STOCK PURCHASE AGREEMENT
Exhibit
2.1
This Stock Purchase Agreement (the “Agreement”) is entered into as of May
1, 2009, by and between PlanGraphics, Inc., a Colorado corporation having its
principal place of business at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 00000
(the “Seller”), the Seller’s wholly owned subsidiary, PlanGraphics, Inc., a
Maryland Corporation ( “PGI MD”), Xxxx X. Xxxxxxxxx whose mailing address is XX
Xxx 0000 Xxxxxxxxx, XX 00000, (“Xxxxxxxxx”) and Xxxxxxxxx X. Xxxxxxx whose
residence address is 000 Xxxxx Xxxxx, Xxxxxx XX 00000 (“Xxxxxxx”) and, for
purposes of the related transactions described in paragraph 3, Integrated
Freight Systems, Inc., a Florida corporation, (“Integrated”).
PREAMBLE
WHEREAS, Nutmeg Fortuna Fund, LLLP (“Fortuna Fund”) has reached an
agreement with Integrated as set forth in an Amended and Restated Stock Purchase
Agreement, Stock Purchase Incident to Change of Control (the “Integrated
Transaction”) (attached hereto as Exhibit “A” and made a part
hereof);
WHEREAS, elements of the Integrated Transaction and transactions
contemplated by this Agreement are based on Integrated’s issued and outstanding
common stock being 17,665,000 shares immediately prior to the date of this
Agreement;
WHEREAS, the Integrated Transaction requires the Seller to dispose of all
of its assets, including but not limited to PGI-MD and pre-paid insurance, and
to be essentially debt free;
WHEREAS, the Seller agrees to sell PGI MD as provided in this Agreement
to accommodate the Integrated Transaction;
WHEREAS, Xxxxxxx is entitled to certain benefits and compensation as a
result of an Executive Employment Agreement in effect;
WHEREAS, Seller has promised and Xxxxxxxxx is entitled to certain
benefits and compensation as a result of an Executive Employment Agreement in
effect and is due from Seller accrued but unsecured amounts for deferred
payments and reimbursements from the general account or assets of Seller;
WHEREAS, the Seller has arranged for the transfer of all the Seller’s
liabilities and the assumption thereof by PGI MD, except as provided
herein;
WHEREAS, in Integrated will agree to maintain, through PGRA and
thereafter directly, directors and officers liability insurance covering
Xxxxxxxxx and Xxxxxxx with coverage amounts equal to PGRA’s presently existing
directors and officers liability insurance (identified below) continuously and
without gap or lapse beginning immediately prior to the change in control of
PGRA resulting from the redemption of PGRA’s Series A Redeemable Preferred Stock
(“Preferred Stock”) and ending two years after the date of such change in
control;
NOW, THEREFORE, in consideration for the expectations of the Parties as
set forth in the preamble hereto, the Parties covenant, promise and agree as
follows:
AGREEMENT
1. Incorporation
by Reference. The preamble and exhibits attached
hereto are, and each of them is, incorporated herein by this reference, as if
fully stated herein.
2. Sale and
purchase of PGI MD. The Seller shall sell and
Xxxxxxxxx shall purchase all of PGI MD’s common stock. In exchange and payment
for the PGI MD common stock, Xxxxxxxxx shall: (1) relieve Seller from its
unsecured promise to make severance payments from its general account or assets
and forego any claim associated with such promise pursuant to his Executive
Employment Agreement, and (2) voluntarily terminate his Executive Employment
Agreement. Seller hereby accepts such termination at the time and in the manner
agreed by the parties.
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3.
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Related
transactions.
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(a) PGI MD shall release the Seller from all debts and obligations (inter
company debts and obligations) in
consideration for Integrated (i) issuing to PGI MD
0.875% of Integrated’s common stock, based on total common shares issued and
outstanding immediately prior to the date hereof, and an equal number of common
stock purchase warrants, exercisable for two years at a price of
$0.50 per share, in each case issued by Integrated.
(b) PGI MD shall assume all liabilities and obligations of the Seller as
set forth in Exhibit “B” hereto, including (i) all known, unknown and contingent
liabilities and obligations, and (iii) the January 14, 2009 Convertible
Debenture due February 28, 2009 in the principal amount of $30,000 to the
Fortuna Fund (the “Convertible Debenture”), but excluding a liability in the
amount not to exceed $28,000, and shall indemnify the Seller against suit to
collect, including attorney’s fees and costs and the collection thereof
in
consideration for the Seller’s bargain, sale,
transfer and assignment of all of the Seller’s assets, other than prepaid
insurance in the amount of approximately $3,500 and the PGI MD common stock
which the Seller is selling hereunder to Xxxxxxxxx.
(c) Xxxxxxxxx shall relieve Seller from its promise to make payment of
accrued but unsecured amounts of deferred payments and reimbursements from its
general account or assets and forego any claims associated therewith
in
consideration for Integrated (i) issuing to Xxxxxxxxx
0.293% of its common stock, based on total common shares issued and outstanding
at the date hereof, (ii) issuing to Xxxxxxxxx an equal number of common stock
purchase warrants, exercisable for two years at a price of $0.50 per share, and
(iii) purchasing and maintaining directors and officers liability insurance
pursuant to paragraph 3(e), below.
