STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of ____________,
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2003, is made by and among xxxxxxxx.xxx, Inc., a Delaware corporation (the
"Purchaser") and the holders of all of the issued and outstanding capital stock
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of [ * ], a New York corporation (the "Company") (as indicated on
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Schedule I hereto) (individually, a "Stockholder" and collectively, the
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"Stockholders").
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WITNESSETH
WHEREAS, on February __, 2003, the parties hereto entered into that certain
Loan and Purchase Option Agreement (the "LPOA") pursuant to which the
Stockholders granted the Purchaser the option to purchase all of the issued and
outstanding capital stock of the Company held by them (collectively, the
"Shares" and such option, the "Purchase Option");
WHEREAS, the Stockholders and the Purchaser agreed that the sale and
purchase of the Shares upon any exercise by the Purchaser of the Purchase Option
will be effected by the execution and delivery by the parties of this Agreement
and each of the other documents, certificates and agreements contemplated
hereby;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto, intending to be legally bound,
agree as follows:
Certain terms used in this Agreement are defined in Section 8 hereof.
1. Sale and Purchase of Shares; Payment.
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1.1 Sale and Purchase of Shares. At the Closing, each Stockholder
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agrees to sell, transfer and assign the Shares owned by such Stockholder to the
Purchaser and, subject to all of the terms and conditions set forth herein and
in the LPOA, the Purchaser agrees to purchase each such Stockholders' Shares.
Upon the sale and purchase of the Shares to the Purchaser, the Purchaser will
own one hundred percent (100%) of the issued and outstanding capital stock of
the Company on a fully-diluted basis.
1.2 Purchase Price for the Shares. The aggregate purchase price
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for the Shares to be sold to the Purchaser on the Closing Date shall consist of
(i) the payment by the Purchaser to [ * ] ("[ * ]") of FORTY
THOUSAND DOLLARS AND NO/100 ($40,000) (the "Cash Payment") in consideration for
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its Shares and its undertakings hereunder and (ii) the issuance by the Purchaser
to the other Stockholders (excluding [ * ]) of an aggregate of two million
(2,000,000) shares of its common stock, $.001 par value (the "xxxxx.xxx Shares"
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and together with the Cash Payment, the "Purchase Price"). The xxxxx.xxx
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Shares will be unregistered, will constitute restricted securities within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"), and
will contain restrictive legends prohibiting the transfer of such shares other
than in compliance with applicable federal and state securities laws. Purchaser
agrees to cooperate (including instructing its transfer agent) with appropriate
requests for transfer of the xxxxx.xxx Shares, or removal of the restrictive
legend, consistent with the provisions of Rule 144 promulgated under the
Securities Act and the Stockholders representations and warranties under section
4.6 hereof. The Stockholders acknowledge that as a condition to any such
transfer or removal of legend request, that the Purchaser or its transfer agent
may require an opinion of counsel reasonably acceptable to it (which may be
regular counsel to the Purchaser) to the effect that such transfer or removal
would be in compliance with the Securities Act and any applicable state
securities laws. Unless otherwise agreed by the Purchaser at the time of the
transfer or removal of restrictive legend request, the cost of any such opinion
will be split equally between the Stockholder making such request and the
Purchaser. The Stockholders understand that appropriate representations from
them will be necessary in connection with any such transfer or legend removal
request. The xxxxx.xxx Shares will be issued pro rata to the Stockholders (other
than to and taking into account the exclusion of [ * ]) in accordance
with their respective ownership percentages as set forth on Schedule II and the
holders thereof will be entitled to "piggy back" registration rights with
respect to such xxxxx.xxx Shares in the manner set forth on Schedule III.
2. The Closing.
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2.1 Closing. The closing of the purchase and sale of the Shares
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(the "Closing," and the date thereof, the "Closing Date") shall occur upon the
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execution and delivery of this Agreement and each of the other agreements
contemplated hereby by the parties hereto.
2.2 Closing Deliveries. At the Closing:
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(a) the Stockholders will deliver to the Purchaser the
following documents:
(i) counterparts of this Agreement duly executed by all such
Stockholders;
(ii) stock certificates representing the Shares, free and
clear of all claims, Liens and encumbrances;
(iii) an employment agreement executed by [ *
] in the form of Exhibit E-1 to the LPOA and an employment agreement
executed by [ * ] in the form of Exhibit E-2 to the LPOA;
(iv) a copy of the Company's charter documents, certified as
of a recent date by the Operating Stockholders (as defined in Section 8
hereof);
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(v) a certificate of status, compliance, good standing or
like certificate issued by the appropriate governmental official of the
Company's jurisdiction or organization and of each jurisdiction in which
the Company is qualified to do business as a foreign corporation;
(vi) if requested by the Purchaser, duly executed letters of
resignation from all of the officers (other than with respect to the
positions of [ * ] and [ * ] as contemplated by
the employment agreements referred to in clause (iii) above) and directors
of the Company by which they resign from all of their positions as officers
and/or directors of the Company; and
(vii) a certificate of the Operating Stockholders, dated the
Closing Date, stating that: (i) all of the Company's current employees and
contractors have executed and delivered to the Company agreements (in form
and substance satisfactory to the Purchaser) with respect to maintaining
the confidentiality of the Company's proprietary and/or confidential
information and the assignment to the Company of any and all rights they
might have or acquire with respect to technology, inventions, developments,
etc., developed in connection with their employment or other engagement
with the Company; (ii) each of the current key employees and contractors of
the Company has executed and delivered to the Company an agreement not to
compete with the Company (in form and substance satisfactory to the
Purchaser); and (iii) all necessary agreements, consents and waivers of any
person to the consummation of the transactions contemplated by this
Agreement have been obtained by the Company.
(b) The Purchaser will deliver the Purchase Price to the
Stockholders' Representative (which shall consist of individual checks and
stock certificates issued as indicated on Schedule II hereto, less stock
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certificates representing ten percent (10%) of the xxxxx.xxx Shares (the
"Escrow Shares") which shall instead be delivered to an escrow agent
pursuant to the Escrow Agreement as further described in Section 2.3 below.
