EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of August 8,
2001, is entered into by and among Global Capital Partners Inc., a Delaware
corporation with its principal offices at 0000 Xxxxxxxx Xxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("GCAP" or "Seller"); Xxxxxxxx X. Xxxxxx, an
individual residing at ____________________ ("Xxxxxx"); Xxxxxxx X. Xxxxx, an
individual residing at _____________________ ("Xxxxx"); the XX Xxxxxx Group Inc.
401(k) Profit Sharing Plan dated 10/1/95 f/b/o/ Xxxxxxxx X. Xxxxxx (the "Xxxxxx
401(k)"); and Sigma Limited S.A., a business entity formed under the laws of
Switzerland, with offices at Xxx-Xxxxx-Xxxxxxxxxxx 00, 0000 Xx Xxxxx-xx-Xxxxx,
Xxxxxxxxxxx ("Sigma") (Xxxxxx, Xxxxx, the Xxxxxx 401(k) and Sigma are sometimes
hereinafter individually referred to as "Purchaser" and collectively as
"Purchasers").
W I T N E S S E T H:
WHEREAS, Seller is the legal and beneficial owner of 2,684,000 shares
(the "Shares") of the common stock, par value $.025 per share (the "Common
Stock"), of Xxxxxx Online, Inc., a Delaware corporation with its principal
offices at 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000 (the
"Company");
WHEREAS, Seller is the legal and beneficial owner of warrants to
purchase an aggregate of 500,000 shares of the Company's Common Stock at an
exercise price of $2.50 per share (the "Warrants");
WHEREAS, Seller agrees to sell to each Purchaser, and each Purchaser
agrees to purchase from Seller, upon the terms and conditions set forth herein,
(i) that number of Shares and (ii) that number of Warrants set forth opposite
such Purchaser's name on Schedule A attached hereto; and
WHEREAS, concurrent with this Agreement, Xxxxxx, the Xxxxxx 401(k) and
Xxxxx are entering into a stock purchase agreement (the "Xxxx Agreement") with
Xxxxxx X. Xxxx ("Xxxx"), whereby (i) Xxxx has agreed to purchase, and Xxxxxx has
agreed to sell, all restricted shares of the common stock of GCAP owned by
Xxxxxx (the "Xxxxxx Shares"); (ii) Xxxx has agreed to purchase, and the Xxxxxx
401(k) has agreed to sell, all restricted shares of common stock of GCAP owned
by the Xxxxxx 401(k) (the "Xxxxxx 401(k) Shares") and (ii) Xxxx has agreed to
purchase, and Xxxxx has agreed to sell, all restricted shares of the common
stock of GCAP owned by Xxxxx (the "Xxxxx Shares").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises herein contained, Seller and Purchasers hereby agree as
follows:
SECTION 1
SALE AND PURCHASE OF THE SHARES AND WARRANTS
SECTION 1.1 PURCHASE OF THE SHARES AND WARRANTS. Subject to the terms and
conditions set forth in this Agreement, Seller agrees to sell, transfer, convey
and assign to each Purchaser, and each Purchaser agrees to purchase from Seller,
on the Closing Date, the number of Shares and Warrants set forth opposite such
Purchaser's name on Schedule A, free and clear of all liens, charges and other
encumbrances for the aggregate purchase price (the "Purchase Price") of One
Million Eight Hundred Thousand Dollars ($1,800,000), subject to any adjustment
set forth in Section 1.3 hereof. The Purchase Price shall be allocated among the
Purchasers as set forth on Schedule A.
SECTION 1.2 PAYMENT OF THE PURCHASE PRICE. The Purchase Price shall be paid
at the Closing (as defined herein) as follows: (a) Purchasers shall pay to
Seller in cash, by wire transfer or certified or cashier's check, Two Hundred
Thousand Dollars ($200,000) (the "Cash Purchase Price") and (b) (i) Xxxxxx shall
deliver to Seller a non-recourse promissory note in the aggregate principal
amount of Three Hundred Seventy-five Thousand Dollars ($375,000), substantially
in the form attached hereto as Exhibit A (the "Xxxxxx Note"); (ii) Xxxxx shall
deliver to Seller a non-recourse promissory note in the aggregate principal
amount of Three Hundred Seventy-five Thousand Dollars ($375,000), substantially
in the form attached hereto as Exhibit B (the "Xxxxx Note"); and (iii) Sigma
shall deliver to Seller a non-recourse promissory note, in the aggregate
principal amount of Eight Hundred Fifty Thousand Dollars ($850,000), subject to
adjustment as set forth in Section 1.3 hereof and substantially in the form
attached hereto as Exhibit C (the "Sigma Note") (the Xxxxxx Note, the Xxxxx Note
and the Sigma Note are hereinafter collectively referred to as the "Notes").
