Exhibit 10.1
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
XXXXXX TRADING SOLUTIONS, INC.
AND
LINK INVESTMENT HOLDINGS INC. LIMITED
Dated as of February 5, 2003
STOCK PURCHASE AGREEMENT
AGREEMENT (the "Agreement"), dated as of February 5, 2003, by and
between Xxxxxx Trading Solutions, Inc., a Nevada corporation ("STS"), and Link
Investment Holdings Inc. Limited, a Turks & Cacos corporation ("Buyer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, STS owns of record and beneficially an aggregate of 6,850,000
shares (the "Shares") of the common stock, par value $0.025 per share (the
"Common Stock"), of Xxxxxx Online, Inc., a Delaware corporation ("SOL"), which
Shares constitute all of the issued and outstanding shares of Common Stock of
SOL; and
WHEREAS, STS desires to sell to Buyer, and Buyer desires to purchase
from STS, the Shares for the consideration and upon the terms and conditions
hereinafter set forth; and
WHEREAS, certain terms used herein are defined in Section 10.1 hereof,
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
1. Transfer OF SHARES, Consideration and other matters
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Transfer of Shares.
------------------
Subject to the terms and conditions of this Agreement, STS hereby
transfers, conveys, sells and delivers to Buyer, and Buyer hereby purchases and
acquires from STS, good and marketable title to the Shares, free and clear of
all liens, claims, debts, obligations or other encumbrances, except such
restrictions on transferability as are imposed by Federal and state securities
laws. To evidence and effect such purchase and sale, STS is delivering to Buyer
certificate(s) representing the Shares duly endorsed in blank or with stock
power(s) duly executed in blank attached thereto.
1.2 Restrictions on Transfer.
------------------------
The Shares have not be registered under the Securities Act and
are being sold hereunder pursuant to an exemption that requires that the further
transfer of such shares to be restricted under the Securities Act. In order to
further evidence such restriction on transferability, the parties hereto agree
and acknowledge that the certificate(s) representing the Shares delivered to
Buyer hereunder will have imposed thereon the customary restrictive legend on
the face or back thereof.
1.3 Consideration.
-------------
The consideration payable for the Shares shall be Two Thousand
Five Hundred Dollars ($2,500) payable to STS on the date hereof.
1.4 Supplemental Action.
-------------------
If at any time after the date hereof, STS or Buyer shall
determine that any further conveyances, agreements, documents, instruments, and
assurances or any further action is necessary or desirable to carry out the
provisions of this Article 1, STS or Buyer, as the case may be, shall execute
and deliver any and all proper conveyances, agreements, documents, instruments,
and assurances and perform all necessary or proper acts to carry out the
provisions of this Article I.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STS
STS hereby represents and warrants to Buyer that:
2.1 Organization and Good Standing.
------------------------------
SOL is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now conducted. SOL is duly qualified or
authorized to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction in which it owns or leases real property and each
other jurisdiction in which the conduct of its business or the ownership of its
properties requires such qualification or authorization, except where the
failure to be so qualified would not have a Material Adverse Effect.
2.2 Authorization of Agreement.
--------------------------
STS has all requisite power, authority and legal capacity to
execute and deliver this Agreement and each other agreement, document,
instrument or certificate contemplated by this Agreement or to be executed by
STS in connection with the consummation of the transactions contemplated by this
Agreement (such other agreements, documents, instruments and certificates are
hereinafter collectively referred to as the "STS Documents"), and to consummate
the transactions contemplated hereby and thereby. This Agreement and each of the
STS Documents has been duly and validly executed and delivered by STS and
(assuming the due authorization, execution and delivery by the other parties
hereto and thereto) this Agreement and each of the STS Documents constitutes,
legal, valid and binding obligations of STS, enforceable against STS in
accordance with their respective, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
2.3 Capitalization.
--------------
The authorized capital stock of SOI consists of 14,000,000 shares
of capital stock, of which 11,000,000 shares are classified as Common Stock and
of which only the Shares are issued and outstanding, and 3,000,000 shares are
classified as preferred stock, par value $.0001 per share (the "Preferred
Stock"), all of which are issued and outstanding and have the rights, privileges
and preferences set forth in the applicable Certificate of Designation (a copy
of which has been furnished to Buyer). All of the issued and outstanding shares
of capital stock of STS, including the Shares, were duly authorized for issuance
and are validly issued, fully paid and non-assessable.
