EXHIBIT 10.1
SHARE PURCHASE AGREEMENT
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This Share Purchase Agreement ("Agreement"), dated as of April 3,
2000 among Xxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxx Xxxxxxx and Xxx Xxxx (collectively,
"Sellers"), Advanced Ceiling Supplies Corp. ("Advanced Ceiling") and United
Venture Group, Inc. ("Buyer") a Delaware Corporation.
W I T N E S S E T H:
A. WHEREAS, Advanced Ceiling is a corporation duly organized under
the laws of the State of Colorado.
B. WHEREAS, Buyer wishes to purchase 100% of the outstanding common
shares of Advanced Ceiling free and clear of liens and encumbrances from Sellers
(the "Purchase Shares").
C. WHEREAS, the parties intend to subsequently merge Advanced
Ceiling, the wholly-owned subsidiary, with and into the Buyer.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
THE CONSIDERATION
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1.1 Subject to the conditions set forth herein, Sellers shall sell
and Buyer shall purchase 660 shares of common stock of Advanced Ceiling. The
transactions contemplated by this Agreement shall be completed simultaneously
herewith. The purchase price for the shares to be paid by Buyer to Sellers is
$200,000 in cash, and 400,000 shares of common stock of the Buyer (the
"Consideration").
ARTICLE II
CONVEYANCE OF SHARES
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2.1 The Purchase Shares shall be delivered and conveyed by Sellers
to Buyer simultaneously herewith, with duly executed stock powers, upon receipt
of the Consideration.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS AS TO ADVANCED CEILING
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Sellers and Advanced Ceiling each hereby, jointly and severally,
represent, warrant and covenant to Buyer as follows: 3.1 Advanced Ceiling is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Colorado, and has the corporate power and authority to own or
lease its properties and to carry on its business as it is now being conducted.
The Articles of Incorporation and Amendments and Bylaws of Advanced Ceiling,
copies of which have been delivered to Buyer, are complete and accurate, and the
minute books of Advanced Ceiling, copies of which have also been delivered to
Buyer, contain a record, which is complete and accurate in all material
respects, of all meetings, and all corporate actions of the shareholders and
Board of Directors of Advanced Ceiling.
3.2 The authorized capital stock of Advanced Ceiling consists of
50,000,000 shares of common stock. There are 660 shares of Common Stock issued
and outstanding. All such shares of capital stock of Advanced Ceiling are
validly issued, fully paid and nonassessable. Advanced Ceiling has no
outstanding options, warrants, or other rights to purchase, or subscribe to, or
other securities convertible into or exchangeable for any shares of capital
stock of Advanced Ceiling, or contracts or arrangements of any kind relating to
the issuance, sale or transfer of any capital stock or other equity securities
of Advanced Ceiling. All of the outstanding shares of capital stock of Advanced
Ceiling have been offered, issued, sold and delivered in compliance with
applicable federal and state securities laws and none of such securities were,
at the time of issuance, subject to preemptive rights.
3.3 Advanced Ceiling does not own nor has it ever owned any
outstanding shares of capital stock or other equity interests of any
partnership, joint venture, trust, corporation, limited liability company or
other entity and there are no obligations of Advanced Ceiling to repurchase,
redeem or otherwise acquire any capital stock or equity interest of another
entity.
3.4 This Agreement has been duly authorized, validly executed and
delivered on behalf of the Sellers and Advanced Ceiling and is a valid and
binding agreement and obligation of the Sellers and Advanced Ceiling enforceable
against each Seller, jointly and severally, and against Advanced Ceiling in
accordance with its terms, subject to limitations on enforcement by general
principles of equity and by bankruptcy or other laws affecting the enforcement
of creditors' rights generally, and the Sellers and Advanced Ceiling each have
complete and unrestricted power to enter into and, upon the appropriate
approvals as required by law, to consummate the transactions contemplated by
this Agreement.
3.5 Neither the making of nor the compliance with the terms and
provisions of this Agreement and consummation of the transactions contemplated
herein by Advanced Ceiling will conflict with or result in a breach or violation
of the Articles of Incorporation or Bylaws of Advanced Ceiling, or of any
material provisions of any indenture, mortgage, deed of trust or other material
agreement or instrument to which Advanced Ceiling is a party or by which it or
any of its material properties or assets are bound, or of any material provision
of any law, statute,
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rule, regulation, or any existing applicable decree, judgment or order by any
court, federal or state regulatory body, administrative agency, or other
governmental body having jurisdiction over Advanced Ceiling, or any of its
material properties or assets, or will result in the creation or imposition of
any material lien, charge or encumbrance upon any material property or assets of
Advanced Ceiling pursuant to the terms of any agreement or instrument to which
Advanced Ceiling is a party or by which Advanced Ceiling may be bound or to
which any of Advanced Ceiling property is subject and no event has occurred with
which lapse of time or action by a third party could result in a material breach
or violation of or default by Advanced Ceiling. 3.6 Except as disclosed herein,
and based upon the representations and warranties of the Buyer set forth herein,
no authorization, consent, approval, exemption or other action by or notice to
any government entity or filing with or consent of any governmental body is
required for the sale of the Purchase Shares to Buyer pursuant to this
Agreement.