2.3. Escrow Shares. On the Closing Date, the Purchaser shall
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deposit with an escrow agent (the "Escrow Agent") selected by the Purchaser and
reasonably acceptable to the Stockholders' Representative (on behalf of the
Stockholders), stock certificates for the Escrow Shares, for the purpose of
securing the indemnification obligations of the Stockholders and/or the Company.
The Escrow Shares, together with appropriate stock powers, shall be held by the
Escrow Agent pursuant to the terms of an Escrow Agreement in the form of Exhibit
2.3. The Escrow Shares shall be held as a trust fund and shall not be subject to
any lien, attachment, trustee process or any other judicial process of any
creditor of any party, and shall be held and disbursed solely for the purposes
and in accordance with the terms of the Escrow Agreement. The adoption of this
Agreement shall constitute approval of the Escrow Agreement, with such changes
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therein as may be approved by the Purchaser and the Stockholders'
Representative, and of all of the arrangements relating thereto by the
Stockholders.
3. Representations and Warranties of the Operating Stockholders. In order
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to induce the Purchaser to enter into this Agreement and to purchase the Shares,
the Operating Stockholders hereby jointly and severally represent and warrant to
the Purchaser as follows (subject in each case to such exceptions as are set
forth in the attached Disclosure Schedules ("Disclosure Schedules") in the
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section thereof numbered and captioned to correspond to the specific
representation or warranty to which such exception relates):
3.1 Organization and Authority. The Company is a corporation
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incorporated and in good standing under the laws of the State of New York. The
Company has all requisite corporate power to own or lease and operate its
properties and to carry on its business as now conducted and as proposed to be
conducted in the near term. Copies of the minute books of the Company have been
delivered to the Purchaser for inspection and accurately record therein all
corporate actions taken by the Board of Directors and stockholders of the
Company.
3.2 Subsidiaries. The Company does not have any Subsidiaries or own
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any legal and/or beneficial interests in any other person.
3.3 Capitalization.
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(a) Capital Stock. The Company's capital structure consists
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of ten thousand (10,000) authorized shares of common stock, $.01 par value, of
which five thousand nine hundred and sixty (5,960) shares are issued and
outstanding. All outstanding shares are held of record by the Stockholders as
indicated on Schedule I hereto and are being sold to Purchaser pursuant to this
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Agreement. All such outstanding shares of capital stock are duly authorized,
validly issued, fully paid, and nonassessable.
(b) Rights to Acquire Capital Stock. The Company does not
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have, is not bound by, and has no obligation to grant, issue or enter into, any
(i) outstanding subscriptions, options, warrants, calls, commitments, or
agreements of any character calling for it to issue, deliver, or sell, or cause
to be issued, delivered, or sold, any shares of its capital stock or any other
equity security, or any securities described in the following clause or (ii) any
Derivative Security.
(c) Contractual Obligations Relating to Capital Stock. The
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Company (i) has no outstanding obligations, contractual or otherwise, to
repurchase, redeem, or otherwise acquire any shares of capital stock or other
equity securities or Derivative Securities of the Company and (ii) is not a
party to or bound by, and has no knowledge of, any agreement or instrument
relating to the voting of any of its securities.
3.4. Financial Statements. The copy of the balance sheet (the "Most
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Recent Balance Sheet") attached to Section 3.4 of the Disclosure Schedule is
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true and correct and fairly presents the financial condition of the Company as
of its date, and the copy of the statement of profit and loss attached to
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Section 3.4 of the Disclosure Schedule is true and correct and fairly presents
the results of operations of the Company for the period covered thereby; in each
case in accordance with GAAP, subject to the absence of footnotes and
adjustments consisting solely of normal, recurring year-end accruals (the effect
of which, both individually and in the aggregate, is not material).
3.5. Absence of Certain Changes. Since the date of the Most Recent
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Balance Sheet, there has not been:
(a) any (i) acquisition (by purchase, lease as lessee,
license as licensee, or otherwise) or disposition (by sale, lease as lessor,
license as licensor, or otherwise) by the Company of any material properties or
assets, or (ii) other transaction by, or any agreement or commitment on the part
of, the Company, other than those in the ordinary course of business that have
not caused and will not cause, either in any case or in the aggregate, a
material adverse effect;
(b) any material change in the condition (financial or
otherwise), properties, assets, liabilities, investments, revenues, expenses,
income, operations, business or prospects of the Company, or in any of its
relationships with any suppliers, customers, or other third parties with whom it
has financial, commercial, or other business relationships;
(c) any transaction by the Company with any of its Affiliates,
other than the payment of compensation and reimbursement of reasonable employee
travel and other business expenses in accordance with existing employment
arrangements and usual past practices (and which, in any event, are not in
violation of the provisions of the LPOA);
(d) any damage, destruction, or loss affecting its properties or
assets, whether or not covered by insurance;
(e) any declaration, setting aside, or payment of any
dividend or any other distribution (in cash, stock, and/or property or
otherwise) in respect of any shares of the capital stock or other securities of
the Company;
(f) any issuance of any shares of the capital stock or other
securities of the Company, or any direct or indirect redemption, purchase, or
other acquisition by the Company of any shares of its capital stock or other
securities;
(g) any change in the officers, directors, key employees or
independent contractors of the Company;
(h) any labor trouble or claim of unfair labor practices
involving the Company, any increase in the compensation or other benefits
payable or to become payable by the Company to any of its Affiliates, or to any
of the respective officers, employees, or independent contractors of the
Company, or any bonus payments or arrangements made to or with any of such
officers, employees, or independent contractors;
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(i) any forgiveness or cancellation of any debt or claim by the
Company or any waiver by the Company of any right of material value, other than
compromises of accounts receivable in the ordinary course of business;
(j) any incurrence or any payment, discharge, or satisfaction by
the Company of any other Indebtedness or any material obligations or material
liabilities, whether absolute, accrued, contingent, or otherwise (including
liabilities, as guarantor or otherwise, with respect to obligations of others),
other than current liabilities to persons other than Affiliates of the Company
incurred since the date of such balance sheet in the ordinary course of
business;
(k) any incurrence, discharge, or satisfaction of any Lien on any
of the assets or property owned by or leased to the Company or on any of the
capital stock or other securities of the Company;
(l) any change in the financial or tax accounting principles,
practices, or methods of the Company; or
(m) any agreement, understanding, or commitment by or on behalf
of the Company, or by or on behalf of its respective Affiliates, directors,
officers, employees, agents, or representatives, whether in writing or
otherwise, to do or permit any of the things referred to in this Section 3.5.
