EXHIBIT 10.1
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SHARE PURCHASE AGREEMENT
Agreement dated the 24th day of February 2003, among Xxxxxxx Xxxxx, acting as an
individual ("SELLER"), Indiginet, Inc., a Florida Corporation ("Company") and
Xxxx Xxxxx, an individual ("BUYER").
WITNESSETH:
WHEREAS, SELLER owns 271,000,000 of the 374,500,000 issued and outstanding
shares (the "Acquired Shares") of the Company, no par value per share
(photocopies of the share certificates are included in Exhibits;
WHEREAS, SELLER wishes to sell the Shares to BUYER and BUYER wishes to purchase
the Acquired Shares from SELLER;
WHEREAS, the Company wishes to facilitate the purchase of the Acquired Share;
NOW, THEREFORE, in consideration of the foregoing, and the following mutual
covenants and agreements, the parties do hereby agree as follows:
1. PURCHASE OF SHARES. The Purchaser does hereby agree to purchase the
Acquired Shares, free and clear of all liens, encumbrances, charges,
escrows, equities, and other restrictions. The Seller does hereby agree to
sell the Acquired Shares to the Purchaser. The Acquired Shares shall be
conveyed to the Purchaser contemporaneously with the execution of this
Agreement by the Seller.
2. PURCHASE PRICE. The purchase price (the "Purchase Price") to be paid by the
Purchaser to the Seller for the Acquired Shares shall be:
a. A cash payment of $20,000 to be paid as follows:
i. $10,000 directly to Seller; on signing of this agreement.
ii. $10,000 directly to the Company's independent Auditor, on signing
of this agreement.
b. A consulting agreement executed between the Purchaser and Seller in
the form described in EXHIBIT A attached hereto and incorporated
herein by reference for all purposes (the " Seller Consulting
Agreement");
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND COMPANY. The Seller and
Company represent and warrant as follows:
a. OWNERSHIP OF THE ACQUIRED SHARES. The Seller is the sole record owner
of the Acquired Shares and is duly authorized and empowered to and has
executed and delivered to the Purchaser good, absolute and
indefeasible title to the Acquired Shares being sold to the Purchaser
hereunder, free and clear of all liens, encumbrances, charges,
escrows, equities, and other restrictions.
b. RECORDS. The books of account and minute books of the Company are
complete and correct, and reflect all those transactions involving its
business which properly should have been set forth in such books.
c. CORPORATE STANDING. The Company is duly incorporated and validly
existing under the laws of the State of Florida; the Company is duly
qualified to conduct business in all jurisdictions where it is
required to qualify; each of SELLER and the Company has the corporate
power and authority to execute, deliver and perform this Agreement and
any other agreement or document executed by either of them under or in
connection with this Agreement; and each has taken all necessary
corporate action to authorize the execution, delivery and performance
of this Agreement and any such other agreement or document. This
Agreement constitutes, and any such other agreement or document when
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executed will constitute, the legal, valid and binding obligations of
SELLER and the Company enforceable against SELLER and the Company in
accordance with their respective terms.
d. NO VIOLATION OF LAW. Neither the execution nor delivery of this
Agreement nor the transactions contemplated herein, nor compliance
with the terms and conditions of this Agreement will:
(i) contravene any provision of law or any statute, decree, rule or
regulation binding upon SELLER or the Company or contravene any
judgment, decree, franchise, order or permit applicable to SELLER
or the Company; or
(ii) conflict with or result in any breach of any terms, covenants,
conditions or provisions of, or constitute a default (with or
without the giving of notice or passage of time or both) under
the Articles of Incorporation or By-Laws of SELLER or the Company
or any agreement or other instrument to which SELLER or the
Company is a party or by which either is bound, or result in the
creation or imposition of any lien, security interest, charge or
encumbrance upon any of the assets, rights, contracts or other
property of the Company.
e. FINANCIAL STATEMENTS. The unaudited financial statements of the
Company as at September 30, 2002 including profit and loss statements
for the periods then ended as of these dates, as set forth in EXHIBIT
B hereto (the "Financial Statements"), present fairly, in the case of
the profit and loss statements, the results of operations of the
Company for the fiscal periods then ended, and in the case of the
balance sheets, the financial condition of the Company at said dates.
