EXHIBIT 3.1
CONTRACT FOR PRIVATE SALE OF STOCK
This CONTRACT FOR PRIVATE SALE OF STOCK (the "AGREEMENT"), dated as of
November 30, 2000, by and between FUTURE ARTS, LTD. ("BUYER"), whose address is
29 Kehicat Sofia, Tel Aviv, Israel, BP SOFTWARE, LTD. ("SELLER"), a Texas
limited partnership, having an address of 00000 Xxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, with reference to the following facts:
R E C I T A L S:
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WHEREAS, Seller is currently the owner of eight million two hundred
thirty-one thousand fifty-four (8,231,054) shares (the "SHARES") of the common
stock of recordLab Corporation, a Washington corporation ("RECORDLAB"); and
WHEREAS, Buyer desires to privately purchase four million (4,000,000)
of the Shares ("SUBJECT SHARES") for the sum of Eighty Thousand Dollars
($80,000.00); and
WHEREAS, subject to the terms and conditions of this Stock Purchase
Contract and the terms and conditions set forth in related written agreements of
even date herewith executed by and between Seller and Buyer, Seller has agreed
to sell the Subject Shares to Buyer for the price Buyer has offered.
NOW THEREFORE, in consideration of the mutual agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
SALE OF STOCK
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ARTICLE 1.1 PURCHASE AND SALE. Upon execution of this Agreement, Seller
will sell and deliver to Buyer the Subject Shares, which are represented by
stock certificate numbers 6146, 6147, 6148, 6149, collectively the "SUBJECT
SHARES CERTIFICATE").
ARTICLE 1.2 PURCHASE PRICE. The Purchase Price for the Subject Shares
shall be Eighty Thousand Dollars ($80,000.00) (the "PURCHASE PRICE"), and shall
be paid by Buyer to Seller pursuant to the terms of that certain Secured
Non-recourse Promissory Note of even date herewith (the "NOTE") executed by
Buyer and Seller concurrently herewith, and the terms of that certain Stock
Pledge and Security Agreement of even date herewith (the "PLEDGE") executed by
Buyer and Seller concurrently herewith.
1.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
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ARTICLE 2.1 DUE ORGANIZATION: AUTHORIZATION: DUE EXECUTION. Seller is a
limited partnership, duly organized and validly existing under the laws of the
State of Texas. Seller has full power and authority to execute and deliver this
Stock Purchase Contract and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Stock Purchase Contract
has been duly executed and delivered by Seller and assuming the due execution
and delivery hereof by Buyer, this Stock Purchase Contract constitutes the
legal, valid and binding obligation of Seller enforceable against Seller in
accordance with its terms except as the enforcement thereof may be limited by
bankruptcy, insolvency, moratorium (whether general or specific) or other
similar laws now or hereafter in effect relating to creditors rights generally
or by general equitable principles.
ARTICLE 2.2 OWNERSHIP OF COMMON STOCK. The Seller owns beneficially and
of record all of the Subject Shares. Upon execution by Buyer of this Stock
Purchase Contract, the Note and the Pledge, Seller will deliver to Buyer good
title to the Subject Shares, free and clear of any liens other than any
restrictions imposed by federal and state securities laws.
ARTICLE 2.3 BROKERS AND FINDERS. Seller has not employed, and is not
subject to the valid claim of, any broker, finder, consultant or other
intermediary in connection with the transactions contemplated by this Stock
Purchase Contract who might be entitled to a fee or commission in connection
with such transactions.
ARTICLE 2.4 NO VIOLATION OR CONFLICT. The execution, delivery and
performance of this Stock Purchase Contract has either been consented to by all
parties whose consent is required or will not require the consent of any party
to any contract, agreement or other instrument or obligation to which Seller is
a party; nor conflict with, result in any violation or breach of, any of the
terms, conditions or provisions of any contract, agreement or other instrument
or obligation to which Seller is a party; nor violate or conflict with any other
material restriction to which Seller is subject, that would individually or in
the aggregate, have a material adverse effect on Seller's ability to consummate
the Stock Purchase Contract.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer hereby represents and warrants as follows:
ARTICLE 3.1 DUE ORGANIZATION: AUTHORIZATION: DUE EXECUTION. Buyer is a
duly organized and validly existing under the laws of the State of Israel. Buyer
has full power and authority to execute and deliver the Stock Purchase Contract
and to perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Stock Purchase Contract has been duly executed and
delivered by Buyer and, assuming the due execution and delivery hereof by
Seller, this Stock Purchase Contract constitutes the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms
except as the enforcement thereof may be limited by insolvency, bankruptcy,
moratorium (whether general or
2.
specific) or other similar laws now or hereafter in effect relating to
creditors' rights generally or by general equitable principles.
