EXECUTION COPY
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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
STANFORD VENTURE CAPITAL HOLDINGS, INC.
AND
INTERNATIONAL COSMETICS MARKETING CO.
D/B/A XXXXXXX XXXXXXX & CO.
September 7, 2001
CONTENTS
Authorization and Closing.........................................................................................1
Authorization of the Stock...............................................................................1
Purchase and Sale of the Stock...........................................................................1
Conditions of the Purchasers' Obligations.........................................................................1
Conditions to Closing....................................................................................1
Covenants.........................................................................................................3
Current Public Information...............................................................................3
Indemnification..........................................................................................3
No Affiliated Party Transactions.........................................................................4
Board Representation.....................................................................................4
Compliance with Laws..............................................................................................4
Transfer of Restricted Securities.................................................................................4
Representations and Warranties of the Company.....................................................................4
Organization and Corporate Power.........................................................................5
Capital Stock and Related Matters........................................................................5
Authorization; No Breach.................................................................................6
Undisclosed Liabilities..................................................................................6
Tax Matters..............................................................................................6
Litigation, etc..........................................................................................7
Governmental Consent, etc................................................................................7
Compliance with Laws.....................................................................................7
Disclosure...............................................................................................7
Recent Occurrences.......................................................................................8
Registration Rights......................................................................................8
Securities Laws..........................................................................................8
Commission Documents.....................................................................................8
Transactions with Affiliates.............................................................................9
Vote Required; State Takeover Statutes...................................................................9
Definitions.......................................................................................................9
Miscellaneous....................................................................................................12
Expenses................................................................................................12
Remedies 13
Purchasers' Investment Representations..................................................................13
Consent to Amendments...................................................................................13
Survival of Representations and Warranties..............................................................14
Successors and Assigns..................................................................................14
Severability............................................................................................14
Counterparts............................................................................................14
Descriptive Headings; Interpretation....................................................................14
Governing Law...........................................................................................14
Notices 15
Rights 16
Amendments..............................................................................................16
List of Exhibits
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Exhibit A - Form of Registration Rights Agreement
Exhibit B - Form of Assignment Agreement
Exhibit C - Form of Letter Agreement
Exhibit D - Form of Warrant
Schedule of Exceptions
Schedule 5.B.(i)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made as of September 7,
2001, by and between STANFORD VENTURE CAPITAL HOLDINGS, INC. (the "Purchaser" or
"Stanford"), and INTERNATIONAL COSMETICS MARKETING CO. D/B/A XXXXXXX XXXXXXX &
CO., a Florida corporation ("Company"). Except as otherwise indicated herein,
capitalized terms used herein are defined in Section 6 hereof.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement, intending to be legally bound,
hereby agree as follows:
Section 1. Authorization and Closing.
A. Authorization of the Stock. The Company has authorized the issuance
and sale to the Purchaser of 1,000,000 shares of its Common Stock, par value
$.001 per share (the "Common Stock") and 750,000 Warrants to purchase Common
Stock at $2.125 per share (the "Warrants").
B. Purchase and Sale of the Stock. At the Closing (as defined below),
the Company shall sell to the Purchaser and, subject to the terms and conditions
set forth herein, the Purchaser shall purchase from the Company, 1,000,000
shares of Common Stock and 750,000 Warrants at an aggregate purchase price of
$1,500,000. The closing of the purchase and sale of the Common Stock pursuant
hereto (the "Closing") shall take place at the offices of Akerman Senterfitt, 0
X.X. 0xx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 simultaneously with the
execution and delivery of this Agreement. At the Closing, pursuant to the escrow
provisions of the Assignment Agreement, the Company shall deliver to the
Purchaser stock certificates evidencing the Common Stock purchased by the
Purchaser, registered in the Purchaser's name, and the Purchaser shall pay to
the Company the purchase price by certified or bank check or wire transfer of
immediately available funds.
Section 2. Conditions of the Purchaser' Obligations.
A. Conditions to Closing. The obligation of the Purchaser to purchase
and pay for the Common Stock at the Closing is subject to the satisfaction or
written waiver as of the Closing of the following conditions:
(i) Representations and Warranties; Covenants. The
representations and warranties contained in Section 5 hereof shall be
true and correct at and as of the Closing, and the Company shall have
performed all of the covenants required to be performed by it hereunder
prior to the Closing.
(ii) Registration Rights Agreement. The Company and the
Purchaser shall have entered into an Registration Rights Agreement in
form and substance set forth in Exhibit A attached hereto (the
"Registration Rights Agreement"), and the Registration Rights Agreement
shall not have been amended or modified and shall be in full force and
effect as of the Closing.
