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EXHIBIT 2.2
Amended and Restated Stock Purchase Agreement, dated as of
April 10, 2000 (this "AGREEMENT"), between Envision Development Corporation, a
Florida corporation (the "BUYER") and each of the parties listed on Schedule I
hereto (each a "SELLER," and, collectively, the "SELLERS").
WHEREAS, the Corporation has entered into a Stock Purchase
Agreement (the "ORIGINAL PURCHASE AGREEMENT") with Xxxxxxx X. Patch III,
Xxxxxxxxx X. Patch, Xxxxxxxx Patch and Xxxxxxx X. Patch IV, dated April 10,
2000;
WHEREAS, the parties hereto wish to amend and restate the
Original Purchase Agreement in its entirety as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants, and agreements herein contained,
and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS. In addition to the terms defined elsewhere
herein, the terms below have the following meanings when used herein:
"Closing Date" means the date hereof.
"Governmental Approval" means with respect to any Person, any
consent, approval, authorization, waiver, Permit, agreement, license,
certificate, exemption, order, registration, declaration or filing of,
with or to any Governmental Authority, in each case binding upon such
Person or such Person' assets, business or properties.
"Governmental Authority" means any federal, state, local,
foreign or other governmental department, commission, board, bureau,
agency, arbitral body, or instrumentality, including, without
limitation, any court or tribunal of competent jurisdiction.
"Intellectual Property" means all intellectual property listed
on Schedule 2 hereto and other rights relating thereto.
"Legal Requirement" means with respect to any Person, any
statute, law, ordinance, code, rule, regulation, judgment, decree,
decision, writ, stipulation, settlement, ruling, injunction, order and
any other requirement of or under any Governmental Authority.
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"Organizational Documents" means with respect to a Person that
is a corporation or other business entity, articles of incorporation,
charter, bylaws, code of regulations or other organizational documents
of such Person.
"Permit" means any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person or its securities, assets, or business.
"Person" means an individual, a partnership, a joint venture,
a limited liability company, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof, as
the case may be.
"Purchase Price" means, as to each Seller, the Purchase Price
listed on Schedule I hereto opposite such Seller's name.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means VP IP, Inc., a Delaware corporation.
"Shares" means the shares of common stock of the Subsidiary
owned by each Seller and listed opposite such Seller's name on Schedule
I hereto.
ARTICLE 2
SALE OF SHARES
2.1 SALE OF SHARES. On the Closing Date each Seller shall sell
and deliver to the Buyer against payment of such Seller's Purchase Price, and
the Buyer shall purchase and accept from such Seller, all of such Seller's
Shares free and clear of all encumbrances or other liens. The transfer and
delivery of the Shares to the Buyer shall be made by delivering share
certificates evidencing all of the Shares, duly endorsed in blank or accompanied
by duly executed stock powers, in form satisfactory to the Buyer and with all
required stock transfer stamps affixed, to the Buyer.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Sellers as follows:
3.1 DUE INCORPORATION AND POWER. The Buyer is a corporation
duly incorporated, validly existing and in good standing under the laws of the
state of Florida and has all requisite corporate power and authority to enter
into this Agreement to which it is a party and perform its obligations
hereunder.
3.2 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION.
The execution, delivery and performance by the Buyer of this Agreement and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of the Buyer and no
other action or proceeding on part of the Buyer, its board of directors or
shareholders is necessary for the execution, delivery and performance by the
Buyer of this Agreement and the consummation by the Buyer of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Buyer, and assuming this Agreement constitutes a valid and binding obligation of
each Seller, constitutes a valid and binding obligation of the Buyer,
enforceable against the Buyer in accordance with its terms, subject to the
effects of bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or other similar laws relating to or affecting creditors'
rights generally, general principles of equity (whether considered in a
proceeding at law or in equity) and an implied covenant of good faith and fair
dealing.
3.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings
required under applicable federal and state securities laws and regulations, the
execution, delivery and performance of this Agreement, the consummation by the
Buyer of the transactions contemplated hereby, and the compliance by the Buyer
with any of the provisions hereof do not and will not (i) conflict with or
result in a breach of the Organizational Documents of the Buyer, (ii) require
the Buyer to make or obtain any Governmental Approval from any Governmental
Authority, (iii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness, lease, license, contract, agreement
or other instrument or obligation to which the Buyer is a party or by which it
or any of its properties or assets may be bound or (iv) violate any Legal
Requirement applicable to the Buyer or any of its properties or assets.
