EXHIBIT 1
---------
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT, dated as of December 23, 2004 (this
"AGREEMENT"), is made among Xxxxx Holdings, LLC, a New Jersey limited liability
company ("XXXXX"), and FireAway LLC, a Delaware limited liability company
("FIREAWAY", and collectively with Xxxxx, the "PURCHASERS"), and NF Partners,
LLC, a Delaware limited liability company ("NF PARTNERS"), Ravitch Rice &
Company LLC, a New York limited liability company, Xxxxxx X. Xxxxx and Xxxxx
Xxxxxxx, residents of the State of New York, and Xxxxx X. Xxxxx and Xxxxxx X.
Xxxxxxxxx, residents of the State of New Jersey (each a "SELLER", and
collectively, the "Sellers").
RECITALS
WHEREAS, Sellers currently own 7,284,256 shares of common stock, par
value $0.20 per share (the "SHARES"), of XxXxxx Technologies, Inc., a Delaware
corporation (the "COMPANY") and warrants expiring on January 7, 2005 and
February 15, 2005 to purchase up to 3,694,032 shares of common stock, par value
$0.20 per share, of the Company (the "WARRANTS");
WHEREAS, NF Partners currently holds two 6.00% notes due December 31,
2004 issued by the Company (the "NOTES"), having an aggregate principal amount
of $88,811.25 and unpaid accrued interest to the date hereof in the aggregate
amount of approximately $9,000; and
WHEREAS, Sellers have agreed to sell to Purchasers, and Purchasers have
agreed to purchase from Sellers, all of the Shares, Warrants and Notes 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 and Warrants.
On the terms and subject to the conditions set forth in this Agreement,
each Seller hereby agrees to sell, transfer, assign and deliver to Xxxxx without
representation, warranty or recourse except as provided in Article II and
Section 6.01 of Article VI, and Xxxxx hereby agrees to purchase from each
Seller, at the closing (the "CLOSING"), the number of Shares and Warrants at a
cash purchase price (the "PURCHASE PRICE") set forth opposite each Seller's
respective name on Schedule 1.01 attached hereto.
Section 1.02 Assignment of the Notes.
On the terms and subject to the conditions set forth in this Agreement,
NF Partners hereby agrees to assign and deliver to FireAway without
representation, warranty or recourse except as provided in Article II and
Section 6.01 of Article VI, and FireAway hereby agrees to acquire and accept
from NF Partners, at the Closing, the Notes for a cash price (the "NOTE PRICE")
in an amount equal to 50% of the $88,811.25 principal amount or $44,405.63.
Section 1.03 Closing.
The Closing shall take place at the offices of Xxxxx Holdings, LLC, 000
Xxxxxxxx Xxxx, Xxxxxxx, XX 00000, on the date of this Agreement (the "CLOSING
DATE").
Section 1.04 Delivery of the Shares, Warrants and Notes to Purchasers.
At the Closing, Sellers shall deliver to Xxxxx certificates
representing the number of Shares and Warrants to be sold by each Seller as set
forth in Schedule 1.01, together with duly executed stock and warrant powers,
and NF Partners shall deliver to FireAway the Notes to be sold by NF Partners,
together with a duly executed assignment, against receipt by Sellers of the
Purchase Price and receipt by NF Partners of the Note Price in immediately
available funds by electronic transfer to an account designated by NF Partners,
which each Seller hereby designates as his, her or its agent to receive such
funds on his, her or its account. Sellers shall also deliver to Xxxxx an
irrevocable proxy, in form and substance satisfactory to Xxxxx and its counsel,
to vote all Shares in the absolute discretion of Xxxxx until the transfer of the
Shares to Xxxxx 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 Xxxxx shall have been delivered to Xxxxx.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller, severally and not jointly, hereby represents and warrants
to Purchasers as follows:
Section 2.01 Title, Etc.
Such Seller has valid and unencumbered title to the Shares, Warrants
and Notes to be sold by such Seller to Purchasers hereunder, and full right,
power and authority to sell, transfer, assign and deliver such Shares, Warrants
and Notes to Purchasers hereunder; and upon delivery and payment of the Purchase
Price for such Shares and Warrants and payment of the Note Purchase Price for
such Notes as provided herein, Purchasers will acquire valid and unencumbered
title thereto.
Section 2.02 Authorization.
Such 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 such Seller, and, assuming the due authorization,
execution and delivery of this Agreement by Purchasers, constitutes a
-2-
valid and legally binding obligation of such 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 such 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, Warrants and Notes by such Seller to
Purchasers 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.
No person or entity acting on behalf or under the authority of such
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
Each Purchaser, severally and not jointly, hereby represents and
warrants to Sellers as follows:
Section 3.01 Investment Representation and Qualification of Purchaser.
