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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
DATED AS OF JANUARY 28, 2000
BY AND AMONG
XXXXXXX X. XXXXX
AND
WEBINC., INC.
AND
VENTURE CATALYST INCORPORATED
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TABLE OF CONTENTS
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ARTICLE 1 GENERAL............................................................... 1
1.1 Sale and Purchase of Xxxxx Shares............................................ 1
1.2 Purchase Price............................................................... 1
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER AND
COMPANY............................................................... 2
2.1 Organization................................................................. 2
2.2 Authorization................................................................ 2
2.3 No Conflict. ............................................................... 2
2.4 Capitalization; Subsidiaries................................................. 3
2.5 Title to Xxxxx Shares ....................................................... 3
2.6 Financial Statements......................................................... 3
2.7 Absence of Certain Facts or Events........................................... 4
2.8 Property, Leases and Liens................................................... 5
2.9 Contracts and Commitments.................................................... 5
2.10 Permits and Authorizations................................................... 6
2.11 No Violations................................................................ 6
2.12 Proceedings.................................................................. 7
2.13 Insurance.................................................................... 7
2.14 Proprietary Information and Rights........................................... 7
2.15 Employee Benefits............................................................ 7
2.16 Employment Laws.............................................................. 8
2.17 Environmental Laws........................................................... 8
2.18 Taxes........................................................................ 9
2.19 No Unlawful Contributions.................................................... 9
2.20 No Insider Transactions...................................................... 10
2.21 Accounts Receivable; Customers............................................... 10
2.22 Bank Accounts................................................................ 10
2.23 Delivery of Documents........................................................ 10
2.24 No Finders or Brokers........................................................ 10
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF PURCHASER .......................... 10
3.1 Organization................................................................. 11
3.2 Authorization................................................................ 11
3.3 No Conflict.................................................................. 11
3.4 Investment Intent............................................................ 11
3.5 No Finders or Brokers........................................................ 11
3.6 Consents..................................................................... 12
3.7 Compliance with Law.......................................................... 12
ARTICLE 4 COVENANTS............................................................. 12
4.1 Confidentiality.............................................................. 12
4.2 Operation in Ordinary Course................................................. 13
4.3 Fulfillment of Conditions.................................................... 13
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4.4 Employment by Purchaser; Non-Competition Agreement........................... 13
4.5 Transfer of Business Rights to Company....................................... 13
4.6 Post-Closing Access by Seller................................................ 13
4.7 Bank Accounts................................................................ 14
ARTICLE 5 CONDITIONS OF CLOSING................................................. 14
5.1 Conditions of Obligations of Purchaser....................................... 14
(a) Representations and Warranties; Performance of Obligations............ 14
(b) Certificates and Deliveries by Seller and Company..................... 14
(c) No Injunction......................................................... 14
(d) Certificates and Instruments of Transfer.............................. 14
(e) Non-Competition Agreement............................................. 15
(f) Transfer of Business Rights........................................... 15
(g) Due Diligence......................................................... 15
(h) No Material Adverse Change............................................ 15
(i) Closing of Companion Transaction...................................... 15
(j) Directors' and Officers' Resignations................................. 15
5.2 Conditions of Obligations of Seller.......................................... 15
(a) Representations and Warranties; Performance of Obligations............ 15
(b) No Injunction......................................................... 15
(c) Purchase Price........................................................ 15
ARTICLE 6 CLOSING DATE AND TERMINATION OF AGREEMENT............................. 16
6.1 Closing Date................................................................. 16
ARTICLE 7 INDEMNIFICATION....................................................... 16
7.1 Indemnification by Seller.................................................... 16
7.2 Indemnification by Purchaser................................................. 17
7.3 Indemnity and Other Agreements Concerning Taxes and Environmental Matters.... 18
7.4 General Indemnification by Seller............................................ 18
7.5 Survival of Representations and Warranties; Reliance......................... 18
ARTICLE 8 MISCELLANEOUS......................................................... 19
8.1 Further Actions.............................................................. 19
8.2 Expenses..................................................................... 19
8.3 Entire Agreement............................................................. 19
8.4 Descriptive Headings......................................................... 19
8.5 Notices...................................................................... 19
8.6 Governing Law................................................................ 20
8.7 Assignability................................................................ 20
8.8 Waivers and Amendments....................................................... 21
8.9 Public Announcements......................................................... 21
8.10 Severability................................................................. 21
8.11 Jurisdiction for Legal Actions............................................... 21
8.12 Counterparts................................................................. 22
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APPENDIX A Definitions................................................................... 1
EXHIBIT 1 Non-Competition Agreement
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is dated as of January 28, 2000
(this "Agreement") by and among VENTURE CATALYST INCORPORATED, a Utah
corporation ("Purchaser"), and Xxxxxxx X. Xxxxx (the "Seller"), and WEBINC.,
INC., a Delaware corporation ("Company"). Capitalized terms not otherwise
defined have the meanings set forth in the Appendix.
WITNESSETH:
WHEREAS, Seller is the record and beneficial owner of 2,000,000
shares of common stock, $.01 par value per share (the "Company Common Stock"),
of Company, representing approximately 76% of the total issued and outstanding
shares of Company Common Stock (the "Xxxxx Shares");
WHEREAS, Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller, all of the Xxxxx Shares upon the terms and
conditions set forth below;
WHEREAS, Company expects to benefit from the consummation of the
transactions contemplated hereby and, to induce Purchaser to enter into this
Agreement, agrees to be bound by the terms and provisions in this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be
derived and the representations and warranties, conditions and promises herein
contained, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
ARTICLE 1
GENERAL
1.1 Sale and Purchase of Xxxxx Shares. At the Closing, Seller
shall sell, transfer, assign and deliver unto Purchaser and its successors and
assigns forever, and Purchaser shall purchase, the Xxxxx Shares for the purchase
price hereinafter set forth.
1.2 Purchase Price. In consideration for the Xxxxx Shares,
Purchaser shall pay to Seller at the Closing Twenty Thousand Dollars ($20,000)
in cash, payable either in the form of a company check or via wire transfer to
an account specified by Seller, at Purchaser's option (the "Purchase Price").
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER AND COMPANY
Company and the Seller jointly and severally represent and
warrant to Purchaser, as of the date hereof or as otherwise set forth in such
representation or exhibit hereto, as follows:
2.1 Organization. Company is a duly organized corporation,
validly existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to conduct its business as it is
presently being conducted and to own and lease its properties and assets.
Company is duly qualified to do business as a foreign corporation in California,
and is in good standing in such jurisdiction. Company is qualified to do
business in all jurisdictions in which such qualification is necessary under the
applicable law as a result of the conduct of Company's business, except where
the failure to be so qualified would not have a material adverse effect on
Company's business, property, or financial condition.
