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EXHIBIT 10.8
1995 STOCK PURCHASE AGREEMENT
BETWEEN
VIAGRAFIX CORPORATION, PURCHASER
AND
XXXXXX XXXXXXX, SHAREHOLDER OF
AMERICAN SMALL BUSINESS COMPUTERS, INC.
THIS AGREEMENT, made and entered into at Pryor, Oklahoma, effective
this 15th day of August, 1995, by and between VIAGRAFIX CORPORATION, an
Oklahoma corporation, hereinafter referred to as ViaGrafix or Purchaser, first
party, and XXXXXX XXXXXXX, of Xxxxx, Oklahoma, hereinafter referred to as
Xxxxxxx or Seller or Shareholder, second party, Selling Party;
WITNESSETH:
1 ASSETS TO BE SOLD AND PURCHASED.
1.1 All Capital Stock: Shareholder Xxxxxxx represents that he is a
shareholder of AMERICAN SMALL BUSINESS COMPUTERS, INC., an Oklahoma
Corporation, hereinafter referred to as ASBC or the Company, and is the owner
and holder of 1,422 shares of the fully paid and non assessable stock of ASBC,
which are free and clear of any liens security interests or encumbrances.
1.2 Real Estate: Also included in this sale is the following
described real estate and premises situate in Xxxxx County, Oklahoma, described
as follows, to-wit:
A tract of land situated in Government Lot Numbered Three (3), in
Section Five (5), Township Twenty (20) North, Range Nineteen (19) East
of the Indian Base and Meridian, Xxxxx County, State of Oklahoma, more
particularly described as follows, to-wit:
Beginning at a point N 89degrees 54' 06" E a distance of 1940.62 feet
and S 0degrees 05' 54" E a distance of 310.0 feet of the Northwest
Corner of said Section 5; said point being on the southerly
Right-of-Way of State Highway No. 69A; thence N 89degrees 54' 06" East
and along said Right-of-Way, a distance of 320 feet; thence South
00degrees 05' 54" E a distance of 842.17 feet to a point on the
Northerly Right-of-Way of the M.K.&T. Railroad Spur; thence N
59degrees 17' 28" W and along said Right-of-Way, a distance of 372.57
feet; thence N 00degrees 05' 54" W for a distance of 651.36 feet to
the Point of Beginning,
owned by the Seller, which constitutes the offices and production and shipping
facility of ASBC, at 0 Xxxxxxxx Xxx, Xxxxx, Xxxxxxxx, which is free and clear
of all liens and encumbrances, except easements and restrictions of record, and
to be transferred by Warranty Deed on the date of closing, executed by the
Seller, and joined by his wife, which real estate and premises is valued by the
parties at $1,121,332.
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1.3 Subject to the terms and conditions set forth in this
agreement, on the closing date, Shareholder will transfer and convey the shares
and real estate to the Buyer, and Buyer will acquire and purchase the shares
and real estate from the Shareholder.
2 CONSIDERATION FOR PURCHASE.
2.1 Total consideration for the purchase and sale of the stock and
real estate shall be:
Real Estate ONE MILLION ONE HUNDRED TWENTY ONE THOUSAND THREE HUNDRED
THIRTY TWO DOLLARS ($1,121,332) plus a box of McDonalds Chocolaty Chip
Cookies.
ASBC 1422 shares Capital Stock, ONE MILLION NINE HUNDRED SEVENTY EIGHT
THOUSAND SIX HUNDRED SEVENTY DOLLARS ($1,978,670).
totaling the sum of THREE MILLION ONE HUNDRED THOUSAND AND TWO DOLLARS
($3,100,002.00), payable in the following manner:
2.1.1 The sum of TWO HUNDRED TWO THOUSAND ONE HUNDRED
SEVENTY FIVE & 91/100 DOLLARS ($202,175.91) shall be paid by
Buyer to Seller on the closing date.
2.1.2 The balance of $2,897,826.09 shall be paid by Buyer's
Promissory Note to Seller with interest at 7.5% per annum,
payable in monthly installments over the next 5 years.
The parties acknowledge that the Corporation is creating indebtedness at this
time to GeoCapital III, L.P. in a related transaction; payments under the
GeoCapital Note, and the Note provided for by this agreement shall be due on
the same date, and ViaGrafix shall treat both GeoCapital and Xxxxxxx notes as
equal in priority, and in making payments on same shall not discriminate in
favor of either of the holders of said notes.
2.2 As an express condition of this purchase, upon Buyer acquiring
all of the issued and outstanding capital stock of ASBC, the Seller agrees to
make an election under Internal Revenue Code Section 338(h)(10) and subject to
the following:
2.2.1 Seller and Buyer agree that they will elect to treat
the sale of the shares pursuant to this Agreement as a deemed
taxable sale of all of the assets of ASBC pursuant to Section
338 (h) (10) of the Code (the "Election"). Seller and Buyer
agree to take or cause to be taken all
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actions necessary to file, on a timely basis, the election
prescribed pursuant to Treasury Regulation Section
1.338(h)(10)-1, and that they will take all steps necessary to
obtain comparable treatment, where applicable, under state or
local law. Seller and Buyer further agree that they will not
take, or cause to be taken, any action in connection with the
filing of any Return of ASBC which would be inconsistent with
or prejudice the Election, and shall not make any inconsistent
written or oral statements during the course of any Taxing
Authority audit.
