PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), dated as of December 19, 2002, by
and between Xxxxxx Partners, LLC (the "Purchaser") and Whiffletree Partners,
L.P. (the "Seller").
W I T N E S S E T H :
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WHEREAS, the Seller is the owner of that certain 4% convertible
subordinated note, dated October 31, 2001, in the principal amount of $500,000
issued by Xxxxxx, Inc. (the "Note");
WHEREAS, the Purchaser desires to purchase the Note from the Seller, and
the Seller desires to sell the Note to the Purchaser in accordance with the
terms hereof.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein set forth, the parties hereto agree as follows:
ARTICLE I
Sale and Exchange
1.1 Sale of the Note. The Seller hereby sells, conveys, transfers and
delivers to the Purchaser, and the Purchaser hereby purchases and accepts, the
Note, together with the right to receive all accrued interest thereon, in
accordance with the terms hereof.
1.2 Consideration. In reliance upon the representations, warranties,
covenants and agreements contained herein, subject to the terms and conditions
hereof, and in consideration of the sale, conveyance, transfer and delivery of
the Note, together with the right to receive all accrued interest thereon,
pursuant to Section 1.1, the Purchaser shall deliver to the Seller at the
Closing described in Section 1.4 hereof $254,500 in immediately available funds
(the "Purchase Price").
1.3 Commission. At the Closing, the Seller shall pay $1,250 and the
Purchaser shall pay $2,500 to Wm. Xxxxx Securities, Incorporated, as a
commission on the sale and transfer of the Note (the "Commission").
1.4 Closing. The closing of the purchase of the Note (the "Closing")
shall take place simultaneously with the execution hereof, unless the parties
shall otherwise agree, at the offices of Xxxx Xxxxxxx, P.C., 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on December 27, 2002 at 10:00 A.M. or at such
other place or time as the parties may agree (the "Closing Date"). At the
Closing, the Seller shall deliver the Note, together with a note power, duly
endorsed in blank and medallion guaranteed, to the Purchaser and the Commission
to Wm. Xxxxx Securities, Incorporated, and the Purchaser shall deliver the
Purchase Price to the Seller.
1.5 Further Assurances. In addition to the other obligations required to
be performed by the Seller and the Purchaser hereunder, each of the Seller and
the Purchaser agrees that it shall, at the Closing and at any time, and from
time to time thereafter, without cost to the other, execute, acknowledge and
deliver such instruments and documents, and take such other actions, as may
reasonably be requested of it by the other in order to effectively vest in the
Purchaser good and marketable title to the Note purchased by such Purchaser,
free and clear of all liens, pledges, or encumbrances.
ARTICLE II
Purchaser's Representations and Warranties
The Purchaser hereby represents and warrants to the Seller that:
2.1 Validity and Binding Agreement. The Purchaser has full power,
authority and legal capacity to (i) execute, deliver and perform this Agreement
and (ii) consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Purchaser. This Agreement constitutes
the legal, valid and binding obligation of the Purchaser enforceable against it
in accordance with its terms.
2.2 No Violation or Conflict. The execution, delivery and performance of
this Agreement by the Purchaser and the consummation by the Purchaser of the
transactions contemplated hereby do not violate or conflict with (i) any law,
rule or regulation applicable to the Purchaser, (ii) its limited liability
company agreement or other organizational documents, or (iii) any other
agreement or instrument to which the Purchaser is a party.
2.3 Acquisition of the Note for Own Account; Restrictions on Transfer.
The Purchaser is acquiring the Note for investment and not with a view to the
sale or distribution thereof, and is acquiring such Note for its own account and
not on behalf of others and has not granted any other person any right or option
or any participation or beneficial interest in any of the Note. The Purchaser
acknowledges its understanding that the Note constitutes restricted securities
within the meaning of Rule 144 of the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), and that such Note may not be sold except pursuant to an effective
registration statement under the Securities Act or in a transaction exempt from
registration under the Securities Act, and acknowledges that it understands the
meaning and effect of such restriction. The Purchaser has sufficient knowledge
and experience in financial and business matters so that it is capable of
evaluating the risks and merits of the acquisition of the Note.