2.2 Authorization. The execution and delivery of this Agreement
by Com pany and the performance of its obligations hereunder have been duly
authorized by the directors and the stockholders of Company and no other
corporate action or approval by Company is necessary for the execution, delivery
or performance of this Agreement by Company. This Agreement has been duly
executed and delivered by Company and Seller and is a valid and binding
obligation of each of Company and Seller, enforceable against each of them in
accordance with its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or
hereafter in effect, relating to or limiting creditors' rights generally and (b)
general principles of equity (whether considered in an action in equity or at
law).
2.3 No Conflict. Neither the execution and delivery of this
Agreement by Company or Seller nor the consummation of the transactions
contemplated hereunder nor the fulfillment by Company or Seller of any of its
terms will:
(a) conflict with or result in a breach by Company or
Seller of, or constitute a default under, or create an event that, with the
giving of notice or the lapse of time, or both, would be a default under or
breach of, or give a right to terminate or cancel under, any of the terms,
conditions or provisions of (i) any indenture, mortgage, lease, deed of trust,
pledge, loan or credit agreement involving $5,000 or more, or any other material
contract, arrangement or agreement to which Company or Seller is a party or to
which any material portion of the assets of Company is subject, (ii) the
Certificate of Incorporation or Bylaws of Company, or (iii) any judgment, order,
writ, injunction, decree or demand of any Governmental Entity which materially
affects Seller or Company, or is likely to adversely affect the Company's
ability to conduct its business or own or convey its assets;
(b) result in the creation or imposition of any lien,
charge or Encumbrance of any nature whatsoever upon any material assets of
Company or which materially affects the Company's ability to conduct its
business as conducted prior to the date of this Agreement; or
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(c) cause a loss or adverse modification of any permit,
license, or other authorization granted by a Governmental Entity to or otherwise
held by Company.
Except for this Agreement, neither Seller nor Company has any legal obligation,
absolute or contingent, to any other Person to sell any capital stock or other
ownership interest in the Company, or the business or any material assets of
Company or to effect any merger, consolidation or other reorganization of
Company or to enter into any agreement with respect thereto.
2.4 Capitalization; Subsidiaries.
(a) Company's authorized capital stock consists of
10,000,000 shares of Company Common Stock, of which 2,630,000 shares are issued
and outstanding. All outstanding shares of Company Common Stock are duly
authorized, validly issued, fully paid and non-assessable. There are no
outstanding options, warrants or other rights to acquire, or any securities or
obligations convertible into or exchangeable for, any shares of the capital
stock of Company which have been issued or granted by or are binding upon Seller
or Company or other Person.
(b) The Company owns 50% of xxxxx00.xxx, Inc., a Delaware
corporation. As of the date of this Agreement, xxxxx00.xxx, Inc. (i) has no
employees, (ii) has no real or personal property, (iii) has not entered into any
contracts, either acting for itself or as guarantor on behalf of another Person,
and (iv) has conducted no business. The Company has no Subsidiaries other than
xxxxx00.xxx, Inc.
(c) Company has provided to Purchaser complete and correct
copies of (i) the Certificate of Incorporation and the Bylaws of the Company, as
amended, (ii) copies of Company's corporate minutes, and (iii) the Certificate
of Incorporation and Bylaws of xxxxx00.xxx, Inc.
2.5 Title to Xxxxx Shares. Seller is the record and beneficial
owner of all of the Xxxxx Shares, free and clear of all Encumbrances. The
delivery to Purchaser at Closing of certificates evidencing the Xxxxx Shares
will convey and transfer to Purchaser good, complete and marketable title to 76%
of the capital stock of the Company, free and clear of restrictions or
conditions to transfer or assignment (other than restrictions on transfer
imposed by federal or state securities laws) and free and clear of all defects
of title or Encumbrances.
2.6 Financial Statements.
(a) Company has delivered to Purchaser its unaudited
balance sheet and related statements of income and expenses, retained earnings,
and cash flow, for the five months ended December 31, 1999, and the two weeks
ended January 15, 2000 (the "Financial Statements"). The Financial Statements
(i) present fairly in all material respects the financial position and results
of operations and cash flows of Company as of the dates and for the periods then
ended, (ii) are in agreement with the books and records of Company in all
material respects, and (iii) contain and reflect adequate reserves for all
reasonably anticipated losses, costs and expenses.
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(b) The Financial Statements do not contain any items of
special or nonrecurring income or any other income not earned or otherwise
realized in the ordinary course of business except as expressly specified
therein, and such financial statements include all material adjustments, which
consist only of normal recurring accruals, necessary for such fair presentation.
(c) Company has no direct or indirect liabilities or
obligations, either accrued, contingent or otherwise, which, individually or in
the aggregate, are material to Company or involve a transaction value exceeding
$1,000, and which have not been reflected in the Financial Statements. There are
no facts, circumstances or claims known to Company or to Seller which the
Company or Seller has recognized as reasonably likely to give rise to any
material claims against or liabilities or obligations of Company.
(d) Company has, in accordance with good business
practices, maintained complete and accurate books and records, including
financial records which fairly present its financial condition in all material
respects and records of all its material corporate transactions or proceedings
or has otherwise made such written disclosures to Purchaser as are reasonably
necessary to make such a presentation.
(e) As of the Closing Date, the total liabilities of
Company, as set forth on the Financial Statements, are equal to $32,837.72.
2.7 Absence of Certain Facts or Events. Since December 31, 1999
there has not been:
(a) any material adverse change in (i) the financial
condition of Company from that shown on the December 31, 1999 balance sheet, or
(ii) the results of operations of Company from that shown in the statements of
operations and cash flows of Company for the period ended on such date;
(b) any damage, destruction or loss to the tangible or, to
the best of Seller's knowledge, intangible assets of Company, whether covered by
insurance or not, involving losses or assets in excess of $1,000;
(c) any hiring of new key employees or officers, any
amendment to or entering into of any employment agreements or any increase in
the compensation payable or to become payable by Company to any employee,
officer or director, or any increase in the coverage or benefits under any
bonus, insurance, pension or other Benefit Plan (excluding annual length-
of-service and similar adjustments to the benefits of individual participants);
(d) any issuance of capital stock of Company or options or
rights to acquire capital stock of Company, any redemption or repurchase of
outstanding shares of capital stock of Company, any declaration, setting aside
or payment of any dividend or distribution thereon, any stock split or reverse
stock split, any merger of Company with any Person, any purchase or other
acquisition by Company of capital stock or other interest in any other Person,
any purchase or other acquisition by Company of all or substantially all of the
business or assets
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of any other Person, any transfer or sale of a substantial portion of the
Company's business or assets to any Person, any transaction between Company and
Seller or his Affiliates, or any agreement to take any such actions;
(e) any sale, assignment, modification or transfer of any
contractual rights, claims or other assets of Company valued at more than $2,000
individually, or more than $10,000 in the aggregate;
(f) any mortgage, pledge, or other lien placed on Company
assets to secure debt, or any other Encumbrance placed on assets of the Company
which would prevent or materially limit the use, modification or sale of an
asset valued at $10,000 or more;
(g) the incurrence of any obligation or liability of
Company as a result of borrowed money, or any capital expenditure, or any
commitment to borrow money entered into by Company, or any increase in any loans
made or agreed to be made by Company;
(h) any failure to pay or perform any obligation of
Company involving more than $5,000 as, when and to the extent due other than
pursuant to a good faith defense or right of setoff;
(i) any intentional or, to the knowledge of Seller or the
Company, other waiver of any rights of substantial value to Company or any
amendment or termination of the charter or bylaws of Company or any modification
of, or claims of any breach under, any agreement to which Company is a party
which materially adversely affects, or is reasonably likely to materially
adversely affect, the Company's results of operations, prospects or financial
condition;
(j) any material transaction entered into or consummated
by Company, except in the ordinary course of business consistent with past
practice;
(k) any material addition to or modification of the
Benefit Plans of Company or other arrangements or practices affecting personnel
of Company; or
(l) any Tax election or the settlement or compromise of
any Tax claims.
