EXHIBIT 10.13
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the 30th of January, 1998 by and between Carnegie International
Corporation, a Colorado corporation ("Seller"), Electronic Card Acceptance
Corporation, a Virginia corporation (the "Company") and Value Partners, Ltd., a
Texas Limited Partnership ("Buyer"). Seller, the Company and Buyer are sometimes
referred to collectively as the "Parties".
RECITALS:
1. Seller owns 1,000 shares (the "Shares") of the common stock, no par
value per share of the Company, which constituteS all of the issued and
outstanding shares of capital stock of the Company.
2. The Company is engaged in the business of credit card processing
(the "Business").
3. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller, on the terms and conditions hereinafter set forth, all of the Shares.
4. The foregoing recitals are true and correct, which recitals,
together with the exhibits and schedules referred to hereafter, are hereby
incorporated into this Agreement without further reference thereto.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and covenants of the Parties hereinafter expressed
and other good and valuable consideration, the receipt, adequacy and sufficiency
of which is hereby acknowledged, and intending to be legally bound, the Parties
hereto covenant and agree as follows:
1. Agreement to Sell and Purchase
1.1 Purchase and Sale of Shares. On the terms and subject to the
conditions set forth in this Agreement, on the Closing Date (as that term is
hereinafter defined) Seller shall convey, transfer, assign, sell and deliver to
Buyer the Shares and Buyer shall acquire, accept and purchase, free and clear of
all Liens (as hereinafter defined) and subject to no conditions, restrictions or
contingencies, all of the Shares and all rights, title and interest therein.
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2. Consideration to be Paid by Buyer.
2.1 Purchase Price for the Shares. In exchange for the Shares,
Buyer shall pay to Seller, on the terms and subject to the conditions set forth
in this Agreement, on the Closing Date (as hereinafter defined) the aggregate
purchase price of one hundred thousand U.S. Dollars ($100,000.00). Such purchase
price shall be paid by the Buyer to the Seller, at the Closing, by wire transfer
as directed by Seller.
3. Closing.
3.1 Time and Place. The closing of the transaction herein
contemplated (the "Closing") shall take place at the offices of Bergman, Yonks,
Xxxxx & Bird, L.L.P., 0000 Xxxxxx Xxxxxx, Xxxxxx Xxxx Xxxxx 000, Xxxxxx, Xxxxx
00000 on January 29, 1998.
3.2 Actions to be taken at Closing by Sellers. At the Closing,
Sellers shall deliver to Buyer the following documents which shall constitute a
condition precedent to Buyer's obligations to close hereunder:
(a) Copies, certified by the Secretary of the Company and
Seller, of (i) the Articles of Incorporation of the Company and all amendments
thereto, (ii) the Bylaws of the Company and all amendments thereto, (iii)
resolutions of the Board of Directors of the Company and the Seller authorizing
the execution, delivery and performance of this Agreement, and (iv) the
incumbency of the officers of the Company and the Seller executing this
Agreement;
(b) The certificate referred to in Sections 9.2.1 and 9.2.2
hereof duly executed by the applicable officers of the Sellers;
(c) Stock certificates evidencing all of the Shares, duly
endorsed in blank or accompanied by stock powers duly executed in blank and in
proper form for transfer;
(d) Certificates issued by the appropriate governmental
authorities evidencing the existence and good standing of, and the payment of
all franchise and other similar taxes by, the Company in the State of Virginia;
(e) Executed opinion of counsel for Sellers, dated as of the
Closing Date, in the form of Exhibit B hereto;
(f) The resignation letters described in Section 7.9 hereto;
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(g) All other certificates, opinions, instruments, and other
documents required by this Agreement to effect the transactions contemplated
hereby, in such form and substance as is reasonably satisfactory to the Buyer.
3.3 Actions to be taken at Closing by Buyer. At the Closing, Buyer
shall deliver the following, which shall constitute a condition precedent to
Seller's obligations to close hereunder:
Payment of the Purchase Price by wire transfer of immediately
available good federal Ruids in the amount of one hundred thousand U.S. Dollars
($100,000.00) as set forth in paragraph 2.1 herein.
4. Representations and Warranties of Seller and the Company. Seller and
Company jointly and severally represent and warrant to Buyer as follows:
4.1 Organization and Good Standing. The Company is duly organized,
validly existing and in good standing under the laws of the State of Virginia,
with full corporate power and authority to conduct the Business as it is now and
has since its organization been conducted and to own, lease or operate its
assets. The Company is qualified to do business and is in good standing in the
State of Virginia, which is the only jurisdictions in which the nature of the
Business conducted by the Company or the character of the Company's properties
makes such qualification necessary. The Company does not own, directly or
indirectly, any debt or equity securities issued by any corporation or any
interest in any partnership, joint venture or other business enterprise. The
Company is a "C Corporation" as that term is defined in the Internal Revenue
Code of 1986, as amended (the "Code").
4.2 Capital Stock. The entire authorized capital stock of the
Company consists of 1,000 shares of common stock, no par value per share, which
shares are validly issued and outstanding, fully paid and nonassessable, have
not been issued in violation of the preemptive rights of any person, and all of
which are owned by Seller.
There are no (i) outstanding equity securities of the Company
of any kind or character, other than the Shares, (ii) outstanding subscriptions,
options, warrants, calls, preemptive rights, or other agreements or commitments
(whether written or oral) obligating the Company to issue any additional shares
of capital stock of any class, (iii) options or rights with respect to any of
the foregoing, or (iv) outstanding securities convertible or exchangeable into
any shares of stock of any class of any of the foregoing. There arc no articles
or certificates of incorporation, bylaws, written or oral agreements or
instruments (including options, warrants, or convertible securities) that relate
to the voting of, restrict the transfer of, or require the Company to issue or
sell, or that create rights in any person with respect to, any of the Shares or
any shares
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of capital stock or other securities of the Company. The Company has not paid
dividend or distributed any assets to, or repurchased any of its capital stock
from, any shareholder.
4.3 Authorization of Agreement. The Company has full power and
authority to enter into this Agreement and all other agreements and documents to
be executed by the Company in connection herewith and to consummate the
transactions contemplated hereby. This Agreement and all other agreements and
instruments to be executed by the Company in connection herewith have been (or
upon execution will have been) duly executed and delivered by the Company, and
have been (or upon execution will have been) duly authorized by all necessary
action and constitute (or upon execution will constitute) legal, valid and
binding obligations of the Company enforceable against the Company in accordance
with their respective terms, except (i) as limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and (ii) that the availability of specific
performance, injunctive relief or other equitable remedies is subject to the
discretion of the court before which any such proceeding therefor may be
brought.
