STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is made as of January 31,
2002, by and between Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx, as tenants by the
entireties ("Seller") and Whitney Information Network, Inc., a Colorado
corporation (the "Buyer").
A. Seller is the owner of one hundred (100) shares of common stock (the
"Shares") of Whitney Leadership Group, Inc. (the "Company").
B. Seller desires to sell and Buyer desires to purchase all of the Shares
now owned by Seller on the terms and subject to the conditions set forth in
this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Purchase and Sale of Common Stock
1.1 Purchase Price
Seller shall sell to Buyer and Buyer shall purchase from Seller the Shares
for the purchase price of one million two hundred thousand dollars
($1,200,000.00) payable as set forth below.
1.2 Payment of Purchase Price
On the Closing Date as defined herein, Buyer shall deliver to the Seller
three hundred thousand dollars ($300,000.00) in the form of a commercial
bank check or wire transfer and a promissory note in the form of Exhibit
"A" attached hereto in the principal amount of nine hundred thousand
dollars ($900,000.00), payable in three (6) semi-annual installments of one
hundred fifty thousand dollars ($150,000.00) due and payable on each
February 28/th/ and August 28/th/ beginning February 28, 2004 until paid
with interest at 7%.
2. Closing
The closing of the transaction (the "Closing") provided for herein shall
take place on or before April 15, 2003 at the offices of the Company or at
such other place or time agreed upon by Buyer and Seller (the "Closing
Date").
2.1 Documents Delivered By Seller
Subject to the terms and conditions hereof, on the Closing Date, Seller
shall deliver to Buyer the following documents and instruments: (i) stock
certificates evidencing the shares, with the assignments endorsed thereon
or with an executed assignment separate from the certificate; and (ii) one
(1) original resolution of the board of directors of the Company
acknowledging the sale of the Shares and approving any other documents to
be executed by the Company;
2.2 Documents Delivered by Buyer
Subject to the terms and conditions hereof on the Closing Date, Buyer shall
deliver
to Seller the following documents and instruments: (i) bank check or wire
transfer in the amount of three hundred thousand dollars ($300,000.00) and
a promissory note in the principal amount of nine hundred thousand dollars
($900,000.00).
3. Buyers' Conditions Precedent to Closing
All of the obligations of the Buyer under this Agreement are subject to the
fulfillment at or before the Closing of each of the following conditions,
any of which may be waived in writing by the Buyer.
3.1 Representations and Warranties
The representations and warranties of the Seller contained herein shall be
true and correct on and as of the Closing Date with the same effect as if
made on and as of the Closing Date.
3.2 Performance
The Seller shall have performed or fulfilled all agreements, obligations
and conditions contained herein including but not limited to the execution
of the documents set forth in Section 2.1 and shall have obtained all
consents, waivers and approvals necessary to transfer the Shares and for
Buyer to operate the business of the Company.
3.3 Buyer's Investigation
Buyer's reasonable satisfaction with the results of Buyer's due diligence
investigation including but not limited to
(a) A satisfactory assessment of the business; competition and the
market;
(b) Buyer's satisfaction with the Financial Statements and other
financial books and records of the Company;
(c) Buyer's approval of the equipment, furniture, intellectual
property and the Company's inventory (collectively referred to as the
"Assets");
(d) Buyer's satisfaction with the results of the investigation into
any potential environmental or occupational, safety and health issues
which may affect the viability of the Company; and
(e) Buyer's satisfaction with the results of interviews with key
employees, customers, suppliers and creditors of the Company which
shall take place at time and place agreed upon by Buyer and Seller.
3.4 Approval of Contracts and Related Agreements
The approval of Buyer and Buyer's professional advisors of all contracts,
instruments and other documents arising out of or delivered pursuant to
this Agreement and any agreement pending or continuing as of the Closing
Date between the Company and third parties.
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3.5 Maintenance of Key Agreements
The maintenance of all exclusive dealerships, distributorships,
representation agreements, lease agreements, the bank credit line and other
agreements, and other material agreements of the Company currently in
effect or for the benefit of the Company, to the Company and/or Buyer
following the Closing Date on substantially the same terms as are presently
extended to the Seller and/or the Company.
