STOCK PURCHASE AGREEMENT
EXHIBIT
2.3
This
STOCK PURCHASE AGREEMENT (this “Agreement”)
between WebDigs, LLC, a Minnesota limited liability company (the “Buyer”),
and
Xxxxxx Xxxxx, a Minnesota resident, (the “Seller”),
shall
be effective as of October 22, 2007 (the “Effective
Date”).
The
Buyer and the Seller are referred to individually as a “Party”
and
collectively as the “Parties.”
RECITALS
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A.
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The
Seller owns all of the issued and outstanding shares (the “Marquest
Shares”),
of Marquest Financial, Inc., a Minnesota corporation (the “Company”).
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B.
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The
Buyer will purchase from the Seller, and the Seller will sell to
the
Buyer, all of the issued and outstanding Marquest Shares, on the
terms and
subject to the conditions of this
Agreement.
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AGREEMENT
In
consideration of the above recitals and the promises set forth in this
Agreement, the Parties agree as follows:
| 1. |
Purchase
and Sale of the Marquest Shares.
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1.1
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Basic
Transaction.
On the terms and subject to the conditions of this Agreement, the
Buyer
agrees to purchase and accept delivery from the Seller, and the Seller
agrees to sell, assign, transfer and deliver to the Buyer, the Marquest
Shares, free and clear of all restrictions on transfer and security
interests of any kind or nature, effective as of the Effective
Date.
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1.2
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Purchase
Price.
In exchange for the Marquest Shares, Buyer will issue to Seller 64,000
units of Buyer (the “WebDigs
Units”),
which are common units of membership interest as described in the
Buyer’s
Member Control Agreement dated as of May 1, 2007 (the “Member
Control Agreement”).
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1.3
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Seller’s
Deliveries.
The Seller has made the following deliveries in connection with this
Agreement, duly executed and properly acknowledged, as
appropriate:
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(a)
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certificates
representing the Marquest Shares, if any, endorsed in blank or accompanied
by duly executed assignment documents, along with duly executed spousal
consents, as necessary;
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(b)
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the
written resignations of all of the incumbent officers, directors
or
persons holding similar positions of the Company;
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(c)
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a
signature page to the Member Control Agreement executed by Seller;
and
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(d)
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all
necessary third party consents, authorizations and approvals;
and
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(e)
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the
original minute book and stock records, all accounting and tax records,
and certified Articles of Incorporation and Bylaws of the
Company.
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1.4
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Buyer’s
Deliveries.
The Buyer has made the following deliveries in connection with this
Agreement, duly executed and properly acknowledged, as appropriate:
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(a)
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Member
Control Agreement confirming Seller’s ownership of the WebDigs Units;
and
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(b)
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copies
of the Articles of Organization and Bylaws of Buyer.
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| 2. |
Representations
and Warranties Concerning the Transaction.
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2.1
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Representations
and Warranties of the Seller.
The Seller represents and warrants to the Buyer that the statements
contained in this Section 2.1 are correct and complete as of the
date of
this Agreement, except as set forth in the disclosure schedule of
the
Seller (the “Seller’s
Disclosure Schedule”)
attached to this Agreement. The Seller’s Disclosure Schedule will be
arranged in paragraphs corresponding to the sections contained in
this
Section 2.1.
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(a)
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Authorization
of Transaction.
The Seller has the full power and authority to execute and deliver
this
Agreement and any ancillary documents to which the Seller is a party
and
to perform his obligations thereunder. This Agreement and any ancillary
documents to which the Seller is a party constitute the valid and
legally
binding obligation of the Seller, enforceable in accordance with
their
terms.
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(b)
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Noncontravention.
Neither the execution and the delivery of this Agreement or any ancillary
documents to which the Seller is a party, nor the consummation of
the
contemplated transactions, will: (i) violate any law, order or
regulation to which the Seller is subject; (ii) conflict with, result
in a
breach of, constitute a default under, result in the acceleration
of,
create in any party the right to accelerate, terminate, modify or
cancel,
or require any notice under any agreement, contract, lease, license,
instrument or other arrangement to which the Seller is a party or
is
bound, or to which any of the Seller’s assets is subject; or (iii) result
in the imposition or creation of any restrictions on transfer or
security
interests of any kind or nature in the Marquest
Shares.