4.4 Agreement Not in Breach of Other Instruments or Contracts. The
execution and delivery of this Agreement by the Company and the consummation of
the transactions contemplated hereby will not result in a breach of any of the
terms and provisions of, or constitute a default under, or conflict with, (i)
any Contract (as hereinafter defined) or any other material agreement, indenture
or other instrument to which the Company is a party, or by which he, she or it
is bound; (ii) the Company's Articles of Incorporation or Bylaws; (iii) any
judgment, decree, order or award of any court, governmental body or arbitrator;
or (iv) any law, rule or regulation applicable to the Company.
4.5 Litigation. Except as disclosed on Schedule 4.9, there are no
claims, disputes, actions, arbitrations, mediations, proceedings (at low or in
equity) or investigations of any nature pending or, to the Company's knowledge,
threatened against or involving the Company, the Business or any of the
officers, directors, or employees of the Company in connection with the
Business.
4.6 Contracts. (a) Schedule 4.6(a) hereto sets forth a true and
correct list of each contract or agreement pertaining to the Business, whether
oral or written, between the Company and any of its customers (collectively, the
"Customer Contracts").
(b) Schedule 4.6(b) hereto sets forth a true and correct list
of each contract or, agreement pertaining to the Business other than the
Customer Contracts (including without limitation the Lease and any leases of
personal property), whether oral or written, to which the Company is a party
(collectively, the "Other Contracts"), (the Other Contracts and the Customer
Contracts are referred to collectively as the "Contracts"). The Company has
heretofore delivered or made available to Buyer true, correct and complete
copies of the Other Contracts.
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(c) Except as set forth in Schedule 4.6(c) hereto:
(i) Each Contract is a valid and binding agreement of
the Company, and the Company and Seller have no knowledge that any Contract is
not a valid and binding agreement of the other parties thereto, and each
Contract is in full force and effect;
(ii) The Company has fulfilled all obligations required
pursuant to each Contract to have been performed by the Company on its part
prior to the date hereof, and the Company and Seller have no reason to believe
that the Company will not be able to fulfill, when due, all of the Company's
obligations under the Customer Contracts that remain to be performed after the
date hereof;
(iii) There has not occurred any default under any
Contract on the part of the Company; the Company and Seller have no knowledge
that any repudiation of, or default under, any Contract on the part of the other
parties thereto has occurred; and the Company has no knowledge that any event
has occurred which with the giving of notice or the lapse of time, or both,
would constitute a default under any Contract; and
(iv) The Company and Seller have no knowledge of any
fact or circumstance that reasonably can be expected in the future to the
Company or any other party thereto to be in default under any Contract.
4.7 Title. Fixed Assets. The Company has good and marketable tide
to all assets, free and clear of all liens, claims and encumbrances of any kind
or nature. All assets of any kind or nature are set forth in the various
schedules attached hereto. Schedule 4.7 attached hereto sets forth a true and
correct list of all of the leasehold improvements, vehicles, facsimile machines,
computer, and equipment of the Company pursuant hereto, as well as the location
thereof, Such assets have been, and will continue to be, maintained in
accordance with normal industry practice and are and will be in good operating
condition (except for ordinary wear and tear) and are capable of being used in
the Business as presently being conducted without present need for repair or
replacement except in the ordinary course of business.
4.8 Financial Statements. Schedule 4.8 sets forth the Company's
financial statements as of and for the twelve-month period ended September 30,
1997. Such financial statements were prepared from the books and records of the
Company in accordance with generally accepted accounting principles and fairly
present the operating results of the Company for that period.
4.9 Conduct of Business. Except as set forth in Schedule 4.9
hereto, the Company has not: (i) entered into any material contracts and/or
transactions; (ii) sold or transferred any of its assets except in the ordinary
course of the Business, (iii) mortgaged,
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pledged, or encumbered any of the assets of the Company, except Liens for taxes
not due; (iv) materially amended, modified, or terminated any material contract;
(v) materially altered the manner of keeping the Company's books, accounts,
xxxxxxxx or records or the accounting practices therein reflected; or (vi)
increased the compensation or rate of compensation or other benefits payable or
to become payable to any employees of the Company or otherwise entered into any
compensation agreements (whether written or oral) with respect to their
employees.
4.10 Regulatory Approvals. The Company and the Seller have
obtained all consents, approvals, authorizations and other requirements
prescribed by any law, rule or regulation that are necessary for the execution
and delivery by the Company and Seller of this Agreement and the consummation of
the transaction contemplated hereby.
4.11 Accounts Receivable. All of the accounts receivable recorded
on the financial statements described in Schedule 4.8 hereof are based on actual
and bona fide rendition of services or provision of products by the Company in
the course of its business and are payable by third party obligors or persons
that the Company has identified as being obligated to do so. Except as accrued
on the balance sheets of the Company described in Section 4.8 hereof, neither
the Company nor the Seller is aware of any event or condition that causes them
to believe that any such account receivable will not be collected in due course.
4.12 Inventories. The Company's inventories are usable in the
ordinary course of business of the Company at a value that is no less than the
value at which such inventories are carried by the Company, subject only to the
reserve for inventory write down as adjusted for operations and transactions
through the Closing Date in accordance with generally accepted accounting
principles and the past custom and practice of the Company. Such inventories are
adequate for the conduct of the Business and inventory levels are consistent
with the normal operating requirements of the Company. No item included in the
inventories, materials or supplies of the Company is pledged as collateral or
held on consignment from others. Obsolete or discontinued items do not
constitute a material part of such inventories, materials and supplies. All such
inventory items are standard quality goods saleable in the ordinary course of
business.
4.13 Compliance with Law. The Business as conducted by the Company
has not violated. and on the date hereof does not violate any federal, state,
local or foreign laws, regulations or orders (including, but not limited to, any
of the foregoing relating to employment discrimination, occupational safety,
environmental protection, conservation, or corrupt practices), except where the
failure to comply would not have a material adverse effect on the results of
operations, condition (financial or otherwise), assets, properties, Business or
prospects of the Company. The Company has not received any notice within three
(3) years of the date hereof of any such violation.
