COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement ("Agreement"), dated
January 24, 2005, made by and between Xxxxxx X. Apple, an
individual principally residing in the State of New York,
entitled to receive mail at 000 Xxxxxx Xxxx, Xxxxxxxxxx,
Xxx Xxxx 00000 ("Seller"), and Xxxxxxxx X. Xxxxxx, an
individual principally residing in the State of New York,
entitled to receive mail at Xxxx Xxxxxx Xxx 000, Xxxxxxx,
Xxx Xxxx 00000 (the "Purchaser"), with reference to the
following facts, covenants, terms, provisions, and
conditions:
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties agree
as follows:
1. SALE OF SHARES; DELIVERIES. In exchange for Purchaser's
cash consideration, evidenced by a promise to pay and
annexed hereto, and the covenants and conditions set
forth herein, Seller shall sell and transfer to Purchaser
23,750 (Twenty-three Thousand Seven Hundred-fifty) shares
of the common stock of Montana Acquisition Corporation, a
United States corporation organized under the laws of the
State of Delaware ("Montana" and "Montana Stock",
respectively) held by Seller. Upon transfer in
accordance with the terms of this Agreement, the Montana
Stock will be fully paid and non-assessable. At the
Closing, the Seller shall deliver to the Purchaser a
certificate or certificates representing the Montana
Stock, duly endorsed by Seller and issued to Purchaser,
and accompanied by appropriate stock powers, with
Medallion Signature Guarantee affixed by an authorized
United States banking corporation, subject to Seller's
rights as a secured party in the Montana Stock pursuant
to the Pledge and Security Agreement of even date
herewith.
2. PAYMENT FOR THE SHARES; PURCHASER CLOSING CONDITIONS.
Contemporaneously on the date hereof, Purchaser has
issued a negotiable promissory note (the "Note") in
principal the amount of $85,000 (Eighty-five Thousand and
00/100 Dollars) to the Seller as full and complete
payment for the Montana Stock. Purchaser hereby
acknowledges receipt of such payment by acceptance of the
Note, and of the pledge and security agreement that
operates concomitantly with the Note.
The obligation of the parties to consummate the
transactions to be respectively performed in connection
with the closing hereunder (the "Closing") is subject to
satisfaction of the following conditions:
(i) each of the conditions to closing under that certain
Common Stock Purchase Agreement, dated the date
hereof, by and between Purchaser and Seller shall have
been satisfied and the parties thereto shall have
executed and delivered this Agreement and the
transactions contemplated by this Agreement shall have
closed or be closing simultaneously with the Closing
of the transactions contemplated by this Agreement;
(ii) the Parties' respective representations and
warranties set forth in this Agreement shall be true
and correct in all material respects at and as of the
Closing Date, the parties shall have performed and
complied with all of their respective covenants
hereunder in all material respects through the
Closing, and each of the parties shall have procured
any third party consents necessary to consummate the
transactions contemplated hereby.
3. PURCHASER REPRESENTATIONS AND WARRANTIES. In order to
induce Seller to accept this Agreement, Purchaser hereby
represents and warrants to Seller, as follows:
(a) OPPORTUNITY TO INVESTIGATE. Purchaser has been
given a full opportunity to ask questions of, and to
receive answers from, the officers, agents and
representatives of Seller and of Montana concerning
the financial condition and the corporate history and
status of Montana and to obtain such other information
that Purchaser and Purchaser's professional advisors
(if any) desire in order to evaluate the purchase of
the Montana Stock. All such questions have been
answered to the full satisfaction of Purchaser.
(b) ACKNOWLEDGMENT OF RISKS. Purchaser acknowledges and
understands that Montana is not currently operating,
that Montana has no assets, that in purchasing the
Montana Stock Purchaser is making a highly speculative
and risky investment, and that Purchaser may lose his
entire investment in the Montana Stock. As the
holder-in-supermajority of Montana Stock following the
Closing, Purchaser understands that Montana is
obligated to file quarterly, annual, transitional, and
current reports with the Securities and Exchange
Commission (the "SEC"), and, Montana is delinquent in
its filings under its reporting obligations to the
SEC.
(c) SHARES REGISTERED. Purchaser understands that the
Montana Stock being purchased from Seller has not been
registered under the Securities Act of 1933; however,
the Purchaser understands that the Montana Stock,
which is being acquired pursuant to this Agreement,
may be sold, offered for sale, transferred, pledged,
hypothecated or otherwise disposed of in accordance
with the rules and regulations of the SEC, and under
applicable Federal securities laws without the
requirement of an SEC registration statement.