(d) Xxxxxxx shall release Seller from all severance payments pursuant to
his Executive Employment Agreement in
consideration for Integrated (i) issuing to Xxxxxxx
0.373% of Integrated’s common stock, based on total common shares issued and
outstanding at the date hereof, (ii) issuing to Xxxxxxx an equal number of
common stock purchase warrants, exercisable for two years at a price of $0.50
per share, and (iii) purchasing and maintaining directors and officers liability
insurance pursuant to paragraph 3(e), below.
(e) Integrated shall, and hereby agrees to, purchase and maintain
directors and officers liability insurance covering Xxxxxxxxx and Xxxxxxx with
coverage equal to PGRA’s presently existing Management Liability and Company
Reimbursement Policy No. ELU107623-08 (“Current Coverage”) continuously and
without gap or lapse beginning immediately prior to Integrated’s acquisition of
control of PGRA resulting from the redemption of PGRA’s Preferred Stock and
ending two years after the date of such change in control for a period of two
years beginning on the date of his resignation from the Seller’s board of
directors and its management, either continuation in his favor of Seller’s or
tail coverage for his benefit equivalent to the Current Coverage, provided that
Integrated’s liability for retention under any such insurance on any occurence
or in the aggregate the amount deductible under the Current Coverage or
equivalent tail coverage of $125,000.00 and provided further that after such
two-year period Integrated shall have no liability to Xxxxxxxxx and Xxxxxxx
whatsoever to maintain directors and officers liability insurance or for
indemnification under statute, the articles of incorporation, bylaws, contract
or otherwise.
(f) Fortuna Fund shall cancel and discharge forever the Convertible
Debenture and Nutmeg Group shall terminate and release its security interests in
“Collateral” as defined in the Security Agreement dated August 21, 2006 between
Nutmeg Group, Xxxxxxxxx and the Seller in
consideration for PGI MD’s agreements, as
follows:
(i) an obligation of PGI MD to pay an aggregate of $300,000 with simple
interest at 5% per annum, with annual payments limited to 2.5% of gross revenues
(less VAT, pass through direct expenses and revenues from the Xmarc line of
business); and
(ii) an obligation of PGI MD to pay an aggregate of $300,000 with simple
interest at 5% per annum, with annual payments limited to 3.5% of gross revenues
(less VAT and pass through direct expenses) from the XLOB line of
business;
In both cases, subject to such annual verification reasonably acceptable
to the Fortuna Fund and otherwise on terms and conditions more particularly
described and set forth in that certain Debenture Discharge and Payment
Agreement dated the date hereof by and among Fortuna Fund, Nutmeg Group, LLC,
PGRA and PGI MD.
(g) Subject to the reverse stock split of PGRA’s issued and
outstanding common stock in a ratio of 1:252.5979, which will result in 392,996
shares issued and outstanding, and the merger of PGRA into Integrated,
Integrated shall issue common stock purchase warrants to the Seller’s
stockholders of record on April 1, 2009 equal to the number of shares they own
after such reverse stock split, such warrants being exercisable for two years at
a price of $0.50 per share.
(h) Integrated shall, and hereby does, indemnify PGI MD, Xxxxxxxxx
and Xxxxxxx for actions and events leading to and related to this transaction
and the Integrated transaction.
(i) PGRI MD, Xxxxxxxxx and Xxxxxxx shall enter into a Lockup –
Leak-out Agreement for the benefit of Integrated in the form of Exhibit “C”,
hereto.
4. Conditions to completion of sale and purchase.
The following must be completed before any party named herein, whether or not a
direct party hereto, shall be obligated to complete the transactions under and
described in this Agreement:
(a) The necessary and desirable approvals by each of the parties which
each such party is required to approve and by the stockholders of PGRA have been
given or obtained.
(b) The United States District Court for the Northern District of
Illinois shall have entered its order approving the sale of the Preferred Stock
by the Fortuna Fund to Integrated.
(c) The Fortuna Fund and Integrated shall have closed the sale of the
Preferred Stock.
[We can include any closing conditions you want.]
5. Closing. The transactions contemplated by this
Agreement will be closed simultaneously herewith when the conditions identified
in Section 4 have been satisfied.
6. Representations and warranties by the Seller.
The Seller represents, warrants and agrees as follows:
(a) The Seller has all requisite corporate power and authority to enter
into and perform this Agreement and to consummate the transactions contemplated
hereby; and
(b) Subject to paragraph 4(c), the Seller does not know or have reason to
know why all of the transactions contemplated by this Agreement cannot be
consummated as planned. [Please explain reason you suggest deleting this
clause.]
7. Representations and warranties by PGI MD. PGI
MD hereby represents, warrants and agrees as follows:
(a) PGI MD has all requisite authority to enter into and perform this
Agreement and to consummate the transactions contemplated hereby.
