STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into this 23rd
day of August, 1999 by and between Xxxxxx Consulting Group, Inc. ("Xxxxxx") a
Nevada corporation with principal offices located at 000 Xxxx 000 Xxxxx, Xxxxx
000, Xxxx Xxxx Xxxx, Xxxx 00000, and Kelly's Coffee Group, Inc., a Colorado
corporation ("Kelly's Coffee") with principal offices located at 000 Xxxx 000
Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000.
WHEREAS, Xxxxxx desires to sell to Kelly's Coffee One Hundred Eighty
Thousand and Three (180,003) restricted shares of the common stock of
HealthWatch, Inc. ("HealthWatch Shares");
WHEREAS, Xxxxxx also desires to acquire from Kelly's Coffee all the
necessary records of Kelly's Coffee Group, Inc. ("Kelly's Coffee ") which will
allow Xxxxxx to assist Kelly's Coffee in bringing current all of the reports
required under all applicable state and federal securities law ("Records");
WHEREAS, Xxxxxx owns or will own the HealthWatch Shares and requires in
its possession all the Records which would allow Xxxxxx to assist Kelly's Coffee
in bringing current all of the reports required under all applicable state and
federal securities laws; and
WHEREAS, Kelly's Coffee will pay Sixty Eight Thousand Dollars ($68,000)
to Xxxxxx in exchange for delivery of all certificates in negotiable form
representing the HealthWatch Shares; and Kelly's Coffee will deliver all the
necessary Records.
NOW, THEREFORE with the above being incorporated into and made a part
hereof for the mutual consideration set out herein and, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. EXCHANGE. Kelly's Coffee will wire transfer $68,000 to Xxxxxx or
assigns on August 27, 1999 and Xxxxxx will:
a. Overnight the HealthWatch Shares with all the necessary
executed medallion stock powers and corporate resolutions
transferring ownership to Kelly's Coffee for delivery no later
than August 31, 1999; and
x. Xxxxx'x Coffee will overnight the Records necessary for Xxxxxx
to assist Kelly's Coffee in bringing current all of Kelly's
Coffee 's state and federal securities filings.
2. EXCHANGE OF SHARES. On or before the closing date, set herein to be August
27, 1999 the above-mentioned HealthWatch Shares and the Records shall be
delivered to Kelly's Coffee.
3. TERMINATION. This Agreement may be terminated at any time prior to the
Closing Date:
A. BY XXXXXX OR XXXXX'X COFFEE:
(1) If there shall be any actual or threatened action or
proceeding by or before any court or any other governmental
body which shall seek to restrain, prohibit, or invalidate the
transactions contemplated by this Agreement and which, in
judgement of such Board of
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Directors made in good faith and based upon the advice of
legal counsel, makes it inadvisable to proceed with the
transactions contemplated by this Agreement; or
(2) If the Closing shall have not occurred prior to August 31,
1999, or such later date as shall have been approved by
parties hereto, other than for reasons set forth herein.
B. BY KELLY'S COFFEE:
(1) If Xxxxxx shall fail to comply in any material respect
with any of its or their covenants or agreements contained in
this Agreement or if any of the representations or warranties
of Xxxxxx contained herein shall be inaccurate in any material
respect; or
C. BY XXXXXX:
(1) If Kelly's Coffee shall fail to comply in any material
respect with any of its covenants or agreements contained in
this Agreement or if any of the representations or warranties
of Kelly's Coffee contained herein shall be inaccurate in any
material respect;
In the event this Agreement is terminated pursuant to this Paragraph,
this Agreement shall be of no further force or effect, no obligation, right, or
liability shall arise hereunder, and each party shall bear its own costs as well
as the legal, accounting, printing, and other costs incurred in connection with
negotiation, preparation and execution of the Agreement and the transactions
herein contemplated.
4. REPRESENTATIONS AND WARRANTIES OF XXXXXX. Xxxxxx hereby represents and
warrants that effective this date and the Closing Date, the following
representations are true and correct:
A. AUTHORITY. Xxxxxx has the full power and authority to enter
this Agreement and to carry out the transactions contemplated
by this Agreement.
B. NO CONFLICT WITH OTHER INSTRUMENTS. The execution of this
Agreement will not violate or breach any document, instrument,
agreement, contract, or commitment material to the business of
Xxxxxx to which Xxxxxx is a party and has been duly authorized
by all appropriate and necessary action.
