EXHIBIT 1
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is dated
November 29, 2004 ("Agreement Date") by and between ADGO Investments, LLC, a
Delaware limited liability company ("Purchaser"), and Xxxxx X. Xxxxxx and Xxxxx
X. Xxxxxx, trustees of the Xxxxxx Family Trust dated February 23, 1991
("Seller").
RECITALS
A. The Seller is the owner of 1,554,221 shares of the common stock,
par value $.001 per share (the "Shares"), of Xxxxx Golf, Inc., a
Delaware corporation (the "Company").
B. The Purchaser wishes to purchase the Shares on the terms and
conditions set forth in this Agreement.
Now, therefore, in consideration of the mutual premises contained
herein, the parties agree as follows:
1. Purchase and Sale. The Seller hereby agrees to sell, transfer,
assign, grant and convey the Shares to the Purchaser and the Purchaser hereby
agrees to purchase and acquire the Shares, represented by Certificate(s) Number
AD1959, for an aggregate consideration of One Million Five Hundred Thousand
Dollars ($1,500,000) (the "Purchase Price"). The Purchase Price shall be paid by
the Purchaser by wiring such amount, in immediately available funds, in
accordance with the instructions on Annex I hereto, upon execution hereof
against delivery of the Certificate(s) Number AD1959 to the Purchaser's account
at UBS Securities, LLC.
2. Representations and Warranties of the Sellers. In order to
induce the Purchaser to purchase the Securities, Seller represents and warrants
that:
a. Seller has full power and authority to execute, deliver
and perform its obligations under this Agreement.
b. Seller's execution, delivery, and performance of the
this Agreement has not resulted and will not result in
a breach or violation of any provision of (i) such
Seller's organizational documents, (ii) any statute,
law, writ, order, rule or regulation of any
governmental authority applicable to such Seller, (iii)
any judgment, injunction, decree or determination
applicable to such Seller or (iv) any contract,
indenture, mortgage, loan agreement, note, lease or
other agreement, document or instrument to which such
Seller may be a party, by which such Seller may be
bound or to which any of the assets of such Seller is
subject.
c. (i) This Agreement (A) has been duly and validly
authorized, executed and delivered by such Seller and
(B) is the legal, valid and binding obligation of such
Seller, enforceable against such Seller in accordance
with its terms, except that such enforceability against
such Seller may be limited by bankruptcy, insolvency,
or other similar laws of general applicability
affecting the enforcement of creditors' rights generally
and by the court's discretion in relation to equitable
remedies; and
(ii) No notice to, registration with, consent or approval
of or any other action by any relevant governmental
authority or other entity is, will be, or was on the
Agreement Date, required for Seller to execute, deliver,
and perform its obligations under this Agreement.
d. Seller is the sole legal and beneficial owner of and has
good title to the Shares, free and clear of any mortgage,
pledge, lien, security interest, charge, hypothecation,
security agreement, security arrangement or encumbrance
or other adverse claim against title of any kind
("Encumbrance"). The Shares are not subject to any prior
sale, transfer, assignment or participation by either
Seller or any agreement by either Seller to assign,
convey, transfer or participate, in whole or in part.
e. No proceedings are pending against Seller or to Seller's
knowledge, threatened against such Seller before any
relevant governmental authority that, in the aggregate,
will materially and adversely affect (i) the Shares or
(ii) any action taken or to be taken by Seller under this
Agreement.
f. Seller has not engaged in any acts or conduct or made any
omissions that will result in Purchaser receiving
proportionately less in payments or distributions under,
or less favorable treatment (including the timing of
payments or distributions) for, the Shares than is
received by other holders holding Shares of the same
tranche, class or type as the Shares.
g. No broker, finder or other entity acting under either
Seller's authority is entitled to any broker's commission
or other fee in connection with the transactions
contemplated by this Agreement for which Purchaser could
be responsible.
h. Seller acknowledges that the consideration given for the
purchase by the Purchaser of the Securities may differ
both in kind and in amount from any payments or
distributions which the Purchaser may ultimately receive
with respect to the Shares, and the Sellers shall not
have any recourse to the Purchaser for any deficiency
i. Seller (i) is a sophisticated seller with respect to the
sale of the Shares, (ii) has adequate information
concerning the business and financial condition of the
Company to make an informed decision regarding the sale
of the Shares and (iii) has independently and without
reliance upon Purchaser, and based on such information as
such Seller has deemed appropriate, made its own analysis
and decision to enter into this Agreement. Seller
acknowledges that Purchaser has not given such Seller any
investment advice, credit information, or opinion on
whether the sale of the Shares is prudent.
j. Seller acknowledges that (i) Purchaser currently may
have, and later may come into possession of, information
with respect to the Shares, the Company or any of its
affiliates that is not known to such Seller and that may
be material to a decision to sell the Shares ("Seller
Excluded Information"), (ii) Seller has determined to
sell the Shares notwithstanding its lack of knowledge of
the Seller Excluded Information and (iii) Purchaser shall
have no liability to Seller, and Seller waives and
releases any claims that it might have against Purchaser
whether under applicable securities laws or otherwise,
with respect to the nondisclosure of the Seller Excluded
Information in connection with the transactions
contemplated by this Agreement; provided, however, that
the Seller
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Excluded Information shall not and does not affect the
truth or accuracy of Purchaser's representations or
warranties in this Agreement.