ARTICLE 3.2 NO VIOLATION OR CONFLICT. The execution, delivery and
performance of this Stock Purchase Contract will not (i) require the consent of
any party to, or conflict with, result in any violation or breach of, any of the
terms, conditions or provisions of any contract, agreement or other instrument
or obligation to which Buyer is a party; or (ii) violate or conflict with any
other material restriction to which Buyer is subject, that would individually or
in the aggregate, have a material adverse effect on Buyer's ability to
consummate this Stock Purchase Contract.
ARTICLE 3.3 BROKERS AND FINDERs. Buyer has not employed, and is not
subject to the valid claim of, any broker, finder, consultant or other
intermediary in connection with the transactions contemplated by this Stock
Purchase Contract who might be entitled to a fee or commission in connection
with such transactions.
ARTICLE 4
MISCELLANEOUS
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ARTICLE 4.1 MISCELLANEOUS.
a. PREPARATION OF STOCK PURCHASE CONTRACT. It is acknowledged by each
party that such party either had separate and independent advice of counsel or
the opportunity to avail itself, himself or herself of same. In light of these
facts it is acknowledged that no party shall be construed to be solely
responsible for the drafting hereof, and therefore any ambiguity shall not be
construed against any party as the alleged draftsman of this Stock Purchase
Contract.
b. COOPERATION. Each party agrees, without further consideration, to
cooperate and diligently perform any further acts, deeds and things and to
execute and deliver any documents that may from time to time be reasonably
necessary or otherwise reasonably required to consummate, evidence, confirm
and/or carry out the intent and provisions of this Stock Purchase Contract, all
without undue delay or expense.
c. SURVIVAL OF WARRANTIES. The warranties, representations and
covenants of each of the parties to this Stock Purchase contract, shall survive
the execution of this Stock Purchase Contract and the consummation of the Stock
Purchase.
d. Interpretation.
(i) ENTIRE AGREEMENT/NO COLLATERAL REPRESENTATIONS. Each party
expressly acknowledges and agrees that this Stock Purchase Contract: (1) is the
final, complete and exclusive statement of the agreement of the parties with
respect to the subject matter hereof; (2) supersedes any prior or
contemporaneous agreements, promises, assurances, guarantees, representations,
understandings, conduct, proposals, conditions, commitments, acts, course of
dealing, warranties, interpretations or terms of any kind, oral or written
(collectively and severally, the "PRIOR AGREEMENTS"), such that any such prior
agreements are of no force or effect
3.
except as expressly set forth herein; and (3) may not be varied, supplemented or
contradicted by evidence of Prior Agreements, or by evidence of subsequent oral
agreements. Any agreement hereafter made shall be ineffective to modify,
supplement or discharge the terms of this Stock Purchase Contract, in whole or
in part, unless such agreement is in writing and signed by the party against
whom enforcement of the modification or supplement is sought.
(ii) WAIVER. No breach of any agreement or provision herein
contained, or of any obligation under this Stock Purchase Contract, maybe
waived, nor shall any extension of time for performance of any obligations or
acts be deemed an extension of time for performance of any other obligations or
acts contained herein, except by written instrument signed by the party to be
charged or as otherwise expressly authorized herein. No waiver of any breach of
any agreement or provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof, or a waiver or relinquishment of any
other agreement or provision or right or power herein contained.
(iii) REMEDIES CUMULATIVE. The remedies of each party under
this Stock Purchase Contract are cumulative and shall not exclude any other
remedies to which such party may be lawfully entitled.
(iv) SEVERABILITY. If any term or provision of this Stock
Purchase Contract or the application thereof to any person or circumstance
shall, to any extent, be determined to be invalid, illegal or unenforceable
under present or future laws effective during the term of this Stock Purchase
Contract, then and, in that event: (A) the performance of the offending term or
provision (but only to the extent its application is invalid, illegal or
unenforceable) shall be excused as if it had never been incorporated into this
Stock Purchase Contract, and, in lieu of such excused provision, there shall be
added a provision as similar in terms and amount to such excused provision as
may be possible and be legal, valid and enforceable, and (B) the remaining part
of this Stock Purchase Contract (including the application of the offending term
or provision to persons or circumstances other than those as to which it is held
invalid, illegal or unenforceable) shall not be affected thereby and shall
continue in full force and effect to the fullest extent provided by law.
ARTICLE 4.2 NO RELIANCE UPON PRIOR REPRESENTATION. Each party
acknowledges that no other party has made any oral representation or promise
which would induce them prior to executing this Stock Purchase Contract to
change its position to its detriment, partially perform, or part with value in
reliance upon such representation or promise: each party acknowledges that it
has taken such action at its own risk; and each party represents that it has not
so changed its position, performed or parted with value prior to the time of the
execution of this Stock Purchase Contract.