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(c)
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Brokers’
Fees.
The Seller has no liability or obligation to pay any fees or commissions
to any broker, finder or agent with respect to the transactions
contemplated by this Agreement for which the Buyer or the Company
could
become liable or obligated.
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2
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(d)
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Marquest
Shares.
The Seller
holds of record and owns beneficially all of the Marquest Shares,
free and
clear of any restrictions on transfer, security interests, options,
warrants, purchase rights, contracts, commitments, equities, claims
and
demands. The Seller is not a party to any option, warrant, purchase
right
or other contract or commitment that could require the Seller to
sell,
transfer or otherwise dispose of the Marquest Shares (other than
this
Agreement). The Seller is not a party to any voting trust, proxy
or other
agreement or understanding with respect to the voting of the Marquest
Shares. There are no outstanding powers of attorney executed by the
Seller
that would affect the Seller’s ability to transfer the Marquest Shares to
the Buyer. The Seller is not now nor has he been a party or is or
has been
threatened to be made a party, to any action, suit proceeding, hearing
or
investigation of, in or before any court or governmental authority
that
would affect the Seller’s ability to transfer the Marquest Shares to the
Buyer.
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(e)
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Intellectual
Property.
The Seller has not developed any of the intellectual
property
of
the Company on
the Seller’s own time or without the use of the Company’s equipment,
supplies, facilities or trade secret
information.
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2.2
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Representations
and Warranties of the Buyer.
The Buyer represents and warrants to the Seller that the statements
contained in this Section 2.2 are correct and complete as of the
date of
this Agreement.
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(a)
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Organization
of the Buyer.
The Buyer is a limited liability company, duly organized, validly
existing
and in good standing under the laws of the State of
Minnesota.
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(b)
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Authorization
of Transaction.
The Buyer has the full power and authority to execute and deliver
this
Agreement and any ancillary documents to which the Buyer is a party
and to
perform its obligations thereunder. This Agreement and any ancillary
documents to which the Buyer is a party constitute the valid and
legally
binding obligation of the Buyer, enforceable in accordance with their
terms.
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(c)
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Noncontravention.
Neither the execution and the delivery of this Agreement or any ancillary
documents to which the Buyer is a party, nor the consummation of
the
contemplated transactions, will: (i) violate any law, order or regulation
to which the Buyer is subject; (ii) violate any provision of the
articles,
bylaws or other organizational documents of the Buyer; or (iii) conflict
with, result in a breach of, constitute a default under, result in
the
acceleration of, create in any party the right to accelerate, terminate,
modify or cancel, or require any notice under any agreement, contract,
lease, license, instrument or other arrangement to which the Buyer
is a
party or is bound.
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(d)
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Brokers’
Fees.
The Buyer has no liability to pay any fees or commissions to any
broker,
finder or agent with respect to the transactions contemplated by
this
Agreement for which the Seller could become liable or
obligated.
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3
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(e)
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Investment.
The Buyer is not acquiring the Marquest Shares with a view to or
for the
sale in connection with any distribution of such Marquest Shares
within
the meaning of the Securities Act of 1933, as
amended.
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3.
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Representations
and Warranties Concerning the Company.
The Seller represents and warrants to the Buyer that the statements
contained in this Section 3 are correct and complete as of the date
of
this Agreement except as set forth in the Seller’s Disclosure Schedule.
The Seller’s Disclosure Schedule will be arranged in paragraphs
corresponding to the sections contained in this Section
3.
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3.1
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Organization,
Qualification and Power.
