Exhibit 1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of May 22, 2000 by and between XXXXXXXXX, XXXXXX &
XXXXXXXX SECURITIES CORPORATION ("DLJ") and BANCO HIPOTECARIO, an
Argentine corporation (the "Buyer"), and relates to shares of common
stock, par value $0.01 per share (the "Common Stock'), of Xxxxxxxx.xxx,
Inc., a Florida Corporation (the "Company").
WHEREAS, DLJ desires to sell to Buyer and Buyer desires to purchase
from DLJ, the Shares (as defined below) on the terms and conditions set
forth in this Agreement;
WHEREAS, DLJ intends to purchase the Shares from an undisclosed
seller (the "Seller") in a transaction to occur concurrently with the
purchase of the Shares pursuant hereto;
NOW, THEREFORE, the parties agree as follows:
1. AGREEMENT TO PURCHASE AND SELL STOCK. DLJ agrees to sell to
Buyer at the Closing, and Buyer agrees to purchase from DLJ at the
Closing, an aggregate of 3,137,173 shares of Common Stock of the Company,
at a price per Share equal to $1.554688, for an aggregate purchase price
of $4,877,323.65. The shares of Common Stock purchased and sold pursuant
to this Agreement will be collectively hereinafter referred to as the
"Shares."
2. CLOSING.
2.1. The Closing. The purchase and sale of the Shares (the
"Closing") will take place at the offices of Buyer, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, at the time mutually agreed to by Buyer and DLJ, at or
before 5:00 p.m., New York City time, on May 23, 2000 (or, if DLJ is
unable with reasonable effort to obtain a share certificate representing
the Shares from the Company's transfer agent prior to that date, then on
the business day after DLJ notifies Buyer that it has obtained such
certificate). At the Closing, DLJ will deliver to Buyer a certificate
representing the Shares registered in the name of Buyer or its nominee,
against delivery to DLJ by Buyer of the full purchase price of the
Shares, paid by wire transfer of funds to DLJ to an account specified by
DLJ in writing.
3. REPRESENTATIONS AND WARRANTIES OF DLJ. DLJ hereby represents
and warrants to Buyer that the statements in the following paragraphs of
this Section 3 are true and correct:
3.1. Due Authorization. All corporate action on the part of DLJ
necessary for the authorization, execution and delivery of, and the
performance of all obligations of DLJ under, this Agreement has been
taken or will be taken prior to the Closing, and this Agreement
constitutes a valid and legally binding obligation of DLJ, enforceable in
accordance with its terms, except as may be limited by (i) applicable
bankruptcy, insolvency, reorganization or others laws of general
application relating to or affecting the enforcement of creditors' rights
generally and (ii) the effect of rules of law governing the availability
of equitable remedies.
3.2. Title to Shares. Seller is the legal and beneficial owner of,
and has good and marketable title to the Shares, free of adverse claims
other than restrictions on transfer imposed by applicable law.
3.3. No Liens. The Shares are not and will not be subject to (i)
any pledge, lien, mortgage, hypothecation, security interest, charge,
option, or any agreement purporting to grant such an encumbrance in the
Shares or property or assets of the Seller which would include any
Shares, or any encumbrance whatsoever, or (ii) any contractual
restriction on the sale, pledge, transfer or hypothecation of the Shares,
except as disclosed in the transfer restrictions on the face of the
Shares.
3.4. Acquisition and Holding of Shares. The Shares were acquired
and paid for in full by Seller on June 5, 1998, and Seller has held the
Shares continuously since such date. Seller is not an officer, director
or controlling shareholder of the Company or otherwise in a position to
control the management or policies of the Company or otherwise an
"affiliate" of the Company within the meaning of the Act.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants to, and agrees with, DLJ, that:
4.1. Authorization. All corporate action on the part of Buyer and
its officers, directors and stockholders necessary for the authorization,
execution and delivery of, and the performance of all obligations of
Buyer under, this Agreement has been taken or will be taken prior to the
Closing, and this Agreement constitutes a valid and legally binding
obligation of Buyer, enforceable in accordance with its terms, except as
may be limited by (i) applicable bankruptcy, insolvency, reorganization
or others laws of general application relating to or affecting the
enforcement of creditors' rights generally and (ii) the effect of rules
of law governing the availability of equitable remedies.
4.2. Accredited Investor. Buyer is an "accredited investor" within
the meaning under Rule 501 (a)(3) under the Act and is a financial
institution organized under the laws of a country other than the United
States of America that, as of December 31, 1999, had total assets in
excess of $50,000,000, and by reason of its business and financial
experience Buyer has such knowledge, sophistication, and experience in
business and financial matters that it is capable of evaluating the
merits and risks of the prospective investment in the Shares, and Buyer
is able to bear the economic risk of such investment.
4.3. Unregistered Shares. The Buyer understands that the Shares
have not been registered under the Securities Act of 1933, as amended
(the "Act"), and may not be sold except pursuant to an effective
registration statement or pursuant to a duly available exemption from
such registration requirements.
