on
behalf of the Sellers in matters relating to this Agreement and the
transactions contemplated hereby
(d) The Seller Shares and Note are owned beneficially and of record
by each Seller in the amounts specified on Schedule A and are validly
issued and outstanding, fully paid for and non-assessable with no personal
liability attaching to the ownership thereof. Each Seller owns the number
of Seller Shares and face amount of the Note set forth opposite such
Seller's name on Schedule A free and clear of all liens, charges, security
interests, encumbrances, claims of others, options, warrants, purchase
rights, contracts, commitments, equities or other claims or demands of any
kind (collectively, "Liens"), and upon delivery of the Seller Shares and
the Note to the Purchasers, the Purchasers will acquire good, valid and
marketable title thereto free and clear of all Liens. No Seller is a party
to any option, warrant, purchase right, or other contract or commitment
that could require the Seller to sell, transfer, or otherwise dispose of
any capital stock of the Company (other than pursuant to this Agreement).
No Seller is a party to any voting trust, proxy, or other agreement or
understanding with respect to the voting of any capital stock of the
Company.
4
(e) Of the Seller Shares, 221,500 of such Seller Shares were
included in a registration statement which has been previously filed by
the Company with the U.S. Securities and Exchange Commission and declared
effective by the Commission.
6. Representations and Warranties of the Company.
(a) The Company is a corporation in good standing duly incorporated
in the State of Delaware. The Company is duly authorized to conduct
business and is in good standing under the laws of each jurisdiction where
such qualification is required. The Company has full corporate power and
authority and all licenses, permits, and authorizations necessary to carry
on its business. The Company has no subsidiaries and does not control any
other subsidiaries, directly or indirectly, or have any direct or indirect
equity participation in any other entity.
(b) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby or compliance with
the terms and conditions hereof by the Company will violate or result in a
breach of any term or provision of any agreement to which the Company is
bound or is a party, or the Company's Certificate of Incorporation or
By-Laws, or be in conflict with or constitute a default under, or cause
the acceleration of the maturity of any obligation of the Company under
any existing agreement or violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Company or any of its
properties or assets.
(c) This Agreement has been duly and validly executed by the Company
and constitutes the valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other laws
affecting creditors' rights generally or by limitations, on the
availability of equitable remedies.
(d) The Company's authorized capital stock, as of the date of this
Agreement and as of the Closing, consists of 100,000,000 shares of Common
Stock, $0.0001 par value per share, of which 3,809,570 shares are issued
and outstanding. The Company has not reserved any shares of its Common
Stock for issuance upon the exercise of options, warrants or any other
securities that are exercisable or exchangeable for, or convertible into,
Common Stock. All of the issued and outstanding shares of Common Stock are
validly issued, fully paid and non-assessable and have been issued in
compliance with applicable laws, including, without limitation, applicable
federal and state securities laws. There are no outstanding options,
warrants or other rights of any kind to acquire any additional shares of
capital stock of the Company or securities exercisable or exchangeable
for, or convertible into, capital stock of the Company, nor is the Company
committed to issue any such option, warrant, right or security. There are
no agreements relating to the voting, purchase or sale of capital stock
(i) between or among the Company and any of its stockholders, or (ii) to
the best knowledge of the Company between or among any of the Company's
stockholders. The Company is not a party to any agreement granting any
stockholder of the Company the right to cause the Company to register
shares of the capital stock of the Company held by such stockholder under
the Securities Act. The stockholder list provided to the Purchasers is a
current shareholder list generated by its transfer agent, and such list
accurately reflects all of the issued and outstanding shares of the
Company's Common Stock.
5
(e) The Company does not have any restrictions in place relative to
its ability to implement any reverse split of its common stock, nor are
there any restrictions on the Company's ability to enter into a merger
transaction with any other entity.
(f) As of the date hereof the Company has total Liabilities of
approximately $65,000, $52,920 of which will be purchased by Purchasers as
part of the Note, and the balance of which Liabilities will be paid off at
or prior to the Closing and shall in no event become the Liability of the
Purchasers or remain the Liabilities of the Company following the Closing.
On or before Closing, the Company shall deliver to Purchaser a Schedule of
the Company's outstanding liabilities, excluding the Note (the "Closing
Liabilities"). At Closing, an amount equal to the Closing Liabilities
shall be delivered to Sellers' attorney, Xxxxxx X. Xxxxxxxx, Esq., who
will then pay off the Closing Liabilities.
(g) There is no legal, administrative, investigatory, regulatory or
similar action, suit, claim or proceeding which is pending or, to any
Seller's knowledge, threatened against the Company.