2.8 Property, Leases and Liens. Company has no items of owned or
leased real or personal property, and is not a guarantor on any lease or sales
contract or other financing arrangement with respect to real or personal
property.
2.9 Contracts and Commitments.
(a) Company has no (i) collective bargaining agreements,
or any agreements or policies that contain or include any severance pay
liabilities or obligations; (ii) employment, consulting or similar agreement,
contract or commitment which is not terminable without penalty or cost by
Company on notice of thirty (30) days or less or contains
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an obligation of Company to pay and/or accrue more than $25,000 per year; (iii)
agreement of guaranty or indemnification; (iv) agreement, contract or commitment
limiting the freedom of Company to engage in any line of business or compete
with any Person; (v) agreement, contract or commitment relating to capital
expenditures in excess of $5,000; (vi) agreement, contract or commitment
relating to the acquisition of assets of, or any interest in, any business
enterprise; or (vii) other agreement, contract or commitment (with customers or
other Persons) which involves $5,000 or more and is not cancelable without
penalty or cost within sixty (60) days.
(b) (i) Company is not in violation of, nor has Company
received any claim that it has breached, any of the terms or conditions of any
agreement, contract or commitment to which it is a party (the "Contracts"), and
(ii) there are no facts or conditions which have occurred or are, based on facts
presently known to exist, anticipated which, through the passage of time or the
giving of notice, or both, would constitute a default under any Contract giving
rise to a right to cancel or a claim for damages in excess of $10,000 or would
cause the acceleration of any obligation of any party thereto or the creation of
an Encumbrance which is reasonably likely to materially limit the use,
modification or sale of any asset of Company valued at more than $10,000.
2.10 Permits and Authorizations.
(a) Seller and Company have disclosed to Purchaser each
license, permit, grant or other authorization of a Governmental Entity held by
Company or pursuant to which Company conducts its business or holds any of its
assets (herein collectively called "Authorizations"). All Authorizations are in
full force and effect and constitute all Authorizations required to permit
Company to operate its assets and conduct its business following the Closing
Date as such assets and business are presently operated and conducted. The
consummation of the transactions contemplated by this Agreement will not require
any transfer, renewal or notice with respect to any Authorizations. Company has
no proposed or pending applications for Authorizations, and no applications for
variances from compliance with such Authorizations.
(b) There are no Authorizations which by their terms
directly or indirectly limit the term of possession or operation of any material
assets of the Company, or which pertain to environmental discharge.
(c) Neither Company nor Seller has been notified or
presently is aware of any factual basis that would give it any reason to believe
any of the Authorizations will not in the ordinary course be renewed upon its
expiration.
(d) To the knowledge of Company and Seller, Company has
received no claim or assertion, written or otherwise, that it has breached any
of the terms or conditions of any Authorizations in such manner (i) as would
permit any other Person to cancel, terminate or materially amend any
Authorization necessary to permit the continued operation of the Company as
presently conducted or (ii) that is reasonably likely to result in a penalty or
fee of more than $5,000.
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2.11 No Violations.
(a) Company is not in violation of any applicable law,
statute, order, rule or regulation promulgated or judgment entered (or, with
respect to rules and regulations of administrative agencies, known by Company or
Seller to be proposed) by any Governmental Entity in a manner which is
reasonably likely to have a Material Adverse Effect or result in the imposition
of penalties in excess of $5,000.
(b) No consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Entity is required to
be made or obtained by Seller or Company in connection with the execution,
delivery and performance by Seller and Company of this Agreement and the
consummation of the transactions contemplated hereby, or the continued operation
of Company's business.
(c) As of the date of this Agreement, Seller is not
married, and no consent or approval, including a spousal consent, is required to
be made or obtained by Seller from any other individual in connection with the
execution, delivery and performance by Seller of this Agreement and the
consummation of the transactions contemplated hereby.
2.12 Proceedings.
(a) There are no suits, actions, other legal proceedings
or controversies, or, to Seller's or Company's knowledge, governmental
investigations, pending against Seller (and having to do with the Company or the
Seller's holdings in the Company) or Company or as to which either Seller or the
Company has received any claim or assertion. There are no facts which are
reasonably likely to lead to any additional investigation being conducted or to
any other suit, action or legal proceeding.
(b) There is no suit, action or proceeding or
investigation threatened against or affecting Company that is likely to prevent
or materially delay the ability of Company to consummate the transactions
contemplated by this Agreement or to carry on its business as now conducted, nor
is there any judgment, decree, injunction, ruling or order of any Governmental
Entity or arbitrator outstanding against Company having, or which in the future
could have, any such effect.
2.13 Insurance. Company has no insurance policies under which it
is an insured or a beneficiary or for which it is liable to pay premiums,
including directors' and officers' liability insurance, key man life insurance,
or general liability coverage. To the knowledge of Company and Seller, there is
no fact or condition the disclosure of which will result in an inability of
Company to obtain such insurance, or any other types of coverage as required by
law.
2.14 Proprietary Information and Rights. Seller and Company have
accurately disclosed to Purchaser all patents, patent applications, patent and
know-how licenses, trademarks (registered or unregistered), service marks,
trademark registrations and applications, trade names, fictitious business
names, computer software, domain names, and other intellectual property rights
(collectively, "Business Rights") used by Company, and disclosed the identity of
each
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other Person which owns any right, title or interest in and to the Business
Rights. To Seller's and Company's knowledge, no Business Rights conflict with,
infringe on or otherwise violate any rights of others, or require payments to be
made to any Person, or are subject to any pending or overtly threatened
litigation or other adverse claims or infringement by other Persons. To the
knowledge of Company or Seller, there has been no claim, in writing or
otherwise, of infringement by Company of any domestic or foreign patents,
trademarks, service marks or copyrights of any other Person.
2.15 Employee Benefits.
(a) Company has no "employee benefit plans" (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended), and no other benefit arrangements, including, but not limited to,
profit-sharing, deferred compensation, bonus, stock option, stock purchase,
vacation pay, holiday pay, retirement plans, medical or other compensation or
benefit arrangements maintained by Company for the benefit of its employees (or
former employees) and/or their beneficiaries.