SECTION 1.3 ADJUSTMENT TO SIGMA NOTe. If, within forty-five (45) days of
the Closing Date (as defined herein), Sigma makes a prepayment or series of
prepayments of the Sigma Note equal to or exceeding fifty thousand dollars
($50,000) in the aggregate (the "Sigma Prepayment"), the outstanding aggregate
principal amount of the Sigma Note shall be decreased by one hundred thousand
dollars ($100,000).
SECTION 1.4 PLEDGE AGREEMENT. Seller, Xxxxxx, the Xxxxxx 401(k), Xxxxx and
Sigma shall enter into a Pledge Agreement, substantially in the form attached
hereto as Exhibit D (the "Pledge Agreement"), whereby each of Xxxxxx, the Xxxxxx
401(k), Xxxxx and Sigma shall pledge their respective interest in the Shares to
Seller as security for the payment of the Notes (the "Pledged Shares").
SECTION 2
CLOSING
SECTION 2.1 TIME AND PLACE OF CLOSING. The closing (the "Closing") of the
sale and purchase of Shares referenced on Schedule A under this Agreement shall
take place on August __, 2001 at 10:00 a.m., local time, at the offices of
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Berlack, Israels & Xxxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
at such other time or place as is mutually agreeable to Seller and the
Purchasers (the "Closing Date"). At the Closing, Seller shall deliver to each
Purchaser certificates for the Shares in good delivery form, duly endorsed or
accompanied by appropriate transfer powers duly executed, and assignments of the
Warrants being purchased by such Purchaser.
SECTION 2.2 CONDITIONS PRECEDENT TO PURCHASERS' OBLIGATION TO CLOSE. The
obligation of Purchasers to purchase the Shares and the Warrants and to perform
their other obligations under this Agreement shall be subject to the
satisfaction of the following conditions precedent (or waiver thereof by
Purchasers) on or prior to the Closing Date:
(a) REPRESENTATIONS AND WARRANTIES. On the Closing Date,
each of the representations and warranties of Seller contained in
this Agreement shall be true and correct in all material respects at
and as of the Closing Date with the same effect as though such
representations and warranties were made at and as of the Closing
Date.
(b) COMPLIANCE WITH OBLIGATIONS. Seller shall have
performed or complied in all material respects with all
agreements and covenants required by this Agreement to be performed or
complied in all material respects with by Seller on or prior to the
Closing Date.
(c) NO INJUNCTIONS, ETC. The Closing shall not have been
enjoined or prohibited by any judicial or regulatory proceeding,
nor shall any action, proceeding, suit, litigation or investigation be
pending or threatened before any court, arbitration, tribunal,
governmental or regulatory agency or legislative body (i) that seeks
to enjoin or prohibit, or to obtain substantial damages in connection
with the Closing or (ii) that purports to affect the legality,
validity or enforceability of this Agreement and the other documents,
instruments and agreements to be entered into by Seller pursuant
hereto.
(d) RECEIPT OF DOCUMENTS, ETC..Purchasers shall have
received the following, in form and substance satisfactory to
Purchasers:
(i) certificates representing the Shares, which
certificates shall be in good delivery form, duly endorsed
or accompanied by appropriate stock transfer powers duly
executed;
(ii) assignments of the Warrants, which assignments
shall be in good delivery form, duly endorsed or accompanied
by appropriate transfer powers duly executed
(iii) the Xxxxxx Employment Amendment (as defined
herein), duly executed by the parties thereto;
(iv) the Xxxxxx Non-Compete Amendment (as defined
herein); and
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(v) the Xxxxx Employment Amendment (as defined
herein), duly executed by the parties thereto.
SECTION 2.3 CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATION TO CLOSE.
The obligation of Seller to sell the Shares and the Warrants, and to perform its
other obligations under this Agreement shall be subject to the satisfaction of
the following conditions precedent (or waiver thereof by Seller) on or prior to
the Closing Date:
(a) REPRESENTATIONS AND WARRANTIES. On the Closing Date,
each of the representations and warranties of Purchasers
contained in this Agreement shall be true and correct in all material
respects at and as of the Closing Date with the same effect as though
such representations and warranties were made at and as of the Closing
Date.