(d) MAJORITY SHAREHOLDER. Purchaser understands that
Seller is the current sole shareholder in Montana,
owning one hundred percent (100.0%) of the Montana
Stock
(e) INDEPENDENT INVESTIGATION. In making Purchaser's
decision to purchase the Montana Stock, Purchaser has
relied solely upon independent investigations made by
Purchaser. Purchaser has received no representation
or warranty from Seller, Montana, or any of the
affiliates, employees, or agents of Seller or Montana,
except as expressly set forth herein.
(f) LEGAL AUTHORITY. Purchaser has full power and
authority to execute and deliver this Agreement and to
perform his obligations hereunder. This Agreement
constitutes the valid and legally binding obligation
of the Purchaser, enforceable in accordance with its
terms and conditions. As of the Closing all consents,
permits or approvals by any third parties, if any,
necessary in order to consummate the transactions
contemplated by this Agreement shall have been
obtained.
(g) NONCONTRAVENTION. Neither the execution and the
delivery of this Agreement and the associated Stock
Pledge and Security Agreement and the Promissory Note,
nor the consummation of the transactions contemplated
hereby, nor the payment in full of the Promissory Note
in accordance with its terms will (1) conflict with or
violate the terms of any certificate of trust, trust
agreement or other instrument governing the Purchaser;
(2) violate any statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or
court to which Purchaser is subject or (3) conflict
with, result in a breach of, constitute a default
under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement,
contract, lease, license, instrument, or other
arrangement to which Purchaser is a party or by which
it is bound or to which any of his assets are subject.
(h) ACCURACY AND SURVIVAL OF REPRESENTATIONS. Each
representation and warranty of Purchaser contained
herein and all information furnished by Purchaser to
Seller is true, correct, and complete in all respects.
All representations and warranties set forth above
will be true, correct and complete in all respects on
and as of the date of the transfer of the Montana
Stock by Seller to Purchaser, as if made on and as of
such date and shall survive such transfer.
4. SELLER REPRESENTATIONS AND WARRANTIES. In order to
induce Purchaser to accept this Agreement, Seller hereby
represents and warrants to Purchaser, as follows:
(a) LEGAL AUTHORITY. Seller has full power and
authority to execute and deliver this Agreement and to
perform his obligations hereunder. This Agreement
constitutes the valid and legally binding obligation
of the Seller, enforceable in accordance with its
terms and conditions. As of the Closing all consents,
permits or approvals of any third parties, if any,
necessary in order to consummate the transactions
contemplated by this Agreement shall have been
obtained.
(b) NONCONTRAVENTION. Neither the execution and the
delivery of this Agreement, nor the consummation of
the transactions contemplated hereby including the
transfer and sale of the Montana Stock, will (1)
conflict with or violate the terms of the Certificate
of Incorporation or Bylaws of Montana or any other
instrument governing Seller or Montana; (2) violate
any statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of
any government, governmental agency, or court to which
each of Seller or Montana is subject or (3) conflict
with, result in a breach of, constitute a default
under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement,
contract, lease, license, instrument, or other
arrangement to which Seller or Montana is a party or
by which either of them are bound or to which any of
their assets are subject.
(c) STOCK OWNERSHIP INFORMATION. Montana is a Delaware
corporation that was formed on June 9, 2000. There
are 50,000 (Fifty Thousand) shares of common stock,
par value $0.001 per share authorized, of which 25,000
shares are issued and outstanding and no shares of
preferred stock. There are no outstanding options,
warrants, or other rights to acquire shares of common
stock or shares of preferred stock and there are no
preemptive rights. Except for the issuance pursuant
to this Agreement, there is no existing commitment,
either actual or contingent, to issue additional
shares of the common or preferred Stock of Montana to
any person. Seller holds the Montana Stock, free and
clear of any restrictions on transfer (other than any
restrictions under the Securities Act and state
securities laws), taxes, security interests, options,
warrants, purchase rights, contracts, commitments,
equities, claims, and demands. Seller is not party to
any option, warrant, purchase right, or other contract
or commitment that could require Seller to sell,
transfer, or otherwise dispose of the Montana Stock
other than this Agreement. Seller is not party to any
voting trust, proxy, or other agreement or
understanding with respect to the voting of the
Montana Stock. Upon delivery of the Montana Stock
hereunder to Purchaser, Purchaser will be the absolute
owner of the Montana Stock, free, clear, and
discharged of and from all liens and encumbrances,
with the singular exception of the evidence of
indebtedness to Seller by Purchaser in accordance with
the terms and conditions set forth and contained in
this Agreement, in the Note, and in the annexed pledge
and security agreement that operates in accordance
with the Note.. As a result of the consummation of
the transactions contemplated hereby and by the Common
Stock Purchase Agreement, the Purchaser will own
ninety-five percent (95%) of the issued and
outstanding common stock of Montana.
