Exhibit 4.20
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT"), is made as of January
___, 2005, by and among Xxxxxxxx Xxxxx, a United States resident, with an
address at 0 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxxxxx 00000 (the "SELLER"), and
the purchasers set forth on SCHEDULE A hereto (each, a "PURCHASER," and
collectively the "PURCHASERS"). (Seller and Purchasers may hereinafter be
referred to singularly as a "PARTY," and collectively as the "PARTIES.")
WHEREAS, Seller is the record and beneficial owner of One Million
(1,000,000) shares of the issued and outstanding common stock of Utix Group,
Inc., a Delaware corporation (the "SHARES"); and
WHEREAS, Purchasers desire to purchase from Seller, and Seller desires
to sell to Purchasers, the Shares, at a purchase price of $0.40 per Share, in
such amounts as are set forth on SCHEDULE A hereto, upon the terms and subject
to the conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, such parties
agree as follows:
1. PURCHASE AND SALE. Subject to the terms and conditions hereof, at
the Closing (as defined in Section 2 below), Purchasers shall purchase, and
Seller shall sell, all of Seller's right, title and interest in and to the
Shares, for an aggregate purchase price of Four Hundred Thousand ($400,000)
Dollars (the "PURCHASE PRICE").
2. THE CLOSING. Subject to the terms and conditions hereof, the closing
of the purchase and sale of the Shares described in Section 1 hereof (the
"CLOSING") shall take place on or before February 4, 2005, at the offices of
Xxxxx & Schloss LLP, located at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000, or at such other place as the parties shall mutually agree. At the
Closing:
(a) Seller, or Seller's representative(s), will deliver to the
Purchasers certificates representing the Shares, in such denominations as are
set forth on SCHEDULE A hereto, duly endorsed in blank or accompanied by duly
executed stock powers or other instruments of transfer, in proper form for
transfer, with all signatures guaranteed, free and clear of all liens, charges,
claims or other encumbrances of any nature (collectively "LIENS"); and
(b) Purchasers, or Purchasers' representative(s), will deliver
the Purchase Price to Seller, by wire transfer of immediately available funds to
an account designated by the Seller.
3. REPRESENTATIONS AND WARRANTIES.
(a) Seller hereby represents and warrants to Purchasers as
follows:
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(i) Seller is the beneficial and record owner of all of the
Shares. All of such Shares have been duly authorized and validly issued and are
fully paid and non-assessable. At the Closing, Purchasers will acquire from
Seller good and marketable title to the Shares, free and clear of all Liens;
(ii) Neither the execution and delivery of this Agreement by
Seller, nor the consummation by Seller of the transactions contemplated hereby,
will result in a breach of or constitute or result in a default under any
agreement, instrument or obligation to which Seller is a party or by which any
of his assets may be bound;
(iii) To the best knowledge of the seller, no consent,
authorization or approval of, or filing or registration with, any governmental
or regulatory authority or any other person or entity is required in connection
with the execution and delivery of this Agreement by Seller and the consummation
of the transactions contemplated hereby by Seller.
(b) Purchasers hereby represent and warrant as follows:
(i) Purchasers have full power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered and constitutes the valid
and binding obligations of Purchasers, enforceable in accordance with its terms;
(ii) Neither the execution and delivery of this Agreement by
Purchasers, nor the consummation by Purchasers of the transactions contemplated
hereby will conflict with or result in a breach of, or constitute or result in a
default under, any agreement, instrument or obligation to which any Purchaser is
a party, or in which any Purchaser's assets may be bound;
(iii) No consent, authorization or approval of, or filing of
registration with, any governmental or regulatory authority or any other person
or entity is required in connection with the execution and delivery of this
Agreement by Purchasers and the consummation of the transactions contemplated
hereby by Purchasers; and
(iv) The Shares being acquired by Purchasers hereunder are
being acquired for their own accounts for investment purposes and not with a
view to or for resale or distribution thereof within the meaning of the
Securities Act of 1933, as amended (the "SECURITIES ACT"); nor with any present
intention of selling or otherwise disposing of all or any part of the Shares.
