EXHIBIT 10
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of June
26, 1997, between Xxxxxxx Xxx (also known as Hsing Xxx Xxx, the "Seller"), with
an address at 000 Xxxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx, and Xxxx-Xxxx Xxxx
(also known as Xxxx Xxxx, the "Buyer"), with an address at 0xx Xxxxx, #000-0,
Xxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxx.
W I T N E S S E T H
WHEREAS, the Buyer desires to purchase from the Seller, and
the Seller desires to sell to the Buyer, 1,783,620 shares of the Common Stock,
$.01 par value, of Liuski International, Inc. (the "Company"), comprising
approximately 40.7% of the shares of Common Stock of the Company issued and
outstanding on the date hereof (the "Shares") on the terms and conditions set
forth herein; and
WHEREAS, contemporaneously with the purchase and sale of the
Shares pursuant to this Agreement, and as an inducement for the Seller to sell
the Shares to the Buyer, the Buyer desires to guaranty and pay certain
obligations of the Company and guaranty the employment of certain employees of
the Company;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Purchase of Stock
1.1 Purchase of Stock. Subject to the terms and conditions
herein set forth and on the basis of the representations, warranties and
agreements of the Buyer and Seller herein contained, the Buyer agrees to
purchase from the Seller, and the Seller agrees to sell to the Buyer, the Shares
for the Purchase Price (as defined below) as hereinafter set forth. The Seller
shall deliver certificates for the Shares to be sold hereunder duly endorsed in
blank, or accompanied by executed stock powers, to the Buyer at the offices of
the Company, 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx (the "Closing"), at 4:00
P.M. on June 26, 1997, or at such other place, time and date as the Buyer and
the Seller may agree upon in writing, the actual time and date on which the
Closing hereunder shall occur being herein called the "Closing Date".
1.2 Purchase Price. The aggregate purchase price for the
Shares to be purchased by the Buyer from the Seller shall be $1.40 per share, or
$2,497,068 in the aggregate (the "Purchase Price"), payable by wire transfer to
an account designated by the Seller to the Buyer prior to the Closing.
1.3 Closing Date. On the Closing Date:
(A) The Seller shall deliver certificates
representing the Shares to the Buyer as set forth in Section
1.1 hereof.
(B) The Buyer shall pay the Purchase Price due on the
Closing Date pursuant to Section 1.2 above.
(C) The Buyer shall execute and deliver to Liuski
International, Inc. (Taiwan) and Xxxxx-Xxxxxx Co., Ltd., as
the case may be, Guaranties in the forms attached hereto as
Exhibit A and Exhibit B, guaranteeing, among other things, the
payment of all obligations of the Company set forth in Exhibit
C hereto.
(D) The Buyer shall execute and deliver a letter
agreement, in the form attached hereto as Exhibit D, to each
of Xxxxxx Xxx, Xxxxxx Xxxx, Xxxxxxxx Xx and Xxxxxxx Xxx
relating to his or her employment by the
Company.
ARTICLE II
Representations and Warranties
2.1 Representations and Warranties by the Seller. The
Seller represents and warrants to the Buyer that:
(A) Good Title to Shares. The Seller has, and
immediately prior to the Closing Date, the Seller will have,
good and valid title to the Shares to be sold by the Seller
hereunder, free and clear of all liens and encumbrances; and
upon delivery of the Shares and payment therefor pursuant
hereto, good and valid title to the Shares, free and clear of
all liens and encumbrances, will pass to the Buyer on the
Closing Date.
(B) Title. The sale and transfer of the Shares to the
Buyer pursuant to this Agreement will not violate any
contractual obligation to which the Seller is a party.
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2.2 Representations and Warranties by the Buyer. The
Buyer represents and warrants to the Seller as follows:
(A) The Buyer is acquiring the Shares for his
investment account and does not have the present intention of
reselling or distributing any of the Shares.
