EXHIBIT 10.6
STOCK REPURCHASE AGREEMENT
This Stock Repurchase Agreement (this "Agreement") is made and entered
into as of the 16th day of February, 2007 between CET Services, Inc., a
California corporation (the "Company"), and Xxxxxx X. Xxxxx, and individual
who resides at 0000 X. Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller is the owner of 1,000,000 shares (the "Shares") of
the issued and outstanding common stock of the Company, no par value per
share (the "Common Stock");
WHEREAS, the Company has entered into an Agreement and Plan of Merger
dated as of February 16, 2007, by and among the Company, Interactive
Acquisition Corporation, a Nevada corporation and wholly owned subsidiary of
the Company, Zoi Interactive Technologies, Inc, and CET Services of Nevada,
Inc., a Nevada Corporation, which provides for a merger (the "Merger") that,
if effected, would result in the Company being engaged in a new line of
business;
WHEREAS, the Company owns certain real property as described in
Attachment A hereto ("Property"), which, if the Merger is to become
effective, the Company will no longer desire to own;
WHEREAS, the Seller desires to purchase the Property in the event that
the Merger will be effected in exchange for the Shares; and
WHEREAS, the Seller wishes to sell and the Company wishes to purchase,
the Shares immediately prior to the consummation of the Merger on the terms
and subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Purchase and Sale of Shares
(a) On the terms and subject to the conditions of this Agreement, on
the Closing Date (as defined below) the Company shall purchase from the
Seller, and the Seller shall sell, transfer, assign, convey and deliver to
the Company, all of the Shares in exchange for the transfer of the properties
as set forth on Attachment A hereto. As set forth in Attachment A, the value
of the properties is in excess of the value of the Shares, and that the
difference will be paid to the Company in cash by Seller at the closing. It
is further agreed that in the event that the Company sells any or all of the
properties listed in Attachment A prior to the closing, the values assigned
to such properties in Attachment A will thereafter represent an amount of
cash to be paid to Seller at closing.
(b) The properties described in Attachment A will be transferred to
Seller by means of a quitclaim deed and such other documents as may be
reasonable and necessary to effect the transfer.
Section 2. Purchase Price.
The purchase price for the transaction is hereby agreed to be equal to
$659,862.78, as more fully detailed on Attachment A hereto.
Section 3. Closing.
The Closing (the "Closing") of the purchase and sale of the Shares shall
take place at such place and on such date (the "Closing Date") as the closing
date of the Merger. The Company shall give the Seller two (2) business days
advance written notice of the Closing Date.
Section 4. Delivery and Transfer of the Shares.
The transfer and sale of the Shares contemplated by this Agreement upon
the Closing shall (A) in the case of Shares held of record and beneficially,
be effectuated by the Seller delivering to the Company a certificate or
certificates representing such Shares, duly endorsed for transfer or
accompanied by appropriate stock powers duly executed, and any other
documents necessary to transfer the Shares to the Company, and (B) in the
case of Shares not represented by physical stock certificates, be effectuated
by Seller delivering a letter of instruction (the "Instruction Letter")
addressed to Seller's brokerage firm instructing such brokerage firm to cause
the electronic delivery of the Shares held in street name through the
Depository Trust Company ("DTC") (or another established clearing corporation
performing similar functions) to an account designated in writing by the
Company.
Section 5. Conditions to Closing.
(a) Mutual Conditions. The obligations of the Seller and the Company to
consummate the transactions contemplated by this Agreement are subject to the
fulfillment or waiver on or before the Closing Date of the following
conditions:
(i) No temporary restraining order, preliminary injunction or
permanent injunction or other order or decree which prevents the consummation
of the transactions contemplated by this Agreement shall have been issued and
remain in effect, and no statute, rule or regulation shall have been enacted
by any governmental entity which would prevent the consummation of the
transactions contemplated by this Agreement.
(ii) Any governmental or other approvals, reviews or consents of
this Agreement and the transactions contemplated by this Agreement required
including, but not limited to, under any applicable laws, statutes,
regulations, orders, rules, policies or guidelines promulgated thereunder
shall have been received or waived.