(iii) Assignment and Escrow Agreement. Xxxx Xxxxxxx, Atlas
Xxxxxxxx, P.A. and the Purchaser shall have entered into an Assignment
and Escrow Agreement in form and substance set forth in Exhibit B
attached hereto (the "Assignment Agreement"), relating to the
assignment of that certain option (the "Option"), dated as of August
19, 1999, to purchase 250,000 shares of Common Stock, which is being
assigned to Purchaser simultaneously herewith, and the Assignment
Agreement shall not have been amended or modified and shall be in full
force and effect as of the Closing.
(iv) Letter Agreement. The Purchaser and Xxxx Xxxxx shall have
entered into a Letter Agreement in form and substance set forth in
Exhibit C attached hereto (the "Letter Agreement"), and the Letter
Agreement shall not have been amended or modified and shall be in full
force and effect as of the Closing.
(v) Warrants. The Company shall have executed warrant
certificates in form and substance set forth in Exhibit D attached
hereto representing the Warrants, and the Warrants shall not have been
amended or modified and shall be in full force and affect as of the
Closing.
(vi) Consents and Approvals. The Company shall have received
or obtained all third-party, governmental and regulatory consents and
approvals necessary for the consummation of the transactions
contemplated hereby.
(vii) Compliance with Applicable Laws. The sale of Common
Stock to the Purchaser hereunder shall not be prohibited by any
applicable law or governmental regulation.
(viii) Fees and Expenses. The Company shall have reimbursed
Purchaser's expenses, paid the fee and issued the Placement Warrants as
provided in Section 7.A.
(ix) Closing Documents. The Company shall have delivered to
Purchaser all of the following documents:
(a) an Officer's Certificate, dated the date of the
Closing, stating that the conditions specified in this Section
2 have been fully satisfied;
(b) certified copies of the resolutions duly adopted
by the Company's board of directors (its "Board"), including
the consent of the majority holder of the Company's Series A
Convertible Preferred Stock and the holder of the Company's
outstanding debentures, authorizing the execution, delivery,
and performance of the Transaction Documents, the issuance and
sale of the Common Stock and the consummation of all other
transactions contemplated by this Agreement; and
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(c) certified copies of (1) the Company's Articles of
Incorporation and (2) the Company's Bylaws, each as in effect
at the Closing.
(x) No Material Adverse Change. There shall not have occurred
any material adverse change in the financial condition, operating
results, assets, operations or business prospects of the Company since
the Financial Statement Date.
(xi) Opinion. The Company shall have delivered to the
Purchaser a legal opinion, in form and content reasonably satisfactory
to Purchaser, with respect to such matters (including, but not limited
to, the absence of dissenters' rights with respect to this transaction)
as Purchaser shall reasonably request.
(xii) Rights of First Refusal, Anti-Dilution Rights, and
Preemptive Rights Waived. The Company shall have delivered to Purchaser
evidence reasonably satisfactory to Purchaser that no rights of first
refusal to purchase securities of the Company, anti-dilution rights or
preemptive rights will be contravened by the consummation of the
transactions contemplated in connection herewith.
(xiii) Other. The Purchaser shall have received such other
documents relating to the transactions contemplated hereby as Purchaser
or its counsel may reasonably request.
Any condition specified in this Section 2 may be waived only if such
waiver is set forth in a writing executed by Purchaser.
Section 3. Covenants. As an inducement to enter into the transactions
contemplated by this Agreement, the Company hereby covenants to undertake the
obligations set forth in this Section 3.
A. Current Public Information. For so long as Purchaser beneficially
owns any securities of the Company, the Company shall timely file all reports
required to be filed by it under the Securities Act and the Securities Exchange
Act and the rules and regulations adopted by the Commission thereunder and shall
take such further action as any holder or holders of Restricted Securities may
reasonably request, all to the extent required to enable: (i) such holders to
sell Restricted Securities pursuant to Rule 144 adopted by the Commission under
the Securities Act (as such rule may be amended from time to time) or any
similar rule or regulation hereafter adopted by the Commission; or (ii) the
Company to be eligible to register its securities pursuant to a registration
statement on Form S-2 or S-3 or any similar registration form hereafter adopted
by the Commission. Upon request, the Company shall deliver to any holder of
Restricted Securities a written statement as to whether it has complied with
such requirements.
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B. Indemnification. The Company shall indemnify, defend and hold the
Purchaser and its respective directors, officers, employees, affiliates and
agents (collectively, the "Indemnified Persons") harmless from and against and
in respect of any and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including, without
limitation, interest, penalties, court costs and attorneys' fees (collectively,
"Losses"), that any Indemnified Person shall incur or suffer, which arise,
result from, or relate to (a) any breach of, or failure by the Company to
perform, any of its representations, warranties, covenants or agreements in any
Transaction Document or any violation of any securities law by the Company, and
(b) any claim, litigation, investigation or proceeding (whether or not such
Indemnified Person is a party thereto) relating to any transactions, services or
matters that are the subject of any Transaction Document.