3 CLOSING DATE
3.1 Closing date of this transaction shall be August 15, 1995.
4 REPRESENTATIONS AND WARRANTIES OF SELLERS
In order to induce the Buyer to enter into this Agreement, Xxxxxxx
warrants and represents:
4.1 Business; Organization, Corporate Power and Authority. ASBC
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Oklahoma.
4.2 That it is the owner of the Shares transferred, and since
acquiring said shares, there are no liens or encumbrances thereon.
4.3 Material Contracts. Shareholder has disclosed to Buyer the
existence of a Licensing Contract with Corel Corporation which has due to the
Company a remaining unpaid balance of $250,000 which has been assigned by the
corporation one half to Xxxxxx Xxxxxxx, and one half to Xxxxx Xxxxxx.
Shareholder has disclosed to Buyer the assignment of 50,000 face value of GRDA
municipal bonds to Xxxxxx Xxxxxxx as of August 14, 1995. Buyer agrees to honor
and comply with said assignments.
5 REPRESENTATIONS OF BUYER
5.1 Buyer represents that this transaction, and all notes, security
interests, mortgages, contracts, and other documents executed in connection
herewith have been duly and properly authorized by corporate action of the
Buyer, and such instruments and documents when duly executed and delivered
shall be valid obligations of the Buyer, ViaGrafix Corporation.
6 SECURITIES REGISTRATION
Each of the parties acknowledge and represent that the stock exchanged
under this agreement is not registered under the Security Act of 1933, or the
Oklahoma
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Securities Act, and have been acquired by each of the parties with a view to
investment. Each of the parties are knowledgeable and experienced in making of
venture capital investments, and is able to bear the economic risk of loss of
its investment in the respective companies, and have been granted the
opportunity to make a thorough investigation of the affairs of the Company and
has availed itself of such opportunity to the extent deemed necessary. That
each of the parties are "accredited investors" as defined in Rule 501 of
Regulation D under the Securities Act.
7 BINDING UPON HEIRS AND ASSIGNS.
4.1 This agreement shall be binding upon the parties, and their
heirs, executors, personal representatives, trustees, successors, and assigns,
and the terms hereof shall survive the closing.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed in duplicate originals at Pryor, Oklahoma, on this 15th day of August,
1995.
Buyer: Seller:
ViaGrafix Corporation
/s/ XXXX XXXXXXX /s/ XXXXXX XXXXXXX
-------------------------------- -----------------------------
Xxxx Xxxxxxx, President Xxxxxx Xxxxxxx
The undersigned shareholders of ViaGrafix Corporation, do hereby ratify and
approve the foregoing agreement, this 15th day of August, 1995.
GeoCapital III, L.P.
By: Geocapital Management, L.P.
By:
/s/ XXXXXXXX X. XXXXXX
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Xxxxx Xxxxxx General Partner
/s/ XXXXXX XXXXXXX
-----------------------------------
Xxxxxx Xxxxxxx
/s/ XXXX XXXXXXX
-----------------------------------
Xxxx Xxxxxxx
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PROMISSORY NOTE
$2,897,826.09 Pryor, Oklahoma
Date: August 15, 1995
FOR VALUE RECEIVED, VIAGRAFIX CORPORATION, an Oklahoma corporation, the
undersigned (jointly and severally if more than one) do hereby promise to pay
to the order of XXXXXX XXXXXXX, the principal sum of TWO MILLION EIGHT HUNDRED
NINETY SEVEN THOUSAND EIGHT HUNDRED TWENTY SIX & 09/100 DOLLARS ($2,897,826.09)
plus interest thereon from date to maturity or default at the ANNUAL PERCENTAGE
RATE of SEVEN AND ONE HALF (7.5%) per annum, until paid, interest to be
compounded monthly and to become principal if not paid when due.
Such indebtedness shall be payable at the residence or place of business of
the holder which shall be designated from time to time, and shall be paid in 60
consecutive monthly payments of FIFTY EIGHT THOUSAND SIXTY SIX & 49/100 DOLLARS
($58,066.49) per month, beginning on or before the 15th day of September, 1995,
and on the same date each month thereafter, except that the entire balance of
principal and interest shall be payable in full on or before the 15th day of
August, 2000.
The maker hereof may prepay in whole or in part, any part of the principal
sum due hereunder, at any time, without penalty, with interest calculated to
the date of payment only.
The makers and endorsers of this severally waive demand, protest, and
notice of demand, protest and nonpayment. The maker agrees to pay the holder a
"late charge" of $10 for any payment which is delinquent more than ten (10)
days from the due date.
In the event of any default in the terms of this note results in the
placing of this note in the hands of an attorney for collection, the makers and
endorsers agree to pay a reasonable attorney fee, and all costs of collection.
A waiver of any breach of this note shall not be constituted to be a waiver of
any subsequent breach.