(b) Conditions to Obligations of the Company. The obligations of the
Company to consummate the transactions contemplated by this Agreement are
subject to the fulfillment or waiver on or before the Closing Date of the
following conditions:
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(i) The representations and warranties of the Seller contained in
Section 6 hereof shall be true and correct in all material respects on the
Closing Date with the same force and effect as though such representations
and warranties had been made on and as of the Closing Date.
(ii) The Merger shall be consummated immediately after the Closing
of this Agreement.
(c) Conditions to Obligations of the Seller. The obligations of the
Seller to consummate the transactions contemplated by this Agreement are
subject to the fulfillment or waiver on or before the Closing Date of the
following conditions:
(i) The representations and warranties of the Company contained in
Section 7 hereof shall be true and correct on the Closing Date with the same
force and effect as though such representations and warranties had been made
on and as of the Closing Date.
(ii) The Merger shall be consummated immediately after the Closing
of this Agreement.
Section 6. Representations and Warranties of the Seller.
The Seller represents and warrants to the Company as follows:
(a) Good Title. As of the Closing, Seller shall have good title to, the
right to possession of and the right to sell the Shares free and clear of any
pledges, liens, charges, encumbrances, proxies, options, rights to purchase
or other restrictions or potentially adverse claims of any kind or nature
(collectively, "Adverse Claims"), and concurrent with the Closing of this
Agreement, the Seller will transfer such Shares to the Company free and clear
of any Adverse Claims.
(b) Execution and Delivery. This Agreement has been duly executed and
delivered by the Seller and constitutes the legal, valid and binding
obligations of the Seller, enforceable in accordance with its terms, except
(i) as such enforceability may be limited by or subject to any bankruptcy,
reorganization, moratorium or other similar laws affecting creditors' rights
generally, (ii) as such obligations are subject to general principles of
equity, and (ii) as rights to indemnity may be limited by US federal or state
securities laws or by public policy.
(c) Access to Information. The Seller acknowledges that it has had an
opportunity to evaluate all information regarding the Company as it has
deemed necessary or desirable in connection with the transactions
contemplated by this Agreement, has independently evaluated the transactions
contemplated by this Agreement and has reached its own decision to enter into
this Agreement.
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(d) No Representation or Warranty Regarding Property. Seller
acknowledges that the Company has made no representation or warranty to
Seller regarding the quality or condition of the Property, or the suitability
of the Property for any intended use. Accordingly, Seller represents and
warrants that Seller is relying upon Seller's own review of the Property in
deciding to buy the Property.
Section 7. Representations and Warranties of the Company.
The Company hereby represents and warrants to the Seller as follows:
(a) Corporate Organization; Requisite Authority to Conduct Business.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. The Company has full
corporate power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby;
and this Agreement has been duly authorized and approved by its Board of
Directors and no further action on the part of the Company is necessary to
authorize the execution and delivery by it of, and the performance of its
obligations under, this Agreement. There are no corporate, contractual,
statutory or other restrictions of any kind upon the power and authority of
the Company to execute and deliver this Agreement and to consummate the
transactions contemplated hereunder and no action, waiver or consent by any
governmental entity is necessary to make this Agreement a valid instrument
binding upon the Company in accordance with its terms.
(b) Execution and Delivery. This Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms, except
(i) as such enforceability may be limited by or subject to any bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally, (ii) as such obligations are subject to general
principles of equity, and (iii) as rights to indemnity may be limited by US
federal or state securities laws or by public policy.
(c) No Violation; Absence of Defaults. The execution, delivery and
performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby does not and will not violate the Company's
certificate of incorporation or by-laws.
(d) Intentionally Omitted.
(e) Solvency Following Closing. Immediately following and after giving
effect to the Closing, the fair market value of the Company's assets will
exceed its liabilities and the Company anticipates following due
consideration of its financial position that its remaining cash will enable
it to pay all of its liabilities and obligations which have arisen on or
prior to the Closing as they become due and payable.