(h) During the period from the date of filing of its Form SB-2
through September 30, 2004, the Company has filed or furnished (i) all
reports, schedules, forms, statements, prospectuses and other documents
required to be filed with, or furnished to, the Securities and Exchange
Commission (the "SEC") by the Company (all such --- documents, as amended
or supplemented, are referred to collectively as, the "Company SEC
Documents") and (ii) all certifications and statements required by (x)
Rule 13a-14 or 15d-14 under the Exchange Act, or (y) 18 U.S.C. ss.1350
(Section 906 of the Xxxxxxxx-Xxxxx act of 2002) with respect to any
applicable Company SEC Document (collectively, the "SOX Certifications").
The Company has made available to the Purchasers all ------------------
SOX Certifications and comment letters received by the Company from the
staff of the SEC and all responses to such comment letters by or on behalf
of the Company. Through September 30, 2004, the Company complied in all
respects with its SEC filing obligations under the Exchange Act and the
Securities Act. Each of the audited financial statements and related
schedules and notes thereto and unaudited interim financial statements of
the Company (collectively, the "Company Financial Statements") contained
in the Company SEC Documents (or incorporated therein by reference) were
prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis ("GAAP") (except in the case of
interim ---- unaudited financial statements) except as noted therein, and
fairly present in all respects the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations, cash flows and changes in
stockholders' equity for the periods then ended, subject (in the case of
interim unaudited financial statements) to normal year-end audit
adjustments (the effect of which will not, individually or in the
aggregate, be adverse) and, such financial statements complied as to form
as of their respective dates in all respects with applicable rules and
regulations of the SEC. The financial statements referred to herein
reflect the consistent application of such accounting principles
throughout the periods involved, except as disclosed in the notes to such
financial statements. No financial statements of any Person not already
included in such financial statements are required by GAAP to be included
in the consolidated financial statements of the Company. As of their
respective dates, each the Company SEC Document was prepared in accordance
with and complied with the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations thereunder, and
the Company SEC Documents (including all financial statements included
therein and all exhibits and schedules thereto and all documents
incorporated by reference therein) did not, as of the date of
effectiveness in the case of a registration statement, the date of mailing
in the case of a proxy or information statement and the date of filing in
the case of other the Company SEC Documents, contain any untrue statement
of a fact or omit to state a fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Neither the
Company nor, to the Company's knowledge, any of its officers has received
notice from the SEC or any other governmental authority questioning or
challenging the accuracy, completeness, content, form or manner of filing
or furnishing of the SOX Certifications.
6
(i) The Company has properly and timely filed all federal, state and
local tax returns and has paid all taxes, assessments and penalties due
and payable. The Company's tax returns for 2004 have not been filed,
however they will be filed prior to the Closing. All such tax returns were
complete and correct in all respects as filed, and no claims have been
assessed with respect to such returns. There are no present, pending, or
threatened audit, investigations, assessments or disputes as to taxes of
any nature payable by the Company or any of its subsidiaries, nor any tax
liens whether existing or inchoate on any of the assets of the Company or
any of its subsidiaries, except for current year taxes not presently due
and payable. No IRS or foreign, state, county or local tax audit is
currently in progress. Neither the Company nor any of its subsidiaries has
waived the expiration of the statute of limitations with respect to any
taxes. There are no outstanding requests by the Company or any of its
Subsidiaries for any extension of time within which to file any tax return
or to pay taxes shown to be due on any tax return.
(j) The Company does not have any ongoing operations and does not
employ any employees and does not maintain any employee benefit or stock
option plans.
7
(k) Except as set forth in Schedule 6(k), since September 30, 2004,
there has not been any event or condition of any character which has
adversely affected, or may be expected to adversely affect, the Company's
business or prospects, including, but not limited to any adverse change in
the condition, assets, liabilities (existing or contingent) or business of
the Company from that shown in the financial statements of the Company
included in its quarterly report on Form 10-QSB filed for the quarter
ended September 30, 2004.
(l) The Company has complied in all material respects with all
applicable laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of all
governmental authorities, and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has been filed
or commenced against the Company alleging any failure so to comply. To the
knowledge of any Seller, neither the Company, nor any officer, director,
employee, consultant or agent of the Company has made, directly or
indirectly, any payment or promise to pay, or gift or promise to give or
authorized such a promise or gift, of any money or anything of value,
directly or indirectly, to any governmental official, customer or supplier
for the purpose of influencing any official act or decision of such
official, customer or supplier or inducing him, her or it to use his, her
or its influence to affect any act or decision of a governmental authority
or customer, under circumstances which could subject the Company or any
officers, directors, employees or consultants of the Company to
administrative or criminal penalties or sanctions.