There is no existing option, warrant, call, right, commitment or
other agreement of any character to which STS or SOI is a party requiring, and
there are no securities of SOI outstanding which upon conversion or exchange
would require, the issuance, sale or transfer of any additional shares of
capital stock or other equity securities of SOI or other securities convertible
into, exchangeable for or evidencing the right to subscribe for or purchase
shares of capital stock or other equity securities of SOI. SOI is not a party to
any voting trust or other voting agreement with respect to any of the Shares or
to any agreement relating to the issuance, sale, redemption, transfer or other
disposition of the capital stock of SOI.
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2.4 Subsidiaries.
------------
SOI's only Subsidiariy is Xxxxxx Data Services sro. ("SRO").
There is no existing option, warrant, call, right commitment or other agreement
of any character to which STS, SOI or SRO is a party requiring, and there are no
securities of SRO outstanding which upon conversion or exchange would require,
the issuance, sale or transfer of any additional shares of capital stock or
other equity securities of SRO or other securities convertible into,
exchangeable for or evidencing the right to subscribe for or purchase shares of
capital stock or other equity securities of SRO. None of STS, SOI or SRO is a
party to any voting trust or other voting agreement with respect to any of
capital stock of SRO or to any agreement relating to the issuance, sale,
redemption, transfer or other disposition of the capital stock of SRO. SRO has
ceased operations and has filed bankruptcy in Czechoslovakia.
2.5 Corporate Records.
-----------------
(a) STS has delivered to Buyer true, correct and complete
copies of the certificate of incorporation and by-laws or comparable
organizational documents of SOI and SRO.
(b) The minute books of SOI and SRO previously made available
to Buyer contain all available records of all meetings and all other corporate
action of the stockholders and board of directors (including committees thereof)
of SOI and SRO. The stock certificate books and stock transfer ledgers of the
SOI and SRO previously made available to Buyer are to the best knowledge of STS
true, correct and complete.
2.6 Conflicts; Consents of Third Parties.
------------------------------------
(a) None of the execution and delivery of this Agreement or
the STS Documents, the consummation of the transactions contemplated hereby or
thereby, or compliance by STS with any of the provisions hereof or thereof will
(i) conflict with, or result in the breach of, any provision of the certificate
of incorporation or by-laws or comparable organizational documents of STS, SOI
or SRO; (ii) conflict with, violate, result in the breach or termination of, or
constitute a default under any note, bond, mortgage, indenture, license,
agreement or other instrument or obligation to which STS, SOI or SRO is a party
or by which any of them or any of their respective properties or assets is
bound; (iii) violate any statute, rule, regulation, order or decree of any
governmental body or authority by which STS, SOI or SRO is bound; or (iv) result
in the creation of any Lien upon the properties or assets of STS, SOI or SRO
except, in case of clauses (ii), (iii) and (iv), for such violations, breaches
or defaults as would not, individually or in the aggregate, have a Material
Adverse Effect.
(b) No consent, waiver, approval, Order, Permit or
authorization of, or declaration or filing with, or notification to, any Person
or Governmental Body is required on the part of STS in connection with the
execution and delivery of this Agreement or the STS Documents, or the compliance
by STS with any of the provisions hereof or thereof.
2.7 Financial Advisors.
------------------
No Person has acted, directly or indirectly, as a broker, finder
or financial advisor for STS in connection with the transactions contemplated by
this Agreement and no Person is entitled to any fee or commission or like
payment in respect thereof.
EXCEPT AS SET FORTH ABOVE, STS MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, TO BUYER REGARDING SOI OR SRO.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to STS that:
3.1 Organization and Good Standing.
------------------------------
Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation as set
forth above and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now conducted.