3.6. Properties, Leases, Etc.
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(a) Title to Properties; Condition of Personal Properties.
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The Company has (i) good and marketable title to all of the assets and
properties owned by it, including all assets and properties reflected in the
Most Recent Balance Sheet (in each case excluding any assets and properties sold
or otherwise disposed of to persons other than Affiliates in the ordinary course
of business since the date of such balance sheet), (ii) good and marketable
title to the lessee interest in all assets and properties leased by it as
lessee, and (iii) full right to hold and use all of the respective assets and
properties used in or necessary to its businesses and operations as presently
conducted, in each case all free and clear of all Liens, except Permitted Liens.
All such assets and properties are in good condition and repair, reasonable wear
and tear excepted, and are adequate and sufficient in all material respects to
carry on the Company's business as presently conducted and as proposed to be
conducted in the near term.
(b) No Owned Real Properties. The Company does not own any
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real property or any interest (other than a leasehold interest) in any real
property.
(c) Leased Properties. Section 3.6(c) of the Disclosure Schedule
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sets forth a complete and correct description of all leases of real or personal
property under which the Company is lessor or lessee. Each such lease is valid
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and subsisting and no event or condition exists that constitutes, or after
notice or lapse of time or both would constitute, a default thereunder by the
Company or, to the best of the Company's knowledge, the other party thereto.
The Company's respective leasehold interests are not subject to any Liens (other
than Permitted Liens), and the Company is in quiet possession and enjoyment of
the properties covered by such leases. No provision of any real property lease
or sublease to which the Company is a party restricts the Company's right to
remove at the end of the applicable lease term any machinery, equipment, or
leasehold improvements.
3.7. Indebtedness. Immediately after the Closing, the Company will
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have no Indebtedness outstanding other than as set forth in Section 3.7 of the
Disclosure Schedule. The Company is not in default with respect to any
outstanding Indebtedness or any instrument or agreement relating thereto.
3.8. Absence of Undisclosed Liabilities. Except to the extent
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reflected or reserved against in the Most Recent Balance Sheet, or incurred
after the date of such balance sheet in the ordinary course of business other
than in connection with transactions with Affiliates, the Company has no
material liabilities or obligations of any nature, whether accrued, absolute,
contingent, or otherwise (including liabilities as guarantor or otherwise with
respect to obligations of others) and whether due or to become due.
3.9. Taxes. The Company has, within the times and in the manner
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prescribed by law, filed all tax returns required by applicable law and has paid
all taxes, assessments, and penalties (collectively, "Taxes") due and payable.
There are no present or, to the best knowledge of any Operating Stockholder,
potential disputes as to Taxes payable by the Company.
3.10. Litigation, Etc. No litigation, arbitration, action, suit,
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proceeding or investigation (whether conducted by or before any judicial or
regulatory body, arbitrator, or other person) is pending or, to the best
knowledge of the each Operating Stockholder, threatened, against the Company,
nor is there any basis therefor known to the Company.
3.11. Material Contracts. Except as set forth in Section 3.11 of the
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Disclosure Schedule (and described with particularity as to the applicable
subsection(s) below), the Company is not a party to or otherwise bound by any:
(i) agreement, instrument, or commitment that may adversely
affect its ability to consummate the transactions contemplated hereby;
(ii) agreement for the purchase, sale, lease, or license by
or from it of services, products, or assets, requiring total payments by or to
it in excess of $2,500 in any instance;
(iii) agreement requiring it to purchase all or substantially
all of its requirements for a particular product or service from a particular
supplier or suppliers, or requiring it to supply all of a particular customer's
or customers' requirements for a certain service or product;
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(iv) agreement or other commitment pursuant to which it has
agreed to indemnify or hold harmless any other person;
(v) (x) employment agreement; (y) consulting agreement; or (z)
agreement providing for severance payments or other additional rights or
benefits (whether or not optional) in the event of the sale or other change in
control of it;
(vi) agreement with any current or former Affiliate, stockholder,
officer, director, employee, or consultant of the Company, or with any person in
which any such Affiliate has an interest;
(vii) joint venture or teaming agreement;
(viii) agreement with any domestic or foreign government or
agency or executive office thereof or any subcontract between it and any third
party relating to a contract between such third party and any domestic or
foreign government or agency or executive office thereof; or
(ix) agreement imposing non-competition or exclusive dealing
obligations on it.
The Operating Stockholders have delivered to the Purchaser true, correct
and complete copies (or written summaries of the material terms of oral
agreements or understandings) of each agreement, instrument, and commitment
listed in the Disclosure Schedule, each as amended to date. Each such
agreement, instrument, and commitment is a valid, binding and enforceable
obligation of the Company and, to the best knowledge of each Operating
Stockholder, of the other party or parties thereto, and is in full force and
effect. Neither the Company, nor to the best knowledge of each Operating
Stockholder, any other party thereto, is, or is considered by any other party
thereto to be, in breach of or noncompliance with any term of any such
agreement, instrument, or commitment (nor, to the best of knowledge of each
Operating Stockholder, is there any basis for any of the foregoing), except for
any breaches or noncompliances that singly or in the aggregate would not have a
material adverse effect. No claim, change order, request for equitable
adjustment, or request for contract price or schedule adjustment, between the
Company and any supplier or customer, relating to any agreement, instrument, or
commitment listed in the Disclosure Schedule is pending or, to the best
knowledge of each Operating Stockholder, threatened, nor, to the best knowledge
of each Operating Stockholder, is there any basis for any of the foregoing. No
agreement, instrument, or commitment listed in the Disclosure Schedule includes
or incorporates any provision, the effect of which may be to enlarge or
accelerate any of the obligations of the Company or to give additional rights to
any other party thereto, or will terminate, lapse, or in any other way be
affected, by reason of the transactions contemplated by this Agreement.