C. DELIVERANCE OF SHARES. As of the Closing Date, the HealthWatch
Shares to be delivered to Kelly's Coffee will be restricted
and constitute valid and legally issued shares of HealthWatch,
Inc., fully paid and non-assessable and equivalent in all
respects to all other issued and outstanding shares of
HealthWatch, Inc. restricted stock.
D. NO CONFLICT WITH OTHER INSTRUMENT. The execution of this
agreement will not violate or breach any document, instrument,
agreement, contract or commitment material to Xxxxxx.
E. NO REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF
HEALTHWATCH. Xxxxxx makes no representations as to the
financial condition of HealthWatch, Inc.
5. REPRESENTATIONS AND WARRANTIES OF KELLY'S COFFEE.
Kelly's Coffee hereby represents and warrants that, effective this date
and the Closing Date, the representations and warranties listed below are true
and correct.
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A. CORPORATE AUTHORITY. Kelly's Coffee has the full corporate
power and authority to enter this Agreement and to carry out
the transactions contemplated by this Agreement. The Board of
Directors of Kelly's Coffee has duly authorized the execution,
delivery, and performance of this Agreement.
B. NO CONFLICT WITH OTHER INSTRUMENTS. The execution of this
Agreement will not violate or breach any document, instrument,
agreement, contract, or commitment material to the business of
Kelly's Coffee to which Kelly's Coffee is a party and has been
duly authorized by all appropriate and necessary action.
C. NO CONFLICT WITH OTHER INSTRUMENT. The execution of this
agreement will not violate or breach any document, instrument,
agreement, contract or commitment material to Kelly's Coffee.
D. NO ACTION AGAINST XXXXXX. Xxxxx'x Coffee will not take any
legal action against Xxxxxx for any actions Xxxxxx took as a
result of its role as a controlling shareholder, director or
officer of HealthWatch, Inc.
6. CLOSING. The Closing as herein referred to shall occur upon such
date as the parties hereto may mutually agree upon, but is expected to be on or
before August 31, 1999.
At closing Kelly's Coffee will deliver $68,000 and its Records to
Xxxxxx, and Xxxxxx will deliver the HealthWatch Shares and records to Kelly's
Coffee.
7. CONDITIONS PRECEDENT OF KELLY'S COFFEE TO EFFECT CLOSING. All obligations of
Kelly's Coffee under this Agreement are subject to fulfillment prior to or as of
the Closing Date, as follows:
A. The representations and warranties by or on behalf of Kelly's
Coffee contained in this Agreement or in any certificate or
documents delivered to Kelly's Coffee pursuant to the
provisions hereof shall be true in all material respects as of
the time of Closing as though such representations and
warranties were made at and as of such time.
X. Xxxxx'x Coffee shall have performed and complied with all
covenants, agreements and conditions required by this
Agreement to be performed or complied with by it prior to or
at the Closing.
C. All instruments and documents delivered to Kelly's Coffee
pursuant to the provisions hereof shall be reasonably
satisfactory to Kelly's Coffee's legal counsel.
8. CONDITIONS PRECEDENT OF XXXXXX TO EFFECT CLOSING. All obligations of Xxxxxx
under this Agreement are subject to fulfillment prior to or as of the date of
Closing, as follows:
A. The representations and warranties by or on behalf of Xxxxxx
contained in this Agreement or in any certificate or documents
delivered to Xxxxxx pursuant to the provisions hereof shall be
true in all material respects as of the time of Closing as
though such representations and warranties were made at and as
of such time.
X. Xxxxxx shall have performed and complied with all covenants,
agreements and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
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C. All instruments and documents delivered to Xxxxxx pursuant to
the provisions hereof shall be reasonably satisfactory to
Xxxxxx'x legal counsel.
9. DAMAGES AND LIMIT OF LIABILITY. Each party shall be liable, for any material
breach of the representations, warranties, and covenants contained herein which
results in a failure to perform any obligation under this Agreement, only to the
extent of the expenses incurred in connection with such breach or failure to
perform Agreement.
10. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing hereunder. All of the parties hereto are executing and carrying out the
provisions of this Agreement in reliance solely on the representations,
warranties and covenants and agreements contained in this Agreement or at the
Closing of the transactions herein provided for and not upon any investigation
upon which it might have made or any representations, warranty, agreement,
promise, or information, written or oral, made by the other party or any other
person other than as specifically set forth herein.
11. INDEMNIFICATION PROCEDURES. If any claim is made by a party which would give
rise to a right of indemnification under this paragraph, the party seeking
indemnification (Indemnified Party) will promptly cause notice thereof to be
delivered to the party from whom indemnification is sought (Indemnifying Party).