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4.14 Conflict of Interest. Except as disclosed on Schedule 4.14
hereto, no officer, director or shareholder of Seller or the Company or any
affiliate of any such person now has, or within the last three (3) years had,
either directly or indirectly (i) an equity or debt interest in any corporation,
partnership, joint venture, association, organization or other person or entity
that purchased any products from the Company, contracted for services in
connection with the Business as conducted by the Company, or otherwise did
business with the Company or (ii) a beneficial interest in any Contract,
commitment or agreement with regard to the Business to which the Company is or
was a party or under which the Company was obligated or bound or to which its
properties may be or may have been subject.
4.15 Permits and Licenses. The Company possess all the permits and
licenses listed on Schedule 4.15. Such permits and licenses constitute all the
permits and licenses necessary to conduct the Business as conducted by the
Company. All such permits and licenses are valid and subsisting and in full
force and effect. The consent or approval of any governmental authority or third
party for the consummation of the transactions contemplated hereby has been
obtained by the Company. There are no proceedings pending, or to the knowledge
of the Company, threatened that seek the revocation, cancellation, suspension or
any modification of any license or permit necessary to conduct the Business as
now being conducted. The Company is in material compliance with all the terms of
all permits and licenses necessary to conduct the Business as now being
conducted.
4.16 Taxes and Fees. Except as disclosed in Schedule 4.16 hereto,
the Company has timely filed and paid, or adequately provided for, except for
FICA 97, any and all Taxes, levied, assessed or imposed upon any of the property
of the Company or salaries and wages paid by the Company, and the Company has
(a) timely filed all Tax returns and reports required by federal, state and
local government authorities; (b) the returns so filed are correct, true and
complete and fairly reflect the Taxes of the Company for the period covered
thereby; (c) any and all such Taxes have been paid or are otherwise provided for
by the Company; and (d) the Company is not involved in any dispute regarding any
Taxes with any government authority nor has it received any deficiency, audit or
other indication of deficiency from any government authority, not otherwise
disclosed to Buyer; (e) no Internal Revenue Service audit of the Company is
pending or threatened and the results of any completed audits are properly
reflected in the Company's financial statements. For the purposes of this
Agreement, "Taxes" shall mean all taxes, charges, fees, levies, penalties,
imports, duties, or other assessments, including without limitation, income,
payroll, employment, withholding, social security, excise, property, sales, and
use and franchise taxes imposed by the United States, or any state, county,
local or foreign government or a subdivision or agency thereof, and including
any interest, penalties or additions attributable thereto.
4.17 Employment by Buyer. Seller acknowledges that it is not
imposing on Buyer or the Company any obligation to retain or to employ any
employees of the Company
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subsequent to Closing. To the extent any of such employees are employed by Buyer
or the Company following the Closing, such employment shall be on terms and
conditions determined by Buyer and Buyer shall have no obligation to offer such
employees the same or similar wages, salaries or benefits as are paid or
provided by the Company prior to the Closing. The Company's employee are subject
to no collective bargaining agreements or other contracts with a labor union or
otherwise, contingent or otherwise, nor are any employees represented by any
labor union.
4.18 Employee Benefit Plan; ERISA.
(a) Schedule 4.18 attached hereto lists all material employee
pension and welfare plans or arrangements, within the meaning of Sections 3(l)
and 3(2) of the Employment Retirement Income Security Act of 1974, as amended
("ERISA"), including, without limitation, pension or profit sharing or thrift
plans, company contributions to medical benefit, death benefit and disability
programs, and vacation and sick leave policies ("Employee Benefit Plans") that
the Company maintains or to which the Company contributes. Except as set forth
on such Schedule 4.18, the Company does not pay for accrued sick leave time in
cash and has no monetary liability for accrued sick leave time.
(b) Each of the Employee Benefit Plans, if any, of the
Company are, and have been, maintained and administered in compliance with
applicable requirements of the Internal Revenue Code of 1986, as amended (the
"Code") and ERISA, except where such noncompliance would, in the aggregate, not
have a material adverse effect on the Business or the financial condition of the
Company. Seller and the Company believe there are no such plans.
4.19 Insurance. Schedule 4.19 sets forth a true, correct and
complete list of all policies of insurance to which the Company is a party or is
a beneficiary or named insured. The Company has in full force and effect, with
all premiums due thereon paid, the policies of insurance set forth therein. All
the material insurable properties of the Company are insured in amounts and
coverages and against risks and losses which are adequate and usually insured
against by persons holding or operating similar properties in similar
businesses.
4.20 No Adverse Changes. Except as may have been caused by any
federal, state, or local government legislation, rule or regulation, there has
been no material adverse change in the Business or the financial condition of
the Company in the last three years.
4.21 Environmental, Matters, etc. The use and operation of the
Company's assets and the conduct of the business as presently conducted comply
with all federal. state and local laws and regulations relating to health,
safety and the environment (collectively, the "Environmental Laws").
Specifically, and without limiting the generality of the foregoing, (a) all
hazardous or toxic materials have been disposed of in accordance with
Environmental Laws, (b) no material citations, fines or penalties have been
assessed, threatened or asserted under
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Environmental Laws in connection with the conduct of the Business; and (c) the
Company has not received any formal written notice from a governmental entity of
any violation of Environmental Laws or any permit.
4.22 Licenses and Copyrights. The operation of the Business is not
infringing upon or otherwise acting adversely to any copyright, trademark,
trademark right, service xxxx, service name, trade name, patent, patent right,
license, trade secret or franchise owned by any person or persons, and there is
no such claim or action pending or, threatened with respect thereto. The Company
has all necessary copyrights, trademarks, trade names, service marks, service
names or patents necessary to conduct the Business, except for those the absence
of which would, in the aggregate, not have a material adverse effect on the
Business of the Company. A list of all copyrights, trademarks, trade names,
service marks, service names and patents related to the conduct of the Business
is set forth on Schedule 4.22 attached hereto.
4.23 Bank Accounts. Set forth as Schedule 4.23 hereto is a true,
correct and complete list setting forth the names and addresses of all banks,
other institutions and state governmental departments at which the Company has
accounts, deposits or safety deposit boxes, or special deposits, including those
required to be held by state governmental departments, with the nature of such
account and the names of all persons authorized to draw on or give instructions
with respect to such accounts or deposits, or to have access thereto, and the
names and addresses of all persons, if any, holding a power-of-attorney on
behalf of the Company. All cash in such accounts is held in demand deposits and
is not subject to any restriction or limitation as to withdrawal.
