SHARE PURCHASE AGREEMENT
EXHIBIT
10.1
SHARE PURCHASE AGREEMENT
This
agreement (“Agreement”) is made as of this 3rdth
day of
December, 2007, by and between ICC Worldwide, Inc. (formally Torbay Holdings,
Inc), a Delaware Corporation (“Issuer” or the “Company”) and The Xxxxxxx X.
Xxxxxxxx Irrevocable Trust which is located at 0000 Xxxxxx Xx, Xxx 000,
Xxxxxxxx, XX 00000 (“Buyer”).
WITNESSETH:
WHEREAS,
Issuer desires to sell and Buyer desires to purchase for the consideration
hereinafter set forth certain shares of Preferred and Common stock of the
Company; and
WHEREAS
Buyer is an investor in The Black Diamond Fund, LLLP, a Minnesota limited
liability limited partnership which holds preferred and common stock of the
Issuer in its portfolio; and
WHEREAS,
Issuer and Buyer desire to set forth in this Agreement all the terms, conditions
and covenants upon which such purchase and sale are to be
consummated;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements,
representations, herein contained, Issuer and Buyer agree as
follows:
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1.
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Purchase
and Sale of Shares.
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1.0.1 Issuer
shall transfer and convey to Buyer and Buyer shall purchase from Issuer subject
to the terms and conditions hereinafter set forth, a total of 1,054,552 shares
of the Company’s Series C preferred stock. Such transfer and conveyance is
contingent upon the Delaware Secretary of State’s approval of the Certificate of
Designations for a total of 10,000,000 shares of the Company’s preferred stock
as Series C preferred stock.
1.0.2
Issuer
shall transfer and convey to Buyer and Buyer shall purchase from Issuer subject
to the terms and conditions hereinafter set forth, a total of 4,921,267 shares
of Company common Stock (the “Common Stock”).
1.1 Purchase
Price.
As
consideration for the sale of the Shares by Issuer to Buyer and the performance
by Issuer of all of the terms and conditions of this Agreement, Buyer shall
pay
to Issuer the total sum of up to Two Hundred and Fifty Thousand Dollars
($250,000) payable in cash or by wire transfer. Of this total, $75,984 is to
purchase the preferred shares in paragraph 1.0.1 above and $174,016 is to
purchase the common shares in paragraph 1.0.2 above.
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2.
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Put
Option.
At
the Buyer’s election the Company must repurchase the shares of Series C
Preferred Stock held by the Buyer as
follows:
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2.1 Starting
in the third calendar quarter of 2008, the Company will set aside for the
purchase from the Buyer of shares of Series C Preferred Stock three (3%) of
its
positive net income before income taxes as reported in the Company’s Form 10-QSB
or Form 10-KSB as required to be filed by SEC regulations for the calendar
quarter for which the election by Buyer is made.
2.2 Within
twenty [20] days of the start of the calendar quarter for which the election
is
to be made, Buyer must give to the Company written notice of such election.
The
parties shall use their best efforts to consummate the sale of the shares within
ten days after the filing of the required 10-KSB or 10-QSB with the SEC for
the
quarter in which the election is made. In connection with such sale the Company
shall deliver to the Buyer the immediately available funds set aside in
paragraph 2.1 to purchase shares at the rate of $1 per Series C Preferred share
and the Buyer shall deliver to the Company a certificate or certificates for
the
shares of Series C Preferred Stock being sold by the Buyer to the Company,
together with an executed stock power transferring such shares to the Company.
2.3 The
election by the Buyer under this Section 2.2 is not cumulative and lapses for
any quarter the option is not timely elected.
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3.
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Representation
and Warranties of Buyer.
Buyer represents, warrants and agrees for the benefit of Issuer as
follows:
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3.1. Brokers.
All
negotiations relative to this Agreement and the transactions contemplated hereby
have been carried on by Buyer directly with Issuer and without the intervention
of any other person. Buyer has not acted in any manner as to give rise to any
valid claims against either of the parties hereto for a finder’s fee, brokerage
commission or any other like payment.
3.2. Investment
Representations.