(b) There is no contract, agreement, or benefit
arrangement covering any employee of Company which, individually or
collectively, could give rise to the payment of any amount which would
constitute an "excess parachute payment" within the meaning of Section 280G of
the Internal Revenue Code (the "Code").
2.16 Employment Laws.
(a) Company is in compliance in all material respects with
all federal, state or other applicable laws respecting employment and employment
practices, and has not received notice of, and is not engaged in, any unfair
labor practice.
(b) No unfair labor practice complaint against Company is
pending before any government agency, including the National Labor Relations
Board.
(c) There are no material claims, grievances or
arbitration proceedings, workers' compensation proceedings, labor disputes,
governmental investigations, or administrative proceedings of any kind pending
or, to the best knowledge of Company and Seller, threatened against or relating
to Company, its employees or employment practices.
(d) Company's contracts, if any, with temporary personnel
agencies represent bona-fide, arms-length agreements and the personnel provided
by such agencies are not Company's employees for purposes of any federal, state
or local laws.
2.17 Environmental Laws.
(a) For the purposes of this Section 2.17, the following
terms shall have the following meanings:
"Environmental Law" means any applicable federal, state or local
statute, law, ordinance, rule or regulation of the United States and
any other jurisdiction within the United States
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now effective and any order, to which the Company is a party or is
otherwise directly bound, of the United States or other jurisdiction
within the United States now effective relating to: (i) pollution or
protection of the environment, including natural resources; (ii)
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Substances; or (ii)
exposure of persons, including employees, to Hazardous Substances;
"Hazardous Substances" means any substance, whether liquid, solid or
gas (i) listed, identified or designated as hazardous or toxic under
any Environmental Law, (ii)-which, applying criteria specified in any
Environmental Law, is hazardous or toxic, or (iii) the use or
disposal of which is regulated under Environmental Law.
(b) The assets and the business of Company have been operated in
compliance in all material respects with all applicable Environmental Laws, and
the Company has complied, in all material respects, with all limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables which are contained in, any Environmental Law.
(c) To the Knowledge of Company, Company has not discharged,
released or emitted into the air, water, surface, water, ground water, land
surface or subsurface strata or transported to or from the property of Company
any Hazardous Substances except in compliance in all material respects with
Environmental Law and except for incidental release of Hazardous Substances in
amounts or concentrations which would not be expected to give rise to any claims
or liabilities against Company under any Environmental Law.
(d) Company has not received any written notification from a
governmental agency that there is any violation of any Environmental Law with
respect to the business and properties of Company, nor has Company received any
written notification from a governmental agency pursuant to Section 104, 106 or
107 of the Comprehensive Environmental Response Compensation and Liability Act,
as amended.
(e) Company has not assumed, contractually or by operation of
law, any liabilities or obligations under any Environmental Laws.
2.18 Taxes. (i) all federal, state, foreign and local Tax returns
and Tax reports (including information returns) required to be filed by Company
have been filed with the appropriate Governmental Entities in all jurisdictions
in which such returns and reports are required to be filed, and all such returns
and reports are, in all material respects, complete, accurate and in accordance
with all legal requirements applicable thereto; (ii) all federal, state, foreign
and material local income, profits, franchise, sales, use, occupation, property,
excise, withholding and other Taxes, duties, charges and assessments (including
interest and penalties) due from Company, (A) have been fully paid or adequately
provided for on the books and financial statements of Company or (B) have been
fully disclosed to Purchaser and are being contested in good faith by
appropriate proceedings; (iii) the Company has not received any written notice
or inquiry from the Internal Revenue Service or any other taxing authority in
connection with any of the returns and reports referred to in the foregoing
clause (i) of any pending or threatened examination or audit; (iv) no extensions
or waivers of statutes of limitation
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have been given or requested with respect to Company, and (v) deficiencies
asserted or assessments made as a result of examination by any taxing
authorities have been fully paid or fully reflected on the books of Company.
Company has not made an election under Section 341(f) of the Code.
2.19 No Unlawful Contributions. Neither the Company nor any
director or officer, or, to the knowledge of any of the shareholders or
directors of the Company, any agent or employee or other Person associated with
or acting on behalf of Company, has made or used any Company funds to make any
unlawful contributions, gifts, entertainment or other unlawful expenses relating
to political activity, made any direct or indirect unlawful payments to
officials or employees of any Governmental Entity from Company funds; failed to
file any reports required with respect to lawful contributions; established or
maintained any unlawful or unrecorded fund of Company monies or other assets;
made any intentionally false or fictitious entries on the books or records of
Company; or made or received any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
2.20 No Insider Transactions. Neither Seller nor any Affiliate
(including any member of Seller's "immediate family", as such term is defined
under Rule 16a-1(e) of the Securities Exchange Act of 1934) of any such Persons,
or any trust, partnership or corporation in which any of such Persons has an
interest, has, directly or indirectly, (a) any interest (other than as a holder
of not more than 3% of the issued and outstanding securities of a corporation
whose securities are traded on a national securities exchange or the Nasdaq
Stock Market) in any Person which furnishes or sells, services or products which
Company furnishes or sells, (b) any interest (other than as a holder of not more
than 3% of the issued and outstanding securities of a corporation whose
securities are traded on a national securities exchange or the Nasdaq Stock
Market) in any Person which purchases from or sells or furnishes to Company any
goods or services, (c) a beneficial interest in any contract, commitment,
agreement or understanding to which Company is a party or by which it may be
bound or affected; or (d) any interest or claim against Company or any of its
assets which could result in a claim against Company or could materially and
adversely affect Company's assets, Company's title to or its right to use its
assets, or Company's right to conduct its business following the Closing. None
of the assets of Company include any receivables from any officer, director,
shareholder or employee of Company.
2.21 Accounts Receivable; Customers. The accounts receivable
reflected on the Financial Statements, or thereafter acquired by Company through
the Closing Date were earned by performance in the ordinary course of business
and are not subject to any material dispute.
2.22 Bank Accounts. Seller and Company have provided Purchaser
with a complete list of all bank accounts, safe deposit boxes, money market
funds, certificates of deposit, stocks, bonds, notes and other securities owned
directly or indirectly, beneficially or of record, by Company and identified all
persons authorized to sign on such accounts.
2.23 Delivery of Documents. Seller and Company have delivered to
Purchaser true and correct copies of all documents, and any and all amendments
to any such documents, referred to in this Agreement.
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2.24 No Finders or Brokers. Neither Seller nor Company nor any of
their Affiliates has entered into any agreement, arrangement or understanding
with any Person which could result in the obligation to pay any finder's fee,
brokerage commission, advisory fee or similar payment in connection with the
transactions contemplated hereby.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
3.1 Organization. Purchaser is a duly organized corporation,
validly existing and in good standing under the laws of the State of Utah and
has the corporate power and authority to perform its obligations under this
Agreement.