(m) No representation or warranty by the Company in this Agreement,
nor in any certificate, schedule or exhibit delivered or to be delivered
pursuant to this Agreement contains or will contain any untrue statement
of material fact, or omits or will omit to state a material fact necessary
to make the statements herein or therein, in light of the circumstances
under which they were made, not misleading.
7. Representations and Warranties of the Purchasers.
Each Purchaser represents and warrants to the Sellers as follows:
(a) Each Purchaser has full power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby. This
Agreement constitutes a valid and binding obligation of each Purchaser
enforceable in accordance with its terms, except as (i) the enforceability
hereof may be limited by bankruptcy, insolvency or similar laws affecting
the enforceability of creditor's rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles
of general applicability.
(b) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby, nor compliance by
any Purchaser with any of the provisions hereof will: violate, or conflict
with, or result in a breach of any provision of, or constitute a default
(or an event which, with notice or lapse of time or both, would constitute
a default) under, or result in the termination of, or accelerate the
performance required by, or result in the creation of any Lien upon any of
the properties or assets of Purchaser under any of the terms, conditions
or provisions of any material note, bond, indenture, mortgage, deed or
trust, license, lease, agreement or other instrument or obligation to
which he is a party or by which he or any of his properties or assets may
be bound or affected, except for such violations, conflicts, breaches or
defaults as do not have, in the aggregate, any material adverse effect; or
violate any material order, writ, injunction, decree, statute, rule or
regulation applicable to Purchaser or any of its properties or assets,
except for such violations which do not have, in the aggregate, any
material adverse effect.
8
(c) Each Purchaser is acquiring the Seller Shares and Note for its
own account for investment and not for the account of any other person and
not with a view to or for distribution, assignment or resale in connection
with any distribution within the meaning of the Securities Act. Each
Purchaser agrees not to sell or otherwise transfer the Seller Shares or
any shares issued upon conversion of the Note unless they are registered
under the Securities Act and any applicable state securities laws, or an
exemption or exemptions from such registration are available. Each
Purchaser has knowledge and experience in financial and business matters
such that it is capable of evaluating the merits and risks of acquiring
the Seller Shares and Note.
(d) No permit, consent, approval or authorization of, or
declaration, filing or registration with any governmental or regulatory
authority or the consent of any third party is required in connection with
the execution and delivery by Purchaser of this Agreement and the
consummation of the transactions contemplated hereby.
8. Due Diligence.
Prior to the Closing, the Purchasers will conduct a due diligence
investigation relative to the Company and the representations, warranties and
covenants of the Sellers and the Company. Sellers and the Company agree to
provide the Purchasers and its agents and representatives with any and all due
diligence documents reasonably requested, including but not limited to financial
statements and evidence of the Company's good standing in all jurisdictions
where it is authorized to do business. Purchasers shall have the right, in their
sole discretion, to terminate this Purchase Agreement at any time prior to the
Closing, without any liability therefor, should it determine that any
representation, warranty or covenant of any Seller or the Company is untrue or
misleading in any material respect or cannot be verified through the due
diligence process. Purchasers shall also have the right, exercisable within five
business days of the effective date of this Agreement, in their sole discretion,
to terminate this Agreement without any liability thererfor, should Purchasers
determine, in their sole discretion that the Company is unsuitable for use as a
vehicle for a reverse acquisition transaction. In the event of any termination
based on this section 8, the Purchasers shall be entitled to the return of the
Cash Deposit
9
9. Brokers and Finders.
The Purchasers shall assume full responsibility for the payment of any
finders' fees to Xxxx Xxxx and the Sellers shall assume full responsibility for
the payment of any finders' fees to Xxxx Xxxxxxxx. There are no other finders
and no parties shall be responsible for the payment of any finders' fees other
than as specifically set forth herein. Other than the foregoing, neither any
Seller nor the Company, nor any of their respective directors, officers or
agents on their behalf, have incurred any obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents' commissions or financial
advisory services or other similar payment in connection with this Agreement.
10. Pre-Closing Covenants.
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing.
(a) General. Each of the Parties will use his or its best efforts to
take all action and to do all things necessary, proper, or advisable in
order to consummate and make effective the transactions contemplated by
this Agreement (including satisfaction, but not waiver, of the closing
conditions set forth in Section 12 below).
(b) Form 8-K Filing; Notices and Consents. Concurrent with the
execution of this Agreement, the Company shall cause a Form 8-K to be
filed with the U.S. Securities and Exchange Commission with respect to its
having entered into a "material contract" and a "change of control". The
Seller Representative will cause the Company to give any notices to third
parties, and will cause the Company to use its best efforts to obtain any
third party consents, that the Purchaser Representative may reasonably
request. Each of the Parties will (and the Sellers will cause the Company
to) give any notices to, make any filings with, and use its best efforts
to obtain any authorizations, consents, and approvals of governmental
authorities necessary in order to consummate the transactions contemplated
hereby. The Company nor any Seller is aware of any third party consent nor
other filing or notice to third parties that is necessary in respect of
this Agreement.