(B) The Buyer has no contract, undertaking,
agreement, or arrangement with any person to sell or transfer
to such person or to any third person any of the Shares, and
the Buyer has no present plan to enter into any such contract,
undertaking, agreement or arrangement.
(C) The Buyer does not presently contemplate any
future sale or other disposition of any of the Shares upon the
occurrence or non-occurrence of any pre-determined event or
circumstance.
(D) The Buyer understands that the issuance of the
Shares has not been registered under the Securities Act of
1933 (the "Act"), in reliance upon the exemption contained in
Section 4(2) thereof, and that therefore, the Seller is
relying to a material extent upon the representations and
warranties of the Buyer in this agreement.
(E) There has been made available to the Buyer at a
reasonable time in advance of the date of this Agreement the
opportunity to ask questions and receive answers from the
Seller, the Company and its advisors concerning the Company,
the Shares or any other matters contemplated by this Agreement
and to obtain any additional information that is necessary to
verify the accuracy of the information furnished.
(F) The Buyer has received from the Seller a copy of
(i) the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, (ii) the Company's quarterly
report on Form 10-Q for the quarter ended March 31, 1997 and
(iii) the Company's Proxy Statement dated June 16, 1997 and
such other documents that the Buyer has requested from the
Seller or the Company relating to the Company or the Shares.
(G) The Buyer has such knowledge and experience in
financial and business matters that the Buyer is able to
evaluate the merits and risks of this investment. The Buyer is
able to bear the economic risks of this investment.
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(H) The Buyer is aware that the Company is in default
with respect to its credit agreement with its primary
commercial lender, Deutsche Financial Services
Corporation.
(I) The Buyer understands that the certificate
evidencing the Shares will bear the following legend, or
substantially similar legend, in conspicuous type:
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED SECURITIES OR SECURITIES
OWNED BY AN AFFILIATE OF THE ISSUER WITHIN THE
MEANING OF SECURITIES ACT RULE 144. THE SECURITIES
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, OR AN OPINION OF COUNSEL SATISFACTORY TO
THE ISSUER THAT THE SALE OR TRANSFER IS EXEMPT FROM
REGISTRATION UNDER SAID ACT.
2.3 The representations and warranties of the Buyer
shall survive the execution and delivery of this Agreement.
ARTICLE III
Conditions of the Closing
3.1 Conditions to Obligations of The Buyer. The obligations of
the Buyer to consummate the purchase of the Shares are subject to the proper
tender by the Seller to the Buyer of the Shares and the fulfillment, prior to or
on the Closing Date, of each of the following conditions:
(A) Representations, Warranties and Covenants. The
representations and warranties of the Seller contained in this
Agreement shall be true and correct in all material respects
at the date hereof and at and as of the Closing Date, with the
same force and effect as if made at and as of the Closing
Date; and the Seller shall have performed or complied in all
material respects with all agreements and covenants required
by this Agreement to be performed or complied with by him on
or prior to the Closing Date, including the delivery of such
documents and performance of such acts as are required by
Section 1.3 hereof.
(B) No Proceeding or Litigation. No action shall have
been commenced in a court of competent jurisdiction or by or
before any governmental authority against either the Company,
the Seller or the Buyer seeking to restrain or materially and
adversely alter
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the transactions contemplated by this Agreement which, in the
reasonable, good faith determination of the Buyer, is likely
to prevent the Buyer from consummating or make it unlawful for
the Buyer to consummate such transactions.
3.2 Conditions to Obligations of the Seller. The obligations
of the Seller to consummate the sale of the Shares to be sold hereunder are
subject to the payment by the Buyer of the Purchase Price in accordance with
Section 1.2 hereof, and the fulfillment, prior to or on the Closing Date, of
each of the following conditions:
(A) Representations, Warranties and Covenants. The
representations and warranties of the Buyer contained in this
Agreement shall be true and correct in all material respects
at the date hereof and at and as of the Closing Date, with the
same force and effect as if made at and as of the Closing
Date; and the Buyer shall have performed or complied in all
material respects with all agreements and covenants required
by this Agreement to be performed or complied with by it on or
prior to the Closing Date, including the delivery of such
documents and performance of such acts as are required by
Section 1.2 hereof.
(B) No Proceeding or Litigation. No action shall have
been commenced in a court of competent jurisdiction or by or
before any governmental authority against either the Company,
the Seller or the Buyer seeking to restrain or materially and
adversely alter the transactions contemplated by this
Agreement which, in the reasonably, good faith determination
of the Seller, is likely to prevent the Seller from
consummating or make it unlawful for the Seller to consummate
such transactions.
(C) Guaranties. The Buyer shall have executed and
delivered the Guaranties and letter agreements required by
Section 1.3 hereof.
ARTICLE IV
Miscellaneous
4.1 Notices. Any notices or other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given or made as of the date of receipt and shall be delivered personally or
mailed by registered or certified mail (postage prepaid, return receipt
requested), sent by overnight courier or sent by telecopy, in the case of the
Seller, to his addresses listed above and, in the case of the
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Buyer, to Xxx Xxxxx, c/o DDK Computers, Inc., 00000 X. Xxxx Xxxxxx, Xxxxx 000,
Xxxx xx Xxxxxxxx, Xxxxxxxxxx, 00000.
4.2 Press Releases and Confidentiality. Except as required by
Law or stock exchange requirements, each parties hereby agrees with the other
party that (a) no press release or similar public announcement or communication
will be made or caused to be made, and (b) no information will be divulged,
furnished or made accessible to any third party, in each case, concerning the
execution or performance of this Agreement or the transactions contemplated
hereby, unless specifically approved in advance by the other party.
4.3 Amendment. This Agreement may not be amended or
modified except by an instrument in writing signed by both
parties hereto.
4.4 Governing Law. This Agreement shall be governed
by the laws of the State of New York without regard to conflicts
of law principles.
4.5 Submission to Jurisdiction. Each party hereby consents to
the jurisdiction of the United States District Court for the Southern District
of New York and any of the courts of the State of New York in New York County in
connection with any dispute arising under this Agreement.
4.6 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by either party hereto or his representatives.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
/s/ Xxxxxxx Xxx
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XXXXXXX XXX
/s/ Xxxx-Xxxx Xxxx
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XXXX-XXXX XXXX
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EXHIBIT A TO EXHIBIT 10
CONTINUING GUARANTY AGREEMENT
For and in consideration of the sum of $1.00, the receipt of
which is hereby acknowledged, and of the granting of credit by Liuski
International, Inc. (Taiwan) ("International"), having offices at 00X, Xx. 000,
Xxxxxxx 0, Xx Xxxx X. Xxxx, Xxxxxx, Xxxxxx, at its discretion to Liuski
International, Inc., having offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx
00000, ("Debtor"), either with or without security, the undersigned does hereby
guaranty the payment to International of all obligations of Debtor to
International, now existing or hereafter arising (herein severally and
collectively referred to as "Obligations") together with interest thereon, as
may be applicable, and any and all expenses that may be incurred by
International in collecting any Obligations.
All Obligations will be payable by the undersigned to
International on the date such Obligations are due under payment terms which
currently apply between Debtor and International. This guaranty shall continue
until the Obligations are paid in full.
The undersigned waives notice of acceptance of this guaranty
and of purchases by Debtor or default by Debtor in paying Obligations and
authorizes International to extend the time for payment of any Obligations and
otherwise to contract and deal with Debtor without notice to the undersigned and
without the consent of the undersigned, in all respects at International's
discretion and without affecting the obligations of the undersigned hereunder.
This is a guaranty of payment and not collection and the undersigned further
waives any right to require that before proceeding under this guaranty any
action be brought against Debtor or any other person or that resort be had to
any securities or to any balance in any deposit account or credit on the books
of International in favor of Debtor or any other person.
Each reference herein to International shall be deemed to
include its successors and assigns, in whose favor the provisions of this
guaranty shall inure. Each reference herein to the undersigned shall be deemed
to include the heirs, executors, administrators, legal representatives,
successors and assigns of the undersigned, all of whom shall be bound by the
provisions of this guaranty.