3.2 Authorization. The execution and delivery of this Agreement
by Purchaser and the performance of its obligations hereunder have been duly
authorized by the directors of Purchaser and no other corporate action or
approval by Purchaser is necessary for the execution, delivery or performance of
this Agreement by Purchaser. This Agreement has been duly executed and delivered
by Purchaser, and is a valid and binding obligation of Purchaser, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, relating to or limiting creditors'
rights generally, and (b) general principles of equity (whether considered in an
action in equity or at law).
3.3 No Conflict. Neither the execution and delivery of this
Agreement by Purchaser nor the consummation of the transactions contemplated
hereunder nor the fulfillment by Purchaser of any of its terms will:
(a) conflict with or result in a breach by Purchaser of,
or constitute a default by it under, or create an event that, with the giving of
notice or the lapse of time, or both, would be a default under or breach of, any
of the terms, conditions or provisions of (i) any indenture, mortgage, lease,
deed of trust, pledge, loan or credit agreement or any other material contract,
arrangement or agreement to which Purchaser is a party or to which a material
portion of its assets is subject, (ii) Articles of Incorporation or Bylaws of
Purchaser, or (iii) any judgment, order, writ, injunction, decree or demand of
any Governmental Entity which materially affects Purchaser or which materially
affects the Purchaser's ability to conduct its business;
(b) result in the creation or imposition of any lien,
charge or Encumbrance of any nature whatsoever upon any material portion of the
assets of Purchaser or which materially affects the Purchaser's ability to
conduct its business as conducted prior to the date of this Agreement; or
(c) cause a loss or adverse modification of any permit,
license, or other authorization granted by any Governmental Entity to or
otherwise necessary or materially useful to Purchaser's business.
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3.4 Investment Intent. Purchaser is acquiring Company Common
Stock for investment purposes, and not with a view to the resale or distribution
thereof; Purchaser has the knowledge and sophistication to purchase the Company
Common Stock; Purchaser has had access to all information regarding Company that
it has requested and has had or will have prior to the Closing the opportunity
to ask questions regarding Company, its operations and such other matters that
Purchaser has deemed material to its investment decision; and Purchaser will not
dispose of Company Common Stock without compliance with all applicable federal
and state securities laws.
3.5 No Finders or Brokers. Purchaser has not entered into any
agreement, arrangement or understanding with any Person which could result in
the obligation to pay any finder's fee, brokerage commission, advisory fee or
similar payment in connection with this Agreement or the transactions
contemplated hereby.
3.6 Consents. No consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Entity is required to
be made or obtained by Purchaser in connection with the execution, delivery and
performance by Purchaser of this Agreement and the consummation of the
transactions contemplated hereby, or the continued operation of Purchaser's
business.
3.7 Compliance with Law. Purchaser is in compliance in all
material respects with all applicable statutes, rules, regulations, orders and
restrictions of governmental authorities having jurisdiction over the conduct of
its business.
ARTICLE 4
COVENANTS
4.1 Confidentiality.
(a) Purchaser shall treat in confidence all non-public
documents, materials and other information which Purchaser shall have obtained
regarding Company during the course of the negotiations leading to the
transactions contemplated hereby, the investigation of Company and the
preparation of this Agreement. However, nothing contained herein shall prohibit
Purchaser hereto from:
(1) using such documents, materials and other information in
connection with any action or proceeding brought or any claim
asserted by Seller or Company hereto in respect of any breach of
any representation, warranty or covenant made in or pursuant to
this Agreement, or
(2) supplying or filing such documents, materials or other
information to or with any Governmental Entity or other Person
which Purchaser and Seller deem reasonably necessary in
connection with the obtaining of any consent, waiver, amendment,
modification, approval, authorization, permit or
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license which may be necessary to effectuate this Agreement and
to consummate the transactions contemplated hereby, provided
that to the extent feasible Purchaser shall require such
Governmental Entity or Person to maintain the confidentiality of
all information supplied by Purchaser.
In addition, Purchaser will comply with the provisions of
any confidentiality agreements of which it has been informed by the Company or
Seller relating to any information provided to the Company by, or prepared or
obtained by the Company for or relating to, any client or customer of the
Company.
(b) From and after the date hereof, Seller and Company
shall treat, and shall cause each of their Affiliates to treat, in confidence
all documents, materials and other information regarding Purchaser or Company or
their respective Affiliates which are in their possession or control.
(c) These confidentiality provisions shall survive the
termination of this Agreement.
4.2 Operation in Ordinary Course. Since January ____, 2000,
Company has operated only in a manner consistent with its present and historical
practice and Company and Seller have each used its best efforts to preserve
intact its business organization, keep available the services of its officers,
directors and employees, and maintain satisfactory relationships with other
persons having relationships with Company. Any changes in the operations of
Company, or the relationships of other parties with Company, which have had a
material impact upon the business of Company have been disclosed pursuant to
Section 2.7, unless Purchaser has otherwise consented to such action or event in
writing. Company and Seller have disclosed to Purchaser any fact, condition or
state of events which modifies in any material respect the representations and
warranties of Company and Seller in this Agreement. Purchaser has disclosed to
Company and Seller any fact, condition or state of events which modifies in any
material respect the representations and warranties of Purchaser in this
Agreement.
4.3 Fulfillment of Conditions.
(a) Seller has used all reasonable efforts, and Seller has
caused Company to use all reasonable efforts, to perform, comply with and
fulfill all obligations, covenants and conditions required by this Agreement to
be performed, complied with or fulfilled by Seller or Company prior to or as of
the Closing Date. Purchaser has used all reasonable efforts to perform, comply
with and fulfill all obligations, covenants and conditions required by this
Agreement to be performed, complied with or fulfilled by Purchaser prior to or
as of the Closing Date.
(b) Seller has used all reasonable efforts, and has caused
Company to use all reasonable efforts, to secure all necessary consents,
waivers, permits, approvals, licenses and Authorizations and has made, and has
caused Company to make, all necessary filings in order to enable Seller or
Company to consummate the transactions contemplated hereby. Purchaser has used
all reasonable efforts to secure all necessary consents, waivers, permits,
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approvals, licenses and Authorizations and has made all necessary filings in
order to enable Purchaser to consummate the transactions contemplated hereby.
4.4 Employment by Purchaser; Non-Competition Agreement. Following
the Closing, Purchaser shall employ Seller as its Vice President of Corporate
Development, and in connection with such employment, Seller shall execute and
deliver to Purchaser a Non-Competition Agreement substantially in the form
attached hereto as Exhibit 1.
4.5 Transfer of Business Rights to Company. On or before the
Closing Date, Seller has executed all documents and taken all other measures
required to transfer to Company all Business Rights used by Company but held in
Seller's name, including, but not limited to, (i) all right and title to the
trademark application Serial Number 75-739835 for "webinc", filed on June 30,
1999; and (ii) the internet domain names "xxxxxxxxxxx.xxx" and
"xxxxxxxxxxx.xxx".