3.2 Authorization of Agreement.
--------------------------
Buyer has all requisite power, authority and legal capacity to
execute and deliver this Agreement and each other agreement, document,
instrument or certificate contemplated by this Agreement or to be executed by
Buyer in connection with the consummation of the transactions contemplated by
this Agreement (such other agreements, documents instruments or certificates are
hereinafter referred to as the "Buyer Documents"). This Agreement and the Buyer
Documents have been duly and validly executed and delivered by Buyer and
(assuming the due authorization, execution and delivery by the other parties
hereto and thereto) this Agreement and each of the Buyer Documents constitute,
legal, valid and binding obligations of Buyer, enforceable against Buyer in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.3 Conflicts; Consents of Third Parties.
------------------------------------
No consent, waiver, approval, Order, Permit or authorization of,
or declaration or filing with, or notification to, any Person or Governmental
Body is required on the part of Buyer in connection with the execution and
delivery of this Agreement or the Buyer Documents, or the compliance by Buyer
with any of the provisions hereof or thereof.
3.4 Financial Advisors.
------------------
No Person has acted, directly or indirectly, as a broker, finder
or financial advisor for Buyer in connection with the transactions contemplated
by this Agreement and no Person is entitled to any fee or commission or like
payment in respect thereof.
3.5 Accredited Investor.
-------------------
Buyer is an "accredited investor" as such term is defined in
Regulation D. Buyer is acquiring the Shares for its own account and not with a
view to the resale or distribution thereof. Buyer has made its own independent
investigation regarding the financial condition and affairs of SOI and SRO and
is not relying on any representation and warranty, express, oral or implied,
regarding SOI and SRO. Buyer further acknowledges that STS has not made any
representations regarding SOI and SRO except those expressly set forth herein.
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ARTICLE IV
INDEMNIFICATION
4.1 Obligation of Buyer to Indemnify.
--------------------------------
Buyer agrees to indemnify, defend and hold harmless STS and its
shareholders as of the date of this Agreement and their respective directors,
officers, heirs, legal representatives, successors and assigns, from and against
all losses, liabilities, damages, deficiencies, actions, suits, proceedings,
claims, demands, orders, assessments, amounts paid in settlement, fines, and
reasonable costs and expenses (including interest, penalties and reasonable
attorneys' fees and disbursements and reasonable investigative costs)
(collectively, "Losses") based upon, arising out of or otherwise in respect of
(i) any breach in any of the representations and warranties of Buyer in this
Agreement and (ii) any breach or non-fulfillment of any of the covenants or
agreements of Buyer contained in this Agreement.
4.2 Obligation of STS to Indemnify.
------------------------------
STS agrees to indemnify, defend and hold harmless Buyer, and its
respective directors, officers, heirs, legal representatives, successors and
assigns, from and against any Losses based upon, arising out of or otherwise in
respect of (i) any breach in any of the representations and warranties of STS
set forth in this Agreement and (ii) any breach or nonfulfillment of any
covenant or agreement of STS contained in this Agreement.
4.3 Claims Notice.
-------------
Each party hereto (an "Indemnified Party") shall, promptly upon
becoming aware of any event or circumstance (an "Indemnifiable Event") which, in
its reasonable judgment, may result in a Loss for which the Indemnified Party
could assert a right of indemnification against any other party hereto (the
"Indemnifying Party") under this Article IV, give notice thereof (the "Claims
Notice") to the Indemnifying Party (but the obligations of the Indemnifying
Party under this Article IV shall not be impaired by the Indemnified Party's
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failure to give such notice, except to the extent that said failure actually
prejudices the rights of the Indemnifying Party). The Claims Notice shall
describe the Indemnifiable Event in reasonable detail, shall indicate whether
the Indemnifiable Event involves a "Third Party Claim" (defined below), and
shall indicate the amount (estimated, if necessary) of the Loss that has been or
may be suffered by the Indemnified Party. In such event, the Indemnifying Party
shall, within fifteen (15) business days after receipt of the Claims Notice,
give notice to the Indemnified Party of whether it intends to dispute the claim
described in the Claims Notice (the "Response Notice"). If the Indemnifying
Party timely disputes the Claims Notice as provided above, the Indemnified Party
shall, for a period of not more than fifteen (15) business days after receipt of
the Response Notice (or less, if the nature of the Indemnifiable Event so
requires), seek out a negotiated settlement of the dispute with the Indemnifying
Party and shall refrain during that period from commencing any judicial
proceeding or other action to enforce this Article 8. If, despite their good
faith negotiations, the parties are unable to resolve the dispute within the
aforesaid period (or if the Indemnifying Party fails to timely give the Response
Notice), the Indemnified Party shall be free to exercise all rights and remedies
available to it hereunder, at law in equity or otherwise to enforce his or its
rights under this Article IV. As used herein, "Third Party Claim" means any
demand, claim or circumstance which, with the lapse of time or otherwise, would
give rise to a claim or the commencement (or threatened commencement) of any
action, proceeding or investigation against the Indemnified Party by any other
person.
