Exhibit 1
Stock Purchase Agreement
This Stock Purchase Agreement dated January 18, 2002(the "Agreement")
between Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxxxxxx residing at 00 Xxxxxxxx Xxxx
Xxxxx, Xxx Xxxx, XX. 00000 (the "Sellers") and Xxxxx X. Xxxxxxx residing at 000
Xxxxx Xxxx, Xxxxxxxxxx, XX 00000 (the "Buyer").
W I T N E S S E T H
WHEREAS, the Sellers wish to sell all of their holdings in the common
stock of xxxxxxxxxxxxx.xxx Corp.; and
WHEREAS, the Buyer wishes to purchase all of the Sellers' holdings in the
common stock of xxxxxxxxxxxxx.xxx Corp. (the "Company"); and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Purchase and Sale of Shares.
a. The Sellers agree to sell and the Buyer agrees to purchase the common
stock par value $.015 per share of xxxxxxxxxxxxx.xxx Corp. that equals on
the date hereof 696,452 shares (the "Shares") for the total purchase price
of Nine Hundred Twenty-six Thousand and Two Hundred Eighty-one Dollars
($926,281.00) (the "Total Purchase Price") or $1.33 per share. The Shares
are presently held individually by Xxxxxxx Xxxxxxx or jointly with
Xxxxxxxx Xxxxxxxxx.
b. The purchase and sale of the Shares will be made in two tranches. The
first tranche for a total of 596,452 shares shall close prior to January
31, 2002 (the "First Tranche") and the second tranche for the balance of
the Shares held by the Sellers shall close no earlier than March 12, 2002,
but no later than March 31, 2002) the "Second Tranche").
c. At the closing of the First Tranche, the Sellers shall deliver to the
Buyer a total of 596,452 Shares and the Buyer shall deliver to the Sellers
the sum of Seven Hundred Ninety-three Thousand and Two Hundred Eighty-one
Dollars and Sixteen Cents ($793,281.16). Prior to the closing of the First
Tranche, both the Shares to be delivered by the Sellers and the monies to
be paid by the Buyer shall have been deposited with a broker/dealer of
securities that is mutually acceptable to the Buyer and the Sellers.
d. At the closing of the Second Tranche, the Sellers shall deliver to the
Buyer a total of 100,000 Shares and the Buyer shall deliver to the Sellers
the sum of One Hundred Thirty-three Thousand Dollars and Zero Cents
($133,000.00). Prior to the closing of the Second Tranche, both the Shares
to be delivered by the Sellers and the monies to be paid by the Buyer
shall have been deposited with a broker/dealer of securities that is
acceptable to both the Buyer and the Sellers.
e. The Buyer shall be obligated to purchase the Shares herein only to the
extent that the Shares may be lawfully purchased for his personal
Individual Retirement Account ("XXX") and to the extent that the Buyer is
prohibited from purchasing these Shares for his XXX account, in whole or
in part, then the Buyer's obligation herein shall thereby terminate. The
Buyer and Sellers shall use their good faith efforts to consummate the
transactions contemplated by this Agreement.
2. Proxy.
a. At the closing of the First Tranche, the Sellers hereby agree to
execute a Proxy in a form as set forth in Exhibit A herein, providing the
Buyer the right to vote the Shares held by the Sellers that will be sold
to the Buyer in the Second Tranche pursuant to this Agreement.
3. Sellers' Representations and Warranties. The Sellers hereby represent and
warrant to the Buyer as of the date hereof and as of each of the closings
as follows:
a. Authority and Capacity. The Sellers have all requisite power, authority
and capacity to enter into this Agreement; to perform their obligations
hereunder and to consummate the transactions contemplated hereby,
including, without limitation, the granting of the Proxy as provided in
paragraph 2(a) herein.
b. Non-Contravention. The execution, delivery and performance of this
Agreement does not, and the consummation of the transactions contemplated
hereby will not, (a) result in a breach of or default under any agreement
to which the Sellers are bound, or (b) violate any law or regulation
applicable to the Sellers, or any permit, license, authorization,
franchise, approval, judgment, order, injunction, decree or award of any
court, arbitrator, administrative agency or governmental body applicable
to or binding upon the Sellers.
c. Binding Agreement. No authorization or approval is required for the
Sellers to execute and deliver this Agreement and to perform their
obligations hereunder. This Agreement has been duly and validly executed
and delivered by the Sellers and constitutes the Sellers valid and binding
agreement, enforceable against the Sellers in accordance with and subject
to its terms.