3.7 There is no claim, legal action, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order, decree
or judgment in progress, pending or in effect, or to the best knowledge of the
Sellers threatened against or relating to Advanced Ceiling or affecting any of
its assets, properties, business or capital stock. There is no continuing order,
injunction or decree of any court, arbitrator or governmental authority to which
Advanced Ceiling is a party or by which Advanced Ceiling or its assets,
properties, business or capital stock are bound.
3.8 Advanced Ceiling has accurately prepared and filed all Federal,
state and other tax returns required by law, domestic and foreign, to be filed
by it, has paid or made provisions for the payment of all taxes shown to be due
and all additional assessments, and adequate provisions have been and are
reflected in the financial statements of Advanced Ceiling for all current taxes
and other charges to which Advanced Ceiling is subject and which are not
currently due and payable. None of the Federal income tax returns of Advanced
Ceiling have been audited by the Internal Revenue Service or other foreign
governmental tax agency. Advanced Ceiling has no knowledge of any additional
assessments, adjustments or contingent tax liability (whether federal or state)
pending or threatened against Advanced Ceiling for any period, nor of any basis
for any such assessment, adjustment or contingency.
3.9 Sellers are the legal, beneficial and registered owners of the
Purchase Shares, free and clear of any liens, charges, encumbrances, voting
trusts, shareholder agreements or rights of any kind granted to any person or
entity, or any interest in or the right to purchase or otherwise acquire any of
the Purchase Shares from the Sellers at any time upon the happening of any
stated event and may transfer such shares without the consent of any third
party. Upon closing of the transactions contemplated hereby, the Buyer will
acquire all right, title and interest in the Purchase Shares, free and clear of
all liens, charges or encumbrances and will have all of Seller's entire right,
title and interest in and to the Purchase Shares. All Purchase Shares owned by
Sellers is set forth hereto on Schedule 3.9.
3.10 Advanced Ceiling has delivered to Buyer audited financial
statements dated August 31, 1999. All such statements, herein sometimes called
"Advanced Ceiling Financial Statements" are (and will be) complete and correct
in all material respects and, together with the notes to these financial
statements, present fairly the financial position and results of operations
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of Advanced Ceiling for the periods indicated. All financial statements of
Advanced Ceiling have been prepared in accordance with generally accepted
accounting principles. 3.11 As of the date hereof, the total indebtedness of
Advanced Ceiling is $7,500.00. Advanced Ceiling and the Sellers hereby, jointly
and severally, represent and warrant that all outstanding indebtedness of
Advanced Ceiling shall have been paid and released prior to the closing of the
transactions hereby and that there are no outstanding liens, charges or
encumbrances on the assets of Advanced Ceiling. 3.12 Since the dates of the
Advanced Ceiling Financial Statements, there have not been any material adverse
changes in the business or condition, financial or otherwise, of Advanced
Ceiling. Advanced Ceiling does not have any material liabilities, commitments or
obligations, secured or unsecured except as shown on updated financials (whether
accrued, absolute, contingent or otherwise).
3.13 Advanced Ceiling is not a party to any contract performable in
the future. 3.14 The representations and warranties of the Sellers and Advanced
Ceiling shall be true and correct as of the date hereof. 3.15 Advanced Ceiling
shall deliver to Buyer, all of its corporate books and records for review. 3.16
Advanced Ceiling has no employee benefit plan in effect at this time. 3.17 No
representation or warranty by Advanced Ceiling or the Sellers in this Agreement,
or any certificate delivered pursuant hereto contains any untrue statement of a
material fact or omits to state any material fact necessary to make such
representation or warranty not misleading.
3.18 Sellers or Advanced Ceiling have delivered, to Buyer true and
correct copies of a Form 10SB declared effective by the Securities and Exchange
Commission ("SEC") and each of its other reports to shareholders filed with the
SEC for the year ended December 31, 1999. Advanced Ceiling is a registered
company under the Securities Exchange Act of 1934, as amended.
3.19 Advanced Ceiling has duly filed all reports required to be
filed by it under the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended (the "Federal Securities Laws"). No such
reports, or any reports sent to the shareholders of Advanced Ceiling generally
contained any untrue statement of material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements in such
report, in light of the circumstances under which they were made, not
misleading.
