STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT ("Agreement"), dated as of the 14th day of
March , 2007, is entered by and between Synergy Business Consulting, LLC, a
Delaware limited liability company ("Purchaser") and Xxxxx Xxxxxxxxx and Zara
Wettreich (each a "Seller" and collectively the "Sellers"), all stockholders of
Malex, Inc., a Delaware corporation (the "Company").
WITNESSETH THAT:
WHEREAS, Purchaser desires to purchase from Sellers a total of 8,006,490
(consisting of the following: 7,781,490 from Xxxxx Xxxxxxxxx and 225,000 from
Zara Wettreich) shares of Common Stock of the Company, par value $.001 (the
"Shares") and Sellers desire to sell said Shares to Purchaser on terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and mutual covenants set
forth below, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES
1.1 Purchase of Shares. On the date hereof and subject to the terms and
conditions of this Agreement, the Sellers shall issue, sell, assign, transfer,
and deliver to Purchaser and Purchaser shall purchase, for the purchase price
set forth in Section 2.1 hereof, the 8,006,490 Shares at the closing provided
for in Section 1.4 hereof (the "Closing"), free and clear of all liens, charges,
or encumbrances of whatsoever nature.
1.2 Transfer of Title to the Shares. The sale, assignment, conveyance,
transfer, and delivery by Sellers of the 8,006,490 Shares of Common Stock shall
be made by delivering to Purchaser duly endorsed stock certificates representing
8,006,490 shares of common stock of the Company.
1.3 Purchase Price. Concurrent with the delivery of the Stock
Certificates, Purchaser shall deliver to Sellers the purchase price of Five
Hundred Fifty Thousand Dollars ($550,000) (the "Purchase Price") for the Shares.
The Purchase Price shall be paid in cash to Sellers and divided between the two
shareholders as set forth on Exhibit A.
1.4 Closing Date. The Closing of the transactions provided for in this
Agreement shall take place on or before March 15, 2007 at 000 X. Xxxxxxxx, 0xx
Xxxxx, Xxxxxxx, XX 00000.
1.5 Delivery at Closing. At the Closing
(a) The Sellers shall deliver to the Purchaser stock certificates
representing the Shares. The certificates representing the Shares shall be duly
endorsed for transfer to the Purchaser and accompanied by, (i) if required by
the Company's transfer agent, an opinion of counsel reasonably acceptable to the
Company, the Purchaser and the Company's transfer agent and (ii) stock powers
with medallion signature guarantees or other instruments of transfer duly
executed to the Purchaser; and
(b) The Purchaser shall transfer the aggregate Purchase Price to the
Sellers in the form of certified bank check or wire transfer.
2. RELATED TRANSACTIONS
2.1 Finder. There are no finders with respect to the transaction
contemplated herein.
2.2 Resignation of Transfer Agent. Purchaser and Seller acknowledge and
agree that Stock Transfer Company of America, Inc. will resign as the Company's
transfer agent effective at closing.
3. REPRESENTATIONS AND WARRANTIES BY THE SELLERS AND PURCHASER
3.1 Each Seller hereby represents and warrants to Purchaser as follows:
(a) The Company is a corporation duly organized, validly existing, and in
good standing under the laws of the state of Delaware, and is qualified in no
other state.
(b) This Agreement and any other agreement executed by Sellers in
connection herewith have been duly executed and delivered by them and constitute
the valid, binding and enforceable obligation of Sellers, subject to the
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and rights of stockholders.
(c) The authorized capital stock of the Company consists of 75,000,000
shares of common stock, 8,416,000 of which are validly issued and outstanding,
fully paid and non-assessable. The Shares have been validly issued, are fully
paid and non-assessable, and are owned beneficially and of record by Sellers
free and clear of all liens, pledges, encumbrances, security agreements,
options, claims, charges and restrictions of any nature whatsoever, except any
restrictions under applicable securities laws, and Sellers have not previously
entered into any agreement or commitment for the sale of all or part of the
Shares or otherwise conveyed or encumbered Sellers' interest (voting or
otherwise) with respect to the Shares. The Sellers have the unqualified right to
sell, assign, and deliver the Shares, and, upon consummation of the transactions
contemplated by this Agreement, the Purchaser will acquire good and valid title
to the Shares, free and clear of all liens, claims, options, charges, and
encumbrances of whatsoever nature. The Purchaser acknowledges that these Shares
being acquired from the Sellers are restricted securities as that term is
defined in Rule 144 of the Securities Act of 1933, as amended (the "Act").
(d) Sellers are not a party to or bound by any unexpired, undischarged or
unsatisfied written or oral contract, agreement, indenture, mortgage, debenture,
note or other instrument under the terms of which performance by Purchaser
according to the terms of this Agreement will be a default or an event of
acceleration, or grounds for termination, or whereby timely performance by
Purchaser according to the terms of this Agreement may be prohibited, prevented
or delayed.