4.24 [deleted]
4.25 Disclosure. The information provided and to be provided to
Buyer by the Company and Seller in this Agreement or in the schedules attached
hereto or in any other writing pursuant hereto does not and will not contain any
untrue statement of a material fact or omit or will not omit to state a material
fact required to be stated herein or therein or necessary to make the statements
and facts contained herein or therein, in light of the circumstances in which
they are made, not false or misleading. Copies of all documents heretofore or
hereafter delivered or made available to Buyer by Sellers and/or the Company
were or will be complete and accurate records of such documents.
4.26 No Violation. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will result in the breach
or violation of any term or provision of, or constitute a default under, any
charter provision, bylaw, agreement, mortgage, note, obligation, contract, bond,
license, indenture, instrument, order, decree, law or regulation to which the
Company and/or the Seller is a party or which is otherwise applicable to any of
them.
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4.27 Corporate Records. True and correct copies of the article of
incorporation and bylaws of the Company We been delivered to Buyer. The
corporate minute books of the Company submitted to Buyer for review correctly
reflect all corporate action taken at all the meetings (or by written consent in
lieu thereof) of their respective directors and shareholders and correctly
record all resolutions thereof.
4.28 Commitments. The Company has in all material respects
performed all obligations to be performed by it under all contracts, agreements
and commitments to which it is a party, and there is not under any such
contracts, agreements or commitments any existing default or event of default or
event which with notice or lapse of time or both would constitute default.
4.29 Loans With Affiliates. The Company is not indebted to Seller
or any entity or person related to or controlled by Seller or any affiliate
thereof. As of the Closing all advances or loans made by the Company to any
shareholder, officer, director, employee, affiliate or agent of the Company or
the Seller will have been repaid in full, with accrued interest to the date of
repayment.
4.30 Investments in Competitors. The Seller does not own directly
or indirectly any interest or have any investment in any corporation, business
or other person which is a competitor or potential competitor of, or which
otherwise directly or indirectly does business with the Company.
5. Representations of Sellers. Seller represents and warrants that:
5.1 Title to the Shares. Seller has good and indefeasible tide to
the Shares free and clear of any Liens. For purposes hereof, the term "Liens"
shall include lions, security interests, pledges, claims, rights of first
refusal, options, charges, liabilities, obligations, agreements, restrictions,
and other encumbrances of any kind, The delivery to Buyer of the instruments of
transfer or ownership contemplated by this Agreement of the shares will vest
good and marketable title to all of the Shares in Buyer, free and clear of all
Liens.
5.2 Organization and Good Standing. The Seller is a corporation
duly organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation, and is not required to be qualified as
a foreign corporation in any jurisdiction. Seller has M corporate power to own
its properties and to conduct business currently being conducted by it. This
Agreement has been duly executed and delivered by Seller and is a valid and
binding agreement of Seller.
5.3 Ownership of Shares. The shares are owned of record and
beneficially by Seller. Seller possesses full authority and legal right to sell,
transfer and assign the entire legal
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and beneficial ownership of the Shares, free from all Liens, including claims
and encumbrances of any kind; and there are no outstanding rights or obligations
granted by Seller to purchase or acquire any of the Shares. Upon transfer of the
Shares to Buyer hereunder at the Closing, Buyer will receive entire legal and
beneficial interest in the Shares, free and clear of all Liens, including liens,
claims, options and encumbrances and subject to no legal or equitable
restrictions of any kind.
5.4 Authorization of Agreement. Seller has full power and
authority to enter into this Agreement and all other agreements and documents to
be executed by Seller in connection herewith and to consummate the transactions
contemplated hereby. This Agreement and all other agreements and instruments to
be executed by each Seller in connection herewith have been (or upon execution
will have been) duly executed and delivered by Seller, and have been (or upon
execution will have been) duly authorized by all necessary action and constitute
(or upon execution will constitute) legal, valid and binding obligations of
Seller enforceable against Seller in accordance with their respective terms,
except (i) as limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(ii) that the availability of specific performance, injunctive relief or other
equitable remedies is subject to the discretion of the court before which any
such proceeding therefor may be brought.
5.5 Agreement Not in Breach of Other Instruments or Contracts. The
execution and delivery of this Agreement by Seller and the consummation of the
transactions contemplated hereby will not result in a breach of any of the terms
and provisions of, or constitute a default under, or conflict with, (i) any
contract or any other material agreement, indenture or other instrument to which
Seller or the Company is a party, or by which either is bound, (ii) the
Company's Articles of Incorporation or Bylaws; (iii) any judgment, decree, order
or award of any court, governmental body or arbitrator; or (iv) any law, rule or
regulation applicable to Seller.
6. Representation and Warranties of Buyer. Buyer represents and
warrants to Sellers that:
6.1 Organization and Corporate Authority. Buyer is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Texas and has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
This Agreement and all other agreements herein contemplated to be executed in
connection herewith have been (or upon execution will have been) duly executed
and delivered by Buyer, have been (or upon execution will have been) effectively
authorized by all necessary action, corporate or otherwise (including approval
by the general partner), and constitute (or upon execution will constitute)
legal, valid and binding obligations of Buyer enforceable against Buyer in
accordance with their respective terms, except (i) as limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting the
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enforcement of creditors' rights generally and (ii) that the availability of
specific performance, injunctive relief or other equitable remedies is subject
to the discretion of the court before which any such proceeding therefor may be
brought.
6.2 Agreement Not in Breach of Other Instruments. Neither the
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby nor the fulfillment of the terms hereof will result in a
breach of any of the terms or provisions of, or constitute a default under, or
conflict with, (i) any material agreement, indenture or other instrument to
which Buyer is a party or by which it is bound; (ii) Buyer's Articles of
Incorporation or Bylaws; (iii) any judgment, decree, order or award of any
court, governmental body or arbitrator applicable to Buyer; or (iv) any law,
rule or regulation applicable to Buyer, which breach or default would prevent
Buyer from performing its obligations under this Agreement.
6.3 Regulatory Approvals. Buyer has obtained all consents,
approvals, authorizations and other requirements prescribed by any law, rule or
regulation that are necessary for the execution and delivery by Buyer of this
Agreement and the consummation of the transactions contemplated hereby.
6.4 Litigation. No legal action, suit, arbitration, mediation or
proceeding (at law or in equity) or judicial, administration or governmental
investigation is pending or, to the knowledge of Buyer, threatened against Buyer
or its general partner that would prevent the timely acquisition by Buyer of the
Shares or impair Buyer's ability (financial or otherwise) to consummate the
transactions contemplated by this Agreement.