(b) COMPLIANCE WITH OBLIGATIONS. Purchasers shall have
performed or complied in all material respects with all
agreements and covenants required by this Agreement to be performed or
complied in all material respects with or by them on or prior to the
Closing Date.
(c) EQUIPMENT LEASE PLEDGE AGREEMENT. GCAP shall have
entered into an equipment lease pledge agreement, dated the date
hereof, substantially in the form of Exhibit E attached hereto (the
"Equipment Lease Pledge Agreement"), whereby HK Partners LLC and
Corporate Communications Network Corp. shall pledge an aggregate of
50,000 shares of the common stock of Ikon Ventures, Inc. (the
"Equipment Lease Pledged Shares") as security for Seller's guaranty of
the equipment leases listed on Schedule B attached hereto.
(d) XXXX AGREEMENT. Xxxxxx, Xxxxx and the Xxxxxx 401(k)
shall have entered into the Xxxx Agreement.
(e) XXXXXX EMPLOYMENT AMENDMENT. Xxxxxx shall have
entered into an amendment to his employment agreement, dated the
date hereof, substantially in the form of Exhibit F attached hereto
(the "Xxxxxx Employment Amendment");
(f) XXXXX EMPLOYMENT AMENDMENt. Xxxxx shall have entered
into an amendment to his employment agreement, dated the date hereof,
substantially in the form of Exhibit G attached hereto (the "Xxxxx
Employment Amendment");
(g) XXXXXX NON-COMPETITION AMENDMENT. Xxxxxx shall have
entered into an amendment to his non-compete agreement, dated the
date hereof, substantially in the form of Exhibit H attached hereto
(the "Xxxxxx Non-Compete Amendment");
(h) NO INJUNCTIONS, ETC.. The Closing shall not have been
enjoined or prohibited by any judicial or regulatory proceeding,
nor shall any action, proceeding, suit, litigation or investigation be
pending or threatened before any court, arbitration, tribunal,
governmental or regulatory agency or legislative body (i) that seeks
to enjoin or prohibit, or to obtain substantial damages in connection
with, the Closing, or (ii) that purports to affect the legality,
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validity or enforceability of this Agreement and the other documents,
instruments and agreements to be entered into by Purchasers pursuant
hereto.
(i) RECEIPT OF DOCUMENTS, ETC.. Seller shall have
received, in form and substance satisfactory to Seller, the following:
(i) the Cash Purchase Price;
(ii) the Notes, duly executed by Sigma, Xxxxx and
Xxxxxx;
(iii) the Pledge Agreement, duly executed by the
parties thereto;
(iv) the Pledged Shares;
(v) the Equipment Lease Pledge Agreement, duly
executed by the parties thereto;
(vi) the Equipment Lease Pledged Shares;
(vii) the Xxxxxx Employment Amendment, duly executed
by the parties thereto;
(viii) the Xxxxxx Non-Compete Amendment, duly executed
by the parties thereto; and
(ix) the Xxxxx Employment Amendment, duly executed
by the parties thereto.
SECTION 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Purchasers that each of the following statements is
true, accurate and complete as of the date hereof in all material respects:
(a) AUTHORITY. Seller has the full power and authority
to execute and deliver this Agreement and the other documents,
instruments and agreements to be entered into by Seller pursuant
hereto, to perform hereunder and thereunder, and to consummate the
transactions identified in this Agreement without the necessity of any
act or consent of any other person or entity whomsoever. This
Agreement and each and every agreement, document and instrument to be
executed, delivered and performed by Seller in connection herewith,
constitute or will, when executed and delivered, constitute the legal,
valid and binding obligation of Seller, enforceable against Seller in
accordance with their respective terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and
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other similar laws from time to time in effect affecting the
enforcement of creditors' rights generally, and except as enforcement
of remedies may be limited by general equitable principles.
(b) TITLE. The Shares and Warrants are held of record by
Seller and are free and clear of any liens, charges or other
encumbrances.
