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EXHIBIT 1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of
this 31st day of August, 2001, between Xxxxx X. Xxxxx, Xx. ("Seller") and Xxxx
X. XxXxxxxx ("Purchaser").
RECITALS
WHEREAS, Seller is the sole owner of 222,222 issued and outstanding
shares (the "Shares") of the Common Stock, $.001 par value per share, of
PowerCerv Corporation (the "Company"); and
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires
to sell to Purchaser, the Shares upon the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of these premises and subject to the
representations, warranties and covenants contained herein and for the
consideration provided herein, the parties agree as follows:
ARTICLE I
SALE OF SHARES
1.1 Sale of Shares. Seller hereby sells, transfers and conveys to
Purchaser, and Purchaser hereby acquires, all of Seller's right, title and
interest in the Shares, which shall be effected by a stock power and such other
instruments as may be necessary or appropriate.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The total price to be paid by Purchaser to
Seller for the Shares shall be $277,777.50, which shall be paid by wire transfer
of immediately available funds to an account designated by Seller.
ARTICLE III
CLOSING
3.1 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Broad and Xxxxxx,
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, XX 00000 on August 31, 2001 (the
"Closing Date") or (ii) at such other time, date or place as the parties may
agree.
3.2 Procedure. At the Closing, each party shall deliver to the
other party such documents, instruments and certificates as may be reasonably
required in order to tranfer title to the Shares, and all such documents,
instruments and certificates shall be reasonably satisfactory in form and
substance to the counsel for the receiving party.
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3.3 Further Acts. Seller and Purchaser agree that each of them
will, from time to time after Closing Date, when so reasonably requested by the
other party, perform, execute and deliver or cause to be performed, executed and
delivered all such further acts and documents necessary or appropriate to
transfer title to the Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser, on and as of the
date hereof, as follows:
4.1 Authority. Seller has all necessary right, power, legal
capacity and authority to execute, deliver and perform this Agreement and to
consummate the sale of the Shares contemplated hereby. The execution, delivery
and performance of this Agreement will not result in a violation of any other
agreement, indenture, mortgage, note, bond, license, lease or any other
obligation or commitment of Seller, or any judgment, order or decree to which
Seller or the Shares are subject.
4.2 Title to Shares. Seller has good and marketable title to the
Shares, free and clear of any liens, charges, encumbrances and restrictions.
Except as expressly set forth herein, Seller makes no representations or
warranties whatsoever with respect to the Shares.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller, on and as of the
date hereof, as follows:
5.1 Standing of Purchaser. Purchaser is an "accredited investor"
as such term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
5.2 Authority. Purchaser has the right, power, legal capacity and
authority to enter into and perform Purchaser's obligations under this
Agreement. The execution, delivery and performance of this Agreement will not
result in a violation of any agreement, indenture, mortgage, note, bond,
license, lease or any other obligation or commitment of Purchaser, or any
judgment, order or decree to which Purchaser is a party or may otherwise be
subject.
5.3 Access to Information. Purchaser has received, read carefully
and is familiar with this Agreement and has received from Seller all materials
that have been requested; has had a reasonable opportunity to ask questions of
Seller and its representatives; and Seller has answered all of Purchaser's
inquiries. Purchaser acknowledges that Seller has made no representations or
warranties of any kind to Purchaser regarding the financial condition, results
of operations or the prospects of the Company.
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5.4 Purchaser's Knowledge and Experience. Purchaser (a) has such
knowledge and experience in finance, securities, investments and other business
matters so as to be able to protect his interests, (b) understands the various
risks of the transactions contemplated hereby.
5.5 Investment Purpose. Purchaser will acquire the Shares for
Purchaser's own account and investment purpose and not with a view to the sale
or distribution thereof.
5.6 Limitations on Dispositions. Purchaser has been advised by
Seller that none of the Shares have been registered under the Securities Act or
applicable state securities law and that such shares will be sold in a
transaction exempt therefrom. Purchaser acknowledges that it is familiar with
the nature of the limitations imposed by the Securities Act and the rules and
regulations thereunder on the transfer of the Shares. Purchaser understands that
an opinion of counsel and other documents may be required to transfer the
Shares. Purchaser acknowledges that the Shares shall be subject to stop transfer
orders and any certificates evidencing such shares shall bear the following or a
substantially similar legend and such other legends as may be required by state
blue sky laws:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state or foreign securities laws and neither
such securities nor any interest therein may be offered, sold, pledged,
assigned or otherwise transferred unless (1) a registration statement
with respect thereto is effective under the Securities Act and any
applicable state securities laws, or (2) the Company receives an
opinion of counsel, which counsel and opinion are reasonably
satisfactory to the Company, that such securities may be offered, sold,
pledged, assigned or transferred without an effective registration
statement under the Securities Act or applicable state securities
laws."
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given (i) on the date they are
delivered if delivered in person; (ii) on the date initially received if
delivered by facsimile transmission followed by registered or certified mail
confirmation; (iii) on the date delivered by an overnight courier service; or
(iv) on the third business after it is mailed by registered or certified mail,
return receipt requested with postage and other fees prepaid, to the following
addresses, or such other addresses as are given to other parties in the manner
set forth herein.
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If to Seller: Xxxxx X. Xxxxx, Xx.
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxx Xxxxx
Xxxxxx White
000 X. Xxxxxxx Xxxx. Xxxxx 0000
Xxxxx, XX 00000
If to Purchaser to: Xxxx X. XxXxxxxx
000 Xxxxxxxx Xxxx Xxxx
#0X
Xxxxx, Xxxxxxx 00000-0000
6.2 Entire Agreement. This Agreement and the schedules and
exhibits hereto constitute the entire agreement between the parties with respect
to the subject matter hereof. It supersedes all prior negotiations, letters and
understandings relating to the subject matter hereof.
6.3 Amendment. This Agreement may not be amended, supplemented or
modified in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of any such amendment, supplement or
modification is sought.
6.4 Survival of Representations and Warranties. The
representations, warranties, covenants and indemnities contained herein shall
survive the Closing Date for a period of ___ months, unless otherwise
specifically stated herein.
6.5 Binding Effect; Assignment. This Agreement shall be binding
upon and will inure to the benefit of the parties and their respective
successors and permitted assigns. This Agreement may not be assigned by either
party hereto without the prior written consent of the other party.
6.6 Choice of Law. This Agreement shall be interpreted, construed
and enforced in accordance with the laws of the State of Florida.
6.7 Waiver. The failure of any party at any time to require
performance of any provision of this Agreement will in no manner affect the
right to enforce the same. The waiver by any party of any breach of any
provision of this Agreement will not be construed to be a waiver by any such
party of any succeeding breach of that provision or a waiver by such party of
any breach of any other provision.
6.8 Attorneys' Fees. If any party brings an action in connection
with the performance, breach or interpretation of this Agreement, or in any
action related to the transactions contemplated hereby, the prevailing party in
such action shall be entitled to recover from the losing party in such action
all reasonable costs and expenses of such litigation, including
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attorneys' fees, court costs, costs of investigation, accounting and other costs
reasonably incurred or related to such litigation.
6.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SELLER:
/s/ Xxxxx X. Xxxxx Xx.
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Xxxxx X. Xxxxx, Xx.
PURCHASER:
/s/ Xxxx X. XxXxxxxx
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Xxxx X. XxXxxxxx
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