EXHIBIT 10.6
STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement ("Agreement") is made as of October 1, 2000
by and among Xxxxx X. Xxxxx ("Xxxxx") and Xxxxx X. Xxxxx, Xx. ("Xxxxx," and
collectively with Xxxxx, the "Purchasers"), individuals having an address at
12804 Morehead, Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000-0000, and Wolfpack
Corporation, a Delaware corporation, with a place of business at The Europa
Center, 000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
("Wolfpack").
WHEREAS, Wolfpack owns all of the issued and outstanding shares "Shares")
of capital stock of Xxxx Xxxxxx, Inc., a North Carolina corporation, ("Xxxx
Xxxxxx") and AAM Investment Council, Inc., a Pennsylvania corporation ("AAM",
and collectively with Xxxx Xxxxxx, the "Companies"); and
WHEREAS, Xxxxx is the Secretary and a director of Wolfpack, the President
and a director of Xxxx Xxxxxx and the Secretary, Treasurer and sole director of
AAM; and
WHEREAS, Xxxxx is the President and a director of Wolfpack, a director of
Xxxx Xxxxxx and the President of AAM; and
WHEREAS, Wolfpack desires to sell, and the Purchasers desire to purchase,
the Shares.
NOW THEREFORE, in consideration of the mutual promises herein contained and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Sale of Shares. Subject to the terms and conditions set forth in this
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Agreement, Wolfpack hereby sells to the Purchasers and the Purchasers hereby
purchase from Wolfpack all of the Shares. As consideration for the Shares, the
Purchasers hereby agree to assume all of the guarantees by Wolfpack for
obligations of the Companies and to return to Wolfpack for cancellation five
thousand (5,000) shares of Wolfpack's common stock, par value $0.001 per share
(the "Wolfpack Shares") held by the Purchasers as tenants in the entirety.
2. Closing. The closing of the purchase and sale of the Shares under this
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Agreement shall take place at the offices of Xxxxxx Xxxxxxxxxx & Xxxxxxxx, LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 simultaneously with the execution
hereof (the "Closing" or "Closing Date"). At the Closing (a) Wolfpack shall
transfer to the Purchasers good and marketable title to the Shares, free and
clear of any and all liens, claims, encumbrances and adverse interests of any
kind, by delivering to the Purchaser the certificates for the Shares in
negotiable form, duly endorsed in blank, or with stock transfer powers attached
thereto and (b) the Purchasers shall deliver to Wolfpack the stock certificate
for the Wolfpack Shares in negotiable form, duly endorsed in blank, or with
stock transfer powers attached thereto. At the Closing Wolfpack shall make
available the written resignations of all of the directors of the Companies
effective as of the Closing and shall cause to be made available the books and
records of the Companies to the Purchasers. At any time and from
time to time after the Closing, the parties shall duly execute, acknowledge and
deliver all such further assignments, conveyances, instruments and documents,
and shall take such other action consistent with the terms of this Agreement to
carry out the transactions contemplated by this Agreement.
3. Representations and Warranties of Wolfpack. Wolfpack represents and
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warrants to the Purchasers, which representations and warranties shall survive
the Closing for a period of one year from the Closing Date, that:
(a) Organization, Standing, etc. of the Companies and Wolfpack. Each of
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the Companies and Wolfpack are corporations duly organized, validly existing and
in good standing under the laws of their respective states of incorporation, and
each has full corporate power and authority to conduct its business as presently
conducted by it and to enter into and perform this Agreement and to carry out
the transactions contemplated by this Agreement.
(b) Capitalization. Wolfpack owns all of the issued and outstanding
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capital stock of the Companies. No shares of capital stock have been reserved
for issuance to any person, and there are no outstanding rights, warrants,
options or agreements for the purchase of capital stock from the Companies
except for this Agreement. No person is entitled to any preemptive or similar
right with respect to the issuance of any capital stock of the Companies.
(c) Authority for Agreement. The execution, delivery, and performance of
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this Agreement by Wolfpack have duly authorized by all necessary corporate
action, and this Agreement constitutes a valid and binding obligation of
Wolfpack enforceable against it in accordance with its terms. The execution and
carrying out of the transactions contemplated by this Agreement and compliance
with its provisions by Wolfpack will not violate any provision of law and will
not conflict with or result in any breach of any of the terms, conditions, or
provisions of, or constitute a default under, its Certificate of Incorporation
or By-Laws or, in any material respect, any indenture, lease, loan agreement,
agreement, or other instrument to which Wolfpack is a party or by which it or
its properties are bound, or any decree, judgment, order, statute, rule or
regulation applicable to Wolfpack.
4. Representations and Warranties of the Purchasers. The Purchasers
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represent and warrant to Wolfpack, which representations and warranties shall
survive the Closing:
(a) Title to Wolfpack Shares. The Purchasers are the record and
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beneficial owners of the Wolfpack Shares as tenants in the entirety and have
sole management power over the disposition of the Wolfpack Shares. The Wolfpack
Shares are free and clear of any liens, claims, encumbrances, and charges. The
Wolfpack Shares have not been sold, conveyed, encumbered, hypothecated or
otherwise transferred by the Purchasers except pursuant to this Agreement.
(b) Legal Right of the Purchasers. The Purchasers have the legal right
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to enter into this Agreement and to consummate the transactions contemplated
hereby and otherwise to carry out their obligations hereunder.
(c) Binding Obligation. This Agreement constitutes a valid and binding
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obligation of the Purchasers enforceable against them in accordance with its
terms. The execution and carrying out of the transactions contemplated by this
Agreement and compliance with its provisions by the Purchasers will not violate
any provision of law and will not conflict with or result in any breach of any
of the terms, conditions or provisions of, or constitute a default in any
material respect under any indenture, lease, loan agreement, agreement or other
instrument to which either Purchaser is a party or by which they or any of their
properties are bound, or any decree, judgment, order, statute, rule or
regulation applicable to the Purchasers.
(d) Investment Representations. The Purchasers represent and warrant
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that they are acquiring the Shares for their own account, for investment and not
with a view to, or for sale in connection with, any distribution of such Shares
or any part thereof.
(e) Investment Experience; Access to Information. Each of the Purchasers
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is an "accredited investor" as such term is defined in Rule 501 promulgated
under the Securities Act of 1933, as amended (the "Securities Act"). The
Purchasers represent and warrant that they are investors experienced in the
evaluation of businesses similar to the Companies, are able to fend for
themselves in the transactions contemplated by this Agreement, have such
knowledge and experience in financial business matters as to be capable of
evaluating the merits and risks of this investment, have had access to such
information as is specified in Rule 502 promulgated under the Securities Act.
(e) Restrictions on Transfer. The Purchasers agree that they will not,
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and are not permitted to, offer, sell, pledge, hypothecate, or otherwise dispose
of the Shares unless such offer, sale, pledge, hypothecation or other
disposition is (i) registered under the Securities Act, or (ii) such offer,
sale, pledge, hypothecation or other disposition thereof does not violate the
Securities Act, and the certificates representing the Shares shall bear a legend
stating in substance:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND SUCH LAWS,
OR SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS OTHERWISE
EXEMPT FROM REGISTRATION UNDER SAID ACT AND SUCH LAWS.
5. Indemnification.
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(a) Indemnification. Wolfpack hereby agrees to indemnify and hold
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harmless the Purchasers, and the Purchasers hereby agree to indemnify and hold
harmless Wolfpack,
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from and against all losses, liabilities, costs, damages, obligation suits,
proceeding demands, judgment claims and expenses, including reasonable
attorneys' fees, ("Damages") incurred by the indemnified party resulting from,
arising out of, or connected with any damage or deficiency resulting from the
material breach of any representation or warranty in this Agreement or any
instrument furnished to the indemnified party hereunder, any material
misrepresentation or omission, material breach of warranty, material
nonfulfillment of any agreement or covenant on the part of the indemnifying
party under this Agreement or from any misrepresentation in or omission from any
certificate, document or other instrument furnished to the indemnified party
hereunder.
(b) Notice; Control of Defense; Payments. If any event shall occur which
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may result in indemnification hereunder, the indemnified party or parties agree
to give the indemnifying party or parties prompt written notice thereof. If such
event involves a claim by a third party, the indemnifying party or parties shall
have the right at its or her sole expense to control and assume the defense of
the matter giving rise to such indemnification with counsel reasonably
satisfactory to the indemnified party or parties and to compromise or settle any
such matter, provided that such compromise or settlement entirely and
unconditionally releases the indemnified party or parties from all liability
with respect thereto. If the indemnifying party or parties shall assume the
defense of the indemnified party or parties, the indemnified party or parties
shall have the right to participate in such defense but only at its or her own
expense and the indemnifying party or parties shall not be obligated to pay the
fees of counsel to the indemnified party or parties incurred after such
assumption. If the indemnifying party or parties do not assume the defense of
such matter within a reasonable time after notice thereof, the indemnified party
or parties may defend, settle and/or compromise such matter for the account and
the expense of the indemnifying party or parties.
6. Other Agreements.
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(a) Further Assurances. The parties shall execute such further
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documents, and perform such further acts, as may be necessary to effect the
transactions contemplated hereby, on the terms herein contained and otherwise to
comply with the terms of this Agreement; provided, that, except as contemplated
by this Agreement, no party shall be required to waive any right or incur any
obligation in connection therewith.
(b) Cooperation on Tax Matters. Each party shall cooperate fully, as and
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to the extent reasonably requested by the other party, in connection with the
filing of tax returns and any audit, litigation or other proceeding with respect
to taxes.
(c) Litigation Support. In the event and for so long as any party
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actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving the Companies, each of the other parties will
cooperate with it and its counsel in the contest or defense, make available
their personnel, and provide such testimony and access to their
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books and records as shall be necessary in connection with the contest or
defense.
7. Miscellaneous.
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(a) Expenses. Wolfpack shall bear the costs, including attorneys
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fees, involved in the negotiating of this Agreement and consummation of the
transactions contemplated hereby.
(b) Survival of Agreements. All agreements, covenants,
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representations and warranties contained herein or made in writing in connection
with the transactions contemplated hereby shall survive the execution and
delivery of this Agreement.
(c) Notices. All notices, requests, consents and other communications
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herein shall be in writing and shall be mailed by first class or certified mail,
postage prepaid, or personally delivered to the party at such address as
indicated on the first page hereof or such other addresses as each of the
parties hereto may provide from time to time to the other parties by written
notice in accordance with the terms of this Section 7(c). For purposes of
computing the time periods set forth in this Agreement, the date of mailing
shall be deemed to be the delivery date.
(d) Modifications; Waiver. Neither this Agreement nor any provision
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hereof may be changed, waived, discharged or terminated orally or in writing,
except that any provision of this Agreement may be amended and the observance of
any such provision may be waived (either generally or in a particular instance
and either retroactively or prospectively) with (but only with) the written
consent of the parties hereto.
(e) Entire Agreement. This Agreement contains the entire agreement
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between the parties with respect to the transactions contemplated hereby, and
supersede all negotiations, agreements, representations, warranties and
commitments, whether in writing or oral, prior to the date hereof.
(f) Successors and Assigns. All of the terms of this Agreement shall
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be binding upon and inure to the benefit of and be enforceable by the respective
successor and assigns of the parties hereto.
(g) Remedies Cumulative: Waiver. No remedy referred to herein is
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intended to be exclusive, but each shall be cumulative and in addition to any
other remedy referred to above or otherwise available at law or in equity. No
express or implied waiver of any default shall be a waiver of any future or
subsequent default. The failure or delay in exercising any rights granted a
party hereunder shall not constitute a waiver of any such right and any single
or partial exercise of any particular right shall not exhaust the same or
constitute a waiver of any other right provided herein.
(h) Execution and Counterparts. This Agreement may be executed in any
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number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument.
(i) Governing Law and Severability. This Agreement shall be governed
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by the laws of the State of New York as applied to agreements entered into and
to be performed entirely within New York. If any provision of this Agreement or
any application thereof is held to be unenforceable, the remainder of the
Agreement and any application of such provision shall not be affected thereby
and to the extent permitted by law, there shall be substituted for the
provisions held unenforceable, provisions which shall, as nearly as possible,
have the same economic effect as the provisions held unenforceable.
(j) Headings. The descriptive headings of the Sections hereof are
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inserted for convenience only and do not constitute a part of this Agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, this Agreement has been executed by the Parties
hereto as of the day and year first written above.
WOLFPACK CORPORATION
By: /s/ Xxxxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxx, Xx.
President
PURCHASERS:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxx, Xx.
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