3.6 Profit Sharing Plan
The Seller shall have paid the total amount due to the Company's Profit
Sharing Plan and Retirement Trust for each fiscal year since the plan and
trust were adopted or shall have settled such obligation in a manner
satisfactory to the Buyer.
3.7 Premises Lease
The Company shall have maintained in good standing the terms of the lease
to the property located at 0000 X. Xxxx Xxxxx Xxxxxxx and 0000 Xxxxxxxx
Xxxxxxx, Xxxx Xxxxx Xxxxxxx (the "Premises Lease").
3.8 Material Deterioration
There shall have been no Material Deterioration in the business, financial
condition or operating results of the Company.
3.9 No Pending Litigation
No material action, suit or proceeding shall be pending or threatened
against he Company or the Seller which (in the case of a suit against the
Seller) relates to this Agreement or the transactions contemplated hereby
or which if decided unfavorably would adversely affect the right of Buyer
to own and operate the Company or the value of the Company. Any action,
suit or proceeding with an actual or potential claim of one thousand
dollars ($1,000.00) or more or an estimated cost to defend of five hundred
($500.00) or more shall be deemed to be "material".
4. Seller's Conditions Precedent to Closing
The obligations of the Seller under this Agreement are subject to the
fulfillment at or before the Closing of each of the following conditions,
any of which may be waived in writing by the Seller.
4.1 Representations and Warranties
The representations and warranties of Buyer contained in this Agreement
shall be true and correct on and as of the Closing Date with the same
effect as though said representations and warranties had been made on and
as of the Closing Date.
4.2 Approval of Contracts and Related Agreements
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The approval of Seller and Seller's professional advisors of all contracts,
instruments and other documents, including but not limited to the
Promissory Note, arising out of or delivered pursuant to this Agreement.
4.3 Performance
The Buyer shall have performed or fulfilled all agreements, obligations and
conditions contained herein and shall have obtained all consents, waivers
and approvals necessary to transfer the Shares to Buyer.
4.4 Seller's Satisfaction with Buyer's Financial Status
Seller's satisfaction with the most recent financial statements, credit
reports, and business and personal references, provided by Buyer.
5. Seller's Representation and Warranties
Seller hereby represents and warrants to Buyer as follows.
5.1 Seller's Title
Seller has and as of the Closing Date shall have good and marketable title
to the Shares free and clear of all liens, security interests, claims,
options, charges or encumbrances. None of the Shares are subject to any
outstanding agreements of sale or rights of third parties to acquire any
interest therein. The Shares constitute all of the capital stock of the
Company owned by the Seller. Seller has the right and authority to execute,
deliver, and perform this Agreement and all agreements delivered in
connection herewith (the "Related Agreements") and to sell and transfer the
Shares to Buyer. To Seller's knowledge, this Agreement, and all Related
Agreements, constitutes legal, binding and valid obligations of the Seller,
enforceable in accordance with their respective terms.
5.2 Corporate Organization and Authority
The Company:
(a) Is a corporation duly organized, validly existing, authorized to
exercise all of its corporate powers, rights and privileges, and in
good standing in the State of Florida;
(b) Has the corporate power and corporate authority to own and operate
its properties and to carry on its business as now conducted; and
(c) Is qualified as a foreign corporation in all jurisdictions in
which such qualification is required.
5.3 Capitalization
Immediately prior to the Closing, the authorized capital of the Company
shall consist of one hundred (100) shares of common stock of which one
hundred (100) shares are duly and validly issued (including, without
limitation, issued to Seller's knowledge in compliance with applicable
federal and state securities laws), fully-
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paid non-assessable, outstanding and held by the Seller. There are no
outstanding warrants, options, conversion privileges, preemptive rights,
voting agreements or similar arrangements, or other rights or agreements to
purchase or otherwise acquire or issue any equity securities of the
Company.
5.4 Subsidiaries
The Company does not currently own, have any investment in, or control,
directly or indirectly, any subsidiaries, associations or other business
entities. The Company is not a participant in any joint venture or
partnership.
5.5 No Conflict with Other Instruments
The execution, delivery and performance of this Agreement and the Related
Agreements will not result in any material violation of, be in conflict
with, or constitute a default under, with or without the passage of time or
the giving of notice: (i) any provision of the Company's Articles of
Incorporation or Bylaws; (ii) any provision of any judgment, decree or
order to which the Company or Seller is party or by which it is bound;
(iii) any material contract, obligation or commitment to which the Company
or Seller is a party or by which either of them is bound; or (iv) to
Seller's knowledge, any statute, rule or governmental regulation applicable
to Seller or the Company.
5.6 Financial Statements and Business Plan
Seller has delivered to Buyer (i) the Company's unaudited balance sheet at
September 30, 2002 (the "Balance Sheet") (ii) the Company's year-to-date
income statement of December 31, 2002 and (iii) the Company's unaudited
financial statements for the years ended September 30, 2001 and September
30, 2000 (collectively, the "Financial Statements"). The Financial
Statements (attached hereto as Exhibit "B" and incorporated herein by
reference) are substantially in accordance with the Company's books and
records, complete and accurate in all material respects and to Seller's
knowledge prepared in accordance with generally accepted accounting
principles and fairly present the financial condition of and operating
results of the Company during the period indicated therein.
5.7 Changes
Since the Balance Sheet Date and prior to Closing, there has not been:
(a) Any change in the assets, liabilities, financial condition, or
operations of the Company except changes in the ordinary course of
business which have not been, either in any case or in the aggregate,
materially adverse;
(b) Any damage, destruction, or loss, whether or not covered by
insurance, materially and adversely affecting the properties or
business of the Company;
(c) Any waiver or compromise by the Company of a valuable right or of
any debt owed to it;
(d) Any loans made by the Company to its employees, officers or
directors
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other than travel or like advances made in the ordinary course of
business not in excess of one hundred dollars ($1000.00);
(e) Any declaration or payment of any dividend or other distribution
by the Company or any repurchase or redemption of the Company's
capital stock;
(f) Any cancellation of any material purchase order or contract or
any write-off as uncollectible two thousand dollars ($2,000.00) or
greater; or
(g) Any Material Deterioration or any other event or condition of any
character which has materially and adversely affected the Company's
business or prospects.
5.8 No Liabilities
Except as have been incurred in the ordinary course of business since the
Balance Sheet Date, the Company has no liabilities, obligations or
commitments greater than five thousand dollars ($5,000.00), whether
absolute or contingent and whether due or to become due other than as set
forth in the Financial Statements.
5.9 Litigation
There is as of the Closing no claim, action, lawsuit, proceeding or
investigation pending or threatened against the Company, (or to the
knowledge of the Seller, against any of its officers or directors) or any
basis therefore known to the Seller, including, without limitation, that
questions the validity of this Agreement or the right of the Seller to
enter into this Agreement. There is no judgment, decree or order of any
Court or any arbitration or governmental authority in effect against the
Company or any of its properties and the Company is not in default with
respect to any such judgment, decree or order to which the Company is a
party or by which it is bound. There is no action, suit, proceeding or
investigation by the Company currently pending or which the Company
presently intends to initiate.
5.10 Title to Properties; Liens and Encumbrances
Attached hereto as Exhibit "C" and incorporated herein by reference is a
true and correct copy of all of the Assets currently owned by the Company
(the "Assets"). The Company has good and marketable title to the Assets.
The Company's assets include all assets tangible and intangible owned by
the company subject to all liabilities owed by the company, including all
of the rights, trademarks, copyrights, titles and licenses to use all of
the infomercials, books, tapes, and CD's for all products and services
presently sold by WEG, including any brand names and patents, including
the rights to use the name Xxxx Xxxxxxx for all lawful, moral, and
ethical purposes but not for any use prohibited by public policy, in
which case, all rights revert back to the Seller. The Assets are not
subject to any mortgage, pledge, lien, security interest, conditional
sale agreement, option license, encumbrance or charge. The Company owns
or leases all tangible assets necessary for the conduct of its business
as currently conducted.