2.4 Accreditation. The Purchaser is an accredited investor within the
meaning of Rule 501 of the rules and regulations of the Commission promulgated
under the Securities Act, and has the financial ability to bear the economic
risk of its acquisition of the Note.
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ARTICLE III
Seller's Representations and Warranties
The Seller hereby represents and warrants to the Purchaser that:
3.1 Validity and Binding Agreement. The Seller has full power, authority
and legal capacity to (i) execute, deliver and perform this Agreement and (ii)
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Seller. This Agreement constitutes the legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms.
3.2 No Violation or Conflict. The execution, delivery and performance of
this Agreement by the Seller and the consummation by the Seller of the
transactions contemplated hereby do not violate or conflict with (i) any law,
rule or regulation applicable to the Seller, (ii) its limited partnership
agreement or other organizational documents, or (iii) any other agreement or
instrument to which the Seller is a party.
3.3 Title to the Note. The Seller is the record and beneficial owner of,
and has good and marketable title to, the Note, and such Note are owned free and
clear of any liens, encumbrances, pledges, security interests and claims
whatsoever (collectively, "Encumbrances"). At the Closing, the Seller will
transfer and convey, and the Purchaser will acquire, good and marketable title
to the Note free and clear of all Encumbrances.
ARTICLE IV
Indemnification
Each of the Seller and the Purchaser shall indemnify and hold the other
harmless from and against any and all liabilities, damages, claims,
deficiencies, costs and expenses, including, without limitation, reasonable fees
and disbursements of counsel arising in connection with, or incident to any
breach or violation by such party of any of its representations, warranties,
covenants or agreements contained in this Agreement or arising out of any of the
transactions contemplated by this Agreement.
ARTICLE V
Notices
Any notice, demand, waiver, or consent required or permitted hereunder
shall be in writing and shall be given personally or by registered or certified
mail, with return receipt requested, or by facsimile transmission, addressed as
follows:
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If to the Seller:
Whiffletree Partners, L.P.
Xxx Xxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxxxx
If to the Purchaser:
Xxxxxx Partners, LLC
Two Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
A given notice shall be deemed received upon the date of delivery if given
personally or by facsimile transmission (with delivery of a copy by registered
or certified mail), or, if given by registered or certified mail, on the fifth
day after the day on which it is deposited in the mails properly addressed with
postage prepaid as herein provided. Any party may change his or her address for
the purpose of notice by giving notice in accordance with the provisions of this
Article V.
ARTICLE VI
Miscellaneous
This Agreement sets forth the entire understanding of the parties and
supersedes any and all prior agreements, arrangements and understandings
relating to the subject matter hereof, and no representation, promise,
inducement or statement of intention has been made by any party, which is not
embodied herein and no party shall be bound by, or be liable for, any alleged
representation, promise, inducement or statement of intention not embodied
herein. This Agreement may not be amended or modified orally and no waiver of
compliance with any provision or condition hereof shall be effective unless
evidenced by an instrument in writing duly executed by the party hereto sought
to be charged with such amendment, modification or waiver. This Agreement shall
be binding upon and inure to the benefit of the parties and their respective
successors and assigns. This Agreement may be executed in any number of
counterparts, and all such counterparts shall constitute one and the same
instrument. Facsimile copies shall be deemed valid and binding. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to its conflict of laws rules, and all actions to
enforce any rights under this Agreement shall be brought and enforced in the
federal or state courts located in the county of New York, New York State, and
each party hereby irrevocably submits to the jurisdiction of such courts. Each
party hereby authorizes and accepts service of process and personal jurisdiction
in any action against it by certified mail, return receipt requested.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Sole Manager
WHIFFLETREE PARTNERS, L.P.
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
Title: Portfolio Manager of
Palisade Capital Management, LLC,
General Partner of
Whiffletree Partners, L.P.
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