6.5 Disclosure. No information provided, or to be provided, by
Buyer to Seller with respect to the transactions contemplated hereby and no
representation or warranty made by Buyer contained in this Agreement or in any
other writing furnished pursuant hereto contains or will contain an untrue
statement of a material fact or omits or will omit to state a material fact
required to be stated herein or therein or necessary to make the statements and
facts contained herein or therein, in light of the circumstances under which
they were or are made, not false or misleading.
6.6 Buyer's Status. (a) Buyer is acquiring the Shares for its own
account WITH no present intention of reselling or otherwise distributing the
same or participating in a distribution of same except pursuant to an offering
of shares duly registered under the Securities Act of 1933, as amended (the
"Securities Act") and applicable state securities laws, or under other
circumstances that, in the opinion of counsel for the Company at the time, would
not require registration of the Shares under the Securities Act. Buyer is an
accredited investor as defined under the Securities Act. Buyer acknowledges that
it has been advised and is aware that (i) Seller is relying upon an exemption
under the Securities Act predicated upon Buyer's
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representations and warranties contained in this Section 6.6 in connection with
the offer and sale of the Shares pursuant to this Agreement and (ii) the Shares
in the hands of Buyer will be restricted stock within the meaning of Rule 144
promulgated pursuant to the Securities Act and unless, and until, registered
under the Securities Act, may be subject to limitations upon its resale
(including, among others, pertinent requirements of Rule 144 and limitations on
the amount of stock that can be resold and the time of resale) set forth in Rule
144 or in administrative interpretations by the Commission of the Securities
Act, or in other rules and regulations promulgated thereunder by the Commission,
in effect at the time of the proposed sale or other disposition of the Shares.
(b) Without limiting its right and ability to rely on the
representations and warranties of the Company and the Seller contained in the
Agreement and the agreements, documents and certificates delivered pursuant to
this Agreement, Buyer (i) represents that it is knowledgeable and experienced in
financial and business affairs generally and the industry in which the Business
is operated and is capable of evaluating the merits and risks of the
transactions contemplated by the Agreement and (ii) acknowledges that it has had
access to and has engaged in an examination of the Company's assets, books,
records, contracts and documents and other aspects of the transactions
contemplated by this Agreement. Buyer further acknowledges that it has had an
opportunity to direct inquiries to representatives of the Company with respect
to any matter it has deemed relevant to the transactions contemplated by this
Agreement.
7. Certain Understandings and Agreements of the Parties.
7.1 Conduct of Business/Material Change. Seller and the Company
agree that the Business of the Company shall be conducted from the date hereof
through the Closing Date in accordance with prior practice and in die ordinary
course of the Business, and without limiting the generality of the foregoing,
the Company shall not (except with the prior written consent of Buyer): (i)
enter into any material contracts and/or transactions; (ii) sell or transfer any
of its assets except in the ordinary course of the Business, (iii) mortgage,
pledge, or encumber any of the assets of the Company, except Liens for taxes not
due; (iv) materially amend, modify, or terminate any Contract; (v) materially
alter the manner of keeping the Company's books, accounts, xxxxxxxx or records
or the accounting practices therein reflected; or (vi) increase the compensation
or rate of compensation or other benefits payable or to become payable to any
employees of the Company or otherwise entering into any compensation agreements
(whether written or oral) with respect to their employees. The Company shall
maintain insurance in amounts mid kinds substantially identical to that
currently in effect upon all of its assets and properties, and with respect to
the conduct of its Business. Prior to the Closing, the Company and the Seller
shalt promptly inform Buyer in writing of any material adverse change in the
Business, its operations or to its assets. Notwithstanding such disclosure to
Buyer, Seller shall not be relieved of any liability for, nor shall the
providing of information by Seller or the
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Company to Buyer be deemed a waiver of, the breach of any representation or
warranty contained in this Agreement.
7.2 Preservation of Organization. Seller and the Company shall use
their respective best efforts to preserve for Buyer the Business of the Company
as well as the Company's favorable business relationships with its suppliers,
customers, and others with whom business relationships exist. Such efforts shall
include, but not be limited to, providing adequate funding to service all
accounts in a timely and professional manner, consistent with the prior business
practices of Seller and the Company.
7.3 Cooperation in Litigation. Each of the Parties hereto will
fully cooperate with the other in the defense or prosecution of any litigation
or proceeding already instituted or which may be instituted hereafter against or
by such party relating to, or arising out of the conduct of, the Business of the
Company prior to or after the Closing Date (other than litigation arising out of
the transactions contemplated by this Agreement). The party requesting such
cooperation shall pay the out-of-pocket expenses (including legal fees and
disbursements) of the party providing such cooperation and of its officers,
directors, employees and agents reasonably incurred in connection with providing
such cooperation.
7.4 Changes in Assets. Neither Seller nor the Company will alter
the physical Contents or character of the Company's assets so as to affect the
nature of the Business or materially change the dollar valuation thereof.
7.5 No Discussion or Negotiation with Others. Between the date
hereof and the Closing Date, Seller and the Company will use their respective
best efforts to prevent the disclosure of any of the terms or conditions hereof
to any other person, and as along as this Agreement shall remain in effect
neither Seller nor the Company nor any officer, director, shareholder, employee
or agent of the Company will be authorized by Seller or the Company to negotiate
with any person with respect to the sale of the Business, the capital stock of
the Company, the assets of the Company or any portion thereof.
7.6 Consummation of Transaction. Seller of the Company and Buyer
cooperate with each other and their respective counsel and accountants in
connection with any steps required to be taken as part of their respective
obligations under this Agreement and will each use their respective reasonable
efforts to perform or fulfill all conditions and obligations to be performed or
fulfilled by them under this Agreement in order for the transactions
contemplated hereby shall be consummated.
7.7 Resignations. Seller shall _________ of the officers and
directors of the Company to resign from all such positions as of the Closing
Date except as consented to in writing by Buyer.
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8. Indemnification.
8.1 Indemnification of Sellers. Seller shall indemnify and hold
harmless Buyer, its partners, agents and employees in respect of any and all
claims, losses, damages, liabilities and expenses (including, without
limitation, settlement costs and all reasonable legal, accounting and other
expenses for investigating or defending any ____________ or threatened actions)
reasonably incurred by Buyer in connection with each and all of the
____________.
(a) any breach of any representation or warranty made by
Seller or the Company in this Agreement;
(b) any breach of any covenant, agreement or obligation of
Seller or the Company contained in this Agreement or any other instrument
contemplated by this Agreement;
(c) any misrepresentation contained in any statement or
certificate furnished by Seller for the Company pursuant to this Agreement or in
connection with the transactions contemplated by this Agreement;
(d) any claims, including without limitation, claims for
Taxes arising from the operation of the Business prior to the Closing Date.