(e) Sellers have full power and authority to sell and transfer the Shares
to Purchaser without obtaining the waiver, consent, order or approval of (i) any
state or federal governmental authority or (ii) any third party or other person
including, but not limited to, other stockholders of the Company.
(f) The Company has the corporate power and authority to carry on its
business as presently conducted.
(g) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will constitute a violation
or default under any term or provision of the Certificate of Incorporation or
By-Laws of the Company, or of any contract, commitment, indenture, other
agreement or restriction of any kind or character to which the Company or any of
its Sellers is a party to or by which the Company or any of the Sellers is
bound.
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(h) The Certificates representing the Shares (other than the Shares
delivered by Seller) delivered pursuant to this Agreement are owned by
affiliates of the Company and as such, certain trading restrictions imposed
under Rule 144 of the Act promulgated under the Act are applicable to the
Shares.
(i) There is no action, suit, investigation, audit or proceeding pending
against, or to the best knowledge of the Sellers and Company threatened against
or affecting, the Company or any of its assets or properties before any court or
arbitrator or any governmental body, agency or official. The Company is not
subject to any outstanding judgment, order or decree.
(j) The Company has filed all reports required to be filed by it under the
Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including pursuant to Section 13(a) or 15(d) of the Exchange Act, as a public
reporting company (the foregoing materials being collectively referred to herein
as "SEC Reports"), including but not limited to the quarterly report on Form
10-QSB for the fiscal quarter ended January 31, 2007 and the quarterly report on
Form 10-QSB for the period ended October 31, 2006. As of their respective dates,
the SEC Reports complied in all material respects with the requirements of the
Securities Act and the Exchange Act and the rules and regulations of the
Securities and Exchange Commission (the "Commission") promulgated thereunder,
none of the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations
of the Commission with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
("GAAP"), except as may be otherwise specified in such financial statements or
the notes thereto, and fairly present in all material respects the financial
position of the Company and its consolidated subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
(k) Since the date of the filing of the quarterly report on Form 10-QSB
for the period ended January 31, 2007, except as specifically disclosed in the
SEC reports, the Company has not incurred any liabilities (contingent or
otherwise).
3.2 Purchaser represents and warrants to Sellers as follows:
(a) The undersigned Purchaser understands that the Shares have not been
registered with the United States Securities and Exchange Commission or any
state or foreign securities agencies.
(b) Purchaser is a Delaware limited liability company and has the
requisite competence and authority to execute and deliver this Agreement and any
other agreements and undertakings referenced herein, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
and any other agreements executed by Purchaser in connection herewith have been
duly executed and delivered by it and constitute the valid, binding and
enforceable obligation of Purchaser, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and the rights
of stockholders.
(c) Purchaser is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its interests.
Purchaser has the financial means to, and acknowledges that it must bear the
economic risk of this investment indefinitely, unless the Shares are
subsequently registered pursuant to the Act, or an exemption from registration
is available. Purchaser understands that the Company has no present intention of
registering the Shares.
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(d) Purchaser is not an underwriter and is acquiring the Sellers' Shares
for Purchaser's own account for investment only and not with a view towards
distribution thereof within the meaning of the Act, the state securities laws
and any other applicable laws.
(e) Purchaser has the capacity to protect its interests in connection with
the transactions contemplated hereby as a result of its business or financial
expertise.
(f) To the extent that any federal, and/or state securities laws shall
require, the Purchaser hereby agrees that any Shares acquired pursuant to this
Agreement shall be without preference as to assets.
(g) Neither the Company nor the Sellers are under an obligation to
register or seek an exemption under any federal, state or foreign securities
acts for any stock of the Company or to cause or permit such stock to be
transferred in the absence of any registration or exemption and that the
Purchaser herein must hold such stock indefinitely unless such stock is
subsequently registered under any federal and/or state securities acts or an
exemption from registration is available.
(h) The Purchaser has had the opportunity to ask questions of the Company
and the Sellers and receive additional information from the Company and the
Sellers to the extent that the Company and the Sellers possessed such
information or could acquire it without unreasonable effort or expense necessary
to evaluate the merits and risks of any investment in the Company. Further, the
Purchaser has been given or has had access to: (1) all material books and
records of the Company; (2) all material contracts and documents relating to the
Company and this proposed transaction; and (3) an opportunity to question the
Sellers and the appropriate executive officers of the Company.
(i) Purchaser will timely file all reports required by it under the Act,
Exchange Act and any state securities laws.