4.6 Post-Closing Access by Seller. After the Closing, Purchaser
shall cooperate with Seller to the extent reasonably requested by Seller, and
shall make available to Seller all financial, insurance, Tax and other
information (including reasonable access to books and records) of Company with
respect to any fiscal period of Company ending on or prior to the Closing Date
to the extent required by Seller in connection with (a) any audit or other
investigation by any taxing authority, or (b) the prosecution or defense of any
Tax claims or related litigation that might give rise to indemnification
payments hereunder, or the preparation by Seller of Tax returns or any other
reports or submissions to any Governmental Entity required to be made by Seller
with respect to Company; provided that such cooperation and availability of
information may be done in a manner so as to not unreasonably interfere with
normal business of Company. Purchaser shall cause Company to preserve all such
information, including without limitation, the books and records of Company, for
at least three (3) years after the Closing Date at no cost to Seller.
4.7 Bank Accounts. Seller shall, on or prior to the Closing Date,
cause Company to cancel the authority of each Person who is authorized to draw
checks on any of the bank accounts maintained by Company, and Seller shall
submit evidence satisfactory to Purchaser of such cancellation.
ARTICLE 5
CONDITIONS OF CLOSING
5.1 Conditions of Obligations of Purchaser. The obligation of
Purchaser to consummate the purchase of the Xxxxx Shares pursuant to this
Agreement is subject to the satisfaction of the following conditions, any of
which may be waived by Purchaser:
(a) Representations and Warranties; Performance of
Obligations. The representations and warranties of Seller and Company set forth
in Article 2 hereof and in all agreements, documents and instruments executed
and delivered pursuant hereto or in connection with the Closing shall have been
and be true and correct in all material respects as of the date
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hereof. Seller and Company shall have performed in all material respects the
agreements and obligations necessary to be performed by them under this
Agreement prior to the Closing Date.
(b) Certificates and Deliveries by Seller and Company.
Purchaser shall have received (i) copies of Company's Certificate of
Incorporation, including all amendments thereto, certified by the Secretary of
State of Delaware, (ii) a certificate from the Secretary of State of Delaware,
and from the proper official in each State in which Company is qualified to do
business, certifying that Company is in good standing in such State, (iii) a
certificate as to the tax status of Company from the appropriate official in
Delaware, and each State in which Company is qualified to do business, and (iv)
a copy of the Bylaws, including all amendments thereto, of Company.
(c) No Injunction. No preliminary or permanent injunction
or order that would prohibit or restrain the consummation of the transactions
contemplated hereunder shall be in effect and no Governmental Entity or other
Person shall have commenced or threatened to commence an action or proceeding
seeking to enjoin the consummation of such transactions or to impose liability
on the parties hereto in connection therewith.
(d) Certificates and Instruments of Transfer. Seller shall
have delivered to Purchaser certificates representing the Xxxxx Shares,
accompanied by executed stock powers, with all required stock transfer tax
stamps affixed. All certificates, instruments and documents delivered by Seller
in connection with the transactions contemplated hereby and necessary to
evidence such transactions shall be in form and substance reasonably
satisfactory to Purchaser and its counsel.
(e) Non-Competition Agreement. Purchaser shall have
received the Non-Competition Agreement, executed by Seller.
(f) Transfer of Business Rights. Purchaser shall have
received evidence acceptable to Purchaser and its counsel that Seller has
transferred the Business Rights to Company as set forth in Section 4.6 above.
(g) Due Diligence. Purchaser shall have completed prior to
Closing a due diligence investigation of the business, operations, condition
(financial and otherwise) and prospects of Company, and the results of such
investigation shall be satisfactory to Purchaser in its sole discretion.
(h) No Material Adverse Change. Purchaser shall be
satisfied in its reasonable discretion, after review of the Financial Statements
and the results of its due diligence review, that there has been no material
adverse change in the business, operations, or condition (financial or
otherwise) of Company since December 31, 1999.
(i) Closing of Companion Transaction. The closing of the
transactions contemplated by the Stock Purchase Agreement dated of even date
herewith, by and among the Purchaser and the other Shareholders of the Company,
shall have occurred.
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(j) Directors' and Officers' Resignations. Seller shall
have delivered to Purchaser resignations of all directors and officers of the
Company, effective as of the Closing Date and in form and substance reasonably
satisfactory to Purchaser and its counsel.
5.2 Conditions of Obligations of Seller. The obligations of
Seller to consummate the sale and purchase under this Agreement are subject to
the satisfaction of the following conditions, each of which may be waived by
Seller:
(a) Representations and Warranties; Performance of
Obligations. The representations and warranties of Purchaser set forth in
Article 3 hereof and in all agreements, documents and instruments executed and
delivered pursuant hereto or in connection with the Closing shall have been and
be true and correct in all material respects as of the Closing Date. Purchaser
shall have performed in all material respects the agreements and obligations
necessary to be performed by it under this Agreement prior to the Closing Date.
(b) No Injunction. No preliminary or permanent injunction
or order that would prohibit or restrain the consummation of the transactions
contemplated hereunder shall be in effect and no Governmental Entity or other
Person shall have commenced or threatened to commence an action or proceeding
seeking to enjoin the consummation of such transactions or to impose liability
on the parties hereto in connection therewith.
(c) Purchase Price. Seller shall have received the
Purchase Price as provided in Section 1.2.
ARTICLE 6
CLOSING DATE AND TERMINATION OF AGREEMENT
6.1 Closing Date. The closing for the consummation of the
purchase and sale contemplated by this Agreement (the "Closing") shall, unless
another date or place is agreed to in writing by Seller and Purchaser, take
place on January 28, 2000 at the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP, at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx, or, if
later, the date on which each condition set forth in Article 5 is satisfied or
waived (the "Closing Date").
ARTICLE 7
INDEMNIFICATION
7.1 Indemnification by Seller.
(a) Subject to the provisions of Sections 7.1(b) and 7.4
below, Seller shall indemnify Purchaser and its Affiliates including, without
limitation, Company, and each of their respective stockholders, officers,
directors, employees and representatives (each a
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"Purchaser Indemnitee") against, and hold each Purchaser Indemnitee harmless
from, any and all loss, damage, liability, payment, and obligation, and all
expenses, including without limitation reasonable legal fees, all calculated on
a net after tax basis (collectively "Losses"), incurred, suffered, sustained or
required to be paid, directly or indirectly, by, or sought to be imposed upon,
such Purchaser Indemnitee after the Closing Date resulting from, related to or
arising out of any inaccuracy in, or breach of, any of the representations,
warranties or covenants made by Seller or Company in or pursuant to this
Agreement or in any agreement, document or instrument executed and delivered
pursuant hereto or in connection with the Closing of the transactions
contemplated hereunder.
