EXHIBIT 10.12
STOCK PURCHASE AGREEMENT ENTERED INTO ON OCTOBER 12, 1999 AND
DATED AS OF JUNE 30, 1999 AMONG THE COMPANY,
XXXXX XXXXXXXXXXX AND XXXXXXX XXXXXXXXXX
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") dated as of June 30,
1999, by and among Computer Marketplace, Inc., a Delaware corporation (the
"Seller"), Xxxxx Xxxxxxxxxxx, an individual residing at 00000 Xxxxx Xxxxx, Xxxxx
Xxxxxx, XX 00000 ("Xxxxxxxxxxx"), and Xxxxxxx Xxxxxxxxxx, and individual
residing at 0000 Xxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000 ("Lathouwers" with
Xxxxxxxxxxx, the "Purchasers", and individually each a "Purchaser").
R E C I T A L S:
WHEREAS, the Seller is the owner of two million five hundred thousand
(2,500,000) shares (the "Shares") of Common Stock, par value $.0001 per share
("Common Stock"), of Medical Marketplace, Inc., a Delaware corporation (the
"Company"), constituting all of the issued and outstanding capital stock of the
Company; and
WHEREAS, New Millennium Leasing, Inc. is a wholly owned subsidiary of
Medical Marketplace, Inc.; and
WHEREAS, the Seller desires to sell to the Purchasers, and the
Purchasers desire to acquire from Seller the Shares, on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the terms and
conditions herein contained, the parties mutually agree as follows and for other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged:
1. PURCHASE OF SECURITIES; TERMS OF PAYMENT.
1.1 Sale and Purchase. Subject to the terms and conditions set forth in
this Agreement, the Seller agrees to sell and deliver to the Purchasers, and the
Purchasers agrees to purchase from the Seller on the closing date (the "Closing
Date") all of the Shares.
1.2 Purchase Price. On the Closing Date, the Purchasers shall deliver
to Seller an aggregate purchase price of sixty-five thousand dollars ($65,000)
payable (i) by wire transfer (or delivery of a certified check) by Purchasers to
Seller of forty thousand dollars ($40,000), and (ii) delivery of an executed
Secured Promissory Note by Purchasers in the principal amount of twenty five
thousand dollars ($25,000), a form of which is attached hereto as Exhibit A (the
"Note").
2. CLOSING.
2.1 Closing and Closing Date. The closing (the "Closing") shall take
place as of the date hereof (the "Closing Date"). The Purchasers and the Seller
agree that, at or before the Closing, they shall perform all such acts and
execute and deliver all such documents as may be required to consummate the
purchase of the Shares, including, but not limited to, the delivery of 50% of
the Shares accompanied by a stock power which evidences the transfer of the
Shares from Seller to each of the Purchasers.
2.2 Conditions to Closing. The Closing shall be subject to satisfaction
of the condition that on the Closing Date the representations, warranties and
covenants of (i) the Seller contained in Section 3 hereof, and (ii) the
Purchasers contained in Section 4 hereof, shall then be true in all respects.
2.3 Books and Records. At or prior to the Closing, Seller will deliver
to the Purchasers a copy of (i) all audited financial statements of Seller,
including financial statements of the Company, and (ii) all state and federal
tax returns filed by the Company with the appropriate taxing authorities, since
the inception of the Company. In addition, upon filing of Seller's Annual Report
on Form 10-KSB for the year ended June 30, 1999, Seller shall deliver a copy
thereof to the Purchasers including the financial statements of the Company
included therein. Each of the parties agrees to assist the Purchasers (and the
Company) as reasonably necessary by delivering copies of books and records
within its control.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER. The Seller
represents, warrants and covenant to Purchasers as follows:
3.1 Authorization. The Seller has the full legal right, power and all
authority and approval required to enter into, execute and deliver this
Agreement and to perform fully his obligations hereunder. The execution and
delivery of this Agreement and the performance of Seller's obligations hereunder
does not and will not conflict with any agreement, judgment or order to which
Seller is a party.
3.2 Binding Obligation. Assuming the due execution and delivery of this
Agreement by the Purchasers, this Agreement constitutes the valid and binding
obligation of the Seller, enforceable against the Seller in accordance with its
terms, subject, as to enforcement, (i) to bankruptcy, insolvency,
reorganization, arrangement, moratorium and other laws of general applicability
relating to or affecting creditors' rights and (ii) to general principles of
equity, whether such enforceability is considered in a proceeding in equity or
at law.