(d) REPRESENTATIONS AND WARRANTIES OF MONTANA IN COMMON
STOCK PURCHASE AGREEMENT. Each representation and
warranty of Montana by Seller contained in the Common
Stock Purchase Agreement is true and correct as of the
date hereof and will be true and correct as of the
Closing hereunder and thereunder and Seller hereby
makes such representations and warranties to Purchaser
to the same extent, and with the same effect, as
Montana made them to Purchaser in the Common Stock
Purchase Agreement.
(e) ACCURACY AND SURVIVAL OF REPRESENTATIONS. Each
representation and warranty of Seller contained herein
and all information furnished by Seller is true,
correct, and complete in all respects. All
representations and warranties set forth above will be
true, correct and complete in all respects on and as
of the date of the transfer of the Montana Stock by
Seller to Purchaser, as if made on and as of such date
and shall survive such transfer.
5. LEGENDS AND RESTRICTIONS.
(a)COMPLIANCE WITH APPLICABLE SECURITIES LAWS. The
transfer of the Montana Stock being purchased pursuant
to this Agreement is governed by various United States
Federal and state securities laws. Therefore, the
resale or transfer of the Montana Stock by Purchaser
shall only be made in compliance with all applicable
securities laws of the United States, subject to
Seller's security interest. Furthermore, it shall be
the sole responsibility of the Purchaser to timely
notify the SEC of the overall transaction represented
by this Agreement.
6. INDEMNITY AGAINST LIABILITIES.
(a) SELLERS INDEMNIFICATION OF PURCHASER. Seller as
Seller and as the controlling stockholder of Montana
agrees to indemnify and hold Purchaser, his counsel,
and his agents harmless ("the Indemnitees") against
and in respect of any and all losses, liabilities,
damages, and expenses whatsoever, including legal
fees, incurred in investigating, preparing, or
defending against any litigation (whether or not
involving a third party), commenced or threatened, or
any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation, as and when
incurred, (i) arising out of, based upon, or in
connection with any breach of any representation,
warranty, covenant, or agreement of Seller contained
in this Agreement or of Montana contained in the
Common Stock Purchase Agreement; or (ii) arising out
of, based upon, or in connection with any and all
claims relating to the business, properties, assets,
and/or operations of the Montana which arose prior to
the Closing; provided, however, the Seller's and Montana's
maximum joint (total) liability pursuant to this
Section 6 or otherwise shall be the total cash
payments actually received by Seller from Purchaser
pursuant to this Agreement and the Promissory Note.
(b)PURCHASER'S INDEMNIFICATION OF SELLER. By his
execution of this Agreement, Purchaser hereby agrees
to indemnify and hold Seller and his heirs, successors
and assigns ("the Seller Indemnitees") against and in
respect of any and all losses, liabilities, damages,
and expenses whatsoever, including legal fees,
incurred in investigating, preparing, or defending
against any litigation (whether or not involving a
third party), commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement
of any claim or litigation, as and when incurred, (i)
arising out of, based upon, or in connection with any
breach of any representation, warranty, covenant, or
agreement of Purchaser contained in this Agreement,
the Pledge and Security Agreement, and the Promissory
Note.
(c) DURATION OF INDEMNIFICATION. The indemnification
provided in this Section 6 shall only apply to a
claim, which is commenced or threatened within one
year from the Closing Date.
7. GENERAL PROVISIONS.
(a) NOTICES. Except as expressly provided herein, all
notices, requests or other communications required
hereunder shall be in writing and shall be given by
personal delivery, international overnight courier
service, or certified or registered mail, postage
prepaid, return receipt requested, addressed to the
respective party at the applicable address set forth
herein, or to any party at such other addresses as
shall be specified in writing by such party to the
other parties in accordance with the terms and
conditions of this Section. All notices, requests, or
communications shall be deemed effective upon personal
delivery, or seven (7) days following deposit in the
mail, or two (2) business days following deposit with
any international overnight courier service.