(b) Subject to paragraph 4(c) and relying on its receipt of the
Integrated common stock, PGI MD does not know or have reason to know why all of
the transactions contemplated by this Agreement cannot be consummated as
planned.
8. Representations and warranties by Xxxxxxxxx and
Xxxxxxx. Xxxxxxxxx and Xxxxxxx, individually and not
jointly, each represents, warrants and agrees for himself, as
follows:
(a) He has the legal competency to enter into the transactions
contemplated by this Agreement as to which he is a party; and
(b) He does not know or have reason to know as of the date of this
Agreement (i) of any reason why all of the transactions contemplated by this
Agreement cannot be consummated as planned, (ii) of any outstanding injunction,
judgment, order, decree, ruling, or charge, or any action, suit, proceeding,
hearing or investigation of, in, or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator, filed by one or more stockholders of PGRA, that would
reasonably be expected to frustrate the transactions contemplated by this
Agreement, or (iii) of any threat or claim of mismanagement, omission,
malfeasance, fraud, deceit or other matter, made or which could be made by one
or more stockholders of PGRA against him with respect to his actions in the
management of PGRA, or any reason or basis therefore or facts and circumstances
that could give rise thereto, which would reasonably be expected, if
successfully prosecuted against him or PGRA, to expose PGRA to damages in favor
of such stockholder or stockholders or would reasonably be expected to give rise
to a claim of indemnification by him against PGRA under statute, the articles of
incorporation, bylaws, contract or otherwise.
9. Representations and warranties by Integrated.
The Integrated represents, warrants and agrees as follows:
(a) The Integrated has all requisite corporate power and authority to
enter into and perform this Agreement and to consummate the transactions
contemplated hereby; and
(b) Subject to paragraph 4(c), the Integrated does not know or have
reason to know why all of the transactions contemplated by this Agreement cannot
be consummated as planned.
10. Amendment and
revocation. This Agreement may not be amended,
canceled, revoked or otherwise modified except by written agreement subscribed
by all of the Parties to be charged with such modification.
11. Benefit. This Agreement shall be binding upon
and shall inure to the benefit of the Parties hereto and their respective
partners, employees, agents, servants, heirs, administrators, executors,
successors, representatives and assigns.
12. Construction
and jurisdiction. This Agreement and the rights of
the parties hereunder shall be governed by and construed in accordance with the
laws of the State of Florida including all matters of construction, validity,
performance, and enforcement and without giving effect to the principles of
conflict of laws. Venue for any action brought under this Agreement shall be in
the appropriate court in Manatee County, Florida.
12. Material
provisions. The Parties agree and stipulate that each
and every recital contained in the preamble and every term and condition
contained in this Agreement is material, and that each and every recital, term
and condition may be reasonably accomplished within the time limitations, and in
the manner set forth in this Agreement.
14. Entire
agreement. This Agreement and the agreements
generally or specifically identified herein (the “Transaction Agreements”) set
forth the entire agreement and understanding of the Parties hereto and
supersedes any and all prior agreements, arrangements and understandings related
to the subject matter hereof. No understanding, promise, inducement, statement
of intention, representation, warranty, covenant or condition, written or oral,
express or implied, whether by statute or otherwise, has been made by any party
hereto which is not embodied or to be embodied in the Transaction Documents or
the written statements, certificates, or other documents delivered pursuant
hereto or in connection with the transactions contemplated hereby, and no Party
hereto shall be bound by or liable for any alleged understanding, promise,
inducement, statement, representation, warranty, covenant or condition not so
set forth.
15. Public
statements and cooperation with respect to filings under the Exchange
Act. No party will issue any public statement,
including press releases, regarding the subject matter of this Agreement and the
transaction contemplated hereby before closing, without the prior approval
thereof by the other party and its counsel. PGRA and Integrated shall cooperate
in the preparation of reports and disclosure statements required to be filed by
PGRA pursuant to the Securities Exchange Act of 1934.
16. Execution and
counterparts. This Agreement may be executed in one
or more counterparts, each of which when executed and delivered shall be an
original, and all of which when executed shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first set forth above.
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[CORPORATE SEAL]
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PlanGraphics, Inc., a Colorado corporation
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Attest:
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By: /s/ Xxxx X. Xxxxxxxxx
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/s/ Xxxxxxxxx X. Xxxxxxx
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Xxxx X. Xxxxxxxxx, President
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Secretary or Assistant Secretary
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[CORPORATE SEAL]
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PlanGraphics, Inc., a Maryland corporation
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Attest:
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By: /s/ Xxxx X. Xxxxxxxxx
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/s/ Xxxxxxxxx X. Xxxxxxx
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Xxxx X. Xxxxxxxxx, President
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Secretary or Assistant Secretary
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/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, individually |
/s/ Xxxxxxxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxxx, individually |
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Approved and agreed:
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The Nutmeg Fortuna Fund, LLLP
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By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Managing Member of the General PartnerManaging
Member of its General Partner
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The Nutmeg Group, LLC
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By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Managing Member
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Integrated Freight Systems, Inc.
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By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, President
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