Attest: ViaGrafix Corporation
(corp seal)
By: /s/ XXXXXX XXXXXXX /s/ XXXX XXXXXXX
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Xxxxxx Xxxxxxx, Secretary Xxxx Xxxxxxx, President
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PURCHASE MONEY
REAL ESTATE MORTGAGE
KNOW ALL MEN BY THESE PRESENTS:
That VIAGRAFIX CORPORATION, an Oklahoma Corporation, hereinafter called
Mortgagor, whether one or more, has mortgaged, and hereby mortgages, to XXXXXX
XXXXXXX, of Xxxxx, Oklahoma, hereinafter called Mortgagee, whether one or more,
the following described real estate and premises, situate in Xxxxx County,
State of Oklahoma, to-wit:
A tract of land situated in Government Lot Numbered Three (3), in
Section Five (5), Township Twenty (20) North, Range Nineteen (19)
East of the Indian Base and Meridian, Xxxxx County, State of Oklahoma,
more particularly described as follows, to-wit:
Beginning at a point N 89 degrees 54'06" E a distance of 1940.62 feet
and S 0 degrees 05'54" E a distance of 310.0 feet of the Northwest
Xxxxx of said Section 5; said point being on the southerly Right-of-Way
of Xxxxx Xxxxxxx Xx. 00X; thence N 89 degrees 54'06" East and along
said Right-of-Way, a distance of 320 feet; thence South 00 degrees
05'54" E a distance of 842.17 feet to a point on the Northerly
Right-of-Way of the M.K.&T. Railroad Spur; thence N 59 degrees 17'28" W
and along said Right-of-Way, a distance of 372.57 feet; thence N 00
degrees 05'54" W for a distance of 651.36 feet to the Point of
Beginning,
with all the improvements thereon and appurtenances thereunto belonging and
warrant the title to the same.
This mortgage is given to secure the payment of the principal sum of
TWO MILLION EIGHT HUNDRED NINETY SEVEN THOUSAND EIGHT HUNDRED TWENTY SIX AND
09/100 DOLLARS ($2,897,826.09), and interest thereon, according to the terms of
certain promissory note or notes and Stock Purchase Agreements of even date
herewith, signed by the mortgagor, the final payment thereon being due 60 MONTHS
FROM DATE.
The mortgagor further agrees to maintain insurance acceptable to, and for
the benefit of the mortgagee, upon any buildings on said premises in an amount
not less than the 80% FAIR MARKET VALUE of such buildings. The mortgagor
further agrees to pay all taxes and assessments or other liens, and shall have
a lien secured hereby for the amount thereof with interest thereupon at the
rate provided in said note upon default.
In event the mortgagor defaults in the payment of said indebtedness, or
fails to perform the other covenants and agreements hereof, the mortgagee may
foreclose this mortgage, as provided by law; and as often as any proceedings
may be taken to foreclose this mortgage, the mortgagor agrees to pay to the
mortgage a reasonable amount as attorney fees, in addition to other sums due,
which shall be a further lien secured hereby. Upon the due payment of said
indebtedness and the performance of other covenants and agreements hereof by
the mortgagor, this mortgage shall become null and void.
The mortgagor, in event of a foreclosure hereunder, hereby waives
appraisement of said premises, or not, at the option of the mortgagee to be
declared when the petition
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to foreclose is filed.
If all or any part of the property above described or an interest therein
is sold or transferred by mortgagor without mortgagee's prior written consent,
Mortgagee may, at mortgagee's option, declare all the sums secured by this
Mortgage to be immediately due and payable. Mortgagee shall have waived such
option to accelerate if, prior to the sale or transfer, Mortgagee and the
person to whom the property is to be sold or transferred reach an agreement in
writing that the credit of such person is satisfactory to Mortgage and that the
interest payable on the sums secured by the Mortgage shall be at such rate as
Mortgagee shall request. If Mortgagee has waived the option to accelerate
provided in this paragraph, and if Mortgagor's successor in interest has
executed a written assumption agreement accepted in writing by Mortgagee,
Mortgagee shall release Mortgagor from all obligations under this Mortgage and
the Note.
SIGNED AND DELIVERED this 15th day of August, 1995.
Attest: VIAGRAFIX CORPORATION
(Corp Seal)
By: /s/ XXXX XXXXXXX
/s/ XXXXXX XXXXXXX ---------------------------
----------------------------------- Xxxx Xxxxxxx, President
Xxxxxx Xxxxxxx, Secretary
STATE OF OKLAHOMA )
) ss: ACKNOWLEDGMENT
COUNTY OF XXXXX )
Before me, the undersigned, a Notary Public in and for said County and
State, on this 15th day of August, 1995, personally appeared Xxxx Xxxxxxx,
President of ViaGrafix Corporation, an Oklahoma corporation, to me known to be
the identical person who executed the within and foregoing instrument and
acknowledged to me that he executed the same as the free and voluntary act and
deed of said corporation for the uses and purposes therein set forth.
Given under my hand and seal the day and year last above written.
/s/ XXXXXX XXXXXXXX
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My Commission Expires: 4-18-99 Notary Public