3.3 The Shares. The Seller warrants and represents that the Seller
holds the Shares free and clear of all liens, pledges, hypothecations, options,
contracts and other encumbrances ("Encumbrances"), and upon transfer from the
Seller to the Purchaser the Shares will remain free and clear of all
Encumbrances. Assuming execution and delivery by all holders of options to
purchase shares of the Company's capital stock of that certain option surrender
agreement, a form of which is attached hereto as Exhibit B, there are no
options, warrants or other securities convertible into or exercisable for any
shares of Company capital stock. All of the Shares have been fully paid and
validly issued in compliance will applicable laws.
3.4 Sale of Stock by Purchaser. At or prior to the Closing, the Seller
agrees to use its best efforts to assist Xxxxxxxxxxx in selling shares of
Seller's common stock beneficially owned by him.
3.5 Government Filings. So long as information provided by Purchasers
regarding the Company is accurate, correct and complete, the Seller believes
that all required state and federal governmental filings, including all tax
returns, have been timely and accurately filed with the appropriate taxing
authorities.
3.6 Obligations of the Company. To Seller's knowledge, Seller has not
incurred any undisclosed liability or other obligation on behalf of the Company.
3.7 True as of Closing Date. The Seller warrants and represents that
the warranties and representations contained in this Section 3 are true and
correct in all respects as of the Closing Date.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS. Each of
the Purchasers represent, warrant and covenant to Seller with respect to himself
as follows:
2
4.1 Authorization. Each of the Purchasers has the full legal right,
power and all authority and approval required to enter into, execute and deliver
this Agreement and to perform fully his obligations hereunder. The execution and
delivery of this Agreement and the performance of Seller's obligations hereunder
does not and will not conflict with any agreement, judgment or order to which a
Purchaser is a party.
4.2 Binding Obligation. Assuming the due execution and delivery of this
Agreement by the Seller, this Agreement constitutes the valid and binding
obligation of each of the Purchasers, enforceable against each Purchaser in
accordance with its terms, subject, as to enforcement, (i) to bankruptcy,
insolvency, reorganization, arrangement, moratorium and other laws of general
applicability relating to or affecting creditors' rights and (ii) to general
principles of equity, whether such enforceability is considered in a proceeding
in equity or at law.
4.3 Investment Representations. The transfer of the Shares in this
transaction is intended to be a private transaction exempt from registration
under the Securities Act of 1933, as amended (the "Securities Act"), and is made
in reliance upon the representations set forth below:
(a) Each of the Purchasers is acquiring the Shares for his own account
for investment only and not with a view to, or for sale in connection with, a
distribution of the Shares in violation of the Securities Act and any applicable
state securities or blue-sky laws;
(b) Each of the Purchasers acknowledge to the Seller that:
(i) each Purchaser understands that the Shares have not been
registered under the Securities Act or under the laws of any state on the basis
that the transfer thereof contemplated by this Agreement is exempt from such
registration and the certificate representing the Shares shall contain a
restrictive legend reflecting the fact that the Shares have not been registered;
(ii) the Seller's reliance on the availability of such
exemption is, in part, based upon the accuracy and truthfulness of each
Purchaser's representations contained herein;
(iii) the Shares cannot be resold without registration or an
exemption under the Securities Act and such state securities laws, and that
certificates representing the Shares will bear a restrictive legend to such
effect; and
(iv) each Purchaser has evaluated the merits and risks of
acquiring the Shares and has such knowledge and experience in financial and
business matters and is capable of evaluating the merits and risks of such
acquisition, is aware of and has considered the financial risks and financial
hazards of acquiring the Shares, and is able to bear the economic risk of
acquiring the Shares, including the possibility of a complete loss with respect
thereto.
4.4 Operation of the Company. Except as set forth on Schedule 4.4 to
this Agreement, there are no liabilities, losses, claims or events or
circumstances, contingent or otherwise, which may because of the Company's
failure to perform, or the passage of time, or both, result in a liability, loss
or claim against the Seller (a "Company Liability"). Until (i) the Note has been
paid in full or the obligations thereunder have been deemed satisfied and (ii)
there are no potential Company Liabilities, each of the Purchasers shall use its
best efforts to operate the business of Medical Marketplace in compliance with
all applicable laws, rules and regulations and consistent with good business
practices. Further, until (i) the Note has been paid in full or the obligations
thereunder have been deemed satisfied and (ii) all Company Liabilities have
terminated to the reasonable satisfaction of Seller, the Purchasers shall not
permit the Company (or its affiliates) to pay more than a total of $23,600 (plus
3
customary health benefits and life insurance payments made heretofore by the
Company) during any calendar month as salary, wages, bonuses or other
compensation to all employees, consultants, officers, directors, partners, and
co-venturers, without the Seller's prior written consent, except that the
Company may pay reasonable and customary fees to third parties who have
introduced transactions to the Company and such introduced transactions were
consummated prior to any payment thereto. Each of the Purchaser's acknowledge
and understand that a material breach of this covenant shall permit the Seller,
under the terms of the Note, to accelerate the Note, and seize the Pledged
Collateral (as defined in the Note).