C. No Affiliated Party Transactions. For so long as the Purchaser
beneficially owns any securities of the Company, the Company and each of its
Subsidiaries shall not, without the prior written consent of the Purchaser,
enter into any transaction with any of its or any Subsidiary's officers,
directors, employees or Affiliates or any individual related by blood, marriage
or adoption to any such Person or any entity in which any such Person or
individual owns a beneficial interest, except for (i) normal employment
arrangements and benefit programs on reasonable terms, (ii) the Letter
Agreement, dated as of October 13, 2000, between the Company and Noble
International Investments, Inc. and (iii) except as otherwise expressly
contemplated by this Agreement.
D. Board Representation. Upon Closing, and until the earlier to occur
of the following events: (a) two years from the date of this Agreement; or (b)
any event which results in Purchaser or its Affiliates, at any time,
collectively being the beneficial owners of less than 50% of the securities of
the Company (on an as-converted basis) acquired pursuant to this Agreement, the
Warrants and the Assignment Agreement, the Company shall take all necessary and
desirable actions within its control (including, without limitation, calling
special Board meetings), so that one (1) representative designated by the
Purchaser shall be nominated and/or appointed to Board.
E. Compliance with Laws. The Company shall take all necessary actions
to comply with all state and federal securities laws in connection with the
issuance and sale of its securities to any other party, by private placement or
otherwise.
Section 4. Transfer of Restricted Securities. The Purchaser
acknowledges that the Restricted Securities are transferable only pursuant to:
(a) public offerings registered under the Securities Act; (b) Rule 144 or Rule
144A under the Securities Act (or any similar rule or rules then in force) if
such rule or rules are available; (c) any other legally available means of
transfer; and (d) any other agreement to which such Purchaser is a party. In
connection with the transfer of any Restricted Securities (other than a transfer
described in clauses (a) or (b) above), the holder thereof shall deliver written
notice to the Company describing in reasonable detail the transfer or proposed
transfer. In addition, upon the request of the Purchaser, the Company shall
promptly supply to such Purchaser or its prospective transferees all information
regarding the Company required to be delivered in connection with a transfer
pursuant to Rule 144A under the Securities Act.
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Section 5. Representations and Warranties of the Company. As a material
inducement to the Purchaser to enter into this Agreement and purchase the Common
Stock, the Company hereby represents and warrants to the Purchaser that, except
as expressly set forth on the Schedule of Exceptions attached hereto:
A. Organization and Corporate Power. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of Florida and
is qualified to do business in every jurisdiction in which the failure to so
qualify might reasonably be expected to have a material adverse effect on the
financial condition, operating results, assets, operations, or business
prospects of the Company. The Company has all requisite corporate power and
authority and all material licenses, permits, and authorizations necessary to
own and operate its properties, to carry on its businesses as now conducted and
presently proposed to be conducted, and to carry out the transactions
contemplated by this Agreement and the agreements and documents contemplated in
connection therewith. The copies of the Company's Articles of Incorporation and
the Company's Bylaws which have been furnished to Purchaser's counsel reflect
all amendments made thereto at any time before the Closing and are correct and
complete.
B. Capital Stock and Related Matters.
(i) The authorized capital stock of the Company consists of
30,000,000 shares of capital stock, of which 5,000,000 shares are
designated as Preferred Stock, par value $.001, and of which 25,000,000
shares are designated as Common Stock, par value $.001. Immediately
prior to the Closing, the Company had that number of shares outstanding
as set forth on Schedule 5.B.(i). Except as set forth on Schedule
5.B.(i), or the Schedule of Exceptions, the Company does not have
outstanding any stock or securities convertible or exchangeable for any
shares of its capital stock or containing any profit participation
features, nor does it have outstanding any rights or options to
subscribe for or to purchase its capital stock or any stock or
securities convertible into or exchangeable for its capital stock or
any stock appreciation rights or phantom stock plans other than
pursuant to, and as contemplated by, this Agreement. The Company is not
subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its capital stock or any
warrants, options, or other rights to acquire its capital stock. All of
the outstanding shares of the Company's capital stock are and shall be
validly issued, fully paid, and non-assessable and free of any Liens
other than Liens created by the holders thereof. No event has occurred
which would change the conversion price or number of shares issuable
upon conversion of any of the Company's outstanding securities.