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3.12. Potential Conflicts of Interest. Except as disclosed in
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Section 3.12 of the Disclosure Schedule, neither the Company nor any of its
respective officers, directors, employees, or other Affiliates (i) is an
officer, director, employee, or consultant of, any person that is a competitor,
lessor, lessee, customer, or supplier of the Company; (ii) owns, directly or
indirectly, any interest in any tangible or intangible property used in or
necessary to the business of the Company or (iii) has any cause of action or
other claim whatsoever against the Company or owes any amount to the Company,
except for claims in the ordinary course of business, such as for accrued
vacation pay, accrued benefits under employee benefit plans, and similar matters
and agreements (subject, with respect to this clause (iii), to the provisions of
the LPOA).
3.13. Intellectual Property.
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(a) Intellectual Property Rights. Section 3.13 of the Disclosure
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Schedule lists all patents, patent applications, mask works, trademarks, trade
names, service marks, logos, registered copyrights, database rights and licenses
used in or necessary to the Company's businesses as now being conducted
(collectively, and together with any technology, know-how, trade secrets,
processes, formulas, techniques, and unregistered copyrights used in or
necessary to the Company's business, "Intellectual Property"). Section 3.13 of
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the Disclosure Schedule lists all Intellectual Property owned by or licensed to
the Company indicating, as to each entry, (i) whether such Intellectual Property
is exclusively or non-exclusively owned by or licensed to the Company and (ii)
the terms of any royalty payments required to be made by the Company. No
intellectual property rights, privileges, licenses, contracts, or other
agreements, instruments, or evidences of interests (other than the Intellectual
Property listed on Schedule 3.13) are necessary to or used in the conduct of its
business as presently conducted.
(b) Licenses; Infringement by Others. To the best of the
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Company's knowledge, none of the Intellectual Property is being infringed by
others, or is subject to any outstanding order, decree, judgment, or
stipulation. No litigation (or other proceedings in or before any court or
other governmental, adjudicatory, arbitral, or administrative body) relating to
the Intellectual Property is pending, or to the best knowledge of each Operating
Stockholder, threatened, nor, to the best knowledge of each Operating
Stockholder, is there any basis for any such litigation or proceeding.
(c) Infringement by the Company; Violations. To the best
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knowledge of each Operating Stockholder: (i) neither the Company nor any of its
employees has infringed or made unlawful use of, or is infringing or making
unlawful use of, any proprietary or confidential information of any person,
including any former employer of any past or present employee or consultant of
the Company; and (ii) the activities of the Company's employees in connection
with their employment do not violate any agreements or arrangements that any
such employees or consultants have with any former employer or any other person.
No litigation (or other proceedings in or before any court or other
governmental, adjudicatory, arbitral, or administrative body) charging the
Company with infringement or unlawful use of any patent, trademark, copyright,
9
or other proprietary right is pending, or to the best knowledge of each
Operating Stockholder, threatened; nor is there any basis for any such
litigation or proceeding.
3.14. Insurance. Section 3.14 of the Disclosure Schedule lists the
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policies of theft, fire, liability, worker's compensation, life, property and
casualty, directors' and officers' and other insurance owned or held by the
Company and the basis on which such policies provide coverage (i.e., an
occurrence or claims-made basis). All such policies are in full force and
effect, are sufficient for compliance in all material respects by the Company
with all requirements of law and of all agreements to which the Company is
party, and provide that they will remain in full force and effect through the
respective dates set forth in Section 3.14 of the Disclosure Schedule, and will
not terminate or lapse or otherwise be affected in any way by reason of the
transactions contemplated hereby.
3.15. No Violations. The execution, delivery, and performance of
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this Agreement by the Stockholders and the consummation of the transactions
contemplated hereby will not result (with or without the giving of notice or the
lapse of time or both) in any conflict, violation, breach, or default, or the
creation of any Lien, or the termination, acceleration, vesting, or modification
of any right or obligation, under or in respect of (x) the charter documents or
by-laws of the Company, (y) any judgment, decree, order, statute, rule, or
regulation binding on or applicable to the Company, or (z) any agreement or
instrument to which the Company is a party or by which any of its assets are
bound.
3.16. Employees. Section 3.16 of the Disclosure Schedule contains an
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accurate and complete list setting forth the name and current annual salary and
other compensation payable by the Company to each employee of the Company.
3.17. Compliance with Other Instruments, Laws, Etc. The Company
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has complied with, and is in compliance with, (i) all laws, statutes,
governmental regulations, judicial or administrative tribunal orders, judgments,
writs, injunctions, decrees, and similar commands applicable to it and its
business, and all unwaived terms and provisions of all agreements, instruments,
and commitments to which it is a party or to which it or any of its assets or
properties is subject, except for any noncompliances that, both individually and
in the aggregate, have not had and will not have a material adverse effect, and
(ii) its charter documents and by-laws, each as amended to date. The Company
has not committed, been charged with, or, to the best knowledge of each
Operating Stockholder, been under investigation with respect to, nor does there
exist, any violation by the Company of any provision of any applicable law or
administrative regulation, except for any violations that, both singly or in the
aggregate, do not and will not have a material adverse effect. The Company has
and maintains, and Section 3.17 of the Disclosure Schedule sets forth a complete
and correct list of, all such licenses, permits, and other authorizations from
all governmental authorities as are necessary or desirable for the conduct of
its business or in connection with the ownership or use of its properties, and
all of which (except as specifically described in Section 3.17 of the Disclosure
Schedule) are in full force and effect.
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3.18. Affiliated Transactions. Except as disclosed in Section 3.18
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of the Disclosure Schedule, no officer, director, employee, shareholder or
Affiliate of the Company or any individual related by blood, marriage or
adoption to any such individual, or any entity in which any such Person or
individual owns any beneficial interest, is a party to any agreement, contract,
commitment or transaction with the Company or has any interest in any property
used by the Company.
3.19. Accounts and Notes Receivable. Section 3.19 of the Disclosure
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Schedule sets forth a list of all accounts and notes receivable of the Company
as of the Closing Date. All such accounts and notes receivable are (a) valid,
genuine and subsisting, (b) arise out of bona fide sales and deliveries of
goods, performance of services or other business transactions, (c) subject to no
defenses, set-offs, counterclaims, security interest or other encumbrances
except to the extent of a provision for reserves (which reserves have been
determined based upon actual prior experience and are consistent with past
practices), and (d) collectible in the ordinary course of business.
3.20. Employee Benefit Plans. Except as set forth in Section 3.20 of
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the Disclosure Schedule, the Company has no employee benefit plans, as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended, or any other pension, bonus, deferred compensation, stock bonus, stock
purchase, post-retirement medical, hospitalization, health and other employee
benefit plan, program or arrangement, whether formal or informal, under which
the Company has any obligation or liability, or under which any employee or
former employee of the Company has any rights to benefits.
3.21. Disclosure. The representations and warranties by the Operating
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Stockholders in this Agreement and in the Disclosure Schedule do not, taken as a
whole, contain any untrue statement of a material fact or omit to state a
material fact required to be stated herein or therein or necessary to make the
statements contained herein or therein not false or misleading.
4. Representations and Warranties of the Stockholders. In order to induce
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the Purchaser to enter into this Agreement and to purchase the Shares, each
Stockholder, as to itself only, hereby represents and warrants to the Purchaser
as follows (subject in each case to such exceptions as are set forth in the
attached Disclosure Schedule in the section thereof numbered and captioned to
correspond to the specific representation or warranty to which such exception
relates):
4.1. Binding Effect. Such Stockholder has the right, power, legal
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capacity, and authority to execute and deliver this Agreement and to perform all
of his respective obligations hereunder. This Agreement constitutes a legal,
valid, and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
4.2. Title. Such Stockholder exclusively owns all right, title and
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interest in and holds full legal, equitable and beneficial ownership of the
number of Shares set forth opposite such Stockholder's name on Schedule I
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hereto, free and clear of any Liens, security interests, encumbrances and
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restrictions on or conditions to transfer or assignment. There are no
outstanding agreements or commitments of any nature obligating such Stockholder
to transfer his Shares or any interest therein to any other party. Upon the
sale, transfer and assignment of such Stockholder's Shares hereunder, there
shall be vested in Purchaser good and valid title to such Shares, free and clear
of any Lien, security interest, encumbrance or restriction.
4.3. Litigation. There is no claim, suit, action, legal,
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administrative, or other proceeding pending or, to such Stockholder's knowledge,
threatened, that involves this Agreement, such Stockholder's Shares or the
transactions contemplated hereby.
4.4. Consents; Waivers. No consent, waiver, approval or authority of
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any nature, or other formal action, by any person, firm or corporation, or any
agency, bureau or department of any government or any subdivision thereof, not
already obtained, is required in connection with the execution and delivery of
this Agreement by such Stockholder or the consummation by such Stockholder of
the transactions contemplated hereby.
4.5. Brokerage. Other than the finder's fee payable to [ *
---------
] solely by the issuance of 10,000 shares of the Purchaser's common stock as
more particularly described in Section 9.16, there are no claims for brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement binding on such Stockholder.
4.6. Securities Matters. Such Stockholder is acquiring the xxxxx.xxx
-------------------
Shares being issued to him in connection with this Agreement for purposes of
investment only, for his own account, and not with the view to sell or resell or
to distribute such xxxxx.xxx Shares, or any part thereof, and that no other
person has any interest in such Stockholder's xxxxx.xxx Shares. Such Stockholder
understands that the xxxxx.xxx Shares have not been registered under the
Securities Act. In addition, such Stockholder understands that the xxxxx.xxx
Shares may not be sold or resold without being registered under the Securities
Act and any applicable state securities laws, unless the sale is made pursuant
to an exemption from such registration (and that a restrictive legend to such
effect will be set forth on the certificates representing the xxxxx.xxx Shares),
and that, as a result, such Stockholder must bear the economic risk of an
investment in the Purchaser for an indefinite period of time. As a condition to
any transfer (or request for removal of a restricted legend) by the Stockholder,
the Purchaser will require an opinion of counsel reasonably acceptable to it,
that such transfer (or removal of restricted legend) is permissible under the
Securities Act and any applicable state securities laws and may charge the
Stockholder for the costs of providing or investigating the availability of any
such opinion. Such Stockholder has knowledge and experience in financial and
business matters such that he is capable of evaluating the merits and risks of
an investment in the Purchaser, and is able to bear the economic risk of his
investment in the Purchaser.
4.7. Disclosure. The representations and warranties by such
----------
Stockholder in this Agreement and in the Disclosure Schedule do not, taken as a
12
whole, contain any untrue statement of a material fact or omit to state a
material fact required to be stated herein or therein or necessary to make the
statements contained herein or therein not false or misleading.
5. Representations and Warranties of the Purchaser. In order to induce
--------------------------------------------------
the Sellers to enter into this Agreement and to sell the Shares, the Purchaser
hereby represents and warrants to each Seller as follows:
5.1. Binding Effect. The Purchaser has the right, power, legal
---------------
capacity, and authority to execute and deliver this Agreement and to perform all
of its obligations hereunder. This Agreement constitutes a legal, valid, and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms.
5.2. Consents; Waivers. No consent, waiver, approval or authority of
------------------
any nature, or other formal action, by any person, firm or corporation, or any
agency, bureau or department of any government or any subdivision thereof, not
already obtained, is required in connection with the execution and delivery of
this Agreement by the Purchaser or the consummation by the Purchaser of the
transactions contemplated hereby.