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Section 8. Indemnification.
(a) Indemnification by the Company. Subject to the limits set forth in
this Section 8, the Company agrees to indemnify, defend and hold the Seller
harmless from and against any and all loss, liability, damage, costs and
expenses (including interest, penalties and attorneys' fees) that Seller may
incur or become subject to arising out of or due to any inaccuracy of any
representation or the breach of any warranty or covenant of the Company
contained in this Agreement. The Company will reimburse Seller for any legal
or other expenses reasonably incurred by Seller in connection with
investigating or defending any such loss, claim, liability, action or
proceeding.
(b) Indemnification by the Seller. Subject to the limits set forth in
this Section 8, the Seller agrees to indemnify, defend and hold the Company,
and its directors, officers, agents, partners, members, and their respective
successors and assigns (collectively, the "Company Parties"), harmless from
and against any and all loss, liability, damage, costs and expenses
(including interest, penalties and attorneys' fees) that any of the Company
Parties may incur or become subject to arising out of or due to any
inaccuracy of any representation or the breach of any warranty or covenant of
the Seller contained in this Agreement. The Seller will reimburse each of the
Company Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
liability, action or proceeding.
(c) Survival. The representations, warranties and covenants of the
Seller and the Company set forth in this Agreement shall survive the Closing
Date until the first anniversary of the Closing Date.
(d) Third Party Claims. In order for a party (the "indemnified party")
to be entitled to any indemnification provided for under this Agreement in
respect of, arising out of, or involving a claim or demand or written notice
made by any third party against the indemnified party (a "Third Party Claim")
after the date hereof, such indemnified party must notify the indemnifying
party (the "indemnifying party") in writing of the Third Party Claim within
30 business days after receipt by such indemnified party of written notice of
the Third Party Claim; provided that the failure of any indemnified party to
give timely notice shall not affect his right of indemnification hereunder
except to the extent the indemnifying party has actually been prejudiced or
damaged thereby. If a Third Party Claim is made against an indemnified party,
the indemnifying party shall be entitled, if it so chooses, to assume the
defense thereof with counsel selected by the indemnifying party (which
counsel shall be reasonably satisfactory to the indemnified party). If the
indemnifying party assumes the defense of a Third Party Claim, the
indemnified party will cooperate in all reasonable respects with the
indemnifying party in connection with such defense, and shall have the right
to participate in such defense with counsel selected by it; provided that the
fees and disbursements of such counsel shall be at the expense of the
indemnified party; and provided further that, if the defendants in any Third
Party Claim include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that the interests of
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the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to
select one separate counsel and to assume such legal defenses and otherwise
to participate in the defense of such action, with the reasonable expenses
and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
Except as otherwise provided herein, the indemnified party will not,
except at its own cost and expense, settle or compromise any Third Party
Claim for which it is entitled to indemnification hereunder without the prior
written consent of the indemnifying party, which consent will not be
unreasonably withheld.
Section 9. Termination.
(a) Termination by the Company. This Agreement may be terminated and
canceled prior to the Closing Date by the Company: (i) if (A) any of the
representations and warranties of the Seller contained in this Agreement
shall prove to be inaccurate in any material respect or any covenant,
obligation or condition to be performed or observed by the Seller under this
Agreement has not been performed or observed in any material respect at or
prior to the time specified in this Agreement and (B) such inaccuracy or
failure shall not have been cured or waived by the Company within five (5)
business days after such inaccuracy or failure shall have first been
discovered, (ii) if any permanent injunction or other order of a governmental
entity having proper authority preventing consummation of the transactions
contemplated by this Agreement shall have become final and non-appealable, or
(iii) so long as the Company is not in material breach of any representation,
warranty, covenant or agreement, if the Closing has not occurred by May 31,
2007.