3.20 Each Seller is an "accredited investor" as such term is defined
in Rule 501(a) promulgated under the Securities Act of 1933, as amended.
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3.21 Each Seller is acquiring the shares of common stock of Buyer
comprising the Consideration for the account of such Seller, for investment
purposes only, and not with a view towards the resale or redistribution thereof.
3.22 The Sellers have not received any general solicitation or general
advertising regarding the shares of Buyer's common stock comprising the
Consideration.
ARTICLE IV
REIMBURSEMENT; TERMINATION OF REPRESENTATION AND
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WARRANTIES AND CERTAIN AGREEMENTS; INDEMNIFICATION
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4.1 In the event upon merger the Buyer is not deemed registered under the
Securities Exchange Act of 1934, as amended, Sellers will return to Buyer
$100,000 of the Consideration, provided, that, Buyer has filed audited financial
statements as of the end of its last fiscal year with the Securities and
Exchange Commission. 4.2 The respective representations and warranties of the
parties hereto shall survive this Agreement for three years and the covenants
shall survive hereafter.
4.3 The right to indemnification, payment of Damages (as defined in section 4.5)
or other remedy based on any representation, warranty, covenant or obligation of
a party hereunder shall not be affected by any investigation conducted with
respect to, or any knowledge acquired (or capable of being acquired) at any
time, whether before or after the execution and delivery of this Agreement, with
respect to the accuracy or inaccuracy of or compliance with, any such
representation, warranty, covenant or obligation. 4.4 The waiver of any
condition to a party's obligation to consummate the transactions contemplated
hereunder, where such condition is based on the accuracy of any representation
or warranty, or on the performance of or compliance with any covenant or
obligation, will not affect the right to indemnification, payment of Damages, or
other remedy based on such representation, warranty, covenant or obligation. 4.5
Advanced Ceiling and each of the Sellers, jointly and severally, shall indemnify
and hold harmless the Buyer, and each of its representatives, employees,
officers, directors, stockholders, controlling persons and affiliates
(collectively, the "Buyer Indemnified Persons") for, and will pay to the Buyer
Indemnified Persons, the amount of, any loss, liability, claim, damage
(including, without limitation, incidental and consequential damages), cost,
expense (including, without limitation, interest, penalties, costs of
investigation and defense and the reasonable fees and expenses of attorneys and
other professional experts) or diminution of value, whether or not involving a
third-party claim (collectively, "Damages"), directly or indirectly arising
from, attributable to or in connection with:
(a) any representation or warranty made by the Sellers and Advanced
Ceiling in this agreement or any of the Sellers' and Advanced Ceiling
closing deliveries, that is, or was at the time made, false or
inaccurate, or any breach of, or misrepresentation with respect to,
any such representation or warranty; and
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(b) any breach by any of the Sellers or Advanced Ceiling of any covenant,
agreement or obligation of the Sellers contained in this agreement.
(c) any claims or litigation relating to Advanced Ceiling now pending or
threatened or which may hereafter be brought against Buyer and/or
Advanced Ceiling based upon events occurring prior to the date hereof
and not attributable to the acts of the Buyer.
(d) any and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs, losses, liabilities and reasonable legal and other
expenses incident to any of the foregoing.
4.6 The Sellers and Advanced Ceiling shall have no liability for
indemnification with respect to any representation or warranty, unless, on or
before the [third] anniversary of the date hereof, the Buyer notifies the
Sellers of a claim specifying the basis thereof in reasonable detail to the
extent then known by the Buyer. A claim with respect to any covenant, agreement
or obligation contained in this agreement, may be made at any time without any
time limitation.
4.7 Promptly after receipt by an indemnified party of written notice
(the "Notice of Claim") of the commencement of any action, suit or proceeding
against it, or written threat thereof, such indemnified party will, if a claim
is to be made against an indemnifying party under either of said sections, as
applicable, give notice to the indemnifying party of the commencement of such
action, suit or proceeding. The indemnified party shall furnish to the
indemnifying party in reasonable detail such information as the indemnified
party may have with respect to such indemnification claims (including copies of
any summons, complaint or other pleading which may have been served on it and
any written claim, demand, invoice, billing or other document evidencing or
assenting the same). Subject to the limitations set forth in this section, no
failure or delay by the indemnified party in the performance of the foregoing
shall reduce or otherwise affect the obligation of the indemnifying party to
indemnify and hold the indemnified party harmless except to the extent that such
failure or delay shall have materially and adversely affected the indemnifying
party's ability to defend against, settle or satisfy any action, suit or
proceeding the claim for which the indemnified party is entitled to
indemnification hereunder. The foregoing shall not apply to the extent
inconsistent with the provisions of section 4.8 relating to Proceedings.