5.11 Condition of Assets
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The Assets are currently in good operating condition and repair (subject
to normal wear and tear) and are suitable for the purposes for which they
are currently used. All current inventory of the Company is of
merchantable quality and saleable in the ordinary course of the Company's
business.
5.12 Patents and Other Proprietary Rights
To the knowledge of the Seller: (i) the Company has sufficient title and
ownership of all patents, trademarks, service marks, trade names,
copyrights, trade secrets, information, proprietary rights and processes
necessary for its business as now conducted, and as proposed to be
conducted, and (ii) the use thereof does not, and will not, conflict with
or constitute an infringement of the rights of others.
5.13 Taxes
As of Closing, all federal, state, local, foreign, employment and
property tax returns required to be filed by the Company have been filed,
or if not yet filed have been granted extensions of the filing dates
which extensions have not expired, and all taxes, assessments, fees and
other governmental charges upon the Company, or upon any of its Assets or
income (including all employment taxes) have been paid.
5.14 No Defaults, Violations or Conflicts
The Company is not and as of the Closing shall not be in violation of any
term or provision of its articles of incorporation, bylaws or any
material term or provision of any indebtedness, mortgage, indenture,
contract, agreement, judgment, or any decree or order.
5.15 Insurance
The Company currently has in effect insurance including but not limited
to workers' compensation insurance, covering risks associated with its
business in such amounts as the Company believes are customary in its
industry. The Seller is not aware of any pending or threatened claims
against the Company for personal injuries, product liability or property
damages
5.16 Employee Compensation Plans
The Company is not party to, or bound by any currently effective
employment contracts, deferred compensation agreements, bonus plans,
incentive plans, profit sharing plans, retirement agreements or other
employee compensation agreements. Subject to applicable law, the
employment of each officer and employee of the Company is terminable at
the will of the Company.
5.17 Accounts Receivable
All accounts receivable of the Company reflected on the Balance Sheet are
valid receivables subject to no material setoffs or counterclaims and are
current and collectible (within ninety (90) days after the date on which
it first became due and payable), net of the applicable reserve for bad
debts reflected in the Balance Sheet. To Seller's knowledge, all accounts
receivable reflected in the financial or
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accounting records of the Company that have arisen since December 31,
2002 are valid receivables subject to no material setoffs or
counterclaims and are collectible, net of a reserve for bad debts in an
amount proportionate to the reserve reflected in the Balance Sheet.
5.18 Product Warranty
No product sold, leased or delivered by the Company prior to Closing is
subject to any guaranty, warranty, right of return or other such
indemnity beyond the manufacturer's warranty. The Company has no
liability for product liability or product warranty claims with respect
to sales of products or services prior to Closing (other than product
warranty claims in the ordinary course of business) that would not have a
material adverse effect on the Company or its financial condition.
5.19 Legal Compliance
To Seller's knowledge, the Company, and the conduct and operations of its
business, will be in substantial compliance with each law (including
rules and regulations thereunder) of any federal, state, local or foreign
government, or any governmental entity, which (a) affects or relates to
this Agreement or the transactions contemplated hereby or (b) is
applicable to the Company or business, except for any violation of or
default under a law referred to above which reasonably may be expected
not to have a material adverse effect on the assets, business financial
condition or results of operations of the Company.
5.20 Permits
Exhibit "D" sets forth a list of all material permits, licenses,
registrations, certificates, orders or approvals from any governmental
entity (including without limitation those issued or required under
environmental laws and those relating to the occupancy or use of owned or
leased real property) ("Permits") issued to or held by the Company and
currently required for the operation of its business. Such listed Permits
are the only Permits that are required for the conduct of the Company's
business as currently conducted, except for those the absence of which
would not have any material adverse effect on the Assets, business'
financial condition, results of operations or future prospects of the
Company. Each such Permit is in full force and effect and, to Seller's
knowledge no suspension or cancellation of such Permit is threatened and
the Seller believes that such Permit will be renewed upon expiration.