4. COVENANTS OF SELLERS
4.1 Liabilities of Company. As of the Closing Date, other than routine
state franchise or similar taxes, stock transfer agent fees and filing fees
under the Exchange Act, Sellers agree that there shall be no liabilities or
debts of the Company of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise, and there is no existing
condition, situation or set of circumstances which could reasonably be expected
to result in such a liability or debt. In any event, any debts or liabilities
incurred by the Company prior to the Closing (and not accrued as of the Closing
Date) shall be paid from the proceeds from the sale of the Shares to Purchaser.
Sellers shall be jointly and severally liable for the payment of such
liabilities.
5. CONDITIONS TO CLOSING
5.1 Transfer Agent. Sellers shall cause the transfer agent (i.e. Stock
Transfer Company of America, Inc.) to recognize Purchaser as the owner of the
Shares and to provide Purchaser with a current list of all shareholders of the
Company.
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6. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
6.1 Survival of Representations. All representations, warranties, and
agreements made by any party in this Agreement or pursuant hereto shall survive
the execution and delivery hereof and any investigation at any time made by or
on behalf of any party.
6.2 Indemnification.
(a) The Sellers agree to indemnify the Purchaser, and hold him harmless
from and in respect of any assessment, loss, damage, liability, cost and expense
(including, without limitation, interest, penalties, and reasonable attorneys'
fees) in excess of $1,000.00 in the aggregate, imposed upon or incurred by the
Purchaser resulting from a breach of any agreement, representation, or warranty
of the Sellers. Assertion by the Purchaser to its right to indemnification under
this Section 6.2 shall not preclude assertion by the Purchaser of any other
rights or the seeking of any other remedies against the Seller.
(b) The Purchaser agrees to indemnify the Seller, and hold him harmless
from and in respect of any assessment, loss, damage, liability, cost and expense
(including, without limitation, interest, penalties, and reasonable attorneys'
fees) in excess of $1,000.00 in the aggregate, imposed upon or incurred by the
Seller resulting from a breach of any agreement, representation, or warranty of
the Purchaser. Assertion by the Seller to its right to indemnification under
this Section 6.2 shall not preclude assertion by the Seller of any other rights
or the seeking of any other remedies against the Purchaser.
7. MISCELLANEOUS
7.1 Expenses. All fees and expenses incurred by the Purchaser and Sellers
in connection with the transactions contemplated by this Agreement shall be
borne by the party incurring the same.
7.2 Further Assurances. From time to time, at the Purchaser's request and
without further consideration, the Sellers, at the Purchaser's expense, will
execute and transfer such documents and will take such action as the Purchaser
may reasonably request in order to effectively consummate the transactions
contemplated herein
7.3 Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of, and shall be enforceable
by the prospective heirs, beneficiaries, representatives, successors and assigns
of the parties hereto.
7.4 Prior Agreements; Amendments. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the subject
matter hereof. This Agreement shall not be amended except by a writing signed by
both parties or their respective successors or assigns.
7.5 Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretations of this Agreement.
7.6 Governing Law. The situs of this Agreement is Chicago, Illinois, and
for all purposes this Agreement will be governed exclusively by and construed
and enforced in accordance with the laws and Courts prevailing in the state of
Illinois.
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7.7 Notices. All notices, requests, demands, and other communication
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed (registered or certified mail, postage prepaid, return
receipt requested) as follows:
If to the Sellers: Xxxxx Xxxxxxxxx
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
If to the Purchaser: Synergy Business Consulting, LLC
Attn: Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
7.8 Effect. In the event any portion of this Agreement is deemed to be
null and void under any state, provincial, or federal law, all other portions
and provisions not deemed void or voidable shall be given full force and effect.
7.9 Counterparts. This Agreement may be executed in one or more
counterparts and by transmission of a facsimile or digital image containing the
signature of an authorized person, each of which shall be deemed and accepted as
an original, and all of which together shall constitute a single instrument.
Each party represents and warrants that the person executing on behalf of such
party has been duly authorized to execute this Agreement.
*******signature page follows********
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first written above.
SELLERS: PURCHASER:
/s/ Xxxxx Xxxxxxxxx Synergy Business Consulting, LLC
---------------------------------
Xxxxx Xxxxxxxxx
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Its:Manager
/s/ Zara Wettreich ------------------------------
---------------------------------
Zara Wettreich
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Exhibit A
--------------------------------- ----------------------------- -------------------------- ---------------------------
Shareholder Number of Shares Share Certificate Numbers Price
--------------------------------- ----------------------------- -------------------------- ---------------------------
Xxxxx Xxxxxxxxx 7,781,490 $
--------------------------------- ----------------------------- -------------------------- ---------------------------
Zara Wettreich 225,000
--------------------------------- ----------------------------- -------------------------- ---------------------------
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