The Company is a corporate duly organized, validly existing and in
good
standing under the laws of the State of Minnesota. The Company is
in good
standing under the laws of each jurisdiction where foreign qualification
is required. The Company has full corporate power and authority and
has
all permits necessary to carry on the businesses in which it is engaged
and in which it presently proposes to engage, and to own and use
the
property owned and used by it. The Seller has delivered to the Buyer
correct and complete copies of the charter, bylaws or other governing
documents and the minute books, any certificate books and other record
books of the Company. The Company is not in violation of its charter,
bylaws or other governing
documents.
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3.2
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Capitalization.
All issued and outstanding units of the Company have been duly authorized,
validly issued, fully paid and nonassessable, and are held of record
by
the Seller. There are no outstanding or authorized options, warrants
or
other contracts or commitments that could require the Company to
issue any
capital stock. The Company does not have any outstanding or authorized
appreciation, phantom interest, profit participation or similar rights.
The Company does not have any voting trusts, proxies or other agreements
or understandings with respect to the any units of the
Company.
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3.3
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Noncontravention;
Consents and Approvals.
Neither the execution and the delivery of this Agreement or any ancillary
documents, nor the consummation of the contemplated transactions,
will:
(a) violate any law, order or regulation to which the Company is
subject;
(b) violate any provision of the articles, bylaws or other organizational
documents of the Company; (c) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create
in any
party the right to accelerate, terminate, modify or cancel, or require
any
notice or consent under any agreement, contract, lease, license,
instrument or other arrangement to which the Company is a party or
by
which it is bound, or to which any of its assets is subject (or result
in
the imposition of any security interest upon its assets); or (d)
result in
the cancellation, forfeiture, revocation, suspension or adverse
modification of any permit owned or held by the Company. The Company
is
not required to give any notice to, make any filing with, or obtain
any
authorization, consent or approval of any person, entity or governmental
authority for the Parties to consummate the transactions contemplated
by
this Agreement.
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4
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3.4
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Brokers’
Fees.
The Company has no liability to pay any fees or commissions to any
broker,
finder or agent with respect to the transactions contemplated by
this
Agreement.
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3.5
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Title
to Assets.
The Company has good and marketable title to all properties or assets
(tangible or intangible) necessary for the Company to conduct or
used by
the Company in its business as presently conducted and holds such
properties and assets free and clear of all security interests, liens
and
other restrictions on transfer. Each such tangible asset is free
from
defects (patent and latent), is in good operating condition and repair
(subject to normal wear and tear) and is suitable for the purposes
for
which it presently is used.
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3.6
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Subsidiaries.
The Company has no subsidiaries and does not otherwise control, own
directly or indirectly, or have any equity participation directly
or
indirectly in any corporation, limited liability company, partnership,
joint venture, trust or other business
association.
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3.7
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Financial
Statements.
The Seller has delivered to the Buyer copies of the Company’s financial
statements for the fiscal years ended 2005 and 2006 and the period
ended
June 30, 2007. The
financial statements are true, complete and correct and fairly present
the
financial condition and assets and liabilities (whether accrued,
absolute,
contingent or otherwise) of the Company as of the dates indicated,
and the
results of operations of the Company for the periods then
ended.
The
Company has no liabilities except as set forth on the financial
statements. Since June 30, 2007, there have been no material changes
in
the assets, business, financial condition, operations, results of
operations or future prospects of the Company.
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3.8
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Compliance
with Laws.
The Company has been and is in compliance with all federal, state
and
local laws and regulations, including without limitation all
environmental, health and safety laws, administrative orders,
determinations and regulations concerning public health and safety,
workers’ health and safety, and pollution or protection of the
environment.
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3.9
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Tax
Matters.
The Company has filed all tax returns and statements required to
be filed
for periods ending on or before the Effective Date (other than with
respect to fiscal/calendar years ended December 31, 2005 and 2006)
and has
paid all taxes due pursuant to such returns and statements, and pursuant
to any assessment which the Company has received. No extension of
the time
for filing any return or statement is presently in effect. All tax
returns
filed by the Company with respect to periods ending on or before
the
Effective Date are true and
correct.
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3.10
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Real
Property.
The Company does not currently own and has never owned any real property.
The Company has not leased or subleased any real property.
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5
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3.11
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Intellectual
Property.
All of the Company’s intellectual property is set forth on Schedule 3.11
of the Seller’s Disclosure Schedule. The Company owns or has the right to
use all such intellectual property which is necessary for the operation
of
the business of the Company as presently conducted and as presently
proposed to be conducted. Each such item of intellectual property
owned or
used by the Company immediately before the Effective Date will be
owned or
available for use by the Company on identical terms and conditions
immediately after the Effective Date. The Company has taken all necessary
action to maintain and protect each item of intellectual property
that it
owns or uses.
The Company has not interfered
with, infringed upon, misappropriated or otherwise come into conflict
with
any intellectual property rights of any third party.
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3.12
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Contracts
and Permits.
Section 3.12 of the Seller’s Disclosure Schedule sets forth all of the
permits, contracts or other agreements to which the Company is a
party or
by which it is bound. The Company has provided the Buyer with correct
and
complete copies of each listed permit, contract or agreement. Each
such
permit, contract or agreement is valid and binding on the Company
and is
in full force and effect. The Company is in compliance with all of
its
obligations with respect to such permit, contract or agreement. The
Company is not aware of any event that allows or, upon the giving
of
notice or the lapse of time, would allow, revocation or termination
of any
such permit, contracts or agreement.
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3.13
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Accounts
Receivable. All
notes and accounts receivable of the Company are reflected properly
on its
books and records, are valid receivables subject to no setoffs or
counterclaims, are current and collectible, and will be collected
in
accordance with their terms at their recorded
amounts
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3.14
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Powers
of Attorney.
There are no outstanding powers of attorney executed on behalf of
the
Company.
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3.15
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Customers.
No customer, supplier or independent contractor of the Company has
indicated that it will stop or decrease the rate of business done
with the
Company or with the Buyer after the Effective
Date.
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3.16
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Litigation.
There are no pending or threatened claims, actions, suits, proceedings
or
investigations affecting the Company. The Company is not operating
under
or subject to, or in default with respect to, any order, writ, injunction
or decree of any court or governmental
agency.
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3.17
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Employee
Benefits.
The Company has no pension, profit sharing plans or employee benefit
plans. All the accrued obligations of the Company, whether arising
by
operation of law, by contract or by past custom, for payments by
it to
trust or other funds or any governmental agency with respect to
unemployment compensation benefits, social security benefits or any
other
benefits for employees of the Company have been paid prior to the
Effective Date.
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3.18
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Guaranties.
The
Company is not a
guarantor or otherwise liable for any liability (including indebtedness)
of any other person.
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3.19
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Transactions
with Affiliates.
Section 3.19 of the Seller’s Disclosure Schedule lists all contracts and
agreements between the Company (on the one hand) and the Seller or
its
affiliates (on the other hand). All such contracts and agreements
will,
except as noted on Section 3.19 of the Seller’s Disclosure Schedule, be
terminated immediately prior to the Effective Date. Neither the Seller
nor
the Company’s governors, officers, employees or members, own any asset,
tangible or intangible, that is used by the
Company.
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3.20
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Restrictions
on Business Activities.
There is no agreement, order, regulation or law binding upon the
Company,
as opposed to the application of such to those operating in the business
industry generally, that has or could reasonably be expected to have
the
effect of prohibiting or impairing any current business practice
of the
Company.
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3.21
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Banking
Arrangements.
All of the arrangements that the Company has with any banking or
financial
institution are completely and accurately described in Section 3.21
of the
Seller’s Disclosure Schedule, indicating with respect to each of such
arrangements the type of arrangement maintained (such as checking
accounts, borrowing arrangements, safe deposit boxes, etc.) and the
person
authorized in respect to such account. All cash held in such accounts
is
held in demand deposits and is not subject to any restriction or
documentation as to withdrawal.
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3.22
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Other
Information.
The information concerning the Company set forth in this Agreement
and the
Schedules and Exhibits attached to this Agreement, and any statement
or
certificate of the Company furnished or to be furnished to the Buyer
pursuant to this Agreement, does not and will not contain any untrue
statement of a material fact or omit to state a material fact required
to
be stated herein or therein or necessary to make the statements and
facts
contained herein or therein, in light of the circumstances in which
they
are made, not false or misleading.