In order to be effective, any such Notice shall be
given, as follows:
If to Seller: Xxxxxx X. Apple
000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
To Purchaser: Xxxxxxxx X. Xxxxxx
c/o Xxxxxxx X. Xxxxxx, Esq.
Xxxxx 000
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
A change of address shall be given by written notice
in the manner detailed in this paragraph. Rejection
or other refusal to accept or the failure to deliver
due to any change of address of which no notice was
given shall not affect the time at which such notice
shall be deemed to have been given and shall
constitute receipt of such communication.
(b) JURISDICTION, VENUE AND GOVERNING LAW. This
Agreement is being made, and performance is to be had,
in the City of Albany, State of New York. This
Agreement shall be governed by, construed, and
enforced in accordance with the laws of the United
States of America and the State of New York
(regardless of choice of law principles of that
jurisdiction or of any other jurisdiction). This
Agreement shall be interpreted as if it had been
jointly prepared by the parties and in the event of
any ambiguity, the Agreement shall not be interpreted
as if it had been prepared by any one party. Any
action or proceeding arising in connection herewith
shall be litigated in the state and United States'
Federal courts located in Albany, New York, and each
party hereby waives any right that such party may have
to assert the Doctrine of Forum Non Conveniens or to
object to venue. The parties each hereby stipulate
that the courts located in the City of Albany, State
of New York, shall have exclusive personal
jurisdiction and venue over each party for the purpose
of litigating any such dispute, controversy or
proceeding arising out of or related to this
Agreement.
(c) AMENDMENTS; ENTIRE AGREEMENT. This is the entire
agreement between the parties. There are no promises,
conditions, covenants, or terms, which are not
contained herein. This Agreement shall be binding
upon and inure to the benefit of the parties and their
respective successors, heirs and permitted assigns.
This Agreement may not be altered, modified, changed,
or canceled, except in a writing which specifically
references this Agreement and which is signed by all
parties.
(d) VALIDITY. If any one or more of the provisions (or
any part thereof) of this Agreement shall be held to
be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the
remaining provisions (or any part thereof) shall not
in any way be affected or impaired thereby provided
such partial invalidity does not defeat the intent of
this Agreement.
(e) TIME OF ESSENCE; COOPERATION. Time is of the
essence in the performance of the obligations of the
parties in connection with this Agreement. All
parties shall cooperate fully in carrying out the
terms of this Agreement and shall prepare and execute
all documents reasonably necessary to carry out the
terms of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute
one agreement. Any party may deliver to the other
party a facsimile of any part of this Agreement and
may deliver such facsimile by telecopier, as if this
Agreement, or any amendments or modifications hereto,
were executed in the presence of the other party.
IN WITNESS WHEREOF, each of the parties hereby executes
this Agreement of the date first set forth above.
XXXXXXXX X. XXXXXX
("Purchaser")
/s/ Xxxxxxxx X. Xxxxxx
_____________________________________________
Xxxxxxxx X. Xxxxxx,
XXXXXX X. APPLE
("Seller")
/s/ Xxxxxx X. Apple
_____________________________________________.
Xxxxxx X. Apple
ACKNOWLEDGEMENTS
AFFIXED,
PLEASE CONTINUE TO PAGE 8
ACKNOWLEDGMENTS.
State of New York )
) ss.
County of Wyoming )
On this 24th day of January 2005, before me personally
came Xxxxxxxx X. Xxxxxx, satisfactorily proven to be the
person described in and who executed the foregoing
instrument, and acknowledged that he executed the same.
/s/ Xxxxx Xxxxxx
___________________________________________
Xxxxx Xxxxxx
My commission expires on January 3, 2006.
(NOTARIAL SEAL)
State of New York )
) ss.
County of Albany )
On this 26th day of January 2005, before me personally
came Xxxxxx X. Apple, to me known to be the person
described in and who executed the foregoing instrument, and
acknowledged that he executed the same.
/s/ Xxxxxxxxx X. Xxxxxx
___________________________________________
Notary Public
My commission expires on (NOTARIAL SEAL)
Common Stock Purchase Agreement, January 24, 2005, Page 1 of 8