No delay on the part of International in exercising any right
hereunder or failure to exercise the same shall operate as a waiver of such
right; no notice to or demand on the undersigned shall be deemed to be a waiver
of the obligations of the undersigned or of the right of International to take
further action without notice or demand as provided herein and no
modification or waiver of the provisions of this guaranty shall be effective
unless in writing, and shall not be applicable except in each specific instance
for which given.
This guaranty shall be in all respects governed, construed,
applied and enforced in accordance with the laws of the State of New York, and
no defense given or allowed by the laws of any other state or country shall be
interposed in any action hereon unless such defense is also given or allowed by
the laws of the State of New York.
The undersigned hereby consents to the jurisdiction of the
United States District Court for the Southern District of New York and any of
the courts of the State of New York in New York County in connection with any
dispute arising under this guaranty.
The undersigned hereby designates Xxx Xxxxx, with a place of
business at c/o DDK Computers, Inc., 00000 X. Xxxx Xxxxxx, Xxxxx 000, Xxxx xx
Xxxxxxxx, Xxxxxxxxxx, 00000, as his duly authorized agent for service of
process. Service shall be made by delivering copies of such process by First
Class mail and by Certified mail, Return Receipt Requested to the aforementioned
agent at its above designated place of business. Process shall be deemed
completed three (3) days after mailing. Nothing in this provision shall affect
the right to serve process in any other manner permitted by law.
Signed in Norcross, Georgia this day of ,
1997.
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XXXX-XXXX XXXX
WITNESS/ATTEST: Xxxx Xxxxx Xxxxxx
0xx Xxxxx, #000-0
Xxxxxx, Xxxxxx
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EXHIBIT B TO EXHIBIT 10
CONTINUING GUARANTY AGREEMENT
For and in consideration of the sum of $1.00, the receipt of
which is hereby acknowledged, and of the granting of credit by Xxxxx-Xxxxxx Co.,
Ltd. ("Xxxxx-Xxxxxx"), having offices at 00X, Xx. 000, Xxxxxxx 0, Xx Xxxx X.
Xxxx, Xxxxxx, Xxxxxx, at its discretion to Liuski International, Inc., having
offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000, ("Debtor"), either with
or without security, the undersigned does hereby guaranty the payment to
Xxxxx-Xxxxxx of all obligations of Debtor to Xxxxx-Xxxxxx, now existing or
hereafter arising (herein severally and collectively referred to as
"Obligations") together with interest thereon, as may be applicable, and any and
all expenses that may be incurred by Xxxxx-Xxxxxx in collecting any Obligations.
All Obligations will be payable by the undersigned to
Xxxxx-Xxxxxx on the date such Obligations are due under payment terms which
currently apply between Debtor and Xxxxx-Xxxxxx. This guaranty shall continue
until the Obligations are paid in full.
The undersigned waives notice of acceptance of this guaranty
and of purchases by Debtor or default by Debtor in paying Obligations and
authorizes Xxxxx-Xxxxxx to extend the time for payment of any Obligations and
otherwise to contract and deal with Debtor without notice to the undersigned and
without the consent of the undersigned, in all respects at Xxxxx-Claude's
discretion and without affecting the obligations of the undersigned hereunder.
This is a guaranty of payment and not collection and the undersigned further
waives any right to require that before proceeding under this guaranty any
action be brought against Debtor or any other person or that resort be had to
any securities or to any balance in any deposit account or credit on the books
of Xxxxx-Xxxxxx in favor of Debtor or any other person.
Each reference herein to Xxxxx-Xxxxxx shall be deemed to
include its successors and assigns, in whose favor the provisions of this
guaranty shall inure. Each reference herein to the undersigned shall be deemed
to include the heirs, executors, administrators, legal representatives,
successors and assigns of the undersigned, all of whom shall be bound by the
provisions of this guaranty.