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4.
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Covenants.
The Parties agree as follows with respect to the period following
the
Effective Date.
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4.1
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General.
If, after the Effective Date, any further action is necessary or
desirable
to carry out the purposes of this Agreement or any ancillary documents,
the Parties will take such further action (including the execution
and
delivery of such further instruments and documents) as any other
Party
reasonably may request. The
Seller acknowledges and agrees that from and after the Effective
Date the
Buyer will be entitled to possession of all documents, books, records
(including tax records), agreements and financial data relating to
the
Company.
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4.2
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Transition.
The Seller will not take any action that is designed or intended
to have
the effect of discouraging any lessor, licensor, customer, supplier
or
other business associate of the Company from maintaining the same
business
relationships with the Company after the Effective Date as it maintained
with the Company prior to the Effective Date. The Seller will refer
all
customer inquiries relating to the businesses of the Company to the
Buyer
from and after the Effective Date.
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4.3
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Confidentiality.
Any information concerning the business and affairs of the Company
that is
not already generally available to the public is considered to be
confidential information. The Seller will treat and hold as such
all of
such confidential information and refrain from using any of such
confidential information except in connection with this Agreement
and the
transactions contemplated by this Agreement or with the written consent
of
the Buyer.
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| 4.4 |
Covenant
Not to Compete.
For a period of one year from and after the Effective Date, the Seller
will not engage directly or indirectly (except having less than 1%
ownership of the outstanding stock in any publicly-traded corporation)
become employed with, provide services to, or engage in any business
which
is in competition with the business of the Company in any geographic
area
in which the Company conducts its business as of the Effective Date.
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| 4.5 |
Nonsolicitation;
Non-Hire and Noninterference.
For a period of one year from and after the Effective Date, the Seller
will not directly or indirectly: (a) induce or attempt to induce
any
person employed by the Company to leave the employ of the Company
or its
affiliates, or in any way interfere adversely with the relationship
between any such employee and the Company or its affiliates; (b)
induce or
attempt to induce any such employee to work for, render services
or
provide advice to or supply confidential business information or
trade
secrets of the Company or its affiliates to any person or entity;
(c)
employ, or otherwise pay for services rendered by, any such employee
in
any business enterprise with which the Seller may be associated,
connected
or affiliated; or (d) induce or attempt to induce any customer, supplier,
licensee, licensor or other person or entity having a business
relationship with the Company or its affiliates to cease doing business
with the Company or its affiliates, or in any way interfere with
the
relationship between any such customer, supplier, licensee, licensor
or
other such person or entity and the Company or its affiliates.
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4.6
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Blue
Pencil.
If the final judgment of a court of competent jurisdiction declares
that
any term or provision of Sections 4.4 or 4.5 is invalid or
unenforceable, the Parties agree that the court making the determination
of invalidity or unenforceability shall have the power to reduce
the
scope, duration, or area of the term or provision, to delete specific
words or phrases, or to replace any invalid or unenforceable term
or
provision with a term or provision that is valid and enforceable
and that
comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement will be enforceable as so modified
after the expiration of the time within which the judgment may be
appealed.
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| 5. |
Remedies
for Breaches of this Agreement.
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5.1
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Survival
of Representations, Warranties and Covenants.
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(a)
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Notwithstanding
any investigation made by or on behalf of any of the Parties or the
results of any investigation, and notwithstanding the participation
of the
Parties in the transactions contemplated by this Agreement, all of
the
representations and warranties of the Parties contained in Section
2, 3
and 4 of this Agreement will survive the Effective Date (even if
the
damaged Party knew or had reason to know of any misrepresentation
or
breach of warranty at the time of the Effective Date) and continue
in full
force and effect forever.
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(b)
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The
covenants set forth in this Agreement will survive indefinitely,
unless a
shorter period of survival is specifically set forth in this Agreement.
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5.2
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Indemnification
Provisions for Benefit of the Buyer.
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(a)
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In
the event the Seller breaches (or in the event any third party alleges
facts that, if true, would mean the Seller has breached) any of his
representations, warranties or covenants contained in this Agreement
or
any ancillary document to which he is a party, then the Seller shall
indemnify the Buyer and its officers, governors, employees, members,
agents and affiliates (the “Buyer
Parties”)
from and against the entirety of any actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues,
penalties, fines, costs, amounts paid in settlement, liabilities,
obligations, taxes, liens, losses, expenses and fees, including court
costs and reasonable attorney fees and expenses (collectively,
“Adverse
Consequences”)
any of the Buyer Parties may suffer through and after the date of
the
claim for indemnification resulting from, arising out of, relating
to, in
the nature of, or caused by such breach (or alleged
breach).
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(b)
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The
Seller is obligated to indemnify the Buyer Parties from and against
the
entirety of any Adverse Consequences any of the Buyer Parties may
suffer
through
and after the date of the claim for indemnification resulting
from, arising out of, relating to, in the nature of, or caused by
any
liability of the Company (i) for any taxes of the Company with respect
to
any tax year or portion thereof ending on or before the Effective
Date (or
for any tax year beginning before and ending after the Effective
Date to
the extent allocable to the portion of such period beginning before
and
ending on the Effective Date as provided in Section 6.2
of
this Agreement),
to the extent such taxes are not reflected in the reserve for tax
liability (rather than any reserve for deferred taxes established
to
reflect timing differences between book and tax income) shown on
the face
of the Company’s financial statements; and (ii) for the unpaid taxes of
any person (other than the Company) under Reg. Section 1.1502-6 (or
any
similar provision of law), as a transferee or successor, by contract
or
otherwise.
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9
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5.3
|
Indemnification
Provisions for Benefit of the Seller.
In the event the Buyer breaches (or in the event any third party
alleges
facts that, if true, would mean the Buyer has breached) any of its
representations, warranties or covenants contained in this Agreement,
then
the Buyer is obligated to indemnify the Seller from and against the
entirety of any Adverse Consequences the Seller may suffer through
and
after the date of the claim for indemnification resulting from, arising
out of, relating to, in the nature of, or caused by such breach (or
alleged breach).
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5.4
|
Other
Indemnification Provisions.
The above indemnification provisions are in addition to, and not
in
derogation of, any statutory, equitable or common law remedy any
Party may
have with respect to the transactions contemplated by this Agreement.
The
Seller agrees that he will not make any claim for indemnification
against
the Buyer or its subsidiaries (including the Company) because Seller
was a
governor, officer, employee, member or agent of the Company or was
serving
at the request of the Company as a partner, trustee, governor, director,
officer, employee or agent of another
entity.
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6.
|
Tax
Matters.
The
following provisions will govern the allocation of responsibility
between
the Buyer and the Seller for certain tax matters following the Effective
Date:
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6.1
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Tax
Periods Ending on or Before the Effective Date.
The Buyer will prepare and file all tax returns for the Company for
periods ending on or before the Effective Date that are filed after
the
Effective Date (other than income tax returns); and will prepare
and file,
at Seller’s sole cost and expense, all tax returns for the Company for the
fiscal/calendar years ended December 31, 2005 and 2006. The Buyer
will
permit the Seller to review and comment on each tax return described
in
the preceding sentence prior to filing and will make such revisions
as are
reasonably requested by the Seller. The Seller will pay the Buyer
for
taxes of the Company with respect to such periods within 15 days
after
payment by the Buyer or the Company of such
taxes.
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6.2
|
Tax
Periods Beginning Before and Ending After the Effective
Date.