4.8 If the claim or demand set forth in the Notice of Claim given by
the indemnified party is a claim or demand asserted by a third party, the
indemnifying party shall have 30 days after the Date of Notice of Claim to
notify the indemnified party in writing of its election to defend such third
party claim or demand on behalf of the indemnified party (the "Notice Period");
provided, however, that the indemnified party is authorized to file any motion,
answer or other pleading which it deems necessary or appropriate to protect its
interests during the Notice Period. If the indemnifying party elects to defend
such third party claim or demand, the indemnified party shall make available to
the indemnifying party and its agents and representatives all records and other
materials which are reasonably required in the defense of such third party claim
or demand and shall otherwise cooperate (at the sole cost and expense of the
indemnifying party) with, and assist (at the sole cost and expense of the
indemnifying party) the indemnifying party in the defense of, such third party
claim or demand, and so long as the
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indemnifying party is diligently defending such third party claim in good faith,
the indemnified party shall not pay, settle or compromise such third party claim
or demand. If the indemnifying party elects to defend such third party claim or
demand, the indemnified party shall have the right to control the defense of
such third party claim or demand, at the indemnified party's own expense. If the
indemnifying party does not elect to defend such third party claim or demand or
does not defend such third party claim or demand in good faith, the indemnified
party shall have the right, in addition to any other right or remedy it may have
hereunder at the indemnifying party's expense, to defend such third party claim
or demand.
4.9 The term "Date of Notice of Claim" shall mean the date the
Notice of Claim is effective pursuant to section 5.5 of this Agreement.
4.10 A claim for indemnification for any matter not involving a
third-party claim may be asserted by notice to the party from whom
indemnification is sought.
4.11 Any legal action or proceeding with respect to this Agreement
or any matters arising out of or in connection with this Agreement or the
transactions contemplated hereby or the documents executed and delivered in
connection herewith, and any action for enforcement of any judgment in respect
thereof may be brought in the courts of the State of New York or of the United
States of America for the Southern District of New York, and, by execution and
delivery of this Agreement, the parties each hereby accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts and appellate courts thereof. The parties irrevocably consent
to service of process out of any of the aforementioned courts in any such action
or proceeding in accordance with the notice provisions set forth in Section 5.5.
The parties each hereby irrevocably waive any objection that it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or the
transactions contemplated hereby or the documents execute and delivered in
connection herewith brought in the courts referred to above and hereby further
irrevocably waive and agree, to the extent permitted by applicable law, not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of any party hereto to serve process in any other manner
permitted by law.
ARTICLE V
MISCELLANEOUS
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5.1 This Agreement embodies the entire agreement between the
parties, and there have been and are no agreements, representations or
warranties among the parties other than those set forth herein or those provided
for herein.
5.2 To facilitate the execution of this Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument.
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5.3 All parties to this Agreement agree that if it becomes necessary
or desirable to execute further instruments or to make such other assurances as
are deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
5.4 This Agreement may not be amended except by written consent of
both parties.
5.5 Any notices, requests, or other communications required or
permitted hereunder shall be delivered personally or sent by overnight courier
service, prepaid, addressed as follows:
To Sellers:
copy to:
To United Venture Group, Inc.
c/o
Copy to:
Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
5.6 No press release or public statement will be issued relating to
the transactions contemplated by this Agreement without prior approval of Buyer
and Sellers. However, Advanced Ceiling may issue at any time any press release
or other public statement it believes on the advice of its counsel it is
obligated to issue to avoid liability under the law relating to disclosures, but
the party issuing such press release or public statement shall make a reasonable
effort to give the other party prior notice of and opportunity to participate in
such release or statement.
5.7 This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall be considered one
and the same agreement. This Agreement may be executed by facsimile signatures.
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5.8 This Agreement shall be governed by and construed in accordance
with and enforced under the laws of the state of New York applicable to
agreements made and to be performed entirely in that state.
IN WITNESS WHEREOF, the parties have executed this Agreement this 3rd
day of April.
SELLERS:
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxx Xxxx
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Xxx Xxxx
/s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx
/s/ Xxx Xxxx
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Xxx Xxxx
ADVANCED CEILING SUPPLIES CORP.
By:/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, President
UNITED VENTURE GROUP, INC.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President
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SCHEDULE 3.9
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SELLERS PURCHASE SHARES OWNED
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Xxxxx Xxxxxxx
Xxx Xxxx
Xxxxxxxx Xxxxxxx
Xxx Xxxx
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