ARTICLE 4.3 HEADINGS: REFERENCES: INCORPORATION: GENDER. The headings
used in this Stock Purchase Contract are for convenience and reference purposes
only, and shall not be used in construing or interpreting the scope or intent of
this Stock Purchase Contract or any provision hereof. References to this Stock
Purchase Contract shall include all amendments or renewals thereof. All
cross-references in this Stock Purchase Contract, unless specifically directed
to another agreement or document, shall be construed only to refer to provisions
within
4.
this Stock Purchase Contract, and shall not be construed to be referenced to the
overall transaction or to any other agreement or document. Any exhibit
referenced in this Stock Purchase Contract shall be construed to be incorporated
in this Stock Purchase Contract. As used in this Stock Purchase Contract, each
gender shall be deemed to include the other gender, including neutral genders or
genders appropriate for entities, if applicable, and the singular shall be
deemed to include the plural, and vice versa, as the context requires.
ARTICLE 4.4 ENFORCEMENT.
a. APPLICABLE LAW. This Stock Purchase Contract and the rights and
remedies of each party arising out of or relating to this Stock Purchase
Contract (including, without limitation, equitable remedies) shall be solely
governed by, interpreted under, and construed and enforced in accordance with
the laws (without regard to the conflicts of law principles thereof) of the
State of California, as if this Stock Purchase Contract were made, and as if its
obligations are to be performed, wholly within the State of California.
b. ARBITRATION. All disputes, controversies, or differences which may
arise between the parties, out of or in relation to or in connection with this
Agreement, or for the breach thereof, which cannot be resolved between or among
the parties shall be finally settled by binding arbitration before the AMERICAN
ARBITRATION ASSOCIATION, provided however, that the parties hereto reserve their
rights to seek and obtain injunctive or other equitable relief from a court of
competent jurisdiction, without waiving the right to compel such arbitration.
c. ATTORNEYS' FEES AND COSTS. If any party institutes or should the
parties otherwise become a party to any action or proceeding based upon or
arising out of this Stock Purchase Contract including, without limitation, to
enforce or interpret this Stock Purchase Contract or any provision hereof, or
for damages by reason of any alleged breach of this Stock Purchase Contract or
any provision hereof or for a declaration of rights in connection herewith, or
for any other relief, including equitable relief, in connection herewith, the
prevailing party in any such action or proceeding, whether or not such action or
proceeding proceeds to final judgement or determination, shall be entitled to
receive from the non-prevailing party all costs and expenses of prosecuting or
defending the action or proceeding, as the case may be, including, without
limitation, reasonable attorneys' fees.
ARTICLE 4.5 ASSIGNABILITY. This Stock Purchase Contract shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assignees; provided, however, that no party hereto will assign
its rights or delegate its obligations under this Stock Purchase Contract
without the express prior written consent of the other party, which consent
shall not be unreasonably withheld.
ARTICLE 4.6 NOTICES. Unless otherwise specifically provided in this
Stock Purchase Contract, all notices, demands, requests, consents, approvals or
other communications (collectively and severally called "NOTICES") required or
permitted to be given hereunder, or which are given with respect to this Stock
Purchase Contract, shall be in writing, and shall be given by: (a) personal
delivery (which form of Notice shall be deemed to have been given upon
delivery); (b) by telegraph or by private airborne/overnight delivery service
(which forms of
5.
Notice shall he deemed to have been given upon confirmed delivery by the
delivery agency); (c) by electronic or facsimile or telephonic transmission,
provided the receiving party has a compatible device or confirms receipt thereof
(which forms of Notice shall be deemed delivered upon confirmed transmission or
confirmation of receipt); or (d) by mailing in the UNITED STATES POSTAL SERVICE
by registered or certified mail, return receipt requested, postage prepaid
(which forms of Notice shall be deemed to have been given upon the fifth (5th)
business day following the date mailed). Each party, and their respective
counsel, hereby agree that if Notice is to be given hereunder by such party's
counsel, such counsel may communicate directly with all principals, as required
to comply with the foregoing notice provisions. Notices shall be addressed to
the address hereinabove set forth in the introductory paragraph of this Stock
Purchase Contract, or to such other address as the receiving party shall have
specified most recently by like Notice, with a copy to the other parties hereto.
Any Notice given to the estate of a party shall be sufficient if addressed to
the party as provided in this subparagraph.
IN WITNESS WHEREOF, the parties have duly executed this Stock Purchase
Contract as of the date first above written.
BUYER
FUTURE ARTS, LTD.
By: /S/ SIROMMACHOFF R.
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Name: Sirommachoff R.
Title: President
SELLER
BP SOFTWARE, LTD., a Texas limited partnership
By BP Software, L.L.C., its general partner
By: /S/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Its Managing Member
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