f. TAXES. The Company has filed all tax returns, which it has been
required to file and has paid all taxes and interest and penalties, if
any, which it has been required to pay. The Company has made provision
sufficient to satisfy any and all accrued tax liabilities.
g. RIGHTS. Apart from the Company Assets and other assets set forth in
the Financial Statements, the Company has no assets, rights or other
property except as otherwise stated herein.
h. TITLE. None of the Company Assets (i) violates or infringes any
contract, copyright, trademark, service xxxx, right of privacy, patent
or other right, or (ii) contains any material which the Company is not
duly authorized to use, or (iii) misuses or misappropriates any trade
secret or confidential or proprietary information.
i. LITIGATION. There is no litigation or arbitration or administrative
proceeding or claim asserted, pending or threatened respecting or
involving the Company, the business of the Company or any of the
Company Assets or other assets of the Company save for those listed on
Exhibit J.
j. COMPLIANCE. There is no order, writ, injunction or decree of any
court, government or governmental agency or any arbitration award
affecting the Company, the business of the Company or any of the
Company Assets or other assets of the Company. The Company and its
assets and operations are in compliance with all applicable laws,
rules, regulations and ordinances.
k. EMPLOYEES. EXHIBIT C hereto contains a list of all the officers,
directors, employees and agents of the Company, their salaries and
other compensation arrangements; the Company has no other obligations
for salary or compensation, except as listed in EXHIBIT I.
l. BENEFIT PLANS. EXHIBIT D hereto contains true and complete copies of
all health, pension, retirement, profit sharing and deferred
compensation arrangements maintained by the Company. All of these are
in compliance with all applicable laws, rules and regulations.
m. BANK ACCOUNTS. EXHIBIT E hereto contains a list of all the banks at
which the Company has accounts and the authorized signatories on such
accounts.
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n. EXHIBIT F hereto contains a description of all insurance's maintained
by the Company; no default exists with respect to any of such
insurance's and all of such insurance's are in full force and effect.
o. EQUITY. There is no option, warrant, privilege, or other right
outstanding with respect to any unissued shares of the Company,
whether treasury shares or otherwise, and there is no option, warrant,
privilege or other right outstanding with respect to any of the
Shares; the Seller has issued and outstanding 375,671,000 shares of
common stock, no par value per share; there are no other shares of the
Company outstanding; the Company is only authorized to issue
500,000,000 shares of common stock with no par value of per share and
15,000,000 shares of preferred stock with no par;
p. NO AUTHORIZATION. No authorization, consent or approval of, or
exemption by, any governmental, judicial or public body or authority
of or in any state is required to authorize, or is required in
connection with (i) the execution, delivery and performance by SELLER
of this Agreement, or (ii) any of the transactions contemplated by
this Agreement, or (iii) any of the certificates, instruments or other
agreements executed by SELLER in connection with this Agreement, or
(iv) the taking of any action by Purchaser;
q. ARTICLES AND BY-LAWS. EXHIBITS G and H hereto contain, respectively,
true and complete copies of the Articles of Incorporation and By-Laws
of the Company, and the same have not been amended and are in full
force and effect;
r. NO UNTRUE STATEMENTS. No representation or warranty by the Seller or
Company in this Agreement or in any writing furnished or to be
furnished pursuant hereto, contains or will contain any untrue
statement of a material fact, or omits, or will omit to state any
material fact required to make the statements herein or therein
contained not misleading.
s. RELIANCE. The foregoing representations and warranties are made by the
Seller and Company with the knowledge and expectation that the
Purchaser is placing complete reliance thereon.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchase represents
and warrants the following:
a. NO UNTRUE STATEMENTS. No representation or warranty by the Seller or
Company in this Agreement or in any writing furnished or to be
furnished pursuant hereto, contains or will contain any untrue
statement of a material fact, or omits, or will omit to state any
material fact required to make the statements herein or therein
contained not misleading;
b. RELIANCE. The foregoing representations and warranties are made by the
Purchaser with the knowledge and expectation that the Purchaser is
placing complete reliance thereon.
5. SURVIVAL OF WARRANTIES. All representations, covenants, warranties and
agreements made by the parties in this Agreement or in any agreement,
document, statement or certificate furnished hereunder or in connection
with the negotiation, execution and performance of this Agreement shall
survive the date of this Agreement and any instrument delivered as
described herein. Notwithstanding any investigation or audit conducted
before or after the date hereof or the decision of any party to complete
the sale and purchase described herein, each party shall be entitled to
rely upon the representations, covenants, warranties and agreements set
forth herein and therein.
6. NO BROKERS. Each of the parties represents and warrants to the other
parties that all negotiations relative to this Agreement have been carried
on by such party directly and without the intervention of any person, firm,
corporation or entity who or which may be entitled to any brokerage or
finder's fee or other commission in respect of the execution of this
Agreement or the consummation of the transactions contemplated hereby, and
each party shall indemnify and hold harmless all of the other parties
hereto against any and all claims, losses, liabilities or expenses which
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may be asserted against any such other party as a result of the dealings,
arrangements or agreements of such party or any of its affiliates with any
such person, firm, corporation or entity.
7. INDEMNIFICATION BY THE SELLER AND COMPANY. The Seller and Company agree to
indemnify and hold harmless the Purchaser against and in respect to all
damages (as hereinafter defined) in excess of $5,000.00. Damages, as used
herein shall include any claim, salary, wage, action, tax, demand, loss,
cost, expense, liability (joint or several), penalty, and other damage,
including, without limitation, counsel fees and other costs and expenses
reasonably incurred in investigating or attempting to avoid same or in
opposition to the imposition thereof, or in enforcing this indemnity,
resulting to the Purchaser from any inaccurate representation made by or on
behalf of the Seller and Company in or pursuant to this Agreement, breach
of any of the warranties made by or on behalf of the Seller or Company in
or pursuant to this Agreement, or breach or default in the performance by
the Seller or Company of any of the obligations to be performed by them
hereunder. All claims, salary, wage, action, tax, demand, loss, cost,
expense, liability (joint or several), penalty, and other damages
accurately disclosed in EXHIBIT I are excluded from this provision.
a. Notwithstanding the scope of the representations and warranties of the
Seller and Company herein, or of any individual representation or
warranty, or any disclosure to the Purchaser herein or pursuant
hereto, or the definition of damages contained in the preceding
sentence, or the Purchaser's knowledge of any fact or facts at or
prior to the date hereof, damages shall also include: all debts,
liabilities, and obligations of any nature whatsoever (whether
absolute, accrued, contingent, or otherwise, and whether due or to
become due) of the Company, as of the date hereof not reflected in any
exhibit furnished hereunder, whether known or unknown by the Seller or
Company; all claims, actions, demands, losses, costs, expenses, and
liabilities resulting from any litigation from causes of action
arising prior to the date hereof involving the Company or any
shareholders thereof other than the Seller, whether or not disclosed
to the Purchaser; all claims, actions, demands, losses, costs,
expenses, liabilities and penalties resulting from the Seller's
failure to own or possess, and have good title to all of the Acquired
Shares to be acquired by the Purchaser hereunder; all claims, actions,
demands, losses, costs, expenses, liabilities or penalties resulting
from the failure of the Seller or Company in any respect to perform
any obligation required by them to be performed at or prior to the
date hereof, or by reason of any default of the Seller or Company at
the date hereof, under any of the contracts, agreements, leases,
documents, or other commitments to which they, or either of them, are
a party or otherwise bound or affected; and all losses, costs, and
expenses (including without limitation all fees and disbursements of
counsel) relating to damages.
b. The Seller or Company, or any of them, shall reimburse and/or pay on
behalf of the Purchaser on demand for any payment made or required to
be made by the Purchaser at any time after the date hereof based upon
the judgment of any court of competent jurisdiction or pursuant to a
bona fide compromise or settlement of claims, demands or actions, in
respect to the damages to which the foregoing indemnity relates. The
Purchaser shall give the Seller or Company written notice within 30
days after notification of any litigation threatened or instituted
against the Purchaser which might constitute the basis of a claim for
indemnity by the Purchaser against the Seller or Company, or any of
them.
c. Notwithstanding anything contained in this Agreement to the contrary,
the right to indemnification described in this section shall expire
four years after the date hereof, except in the case of the proven
fraud by the Seller or Company as determined by a court of competent
jurisdiction in connection with any such claim for indemnification, in
which event such right to indemnification shall expire four years
after the discovery of such fraud.
8. INDEMNIFICATION BY THE PURCHASER. The Purchaser agrees to indemnify and
hold harmless the Seller or Company, jointly and severally, against and in
respect to all damages incurred by the Seller or Company, or any of them,
after the date hereof and arising out of the transactions hereunder for
which the Purchaser has been determined liable based upon the judgment of
any court of competent jurisdiction or pursuant to a bona fide compromise
or settlement of claims, demands or actions to which the Purchaser is a
party, in respect to the damages to which the foregoing indemnity relates.
Notwithstanding anything contained in this Agreement to the contrary, the
right to indemnification described in this paragraph shall expire four
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years after the date hereof, except in the case of the proven fraud by the
Purchaser hereunder as determined by a court of competent jurisdiction in
connection with any such claim for indemnification, in which event such
right to indemnification shall expire four years after the discovery of
such fraud.
9. CONTRACTUAL CONSENTS NEEDED. The parties to this Agreement have delivered
to each other all consents required for the consummation of the
transactions contemplated by this Agreement from any party to any contract,
agreement, instrument, lease, license, arrangement, or understanding to
which any of them is a party, or to which any of their respective
businesses, properties, or assets are subject.
10. DELIVERIES BY THE SELLER AND COMPANY.
a. The Acquired Shares, free and clear of all liens, encumbrances,
charges, escrows, equities, and other restrictions, except as may be
otherwise permitted hereunder;
b. The Seller Consulting Agreement;
c. The certified copies of the various corporate resolutions of the
Company as described in Paragraph 3(e) hereof;
d. Company shall provide a list of all outstanding liabilities in EXHIBIT
I hereto;
e. Company shall provide a certificate of good standing within the state
of Florida;
f. Any other document which may be necessary to carry out the intent of
this Agreement.
11. DELIVERIES BY THE PURCHASER.
a. The Seller Consulting Agreement;
b. $20,000 in cash;
c. and any other document which may be necessary to carry out the intent
of this Agreement.
12. COVENANTS OF THE PURCHASER.
a. Securities Exchange Commission (SEC) filings. The Company's 10-KSB is
due on or about March 31, 2003 and must be timely filed by the
Purchaser. The Purchaser acknowledges, as a condition precedent to
closing the Purchaser must pay for this audit. The Purchaser will
complete the December 31, 2002 10-KSB within in the 90 days allowed by
the SEC.
13. COVENANTS OF THE SELLER.
a. Securities Exchange Commission (SEC) filings. The Company's 10-KSB is
due on or about March 31, 2003 and must be timely filed by the
Purchaser. The Seller and Company acknowledge that the SEC filings are
currently delinquent. The Seller and Company acknowledge that the
Purchaser will complete the December 31, 2002 10-KSB within in the 90
days allowed by the SEC. The Seller and Purchaser will provide any
necessary assistance to complete the 10-KSB.
b. Prior to the Closing, the Company will continue to conduct, and SELLER
will cause the Company to continue to conduct, its business in
accordance with the Company's normal and past practices.
c. Prior to the Closing, the Company will not do, and SELLER will not
permit the Company to do, any of the following without BUYER's prior
written consent.
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i. issue any shares, or issue any rights or privileges to acquire
any shares or other securities of the Company, or issue any other
securities;
ii. change the nature of its business;
iii. declare or pay any dividend or make any other distribution or
payment in respect of any of its shares or purchase or redeem any
of its shares;
iv. merge or consolidate with any corporation or other entity or
liquidate or dissolve;
v. adopt or agree to adopt any plan providing for its
reorganization;
vi. make any loan or other extension of credit or issue any guaranty
or otherwise incur any contingent liability [except for
extensions of credit not exceeding thirty (30) days to trade
creditors in accordance with past practices and in the normal
course of business;
vii. sell, pledge, transfer, assign or grant a security interest in
any of its assets, property, contracts or rights;
viii. enter into or terminate any contract;
ix. employ anyone or terminate anyone's employment;
x. pay any compensation other than the current monthly payroll,
raise or agree to raise anyone's compensation, or pay or agree to
pay any bonus or other special compensation.