5.21 Brokers' Fees
Neither the Seller nor the Company has any liability or obligation to pay
any fees or commissions to any broker, finder or agent with respect to
the transactions contemplated by this Agreement.
5.22 Books and Records
As of Closing, the minute book and other similar records of the Company
contain true and complete records of all actions taken at any meetings of
the Company's
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shareholders and Board of Directors, and of all written consents executed
in lieu of the holding of any such meeting and the books and records of
the Company accurately reflect in all material respects the assets,
liabilities, business, financial condition and results of operations of
the Company and have been maintained in accordance with good business and
bookkeeping practices.
5.23 Customers and Suppliers
No material supplier of the Company has indicated within the past year
that it will stop, or materially decrease the rate of, supplying
materials, products, or services to them and no material customer of the
Company has indicated within the past year that it will stop, or
materially decrease the rate of buying materials, products or services
from it.
5.24 Employee Relations
As of Closing, the Seller believes its relations with the Company's
employees are satisfactory. The Company's employees are not represented
by any labor unions nor, to the Seller's knowledge, is any union
organization campaign in progress. The Seller is not aware that any of
its officers or employees intend to terminate employment.
5.25 Environmental Regulations
To Seller's knowledge, the Company has substantially met, and will
continue through Closing, to substantially meet, all applicable United
States local, state, federal and national environmental regulations and
has disposed of its waste products and effluent and/or has caused others
to dispose of such waste products and effluent, in accordance with all
applicable United States local, state, federal and national environmental
regulations and in such a manner that no harm has resulted or will result
to any of its respective employees or properties or to any other person
or entities or their properties.
5.25 Full Disclosure
The representations and warranties of the parties contained in this
Agreement, the other provisions of this Agreement and all other documents
delivered to one another in connection with the purchase and sale of the
Shares when read together, do not contain and will not contain any untrue
statement of a material fact or omit any material fact necessary to make
the statements contained therein or herein in view of the circumstances
under which they were made not misleading.
6. Representations and Warranties of Buyer
Buyer represents and warrants to the Company as follows.
6.1 Authorization
This Agreement and all the Related Agreements constitute the legally
binding and valid obligations of Buyer, enforceable in accordance with
their respective terms. Buyer has the right and authority to execute,
deliver and perform this Agreement
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and all of the Related Agreements and to purchase the Shares from the
Seller.
6.2 Broker's Fees
Buyer has no liability or obligation to pay any fees or commissions to
any broker, finder or agent with respect to the transactions contemplated
by this Agreement.
7. Covenants
7.1 Best Efforts
Each of the parties shall use its best efforts, to the extent
commercially reasonable, to take all action and to do all things
necessary, proper or advisable including but not limited to obtaining all
such waivers, permits, consents, approvals or other authorizations from
third parties and governmental entities, as may be necessary or desirable
in connection with the transactions contemplated by this Agreement.
7.3 Confidentiality
Prior to the Closing Date (or at any time if the Closing does not occur)
Buyer shall keep confidential and not disclose to any Person (other than
its employees, attorneys, accountants and advisors) or use (except in
connection with the transactions contemplated hereby) all non-public
information obtained by Buyer pursuant to this Agreement. Following the
Closing, Seller shall keep confidential and not disclose to any Person
(other than its employees, attorneys, accountants and advisors) or use
(except in connection with preparing Tax Returns and conducting proceeds
relating to Taxes) any nonpublic information relating to the Company and
its Subsidiaries. This Section 7.3 shall not be violated by disclosure
pursuant to court order or as otherwise required by law, on condition
that notice of the requirement for such disclosure is given the other
party prior to making any disclosure and the party subject to such
requirement cooperates as the other may reasonably request in resisting
it. If the Closing does not occur, Buyer shall return to Seller, or
destroy, all information it shall have received from Seller or Company in
connection with this Agreement and the transactions contemplated hereby,
together with any copies or summaries thereof or extracts therefrom.