(c) Operation of Business. The Seller will not cause or permit the
Company to engage in any practice, take any action, or enter into any
transaction except for ministerial matters necessary to maintain the
Company in good standing and to arrange for the filing of all necessary
reports required under the Securities Exchange Act. Without limiting the
generality of the foregoing, the Sellers will not cause or permit the
Company to (i) declare, set aside, or pay any dividend or make any
distribution with respect to its capital stock or redeem, purchase, or
otherwise acquire any of its capital stock except as otherwise expressly
specified herein, (ii) issue, sell, or otherwise dispose of any of its
capital stock, or grant any options, warrants, preemptive or other rights
to purchase or obtain (including upon conversion, exchange, or exercise)
any of its capital stock, (iii) make any capital expenditures, loans, or
incur any other obligations or liabilities, (iv) enter into any agreements
involving expenditures individually, or in the aggregate, of more than
$1,000 (other than agreements for professional services which will be paid
in full at or prior to the Closing), (v) enter into any agreement or incur
any other commitment or (vi) otherwise engage in any practice, take any
action, or enter into any transaction that is inconsistent with the
transactions contemplated hereby.
10
(d) Preservation of Business. The Sellers will cause the Company to
keep its business and properties substantially intact.
(e) Notice of Developments. The Sellers will give prompt written
notice to the Purchaser Representative of any material adverse development
causing a breach of any of the representations and warranties in Section 5
above. No disclosure by any Party pursuant to this Section, however, shall
be deemed to amend or supplement the disclosures contained in the
Schedules hereto or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
(f) Exclusivity. Except to the extent the directors of the Company
are required by their fiduciary duty under Delaware law, none of the
Sellers or the Company shall, directly or indirectly, (i) solicit,
initiate, or encourage the submission of any proposal or offer from any
person relating to the acquisition of the Seller Shares, the Note or any
capital stock or other voting securities, or any assets (including any
acquisition structured as a merger, consolidation, or share exchange) of
the Company or (ii) participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or participate
in, or facilitate in any other manner any effort or attempt by any person
to do or seek any of the foregoing. None of the Sellers will vote the
shares of the Company's Common Stock held by them in favor of any such
acquisition structured as a merger, consolidation, or share exchange. The
Sellers shall notify the Purchaser immediately if any person makes any
proposal, offer, inquiry, or contact with respect to any of the foregoing.
11. Post-Closing Covenants. The Parties agree as follows with respect to the
period following the Closing.
(a) General. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this
Agreement, each of the Parties will take such further action (including
the execution and delivery of such further instruments and documents) as
any other Party may reasonably request, all at the sole cost and expense
of the requesting Party (unless the requesting Party is entitled to
indemnification therefor under Section 13 below). The Sellers acknowledge
and agree that from and after the Closing the Purchasers will be entitled
to possession of all documents, books, records (including tax records),
agreements, and financial data of any sort relating to the Company.
(b) Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection
with (i) any transaction contemplated under this Agreement or (ii) any
fact, situation, circumstance, status, condition, activity, practice,
plan, occurrence, event, incident, action, failure to act, or transaction
on or prior to the Closing Date involving the Company, the other Party
will cooperate with him or it and his or its counsel in the contest or
defense, make available their personnel, and provide such testimony and
access to their books and records as shall be necessary in connection with
the contest or defense, all at the sole cost and expense of the contesting
or defending Party (unless the contesting or defending Party is entitled
to indemnification therefor under Section 13 below).
11
(c) Immediately following the Closing, the Company shall file a
Post-Effective Amendment to its SB-2 Registration Statement (the
"Registration Statement") deregistering all of the shares covered in the
Registration Statement that remain unsold as of the Closing. The Company
shall thereafter cause its attorneys to provide any opinion letters
reasonably required and appropriate for any of the selling shareholders
listed in the Registration Statement to sell their shares pursuant to Rule
144(d) or 144(k) (as applicable) under the Securities Act of 1933, as
amended.
12. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Purchaser.