8.2 Indemnification by Buyer. Buyer shall indemnify and hold
harmless Seller, its officers, directors, agents, employees and shareholders in
respect of any and all claims, losses, damages, liabilities and expenses
(including, without limitation, settlement costs and any reasonable legal,
accounting or other expenses for investigating or defending any actions or
threatened actions) reasonably incurred by Seller, in connection with each and
all of the following:
(a) any breach of any representation or warranty made by
Buyer in this Agreement;
(b) any breach of any covenant, agreement or obligation of
Buyer contained in this Agreement or any other instrument contemplated by this
Agreement;
(c) any misrepresentation contained in any statement or
_____________ furnished by Buyer pursuant to this Agreement or in connection
with the transaction contemplated by this Agreement; and
(d) any claims, including without limitation, claims for
Taxes arising from the operation of the Business subject to the Closing Date.
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8.3 Claims for Indemnification. Whenever any claim shall
______________ indemnification hereunder, the party entitled to indemnification
(the "indemnified party")____________ promptly notify the other party or parties
(the "indemnifying party") of the claim and __________________ known, the facts
constituting the basis for such claim. In the event of any claims
_________________ indemnification hereunder resulting from or in connection with
any claim or legal _________ a third party, notice shall be delivered by
indemnified party within ten (10) business days _______ receipt of any such
claim (provided that failure to provide timely notice shall not _____
indemnified party's rights hereunder so long as such failure does not materially
____________ indemnifying party's ability to defend such claim) and the notice
to the indemnifying party _______ specify, if known, the amount or an estimate
of the amount of the liability arising therefrom ____ the indemnified party
shall not settle or compromise any claim by a third party for which it is
_______ to indemnification hereunder, without the prior written consent of the
indemnifying party ____ shall not be unreasonably withheld unless suit shall
have been instituted against ________ indemnifying party shall not have taken
control of such suit after notification thereof as provided in Section 8.4 of
this Agreement. Neither the indemnified party nor the indemnifying party shall
settle or compromise any claim by a third party for which indemnification is
available __________ if the terms of such settlement or compromise admits the
liability with respect to such claims ______ other party hereto unless the other
party, in its sole discretion, consents to such settlement compromise.
8.4 Defense by Indemnifying Party. In connection with any claim to
indemnify hereunder resulting from or arising out of any claim or legal
proceeding ____________ who is not a party to this Agreement, the indemnifying
party at its sole cost and expense upon written notice to the indemnified party,
assume the defense of any such claims _________ proceeding if it acknowledges to
the indemnified party in writing its obligations to indemnify the indemnified
party with respect to all elements of such claim. The indemnified party shall be
entitled to participate in (but not control) the defense of any such action,
with its __________ at its own expense. If the indemnifying party does not
assume the defense of any such _______ litigation resulting therefrom, (a) the
indemnified, party may defend against such _________ litigation, in such manner
as it may deem appropriate, and (b) the indemnifying party shall be entitled to
participate in (but not control) the defense of such action, with its counsel
and at its own expense. If the indemnifying party thereafter seeks to question
the manner in which the indemnified party defended such third party claim of the
amount or nature of any such settlement, the indemnifying party shall have the
burden to prove by a preponderance of the evidence that the indemnified party
did not defend or settle such third party claim In a reasonably prudent manner.
8.5 Manner of Indemnification. All indemnification by Buyer or
Seller hereunder shall be effected by payment of cash or delivery of a certified
or official bank check in the amount of the indemnification liability.
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8.6 Survival of Representation. The obligation to indemnify the
other party pursuant to Sections 8.1(a) and (c) or Sections 8.2(a) or (c) shall
be limited in that all representations and warranties made by the parties herein
or in any certificate, instrument or document famished in connection herewith
shall survive the Closing and any investigation at any time made by or on behalf
of the parties hereto only until the second anniversary of the Closing Date,
with the exception of fraudulent misrepresentations and warranties,
9. Conditions to Closing.
9.1 Conditions to Obligations of Each Party. No claim, action,
suit. investigation, or other proceeding shall be pending or threatened before
any court or governmental agency which presents a substantial risk of the
restraint or prohibition of the transactions contemplated by this Agreement or
the obtaining of material damages or other relief in connection therewith.
9.1.1 Compliance with Law. There shall have been obtained all
permits, approvals, and consents of all governmental bodies or agencies
necessary or appropriate so that consummation of the transactions contemplated
by this Agreement will be in compliance with applicable laws and so that Buyer
and the Company will be eligible to operate the Business.
9.2 Conditions to Obligations of Buyer. The obligations of Buyer
to consummate the transactions contemplated hereby shall be, at the option of
Buyer, subject to the fulfillment, at or prior to the Closing Date, of the
following additional conditions:
9.2.1 Representations and Warranties. The representations and
warranties of the Company and Seller contained in this Agreement or in any other
document of such parties delivered pursuant hereto shall be true and correct on
the Closing Date, and at the Closing, Seller shall have delivered to Buyer a
certificate to such effect (signed by the President and Chief Financial Officer
of the Company and the Seller.
9.2.2 Performance of Covenants. Each of the obligations of
the Company and Seller to be performed by it on or before the Closing Date
pursuant to the terms of this Agreement shall have been duly performed on or
before the Closing Date, and at the Closing Sellers shall have delivered to
Buyer a certificate to such effect (signed by the President and Chief Financial
Officer of the Company and the Seller.
9.2.3 Authority. All actions required to be taken by, or on
the part of, the Company and Seller to authorize the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby shall have been duly and validly taken by, the Board of
Directors of the Company and each Seller.
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9.2.4 No Adverse Changes. Between the date of this Agreement
and the Closing Date there shall not have occurred any material damage,
destruction or loss of any of the Company's assets whether or not covered by
insurance, which has had or may reasonably be expected to have a material and
adverse effect on the Business or any prospects of the Company, nor shall there
have occurred, any other event or condition which has had or which reasonably
may be expected to have a material and adverse effect on the results of
operations, condition (financial or otherwise), assets, properties, Business or
prospects of the Company.