(b) Termination by the Seller. This Agreement may be terminated and
canceled prior to the Closing Date by the Seller: (i) if (A) any of the
representations and warranties of the Company contained in this Agreement
shall prove to be inaccurate in any material respect or any covenant,
obligation or condition to be performed or observed by the Company under this
Agreement has not been performed or observed in any material respect at or
prior to the time specified in this Agreement and (B) such inaccuracy or
failure shall not have been cured or waived by the Seller within five (5)
business days after such inaccuracy or failure shall have first been
discovered, (ii) if any permanent injunction or other order of a governmental
entity having proper authority preventing consummation of the transactions
contemplated by this Agreement shall have become final and non-appealable, or
(iii) so long as the Seller is not in material breach of any representation,
warranty, covenant or agreement, if the Closing has not occurred by May 31,
2007.
(c) The covenants provided by Seller in Section 10(c) below shall
survive the termination of this Agreement.
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Section 10. Covenants.
(a) Transfer of Shares. From the date hereof until the earlier of the
Closing Date or the termination pursuant to Section 9 (the "Termination
Date"), the Seller hereby agrees that it shall not, directly or indirectly,
sell, assign, transfer, encumber, pledge or otherwise dispose of, or enter
into any contract, option or other agreement, arrangement or understanding
with respect to the direct or indirect sale, assignment, transfer,
encumbrance, pledge or other disposition of, any of the Shares. The Seller
hereby agrees it shall not seek or solicit any sale, assignment transfer,
encumbrance, pledge or other disposition of the Shares.
(b) The Company makes no representation or warranty regarding the
condition of the Property, its past use, or its suitability for Seller's
intended use.
(i) Without limiting the generality of the foregoing, Seller
hereby acknowledges and agrees that it is purchasing the Property in its
present "as-is, where is, with all faults," conditions and with all defects.
Neither the Company nor any employee or agent of the Company has made or will
make, either expressly or impliedly, any representations, guaranties,
promises, statements, assurances or warranties of any kind concerning any of
the following matters (collectively referred to herein as the "Property
Conditions"): (i) the suitability or condition of the Property for any
purpose or its fitness for any particular use, (ii) the profitability and/or
feasibility of owning, developing, operating and/or improving the Property,
(iii) the physical condition of the Property, including, without limitation,
the current or former presence or absence of environmental hazards or
hazardous materials, asbestos, radon gas, underground storage tanks,
electromagnetic fields, or other substances or conditions which may affect
the Property or its current or future uses, habitability, value or
desirability, (iv) the rentals, income, costs or expenses thereof, (v) the
net or gross acreage, usable or unusable, contained therein, (vi) the zoning
of the Property, (vii) the condition of title, (viii) the compliance by the
Property with applicable zoning or building laws, codes or ordinances, or
other laws, rules and regulations, including, without limitation,
environmental and similar laws governing or relating to environmental hazards
or hazardous materials, asbestos, radon gas, underground storage tanks,
electromagnetic fields, or other substances or conditions which may affect
the Property or its current or future uses, habitability, value or
desirability, (ix) water or utility availability or use restrictions, (x)
geologic/seismic conditions, soil and terrain stability, or drainage, (xi)
sewer, septic, and well systems and components, (xii) other neighborhood or
Property conditions, including, schools, proximity and adequacy of law
enforcement and fire protection, crime statistics, noise or odor from any
sources, landfills, proposed future developments, or other conditions or
influences which may be significant to certain cultures or religions, or
(xiii) any other past, present or future matter relating to the Property
which may affect the Property or its current or future use, habitability,
value or desirability;
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(ii) Seller acknowledges that as of the Closing, it has been given
the full opportunity to inspect and investigate such Property Conditions to
its own satisfaction. Seller represents to the Company that it is relying
solely upon such inspection and investigation in connection with its purchase
of the Property and not upon any express or implied representations,
guaranties, promises, statements, assurances or warranties of the Company or
any of the Company's employees or agents as to such Property Conditions.
Seller also understands and agrees that it is purchasing the Property without
any obligation on the part of the Company to make any repairs, changes or
alterations with respect to the Property or any of the Property Conditions;
and
(iii) By initialing below, Seller, for itself and its agents,
affiliates, successors and assigns, hereby waives, releases and forever
discharges the Company, its agents, affiliates, successors and assigns from
any and all rights, claims and demands at law or in equity, whether known or
unknown at the time of this Agreement or at Closing, which Seller has or may
have in the future, arising out of the physical, environmental or economic
condition or suitability of the Property.