The obligation of the Purchasers to consummate the transactions to be
performed by the Purchasers in connection with the Closing are subject to
satisfaction of the following conditions:
(i) the representations and warranties set forth in Sections 5
and 6 above shall be true and correct in all material respects at
and as of the Closing Date;
(ii) the Sellers shall have performed and complied with all of
their covenants hereunder in all material respects through the
Closing;
(iii) the Company shall have procured all of the third party
consents required in order to effect the Closing;
(iv) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement, (B) cause
any of the transactions contemplated by this Agreement to be
rescinded following consummation, (C) affect adversely the right of
the Purchasers to own the Seller Shares and to control the Company,
or (D) affect adversely the right of the Company to own its assets
and to operate its businesses (and no such injunction, judgment,
order, decree, ruling, or charge shall be in effect);
(v) the Sellers shall have delivered to the Purchasers a
certificate to the effect that (A) each of the conditions specified
above in Section 12(a)(i)-(iv) is satisfied in all respects, and (B)
as of the Closing, the Company has no Liabilities;
12
(vi) the Purchasers shall have received the resignations of
each director and officer of the Company effective as of the
Closing. The designees specified by the Purchasers shall have been
appointed as officers of the Company and any designees of the
Purchasers who may be lawfully appointed to the Board of Directors
of the Company as of the Company shall have been appointed;
(vii) there shall not have been any occurrence, event,
incident, action, failure to act, or transaction since September 30,
2004 which has had or is reasonably likely to cause a material
adverse effect on the business, assets, properties, financial
condition, results of operations or prospects of the Company;
(viii) the Purchasers shall have completed their business,
accounting and legal due diligence review of the Company, and the
results thereof shall be satisfactory to the Purchasers;
(ix) the Purchasers shall have conducted UCC, judgment lien
and tax lien searches with respect to the Company, the results of
which indicate no liens on the assets of the Company;
(x) the Company shall have delivered its Certificate of
Incorporation and bylaws, both as amended to the Closing Date,
certified by the Secretary of the Company, resolutions adopted by
the Board of Directors of the Company authorizing this Agreement and
the transactions contemplated hereby and the Company shall have
delivered to the Purchasers the Company's original minute book and
corporate seal and all other original corporate documents and
agreements;
(xi) the Company shall deliver to the Purchasers a Certificate
of Good Standing in respect of the Company issued by the Delaware
Secretary of State dated no earlier than 5 days prior to the
closing.
(xii) the Company shall have maintained at and immediately
after the Closing its status as a company whose Common Stock is
quoted on the OTB Bulletin Board; and
(xiii) all actions to be taken by the Seller in connection
with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Purchasers.
(xiv) Prior to the Closing, the Company shall cause to be
prepared the Company's audited financial statements for the fiscal
year ended December 31, 2004 and shall have filed with the U.S.
Securities and Exchange Commission prior to the Closing the
Company's Form 10-KSB for the period ended December 31, 2004. The
costs of such audit and preparation and filing of the Form 10-KSB
shall be at the sole expense of the Company. Xxxxxxxxxxx Xxxx
("Xxxx") shall remain an officer of the Company until the Form
10-KSB has been completed and filed with the U.S. Securities and
Exchange Commission. Xxxx agrees to execute the Form 10-KSB on
behalf of the Company, together with all SOX certifications required
to be submitted therewith and any management representation letters
required in connection with the audit.
13
The Purchasers may waive any condition specified in this Section 12(a) at
or prior to the Closing in writing executed by the Purchasers.
(b) Conditions to Obligation of the Seller.
The obligations of the Sellers to consummate the transactions to be
performed by it in connection with the Closing are subject to satisfaction of
the following conditions:
(i) the representations and warranties set forth in Section 7
above shall be true and correct in all material respects at and as
of the Closing Date;
(ii) the Purchasers shall have performed and complied with all
of its covenants hereunder in all material respects through the
Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement or (B) cause
any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no such injunction, judgment,
order, decree, ruling, or charge shall be in effect);
(iv) the Purchasers shall have delivered to the Sellers a
certificate to the effect that each of the conditions specified
above in Section 12(b)(i)-(iii) is satisfied in all respects;
(v) all actions to be taken by the Purchasers in connection
with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be satisfactory in
form and substance to the Seller.
The Sellers may waive any condition specified in this Section 12(b) at or
prior to the Closing in writing executed by the Seller.
14
13. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties shall survive the Closing
hereunder and continue in full force and effect for a period of one year
(1) thereafter. Notwithstanding, such time limitation shall not be
applicable if a Party had actual knowledge or had substantial and
verifiable reason to know of any material fraudulent misrepresentation or
warranty which is the subject of any claim by any other Party at the time
of Closing, in which case such representation or warranty shall be deemed
to have survived the Closing for a period of three (3) years thereafter.
(b) Indemnification Provisions for Benefit of the Purchasers.