d. Title to Shares. The Sellers are the lawful, record and beneficial
owner of all of the Shares, free and clear of any liens, claims,
agreements, charges, security interests and encumbrances whatsoever. As of
each closing, the Sellers have the full right, power and authority to
sell, convey, assign, transfer and deliver to the Buyer the Shares being
transferred to the Buyer at such closing pursuant to the terms of this
Agreement. As of each closing, the certificates representing the Shares
being transferred to the Buyer at such Closing are valid and genuine. The
sale, conveyance, assignment, transfer and delivery of the certificates
representing the Shares in accordance with the terms of this Agreement
will transfer to the Buyer legal and valid title to the Shares, free and
clear of all liens, security interests, hypothecations or pledges. Except
for this Agreement, there are no outstanding subscriptions, options,
rights (preemptive or
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otherwise), warrant, calls, convertible securities or other agreements or
commitments of any character relating to the Shares.
e. Approvals. No consent, approval, order or authorization of, or any
registration, declaration or filing with any governmental organization or
agency is required in connection with the valid execution, delivery,
consummation and performance of this Agreement by the Sellers.
f. Transferability. The Shares are freely transferable and not subject to
any restrictions of any nature, except pursuant to the Securities Act of
1933.
The foregoing representations and warranties shall survive the closings
and shall not be affected by any information furnished to, or
investigation made by, the Buyer. The Sellers will indemnify, defend,
protect and hold the Buyer harmless from and against any and all losses,
claims, law suits, damages, costs or expenses (including, without
limitation, attorneys' fees) asserted against, sustained or incurred by
the Buyer as a result of or in connection with any misrepresentation or
breach of warranty by the Sellers.
4. Buyer's Representations and Warranties. The Buyer hereby represents and
warrants to the Sellers as of the date hereof and as of each of the
closings as follows:
a. Authority and Capacity. The Buyer has all requisite power, authority
and capacity to enter into this Agreement; to perform his obligations
hereunder and to consummate the transactions contemplated hereby.
b. Non-Contravention. The execution, delivery and performance of this
Agreement does not, and the consummation of the transactions contemplated
hereby will not, (a) result in a breach of or default under any agreement
to which the Buyer is bound, or (b) violate any law or regulation
applicable to the Buyer, or any permit, license, authorization, franchise,
approval, judgment, order, injunction, decree or award of any court,
arbitrator, administrative agency or governmental body applicable to or
binding upon the Buyer.
c. Binding Agreement. No authorization or approval is required for the
Buyer to execute and deliver this Agreement and to perform his obligations
hereunder. This Agreement has been duly and validly executed and delivered
by the Buyer and constitutes his valid and binding agreement, enforceable
against the Buyer in accordance with and subject to its terms.
d. Approvals. No consent, approval, order or authorization of, or any
registration, declaration or filing with any governmental organization or
agency is required in connection with the valid execution, delivery,
consummation and performance of this Agreement by the Buyer.
The foregoing representations and warranties shall survive the closings
and shall not be affected by any information furnished to, or
investigation made by, the Sellers. The Buyer will indemnify, defend,
protect and hold the Sellers harmless from and against any and all losses,
claims, damages, costs or expenses
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(including, without limitation, attorneys' fees) asserted against,
sustained or incurred by the Sellers as a result of or in connection with
any misrepresentation or breach of warranty by the Buyer.
5. Covenants.
a. No Transfer. The Sellers will not sell, transfer or assign the Shares
or any interest therein, except as provided in this Agreement.
6. Miscellaneous.
a. Entire Agreement. This Agreement constitutes the entire understanding
and agreement relating to the subject matter hereof and supersedes any and
all prior understandings, agreements, negotiations and discussions, both
written and oral, between the Sellers and the Buyer with respect to the
subject matter hereof.
b. Waiver. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether
or not similar), nor shall any such waiver constitute a continuing waiver
unless otherwise expressly so provided.
c. Amendments. No changes in, modifications of, or amendments to, this
Agreement shall be valid unless the same shall be in writing and signed by
both the Sellers and the Buyer.
d. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with, and shall be governed by the laws of the
State of New York without reference to, and regardless of, any applicable
choice or conflicts of laws principles. Any action or proceeding seeking
to enforce any provision of, or based on any rights arising out of, this
Agreement shall be brought in the courts of the State of New York and the
Sellers and the Buyer consent to jurisdiction in the State of New York for
any action or proceeding arising under this Agreement.
e. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same agreement.