Purchasers agree that they shall not sell, assign, or transfer any of the Shares
except (i) pursuant to a Registration Statement under the Securities Act, which
has become effective and is current with respect to the Shares, or (ii) pursuant
to a specific exemption from registration under the Securities Act, but only
upon Purchasers' first having obtained a prior favorable written opinion with
respect to such sale, assignment or transfer. Purchasers acknowledge that the
Shares being acquired by it hereunder have not been registered under the
Securities Act and will be "restricted securities," as that term is defined
under the
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Securities Act and the General Rules and Regulations promulgated thereunder,
with specific limitations on their sale, assignment or transfer unless
registered under the Securities Act or an exemption from such registration is
available. Purchasers acknowledge that the Shares being acquired are subject to
certain lock-up provisions, and Purchasers will acquire such Shares subject to
any applicable to lock-up restrictions.
(c) SURVIVAL OF WARRANTIES. All statements contained in this
Agreement and in any certificate, instrument or document delivered by or on
behalf of Purchasers or Seller pursuant hereto, or in connection with the
transactions contemplated hereby, shall be deemed representations and warranties
hereunder by such party. All representations, warranties and agreements set
forth herein shall survive the Closing.
4. INDEMNIFICATION.
(a) From and after the Closing, Seller, on the one hand, and
Purchasers, on the other hand, shall indemnify and hold harmless the other
(including officers, directors, agents and representatives) (in such capacity,
an "INDEMNIFIED PARTY") against any loss, claim, liability, expense (including
reasonable attorneys' fees) or other damage (collectively, "LOSSES") caused by
or arising out of: (i) the failure by the party against whom indemnification is
sought (the "INDEMNIFYING PARTY") to perform any of its covenants or agreements
in this Agreement, or (ii) the breach of any representation or warranty made by
or on behalf of the Indemnifying Party in this Agreement.
(b) The Indemnified Party shall notify the Indemnifying Party
of any claim to be asserted under this Section 4(b) against the Indemnifying
Party as soon as practicable after the Indemnified Party receives notice of or
otherwise has actual knowledge of such claim, and shall provide to the
Indemnifying Party as soon as practicable after the Indemnified Party receives
notice of or otherwise has actual knowledge of such claim, and shall provide to
the Indemnifying Party as soon as practicable thereafter all information and
documentation necessary to support and verify the claim being asserted.
(c) Promptly after receipt by the Indemnified Party of notice
of the commencement by any third party of any action, suit or proceeding which
might result in the Indemnifying Party becoming obligated to indemnify or make
any other payment to the other under this Agreement, the Indemnified Party
shall, if a claim in respect thereof is to be made against the Indemnifying
Party under this Agreement, notify the Indemnifying Party forthwith in writing
of the commencement thereof. The failure of the Indemnified Party to so notify
the Indemnifying Party shall not relieve such party from any liability which it
or he may have on account of this indemnification or otherwise, except to the
extent that such party is materially prejudiced thereby. The Indemnifying Party
shall have the right, within thirty (30) days after being so notified, to assume
the defense of such litigation or proceeding with counsel reasonably
satisfactory to the Indemnified Party. In any such litigation or proceeding the
defense of which the Indemnifying Party shall have so assumed, the Indemnified
Party shall have the right to
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participate therein and retain his or its own counsel at his or its own expense
unless (i) the parties shall have mutually agreed to the retention of such
counsel, or (ii) the named parties to any such litigation or proceeding
(including impleaded parties) include both the Indemnifying Party and the
Indemnified Party, and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them; in
either such case, such separate counsel may be retained by the Indemnified Party
at the Indemnifying Party's expense. To the extent that the settlement of such
an action or proceeding, the defense of which has been assumed by the
Indemnifying Party, involves the payment of money, the Indemnifying Party shall
have the right, in consultation with the Indemnified Party, to settle those
aspects dealing only with the payment of money. Notwithstanding the foregoing,
in connection with any such defense or settlement, the Indemnifying Party shall
not enter into a consent decree involving injunctive relief or consent to an
injunction without the Indemnified Party's prior written consent, which consent
shall not be unreasonably withheld. The Indemnified Party shall cooperate with
the Indemnifying Party in the defense of any action, suit or proceeding assumed
by the Indemnifying Party.