Buyer
understands that the Shares have not been registered under the Securities Act
of
1933, as amended, and are being sold in reliance upon the exemption afforded
by
Section 4(2) thereof for transactions by an issuer not involving any public
offering. Buyer represents that (i) the Shares are being acquired for investment
and without any present view toward distribution thereof to any other persons,
(ii) Buyer will not sell or otherwise dispose of such Shares except in
compliance with the registration requirements or exemptions provisions under
the
Securities Act of 1933, as amended, and the rules and regulations thereunder
and
(iii) Buyer is knowledgeable and experienced in financial business matters
including businesses similar to Company’s. Buyer has no current intention of
selling, transferring or otherwise disposing of the Shares to any other person
or entity.
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4.
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Miscellaneous.
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4.1. Expenses.
Each
party to this Agreement shall pay its own costs and expenses (including all
legal, accounting, broker, finder and investment banker fees) relating to this
Agreement, the negotiations leading up to this Agreement and the transactions
contemplated by this Agreement.
4.2. Amendment.
This
Agreement shall not be amended or modified except by a writing duly executed
by
Issuer and Buyer.
4.3. Entire
Agreement.
This
Agreement, including the Schedules and the other instruments, agreements and
documents delivered pursuant to this Agreement, contain all of the terms,
conditions and representations and warranties agreed upon by the parties
relating to the subject matter of this Agreement and supersede all prior
agreements, negotiations, correspondence, undertakings and communications of
the
parties, oral or written, respecting such subject matter.
4.4. Headings.
The
headings contained in this Agreement are intended solely for the convenience
and
shall not affect the rights of the parties to this Agreement.
4.5. Notices.
All
notices, requests, demands and other communications made in connection with
this
Agreement shall be in writing and shall be deemed to have been duly given on
the
date of delivery, if delivered to the persons identified below, or three days
after mailing if mailed by certified or registered mail, postage prepaid, return
receipt requested, or via electronic mail (e-mail) addressed as
follows:
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If
to Issuer:
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If
to Buyer:
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The
Xxxxxxx X. Xxxxxxxx Irrevocable Trust
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Attn:
Xxxx Xxxxx. President
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Attn:
Xxxx Xxxxxxxx. Trustee
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0000
X. Xxxxx Xxx #000
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0000
Xxxxxx Xx, Xxx 000
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Xxxxxx
Xxx Xxx, XX 00000-0000
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Xxxxxxxx,
XX 00000
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Such
addresses may be changed, from time to time, by means of a notice given in
the
manner provided in this paragraph.
4.6. Severability.
If any
provision of this Agreement is held to be unenforceable for any reason, it
shall
be adjusted rather than voided, if possible, in order to achieve the intent
of
the parties to this Agreement to the extent possible. In any event, all other
provisions of this Agreement shall be deemed valid and enforceable to the full
extent possible.
4.7. Waiver.
Waiver
of any term or condition of this Agreement by any party shall only be effective
if in writing and shall not be construed as a waiver of any subsequent breach
or
failure of the same term or condition, or a waiver of any other term or
condition of this Agreement.
4.8. Binding
Effect - Assignment.
No
party to this Agreement may assign or delegate, by operation of law or
otherwise, all or any portion of its rights, obligations or liabilities under
this Agreement without the prior written consent of the other party to this
Agreement, which it may withhold in its absolute discretion.
4.9. No
Third Party Beneficiaries.
Nothing
in this Agreement shall confer any rights upon any person or entity which is
not
a party or an assignee of a party to this Agreement.
4.10. Counterparts.
This
Agreement may be signed in any number of counterparts with the same effect
as if
the signatures to each counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this
Agreement.
4.11. Governing
Laws.
This
Agreement and any disputes thereto will be governed by and construed under
the
laws of the State of Florida without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Florida any other
jurisdiction) that would require the application of any other law.
4.12. Successors.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
4.13. Cooperation.
Buyer
and Issuer will cooperate with each other and cause its employees to cooperate
with the other, including the giving of testimony, in connection with any
litigation or similar matter arising out of the operation of the Company’s
business or this Agreement.
IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto the
day
and year first above written.
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Buyer:
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Issuer:
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/s/
Xxxx Xxxxxxxx
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/s/
Xxxxxxx X Xxxxx
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Xxxx
Xxxxxxxx, Trustee
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Xxxxxxx
X Xxxxx, President
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The
Xxxxxxx X. Xxxxxxxx Irrevocable Trust
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(formerly
Torbay Holdings, Inc.)
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