(ii) Except as set forth on the Schedule of Exceptions, there
are no statutory or contractual preemptive rights, anti-dilution
rights, or rights of first refusal with respect to the issuance of any
of the Common Stock hereunder and the Company has never issued
securities in contravention of any rights of first refusal,
anti-dilution rights, or preemptive rights. The Company has not
violated any applicable federal or state securities laws in connection
with the offer, sale, or issuance of any of its capital stock, and the
offer, sale, and issuance of the Common Stock hereunder does not and
will not require registration under the Securities Act or any
applicable state securities laws. Except as disclosed on the Schedule
of Exceptions, there are no agreements between the Company's
stockholders with respect to the voting or transfer of the Company's
capital stock or with respect to any other aspect of the Company's
affairs.
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C. Authorization; No Breach. The execution, delivery, and performance
of the Transaction Documents have been duly authorized by the Company. The
Transaction Documents each constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms. The execution and delivery by
the Company of the Transaction Documents, the offering, sale, and issuance of
the Common Stock hereunder and the fulfillment of and compliance with the
respective terms hereof and thereof by the Company do not and will not: (i)
conflict with or result in a breach of the terms, conditions, or provisions of;
(ii) constitute a default under; (iii) result in the creation of any Lien,
security interest, charge, or encumbrance upon the Company's capital stock or
assets pursuant to; (iv) give any third party the right to modify, terminate, or
accelerate any obligation under; (v) result in a violation of; or (vi) require
any authorization, consent, approval, exemption, or other action by or notice to
any court or administrative or governmental body pursuant to, the Articles of
Incorporation or Bylaws of the Company, or any law, statute, rule, or regulation
to which the Company is subject, or any agreement, instrument, order, judgment,
or decree to which the Company or any of its Affiliates or employees is a party
or by which it or any of the foregoing Persons is bound. Furthermore, the
offering, sale and issuance of Common Stock hereunder (and the conversion
thereof) will not contravene or give rights to any Person pursuant to any right
of first refusal to purchase securities of the Company, anti-dilution right or
preemptive right granted by the Company.
D. Undisclosed Liabilities. Except as set forth in the financial
statements referenced in Section 5.M, the Company has no liabilities,
commitments or obligations of any nature whatsoever, whether accrued, contingent
or otherwise and whether due or to become due (other than nonmaterial, both
individually and in the aggregate, liabilities, commitments or obligations
incurred since the Financial Statement Date in the ordinary course of business
consistent with past practices to Persons other than Affiliates of the Company)
or any unrealized or unanticipated losses from any commitments of the Company,
and there is no basis for assertion against the Company of any such liability,
commitment, obligation or loss.
E. Tax Matters. Except as set forth on the Schedule of Exceptions, the
Company has filed all Tax Returns (if any) which it is required to file under
applicable laws and regulations; all such Tax Returns are complete and correct
in all material respects; the Company has paid all Taxes due and owing by it and
has withheld and paid over all Taxes which it is obligated to withhold from
amounts paid or owing to any employee, stockholder, creditor or other third
party; the Company has not waived any statute of limitations with respect to
Taxes or agreed to any extension of time with respect to a Tax assessment or
deficiency; the assessment of any additional Taxes for periods for which returns
have been filed is not expected; no foreign, federal, state or local Tax audits
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are pending or being conducted with respect to the Company, no information
related to Tax matters has been requested by any foreign, federal, state or
local taxing authority and no notice indicating an intent to open an audit or
other review has been received by the Company from any foreign, federal, state
or local taxing authority; and there are no unresolved questions or claims
concerning the Company's Tax liability. The Company has not made an election
under Section 341 (f) of the IRC.
F. Litigation, etc. There are no actions, suits, proceedings, orders,
investigations or claims pending or, to the best of the Company's knowledge,
threatened against or affecting the Company (or to the best of the Company's
knowledge, pending or threatened against or affecting any of the officers,
directors or employees of the Company with respect to their business or proposed
business activities) at law or in equity, or before or by any governmental
department, commission, board, bureau, agency or instrumentality (including,
without limitations, any actions, suits, proceedings or investigations with
respect to the transactions contemplated by this Agreement) which (i) could have
a material adverse effect on the financial condition, operating results, assets,
operations or business prospects of the Company, or (ii) questions the validity
of the transactions contemplated in connection herewith or seeks to enjoin or
restrict same. The Company is not subject to any arbitration proceedings under
collective bargaining agreements or otherwise or, to the best of the Company's
knowledge, any governmental investigations or inquiries; and, to the best of the
Company's knowledge, there is no basis for any of the foregoing. The Company is
not subject to any judgment, order or decree of any court or other governmental
agency. The Company has not received any opinion or memorandum or legal advice
from legal counsel to the effect that it is exposed, from a legal standpoint, to
any liability or disadvantage which may be material to its business.