3.4 PURCHASE FOR INVESTMENT. The Buyer is aware that no shares
of capital stock or other securities being purchased pursuant to the
transactions contemplated hereby are registered under the Securities Act or
under any state or foreign securities laws. The Buyer is not an underwriter, as
such term is defined in the Securities Act, and the Buyer is purchasing such
shares solely for investment with no present intention to distribute any such
shares to any person and the Buyer will not sell or otherwise dispose of such
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shares except in compliance with the registration requirements or exemption
provisions under the Securities Act and the rules and regulations promulgated
thereunder, or any other applicable securities laws.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF EACH SELLER
Each Seller represents and warrants to the Buyer as follows:
4.1 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION.
This Agreement has been duly executed and delivered by such Seller, and assuming
this Agreement constitutes a valid and binding obligation of the Buyer,
constitutes a valid and binding obligation of such Seller, enforceable against
such Seller in accordance with its terms, subject to the effects of bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
other similar laws relating to or affecting creditors' rights generally, general
principles of equity (whether considered in a proceeding at law or in equity)
and an implied covenant of good faith and fair dealing.
4.2 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings
required under applicable federal and state securities laws and regulations, the
execution, delivery and performance of this Agreement, the consummation by such
Seller of the transactions contemplated hereby, and the compliance by such
Seller with any of the provisions hereof do not and will not (i) require such
Seller to make or obtain any Governmental Approval from any Governmental
Authority, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness, lease, license, contract, agreement
or other instrument or obligation to which such Seller is a party or by which
such Seller or any of its properties or assets may be bound or (iii) violate any
Legal Requirement applicable to such Seller or any of its properties or assets.
4.3 CAPITALIZATION OF THE SUBSIDIARY.
(a) As of the date hereof, the Subsidiary has authorized
capital stock of 1000 shares of common stock, $0.01 par value, of which 1000
shares are issued and outstanding. As of the date hereof, the Sellers own all of
the issued and outstanding shares of common stock of the Subsidiary and the
Shares collectively represent 100% of such shares owned by the Sellers.
(b) All of the Shares have been validly issued, fully paid and
non-assessable and are owned by such Seller free and clear of all liens or
encumbrances.
(c) Other than this Agreement, there are no outstanding or
authorized rights or agreements of any kind relating to the sale, issuance,
redemption, return or voting of any shares of capital stock of, or other
ownership interests in, the Subsidiary, or evidencing the right to purchase any
shares of capital stock of, or other ownership interests in, the Subsidiary and
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no equity securities of the Subsidiary are reserved for issuance for any
purpose. There are also no "phantom" stock rights, stock appreciation rights or
other similar rights relating to the capital stock of, or other ownership
interests in, the Subsidiary.
4.4 LIABILITIES OF THE SUBSIDIARY. Each Seller represents and
warrants that as of the Closing Date the Subsidiary shall have no liabilities.
4.5 ACQUISITION FOR INVESTMENT. Each Seller is aware that no
shares of capital stock or other securities being acquired pursuant to the
transactions contemplated hereby are registered under the Securities Act or
under any state or foreign securities laws. Such Seller is not an underwriter,
as such term is defined in the Securities Act, and such Seller is acquiring such
shares solely for investment with no present intention to distribute any such
shares to any person and such Seller will not sell or otherwise dispose of such
shares except in compliance with the registration requirements or exemption
provisions under the Securities Act and the rules and regulations promulgated
thereunder, or any other applicable securities laws.
4.6 LIMITATION ON TRANSFER. Each Seller acknowledges that it
will not pledge, transfer, sell, assign or hypothecate any shares of capital
stock or other securities being acquired pursuant to the transactions
contemplated hereby without the prior written consent of the Buyer.
4.7 NO OTHER REPRESENTATIONS AND WARRANTIES. Except for the
representations and warranties contained in this Agreement, none of the Sellers
nor any other person makes any other express or implied representation or
warranty on behalf of the Sellers, including, without limitation, as to the
probable success or profitability of the ownership, use or operation of the
Intellectual Property by the Buyer after the closing of the transactions
contemplated hereby.