(b) Each Purchaser Indemnitee shall promptly give written
notice to Seller of the assertion by any Person of any claim, action, suit or
proceeding with respect to which Seller is obligated to provide indemnification
hereunder; provided, however, that the rights of a Purchaser Indemnitee to be
indemnified hereunder shall only be affected by the failure to give such notice
if and to the extent such failure prejudices Seller in the defense of such third
party claim. Amounts due with respect to Losses covered by this Section 7.1
shall be paid promptly after delivery of reasonably documented written notice of
the amount of Losses incurred. Seller shall have the right, but not the
obligation, to contest, defend or litigate, and to retain counsel of his choice
in connection with, any claim, action, suit or proceeding by any third party
alleged or asserted against a Purchaser Indemnitee that is subject to
indemnification by Seller hereunder, and the cost and expense thereof shall be
subject to the indemnification obligations of Seller hereunder; provided, that
each Purchaser Indemnitee shall have the right and option to participate in, but
not control, the defense of such action at its own expense; and provided,
further, that, (i) if Seller elects not to defend any such action or (ii) if a
Purchaser Indemnitee shall have defenses not available to Seller and if counsel
to Purchaser shall advise in a written opinion that common representation is not
appropriate, then, in each case, such Purchaser Indemnitee shall be entitled, at
its option through counsel of its choice, reasonably approved by Seller, such
approval not to be unreasonably withheld, but at Seller's expense, to assume and
control the defense of such action. Neither Seller, on the one hand, nor any
Purchaser Indemnitee, on the other hand, shall be entitled to settle or
compromise any such claim, action, suit or proceeding without the prior written
consent of such Purchaser Indemnitee or the Seller as the case may be, which
consent shall not be unreasonably withheld and provided further if Purchaser
unreasonably refuses to approve any settlement of an action or proceeding which
involves only the payment of money, and the Purchaser Indemnitee's position in
such an action or a proceeding is subsequently not sustained, such Purchaser
Indemnitee shall be solely responsible for Losses in excess of those which would
have been incurred had such claim been settled on the terms acceptable to
Seller.
7.2 Indemnification by Purchaser.
(a) Subject to the provisions of Section 7.2(c) and 7.4
below, Purchaser shall indemnify Seller against, and hold Seller harmless from,
any and all Losses incurred, suffered, sustained or required to be paid,
directly or indirectly, by or sought to be imposed upon, Seller resulting from,
related to or arising out of any inaccuracy in or breach of any of the
representations, warranties or covenants made by Purchaser in or pursuant to
this Agreement or in any agreement, document or instrument executed and
delivered pursuant hereto or in connection with the Closing of the transactions
contemplated hereunder.
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(b) Seller shall promptly give written notice to Purchaser
of the assertion by any Person of any claim, action, suit or proceeding with
respect to which Purchaser is obligated to provide indemnification hereunder;
provided, however, that the rights of Seller to be indemnified hereunder shall
only be affected by the failure to give such notice if and to the extent such
failure prejudices Purchaser in the defense of such third party claim. Amounts
due with respect to Losses covered by this Section 7.2 shall be paid promptly
after delivery of reasonably documented written notice of the amount of Losses
incurred. Purchaser shall have the right, but not the obligation, to contest,
defend or litigate, and to retain counsel of its choice in connection with, any
claim, action, suit or proceeding by any third party alleged or asserted against
Seller that is subject to indemnification by Purchaser hereunder, and the cost
and expense thereof shall be subject to the indemnification obligations of
Purchaser hereunder; provided, that Seller shall have the right and option to
participate in, but not control, the defense of such action at his own expense;
and provided, further, that (i) if Purchaser elects not to defend any such
action or (ii) if Seller shall have defenses not available to Purchaser and if
counsel to Seller shall in a written opinion advise that common representation
is not appropriate, then Seller shall be entitled, at their option through
counsel of its choice, approved by Purchaser, such approval not to be
unreasonably withheld, but at Purchaser's expense, to assume and control the
defense of such action. Neither Seller, on one hand, nor Purchaser, on the other
hand, shall be entitled to settle or compromise any such claim, action, suit or
proceeding without the prior written consent of such Seller or Purchaser, as the
case may be, which consent shall not be unreasonably withheld and provided
further if Seller unreasonably refuses to approve any settlement of an action or
proceeding which involves only the payment of money, and Seller's position in
such action or proceeding is subsequently not sustained, Seller shall be solely
responsible for Losses in excess of those which would have been incurred had
such claim been settled on the terms acceptable to Purchaser.
7.3 Indemnity and Other Agreements Concerning Taxes and
Environmental Matters.
(a) Seller shall indemnify the Purchaser Indemnitees, from
and against any liability for taxes based upon or arising out of matters prior
to the Closing. Purchaser and Company shall indemnify Seller from and against
all Tax liability based upon or arising from matters following the Closing.
Purchaser and its accountants shall assume responsibility for the preparation of
all returns and reports of the Company, including those which are due in
connection with periods ended prior to the Closing Date, but which were not
required to be filed prior to the Closing Date.
(b) Seller shall indemnify Purchaser Indemnitees against
all Losses arising from any violations or liabilities under any Environmental
Laws arising from acts, omissions, conditions, or circumstances occurring prior
to Closing and caused by Seller or Company.
7.4 General Indemnification by Seller. Seller shall indemnify,
protect, defend and hold harmless Purchaser and Company from and against any and
all claims, demands, actions, obligations, losses, liabilities, damages, costs
and expenses, including, without limitation, attorneys' fees and accountants'
fees, incurred by or asserted against Purchaser or
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Company in connection with any claim or cause of action related to or arising
out of the conduct of the business of Company prior to the Closing Date.
7.5 Survival of Representations and Warranties; Reliance.
(a) All representations and warranties contained herein or
made pursuant hereto by Seller shall survive the Closing hereunder until the
third anniversary of the Closing, except that the representations and warranties
(i) in Section 2.4 (Capitalization; No Subsidiaries) and 2.5 (Title to Xxxxx
Shares)shall survive without limit, (ii) in Section 2.18 (Taxes) shall survive
the Closing until the expiration of the applicable statute of limitations and
(iii) in Section 2.17 (Environmental Laws) shall survive until the expiration of
the applicable statutes of limitations during which claims may be brought
against Purchaser or Company. The expiration of any representation and warranty
shall not affect any claim for indemnification made prior to the date of such
expiration and shall not affect Seller's obligations under Section 7.3(b). The
representations and warranties of Purchaser shall survive the Closing until
expiration of the applicable statute of limitations.
(b) The representations and warranties made by any party
in this Agreement or in any agreement, certificate, or exhibit delivered in
connection with this Agreement may be fully and completely relied upon by each
other party unless the party seeking to avoid such representation or warranty
can demonstrate by conclusive evidence that the investigation made by or on
behalf of such other party actually revealed or disclosed the inaccuracy in
question.