f. Severability. If any provision of this Agreement or the application of
any such provision to any person or circumstance shall be held invalid by
any court of competent jurisdiction, the remainder of this Agreement, or
the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected thereby.
g. Successors. This Agreement shall be binding upon and shall inure to
benefit of the Sellers and the Buyer and the benefit of our respective
successors and assigns; provided, however, that the Buyer shall notify the
Sellers prior to any assignment of this Agreement.
h. Further Assurances. Both the Sellers and the Buyer shall from time to
time at the request of the other, and without further consideration,
execute and
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deliver such further instruments of assignment, transfer, conveyance and
confirmation and take such other action as may be reasonably requested in
order to more effectively fulfill the purpose of this Agreement.
i. Adjustment. In the event of any stock split, stock dividends or
recapitalization of the common stock of the Company (including,
without limitation, in connection with a merger), the provisions of
paragraphs 1 and 2 above shall apply with respect to any new shares
issued with respect to the Shares the purchase price and number of
shares shall be appropriately adjusted.
7. Acknowledgement.
The Sellers and the Buyers hereby acknowledge that they have each
conducted their own investment research, due diligence and have consulted
with their own respective investment advisors and attorneys before
entering into this Agreement, nor have either the Sellers or the Buyer
relied upon any oral communications made by the other. Additionally, the
Sellers hereby acknowledge that the Buyer may be deemed an Affiliate of
the Company under the regulations promulgated by the SEC and may have
additional information regarding the Company than has otherwise been
disseminated to the public. The Sellers further acknowledge that they have
considered this matter before executing this Agreement.
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly
signed as of the date set forth below.
By:______________________________ Date:_____________________
Xxxxx X. Xxxxxxx
By:______________________________ Date:_____________________
Xxxxxxx Xxxxxxx
By:______________________________ Date:_____________________
Xxxxxxxx Xxxxxxxxx
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Exhibit A
PROXY
TO VOTE STOCK OF
XXXXXXXXXXXXX.XXX CORP.
The undersigned shareholders of xxxxxxxxxxxxx.xxx Corp., a New York
corporation (the "Company"), hereby appoints Xxxxx X. Xxxxxxx ("Buyer"), and
each of them, or any other designee of Buyer, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to the shares of
capital stock of the Company that are beneficially owned by the undersigned
(collectively, the "Shares") in accordance with the terms of this Proxy and
pursuant to the Stock Purchase Agreement dated January 29, 2002. Upon the
undersigned's execution of this Proxy, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to the Shares .
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, to act as the undersigned's
attorney and proxy to vote the Shares, and to exercise all voting and other
rights of the undersigned with respect to the Shares (including, without
limitation, the power to execute and deliver written consents pursuant to the
New York Business Corporation Law), at every annual, special or adjourned
meeting of the shareholders of the Company and in every written consent in lieu
of such meeting.
All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Proxy shall terminate on March 31, 2002, or upon the termination of
the Stock Purchase Agreement, whichever is later.
Dated: _______________, _____
Xxxxxxx Xxxxxxx
__________________________________________
(Signature of Shareholder)
Xxxxxxxx Xxxxxxxxx
__________________________________________
(Signature of Shareholder)
__________________________________________
Shares subject to this Irrevocable Proxy :
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PROXY
TO VOTE STOCK OF
XXXXXXXXXXXXX.XXX CORP.
The undersigned shareholders of xxxxxxxxxxxxx.xxx Corp., a New York
corporation (the "Company"), hereby appoints Xxxxx X. Xxxxxxx ("Buyer"), and
each of them, or any other designee of Buyer, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to the shares of
capital stock of the Company that are beneficially owned by the undersigned
(collectively, the "Shares") in accordance with the terms of this Proxy and
pursuant to the Stock Purchase Agreement dated January 29, 2002. Upon the
undersigned's execution of this Proxy, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to the Shares .
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, to act as the undersigned's
attorney and proxy to vote the Shares, and to exercise all voting and other
rights of the undersigned with respect to the Shares (including, without
limitation, the power to execute and deliver written consents pursuant to the
New York Business Corporation Law), at every annual, special or adjourned
meeting of the shareholders of the Company and in every written consent in lieu
of such meeting.
All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Proxy shall terminate on March 31, 2002, or upon the termination of
the Stock Purchase Agreement, whichever is later.
Dated: _______________, _____
Xxxxxxx Xxxxxxx
__________________________________________
(Signature of Shareholder)
__________________________________________
Shares subject to this Irrevocable Proxy :
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