4.4 Opportunity to Defend Against Third Party Claims.
-------------------------------------------------
If the Claims Notice relates to a Third Party Claim, the
Indemnifying Party may elect to compromise or defend, at its own expense and by
its own counsel, such Third Party Claim. If the Indemnifying Party elects to
compromise or defend such Third Party Claim, it shall within 30 business days
(or sooner, if the nature of the Third Party Claim so requires) after its
receipt of the Claims Notice, notify the Indemnified Party of its intent to do
so, and the Indemnified Party shall cooperate, at the expense of the
Indemnifying Party, in the compromise of, or defense against, such Third Party
Claim. If the Indemnifying Party elects not to compromise or defend such Third
Party claim, fails to notify the Indemnified Party of its election as herein
provided or contests its obligation to indemnify under this Agreement, the
Indemnified Party may pay, compromise or defend such Third Party Claim.
Notwithstanding the foregoing, neither the Indemnifying Party nor the
Indemnified Party may settle or compromise any claim over the objection of the
other, provided, however, that consent to settlement or compromise shall not be
unreasonably withheld. In any event, the Indemnified Party and the Indemnifying
Party may participate, at their own expense, in the defense of such Third Party
Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified
Party shall make available to the Indemnifying Party any books, records or other
documents within its control that are necessary or appropriate for such defense.
The Indemnifying Party shall be subrogated to all rights and remedies of the
Indemnified Party to the extent of any indemnification provided by the
Indemnifying Party to the Indemnified Party.
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4.5 Survival.
---------
Notwithstanding the investigations by the parties hereto of each
other's affairs, and notwithstanding any knowledge of facts determined or
determinable by such parties pursuant to such investigation, each of STS and
Buyer shall have the right to rely fully upon the representations, warranties,
covenants and agreements of the other parties contained in this Agreement. The
representations and warranties of the parties contained herein shall survive the
Closing for the duration of the applicable statute of limitations. A claim for
indemnification hereunder must be asserted by a party seeking indemnification
within the respective period of survival.
4.6 Indemnification Exclusive Remedy.
--------------------------------
The parties hereto acknowledge and confirm that the
indemnification procedures described in this Article IV shall be the sole and
exclusive remedies available to them for any breach or non-fulfillment of the
representations, warranties, covenants, agreements and other provisions of this
Agreement.
ARTICLE V
MISCELLANEOUS
5.1 Certain Definitions.
-------------------
Affiliate means with respect to a specified person, is a person
that directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the person specified.
Agreement means this Stock Purchase Agreement, including all
exhibits and schedules attached hereto.
Buyer means Link Investment Holdings Inc. Limited, a Turks &
Cacos corporation.
Buyer Documents shall have the meaning ascribed to it in Section
3.2.
Contract means and includes all contracts, agreements,
understandings, indentures, notes, bonds, loans, instruments, leases, mortgages,
commitments, obligations or other binding arrangements, oral or written.
Exchange Act means the Securities Exchange Act of 1934, as
amended.
Governmental Body means any federal, state, municipal, domestic
or foreign court, tribunal, administrative agency, department, commission,
board, bureau or other governmental authority or instrumentality.
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Indebtedness means any and all obligations (whether primary or as
guarantor) for borrowed money or otherwise, irrespective of whether evidenced by
a note or other instrument or fixed, absolute, accrued, contingent or otherwise.
Laws mean any federal, state, foreign, or local law, statute,
ordinance, rule, regulation, order, judgment or decree.
Legal Proceeding means any action, hearing, trial, or application
before a court or governmental body of competent jurisdiction.