The Buyer will prepare and file any tax returns of the Company for
tax
periods that begin before the Effective Date and end after the Effective
Date. Within 15 days after the payment by the Buyer or Company of
such
taxes, the Seller will pay the Buyer the Seller’s portion of the taxes of
the Company which are equal to the amount due for the period of time
beginning before and ending on the Effective Date. For purposes of
this
Section 6.2 and Section 5.2(b)
of
this Agreement,
in the case of any taxes that are imposed on a periodic basis and
are
payable for a taxable period that includes (but does not end on)
the
Effective Date, the portion of such tax that relates to the period
beginning before and ending on the Effective Date will: (a) in the
case of
any taxes other than taxes based upon or related to income or receipts,
be
deemed to be the amount of such tax for the entire taxable period
multiplied by a fraction the numerator of which is the number of
days in
the taxable period ending on the Effective Date and the denominator
of
which is the number of days in the entire taxable period; and (b)
in the
case of any tax based upon or related to income or receipts be deemed
equal to the amount that would be payable if the relevant taxable
period
ended on the Effective Date. Any credits relating to a taxable period
that
begins before and ends after the Effective Date will be taken into
account
as though the relevant taxable period ended on the Effective Date.
All
determinations necessary to give effect to the foregoing allocations
will
be made in a manner consistent with prior practice of the Company.
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10
|
6.3
|
Refunds
and Tax Benefits.
The Seller is entitled to receive any tax refunds that are received
by the
Buyer or the Company, and any amounts credited against tax to which
the
Buyer or the Company becomes entitled, that relate to tax periods
ending
on or before the Effective Date, and the Buyer will pay the Seller
any
such refund or the amount of any such credit within 15 days after
receipt
or entitlement thereto.
|
| 6.4 |
Cooperation
on Tax Matters.
|
|
(a)
|
Upon
a reasonable request by one Party, the other Party will fully cooperate
with filing the tax returns pursuant to this Section 6 and providing
records and relevant information for any audit, litigation or other
proceeding with respect to taxes. The Parties agree to make Company
employees available on a mutually convenient basis to provide additional
information and explanation that are needed. The Company and the
Seller
agree: (i) to retain all books and records with respect to tax matters
pertinent to the Company relating to any taxable period beginning
before
and ending on the Effective Date until the expiration of the statute
of
limitations (and to the extent notified by the Buyer or the Seller,
for
any extensions thereof) of the respective taxable periods; (ii) to
abide
by all record retention agreements entered into with any taxing authority;
and (iii) to give the other Party reasonable written notice prior
to
transferring, destroying or discarding any books and records and,
upon the
Buyer’s request, allow the Buyer to take possession of such books and
records.
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|
(b)
|
Upon
a reasonable request by one Party, the other Party will use his or
its
best efforts to obtain any certificate or other document from any
governmental authority or any other person as may be necessary to
mitigate, reduce or eliminate any tax that could be
imposed.
|
|
6.5
|
Transfer
and Income Taxes.
The Buyer will pay all taxes and fees including penalties and interest,
if
any, arising out of or in connection with this Agreement or and the
contemplated transactions, and will indemnify, defend and hold harmless
the Seller with respect to such taxes. The Buyer will file all necessary
documentation and tax returns with respect to such taxes. The Seller,
however, will pay all individual income taxes and file all necessary
tax
returns and other documentation with respect to all such income taxes
in
connection with the Seller’s receipt of the WebDigs Units.
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11
| 7. |
Miscellaneous.
|
|
7.1
|
No
Third-Party Beneficiaries.
This Agreement will not confer any rights or remedies upon any person
other than the Parties and their respective successors and permitted
assigns.
|
|
7.2
|
Entire
Agreement.
This Agreement (including the documents referred to in this Agreement)
and
the ancillary documents thereto constitute the entire agreement among
the
Parties and supersede any prior understandings, agreements or
representations by or among the Parties, written or oral, to the
extent
they related in any way to the subject matter of this
Agreement.
|
|
7.3
|
Succession
and Assignment.
This Agreement will be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns. No
Party
may assign either this Agreement or any of its rights, interests
or
obligations under this Agreement without the prior written approval
of the
other Party.
|
|
7.4
|
Counterparts
and Facsimile Signatures.
This Agreement may be executed in one or more counterparts, each
of which
will be deemed an original but all of which together will constitute
one
and the same instrument, and by
facsimile.
|
|
7.5
|
Notices.
