Exhibit 12
STOCK PURCHASE AGREEMENT
AGREEMENT dated as of June 6, 2001 between Xxxxxxx X. Xxxxxx (the
"Purchaser") and Performance Capital L.P., a limited partnership organized
under the laws of the state of New York (the "Seller").
WHEREAS the Seller wishes to sell to the Purchaser and the
Purchaser wishes to purchase from the Seller, for the consideration
hereinafter provided, an aggregate of 331,100 shares of the Common Stock,
par value $ .001 per share (the "Shares") of Niagara Corporation, a
Delaware corporation (the "Company");
NOW, THEREFORE, the parties hereto agree as follows:
1. The Seller represents and warrants that: (a) the seller is the
record and beneficial owner of the Shares, free and clear of all and any
encumbrance whatsoever, (b) the seller has been duly organized, and is
validly existing and in good standing under the laws of the State of New
York, has all requisite power and authority to execute and deliver this
Agreement and to consummate the transactions thereof, and has taken all
necessary corporate or other action to authorize the execution, delivery
and performance of this Agreement, (c) this Agreement has been dully
executed and delivered by the Seller and is a valid and binding agreement
of the Seller enforceable against the Seller in accordance with its terms,
neither the execution and delivery of this Agreement nor the consummation
by the Seller of the transactions contemplated hereof will result in a
violation of, or default under, or conflict with, or require any consent
approval or notice under, any contract, commitment, trust, agreement,
obligation or any other arrangement to which the Seller is a party or by
which the Seller is bound or to which the Shares are subject, (d) subject
to restrictions on retransfer imposed by the Securities Act of 1933, as
amended, and the applicable rules and regulations thereunder (the
"Securities Act"), the transfer of the Shares to the Purchaser hereunder
will pass good and marketable title to the Shares, free and clear of any
claims, charges, liens, proxies, encumbrances and security interests, (e)
there are no restrictions on the right of the Seller to vote the Shares,
(f) the Seller has not taken any action which will result in the Purchaser
being liable for any finder's or broker's fee in connection with the
purchase of the Shares, (g) Seller has relied solely on the publicly
available information concerning the Company (including the financial
statements included in the Company's filings with the Securities and
Exchange Commission) in making the determination to enter into this
Agreement, and (h) the seller has substantial experience in evaluating and
investing in securities in companies similar to the Company so that the
Seller is capable of evaluating the merits and risks of the transaction
contemplated by this Agreement and has the capacity to protect its own
interests, and the Seller has had the opportunity to, whether it chose to
do so, to consult with an attorney, accountant or investment advisor of its
own choice with respect to the transaction contemplated by this Agreement
and its suitability and tax consequences for the Seller.
2. The Purchaser represents and warrants that: (a) the Purchaser
has full legal right, power and authority to enter into and perform this
Agreement, (b) this Agreement is a valid and binding Agreement of the
Purchaser enforceable against the Purchaser in accordance with its terms,
and (c) the Purchaser is acquiring the Company Shares for his own account
and not with any view to their distribution or transfer to any other person
or entity except in accordance with the requirements and provisions of the
Securities Act, [and, in the case of a proposed distribution or transfer
without registration under the Securities Act, such distribution or
transfer will only be consummated after receipt of an opinion of counsel to
the Company that such distribution or transfer may be made without such
registration.]
3. Subject to the terms and conditions of this Agreement, the
Purchaser shall purchase from the Seller, and the Seller shall sell to the
Purchaser, the Shares. The purchase price per Share shall be $ 2.50 (the
"Purchase Price"). The closing under this Agreement (the "Closing") shall
take place at the offices of Performance Capital L.P., simultaneously with
the execution of this Agreement, or as soon thereafter as practicable. At
the Closing, the Seller shall deliver to the Purchaser (a) certificates,
duly endorsed or accompanied by stock powers duly executed in blank with
signatures guaranteed by a national bank or trust company or member firm of
the New York Stock Exchange and otherwise in form acceptable for transfer
on the books of the Company, representing the Shares, and (b) a duly
authorized and signed proxy card in a form acceptable by the Company
appointing the Purchaser to vote the Shares. The Purchaser shall deliver to
the Seller a certified or bank cashier's check, payable in United States
currency to the order of the Seller, or a wire transfer of immediately
available funds in an amount equal to $827,750.
If at any time during the 365 day period following the Closing,
the Purchaser shall purchase more than 50,000 Shares of Niagara Corporation
from one seller at a price in excess of $ 2.50 per share, Purchaser shall
remit to the Seller an additional amount (the "Additional Amount") equal to
the product of 331,100 x the excess above $2.50 less
(.06 x $ 827,750 x number of days from closing date).
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365
This additional amount shall be paid within 10 days of each such purchase.
4. The obligation of the Seller to sell the Shares to the
Purchaser at the Closing is subject to fulfillment of the following
conditions:
(a) the representations and warranties of the Purchaser
in paragraph 2 above shall be true when made and at and as of the Closing
as though such representations and warranties were made at and as of the
Closing;
(b) the Purchaser shall have performed and complied with
all agreements, obligations and conditions required by this Agreement to be
so performed or complied with by the Purchaser at or prior to the Closing;
and
(c) the Seller shall not be enjoined, or otherwise
prohibited by an order of a court of competent jurisdiction, from selling
any of the Shares pursuant to this Agreement.
5. The obligation of the Purchaser to purchase the Shares from the
Seller at the Closing is subject to the fulfillment of the following
conditions:
(a) the representations and warranties of Seller in
paragraph 1 above shall be true when made and at and as of the Closing as
though such representations and warranties were made at and as of the
Closing;
(b) the Seller shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be so
performed or complied with by the Seller at or prior to the Closing; and
(c) the Purchaser shall not be enjoined, or otherwise
prohibited by an order of a court of competent jurisdiction, from
purchasing any of the Shares pursuant to this Agreement.
6. All representations, warranties and agreements made by the
Seller and the Purchaser in this Agreement shall survive the Closing.
7. This Agreement will be binding upon, inure to the benefit of,
and be enforceable by the respective heirs, executors, beneficiaries,
representatives and successors of the parties hereto.
8. All fees and expenses incurred by the Purchaser in connection
with this Agreement and the transactions contemplated hereby will be borne
by the Purchaser. All fees and expenses incurred by the Seller in
connection with this Agreement and the transactions contemplated hereby
will be borne by the Seller.
9. This Agreement may be executed in counterparts and each such
counterpart shall be deemed to be an original instrument.
10. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
the principles of conflicts of laws thereof. This Agreement contains the
entire understanding of the parties hereto with respect to its subject
matter and supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Agreement may be amended
only by a written instrument duly executed by the parties hereto.
11. All notices, claims, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered or mailed (registered or certified mail,
postage prepaid, return receipt) as follows:
(a) If to the Purchaser, to:
Xxxxxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) If to the Sellers, to:
Mr. Xxxxx Xxxxxx
Performance Capital L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
/s/ Xxxxxxx Xxxxxx
____________________________________
Xxxxxxx X. Xxxxxx, Purchaser
/s/ Xxxxx Xxxxxx
____________________________________
Performance Capital L.P.