9.2.5 Consents. All consents or approvals required to be
obtained by the Seller or the Company for the consummation of the transactions
contemplated hereby shall have been obtained.
9.2.6 Closing Documents. All documents required to have been
delivered by Seller and the Company to, Buyer pursuant to the terms hereof shall
have been delivered.
Buyer may waive any of the conditions specified in this
Section 9.2 if it executes a writing, so stating, at or prior to the Closing.
9.3 Conditions to Obligations of Seller. The obligation of Seller
to consummate the transactions contemplated hereby shall be, at the option of
Seller, subject to the fulfillment, at or prior to the Closing Date, of the
following additional conditions:
9.3.1 Representations and Warranties. The representations and
warranties of Buyer contained in this Agreement or in any document delivered
pursuant hereto shall be true and correct on the Closing Date with the same
effect as if made on the Closing Date, and at the Closing Buyer shall have
delivered to Seller a certificate to such effect (signed by the Managing Partner
of Buyer).
9.3.2 Performance of Covenants. Each of the obligations of
Buyer to be performed on or before the Closing Date pursuant to the terms of
this Agreement shall have been duly performed on or before the Closing Date, and
at the Closing, Buyer shall have delivered to Seller a certificate to such
effect (signed by the Managing Partner of Buyer).
9.3.3 Authority. All actions required to be taken by, or on
the part of, Buyer to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby shall
have been duly and validly taken by the Buyer.
9.3.4 Consents. All consents or approvals required to be
obtained by Buyer for the consummation of the transactions contemplated hereby
shall have been obtained.
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9.3.5 Closing Documents. All documents required to have been
delivered by Buyer to Seller pursuant to the terms hereof shall have been
delivered.
Seller way waive any of the conditions specified in this Section 9.3 if it
executes a writing, so stating, at or prior to Closing.
10. Termination and Abandonment.
10.1 Termination. This Agreement may be terminated:
(a) at any time by mutual consent of the Company, Seller and
Buyer.
(b) by either party upon notice to the other party if such
party is not in default hereunder and the Closing hereunder has not taken place
on or before 5:00 p.m., E.S.T. January 30, 1998;
(c) by Seller upon notice to Buyer if all the conditions in
Section 9.3 have not been satisfied or waived by January 30, 1998 5:00 p.m.
E.S.T.;
(d) by Buyer upon notice to Seller and the Company if all the
conditions set forth in Sections 9.2 have not been satisfied or waived by
January 30, 1998 at 5:00 P.M. E.S.T., 1997;
(e) by Buyer upon notice to Seller and the Company if Buyer
determines in its reasonable discretion that there has occurred any event that
has had or that reasonably may be expected to have a material and adverse effect
on the results of operations, condition (financial or otherwise), assets,
properties, business or prospects of the Company.
11. Effect of Company Representations. Seller is not entitled to rely
upon the representations, warranties, covenants and obligations of the Company
contained herein and may not assert any claim against the Company, or the Buyer
or any other party related to either, including for contribution or indemnity
resulting from such representations and warranties, covenants or obligations.
Such representations and warranties, covenants and obligations are for the
benefit of the Buyer only and do not waive or obviate the requirement that any
representation or warranty, covenant or obligation of Seller be accurate and/or
enforceable as if the Company were not a party thereto. Seller is responsible
for such representations, warranties, covenants, statements and obligations of
the Company herein as if such were made by the Seller.
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12. Miscellaneous.
12.1 Definition of Knowledge. For purposes of this Agreement, any
statement that references the knowledge or belief of any party hereto shall be
deemed to be a reference to the knowledge or belief, as applicable, after
reasonable investigation, of the general partner, officers, directors and
shareholders of such party.
12.2 Notices. Other than as required as to a condition to Closing.
All notices, requests, demands, consents and other communications required or
permitted under this Agreement shall be in writing and shall be deemed given
upon receipt if delivered by courier, overnight delivery or telecopy or-two (2)
business days after mailed by certified or registered mail, postage prepaid,
return receipt requested, to the parties, their successors in interest or their
assignees at the following addresses, or at such other addresses as the parties
may designate by written notice in the manner aforesaid:
If to Buyer: Value Partners, Ltd.
0000 Xxxx Xxxxxx
Xxxxx 0000 X
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx 0. Xxxxx
With a copy to: Bergman, Yonks, Xxxxx & Bird, L.L.P.
0000 Xxxxxx Xxxxxx
Xxxxxx Walk Suite 300
Dallas, Texas 75205
Attn: Xxxx X. Xxxx
If to Seller: Carnegie International Corporation
00000 Xxxxxxxxx Xxxxx, Xxxxx 0
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
With a copy to: Xxxxxxx X. Xxxxxxxxx
Gershberg and Pearl, L.L.P.
00000 Xxxxxxxxx Xxx, Xxxxx 0
Xxxxxx Xxxxx, Xxxxxxxx 00000
12.3 Assignability and parties in Interest. This Agreement shall
not be assignable by any of the parties hereto, except that Buyer may assign
this Agreement and all of its rights and obligations hereunder to any affiliate
of Buyer. This Agreement shall inure to the benefit of and be binding upon Buyer
and Seller and permitted successors and assigns.
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12.4 Governing Law. This Agreement and all transactions
contemplated by this Agreement shall be governed by, and construed and enforced
in accordance with, the internal laws of the State of Texas without regard to
principles of conflicts of laws.
12.5 Counterparts. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but all
of which shall constitute but one and the same instrument, parties hereby
acknowledge that signatures by faxed transmission are acceptable.
12.6 Further Assurances and Access to Information. Each of the
parties hereto agree to execute, acknowledge and deliver and cause to be done,
executed, acknowledged, all such farther acts, assignments, transfers and
assurances as shall reasonably be requested of it in order to carry out this
Agreement and give effect thereto. Accordingly, without in any manner limiting
the specific rights and obligations set forth in this Agreement, the parties
declare their intention to cooperate each with the other in effecting the terms
of this Agreement.
12.7 Indemnification for Brokerage. Seller, on the one hand, and
Buyer, on the other hand, each represent and warrant to the other that no
broker, finder, consultant or salesman has acted on its behalf in connection
with this Agreement or the transactions contemplated hereby. Each party hereto
agrees to indemnify and hold and save harmless the others from and against any
cost, fee, damages, claims and liabilities (including reasonable attorney's
fees) arising out of any claim or demand for commissions or other compensation
by any broker, finder, consultant or salesman or similar agent claiming by
reason of its relationship with any Party hereto or its representatives,
employees or agents. The provisions of this Section 12.7 shall survive Closing
or the earlier termination of this Agreement.
