EXHIBIT 1
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PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT, dated as of December 13, 2006 (this
"AGREEMENT"), is made between Xxxxx Holdings, LLC, a New Jersey limited
liability company (the "PURCHASER"), and Xxxxxx X. Xxxxxx, a resident of the
State of New York ("SELLER").
RECITALS
WHEREAS, Seller currently owns 839,244 shares of common stock, par
value $0.20 per share (the "SHARES"), of XxXxxx Technologies, Inc., a Delaware
corporation (the "COMPANY"); and
WHEREAS, Seller has agreed to sell to Purchaser, and Purchaser has
agreed to purchase from Seller, all of the Shares on the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, the parties hereto, in consideration of the premises
and of the mutual covenants, representations, warranties and agreements
contained herein, hereby agree as follows:
ARTICLE I.
PURCHASE AND SALE, CLOSING AND DELIVERY
Section 1.01 Sale and Purchase of the Shares.
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On the terms and subject to the conditions set forth in this Agreement,
Seller hereby agrees to sell, transfer, assign and deliver to Purchaser without
representation, warranty or recourse except as provided in Article II and
Section 6.01 of Article VI, and Purchaser hereby agrees to purchase from Seller,
at the closing (the "CLOSING"), the Shares at a cash purchase price of $839.25
(the "PURCHASE PRICE").
Section 1.02 Closing.
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The Closing shall take place at the offices of Purchaser, 000 Xxxxxxxx
Xxxx, Xxxxxxx, XX 00000, on the date of this Agreement (the "CLOSING DATE").
Section 1.03 Delivery of the Shares.
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At the Closing, Seller shall deliver to Purchaser certificates
representing the Shares, together with a duly executed stock power that bears a
medallion signature guarantee, against receipt by Seller of the Purchase Price
in immediately available funds by cash, check or electronic transfer to an
account designated by Seller or by such other method as Seller and Purchaser may
agree. Seller shall also deliver to Purchaser an irrevocable proxy, in form and
substance satisfactory to Purchaser and its counsel, to vote all of the Shares
in the absolute discretion of Purchaser until the transfer of the Shares to
Purchaser has been recorded on the books and records of the Company and its
transfer agent and new certificate(s) representing the Shares registered in the
name of Purchaser shall have been delivered to Purchaser.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLERS
Seller hereby represents and warrants to Purchaser as follows:
Section 2.01 Title, Etc.
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Seller has valid and unencumbered title to the Shares to be sold to
Purchaser hereunder, and full right, power and authority to sell, transfer,
assign and deliver the Shares to Purchaser hereunder; and upon delivery and
payment of the Purchase Price for the Shares as provided herein, Purchaser will
acquire valid and unencumbered title thereto.
Section 2.02 Authorization.
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Seller has full power, right and authority to execute and deliver this
Agreement and to consummate all transactions required to be effected by it as
contemplated hereby and thereby. This Agreement has been duly authorized,
executed and delivered by Seller, and, assuming the due authorization, execution
and delivery of this Agreement by Purchaser, constitutes a valid and legally
binding obligation of Seller enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles. Neither the execution and delivery of this
Agreement nor the consummation and performance of the transactions contemplated
hereby will (i) conflict with or violate any agreement to which Seller and the
Company are parties or (ii) require the consent, approval or authorization of
any governmental entity or other person or entity. The transfer of the Shares by
Seller to Purchaser pursuant to this Agreement will not violate the Securities
Act of 1933, as amended, or applicable state securities laws.
Section 2.03 Brokers and Finders.
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No person or entity acting on behalf or under the authority of Seller
is or will be entitled to any broker's, finder's, or similar fee or commission
in connection with the transactions contemplated by this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents to Seller as follows:
Section 3.01 Qualification of Purchaser.
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Purchaser acknowledges that the Shares were purchased by the Seller in
private placement transactions, that they have not been registered under the
Securities Act of 1933, as amended, (the "33 Act"), and that their transfer is
subject to the legend on the certificates and the provisions of the '33 Act.
Purchaser understands that the purchase of the Shares involves substantial risk
and hereby represents that its financial condition and investments are such that
it
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is in a financial position to hold the Shares for an indefinite period of time
and to bear the economic risk of, and withstand a complete loss of, its
investment therein. In addition, by virtue of its expertise, the advice
available to it and previous investment experience, Purchaser has extensive
knowledge and experience in financial and business matters, investments,
securities and private placements and the capability to evaluate the merits and
risks of the transactions contemplated by this Agreement and is an "accredited
investor" as defined in Regulation D of the '33 Act.
Section 3.02 Authorization.
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Purchaser has full power, right and authority to execute and deliver
this Agreement and to consummate all transactions required to be effected by it
as contemplated hereby and thereby. This Agreement has been duly authorized,
executed and delivered by Purchaser and, assuming the due authorization,
execution and delivery of this Agreement by Seller, constitutes a valid and
legally binding obligation of Purchaser enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
Section 3.03 Brokers.
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No person or entity acting on behalf or under the authority of
Purchaser is or will be entitled to any broker's, finder's or similar fee or
commission in connection with the transactions contemplated by this Agreement.
ARTICLE IV.
COVENANTS
Section 4.01 Efforts.
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Subject to the terms and conditions hereof, Seller and Purchaser shall
use reasonable best efforts to take, or cause to be taken all actions, and to
do, or cause to be done, all things necessary, proper and advisable to
consummate the transaction contemplated hereby on the terms and subject to the
conditions provided hereunder. In case at any time after the Closing any further
action is necessary, proper or advisable to carry out the purposes of this
Agreement, as soon as reasonably practicable, the parties hereto shall take all
such action to effectuate such purposes.