(i) In the event any Seller breaches (or in the event any
third party alleges facts that, if true, would mean any Seller has
breached) any of its representations, warranties, and covenants
contained herein, and, if there is an applicable survival period
pursuant to Section 13(a) above, provided that the Purchasers make a
written claim for indemnification against the Sellers within such
survival period, then the Sellers shall jointly and severally
indemnify the Purchasers from and against the entirety of any
Adverse Consequences the Purchasers may suffer through and after the
date of the claim for indemnification (including any Adverse
Consequences the Purchasers may suffer after the end of any
applicable survival period) resulting from, arising out of, relating
to, in the nature of, or caused by the breach (or the alleged
breach). For purposes of this Agreement, "Adverse Consequences"
means all actions, suits, proceedings, hearings, investigations,
charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs,
amounts paid in settlement, Liabilities, obligations, taxes, Liens,
losses, lost value, expenses, and fees, including court costs and
attorneys' fees and expenses.
(ii) The Sellers shall indemnify the Purchasers from and
against the entirety of any Adverse Consequences the Purchasers may
suffer resulting from, arising out of, relating to, in the nature
of, or caused by any Liability of the Company (whether or not
accrued or otherwise disclosed) (x) for any taxes of the Company
with respect to any tax year or portion thereof ending on or before
the Closing Date (or for any Tax year beginning before and ending
after the Closing Date to the extent allocable to the portion of
such period beginning before and ending on the Closing Date) and (y)
for the unpaid taxes of any Person (other than the Company) under
Section 1.1502-6 of the Regulations adopted under the Code (or any
similar provision of state, local, or foreign law), as a transferee
or successor, by contract, or otherwise.
15
(iii) The Sellers shall indemnify the Purchasers from and
against the entirety of any Liabilities arising out of the ownership
of the Seller Shares, the Note or operation of the Company prior to
the Closing.
(iv) The Sellers shall indemnify the Purchasers from and
against the entirety of any Adverse Consequences the Purchasers may
suffer resulting from, arising out of, relating to, in the nature
of, or caused by any indebtedness or other Liabilities of the
Company existing as of the Closing Date.
(v) The maximum liability of the Sellers for indemnification
under this Agreement shall in no event exceed an amount equal to the
Purchase Price. Notwithstanding, such maximum liability limitation
shall not be applicable if a Party had actual knowledge or had
substantial and verifiable reason to know of any material fraudulent
misrepresentation or warranty which is the subject of any claim by
any other Party at the time of Closing.
(c) Indemnification Provisions for Benefit of the Seller. In the
event the Purchasers breach (or in the event any third party alleges facts
that, if true, would mean the Purchasers has breached) any of its
representations, warranties, and covenants contained herein, and, if there
is an applicable survival period pursuant to Section 13(a) above, provided
that the Seller makes a written claim for indemnification against the
Purchasers within such survival period, then the Purchasers shall
indemnify the Seller from and against the entirety of any Adverse
Consequences the Seller may suffer through and after the date of the claim
for indemnification (including any Adverse Consequences the Seller may
suffer after the end of any applicable survival period) resulting from,
arising out of, relating to, in the nature of, or caused by the breach (or
the alleged breach).
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party
Claim") which may give rise to a claim for indemnification against
any other Party (the "Indemnifying Party") under this Section 13,
then the Indemnified Party shall promptly notify each Indemnifying
Party thereof in writing; provided, however, that no delay on the
part of the Indemnified Party in notifying any Indemnifying Party
shall relieve the Indemnifying Party from any obligation hereunder
unless (and then solely to the extent) the Indemnifying Party
thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as
(A) the Indemnifying Party notifies the Indemnified Party in writing
within 10 days after the Indemnified Party has given notice of the
Third Party Claim that the Indemnifying Party will indemnify the
Indemnified Party from and against the entirety of any Adverse
Consequences the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the
Third Party Claim, (B) the Indemnifying Party provides the
Indemnified Party with evidence reasonably acceptable to the
Indemnified Party that the Indemnifying Party will have the
financial resources to defend against the Third Party Claim and
fulfill its indemnification obligations hereunder, (C) the Third
Party Claim involves only money damages and does not seek an
injunction or other equitable relief, (D) settlement of, or an
adverse judgment with respect to, the Third Party Claim is not, in
the good faith judgment of the Indemnified Party, likely to
establish a precedential custom or practice adverse to the
continuing business interests of the Indemnified Party, and (E) the
Indemnifying Party conducts the defense of the Third Party Claim
actively and diligently.
16
(iii) So long as the Indemnifying Party is conducting the
defense of the Third Party Claim in accordance with Section
13(d)(ii) above, (A) the Indemnified Party may retain separate
co-counsel at its sole cost and expense and participate in the
defense of the Third Party Claim, (B) the Indemnified Party will not
consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party (not to be withheld unreasonably),
and (C) the Indemnifying Party will not consent to the entry of any
judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnified
Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in Section 13(d)(ii)
above is or becomes unsatisfied, however, (A) the Indemnified Party
may defend against, and consent to the entry of any judgment or
enter into any settlement with respect to, the Third Party Claim in
any manner it reasonably may deem appropriate (and the Indemnified
Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith), (B) the Indemnifying
Parties will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Third Party
Claim (including attorneys' fees and expenses), and (C) the
Indemnifying Parties will remain responsible for any Adverse
Consequences the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the
Third Party Claim to the fullest extent provided in this Section 13.