G. Governmental Consent, etc. Except for filings under Regulation D
under the Securities Act, no permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority or other Person is
required in connection with the execution, delivery and performance by the
Company of this Agreement, any other Transaction Documents, or the consummation
by the Company of any other transactions contemplated hereby or thereby.
H. Compliance with Laws. The Company has not violated any law or any
governmental regulation or requirement which violation could have a material
adverse effect upon the financial condition, operating results, assets,
operations or business prospects of the Company, and the Company has not
received notice of any such violation. The Company is not subject to any clean
up liability, and the Company has no reason to believe it may become subject to
any clean up liability, under any federal, state or local environmental law,
rule or regulation.
I. Disclosure. Neither this Agreement nor any of the schedules,
attachments, written statements, documents, certificates or other items prepared
or supplied to the Purchaser by or on behalf of the Company with respect to the
transactions contemplated hereby contain any untrue statement of a material fact
or omit a material fact necessary to make each statement contained herein or
therein not misleading. There is no fact which the Company has not disclosed to
the Purchaser in writing making specific reference hereto and of which any of
its officers, directors or executive employees is aware and which has had or
might reasonably be anticipated to have a material adverse effect upon the
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existing or expected financial condition, operating results, assets, customer or
supplier relations, employee relations or business prospects of the Company.
J. Recent Occurrences. Since the Financial Statement Date, the Company
has conducted its business only in the ordinary and usual course and there has
not occurred any material adverse change in the financial condition, operating
results, assets, or business prospects of the Company. Since the Financial
Statement Date, the Company has not (i) suffered any material damage,
destruction or loss, whether or not covered by insurance; (ii) waived any
valuable right or debt; (iii) entered into or amended or suffered the
termination or expiration of or defaulted on any material contract or agreement;
(iv) incurred any indebtedness; (v) suffered any resignation, termination or
other cessation of employment of any officer or key employee; (vi) disclosed any
material confidential and proprietary information; (vii) satisfied or waived any
Lien or obligation, except in the ordinary course of business which in the
aggregate are not material; (viii) modified any compensation arrangement; (ix)
sold, assigned, transferred or licensed any patent, trademark, copyright, trade
secret or other intellectual property right, or any interest therein; (x)
received notice that any significant customer or supplier has (or intends to)
adversely modify its business relationship with the Company or cancel any order;
(xi) suffered any event or occurrence that could cause any material adverse
change in the financial condition, operating results, assets, operations or
business prospects of the Company; or (xii) entered into any arrangement or
commitment to do any of the foregoing.
K. Registration Rights. Except as set forth on the Schedule of
Exceptions, the Company is not currently under any obligation to register under
the Securities Act any of its presently outstanding securities or any of its
securities which may hereafter be issued. The Company is not restricted pursuant
to the terms of any existing registration rights from granting additional
registration rights as contemplated by the Registration Rights Agreement and
none of the registration rights disclosed on the Schedule of Exceptions provides
the holders thereof priority over the Holders (as defined in the Registration
Rights Agreement) in the event of a "claw back" by an underwriter or manager of
an underwriter public offering.
L. Securities Laws. The sale and delivery of the Common Stock issued to
the Purchaser are exempt from the requirement of registration under the
Securities Act and applicable state securities laws. Except as set forth on the
Schedule of Exceptions, the Securities Act and state securities laws were not
violated by the original issuance of the Company's capital stock to its existing
shareholders and will not be violated by the execution of this Agreement or the
consummation of the transactions contemplated hereby; provided that, the
representations and warranties made in this Section 5.L with respect to the
Purchaser assume that the representations and warranties of the Purchaser
contained in Section 7.C are true and correct.
M. Commission Documents. The Company has delivered or made available to
the Purchaser each registration statement, report, proxy statement or
information statement (as defined in Regulation 14C under the Exchange Act)
prepared by it since January 1, 1998, which reports constitute all of the
documents required to be filed by the Company with the Commission since such
date, each in the form filed with the Commission (collectively, the "Company
Reports"). As of their respective dates, the Company Reports (a) complied as to
form in all material respects with the applicable requirements of the Securities
Act or the Securities Exchange Act, as the case may be, and the rules and
regulations thereunder; and (b) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. The Company has timely filed with
the Commission all reports required to be filed under Section 13, 14 and 15(d)
of the Exchange Act. Each of the balance sheets of the Company included in or
incorporated by reference into the Company Reports (including the related notes
and schedules) fairly present in all material respects the financial position of
8
the Company and its Subsidiaries as of its date (subject, in the case of
unaudited statements, to normal year-end audit adjustments which would not be
material in amount or effect), and each of the statements of operations, changes
in stockholders' equity and cash flows of the Company included in or
incorporated by reference into the Company Reports (including any related notes
and schedules) fairly present in all material respects the results of
operations, changes in stockholders' equity or cash flows, as the case may be,
of the Company and its Subsidiaries for the periods set forth therein (subject,
in the case of unaudited statements, to normal year-end audit adjustments which
would not be material in amount or effect). The financial statements of the
Company, including the notes thereto, included in or incorporated by reference
into the Company Reports comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the Commission with respect thereto, and have been prepared in accordance
with GAAP. Since January 1, 1998, there has been no material change in the
Company's accounting methods or principles except as described in the notes to
such Company financial statements.