Lien means and includes any lien, pledge, mortgage, security
interest, claim, lease, charge, option, right of first refusal or offer,
easement, servitude, transfer restriction or voting requirement under any or
similar agreement, or any other encumbrance, restriction or limitation
whatsoever.
Material Adverse Effect shall mean any effect on the business,
stock price, operations, properties, prospects, or financial condition to that
entity that is material and adverse to that entity and its subsidiaries and
affiliates, taken as a whole, and/or any condition, circumstance, or situation
that would prohibit or otherwise interfere with the ability of that entity to
enter into and perform any of its obligations under this Agreement in any
material respect.
Order means any decision issued by a court or governmental body
of competent jurisdiction.
Permit means any written warrant or license granted by any court
or governmental body of competent jurisdiction.
Person means an individual, a corporation, a partnership, an
association, a joint-stock company, a trust, any unincorporated organization, or
a government or political subdivision thereof.
Securities Act means the Securities Act of 1933, as amended.
Shares means all of the issued and outstanding shares of common
stock of SOI.
SOI means Xxxxxx Online, Inc., a Delaware corporation.
STS means Xxxxxx Trading Solutions, Inc., a Nevada corporation.
STS Documents shall have the meaning ascribed top it in Section
2._.
Subsidiary mean any Person that is directly, or indirectly
controlled by such person.
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5.2 Payment of Sales, Use or Similar Taxes.
--------------------------------------
All sales, use, transfer, intangible, recordation, documentary
stamp or similar Taxes or charges, of any nature whatsoever, applicable to, or
resulting from, the transactions contemplated by this Agreement shall be borne
by Buyer.
5.3 Expenses.
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Each party hereto shall bear its own expenses in connection with
the preparation, execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby.
5.4 Entire Agreement; Amendments and Waivers.
----------------------------------------
This Agreement (including the schedules and exhibits hereto)
represents the entire understanding and agreement between the parties hereto
with respect to the subject matter hereof and can be amended, supplemented or
changed, and any provision hereof can be waived, only by written instrument
making specific reference to this Agreement signed by the party against whom
enforcement of any such amendment, supplement, modification or waiver is sought.
No action taken pursuant to this Agreement, including without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein. The waiver by any party hereto
of a breach of any provision of this Agreement shall not operate or be construed
as a further or continuing waiver of such breach or as a waiver of any other or
subsequent breach. No failure on the part of any party to exercise, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
5.5 Governing Law.
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This Agreement shall be governed by and construed in accordance
with the laws of the State of New York with out regard to conflict of laws
principles.
5.6 Headings.
--------
The section headings of this Agreement are for reference purposes
only and are to be given no effect in the construction or interpretation of this
Agreement.
5.7 Notices.
-------
All notices and other communications under this Agreement shall
be in writing and shall be deemed given when delivered personally or mailed by
certified mail, return receipt requested, to the parties (and shall also be
transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to STS: Xxxxxx Trading Solutions, Inc.
0000 X. Xxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx, XX 00000
If to Buyer: Link Investment Holdings Inc. Limited
00 Xx. Xxxxx' Xxxxxx
Xxxxxx XX0 X0XX
Xxxxxxx
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5.8 Severability.
------------
If any provision of this Agreement is invalid or unenforceable,
the balance of this Agreement shall remain in effect.
5.9 Binding Effect; Assignment.
--------------------------
This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted assigns. Nothing in
this Agreement shall create or be deemed to create any third party beneficiary
rights in any person or entity not a party to this Agreement except as provided
below. No assignment of this Agreement or of any rights or obligations hereunder
may be made by either Buyer or STS (by operation of law or otherwise) without
the prior written consent of the other parties hereto and any attempted
assignment without the required consents shall be void.
5.10 Counterparts.
------------
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which shall constitute
together but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date set forth above.
XXXXXX TRADING SOLUTIONS, INC.
By: /s/ XXXX XXXXXXX
-------------------------------------
Title: Chief Financial Officer
LINK INVESTMENT HOLDINGS INC. LIMITED
By: /s/ XXXX XXXX
-------------------------------------
Title: Authorized Signatory
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