Such Purchaser is acquiring the Shares, Warrants and Notes, as the
cases may be, and any Shares into which the Warrants may be converted for such
Purchaser's own account, for investment and not with a view to, or for sale in
connection with, any distribution of such stock or any part thereof. Such
Purchaser acknowledges that the Shares and Warrants were purchased by the
Sellers 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. Such Purchaser understands that the purchase of the Shares, Warrants
and Notes involves substantial risk and hereby represents and warrants that its
financial condition and investments are such that it is in a financial position
to hold the Shares, Warrants and Notes 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, such 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.
Such 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 such Purchaser and, assuming the due
authorization, execution and delivery of this Agreement by each Seller,
-3-
constitutes a valid and legally binding obligation of such 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.
No person or entity acting on behalf or under the authority of such
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.
Subject to the terms and conditions hereof, Sellers and Purchasers
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 transactions 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.
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.
ARTICLE V.
CONDITIONS TO CLOSING
Section 5.01 Conditions to Purchasers' Obligations.
The obligations of Purchasers 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 Purchasers in whole or in part:
(a) The representations and warranties of each Seller set forth in this
Agreement shall be true and correct as of the date of this Agreement and as of
the Closing Date.
-4-
(b) Each 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 such Seller at or prior to
the Closing Date.
(c) Such Seller shall have assigned to Xxxxx all rights of such Seller
under that certain Registration Rights Agreement dated as of June 15, 1998
between the Company, Sellers and certain others, as amended by an Amendment to
Registration Rights Agreement dated as of January 7, 2000.
(d) NF Partners shall have assigned to FireAway all rights of NF
Partners under that certain Patent Security Agreement dated March 13, 2003
between the Company and NF Partners, and delivered to FireAway with such
assignment an original executed copy of the Patent Security Agreement and an
assignment of all UCC Financing Statements heretofore filed by NF Partners as a
secured party under the Patent Security Agreement.
Section 5.02 Conditions to Sellers' Obligations.
The obligation of Sellers 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 each Seller (as to itself only) in whole or in part:
(a) The representations and warranties of each 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) Each 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 Sellers.
From and after the Closing Date, each Seller shall severally indemnify,
hold harmless and defend each Purchaser from and against any losses, claims,
damages, liabilities, costs and expenses (any "LOSSES") that such Purchaser may
incur as a result or arising out of (a) any breach by such Seller of any of such
Seller's representations and warranties contained herein or (b) any defect in
such Seller's title to the Shares, Warrants or Notes, as the case may be, sold
by such Seller to such Purchaser pursuant to this Agreement.
Section 6.02 Indemnification by Purchasers.
From and after the Closing Date, each Purchaser shall severally
indemnify, hold harmless and defend each Seller from and against any Losses such
Seller may incur arising out of or resulting from (a) any breach by such
Purchaser of any of its representations and warranties contained herein, or (b)
except for any matter for which Sellers have agreed to indemnify Purchasers
hereunder, the sale, transfer or delivery of the Shares, Warrants or Notes to
Purchaser
-5-
pursuant to this Agreement, including any action taken by Xxxxx pursuant to the
irrevocable proxy.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Entire Agreement.
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.
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.
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.
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.
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.
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 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.
-6-
Section 7.07 Expenses.
Sellers, on the one hand, and Purchasers, 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.
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
such Seller's address as set forth opposite such Seller's respective name on
Schedule 1.01, or if to Purchasers, 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.
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.
-7-
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
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
FIREAWAY LLC
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
NF PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
RAVITCH RICE & COMPANY LLC
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
/s/ Xxxxxx X. Xxxxx
-----------------------------
XXXXXX X. XXXXX
/s/ Xxxxx Xxxxxxx
-----------------------------
XXXXX XXXXXXX
/s/ Xxxxx X. Xxxxx
-----------------------------
XXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
XXXXXX X. XXXXXXXXX
SCHEDULE 1.01
Seller Name Mailing Address Shares Warrants Purchase Price
----------- --------------- ------ -------- --------------
NF Partners, LLC 000 Xxxxxxx Xxx. 6,720,243 3,643,875 $6,720.24
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Ravitch Rice & 000 Xxxxx Xxx., Xxxxx 000 68,282 50,157 $68.28
Company LLC Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Xxxxxx X. Xxxxx 000 Xxxxxxx Xxx. 160,000 0 $160.00
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxx 000 Xxxxxxx Xxx., 0xx Xx. 55,000 0 $55.00
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxx 000 Xxxxxxx Xxx., 00xx Xx. 122,508 0 $122.51
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxxxx 000 Xxxxxxx Xxx., 0xx Xx. 158,223 0 $158.22
Xxx Xxxx, XX 00000
--------- --------- ---------
TOTAL: 7,284,256 3,694,032 $7,284.25