ARTICLE 5
MISCELLANEOUS
5.1 FURTHER ASSURANCES. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further action
as may be necessary or desirable to consummate the transactions contemplated by
this Agreement.
5.2 NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
personally or sent by nationally recognized overnight courier or by registered
or certified mail, postage prepaid, return receipt requested, or by electronic
mail, with a copy thereof to be delivered or sent as provided above or by
facsimile or telecopier, as follows (or to such other address as the party to
whom notice is to be given may have furnished to the other party in writing in
accordance herewith):
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(a) If to the Buyer:
Envision Development Corporation
00000 X.X. 000xx Xxxx
Xxxxx, XX 00000 Facsimile:
E-Mail:
Attention:
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(b) If to any Seller,
[Name of Seller]
c/o Xxxxxxx X. Patch III
VP Incorporated
000 X. Xxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
E-Mail: xxxxx@xxxxxxx.xxx
Attention: Xxxx Patch
All such notices or communications shall be deemed to be received (i) in the
case of personal delivery, nationally recognized overnight courier or registered
or certified mail, on the date of such delivery and (ii) in the case of
facsimile or telecopier or electronic mail, upon confirmed receipt.
5.3 INTERPRETATION. When a reference is made in this Agreement
to Sections or subsections such reference shall be to a Section or subsection to
this Agreement unless otherwise indicated. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation." The word "herein" and similar references mean,
except where a specific Section or Article reference is expressly indicated, the
entire Agreement rather than any specific Section or Article. The headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
5.4 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the extent possible.
5.6 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This
Agreement constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof and thereof, and is not intended to confer upon any Person
other than the parties hereto any rights or remedies hereunder.
5.7 GOVERNING LAW; ENFORCEMENT. This Agreement and the rights
and duties of the parties hereunder shall be governed by, and construed in
accordance with, the Law of the State of New York. In addition, each of the
parties hereto, (a) consents to submit itself to the personal jurisdiction of
the Federal District Court for the Southern District of New York in the event
any dispute arises out of this Agreement or any transaction contemplated hereby,
(b) agrees that it will not attempt to deny or defeat such personal jurisdiction
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by motion or other request for leave from any such court, (c) agrees that it
will not bring any action relating to this Agreement or any transaction
contemplated hereby in any court other than the Federal District Court for the
Southern District of New York and (d) waives any right to trial by jury with
respect to any action related to or arising out of this Agreement or any
transaction contemplated hereby.
5.8 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each Seller and the Buyer have caused this
Agreement to be signed by their respective officers or other authorized person
thereunto duly authorized as of the date first written above.
ENVISION DEVELOPMENT CORPORATION
By:
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Name:
Title:
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XXXXXXX X. PATCH III
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XXXXXXXXX X. PATCH
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XXXXXXXX PATCH
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XXXXXXX X. PATCH IV
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XXXX XXXXXXXXXXX
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SCHEDULE 1
-------------------------- ----------------------------- -------------------------------------------------
Seller Shares Purchase Price
-------------------------- ----------------------------- -------------------------------------------------
Xxxxxxx X. Patch III 125 shares of common stock 25,000 shares of common stock of
of VP IP, Inc. Envision Development Corporation
-------------------------- ----------------------------- -------------------------------------------------
Xxxxxxxxx X. Patch 125 shares of common stock 25,000 shares of common stock of
of VP IP, Inc. Envision Development Corporation
-------------------------- ----------------------------- -------------------------------------------------
Xxxxxxxx Patch 125 shares of common stock 25,000 shares of common stock of
of VP IP, Inc. Envision Development Corporation
-------------------------- ----------------------------- -------------------------------------------------
Xxxxxxx X. Patch IV 125 shares of common stock 25,000 shares of common stock of
of VP IP, Inc. Envision Development Corporation
-------------------------- ----------------------------- -------------------------------------------------
Xxxx Xxxxxxxxxxx 500 shares of common stock 100,000 shares of common stock of
of VP IP, Inc. Envision Development Corporation
-------------------------- ----------------------------- -------------------------------------------------
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SCHEDULE 2
INTELLECTUAL PROPERTY
1. The vertical portal concept and business plan
for xxxxxxx0xxx.xxx
2. The URL and all rights to the trademark and corporate
name xxxxxxx0xxx.xxx