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4.4. No View to Distribution. The Buyer is purchasing the Shares
for its own account for investment purposes and not with a view to or for
distribution in a manner that would violate the Act.
4.5. No Planned Sale or Distribution. In making any subsequent
offering or sale of the Shares, which is not currently intended, the
Buyer will be acting only for itself and not as part of a sale or planned
distribution in violation of the Act.
4.6. No Material Non-Public Information. The Buyer is not in
possession of any material non-public information concerning the
business, operations or prospects of the Company. The Buyer is not
restricted from transferring the Shares because of any "blackout period"
or similar policy of the Company or any of its affiliates.
4.7. No Reliance. The Buyer has, in connection with the Agreement
(i) the knowledge and sophistication to independently appraise and
understand the financial and legal terms and conditions of the Agreement
and to assume the economic consequences and risks thereof and has, in
fact, done so as a result of arm's length dealings with DLJ; (ii) to the
extent necessary, consulted with its own independent tax, accounting,
financial, legal or other advisors and has made its own investment and
trading decisions in connection with the Agreement, based upon its own
judgment and the advice of such advisors and not upon any view expressed
by DLJ; (iii) not relied upon any representations (whether written or
oral) of DLJ, other than those representations expressly made in Section
3 hereof, and is not in any fiduciary relationship with DLJ, it being
understood that information and explanations related to the terms and
conditions of the Agreement shall not be considered investment advice or
a recommendation to enter into the Agreement; and (iv) not obtained from
DLJ (directly or indirectly through any other person) any advice, counsel
or assurances as to the expected or projected success, profitability,
performance, results or benefit of the Agreement and no communication
(written or oral) received from DLJ shall be deemed to be an assurance or
guarantee as to the expected results of the Agreement.
4.8. Legend on Shares. The Buyer acknowledges that, so long as
appropriate, a legend similar to the following may appear on the
certificates representing the Shares: "These securities have not been
registered under the Securities Act of 1933 and may be reoffered and sold
only if registered or if an exemption from registration is available."
4.9. Not a U.S. Person. The Buyer represents that Buyer is not a
"U.S. person" within the meaning of Rule 902 of the Act.
4.10. No Other Violation. The Buyer represents that, to the
best of its knowledge, the purchase of the Shares does not violate any
law or regulation applicable to it or its business.
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5. CONDITION TO CLOSING.
5.1. Concurrent Purchase Condition. The obligations of DLJ to sell
Shares hereunder are conditioned on the concurrent closing of the
purchase by DLJ of the Shares from the Seller.
6. MISCELLANEOUS.
6.1. Survival of Warranties. The representations, warranties and
covenants of Buyer and DLJ contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and
the Closing for a period of one year and shall in no way be affected by
any investigation of the subject matter thereof made by or on behalf of
DLJ, its counsel or Buyer, as the case may be.
6.2. Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties.
6.3. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York
applicable to agreements made and to be performed in such State except,
to the extent permitted by law, the laws pertaining to conflicts or
choice of law.
6.4. Counterparts. This Agreement may be executed 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.
6.5. Headings. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing
or interpreting this Agreement. All references in this Agreement to
sections, paragraphs, exhibits and schedules shall, unless otherwise
provided, refer to sections and paragraphs hereof and exhibits and
schedules attached hereto, all of which exhibits and schedules are
incorporated herein by this reference.
6.6. Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be
deemed effectively given upon personal delivery to the party to be
notified or upon deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party
to be notified as follows:
BUYER:
Banco Hipotecario
Reconquista 151
(1003) Capital Federal
Argentina
Attn: Xxxxxxx Lifsic
011-54-11-4347-5683
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DLJ:
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Managing Director
Manager - Investment Services Group
000- 000-0000
6.7. Reliance by Company. Each party acknowledges that Company may
rely upon the representations contained herein.
6.8. Costs, Expenses. Each party shall bear its own costs in
connection with preparation, execution delivery and performance of this
Agreement.
6.9. Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Buyer and DLJ.
6.10. Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such
provision(s) shall be excluded from this Agreement and the balance of the
Agreement shall be interpreted as if such provision(s) were so excluded
and shall be enforceable in accordance with its terms.
6.11. Entire Agreement. This Agreement, together with any
exhibits or schedules hereto, constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof
and supersedes any and all prior negotiations, correspondence,
agreements, understandings duties or obligations between the parties with
respect to the subject matter hereof.
6.12. Further Assurances. From and after the date of this
Agreement, Buyer and DLJ shall execute and deliver such instruments,
documents or other writings as the other party may deem reasonably
necessary or desirable to confirm and carry out and to effectuate fully
the intent and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
BANCO HIPOTECARIO XXXXXXXXX, XXXXXX &
XXXXXXXX SECURITIES
CORPORATION
By: _________________________ By: _________________________
Name: Name:
Title: Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
BANCO HIPOTECARIO XXXXXXXXX, XXXXXX &
XXXXXXXX SECURITIES
CORPORATION
By: _________________________ By: _________________________
Name: Name:
Title: Title:
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