14. NOTICES. All notices, requests, demands, and other communications hereunder
shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage
prepaid. Any party hereto may change its address upon 10 days' written
notice to any other party hereto.
a. if to SELLER:
Xxxxxxx Xxxxx
0000 Xxxx Xxxxxxxx Xxxx Xxxx
F-8, PMB 445
Scottsdale, AZ 8525
b. if to the Purchaser:
Xxxx Xxxxx at
0 Xxxx Xxxxx,
Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000
c. and if to the Company:
Xxxxxxx Xxxxx
0000 Xxxx Xxxxxxxx Xxxx Xxxx
F-8, PMB 445
Xxxxxxxxxx, XX 00000
15. LEGAL CONSTRUCTION. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions hereof, and this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
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16. ATTORNEY'S FEES. In the event that it should become necessary for any party
entitled hereunder to bring suit against any other party to this Agreement
for enforcement of the covenants herein contained, the parties hereby
covenant and agree that the party who is found to be in violation of said
covenants shall also be liable for all reasonable counsel's fees and costs
of court incurred by the other parties hereto.
17. CUMULATIVE RIGHTS. The rights and remedies of any party under this
Agreement and the instruments executed or to be executed in connection
herewith, or any of them, shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
18. INVALIDITY. In the event any one or more of the provisions contained in
this Agreement or in any instrument referred to herein or executed in
connection herewith shall, for any reason, be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect the other provisions of this Agreement or
any such other instrument.
19. HEADINGS. The headings used in this Agreement are for convenience and
reference only and in no way define, limit, simplify or describe the scope
or intent of this Agreement, and in no way effect or constitute a part of
this Agreement.
20. PUBLIC ANNOUNCEMENTS. Except as otherwise required by law, no public
announcements shall be made by any party regarding the transactions
contemplated hereby without the prior approval of the other parties, which
approval shall not be unreasonably withheld.
21. CONTROLLING AGREEMENT. In the event of any conflict between the terms of
this Agreement or the any other agreement described herein, the terms of
this Agreement shall control.
22. NO THIRD-PARTY BENEFICIARY. Any agreement to pay an amount and any
assumption of liability herein contained, express or implied, shall be only
for the benefit of the undersigned parties and their respective successors
and permitted assigns (as herein expressly permitted), and such agreements
and assumptions shall not inure to the benefit of the obligees or any other
party, whomsoever, it being the intention of the parties hereto that no one
shall be or be deemed to be a third-party beneficiary of this Agreement.
23. BENEFIT. All the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto,
and their successors and permitted assigns.
24. LAW GOVERNING. This Agreement shall be construed and governed by the laws
of the State of Arizona, and all obligations hereunder shall be deemed
performable in Maricopa County, Arizona.
25. PERFECTION OF TITLE. The parties hereto shall do all other acts and things
that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Agreement, and to carry out the intent
of this Agreement.
26. CUMULATIVE RIGHTS. The rights and remedies of any party under this
Agreement and the instruments executed or to be executed in connection
herewith, or any of them, shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
27. WAIVER. No course of dealing on the part of any party hereto or its agents,
nor any failure or delay by any such party with respect to exercising any
right, power or privilege of such party under this Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any
single or partial exercise of any such right, power or privilege shall not
preclude any later exercise thereof or any exercise of any other right,
power or privilege hereunder or thereunder.
28. CONSTRUCTION. Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context
requires otherwise. In addition, the pronouns used in this Agreement shall
be understood and construed to apply whether the party referred to is an
individual, partnership, joint venture, corporation or an individual or
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individuals doing business under a firm or trade name, and the masculine,
feminine and neuter pronouns shall each include the other and may be used
interchangeably with the same meaning.
29. MULTIPLE COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
30. ENTIRE AGREEMENT. This instrument contains the entire understanding of the
parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by the party against
whom enforcement of any waiver, change, modification, extension, or
discharge is sought. This Agreement supersedes any written or oral
agreement between the parties. No party hereto is relying on any oral
statements or representations of any other party, or any officer, director,
agent, stockholder or employee of another party.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
Indiginet, Inc.
By /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Director and Secretary
By /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
By /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Attachments:
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Exhibit A - Seller Consulting Agreement
Exhibit B - Unaudited Financial Statements for Indigitnet, Inc.
Exhibit C - List of all Indigitnet, Inc. Officers and Directors
Exhibit D - List of all health, Pension, Retirement, Profit Sharing and Deferred
Compensation Plans
Exhibit E - List of all Bank Accounts
Exhibit F - List and copies of all Insurance Policies
Exhibit G - Indiginet, Inc. Articles of Incorporation
Exhibit H - Indiginet, Inc. By-Laws
Exhibit I - List of all Indiginet, Inc. Outstanding Liabilities
Exhibit J - List of Litigation
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