5.3. Organization and Authority. The Purchaser is a corporation
----------------------------
incorporated and in good standing under the laws of the State of Delaware. The
Purchaser has all requisite corporate power to own or lease and operate its
properties and to carry on its business as now conducted and as proposed to be
conducted in the near term.
5.4 The xxxxx.xxx Shares. Upon their issuance, the xxxxx.xxx Shares
----------------------
will be fully authorized and fully paid and non-assessable.
6. Indemnification.
---------------
6.1. Indemnification. All covenants, agreements, representations,
---------------
and warranties made herein or in any other document referred to herein or
delivered to the Purchaser pursuant hereto will be deemed to have been relied on
by the Purchaser, notwithstanding any investigation made by or on behalf of the
Purchaser, and will survive the Closing for a period of three years from the
date hereof, except that the representations and warranties set forth in Section
4.2 shall survive indefinitely and the representations and warranties set forth
in Section 3.9 shall survive until the expiration of any applicable statutes of
limitation period relating to the taxes in question. The representations and
warranties of the Purchaser shall survive for period of three years from the
date hereof. The Operating Stockholders will, jointly and severally, indemnify,
defend, and hold harmless the Purchaser, the Company and each of the Purchaser's
partners, stockholders, officers, directors, employees, agents, and
representatives (the "Purchaser Group") from and against any and all Damages
incurred by any of them in any capacity and resulting from or relating to the
breach by the Operating Stockholders of any of their representations,
warranties, covenants, or agreements contained in this Agreement (or in the
Disclosure Schedule relating hereto). Each Stockholder will, severally and not
jointly, indemnify, defend, and hold harmless the Purchaser Group from and
13
against any and all Damages incurred by any of them in any capacity and
resulting from or relating to the breach by such Stockholder of any of his
representations, warranties, covenants, or agreements contained in this
Agreement (or in the Disclosure Schedule relating hereto). The Purchaser will
indemnify, defend, and hold harmless the Sellers from and against any and all
Damages incurred by any of them resulting from or relating to the breach by the
Purchaser of any of its representations, warranties, covenants, or agreements
contained in this Agreement.
6.2. Mechanics of Indemnity. Any member(s) of the Purchaser Group
-----------------------
seeking indemnification hereunder shall promptly notify the Stockholder(s) who
are obligated to provide indemnification of the existence of any claim, demand
or other matter to which such Stockholder's indemnification obligations would
apply, and, if a third party claim is reasonably and in good faith disputed by
such Stockholder(s), the member(s) of the Purchaser Group seeking
indemnification shall give such Stockholder(s) a reasonable opportunity to
defend the same at his or their own expense and with counsel of his or their own
selection; provided that the member(s) of the Purchaser Group seeking
indemnification shall at all times also have the right to fully participate in
the defense at its expense. If the Stockholder(s) shall, within a reasonable
time after such notice, fail to defend, the member(s) of the Purchaser Group
seeking indemnification shall have the right, but not the obligation, to
undertake the defense of, and to compromise or settle (exercising reasonable
business judgment) the claim or other matter on behalf, for the account, and at
the risk, of the Stockholder(s) obligated to provide indemnification.
6.3. Survival of Obligations. Subject to the various time
-------------------------
limitations set forth in section 6.1 above, the obligations of the parties under
this Section 6 will survive transfer of the Shares and the termination of this
Agreement.
6.4. Escrow Shares; Right of Set-off. Stockholders hereby agree that
-------------------------------
in addition to the Purchaser Group's right to take any action or exercise any
remedy available to it at law or in equity against the Company and/or the
Stockholders by appropriate legal proceedings, any claims for indemnification by
the Purchaser Group against the Stockholders hereunder (including in the event
the Stockholders should refuse or fail to indemnify Purchaser pursuant to this
Agreement) may be satisfied by the Purchaser by recourse against the Escrow
Shares pursuant to the terms of the Escrow Agreement. In addition, whether or
not the Purchaser seeks to satisfy an indemnity claim by recourse against the
Escrow Shares (but without duplication), the Purchaser may set off and deduct
the amount of any Damages from any amounts now or hereafter owed by Purchaser to
any Stockholder under any other agreement or obligation. Neither the Escrow
Shares nor anything contained in this Agreement shall constitute a limitation on
the Purchaser Group's rights hereunder or a measure of liquidated damages and
any member of the Purchaser Group may seek full indemnification for all Damages
suffered and may pursue all rights and remedies available to it, at law or in
equity, against any party hereto, jointly with other parties hereto or
severally, without seeking recourse against any other party and without
exercising any right of setoff and without first seeking recourse against the
Escrow Shares or otherwise.
14
7. Non-Competition; No Solicitation. As a material inducement for the
--------------------------------
Purchaser to enter into this Agreement and acquire the Shares, each of the
Operating Stockholders agree with the Purchaser Group that he or she shall not
(other than on behalf of the Purchaser or the Company), directly or indirectly,
during the term commencing on the date hereof and ending two years after the
later of this Agreement or any termination of his or her employment with the
Company or the Purchaser for any reason:
(a) (i) Own, manage or control, (ii) participate in the
ownership, management or control of, (iii) be employed or engaged by or (iv)
otherwise be affiliated or associated with (whether as a consultant, independent
contractor, shareholder, director, trustee or otherwise) (each a "Restricted
Activity") any corporation, partnership, proprietorship, firm, association, or
other business entity, or otherwise engage in any business which is primarily
engaged in the Business anywhere in the world;
(b) To the extent not covered by clause (a) above, otherwise
engage in the Business;
(c) Employ, assist in employing, recruit or otherwise associate
in business with any present, former or future employee, officer or agent of any
Purchaser Group or the Company or their respective affiliates that is engaged
in, or who proposes to engage in, the Business; or
(d) Solicit or induce any person who is or was an employee,
officer, agent, client, candidate or customer of any of the Purchaser Group or
the Company, to terminate, reduce or modify said relationship.