ARTICLE 8
MISCELLANEOUS
8.1 Further Actions. From time to time, as and when requested by
the other party, Seller and Purchaser shall execute and deliver, or cause to be
executed and delivered, such documents and instruments and shall take, or cause
to be taken, such further or other actions as the requesting party may
reasonably deem necessary or desirable to carry out the intent and purposes of
this Agreement, to transfer, assign and deliver to Purchaser effective as of the
Closing, and its successors and assigns, the Xxxxx Shares (or to evidence the
foregoing) and to consummate and give effect to the other transactions,
covenants and agreements contemplated hereby.
8.2 Expenses. Purchaser shall pay the first $5,000 of the legal
fees incurred by Company and Seller in connection with the transactions
contemplated by this Agreement. Thereafter, Seller and Purchaser shall each bear
their own legal fees and other costs and expenses with respect to the
negotiation, execution and delivery of this Agreement and the consummation of
the transactions hereunder. Purchaser shall pay all sales, transfer and
documentary taxes and other expenses incident to the transfer of the Xxxxx
Shares. If any action in law or in equity is necessary to enforce or interpret
the terms of this Agreement, the parties shall each bear their
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respective attorneys' fees, costs and all other related expenses unless
otherwise specifically awarded by the court.
8.3 Entire Agreement. This Agreement, which includes the Appendix
and the Exhibits hereto and the other documents, agreements and instruments
executed and delivered pursuant to this Agreement, contain the entire agreement
between the parties hereto with respect to the transactions contemplated by this
Agreement and supersede all prior arrangements or understandings with respect
thereto.
8.4 Descriptive Headings. The descriptive headings of this
Agreement are for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement.
8.5 Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if (a)
delivered personally or (b) sent by registered or certified mail, postage
prepaid, or (c) sent by overnight courier with a nationally recognized courier,
or (d) via facsimile confirmed in writing in any of the foregoing manners, as
follows:
If to Seller: Xxxxxxx X. Xxxxx
000 Xxxxxx Xxxxxx
Xx Xxxxx, XX 00000
Facsimile: (000) 000-0000
If to Company: webinc., Inc.
c/o Venture Catalyst Incorporated
Attention: L. Xxxxxx Xxxxx, XX
16868 Xxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
Attention: Xxxx X. Xxxxx Xxxxxx
Seventeenth Floor
000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Facsimile: 000 000-0000
If to Purchaser: Venture Catalyst Incorporated
Attention: L. Xxxxxx Xxxxx, XX
16868 Xxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
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with a copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
Attention: Xxxx X. Xxxxx Xxxxxx
Seventeenth Floor
000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Facsimile: 000 000-0000
If sent by mail, notice shall be considered delivered five (5) business days
after the date of mailing, and if sent by any other means set forth above,
notice shall be considered delivered upon receipt thereof. Any party may by
notice to the other parties change the address to which notice or other
communications to it are to be delivered or mailed.
8.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California (other than the
choice of law principles thereof). Any action, suit or other proceeding
initiated by Seller or Purchaser against any other party under or in connection
with this Agreement may be brought in any Federal or state court in the State of
California, as the party bringing such action, suit or proceeding shall elect,
having jurisdiction over the subject matter thereof. Seller and Purchaser hereby
submit themselves to the jurisdiction of any such court and agree that service
of process on them in any such action, suit or proceeding may be effected by the
means by which notices are to be given to it under this Agreement.
8.7 Assignability. This Agreement shall not be assignable by any
party without the written consent of the other parties and any such purported
assignment by any party without such consent shall be void, except that:
(a) any or all rights of Purchaser to receive the
performance of the obligations of Seller hereunder (but not the obligations of
Purchaser to Seller hereunder) and rights to assert claims against Seller in
respect of any inaccuracy in or breach of any representations, warranties or
covenants of Seller hereunder, may be assigned by Purchaser to a direct or
indirect subsidiary of Purchaser, and
(b) Purchaser may assign to any bank, insurance company or
other financial institution providing financing or extending credit to Purchaser
or Company any or all of its rights to assert claims against Seller in respect
of any inaccuracy in or breach of representations, warranties or covenants
under this Agreement, but any assignee of such rights under clause (a) or clause
(b) shall take such rights subject to any defenses, counterclaims and rights of
set-off to which Seller might be entitled under this Agreement. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
8.8 Waivers and Amendments. Any waiver of any term or condition
of this Agreement, or any amendment or supplementation of this Agreement, shall
be effective only if in writing and signed by both parties. A waiver of any
breach or failure to enforce any of the terms or conditions of this Agreement
shall not in any way affect, limit or waive a party's rights hereunder at any
time to enforce strict compliance thereafter with every term or condition of
this Agreement.
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8.9 Public Announcements. Seller will consult with Purchaser
before issuing any press release or otherwise making any public statements or
public filings with respect to the transactions contemplated by this Agreement,
and Seller shall not issue any such press release or make any such public
statement or public filings without the prior approval of Purchaser both as to
the making of such release or statement and as to the form and content thereof,
except to the extent that such party is advised by counsel, in good faith, that
such release or statement or filing is required as a matter of law (a "Required
Release"); and as to such Required Releases, Seller shall give Purchaser, to the
extent practicable, at least three (3) business days advance notice of such
Required Releases and the opportunity to provide comments to Seller prior to
issuing any such Required Release.
8.10 Severability. If any term or provision of this Agreement
shall, in any jurisdiction, be invalid or unenforceable, such term or provision
shall be ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable such term or
provision in any other jurisdiction, or affecting any other provision of this
Agreement.
8.11 Jurisdiction for Legal Actions. In connection with any
action brought pursuant to or arising out of this Agreement, the parties hereby
irrevocably and unconditionally consent to submit to the exclusive jurisdiction
of the courts of the State of California, County of San Diego, and/or the United
States District Court for the Southern District of California for any actions,
suits, controversies or proceedings arising out of or relating to this Agreement
and the transactions contemplated hereby (and the parties agree not to commence
any action, suit or proceeding relating thereto except in such courts), and
further agree that service of any process, summons, notice or document by U.S.
registered mail to the respective addresses set forth above shall be effective
service of process for any action, suit or proceeding brought against the
parties in any such court. The parties hereby irrevocably and unconditionally
waive any objection to the laying of venue of any action, suit, controversies or
proceeding arising out of this Agreement or the transactions contemplated
hereby, in the courts of the State of California, County of San Diego and/or the
United States District Court for the Southern District of California, hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient or improper forum, and hereby further
irrevocably and unconditionally waive trial by jury in any action hereunder.
8.12 Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
agreement. Facsimile signatures shall be treated as if they were originals.
[SIGNATURES ON FOLLOWING PAGE]
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27
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed and delivered
this Agreement as of the date first above written.
"Purchaser"
VENTURE CATALYST INCORPORATED,
a Utah corporation
By: /S/ L. XXXXXX XXXXX, XX
--------------------------------------
Name: L. Xxxxxx Xxxxx, XX
Title: President
"Company"
WEBINC., INC.,
a Delaware corporation
By: /S/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
"Seller"
/S/ XXXXXXX X. XXXXX
----------------------------------------
XXXXXXX X. XXXXX
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