Section 4.02 Further Assurances.
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Prior to and after the Closing, each party will cooperate in good faith
with each other party and will take all appropriate action and execute any
agreement, instrument or other writing of any kind which may be reasonably
necessary or advisable to carry out and confirm the transactions contemplated by
this Agreement.
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ARTICLE V.
CONDITIONS TO CLOSING
Section 5.01 Conditions to Purchaser's Obligations.
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The obligations of Purchaser to effect the transactions contemplated
hereby shall be subject to the following conditions, any one or more of which
may be waived in writing by Purchaser in whole or in part:
(a) The representations and warranties of Seller set forth in
this Agreement shall be true and correct as of the date of this Agreement and as
of the Closing Date.
(b) Seller shall have performed and complied in all material
respects with all agreements, covenants, obligations and conditions required by
this Agreement to be performed or complied with by Seller at or prior to the
Closing Date.
(c) Seller shall have assigned to Purchaser all rights of such
Seller under that certain Registration Rights Agreement dated as of June 15,
1998 between the Company, Seller and certain others, as amended by an Amendment
to Registration Rights Agreement dated as of January 7, 2000.
Section 5.02 Conditions to Sellers' Obligations.
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The obligation of Seller to effect the transactions contemplated hereby
shall be subject to the following conditions, any one or more of which may be
waived in writing by Seller in whole or in part:
(a) The representations and warranties of Purchaser set forth
in this Agreement shall be true and correct as of the date of this Agreement and
as of the Closing Date.
(b) Purchaser shall have performed and complied in all
material respects with all agreements, covenants, obligations and conditions
required by this Agreement to be performed or complied with by it at or prior to
the Closing Date.
ARTICLE VI.
INDEMNIFICATION AND SURVIVAL
Section 6.01 Indemnification by Seller.
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From and after the Closing Date, Seller shall indemnify, hold harmless
and defend Purchaser from and against any losses, claims, damages, liabilities,
costs and expenses (any "LOSSES") that Purchaser may incur as a result or
arising out of (a) any breach by Seller of any of Seller's representations and
warranties contained herein or (b) any defect in Seller's title to the Shares
sold by Seller to Purchaser pursuant to this Agreement.
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Section 6.02 Indemnification by Purchaser.
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From and after the Closing Date, Purchaser shall indemnify, hold
harmless and defend Seller from and against any Losses Seller may incur arising
out of or resulting from (a) any breach by Purchaser of any of its
representations and warranties contained herein, or (b) except for any matter
for which Seller has agreed to indemnify Purchaser hereunder, the sale, transfer
or delivery of the Shares to Purchaser pursuant to this Agreement, including any
action taken by Purchaser pursuant to the irrevocable proxy.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Entire Agreement.
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This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, whether written or oral, among the parties
with respect to the subject matter hereof.
Section 7.02 Amendment; Waiver.
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Any provision of this Agreement may be amended or waived only if such
amendment or waiver is in writing and signed, in the case of an amendment, by
each of the parties hereto, or in the case of a waiver, by the party or parties
against whom such waiver is to be effective. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
Section 7.03 Counterparts.
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This Agreement may be executed in one or more counterparts (including
by facsimile), each of which shall be deemed an original, and all of which shall
together constitute one and the same Agreement.
Section 7.04 Headings.
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The titles of the Articles and the headings of the Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing the terms and provisions of this Agreement.
Section 7.05 Governing Law.
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THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Section 7.06 Assignment; Third Party Beneficiaries.
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Except as otherwise expressly provided herein, this Agreement shall
bind and inure to the benefit of the parties hereto and the respective
successors and permitted assigns of the parties
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hereto. Neither this Agreement nor the rights and obligations hereunder are
assignable by any party hereto (except to a successor-in-interest by operation
of law) without the prior written consent of the other parties.
Section 7.07 Expenses.
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Sellers, on the one hand, and Purchaser, on the other hand, shall bear
their own expenses in connection with the preparation for and consummation of
the transactions contemplated by this Agreement.
Section 7.08 Notices.
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Any written notice herein required to be given shall be deemed to have
been duly given as provided below if (a) mailed, certified, or registered mail,
first-class postage paid, (b) sent by overnight mail or courier, (c) transmitted
via facsimile, telegram or telex or (d) delivered by hand, if to any Seller, to
Xxxxxx X. Xxxxxx, 000 Xxxx Xxxxxx, Xxx. 0X, Xxx Xxxx, XX 00000, or if to
Purchaser, to Xxxxx X. Xxxxx, 000 Xxxxxxxx Xxxx, Xxxxxxx, XX 00000, with a copy
to Xxxxxx Xxxxxxxxx, III, Esq., Day, Xxxxx, & Xxxxxx LLP, Xxx Xxxxxxxxxx Xxxxx,
Xxxxxxxx, XX 00000. Any notice shall be deemed to have been duly given if
personally delivered or sent by the mails or by telegram or telex and will be
deemed received, unless earlier received, (a) if sent by certified or registered
mail, return receipt requested, three (3) days following the date so mailed, (b)
if sent by overnight mail or courier, when actually received, (c) if sent by
facsimile, telegram or telex transmission, on the date electronic confirmation
is received by the sender and (d) if delivered by hand, on the date of receipt.
Section 7.09 Severability.
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In case any provision in this Agreement shall be declared or held
invalid, illegal or unenforceable, in whole or in part, whether generally or in
any particular jurisdiction, such provision shall be deemed amended to the
extent, but only to the extent, necessary to cure such invalidity, illegality or
unenforceability, and the validity, legality and enforceability of the remaining
provisions, both generally and in every other jurisdiction, shall not in any way
be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XXXXX HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Manager
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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