The Operating Stockholders acknowledge and agree that the foregoing
restrictions shall be in addition to any other non-competition and
non-solicitation obligations to the Purchaser Group or the Company pursuant to
the terms of any Employment Agreement.
In the event of any breach or threatened breach by an Operating
Stockholder of this Section, any member of the Purchaser Group or the Company
shall be entitled to injunctive or other equitable relief to restrain such
Stockholder from engaging in conduct that would constitute a breach of his
obligations under this Section. Such relief shall be in addition to and not in
lieu of any other remedies that may be available, including an action for the
recovery of damages. The Operating Stockholders each acknowledge and agree that
the provisions of this Section 7 may be enforced by any member of the Purchaser
Group, the Company or any successor or assign of such parties and that the
provisions of this Section 7 are intended for the benefit of all of the members
of the Purchaser Group. Each of the Operating Stockholders acknowledge and agree
that the making of the restrictive covenants contained in this Section 7 was a
material inducement to the Purchaser to enter into this Agreement.
15
8. Definitions. For all purposes of this Agreement the following terms
-----------
will have the meanings set forth or cross-referenced in this Section 8:
"Affiliate" means, with respect to any person or entity, any other
---------
person directly or indirectly controlling, controlled by, or under direct or
indirect common control with such person or entity and includes (a) any person
who is an officer, director, or direct or indirect beneficial holder of at least
10% of the then outstanding capital stock of the Company (or other referenced
person), and any of the Family Members of any such person, (b) any person of
which the Company (or other referenced person) and/or its Affiliates (as defined
in clause (a) above), directly or indirectly, either beneficially own(s) at
least 10% of the then outstanding equity securities or constitute(s) at least a
10% equity participant, (c) in the case of a specified person who is an
individual, Family Members of such person.
"Business" means [ * ].
--------
"Damages" means all damages, losses, claims, demands, actions, causes
-------
of action, suits, litigations, arbitrations, liabilities, costs, and expenses,
including investigatory and court costs and the reasonable fees and expenses of
counsel and experts.
"Derivative Securities" means (i) all shares of stock and other
----------------------
securities that are, directly or indirectly, convertible into or exchangeable
for shares of the Company's common stock and (ii) all options, warrants, and
other rights to acquire shares of the Company's common stock or securities
convertible, directly or indirectly, into or exchangeable for shares of common
stock.
"Family Members" means, as applied to any individual, his spouse, his
---------------
and his spouse's lineal ancestors and descendants and their respective spouses,
his siblings, his nieces and nephews, any trust created for the benefit of any
such person(s), and each custodian of property of any such person(s), and/or the
estate of any such person(s).
"Including" (regardless of whether capitalized) means including
---------
without limitation.
"Indebtedness" means (a) all indebtedness for borrowed money,
------------
whether current or long-term, or secured or unsecured, (b) all indebtedness for
the deferred purchase price of property or services represented by a note or
security agreement, (c) all indebtedness created or arising under any
conditional sale or other title retention agreement (even though the rights and
remedies of the seller or lender under such agreement in the event of default
may be limited to repossession or sale of such property), (d) all indebtedness
secured by a purchase money mortgage or other Lien to secure all or part of the
purchase price of property subject to such mortgage or Lien, (e) all capital
lease obligations, (f) any liability in respect of banker's acceptances or
letters of credit, and (g) all indebtedness of any person that is directly or
16
indirectly guaranteed by the Company or that it has agreed (contingently or
otherwise) to purchase or otherwise acquire or in respect of which it has
otherwise assured a creditor against loss.
"Liens" means any and all liens, claims, mortgages, security
-----
interests, charges, encumbrances, and restrictions on transfer of any kind.
"Operating Stockholders" means [ * ] and [
-----------------------
* ].
"Person" (regardless of whether capitalized) means any natural person,
------
entity, or association, including any corporation, partnership, limited
liability company, government (or agency or subdivision thereof), trust, joint
venture, or proprietorship.
"Permitted Liens" means:
----------------
(i) tax Liens with respect to taxes not yet due and payable or
which are being contested in good faith by appropriate proceedings and for which
appropriate reserves have been established;
(ii) deposits or pledges made in connection with, or to secure
payment of, utilities or similar services, workers' compensation, unemployment
insurance, old age pensions or other social security obligations;
(iii) purchase money security interests in any property acquired
by the Company or any Subsidiary to the extent permitted by this Agreement;
(iv) interests or title of a lessor under any lease;
(v) easements, rights-of-way, restrictions and other similar
charges and encumbrances not interfering with the ordinary conduct of the
business of the Company and its Subsidiaries or detracting from the value of the
assets of the Company and its Subsidiaries, and
(vi) Liens outstanding on the date hereof which secure
Indebtedness and which are described in the schedules to this Agreement;
"Stockholders' Representative" means [ * ].
----------------------------
"Tax" or "Taxes" means any federal, state, local, or foreign income,
--- -----
gross receipts, franchise, estimated, alternative minimum, add-on minimum,
sales, use, transfer, registration, value added, excise, natural resources,
severance, stamp, occupation, premium, windfall profit, environmental, customs,
duties, real property, personal property, capital stock, intangibles, social
security, unemployment, disability, payroll, license, employee, or other tax or
levy, of any kind whatsoever, including any interest, penalties, or additions to
tax in respect of the foregoing.
17
9. Miscellaneous Provisions.
-------------------------
9.1. Amendments; Consents; Waivers, Etc. This Agreement may not be
------------------------------------
amended, supplemented, waived or changed orally, but only by a writing signed by
the party as to whom enforcement of any such amendment, supplement, waive or
modification is sought and making specific reference to this Agreement.
9.2. Written Waiver; Failure to Exercise Rights. No course of
------------------------------------------------
dealing between the Purchaser, the Company and/or any Stockholder will operate
as a waiver of any of the Purchaser's or any Stockholder's rights under this
Agreement. No waiver of any breach or default hereunder will be valid unless in
a writing signed by the waiving party. No failure or other delay by any person
in exercising any right, power, or privilege hereunder will be or operate as a
waiver thereof, nor will any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power, or
privilege.