All notices, requests, demands, claims and other communications under
this
Agreement must be in writing and will be deemed duly given when delivered
by hand, transmitted by facsimile or three (3) days after the day
when
deposited in the United States mail, certified or registered, return
receipt requested, postage prepaid and properly addressed to the
intended
recipient as set forth below:
|
|
If
to the Seller:
|
with
a copy, which does not
|
|
constitute
notice to:
|
|
|
Xxxxxx
Xxxxx
|
|
|
If
to the Buyer:
|
with
a copy, which does not
|
|
constitute
notice to:
|
|
|
WebDigs,
LLC
|
Xxxxxxx
X. Xxxxxx
|
|
Xxxx
Plant Xxxxx Xxxxx & Xxxxxxx, P.A.
|
|
|
500
IDS Center
|
|
|
00
Xxxxx 0xx
Xxxxxx
|
|
|
Xxxxxxxxxxx,
XX 00000
|
Any
Party
may send any notice, request, demand, claim or other communication to the
intended recipient at the address set forth above using any other means, but
no
such notice, request, demand, claim or other communication will be deemed to
have been duly given unless and until it actually is received by the intended
recipient.
12
|
7.6
|
Governing
Law; Consent to Jurisdiction.
This Agreement will be governed by and construed in accordance with
the
domestic laws of the State of Minnesota without giving effect to
any
choice or conflict of law provision or rule. Each of the Parties
submits
to the jurisdiction of any state or federal court sitting in Hennepin
County, Minnesota, in any action or proceeding arising out of or
relating
to this Agreement and agrees that all claims in respect to the action
or
proceeding may be heard and determined there.
|
|
7.7
|
Amendments
and Waivers.
No amendment of any provision of this Agreement will be valid unless
the
same is in writing and signed by the Parties. No waiver by any Party
of
any provision of this Agreement or any default, misrepresentation
or
breach of warranty or covenant under this Agreement, whether intentional
or not, will be deemed to extend to any prior or subsequent default,
misrepresentation or breach of warranty or covenant under this Agreement.
|
|
7.8
|
Severability.
Any term or provision of this Agreement that is invalid or unenforceable
in any situation in any jurisdiction will not affect the validity
or
enforceability of the remaining terms and provisions of this Agreement
or
the validity or enforceability of the offending term or provision
in any
other situation or in any other
jurisdiction.
|
|
7.9
|
Expenses.
Each Party will bear his or its own costs and expenses (including
legal
fees and expenses) incurred in connection with this Agreement and
the
contemplated transactions. The Seller agrees that the Company has
not
borne or will bear any of the Seller’s costs and expenses (including any
of his legal fees and expenses) in connection with this Agreement
or any
ancillary documents.
|
|
7.10
|
Press
Releases and Public Announcements.
No Party will issue any press release or make any public announcement
relating to the subject matter of this Agreement prior to the Effective
Date without the prior written approval of the other
Party.
|
|
7.11
|
Specific
Performance.
Each Party acknowledges and agrees that the other Party would be
damaged
irreparably in the event any of the provisions of this Agreement
are not
performed in accordance with their specific terms or otherwise are
breached. Accordingly, each of the Parties agrees that the other
Party is
entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement
in
any action instituted, in addition to any other remedy to which it
may be
entitled, at law or in equity.
|
[THE
REMAINDER OF THIS PAGE IS BLANK. SIGNATURE PAGE FOLLOWS.]
13
The
Parties have executed this Stock Purchase Agreement as of the date first above
written.
|
BUYER:
|
|||
|
WEBDIGS,
LLC
|
|||
|
By
|
/s/
Xxxxxx X. Xxxxx, Xx.
|
||
|
Xxxxxx
X. Xxxxx, Xx.
|
|||
|
Chief
Manager
|
|||
|
SELLER:
|
|||
|
/s/ Xxxxxx Xxxxx
|
|||
|
Xxxxxx
Xxxxx
|
|||
14