Seller _________
(c) Lock-up. If the sale of Shares contemplated by this Agreement is
not consummated prior to the consummation of the Merger, Seller shall not
offer, sell, make any short sale of, loan, encumber, grant any option for the
purchase of, or otherwise dispose of (the "Resale Restrictions"), any
securities of the Company beneficially owned or otherwise held by Seller as
of the date of this Agreement or hereafter acquired by Seller before the
closing of the Merger for the period beginning on the closing of the Merger
and ending on the one (1) year anniversary of the closing of the Merger. To
enforce the covenants of this Section 10(c), Seller agrees and consents to
the entry of stop transfer instructions with the transfer agent for the
Company's common stock against any transfer of shares of the Company's common
stock by Seller in contravention of the Resale Restrictions.
Section 11. Miscellaneous.
(a) Expenses. Each party shall pay its own costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby.
(b) Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing
and shall be deemed to have been duly given when delivered personally or by
facsimile transmission, in either case with receipt acknowledged, or five
days after being sent by registered or certified mail, return receipt
requested, postage prepaid, or one day after being sent by nationally-
recognized overnight carrier:
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(i) If to the Company to:
CET Services, Inc.
00000 X. Xxxxxx Xx., #00
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
with a copy to:
Xxxx Xxxxx, P.C.
000 00xx Xxxxxx, Xxxxx 0000 Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
(ii) If to the Seller, to:
Xxxxxx X. Xxxxx
0000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
or to such other address as any party shall have specified by notice in
writing to the other in compliance with this Section 10.
(c) Entire Agreement. This Agreement, including Attachment A hereto,
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof and supersedes all prior agreements,
representations and understandings among the parties hereto.
(d) Binding Effect, Benefits, Assignments. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns; nothing in this Agreement, expressed or implied, is
intended to confer on any other person, other than the parties hereto or
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement. This Agreement may not be
assigned without the prior written consent of the other parties hereto.
(e) Applicable Law. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the laws
of the State of Colorado, without regard to principles of conflicts of law.
(f) Headings. The headings and captions in this Agreement are included
for purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
(g) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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(h) Further Assurances. At, and from time to time after the date
hereof, at the request and expense of the Company but without further
consideration, Seller will execute and deliver such other instruments of
conveyance, assignment, transfer, and delivery and take such other action as
the Company reasonably may request in order more effectively to convey,
transfer, assign and deliver to the Company, and to place the Company in
possession and control of the Shares.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first set forth.
THE COMPANY:
CET SERVICES, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
SELLER:
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
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ATTACHMENT A
Property Description Agreed Valuation
-------------------- ----------------
The property referred to as Site 4
(Lot 2, Block 1, of Tract A and Tract B,
Xxxxxx Park Site IV Subdivision, comprising
approximately30,210 square feet,
at 0000 Xxxxxx Xxxx.,Xxxxxxxxxxx, XX 00000 )* $256,000.00
The property referred to as Site 5
(The North 75 feet of Lots 23 and 24 and
the East 1/3 of Lot 18, Xxxxx'x Resubdivision,
at 0000 Xxxxx Xx., Xxxxxxxxxxx, XX 80030) $262,724.12
Unit 0000-X Xxxxxx Xxxx, Xxxxxxxxxxx, XX 00000
Townhome (Xxxxxx Park Townhomes) $141,138.64
-----------
Total $659,862.76
_________________
* This property is currently subject to a mortgage loan in the amount of
$126,000. It is agreed that the loan shall be repaid by the Company prior to
the closing. The value assigned gives effect to the repayment of the
mortgage loan.
Valuation of Shares
The value of the 1,000,000 shares of Company common stock to be transferred
in exchange for the properties is agreed to be $606,192.04. Seller shall pay
the Company $53,670.72 by certified or cashiers check at the Closing.