(c) BROKERS AND INTERMEDIARIES. Seller has not employed any
broker, finder, advisor or intermediary in connection with the
transactions contemplated by this Agreement which would be entitled to
a broker's, finder's or similar fee or commission in connection
therewith or upon the consummation.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF PURCHASERS. Each Purchaser
hereby severally represents and warrants to Seller that each of the following
statements is true, accurate and complete as of the date hereof in all respects
with respect to such Purchaser:
(a) AUTHORITY. Such Purchaser has full power and authority
to enter into this Agreement, to perform his or its obligations
hereunder and to consummate the transactions contemplated hereby. This
Agreement and each and every agreement, document and instrument to be
executed, delivered and performed by such Purchaser in connection
herewith, constitutes or will, when executed and delivered, constitute
the legal, valid and binding obligation of such Purchaser, enforceable
against such Purchaser in accordance with their respective terms.
(b) GCAP SHARES. Upon the sale of the Xxxxxx Shares, the
Xxxxxx 401(k) Shares and the Xxxxx Shares pursuant to the Xxxx
Agreement, no such Purchaser will beneficially own, either directly or
indirectly, any shares of the common stock of GCAP; other than shares
of the common stock of GCAP purchased by such Purchaser on the open
market.
(c) ACCREDITED INVESTOR. Except for Xxxxx, each such
Purchaser is an "Accredited Investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act of 1933,
as amended (the "Securities Act"). Such Purchaser is able to bear the
economic risk of the purchase of the Shares pursuant to the terms of
this Agreement, including a complete loss of such Purchaser's
investment in the Shares.
(d) SOPHISTICATED INVESTOR. Xxxxx has had a special
relationship with the Company and has had access to all
information necessary for him to make an informed and knowledgeable
decision to acquire the Shares. Xxxxx is able to bear the economic
risk of the purchase of the Shares pursuant to the terms of this
Agreement, including a complete loss of his investment in the Shares.
(e) INVESTMENT. Such Purchaser understands that the
investment in the Shares is a speculative investment, and
represents that he or it is aware of the business affairs and
financial condition of the Company, and has acquired sufficient
information about the Company to reach an informed and knowledgeable
decision to acquire the Shares, and that he or it is purchasing the
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Shares for investment for his or its own account only and not with a
view to, or for resale in connection with, any "distribution" within
the meaning of the Securities Act or applicable state securities laws.
Such Purchaser further represents that he or it understands that the
Shares have not been registered under the Securities Act or applicable
state securities laws by reason of specific exemptions therefrom,
which exemptions depend upon, among other things, the bona fide nature
of such Purchaser's investment intent as expressed herein. Such
Purchaser acknowledges and understands that the Shares must be held
indefinitely unless subsequently registered under the Securities Act
and qualified under applicable state securities laws or unless
exemptions from such registration and qualification requirements are
available.
(f) ACCESS TO DATA. Such Purchaser has had the opportunity
to ask questions of, and receive answers from, representatives of
the Company concerning the Company and the terms and conditions of
this transaction as well as to obtain any information requested by
such Purchaser. Any questions raised by such Purchaser concerning the
transaction have been answered to the satisfaction of such Purchaser.
Such Purchaser's decision to enter into the transactions contemplated
hereby is based in part on the answers to such questions as such
Purchaser has raised concerning the transaction and on such
Purchaser's own evaluation of the risks and merits of the purchase and
the Company's proposed business activities.
(g) LEGEND. Each certificate or instrument representing
the Shares will be endorsed with the following or a substantially
similar legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ACQUIRED FOR INVESTMENT ONLY AND NOT FOR RESALE. THEY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAW. THESE
SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS FIRST
REGISTERED UNDER SUCH LAWS, OR UNLESS THE COMPANY HAS
RECEIVED EVIDENCE REASONABLY SATISFACTORY TO IT THAT
REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED."
SECTION 4
VOTING AGREEMENT
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The agreements contained in this Section 4 constitute the voting
agreement, as contemplated by Section 218 of the General Corporation Law of the
State of Delaware, of Seller and Purchasers.
(a) Seller hereby unconditionally and irrevocably agrees to
vote any and all of shares of Common Stock beneficially owned,
either directly or indirectly, by Seller (the "Seller Shares") at such
time and in such manner and to such extent as may from time to time
and at any time be requested (orally or in writing) by the Chief
Executive Officer of the Company (the "CEO"). To the extent that the
CEO fails to make any such request, in connection with each matter on
which Seller votes or has the right to vote, Seller hereby irrevocably
and unconditionally agrees to vote all of the Seller Shares in the
same manner as the CEO votes his or her shares of Common Stock.
(b) For purposes of this Agreement, "voting" includes
casting or withholding votes at a meeting of holders of shares of
Common Stock, giving or withholding written consent to action in lieu
of a meeting of holders of Common Stock, giving or withholding waiver
of notice of a meeting of holders of Common Stock, and any action or
withholding of action which is similar thereto or which has or could
be expected to have similar effect.