Seller and Buyer shall use their best efforts to cause their respective
representatives, employees, attorneys, accountants and advisors to whom
information is disclosed pursuant to this Agreement to comply with the
provisions of this Section 7.3.
8. Indemnification
8.1 Indemnification by Seller
Seller shall indemnify the Company and Buyer in respect of, and hold the
Company and Buyer harmless against, any and all debts, obligations and
other liabilities (whether absolute, accrued, contingent, fixed or
otherwise, or whether known or unknown, or due or to become due or
otherwise), monetary damages, fines, fees, penalties, interest
obligations, deficiencies, losses and expenses (including without
limitation attorneys fees and litigation costs) incurred or suffered by
the Company and Buyer:
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(a) Resulting from any misrepresentation, breach of warranty or
failure to perform any covenant or agreement of the Seller contained
in this Agreement;
(b) Resulting from any income, franchise, employment, excess or
property taxes owing or arising on account of or in connection with
the operation of the Company prior to the Closing which taxes (if not
previously paid) are not reflected on the Closing Balance Sheet; and
(c) Resulting from any liability (other than the Assumed Liabilities)
which are not reflected in the Closing Balance Sheet.
8.2 Indemnification by Buyer
Buyer shall indemnify Seller in respect of and hold Seller harmless
against any and all debts, obligations or other liabilities, monetary
damages, fines, fees or penalty interest obligations, deficiencies,
losses and expenses (including without limitation attorneys fees and
litigation costs) incurred or suffered by the Seller arising out of
Buyer's operation of the Company after the Closing Date.
8.3 Survival
The representations, warranties, covenants and agreements of Buyer and
Seller set forth in this Agreement shall survive the closing and
consummation of the transactions contemplated hereby for a period of two
(2) years from the Closing Date, except with respect to indemnification
for tax liability which shall survive for the applicable statute of
limitations and shall not be affected by any examination made for or on
behalf of the Buyer or the knowledge of the Buyer. If a notice is given
before expiration of such periods, then (notwithstanding the expiration
of such time period) the representation, warranty, covenant or agreement
applicable to such claim shall survive until, but only for purposes of,
the resolution of such claims.
9. Miscellaneous
9.1 Entire Agreement; Successors and Assigns
This Agreement and the Related Agreements constitute the entire agreement
between Seller and Buyer relative to the subject matter hereof. Any
previous agreements between the parties are superseded by this Agreement
and the Related Agreements. Subject to any exceptions specifically set
forth in this Agreement, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective executors,
administrators, heirs, successors and assigns of the parties.
9.2 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida.
9.3 Counterparts
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This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
9.4 Headings
The headings of the Sections of this Agreement are for convenience and
shall not by themselves determine the interpretation of this Agreement.
9.5 Notices
Any notice required or permitted hereunder shall be given in writing and
shall be conclusively deemed effectively given upon personal delivery, or
two days after deposit in the United States mail, by registered or
certified mail, postage prepaid, addressed (i) if to the Seller, as set
forth below the Seller's name on the signature page of this Agreement,
and (ii) if to a Buyer, at such Buyer's address as set forth on the
signature page or at such other address as the Seller or such Buyer may
designate by five days' advance written notice to the Buyer or the
Seller, respectively.
9.6 Amendment of Agreement
Except as expressly provided herein, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by
written instrument signed by the party against whom enforcement of any
such amendment, waiver, discharge or termination is sought.
9.7 Parties in Interest
Nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any
persons other than the parties to it and their respective successors and
assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party
of this Agreement, nor shall any provision give any third persons any
right of subrogation or action over against any party to this Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
SELLER BUYER
Xxxxxxx and Xxxxxx Xxxxxxx,
As tenants by the entireties Whitney Information Network, Inc.
000 Xxxxxxxx Xxxxx 0000 X. Xxxx Xxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000 Xxxx Xxxxx, XX 00000
_____________________________ ___________________________________
Xxxxxxx X. Xxxxxxx By: Xxxxxx X. Xxxxx, Secretary
_____________________________
Xxxxxx Xxxxxxx
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