4.5 Books and Records; Audits. Each of the Purchasers shall cause the
Company to prepare and maintain complete and accurate books of account and
records. Until (i) the Note has been paid in full or deemed satisfied, or (ii)
all Company Liabilities have terminated to the reasonable satisfaction of
Seller. Seller and its duly authorized representatives have the right upon two
(2) days prior notice, during regular business hours, to audit said books of
account and records and examine all other documents and material in the
possession or under the control of the Company. Seller shall use its best
efforts to conduct such audit in manner as not to interfere with the Company's
normal business activities.
4.6 Assignment of Receivable. Each of the Purchasers shall cause the
Company to execute and deliver at the Closing an assignment of all rights of the
Company to receive the first $225,000 paid by Xxxxx Xxx, d/b/a Arkansas Imaging
with respect to that certain Stipulation for Entry of Judgment, Case No. 315251
in the Superior Court of California, County of Riverside, or any other payment
made by Xx. Xxx (the "Arkansas Imaging Judgment"), a form of which is attached
hereto as Exhibit C.
4.7 True as of Closing Date. Each of the Purchasers warrant and
represent that the warranties, representations and covenants contained in this
Section 4 are true and correct in all respects as of the Closing Date.
5. MISCELLANEOUS.
5.1 Disclosure. The Purchasers acknowledge as the senior managers of
the Company's business that they are familiar with the Company and are relying
solely on their own knowledge of the Company's business when they considered
entering into this Agreement and whether to consummate the transactions
contemplated hereby.
5.2 Indemnification. Each of the parties hereto agree to indemnify the
other party for any losses, claims or liabilities incurred by such party as a
result of , or arising of out of, a breach of its representations and warranties
contained in this Agreement.
5.3 Survival of Terms. All representations, warranties and covenants
contained in this Agreement or in any certificates or other instruments
delivered by or on behalf of the parties hereto shall be continuous and survive
the execution of this Agreement and the Closing.
5.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (without regard to conflict of
laws).
5.5 Assignment. This Agreement shall be binding upon the parties hereto
and may not be assigned without the prior written consent of the other parties
hereto.
4
5.6 No Waiver. Any waiver by either party to this Agreement of any
provision of this Agreement shall not be construed as a waiver of any other
provision of this Agreement, nor shall such waiver be construed as a waiver of
such provision respecting any future event or circumstance.
5.7 Notices. Notices hereunder shall be given only by personal
delivery, registered or certified mail, return receipt requested, overnight
courier service, or telex, telegram, facsimile or other form of electronic mail
and shall be deemed transmitted when personally delivered or deposited in the
mail or delivered to a courier service or a carrier for electronic transmittal
or electronically transmitted by facsimile (as the case may be), postage or
charges prepaid, and properly addressed to the particular party to whom the
notice is to be sent. Unless and until changed by notice given as provided
herein, notices shall be sent (i) to the Seller, at its corporate headquarters,
and (ii) to each of the Purchasers, at his address set forth on the first page
of this Agreement.
5.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.9 Variations in Pronouns. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the antecedent person or persons or entity or
entities may require.
5.10 Headings. The headings used in this Agreement are for convenience
only and shall not by themselves determine the interpretation, construction or
meaning of this Agreement.
5.11 Binding Effect; Release of Inter-Company Indebtedness. This
Agreement and the Note, constitute and contain the entire agreement of the
parties with respect to the subject matter hereof and supersede any and all
prior negotiations, correspondence, understandings and agreements between the
parties with respect hereto. This Agreement may be amended or modified only by a
written instrument signed by the parties hereto. The Seller and each of the
Purchasers, on behalf of themselves and the Company, hereby release and
discharge all indebtedness and other obligation existing as of the date hereof
from Seller to the Company, and from the Company to the Seller, except for the
indebtedness and obligations contemplated by this Purchase Agreement and the
Note.
5.12 Additional Assurances. Each of the parties agrees to furnish to
the other party, promptly upon request therefor, such additional documents or
instruments, if any, in connection with the sale of the Shares to the
Purchasers.
5
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed as of the day and year first above written.
COMPUTER MARKETPLACE, INC.
By: /s/ L. Xxxxx Xxxxx
-------------------------------------
Name: L. Xxxxx Xxxxx
Title: Chief Executive Officer
/s/ Xxxxx Xxxxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxxxx
6