The Indemnified Party will permit the Indemnifying Party to assume the defense
of any such claim or any litigation resulting from the claims. Counsel for the
Indemnifying Party which will conduct the defense must be approved by the
Indemnified Party (whose approval will not be unreasonably withheld), and the
Indemnified Party may participate in such defense at the expense of the
Indemnified Party. The Indemnifying Party will not in the defense of any such
claim or litigation, consent to entry of any judgement or enter into any
settlement without the written consent of the Indemnified Party (which consent
will not be unreasonably withheld). The Indemnified Party will not, in
connection with any such claim or litigation, consent to entry of any judgement
or enter into any settlement without the written consent of the Indemnifying
Party (which consent will not be unreasonably withheld). The Indemnified Party
will cooperate fully with the Indemnifying Party and make available to the
Indemnifying Party all pertinent information under its control relating to any
such claim or litigation. If the Indemnifying Party refuses or fails to conduct
the defense as required in this Section, then the Indemnified Party may conduct
such defense at the expense of the Indemnifying Party and the approval of the
Indemnifying Party will not be required for any settlement or consent or entry
of judgement.
12. DEFAULT AT CLOSING. Notwithstanding the provisions hereof, if Xxxxxx shall
fail or refuse to deliver any of the HealthWatch Shares, or shall fail or refuse
to consummate the transaction described in this Agreement prior to the Closing
Date, such failure or refusal shall constitute a default by Xxxxxx and Xxxxx'x
Coffee at its option and without prejudice to its rights against such defaulting
party, may either (a) invoke any equitable remedies to enforce performance
hereunder including, without limitation, an action or suit for specific
performance, or (b) terminate all of its obligations hereunder with respect to
Xxxxxx.
13. COSTS AND EXPENSES. Kelly's Coffee and Xxxxxx shall bear their own costs and
expenses in the proposed exchange and transfer described in this Agreement.
Kelly's Coffee and Xxxxxx have been represented by their own attorneys in this
transaction, and shall pay the fees of their attorneys, except as may be
expressly set forth herein to the contrary.
14. NOTICES. Any notice under this Agreement shall be deemed to have been
sufficiently given if sent by registered or certified mail, postage prepaid,
addressed as follows:
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To Xxxxxx:
Xxxxxx Consulting Group, Inc.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
To Kelly's Coffee:
Kelly's Coffee Group, Inc.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
15. MISCELLANEOUS.
A. FURTHER ASSURANCES. At any time and from time to time, after the
effective date, each party will execute such additional instruments and take
such additional steps as may be reasonably requested by the other party to
confirm or perfect title to any property transferred hereunder or otherwise to
carry out the intent and purposes of this Agreement.
B. WAIVER. Any failure on the part of any party hereto to comply
with any of its obligations, agreements, or conditions hereunder may be waived
in writing by the party to whom such compliance is owed.
C. BROKERS. Neither party has employed any brokers or finders with
regard to this Agreement not disclosed herein.
D. HEADINGS. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
E. COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
F. GOVERNING LAW. This Agreement was negotiated and is being contracted
for in the State of Utah, and shall be governed by the laws of the State of
Utah, notwithstanding any conflict-of-law provision to the contrary. Any suit,
action or legal proceeding arising from or related to this Agreement shall be
submitted for binding arbitration resolution to the American Arbitration
Association, in Salt Lake City, Utah, pursuant to their Rules of Procedure or
any other mutually agreed upon arbitrator. The parties agree to abide by
decisions rendered as final and binding, and each party irrevocably and
unconditionally consents to the jurisdiction of such Courts in such suit, action
or legal proceeding and waives any objection to the laying of venue in, or the
jurisdiction of, said Courts.
G. BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors, and assigns.
H. ENTIRE AGREEMENT. The Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior agreements,
arrangements or understandings between the parties relating to the subject
matter hereof. No oral understandings, statements, promises or inducements
contrary to the terms of this Agreement exist. No representations, warranties
covenants, or conditions express or implied, other than as set forth herein,
have been made by any party.
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I. SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
Xxxxxx Consulting Group, Inc.
a Nevada corporation
By:___/s/_______________________
Xxxxxxx Xx Xxxxxx,
Its: Vice President
Kelly's Coffee Group, Inc.,
a Colorado corporation
By:__/s/_____________________
Xxxxxxx Xxxxxx
Its: President
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