12.8 Publicity. Seller and Buyer agree that press releases and
other announcements to be made by either of them prior to the Closing with
respect to the transactions contemplated hereby shall be subject to mutual
agreement. Notwithstanding the foregoing, Sellers and Buyer may respond to
inquiries relating to this Agreement and the transactions contemplated hereby by
the press, securities analysts, employees, or customers (and may issue press
releases or issue and file any reports without inquiry when necessary or
desirable in light of applicable securities laws) without any notice or further
consent of the other.
12.9 Complete Agreement. This Agreement, the exhibits hereto, the
schedules hereto and the documents delivered or to be delivered pursuant to, or
in connection with, this Agreement contain or will contain the entire agreement
between the parties hereto with respect to the transactions contemplated herein
and shall supersede all previous and contemporaneous oral and all previous
written negotiations, commitments, and understandings.
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12.10 Modifications, Amendments and Waivers. At any time prior to
the Closing Date or termination of this Agreement, the parties may, by written
agreement:
(a) extend the time for the performance of any of the
obligations or other acts of the parties hereto;
(b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any document delivered pursuant to
this Agreement;
(c) waive compliance with any of the covenants or agreements
contained in this Agreement; and
(d) amend or supplement any of the provisions of this
Agreement.
No modification, waiver, amendment, discharge or change of
this Agreement shall be valid unless the same is in writing and signed by the
party against whom the enforcement of any such modification, waiver, amendment,
discharge or change is sought.
12.11 Interpretation. The headings contained in this Agreement are
for convenience of reference only, are not to be considered a part hereof and
shall not limit or otherwise affect in any way the meaning or interpretation of
this Agreement. For purposes of this Agreement, the term "person" shall include
without limitation any corporation, partnership, estate, trust, association,
branch, bureau, subdivision, individual, government instrumentality and other
entity. All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular, or plural, as the identity of the party
or parties, or their personal representatives, successors or assigns may
require.
12.12 Severability. Any provision of this Agreement which is
invalid, illegal, or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of affecting in any way the remaining
provisions hereof in such jurisdiction or rendering that or any other provision
of this Agreement invalid, illegal, or unenforceable in any other jurisdiction.
12.13 Expenses of Transactions. All fees, costs and expenses
incurred by Buyer, the Company or Seller in connection with the transactions
contemplated by this Agreement shall be borne by the party incurring the same,
unless otherwise expressly provided herein.
12.14 Failure to Require Performance. The failure or delay of any
party at any time to require performance by another party of any provision of
this Agreement, even if known, shall not affect the right of such party to
require performance of that provision or to exercise any right, power or remedy
hereunder. Any waiver by any party of any breach of any provision of this
Agreement should not be construed as a waiver of any continuing or succeeding
breach of
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such provision, a waiver of the provision itself, or a waiver of any right,
power or remedy under this Agreement. No notice to or demand on any party In any
case shall, of itself, entitle such party to any other or further notice or
demand in similar or other circumstances.
12.15 Prevailing Party. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation on connection with any provision of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees, court costs and all expenses even if not
taxable as court costs (including, without limitation, all such fees, taxes,
costs and expenses incident to arbitration, appellate, bankruptcy and
post-judgment proceedings), incurred in that action or proceeding, in addition
to any other relief to which such party or parties may be entitled. Attorneys'
fees shall include, without limitation, paralegal fees, investigative fees.
administrative costs, sales and use taxes and alt other charges billed by the
attorney to the prevailing party.
12.16 Remedies. Except as otherwise expressly provision herein, no
remedy herein conferred upon any party is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise. No single or partial exercise by
any party of any right, power or remedy hereunder shall preclude any other or
further exercise thereof.
12.17 Construction. The Buyer, the Company and Seller have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Buyer and Seller and
no presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any of the provisions of this Agreement. Any
reference to any federal, state, local, or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The word "including" shall mean including
without limitation.
12.18 Execution Date. The "date of execution of this Agreement" or
"execution date" shall mean the last day upon which it becomes fully executed by
Seller the Company and Buyer.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first written above.
VALUE PARTNERS, LTD.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Managing Partner of Xxxxx &
Partners general partner of
Value Partners, Ltd.
CARNEGIE INTERNATIONAL CORPORATION
By:
Its:
ELECTRONIC CARD ACCEPTANCE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Its: President
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Illegibility due to poor condition of original document
MANAGING PARTNERS CERTIFICATE UNDER SECTION 9.3
I, Xxxxxxx X. Xxxxx, Managing Partner of Xxxxx & Partners, general
partner of Value Partners, Ltd. ("Buyer"), do hereby certify, pursuant to
Section 9.3 of the certain Stock Purchase Agreement (the "Agreement"), dated as
of January 30, 1998, by and among Carnegie International Corporation, a Colorado
corporation (the "Seller") Electronic Card Acceptance Corporation, a Virginia
corporation (the "Company') and Buyer, as follows:
1. I am the managing partner of Xxxxx & Partners, Ltd., the general
partner of Buyer.
2. The representations and warranties of Buyer contained in the
Agreement or any other document delivered pursuant thereto are deemed to be made
again as of the date hereof and are true and correct as of the date hereof
3. The Buyer has performed and complied with all covenants, obligations
and agreements required by the Agreement to be performed and complied with by
Buyer on or before Closing Date and at the Closing as those terms are defined in
the Agreement.
IN WITNESS WHEREOF, the undersigned, being duly and authorized to
deliver the certificate on behalf of Buyer, has executed this certificate as of
the 30th day of January 1996.
VALUE PARTNERS, LTD.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Managing Partner of Xxxxx &
Partners general partner of
Value Partners, Ltd.
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NOTIFICATION OF VALUE PARTNERS, LTD.
Pursuant to paragraph 7.9 of that certain Stock Purchase Agreement by
and between Carnegie International Corporation, a Colorado corporation
("Seller"), Electronic Card Acceptance Corporation, a Virginia corporation
("Company") and Value Partners, Ltd. ("Buyer") dated as of January 30, 1998,
Buyer hereby directs Carnegie and ECAC that Xxxxx Xxxxxxx shall not resign as
officer and director of ECAC.
VALUE PARTNERS, LTD.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Managing Partner of Xxxxx &
Partners general partner of
Value Partners, Ltd.
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