k. No restrictions exist under the Securities Act of 1933,
as amended (the "Act") or otherwise which prevent or
limit the sale of the Shares in accordance with the terms
of this Agreement. Seller has not made any offers to
sell, or solicitations of any offers to buy, all or any
portion of the Shares in violation of any applicable
securities laws.
l. Seller is not a party to, or bound by, any document or
agreement that could materially and adversely affect the
Shares or Purchaser's rights and remedies under this
Agreement.
m. To the best of Seller's knowledge, neither such Seller
nor anyone acting on its behalf has taken any action
which could subject the sale of the Shares to Section 5
of the Act, and to the best of such Seller's knowledge,
the sale of the Shares owned by such Seller to the
Purchaser does not require registration under said Act.
n. Seller is fully aware that, with regard to the sale of
the Shares, the Purchaser is relying upon the truth and
accuracy of these representations and warranties.
3. Purchaser's Representations and Warranties. The Purchaser
makes the following representations and warranties to the Seller in connection
with its purchase of the Shares:
a. The Purchaser has all necessary corporate or other power
and authority enter into this Agreement and to purchase
the Shares;
b. The Purchaser is a sophisticated institutional investor
that is an "accredited investor" within the meaning of
Rule 501 under the Act and has knowledge and experience
in financial and business matters and is capable of
evaluating the merits and risks of its investment in the
Shares and is able to bear the economic risk of such
investment.
c. The Purchaser is acquiring the Shares for its own
account, and not with a present view to, or for sale in
connection with any, distribution thereof, provided that
the disposition of the Purchaser's property shall at all
times be and remain within its control.
d. The Shares were not offered or sold to Purchaser by any
form of general solicitation or general advertising.
e. Purchaser acknowledges that it has conducted, to the
extent it deemed necessary, an independent investigation
of such matters, and has had the opportunity to receive
such information as, in its judgment, is necessary for it
to make an informed investment decision, and has not
relied upon the Sellers for any investigation or
assessment to evaluate the transaction contemplated
hereby.
f. The Purchaser is fully aware that, with regard to the
sale of the Shares, the Seller is relying upon the truth
and accuracy of these representations and warranties.
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4. Indemnification.
a. Seller agrees to indemnify and hold the Purchasers
harmless against and in respect of any and all damages,
losses, liabilities, obligations, costs and expenses
(including reasonable attorney's fees) (collectively
"Damages") that the Purchaser may suffer or incur as a
result of a breach of any of the representations,
warranties or agreements by the Seller set forth herein
(notwithstanding any investigation or verifications made
by or on behalf of the Purchaser).
b. Purchaser agrees to indemnify and hold the Seller
harmless against and in respect of any and all Damages
that the Seller may suffer or incur as a result of a
breach of any of the representations, warranties or
agreements by the Purchaser set forth herein
(notwithstanding any investigation or verifications made
by or on behalf of the Seller).
5. Miscellaneous.
a. Expenses. Each party shall bear the costs and expenses
(including, without limitation, attorney's fees) incurred
by such party in connection with the transactions
contemplated by this Agreement.
b. Further Assurances. From time to time, at the request of
Purchaser and without further consideration, Seller shall
execute and deliver to Purchaser such other documents,
and take such other action, as Purchaser may reasonably
request in order to consummate or evidence more
effectively the transactions contemplated hereby and to
vest in Purchaser good, valid, and marketable title to
the Shares.
c. Entire Agreement. This Agreement, including any other
documents or writings referred to herein or delivered
pursuant hereto, all of which form a part hereof,
contains the entire understanding of the parties with
respect to its subject matter. There are no agreements,
promises, warranties, covenants, or undertakings other
than those expressly set forth herein or therein. This
Agreement merges with and supersedes all prior and
contemporaneous agreements and understandings between the
parties with respect to its subject matter.
d. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware, without reference to its principles of
conflicts of laws.
e. Successors and Assigns. This Agreement shall be binding
upon, and shall inure to the benefit of, the successors,
assigns and heirs of the Purchaser and Seller.
f. Amendment and Waiver. No provision of this Agreement may
be amended or waived or otherwise modified except by a
written instrument signed by the Seller and the Purchaser
or their respective heirs, successors, assigns, or legal
representatives.
g. Severability. If any provision of this Agreement, or the
application thereof, shall for any reason or to any
extent be invalid or unenforceable, the remainder of this
Agreement and application of such provision to other
persons or circumstances
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shall continue in full force and effect and in no way be
affected, impaired or invalidated.
h. No Waiver. The failure of any party to enforce any of the
provisions hereof shall not be construed to be a waiver
of the right of such party thereafter to enforce such
provisions.
i. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an
original as against any party whose signature appears
thereon and all of which together shall constitute one
and the same instrument. This Agreement shall become
binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures
of all of the parties reflected hereon as signatories. In
the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force
and effect as if such facsimile signature page were an
original thereof.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Seller and the Purchaser have executed
this Agreement as of the day and year first above written.
SELLER: PURCHASER:
XXXXXX FAMILY TRUST DATED FEBRUARY 23, 1991 ADGO INVESTMENTS, LLC
By: ______________________ By: ______________________
Name: Name:
Title: Title:
