Exhibit 10.7
STOCK PURCHASE AND SUBSCRIPTION AGREEMENT
THIS STOCK PURCHASE AND SUBSCRIPTION AGREEMENT is entered into as of this
fifteenth day of August 2006 (this "Agreement"), by and between Xxxxx
Construction, Inc., a Texas corporation ("Xxxxx" or the "Company"), Xxxxxxx
Asset Management, LLC, a Texas Limited Liability Company and Xxxxxxx Resources,
Inc., a Texas corporation ("each collectively referred to herein as "Xxxxxxx"
each of said Xxxxxxx entities a "Seller" and collectively the "Sellers"), on the
one hand, and Xxxxxx X. Sample, an individual residing in the state of Florida
("Sample" or the "Purchaser"), on the other hand. Each of Xxxxx, the Sellers,
and the Purchaser may be referred to as a "Party" and collectively as the
"Parties."
WHEREAS, on the Closing Date (as defined in Section 2.1) the Sellers owns
5,500,000 shares (the "Shares") of common stock, par value $0.01 per share of
the Company (the "Common Stock"); and
WHEREAS, the Purchaser desires to purchase from the Sellers, and the
Sellers desire to sell to the Purchaser, the Shares (the "Purchased Securities")
upon the terms and conditions set forth in this Agreement; and
WHEREAS, Xxxxx desires to issue certain Common Stock and Preferred Stock
to Sample for investments made and to be made in the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained in this Agreement, the Parties hereby agree as follows:
ARTICLE 1
SALE OF THE PURCHASED SECURITIES
Section 1.1 Sale of the Purchased Securities. Subject to the terms and
conditions set forth in this Agreement, Sellers agree to sell, transfer and
assign to the Purchaser or his assigns and the Purchaser and his assigns agrees
to purchase from the Seller, the Purchased Securities, 5,500,000 shares of
Common Stock for an aggregate purchase price of $65,000 (the "Purchase Price").
Section 1.2 Allocation of the Purchase Price. The Purchase Price will be
paid to Xxxxxxx.
Section 1.3 Acquisition of Shares from Xxxxx. Sample agrees to invest at
least $20,000 to discharge the obligations of Xxxxx in bankruptcy proceedings
and with the stock transfer agent and Xxxxx agrees to sell and issue to Sample
500,000 shares of Series A Preferred Stock, the various terms conditions and
relative rights and preferences being set forth on Schedule 1.3 hereof and
8,117,500 shares of Common Stock. Sample agrees to provide the capital such that
Xxxxx can arrange to have its filings with the United Securities and Exchange
Commission brought current.
Section 1.4 Proxies. Seller shall deliver in favor of the Purchaser
irrevocable proxies for 5,500,000 shares of Common Stock until such time as the
Shares can be delivered to Purchaser or his assigns and shall use its best
efforts to assist in the purchase of 500,000 additional shares of Common Stock
for $0.01 per share.
ARTICLE 2
CLOSING AND DELIVERY
Section 2.1 Closing Date. Upon the terms and subject to the conditions
set forth herein, the consummation of the purchase and sale of the Purchased
Securities (the "Closing") shall be held on August __, 2006, or at a time
mutually agreed upon between the constituent Parties (the "Closing Date"). The
Closing shall take place at the law offices of Xxxxxx X. Xxxxxxxxx, 0000
Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 or by the exchange of
documents and instruments by mail, courier, telecopy and wire transfer to the
extent mutually acceptable to the Parties hereto.
Section 2.2 Delivery at Closing. At the Closing, the Sellers shall
deliver to the Purchaser or Purchaser's assigns stock certificate or
certificates representing the Shares, duly endorsed for transfer to the
Purchaser, as applicable, 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; (ii) stock powers or other
instruments of transfer duly executed by the Seller or registered owner thereof,
with signature medallion guaranteed; and (iii) proxies for the Shares in favor
of Purchaser at the Closing; and Xxxxx shall deliver (i) to Purchaser
certificates of Series A Preferred Stock issued in the name of Sample; and (ii)
to Purchaser certificates for 8,117,500 shares of Common Stock. Said delivery of
Preferred Shares and 8,117,500 shares of Common Stock shall occur as soon after
closing as the Company's charter can be amended to effect such issuance without
being ultra xxxxx.
ARTICLE 3
VARIOUS REPRESENTATIONS AND WARRANTIES OF SELLERS AND THE COMPANY
Section 3.1 Existence and Power. Xxxxx represents that Xxxxx is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Texas and has all corporate powers and all governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted. Xxxxx has heretofore delivered to the Purchaser
true and complete copies of the Certificate of Incorporation, as amended, and
By-laws, each as currently in effect. If Xxxxx is not in good standing in the
State of Texas, Sample shall arrange to accomplish such status.
Section 3.2 Sellers Authorization; No Agreements. Sellers represent and
warrant that the execution, delivery and performance by Sellers of this
Agreement, the performance of their obligations hereunder, and the consummation
of the transactions contemplated hereby are within the Sellers' powers. Sellers
have full legal capacity to execute and deliver this Agreement and perform their
obligations hereunder. This Agreement has been duly and validly executed and
delivered by the Sellers and is a legal, valid and binding obligation of the
Sellers, enforceable against Sellers in accordance with its terms. The
execution, delivery and performance by the Sellers of this Agreement does not
violate any contractual restriction contained in any agreement which binds or
affects or purports to bind or affect the Sellers. The Sellers are not a party
to any agreement, written or oral, creating rights in respect of any of the
Purchased Securities on the part of any third party or relating to the voting of
the Shares. As of the Closing, Buyers will be the lawful owner of the Purchased
Securities, free and clear of all security interests, liens, encumbrances,
equities and other charges other than a security interest and creditor's lien
held by Xxxxx # 1, Ltd which will be released upon delivery of the proceeds to
Xxxxx # 1, Ltd. Sellers further represent that they do not beneficially own
any options or warrants or other rights to purchase shares of the Common Stock.
As of the Closing, there will not be any outstanding or authorized options,
warrants, rights, calls, commitments, conversion rights, rights of exchange or
other agreements of any character, contingent or otherwise, providing for the
purchase, issuance or sale of any of the Shares, or any arrangements that
require or permit any of the Shares to be voted by or at the discretion of
anyone other than the Sellers, and there are no restrictions of any kind on the
transfer of any of the Shares other than (a) restrictions on transfer imposed by
the Securities Act of 1933, as amended (the "Securities Act") and (b)
restrictions on transfer imposed by applicable state securities or "blue sky"
laws.
Section 3.3 Company Authorization; No Agreements. The Company represents
and warrants that the execution, delivery and performance by the Company of this
Agreement, the performance of its obligations hereunder, and the consummation of
the transactions required of it that are contemplated hereby are within the
Company's powers. The Company has full legal capacity to execute and deliver
this Agreement and perform its obligations hereunder. This Agreement has been
duly and validly executed and delivered by the Company and is a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms. The execution, delivery and performance by the Company of this
Agreement does not violate any contractual restriction contained in any
agreement which binds or affects or purports to bind or affect Xxxxx.
Section 3.4 Capitalization. The Company represents and warrants that:
(a) The authorized capital stock of the Company consists of
15,000,000 shares of the Common Stock, par value $0.01 per share, of
which approximately 8,060,000shares will be issued as of the Closing.
All of the outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable
and were not issued in violation of any preemptive or similar rights.
All of the issued and outstanding shares of capital stock of the
Company have been offered, issued and sold by the Company in compliance
with all applicable federal and state securities laws. No securities of
the Company are entitled to preemptive or similar rights, and no
person, natural or otherwise ("Person"), has any right of first
refusal, preemptive right, right of participation, or any similar right
to participate in the transactions contemplated hereby. There are no
outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exchangeable for, or giving
any Person any right to subscribe for or acquire, any shares of the
Common Stock, or contracts, commitments, understandings or arrangements
by which the Company is or may become bound to issue additional shares
of the Common Stock, or securities or rights convertible or
exchangeable into shares of the Common Stock. The issuance and sale of
the Shares will not obligate the Company to issue shares of the Common
Stock or other securities to any Person (other than the Purchaser) and
shall not result in a right of any holder of Company securities to
adjust the exercise, conversion, exchange or reset price under such
securities.
(b) As of the Closing, there will not be any outstanding
obligations, contingent or otherwise, of Xxxxx to redeem, purchase or
otherwise acquire or issue any capital stock or other securities of
Xxxxx except as specified herein.
(c) There are no shareholder agreements, voting trusts or other
agreements or understandings to which Xxxxx or Xxxxxxx is a party or by
which either of them are bound relating to the voting of any shares of
the capital stock of Xxxxx.
(d) The Series A Preferred Stock, when delivered in accordance
with the terms of this Agreement, shall be validly issued, fully paid
and non-assessable and the Shares shall not be subject to any lien,
charge, security interest or other encumbrance or preemptive or other
similar right.
Section 3.5 Subsidiary. The Company represents and warrants that as of
the Closing, Xxxxx will have no subsidiaries.
Section 3.6 Liabilities or Debts. The Company represents and warrants
that as of the Closing, there will be no liabilities or debts of Xxxxx 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. The Company has no employees. The Company does have an obligation to
American Stock Transfer and Trust in the amount of $20,950 which, although
discharged, will have to be paid to obtain a stockholder list.
Section 3.7 Litigation. The Company represents and warrants that there is
no (a) action, suit, investigation, audit or proceeding pending against, or, to
the best knowledge of the Sellers and Xxxxx, threatened or contemplated against
or affecting Xxxxx or any of its assets or properties before or by any court or
arbitrator or any governmental body, agency or official or (b) injunction,
outstanding judgment, restraining order, decree or other order of any nature to
which the Company is or may be subject or to which the business, assets or
property of the Company is or may be subject. The Company is not in default with
respect to any order, writ, injunction, decree, ruling or decision of any court,
commission, board or any other government agency. The Securities and Exchange
Commission (the "Commission")
has not issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company under the Exchange Act or the
Securities Act.
Section 3.8 Taxes. The Company represents and warrants that Xxxxx has (i)
duly filed with the appropriate taxing authorities all tax returns required to
be filed by or with respect to its business, and all such duly filed tax returns
are true, correct and complete in all material respects in relation to any and
all applicable taxes, fees, levies, duties, tariffs, imposts, and other charges
of any kind (together with any and all interest, penalties, additions to tax and
additional amounts imposed with respect thereto) imposed by any government or
taxing authority, including taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, sales, use,
capital stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth; taxes or other charges in the nature of
excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes;
license, registration and documentation fees; and customs' duties, tariffs, and
similar charges, and (ii) paid in full. There are no liens for taxes upon the
assets of Xxxxx. Xxxxx has not received any notice of audit, is not undergoing
any audit of its tax returns, and has not received any notice of deficiency or
assessment from any taxing authority with respect to liability for taxes which
has not been fully paid or finally settled. There have been no waivers of
statutes of limitations by Xxxxx with respect to any tax returns. Xxxxx has not
filed a request with the Internal Revenue Service for changes in accounting
methods within the last three years which change would affect the accounting for
tax purposes, directly or indirectly, of its business. Xxxxx has not executed an
extension or waiver of any statute of limitations on the assessment or
collection of any taxes due (excluding such statutes that relate to years
currently under examination by the Internal Revenue Service or other applicable
taxing authorities) that is currently in effect.
Section 3.9 Indebtedness. The Company represents and warrants that based
on the financial condition of the Company as of the Closing Date, the Company
has no assets or liabilities and will have been discharged from any proceeding
in bankruptcy. The Company is not in default with respect to any Indebtedness.
At the Closing, there will be no outstanding liabilities, obligations or
indebtedness of the Company other than disclosed in this Agreement.
Section 3.10 Finders. The Company and the Sellers acknowledge that Xxxxxx
X. Xxxxxxxxx will receive $10,000 of the sales fee. The Sellers acknowledge that
he is an attorney, has represented both the Company and the Purchaser and waive
any conflict he may have with respect to this transaction. The Company
acknowledges that it has previously engaged Xxxxxx X. Xxxxxxxxx as counsel, that
he has represented the Purchaser in this transaction, that he will receive a fee
for non-legal aspects of this transaction and waives any conflict he may have
with respect to this transaction.
Section 3.11 Disclosure.
(a) The Company represents and warrants that all disclosures
provided by it to the Purchaser regarding the Company, its business and
the transactions contemplated hereby, furnished by or on behalf of the
Company with respect to the representations and warranties made by the
Company, are true and correct with respect to such representations and
warranties and do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading.
(b) The Sellers represent and warrant that all disclosures
provided by it to the Purchaser regarding the Company or the Sellers,
its or their business and the transactions contemplated hereby, with
respect to the representations and warranties made by it or them are
true and correct with respect to such representations and warranties and
do not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
Section 3.12 No Disagreements with Accountants and Lawyers. The Company
represents and warrants that there are no disagreements of any kind presently
existing, or reasonably anticipated by the Company to arise, between the
accountants and lawyers formerly or presently employed by the Company and the
Company is current with respect to any fees owed to its accountants and lawyers.