No delay on the part of Xxxxx-Xxxxxx in exercising any right
hereunder or failure to exercise the same shall operate as a waiver of such
right; no notice to or demand on the undersigned shall be deemed to be a waiver
of the obligations of the undersigned or of the right of Xxxxx-Xxxxxx to take
further action without notice or demand as provided herein and no
modification or waiver of the provisions of this guaranty shall be effective
unless in writing, and shall not be applicable except in each specific instance
for which given.
This guaranty shall be in all respects governed, construed,
applied and enforced in accordance with the laws of the State of New York, and
no defense given or allowed by the laws of any other state or country shall be
interposed in any action hereon unless such defense is also given or allowed by
the laws of the State of New York.
The undersigned hereby consents to the jurisdiction of the
United States District Court for the Southern District of New York and any of
the courts of the State of New York in New York County in connection with any
dispute arising under this guaranty.
The undersigned hereby designates Xxx Xxxxx, with a place of
business at c/o DDK Computers, Inc., 00000 X. Xxxx Xxxxxx, Xxxxx 000, Xxxx xx
Xxxxxxxx, Xxxxxxxxxx, 00000, as his duly authorized agent for service of
process. Service shall be made by delivering copies of such process by First
Class mail and by Certified mail, Return Receipt Requested to the aforementioned
agent at its above designated place of business. Process shall be deemed
completed three (3) days after mailing. Nothing in this provision shall affect
the right to serve process in any other manner permitted by law.
Signed in Norcross, Georgia this day of ,
1997.
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XXXX-XXXX XXXX
WITNESS/ATTEST: Xxxx Xxxxx Xxxxxx
0xx Xxxxx, #000-0
Xxxxxx, Xxxxxx
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EXHIBIT C TO EXHIBIT 10
OBLIGATIONS GUARANTEED BY BUYER
Payables owed to Xxxxx-Xxxxxx Co., Ltd. by Liuski International, Inc.
in the ordinary course of business ("Xxxxx-Xxxxxx Payables") through the
close of business on June 26, 1997.
All Xxxxx-Xxxxxx Payables arising after June 26, 1997.
Payables owed to Liuski International, Inc. (Taiwan) by Liuski
International, Inc. in the ordinary course of business ("Liuski
Taiwan Payables") through the close of business on June 26, 1997.
All Liuski Taiwan Payables arising after June 26, 1997.
EXHIBIT D TO EXHIBIT 10
Xxxx-Xxxx Xxxx
0xx Xxxxx, # 000-0
Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxx
Dated: June ____, 1997
[Name]
C/O Liuski International, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx
Re: Liuski International, Inc. (the "Company")
Dear [Name]:
Reference is made to the Stock Purchase Agreement, dated the date
hereof, between Xxxxxxx Xxx and me relating to the sale (the "Sale") by Xx. Xxx
to me of substantially all of his shares of Common Stock of the Company.
I hereby agree with you that, for a period of not less than one year
following the consummation of the Sale (the "Guaranteed Period"), the Company
will employ you in position(s) which are the same as or comparable with the
position(s) which you held with the Company immediately prior to the Sale and
provide you with no less than the compensation, benefits and other privileges
which you received from the Company immediately prior to the Sale. In the course
of your employment by the Company, you will not be required to relocate. In the
event your employment with the Company is terminated by the Company prior to the
expiration of the Guaranteed Period, I will pay you severance equal in value to
the compensation and benefits which you would have received during the remainder
of the Guaranteed Period had your employment not been terminated.
By signing this letter, you agree to remain in the employ of the
Company for the Guaranteed Period and, while you are employed by the Company,
you will perform with reasonable competence the work which may be reasonably
requested of you. You agree that you will not be entitled to the severance
payment provided herein if you do not fulfill your obligations hereunder.
If you agree with the foregoing terms, please execute a counterpart of
this letter agreement and return it to me.
Very truly yours,
Xxxx-Xxxx Xxxx
AGREED:
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[Name]