9.3. Notices. All notices, requests, payments, instructions or other
-------
documents to be given hereunder will be in writing or by written
telecommunication, and will be deemed to have been duly given if (i) delivered
personally (effective upon delivery), (ii) mailed by certified mail, return
receipt requested, postage prepaid (effective five business days after
dispatch), (iii) sent by a reputable, established courier service that provides
evidence of delivery and guarantees next business day delivery (effective the
next business day), or (iv) sent by telecopier followed within 24 hours by
confirmation by one of the foregoing methods (effective upon receipt of the
telecopy in complete, readable form), addressed to the relevant party at such
party's address listed on the signature pages hereto (or to such other address
as the recipient party may have furnished to the sending party for the purpose
pursuant to this Section 9.3). Any notice delivered to the Purchaser must also
be sent (by the same method and at the same time) to Proskauer Rose LLP, 0000
Xxxxxx Xxxx, Xxxxx 000 Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, attention: Xxxxxx X.
Xxxxxxxx, XX, Esq. (facsimile no. 561-241-7145).
9.4 Counterparts. This Agreement may be executed by the parties in
------------
separate counterparts, each of which when so executed and delivered will be an
original, but all of which together will constitute one and the same agreement.
9.5 Captions. The captions of sections or subsections of this
--------
Agreement are for reference only and will not affect the interpretation or
construction of this Agreement.
9.6 Binding Effect and Benefits. This Agreement will bind and inure
----------------------------
to the benefit of the parties hereto and their respective successors and
permitted assigns. Except as otherwise provided in this Agreement, the
provisions of this Agreement that are for the Purchaser's benefit will inure to
the benefit of all permitted transferees of Shares. Nothing in this Agreement
is intended to or will confer any rights or remedies on any person other than
the parties hereto, permitted transferees of Shares and their respective
successors and permitted assigns.
18
9.7 Construction. The language used in this Agreement is the
------------
language chosen by the parties to express their mutual intent, and no rule of
strict construction will be applied against any party.
9.8 Further Assurances. From time to time on and after the date
-------------------
hereof, each Stockholder will promptly execute and deliver all such further
instruments and assurances, and will promptly take all such further actions, as
the Purchaser may reasonably request in order more effectively to effect or
confirm the transactions contemplated by this Agreement and to carry out the
purposes hereof.
9.9 Severability. No invalidity or unenforceability of any section of
------------
this Agreement or any portion thereof will affect the validity or enforceability
of any other section or the remainder of such section.
9.10 Equitable Relief. Each of the parties acknowledges that any
-----------------
breach by such party of his, her, or its obligations under this Agreement would
cause substantial and irreparable damage to one or more of the other parties and
that money damages would be an inadequate remedy therefor. Accordingly, each
party agrees that the other parties or any of them will be entitled to an
injunction, specific performance, and/or other equitable relief to prevent the
breach of such obligations.
9.11 Entire Agreement. This Agreement, together with the exhibits and
-----------------
schedules hereto contains the entire understanding and agreement among the
parties, or between or among any of them, and supersedes any prior or
contemporaneous understandings or agreements between or among any of them, with
respect to the subject matter hereof.
9.12. Survival. Notwithstanding anything else contained herein to the
--------
contrary, Sections 3 through 9 shall survive the transfer of the Shares and the
termination of this Agreement for any reason.
9.13. Governing Law. This Agreement will be governed by and
--------------
interpreted and construed in accordance with the internal laws of the State of
Florida.
9.14 Submission to Jurisdiction. Each of the parties to this
----------------------------
Agreement irrevocably and unconditionally (a) agrees that any suit, action or
other legal proceeding arising out of or relating to this Agreement shall be
brought in the circuit court located in Palm Beach County, Florida or the court
of the United States, Southern District of Florida; (b) consents to the
jurisdiction of each such court located in any such suit, action or proceeding;
(c) waives any objection which it may have to the laying of venue of any such
suit, action or proceeding in any of such courts; and (d) agrees that service of
any court paper may be affected on such party by mail, as provided in this
Agreement or in such other manner as may be provided under applicable laws or
court rules in said state.
9.15. Enforcement Costs. If any legal action or other proceeding is
------------------
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provision of this
Agreement, the successful or prevailing party or parties shall be entitled to
19
recover reasonable attorneys' fees, sales and use taxes, court costs and all
expenses even if not taxable as court costs (including, without limitation, all
such fees, taxes, costs and expenses incident to arbitration, appellate,
bankruptcy and post-judgment proceedings), incurred in that action or
proceeding, in addition to any other relief to which such party or parties may
be entitled.
9.16. Brokerage Fee. Notwithstanding Section 4.5 hereof, upon the
--------------
written request of the Stockholders' Representative the Purchaser, in aid of
payment of the finder's fee which may become due to [ * ],
agrees to issue up to ten thousand (10,000) shares of its Common Stock, $.001
par value, to [ * ] (the "Finder Shares"). The
Finder Shares will be (i) unregistered and constitute restrictive securities
with restrictive legends in the same manner as is provided for the xxxxx.xxx
Shares in Section 1.2 hereof and (ii) entitled to piggy back registration rights
in the same manner as provided for the xxxxx.xxx Shares. As a condition to
issuance of any Finder Shares, [ * ] must
execute and deliver to the Purchaser such representations and warranties
analogous to those of the Stockholders in Section 4.6 hereof as the Purchaser
shall reasonable request.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
20
IN WITNESS WHEREOF, the undersigned have executed this Stock Purchase
Agreement as of the date first written above.
XXXXXXXX.XXX, INC.
By
______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: President
000 Xxxx Xxxxxxx Xxxx.
Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
________________________________________
[ * ]
________________________________________
[ * ]
[address]
________________________________________
[ * ]
[address]
________________________________________
[ * ]
[address]
[ * ]
________________________________________
By: [name]
[address]
21