N. Transactions with Affiliates. Except as set forth in the Company
Reports and except with respect to the transactions contemplated hereby, there
has been no transaction, agreement, arrangement or understanding, or any related
series thereof, between the Company and/or the Subsidiaries and the Company"s
Affiliates (other than wholly-owned Subsidiaries).
O. No Vote Required; State Takeover Statutes; Poison Pill.
(i) No vote of holders of the Company's capital stock is
necessary to execute and deliver this Agreement, or to consummate the
transactions contemplated by this Agreement.
(ii) No state takeover statute or similar statute or
regulation of the State of Florida (and, to the knowledge of the
Company after due inquiry, of any other jurisdiction) applies or
purports to apply to this Agreement or any of the transactions
contemplated hereby. No provision of the Articles of Incorporation,
By-laws or other governing instruments of the Company or any of the
Subsidiaries or any applicable law would, directly or indirectly,
restrict or impair the ability of the Purchaser to vote, or otherwise
to exercise the rights of a shareholder with respect to, shares of the
Company that may be beneficially owned by the Purchaser.
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(iii) The Company is not subject to any Rights Plan or Rights
Agreement or any other document commonly referred to as a "poison pill"
which would be triggered by or as a result of this transaction.
Section 6. Definitions. For the purposes of this Agreement, the
following terms have the meanings set forth below:
"Affiliate" of any particular Person means any other Person
controlling, controlled by, or under common control with such particular Person,
including, but not limited to, any current or former employee, officer or
director or entity in which any of them has any direct or indirect interest.
"Affiliated Group" means an affiliated group as defined in Section 1504
of the IRC (or any analogous combined, consolidated, or unitary group defined
under state, local, or foreign income Tax law).
"Assignment Agreement" has the meaning set forth in Section 2.A.
"Financial Statement Date" means June 30, 2001, provided that the draft
financial statements relating to that date and for the quarter and fiscal year
ended on such date which were presented to the Purchaser for review are
certified by the Company's independent auditors, and if not so certified, then
"Financial Statement Date" means June 30, 2000.
"Commission" means the Securities and Exchange Commission and includes
any governmental body or agency succeeding to the functions thereof.
"Common Stock" means the Company's Common Stock, par value $.001.
"Company Reports" has the meaning set forth in Section 5.M.
"GAAP" means generally accepted accounting principles consistently
applied.
"IRC" means the Internal Revenue Code of 1986, as amended, and any
reference to any particular IRC section shall be interpreted to include any
revision of or successor to that section regardless of how numbered or
classified.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien, or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof), any sale of
receivables with recourse against the Company or any of its Affiliates, any
filing or agreement to file a financing statement as debtor under the Uniform
Commercial Code or any similar statute other than to reflect ownership by a
third party of property leased to the Company under a lease which is not in the
nature of a conditional sale or title retention agreement, or any subordination
arrangement in favor of another Person (other than any subordination arising in
the ordinary course of business).
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"Officer's Certificate" means a certificate signed by the Company's
President, stating that: (i) the officer signing such certificate has made or
has caused to be made such investigations as are necessary in order to permit
such officer to verify the accuracy of the information set forth in such
certificate; and (ii) such certificate does not misstate any material fact and
does not omit to state any fact necessary to make the certificate not
misleading.
"Option" has the meaning set forth in Section 2.A.
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or other entity, and a governmental
entity or any department, agency, or political subdivision thereof.
"Placement Warrants" has the meaning set forth in Section 7.A.
"Restricted Securities" means: (i) the Common Stock issued hereunder;
(ii) the Warrants and the Placement Warrants and the shares of Common Stock
issuable upon conversion thereof; and (iii) any securities issued with respect
to the securities referred to in clause (i) or (ii) above by way of a stock
dividend or stock split, or in connection with combination of shares,
recapitalization, merger, consolidation, or other reorganization. As to any
particular Restricted Securities, such securities shall cease to be Restricted
Securities when they have: (a) been effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them;
(b) become eligible for sale pursuant to Rule 144(k) (or any similar provision
then in force) under the Securities Act; or (c) been otherwise transferred and
new certificates for them not bearing the Securities Act legend set forth in
Section 7.C have been delivered by the Company in accordance with Section 7.C.