(c) Seller hereby irrevocably and unconditionally
constitutes and appoints the CEO, as the duly authorized
representatives of the Company, as Seller's true and lawful agent,
proxy and attorney-in-fact, with full power of substitution and
resubstitution, for Seller and in Seller's name, place and stead, in
any and all capacities, to: (i) vote at any and all times any and all
Seller Shares; (ii) act on, sign, deliver, publish, acknowledge and
file any and all such consents, waivers, certificates, instruments,
agreements and other documents as may be necessary, appropriate or
expedient in connection with any and all votes or withholding of votes
contemplated by this Section 4; and (iii) take any and all such
actions which may be necessary, appropriate or expedient in connection
with any and all votes or withholding of votes contemplated by this
Section 4 granting unto such agent, proxy and attorney-in-fact, and
each of the CEO's substitutes, full power and authority to do and
perform each and every act and thing necessary, appropriate or
expedient to be done, as fully for all intents and purposes as Seller
might or could do in person, hereby approving, ratifying and
confirming all that such agent, proxy, and attorney-in-fact or any of
the CEO's substitutes may lawfully do or cause to be done by virtue
hereof. This provision is coupled with an interest.
SECTION 5
MISCELLANEOUS PROVISIONS
SECTION 5.1 EXPENSES. Each of the parties hereto will bear its own costs
and expenses, including without limitation accounting, legal, consulting and
other professional service expenses, incurred in connection with this Agreement
and the transaction contemplated hereby.
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SECTION 5.2 SURVIVAL. Except as otherwise provided in this Agreement,
all covenants, agreements, representations and warranties contained in this
Agreement shall survive the execution and delivery of this Agreement and the
closing of the transactions contemplated hereby.
SECTION 5.3 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, three (3) days after the date of deposit in the
mails to such party's address as first set forth above. Any party may by notice
given in accordance with this Section 5.3 to the other parties designate another
address or person for receipt of notices hereunder.
SECTION 5.4 AMENDMENT AND WAIVER. No delay on the part of any party
hereto with respect to the exercise of any right, power, privilege, or
remedy under this Agreement, the Pledge Agreements or the Notes, shall operate
as a waiver thereof, nor shall any exercise or partial exercise of any such
right, power, privilege, or remedy preclude any further exercise thereof or the
exercise of any other right, power, privilege, or remedy. No modification or
waiver by any party hereto of any provision of this Agreement, or consent to any
departure by the other party therefrom, shall be effective in any event unless
in writing, and then only in the specific instance and for the purpose for which
given.
SECTION 5.5 ENTIRE AGREEMENT. This Agreement, the Pledge Agreements and
the Notes constitute the entire agreement and understanding among Purchasers and
Seller relating to the subject matter hereof, and supersede all prior agreements
and understandings relating to the subject matter hereof.
SECTION 5.6 LAW GOVERNING. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law.
SECTION 5.7 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
SECTION 5.8 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 5.9 HEADINGS. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provisions hereof.
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SECTION 5.10 EXHIBITS AND SCHEDULES INCORPORATED. The exhibits and
schedules to this Agreement are incorporated into and constitute an integral
part of this Agreement.
Section 5.11 Injunctive Relief. In the event of a breach or a threatened
breach by any party of any of its representations, warranties, covenants or
other obligations hereunder, any other party shall be entitled to an injunction
or similar equitable relief restraining such party from committing or continuing
any such breach or threatened breach or granting specific performance of any
action required to be performed by such party under any such provision, without
the necessity of proving any actual damages and without the necessity of posting
any bond or other security.
SECTION 5.12 BINDING EFFECT. This Agreement shall inure to the benefit
of and be binding upon the parties and their respective heirs, executors,
personal representatives, successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer on any person other than
the parties, or their respective successors or permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
PURCHASERS:
/s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Xxxxxxx X. Xxxxx
SIGMA LIMITED, S.A.
By: /s/ Xxxxxx Xxxx
-------------------------------------------
Name: Xxxxxx Xxxx
Title: Secretary
X.X. XXXXXX GROUP INC. 401(K)
PROFIT SHARING PLAN DATED 10/1/95
F/B/O/ XXXXXXXX X. XXXXXX
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxxx X. Xxxxxx, Trustee
SELLER:
GLOBAL CAPITAL PARTNERS INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
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