14. Termination.
(a) Termination of Agreement. The Parties may terminate this
Agreement as provided below:
(b) the Purchasers and the Seller may terminate this Agreement by
mutual written agreement at any time prior to the Closing;
17
(c) the Purchasers may terminate this Agreement by giving written
notice to the Seller at any time prior to the Closing if (A) the aggregate
of the Company's Liabilities acquired by Purchasers, is equal to, or
exceeds $1,000; (B) in the event the Seller has breached any material
representation, warranty, or covenant contained in this Agreement in any
material respect and the Purchasers has notified the Seller of the breach,
and the breach has continued without cure for a period of 2 days after the
notice of breach; or (C) = if the Closing shall not have occurred on or
before March 4, 2005 by reason of the failure of any condition precedent
under Section 12(a) hereof (unless the failure results primarily from the
Purchasers themselves breaching any representation, warranty, or covenant
contained in this Agreement); and
(d) the Sellers may terminate this Agreement by giving written
notice to the Purchasers at any time prior to the Closing (A) in the event
the Purchasers has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, the Sellers
have notified the Purchasers of the breach, and the breach has continued
without cure for a period of 2 days after the notice of breach or (B) if
the Closing shall not have occurred on or before March 4, 2005, by reason
of the failure of any condition precedent under Section 12(b) hereof
(unless the failure results primarily from the Sellers themselves
breaching any representation, warranty, or covenant contained in this
Agreement).
(e) Effect of Termination. The Sellers shall in no event be
permitted to terminate this Agreement unless prior to or accompanying any
notice of termination delivered hereunder the Sellers (i) have delivered
to the Purchasers any portion of the Purchase Price theretofore paid by
the Purchasers, excluding the Cash Deposit, and (ii) have notified the Law
Firm in writing that any amounts held in escrow by it may released to the
Purchasers. If the Purchasers terminate this Agreement pursuant to this
Section 14, then the Sellers shall immediately pay to the Purchasers any
portion of the Purchase Price theretofore paid by the Purchasers and the
Sellers shall immediately notify the Law Firm in writing that any amounts
held in escrow by it may released to the Purchasers. Except as aforesaid,
if this Agreement terminates pursuant to this Section 14, all rights and
obligations of the Parties hereunder shall terminate without any Liability
of any Party to any other Party, except for any Liability of a Party that
is then in breach.
(f) Termination for Cause. In the event that the transaction would
have closed but for the failure of the other party to close, then the
party at fault shall reimburse the not at fault party for its documented
reasonable legal fees and related out-of-pocket expenses it has incurred
in connection with the transaction not to exceed a maximum of $15,000.00.
The parties agree that any damages payable on account of any breach of
this Agreement shall be expressly limited to such amount.
18
15. Miscellaneous.
(a) Facsimile Execution and Delivery. Facsimile execution and
delivery of this Agreement is legal, valid and binding execution and
delivery for all purposes.
(b) Confidentiality; Press Releases and Public Announcements. Except
as and to the extent required by law, no Party will disclose or use and
will direct its representatives not to disclose or use any information
with respect to the transaction which is the subject to this Agreement,
without the consent of the other Parties. Neither the Sellers nor the
Company shall issue any press release or make any public announcement
relating to the subject matter of this Agreement without the prior written
approval of the Purchasers; provided, however, that the Company may make
any public disclosure it believes in good faith is required by applicable
law or any listing or trading agreement concerning its publicly-traded
securities (in which case the Sellers and the Company will use their best
efforts to advise the other Parties prior to making the disclosure).
(c) No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any person other than the Parties and their
respective successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or
among the Parties, written or oral, to the extent they related in any way
to the subject matter hereof.
(e) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this
Agreement or any of his or its rights, interests, or obligations hereunder
without the prior written approval of the Purchasers and the Sellers;
provided, however, that the Purchasers may (i) assign any or all of its
rights and interests hereunder to one or more of its Affiliates, and (ii)
designate one or more of its Affiliates to perform its obligations
hereunder, but no such assignment shall operate to release Purchasers or a
successor from any obligation hereunder unless and only to the extent that
Seller agrees in writing.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and
then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below:
19
If to the Sellers (or the Company prior to the Closing):
Internet Finance International Corp.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
(000) 000-0000
Fax (000) 000-0000
If to the Purchasers:
Xxxxx X. Xxxxxxxxx
c/o Q Management, Inc.