Whenever any particular securities cease to be Restricted Securities, the holder
thereof shall be entitled to receive from the Company, without expense, new
securities of like tenor not bearing a Securities Act legend of the character
set forth in Section 7.C.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal law then in force.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association, or other business entity of
which: (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers, or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof; or (ii) if a limited
liability company, partnership, association, or other business entity, a
majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by any Person or one or
more Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest in a
11
limited liability company, partnership, association, or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association, or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association, or other business entity.
"Tax" or "Taxes" means any: (i) federal, state, local, or foreign
income, gross receipts, franchise, estimated, alternative minimum, add-on
minimum, sales, use, transfer, registration, value added, excise, natural
resources, severance, stamp, occupation, premium, windfall profit,
environmental, customs, duties, real property, personal property, capital stock,
social security, unemployment, disability, payroll, license, employee or other
withholding, or other tax, of any kind whatsoever, including any interest,
penalties, or additions to tax or additional amounts in respect of the
foregoing; (ii) liability of the Company for the payment of any amounts of the
type described in clause (i) arising as a result of being (or ceasing to be) a
member of any Affiliated Group (or being included (or required to be included)
in any Tax Return relating thereto); and (iii) liability of the Company for the
payment of any amounts of the type described in clause (i) as a result of any
express or implied obligation to indemnify or otherwise assume or succeed to the
liability of any other person (including, but not limited to, as a successor or
transferee).
"Tax Returns" means returns, declarations, reports, claims for refund,
information returns, or other documents (including any related or supporting
schedules, statements, or information) filed or required to be filed in
connection with the determination, assessment, or collection of Taxes of any
party or the administration of any laws, regulations, or administrative
requirements relating to any Taxes.
"Transaction Documents" means this Agreement, the Registration Rights
Agreement, the Assignment Agreement, the Escrow Agreement and all other
agreements contemplated hereby to which the Company is, or may be from time to
time, a party, or any schedule, certificate, exhibit or instrument furnished or
to be furnished by the Company hereunder or thereunder.
"Warrants" shall have the meaning set forth in Section 1.A.
Section 7. Miscellaneous.
A. Expenses. As a further inducement for the Purchaser to consummate
the transactions contemplated hereby, the Company agrees to pay Stanford Group
Company a fee at Closing of $97,500 in cash and to issue Stanford Group Company
warrants to purchase 50,000 shares of Common Stock at an exercise price of $1.50
per share and warrants to purchase 37,500 shares of Common Stock at an exercise
price of $2.125 per share (the "Placement Warrants"). In addition, the Company
shall reimburse Purchaser for its reasonable fees and expenses (including its
reasonable fees and expenses of its counsel and other advisors) which Purchaser
has incurred in connection with the Closing up to a maximum of $10,000. In
addition, the Company agrees to pay, and hold Purchaser harmless against
liability for the payment of: (i) its reasonable fees and expenses (including
its reasonable fees and expenses of its counsel and other advisors) arising in
connection with the interpretation, modification, monitoring and enforcement of
12
its rights under the Transaction Documents, and the consummation of the
transactions contemplated hereby and thereby (including, but not limited to, any
subsequent or proposed acquisitions, sales, mergers, or re-capitalizations by
the Company); (ii) the reasonable fees and expenses incurred with respect to any
amendments or waivers (whether or not the same become effective) under or in
respect of the Transaction Documents; (iii) reasonable travel expenses and other
reasonable out-of-pocket fees and expenses as have been or may be incurred by
Purchaser, its directors, officers and employees in connection with the
transactions contemplated hereby or in attending Board or other of the Company's
meetings; and (iv) stamp and other Taxes which may be payable in respect of the
execution and delivery of this Agreement or the issuance, delivery, or
acquisition of any shares of Common Stock purchased hereunder.
B. Remedies. The Purchaser shall have all rights and remedies set forth
in this Agreement and all rights and remedies which such holder has been granted
at any time under any other agreement or contract and all of the rights which
such holder has under any law. Any Person having any rights under any provision
of this Agreement shall be entitled to enforce such rights specifically, to
recover damages by reason of any breach of any provision of this Agreement, and
to exercise all other rights granted by law.
C. Purchaser's Investment Representations. The Purchaser hereby
represents that such Purchaser is acquiring the Restricted Securities purchased
hereunder for its own account with the present intention of holding such
securities for purposes of investment, and that it has no intention of selling
such securities in a public distribution in violation of the federal securities
laws or any applicable state securities laws; provided that nothing contained
herein shall prevent such Purchaser and subsequent holders of Restricted
Securities from transferring such securities in compliance with the provisions
of Section 4 hereof and any agreements to which such Persons may be parties.