Section 3.13 No Conflicts. The Company represents and warrants that the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby do not and will not: (i) conflict with or violate any
provision of the Company's Certificate or Articles of Incorporation, By-laws or
other organizational or charter documents; (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of
any agreement, credit facility, debt or other instrument (evidencing a Company
debt or otherwise) or other understanding to which the Company is a party or by
which any property or asset of the Company is bound or affected; and (iii)
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the
Company is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company is bound or
affected.
Section 3.14 Filings, Consents and Approvals.
(a) The Company represents and warrants that the Company is not
required to obtain any consent, waiver, authorization or order of any
court or other federal, state, local or other governmental authority or
other Person in connection with the execution, delivery and performance
of this Agreement.
(b) The Seller represents and warrants that the Seller is not
required to obtain any consent, waiver, authorization or order of any
court or other federal, state, local or other governmental authority or
other Person in connection with the execution, delivery and performance
of this Agreement.
Section 3.15 Compliance. The Company represents and warrants that the
Company: (i) is not in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by the Company under), nor has the Company received
notice of a claim that it is in default under or that it is in violation of, any
indenture, loan or credit agreement or any other agreement or instrument to
which it is a party or by which it or any of its properties is bound (whether or
not such default or violation has been waived), (ii) is not in violation of any
order of any court, arbitrator or governmental body and (iii) is not and has not
been in violation of any statute, rule or regulation of any governmental
authority.
Section 3.16 Transactions With Affiliates and Employees. The Company
represents and warrants that except as required to be set forth in the SEC
Reports, none of the officers or directors of the Company and, to the knowledge
of the Sellers, no (a) Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
Company (an "Affiliate") or (b) director, officer or employee of the Company is
presently a party to any transaction with the Company (other than for services
as employees, officers and directors), including any contract, agreement or
other arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge
of the Company, any entity in which any officer, director, or any such employee
has a substantial interest or is an officer, director, trustee or partner.
Section 3.17 Assets. The Company represents and warrants that except as
set forth in the SEC Reports, the Company has no assets, including, without
limitation, goodwill, assets, real property, tangible personal property,
intangible personal property, rights and benefits under contracts and cash and
is not now a party to any lease or contingently committed to become a party to
any lease.
Section 3.18 Environmental Matters. The Company represents and warrants
that the Company has complied with all applicable statutes, laws and regulations
relating to the environment. There is no related pending or threatened civil or
criminal litigation, written notice of violation, formal administrative
proceeding or investigation, inquiry or information request by any governmental
entity.
Section 3.19 Informed Decision. The Sellers represent and warrant that
the Sellers are aware of the Company's business affairs and financial condition
and have reached an informed and knowledgeable decision to sell the Purchased
Securities.
Section 3.20 Consummation of a Merger Transaction. The Company and the
Sellers acknowledge that it is the intention of the Purchaser, upon completion
of the transactions contemplated hereby, to cause the Company to consummate a
merger with or acquisition of a yet unidentified private unaffiliated company
(the "Merger") some time in the future. Sellers further acknowledge that, upon
consummation of the Merger, it is likely or possible that each common Share and
Series A Preferred share will increase in value, possibly substantially. Sellers
and the Company have had such opportunity as they desire to ask the Purchaser
any questions and receive information concerning such matters, including the
risks associated therewith, and have received satisfactory answers to such
questions and desires to complete the sale of the Purchased Securities
contemplated under this Agreement.
Section 3.21 Change of Control.
(a) The Company represents and warrants that the Company is not a
party to an agreement for, nor involved in any discussions concerning
any transaction that would reasonably be expected to result in any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), becoming the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of 5% or
more of the total voting power of the outstanding Common Stock.
(b) The Sellers represent and warrant that the Sellers are not a
party to an agreement for, nor involved in any discussions concerning
any transaction that would reasonably be expected to result in any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), becoming the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of 5% or
more of the total voting power of the outstanding Common Stock.
Section 3.22 Blue Sky.
(a) The Company represents and warrants that the Company has
obtained all necessary permits and qualifications, if any, or secured an
exception therefore, required for the offer and sale of the Purchased
Securities.
(b) The Sellers represent and warrant that the Sellers have
obtained all necessary permits and qualifications, if any, or secured an
exception therefore, required for the offer and sale of the Purchased
Securities.
Section 3.23 Appointment of Directors. The Company shall immediately
following the Closing, appoint to the board of directors the Purchaser.
Section 3.24 Notice of Developments.
(a) The Company represents and warrants that prior to the
Closing, the Company shall promptly notify the Purchaser in writing of
all events, circumstances facts and occurrences arising subsequent to
the date of this Agreement which would reasonably be expected to result
in any breach of a representation or warranty or covenant of the Company
in this Agreement or which would reasonably be expected to have the
effect of making any representation or warranty of the Company in this
Agreement untrue or incorrect in any respect. Such notification shall
not affect or otherwise limit the Purchaser's right to enforce the terms
of this Agreement hereto as they existed on the date hereof, without
taking into account such notification.
(b) The Sellers represent and warrant that prior to the Closing,
the Sellers shall promptly notify the Purchaser in writing of all
events, circumstances facts and occurrences arising subsequent to the
date of this Agreement which would reasonably be expected to result in
any breach of a representation or warranty or covenant of the Sellers in
this Agreement or which would reasonably be expected to have the effect
of making any representation or warranty of the Sellers in this
Agreement untrue or incorrect in any respect. Such notification shall
not affect or otherwise limit the Purchaser's right to enforce the terms
of this Agreement hereto as they existed on the date hereof, without
taking into account such notification.
ARTICLE 4
REPRESENTATIONS OF THE PURCHASER
The Purchaser represents and warrants, solely as to itself, to the Seller, as
follows:
Section 4.1 Execution and Delivery. The execution, delivery and
performance by the Purchaser of this Agreement is within such Purchaser's powers
and does not violate any contractual restriction contained in any agreement
which binds or affects or purports to bind or affect the Purchaser.
Section 4.2 Binding Effect. This Agreement, when executed and delivered
by the Purchaser shall be irrevocable and will constitute the legal, valid and
binding obligations of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium and other laws of general application affecting
enforcement of creditors' rights generally or general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 4.3 Investment Purpose. The Purchaser represents that it is
purchasing the Purchased Securities for its own account, with the intention of
holding the Purchased Securities, with no present intention of dividing or
allowing others to participate in this investment or of reselling or otherwise
participating, directly or indirectly, in a distribution of the Purchased
Securities, and shall not make any sale, transfer, or pledge thereof without
registration under the Securities Act and any applicable securities laws of any
state unless an exemption from registration is available under those laws.
Section 4.4 Investment Experience. The Purchaser has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Purchased Securities.
Section 4.5 Opportunity to Ask Questions. The Purchaser has had a full
and fair opportunity to make inquiries about the terms and conditions of this
Agreement, to discuss the same and all related matters with its own independent
counsel and its own accountants and tax advisers. The Purchaser has been given
the opportunity to ask questions of, and receive answers from Sellers concerning
the terms and conditions of this Agreement and to obtain such additional written
information about Xxxxx to the extent Sellers possesses such information or can
acquire it without unreasonable effort or expense. Notwithstanding the
foregoing, the Purchaser has had the opportunity to conduct its own independent
investigation.
4.6 Further Limitations on Disposition. Purchaser further acknowledges
that the Purchased Securities are restricted securities under Rule 144 of the
Act, and, therefore, when transferred to the Purchaser will contain a
restrictive legend substantially similar to the following:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), AND
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (I) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT, (II) TO THE EXTENT APPLICABLE,
RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO
THE DISPOSITION OF SECURITIES), OR (III) AN OPINION OF COUNSEL,
LICENSED TO PRACTICE LAW WITHIN THE UNITED STATES, REASONABLY
SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE.
ARTICLE 5
COVENANTS OF THE PARTIES
The Parties hereto agree that:
Section 5.1 Public Announcements. The Sellers, the Company and the
Purchaser shall consult with each other before issuing any press release or
making any public statement with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable statutes, laws
and regulations, including rules and regulations of the Commission, will not
issue any such press release or make any such public statement prior to such
consultation and without the express written consent of the other Parties.
Section 5.2 Notices of Certain Events. In addition to any other notice
required to be given by the terms of this Agreement, each of the Parties shall
promptly notify the other party hereto of:
(a) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection with
any of the transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings
commenced or, to such party's knowledge, threatened against, relating to
or involving or otherwise affecting such party that, if pending on the
date of this Agreement, would have been required to have been disclosed
pursuant to Section 3 or Section 4 (as the case may be) or that relate
to the consummation of the transactions contemplated by this Agreement.
Section 5.3 Access to Information. Following the date of this Agreement,
until consummation of all transactions contemplated hereby, the Sellers and the
Company shall give to the Purchaser, its counsel, financial advisers, auditors
and other authorized representatives reasonable access to their offices,
properties, books and records, financial and other data and information as the
Purchaser and its respective representatives may reasonably request.
Section 5.4 Xxxxx'x Business. Xxxxx will not, without the prior written
consent of the Purchaser, except as set forth herein and as required to complete
the transactions contemplated by this Agreement, (i) make any material change in
the type or nature of its business, or in the nature of its operations, (ii)
create or suffer to exist any debt (iii) issue any capital stock or (iv) enter
into any new agreements of any kind (other than those contemplated by this
Agreement) or undertake any new obligations or liabilities.
Section 5.5 Indemnification. The Purchaser indemnifies and holds harmless
the Company and Sellers for any and all liabilities, including all reasonable
attorneys' fees, that arises as a proximate result of any material inaccuracy or
misrepresentation in, or breach of, any representation, warranty, covenant or
agreement made by the Purchaser in this Agreement. The Sellers and the Company
indemnify and hold harmless the Purchaser for any and all liability, including
all reasonable attorneys' fees, that arises as a proximate result of any
material inaccuracy or misrepresentation in, a breach of, any representation,
warranty, covenant or agreement made by the Sellers or the Company in this
Agreement.
Section 5.6 Reasonable Efforts. Each Party agrees to use its reasonable
best efforts to take, or cause to be taken, all actions and to do, or cause to
be done, all things necessary or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement and to
cooperate with the other Parties in connection with the foregoing. Each Party
further agrees not to undertake any course of action inconsistent with the
satisfaction of the conditions to Closing set forth herein, and to do all such
acts and take all such measures as may be reasonable to comply, and be in
compliance, with the representations, warranties, covenants and agreements
contained in this Agreement.
Section 5.7 Cooperation. In the event that any investigation, inquiry,
lawsuit, administrative proceeding or any other proceeding is commenced with
respect to the Company, the Sellers shall fully cooperate with and provide all
applicable documents to, the Company and Purchaser, immediately upon request of
the Company or the Purchaser.
ARTICLE 6
CONDITIONS PRECEDENT
Section 6.1 Conditions of Obligations of the Purchaser. The obligations
of the Purchaser are subject to the satisfaction of the following conditions,
any or all of which may be waived in whole or in part by the Purchaser:
(a) Representations and Warranties. Each of the representations
and warranties of the Sellers and the Company set forth in this
Agreement shall be true and correct in all material respects as of (1)
the date of this Agreement (except to the extent such representations
and warranties speak as of an earlier date), and (2) the Closing Date,
as though made on and as of all of such dates.
(b) Compliance Certificate. The Sellers and President of Xxxxx
shall deliver to the Purchaser at the Closing a certificate certifying:
(i) that there has been no material adverse change in the business,
affairs, prospects, operations, properties, assets or conditions of the
Company since the date of this Agreement; (ii) that attached thereto is
a true and complete copy of Xxxxx'x Certificate of Incorporation, as
amended, as in effect at the Closing; (iii) that attached thereto is a
true and complete copy of its By-laws, as in effect at the Closing; and
(iv) each of the representations and warranties of the Sellers and the
Company set forth in this Agreement are true and correct in all material
respects as of the Closing Date as though made on and as of the Closing
Date.
(c) Good Standing Certificates. The Company shall have furnished
the Purchaser with good standing and existence certificates for Xxxxx in
its jurisdiction of formation and such other jurisdictions as the
Purchaser reasonably requests.
(d) List of Record Holders. The Purchaser shall have received a
list dated as of a date within two (2) business days prior to the
Closing Date from Xxxxx'x transfer agent of the holders of record of the
Common Stock.
(e) Company Minutes The Purchaser shall have received at least
four (4) business days prior to the Closing Date executed copies of all
minutes, consents, resolutions of the Company (for meetings of or by
stockholders and directors of the Company).
(f) Stockholder and Board of Directors Resolutions. The Purchaser
shall have received executed resolutions of the Board of Directors of
Xxxxx approving the transactions contemplated herein including the
resignation of all current directors and adopting the resolutions set
forth in Schedule 6.1 hereof.
(g) Performance. The Seller and the Company shall have performed
and complied with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by
it on or before the Closing.
(h) Filing of Reports. The Company will, for so long as it is
required to, make timely filing of such reports as are required to be
filed by it with the Commission.
(i) Discharge from Bankruptcy. The Company shall have been
formally discharged from bankruptcy filed under Chapter 11 of the United
States Bankruptcy Code without assets or liabilities.
(j) Cancellation of Preferred Stock Rights. Seller shall have
extinguished any right any third party may have with respect to
Preferred Stock to be issued as part of the Corporation's bankruptcy
proceeding.
Section 6.2 Conditions of Obligations of the Sellers. The obligations of
the Sellers to effect the sale of the Purchased Securities are subject to the
following conditions, any or all of which may be waived in whole or in part by
the Purchaser:
(a) Representations and Warranties. Each of the representations
and warranties of the Purchaser set forth in this Agreement shall be
true and correct in all material respects as of the date of this
Agreement and (except to the extent such representations and warranties
speak as of an earlier date) as of the Closing Date as though made on
and as of the Closing Date.
(b) Compliance Certificate. An authorized officer of the
Purchaser shall deliver to the Sellers at the Closing a certificate
certifying each of the representations and warranties of such Purchaser
set forth in this Agreement are true and correct in all material
respects as of the Closing Date as though made on and as of the Closing
Date.
(c) Performance. The Purchaser shall have performed and complied
with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it or
him on or before the Closing.
ARTICLE 7
TERMINATION
Section 7.1 Termination. This Agreement may be terminated and the
purchase and sale of the Shares may be abandoned at any time prior to the
Closing:
(a) by mutual written consent of the Parties hereto;
(b) by either the Sellers or the Purchaser if the Closing shall
not have occurred on or before the date set for Closing;
(c) by the Purchaser if (i) the Sellers or the Company shall have
failed to comply in any material respect with any of the covenants,
conditions, terms or agreements contained in this Agreement to be
complied with or performed by the Sellers or the Company; or (ii) any
representations and warranties of Sellers or the Company contained in
this Agreement shall not have been true when made or on and as of the
Closing Date as if made on and as of Closing Date (except to the extent
it relates to a particular date); or
(d) by the Sellers if (i) the Purchaser shall have failed to
comply in any material respect with any of the covenants, conditions,
terms or agreements contained in this Agreement to be complied with or
performed by it; or (ii) any representations and warranties of the
Purchaser contained in this Agreement shall not have been true when made
or on and as of the Closing Date.
Section 7.2 Effect of Termination. In the event of the termination of
this Agreement pursuant to this Article 7, all further obligations of the
Parties under this Agreement shall forthwith be terminated without any further
liability of any party to the other Parties; provided, however, that nothing
contained in this Section 7 shall relieve any party from liability for any
breach of this Agreement. In addition, the Initial Payment shall be promptly,
but in no event more than two (2) business days, returned to the Purchaser.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Notices. All notices, requests and other communications to
any party hereunder shall be in writing and either delivered personally,
telecopied or sent by certified or registered mail, postage prepaid,
If to the Xxxxx #1 Xxxxx Xxxxxxx
c/o Xxxxxx X. Xxxxxxxxx
000 Xxxxxxx Xxxxx Xxx
Xxxxxxx, XX 00000
(000) 000-0000
If to the Company Xxxxx Xxxxx,
Secretary
000 Xxxxxxx Xxxxx Xxx
Xxxxxxx, XX 00000
(000) 000-0000
If to Purchaser: Xxxxxx X. Sample
0000 Xxxx Xxxxxx Xxxxxxx Xxxx - Suite 118.4
Xxxxx, XX 00000
Facsimile (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxxxx, Esq.
0000 Xxxxxxxxx Xxxxx Xxxx,
Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
or such other address or fax number as such party may hereafter specify for the
purpose by notice to the other Parties hereto. All such notices, requests and
other communications shall be deemed received on the date delivered personally
or by overnight delivery service or confirmed facsimile transmission if received
prior to 5 p.m. in the place of receipt and such day is a business day in the
place of receipt. Otherwise, any such notice, request or communication shall be
deemed not to have been received until the next succeeding business day in the
place of receipt.
Section 8.2 Amendments; No Waivers.
(a) Any provision of this Agreement with respect to transactions
contemplated hereby may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an
amendment, by the Sellers, the Company and the Purchaser; or in the case
of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
Section 8.3 Fees and Expenses. Each of the Sellers and the Purchaser
shall bear all costs and expenses incurred by them in connection with this
Agreement, and the Company shall bear no expenses in connection with the
transaction anticipated hereby.
Section 8.4 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the Parties hereto and their
respective successors and assigns; provided, that the Purchaser shall have the
right to assign this Agreement to an affiliate of the Purchaser and no other
party hereto may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other party hereto,
but any such transfer or assignment will not relieve the appropriate party of
its obligations hereunder.
Section 8.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without giving
effect to the principles of conflicts of law thereof.
Section 8.6 Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal or state court located in the City of Dallas, Texas, and each of the
Parties hereto consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9.1. shall be deemed
effective service of process on such party. Each party hereto (including its
affiliates, agents, officers, directors and employees) irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section 8.7 Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto has received
counterparts hereof signed by all of the other Parties. No provision of this
Agreement is intended to confer upon any Person other than the Parties hereto
any rights or remedies under this Agreement.
Section 8.8 Entire Agreement. This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter of this
Agreement and supersedes and merges all prior agreements and understandings,
both oral and written, between the Parties with respect to the subject matter of
this Agreement.
Section 8.9 Captions. The captions are included for convenience of
reference only and shall be ignored in the construction or interpretation of
this Agreement.
Section 8.10 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any Parties. Upon
such a determination, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the fullest extent
possible.
Section 8.11 Specific Performance. The Parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the its terms and that the Parties shall be
entitled to specific performance of the terms of this Agreement in addition to
any other remedy to which they are entitled at law or in equity.
Section 8.12 Survival. The representations and warranties contained in
this Agreement shall survive the Closing and delivery of the Purchased
Securities only as against Seller and notwithstanding any provision to the
contrary contained in this Agreement, upon and after the Closing, any claim by
Purchaser for a breach of any representation or warranty of Sellers or the
Company contained in this Agreement may be made only against Sellers and
Purchaser shall have no claim against the Company for any such breach.
IN WITNESS WHEREOF, each of the following individuals has caused this
Agreement to be signed, and each Party that is not an individual has caused this
Agreement to be duly executed under seal by its respective authorized officers,
all as of the day and year first above written.
Xxxxx Construction, Inc.
/s/ Xxxxx X. Xxxxx
-----------------------------------------------------
By: Xxxxx X. Xxxxx, Secretary
Xxxxxxx Asset Management, LLC
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------------
Xxxxxx X. Xxxxxxxxx pursuant to Power of Attorney
From Xxxxx Xxxxxxx, receiver, Xxxxxxx Asset Management, LLC
Xxxxxxx Resources, Inc
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------------
Xxxxxx X. Xxxxxxxxx pursuant to Power of Attorney
From Xxxxx Xxxxxxx, receiver, Xxxxxxx Resources, Inc.
/s/ Xxxxxx X. Sample
------------------------------------------------------
Xxxxxx X. Sample, individually
Supplement
Reference is made to that certain agreement dated August 15, 2006 by and
among the Parties as therein defined. Capitalized terms used herein are the same
as those used in said agreement. The Company, the Sellers and the Purchaser
acknowledge that Xxxxxx X. Xxxxxxxxx will receive $10,000 of the sales fee. The
Sellers acknowledge that he is an attorney, has represented both the Company and
the Purchaser and waive any conflict he may have with respect to this
transaction. The Company acknowledges that it has previously engaged Xxxxxx X.
Xxxxxxxxx as counsel, that he has represented the Purchaser in this transaction,
that he will receive a fee for non-legal aspects of this transaction and waives
any conflict he may have with respect to this transaction. The Purchaser
acknowledges that it has previously engaged Xxxxxx X. Xxxxxxxxx as counsel, that
he has represented the Purchaser in this transaction, that he will receive a fee
for non-legal aspects of this transaction in addition to his fee for services
and waives any conflict he may have with respect to this transaction.
Xxxxx Construction, Inc.
/s/ Xxxxx X. Xxxxx
-----------------------------------------------------
By: Xxxxx X. Xxxxx, Secretary
Xxxxxxx Asset Management, LLC
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------------
Xxxxxx X. Xxxxxxxxx pursuant to Power of Attorney
From Xxxxx Xxxxxxx, receiver, Xxxxxxx Asset Management, LLC
Xxxxxxx Resources, Inc
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------------
Xxxxxx X. Xxxxxxxxx pursuant to Power of Attorney
From Xxxxx Xxxxxxx, receiver, Xxxxxxx Resources, LLC
/s/ Xxxxxx X. Sample
-----------------------------------------
Xxxxxx X. Sample, individually
/s/ Xxxxx X. Xxxxx
-----------------------------------------------------
Xxxxx X. Xxxxx, General Partner
Xxxxx # 1, Ltd, Secured Creditor