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Fax (000) 000-0000
With copy to:
Xxxxxx Xxxxxx
000 Xxxxx Xxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
(000) 000-0000 Fax (000) 000-0000
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth.
20
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New
York.
(j) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
the Purchasers and the Sellers or their respective representatives. No
waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term
or provision in any other situation or in any other jurisdiction.
(l) Expenses. Each of the Parties and the Company will bear his or
its own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby,
except for payment of the Legal Fees. The Sellers agree that the Company
has not borne or will not bear any of the Sellers' costs and expenses
(including any of his legal fees and expenses) in connection with this
Agreement or any of the transactions contemplated hereby.
(m) Construction. The Parties 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 and no presumption or
burden of proof shall arise favoring or disfavoring any Party by virtue of
the authorship of any of the provisions of this Agreement. Any reference
to any federal, state or local statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean including
without limitation. The Parties intend that each representation, warranty,
and covenant contained herein shall have independent significance. If any
Party has breached any representation, warranty, or covenant contained
herein in any respect, the fact that there exists another representation,
warranty, or covenant relating to the same subject matter (regardless of
the relative levels of specificity) which the Party has not breached shall
not detract from or mitigate the fact that the Party is in breach of the
first representation, warranty, or covenant. Nothing in the disclosure
Schedules attached hereto shall be deemed adequate to disclose an
exception to a representation or warranty made herein, however, unless the
disclosure Schedules identifies the exception with particularity and
describes the relevant facts in detail. Without limiting the generality of
the foregoing, the mere listing (or inclusion of a copy) of a document or
other item in the disclosure Schedules or supplied in connection with the
Purchasers' due diligence review, shall not be deemed adequate to disclose
an exception to a representation or warranty made herein (unless the
representation or warranty has to do with the existence of the document or
other item itself).
21
(n) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
(o) Specific Performance. Each of the Parties acknowledges and
agrees that the other Parties would be damaged irreparably in the event
any of the provisions of this Agreement are not performed in accordance
with their specific terms or otherwise are breached. Accordingly, each of
the Parties agrees that the other Parties shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the United
States or any state thereof having jurisdiction over the Parties and the
matter (subject to the provisions set forth in Section 15(p) below), in
addition to any other remedy to which they may be entitled, at law or in
equity.
(p) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in New York County, New
York, in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or
proceeding may be heard and determined in any such court. Each of the
Parties waives any defense of inconvenient forum to the maintenance of any
action or proceeding so brought and waives any bond, surety, or other
security that might be required of any other Party with respect thereto.
Any Party may make service on any other Party by sending or delivering a
copy of the process to the Party to be served at the address and in the
manner provided for the giving of notices in Section 15(h) above. Nothing
in this Section 15(p), however, shall affect the right of any Party to
bring any action or proceeding arising out of or relating to this
Agreement in any other court or to serve legal process in any other manner
permitted by law or at equity. Each Party agrees that a final judgment in
any action or proceeding so brought shall be conclusive and may be
enforced by suit on the judgment or in any other manner provided by law or
at equity.
[signature pages follow]
..
22
[SELLER SIGNATURE PAGE]
IN WITNESS WHEREOF, each of the undersigned SELLERS has duly executed this
Agreement the date first above written.
FOR ENTITIES:
Internet Finance International Corp.
(Insert Name of entity above)
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: President
23
[PURCHASER SIGNATURE PAGE]
IN WITNESS WHEREOF, each of the undersigned PURCHASERS has duly executed
this Agreement the date first above written.
FOR ENTITIES:
Gaha Ventures, LLC
(Insert Name of entity above)
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: President
Altitude Group, Inc.
(Insert Name of entity above)
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xx. Xxxxxxx Xxxxxxxx
Title: President
Fountainhead Investments, Inc.
(Insert Name of entity above)
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
FOR INDIVIDUALS:
/s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
24
[COMPANY SIGNATURE PAGE]
IN WITNESS WHEREOF, the COMPANY has duly executed this Agreement the date
first above written.
CASTLE & XXXXXX HOLDINGS, INC.
A Delaware corporation
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: President
25
[SIGNATURE PAGE FOR SELLER REPRESENTATIVE AND PURCHASER REPRESENTATIVE]
IN WITNESS WHEREOF, each of the undersigned REPRESENTATIVES has duly
executed this Agreement WITH RESPECT TO THE OBLIGATIONS SET FORTH IN SECTION 4
OF THIS AGREEMENT ONLY as of the date first above written.
SELLER REPRESENTATIVE:
/s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxxxxxxxx Xxxx
PURCHASER REPRESENTATIVE:
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
26
27