Each certificate for Restricted Securities shall be imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON SEPTEMBER 7, 2001, AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO THE CONDITIONS SPECIFIED IN THE STOCK PURCHASE
AGREEMENT, DATED AS OF SEPTEMBER 7, 2001, BETWEEN THE ISSUER
(THE "COMPANY") AND A CERTAIN INVESTOR, AND THE COMPANY
RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES
UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH
TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT
CHARGE."
13
If the holder of the Restricted Securities delivers to the Company an
opinion of qualified securities counsel reasonably acceptable to the Company
that no subsequent transfer of such Restricted Securities shall require
registration under the Securities Act, however, the Company shall promptly upon
such contemplated transfer deliver new certificates for such Restricted
Securities which do not bear the Securities Act legend set forth in this Section
7.C.
D. Consent to Amendments. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, if and when the Company has obtained the written consent of
Purchaser. No other course of dealing between the Company and Purchaser or any
delay in exercising any rights hereunder shall operate as a waiver of any rights
of Purchaser.
E. Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement for the
applicable statute of limitations, regardless of any investigation made by the
Purchaser or on its behalf.
F. Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for the Purchaser's benefit as the
Purchaser or holder of Common Stock are also for the benefit of, and enforceable
by, any subsequent holder of such Common Stock.
G. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but, if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, then such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
H. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one
and the same Agreement.
14
I. Descriptive Headings; Interpretation. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. Whenever required by the context, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs
shall include the plural and vice versa. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation. Reference to any
agreement, document, or instrument means such agreement, document, or instrument
as amended or otherwise modified from time to time in accordance with the terms
thereof, and if applicable hereof. Without limiting the generality of the
immediately preceding sentence, no amendment or other modification to any
agreement, document, or instrument that requires the consent of any Person
pursuant to the terms of this Agreement or any other agreement will be given
effect hereunder unless such Person has consented in writing to such amendment
or modification.
J. Governing Law. This Agreement shall be construed in accordance with
and governed for all purposes by the laws of the State of Florida applicable to
contracts executed and to be wholly performed within such State without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Florida or any other jurisdiction) that would cause the application
of the laws of any other jurisdiction other than the State of Florida. EACH OF
THE PARTIES HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDINGS OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTES OR CLAIMS,
WHETHER ANY SUCH PROCEEDINGS, DISPUTES OR CLAIMS RELATE TO OR ARISE IN CONTRACT,
TORT OR OTHERWISE, WHETHER WITH RESPECT TO THIS AGREEMENT OR ANY OTHER DOCUMENTS
OR INSTRUMENTS DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. This Agreement shall be subject to the exclusive
jurisdiction of the courts of the State of Florida located in Miami-Dade County,
Florida or the United States District Court for the Southern District of
Florida. The parties to this Agreement agree that any breach of any term or
condition of this Agreement shall be deemed to be a breach occurring in the
State of Florida by virtue of a failure to perform an act required to be
performed in the State of Florida and irrevocably and expressly agree to submit
to the jurisdiction of such courts in the State of Florida for the purpose of
resolving any disputes among the parties relating to this Agreement or the
transactions contemplated hereby. The parties irrevocably waive, to the fullest
extent permitted by law, any objection which they may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement, or any judgment entered by any court in respect hereof
brought in Miami-Dade County, Florida, and further irrevocably waive any claim
that any suit, action or proceeding brought in Miami-Dade County, Florida has
been brought in an inconvenient forum.
K. Notices. All notices, demands, or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient or sent to the recipient by a nationally-recognized express courier
15
service (charges prepaid) for next business day delivery. Such notices, demands,
and other communications shall be sent to the Purchaser and to the Company at
the address indicated below:
If to the Company:
International Cosmetics Marketing Co.
0000 X.X. Xxxx xx Xxxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxx X. Xxxxx
with a copy to:
Atlas Xxxxxxxx, P.A.
000 X. Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to the Purchaser:
Stanford Venture Capital Holdings, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxx, Esq.
with a copy to:
Akerman Senterfitt
0 X.X. 0xx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
L. Rights. This Agreement shall not confer any rights or remedies upon
any Person, other than the parties hereto and their respective heirs,
successors, and permitted assigns.
M. Amendments. Any reference contained herein to any agreement,
instrument, or other document shall include any amendments or modifications made
to such agreement, instrument, or other document made from time to time in
accordance with the terms thereof, and if applicable, hereof.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement on the date first written above.
INTERNATIONAL COSMETICS MARKETING CO.
D/B/A XXXXXXX XXXXXXX & CO.
By: /s/ Xxx X. Xxxxx
---------------------------------------------
Name: Xxx X. Xxxxx
Title: President
STANFORD VENTURE CAPITAL HOLDINGS, INC.
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Person