5. EXPENSES. Except as otherwise provided herein, each party shall bear
its own expenses (including those of counsel) incurred in connection with this
Agreement and the transactions herein contemplated.
6. MISCELLANEOUS.
(a) FURTHER ASSURANCES. Each party hereto agrees to execute
and deliver such other documents and instruments and take such other actions as
the other party may reasonably request in order to consummate the sale and carry
out the transactions contemplated by this Agreement.
(b) ENTIRE AGREEMENT. This Agreement (including the documents
and instruments referred to herein) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof. This Agreement
may not be amended except by an instrument in writing signed on behalf of each
of the parties hereto.
(c) GOVERNING LAW. This Agreement is governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
contracts to be performed wholly within such State.
(d) HEADINGS AND EXHIBITS. The headings of the various
sections and paragraphs herein are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
(e) ASSIGNMENT. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and
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permitted assigns, but neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by a party without the prior written
consent of the other party hereto.
(f) RIGHTS AND REMEDIES. The rights and remedies of the
parties hereunder shall not be mutually exclusive, and the exercise of one or
more of the provisions of this Agreement shall not preclude the exercise of any
other provisions. Each of the parties confirms that damages at law may be an
inadequate remedy for a breach or threatened breach of any provision hereof. The
respective rights and obligations hereunder shall be enforceable by specific
performance, injunction or other suitable remedy, but nothing contained
hereunder is intended to or shall limit or affect any rights at law or by
statute or otherwise of any party aggrieved as against the other party for a
breach or threatened breach of any provisions hereof, it being the intention of
this Section to make clear the agreement of the parties that the respective
rights and obligations of the parties hereunder shall be enforceable in equity
as well as at law or otherwise.
(g) NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and delivered at the addresses
designated below, or mailed by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows, or to such other address or
addresses as may hereafter be furnished by one party to the other party in
compliance with the terms hereof:
If to Purchasers: to the addresses set forth beneath
their respective names on SCHEDULE A hereto, with a
copy to:
Xxxxx & Xxxxxxx LLP
00 Xxxx 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
If to Seller to:
Xxxxxxxx Xxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
with a copy to:
Utix Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx, CEO
All such notices and communications shall be effective when delivered at the
designated addresses or five days after deposited in the mails in conformity
with the provisions hereof.
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(h) COUNTERPARTS. This Agreement may be executed in
counterparts each of which shall be deemed an original and all of which shall
constitute one and the same Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the day and year first above written.
SELLER:
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XXXXXXXX XXXXX
PURCHASERS:
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SCHEDULE A
THE PURCHASERS
--------------------------------------------------------- ------------------------------ -----------------------------
SHARES PURCHASED PURCHASE PRICE
NAME AND ADDRESS (#) $
--------------------------------------------------------- ------------------------------ -----------------------------
New York Holdings, Ltd.
3 Xxxxxx Xxxxx Street 437,500 $175,000
Xxx Xxxx 00000, Xxxxxx
--------------------------------------------------------- ------------------------------ -----------------------------
Xxxxxx Xxxxxxxxx
00 Xxxx 00xx Xx. 15K 187,500 $75,000
Xxx Xxxx, XX 00000
--------------------------------------------------------- ------------------------------ -----------------------------
Xxxxx Xxxxx
0000 Xxxxxxxx, 00xx Xxxxx 150,000 $60,000
Xxx Xxxx, XX 00000
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Xxxxx Xxxxxx
000 X 00xx Xx., #00 225,000 $90,000
Xxx Xxxx, XX 00000
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TOTAL: 1,000,000 $400,000
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