EXHIBIT 4
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PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT, dated as of December 27, 2004 (this
"AGREEMENT"), is made among Xxxxx Holdings, LLC, a New Jersey limited liability
company (the "PURCHASER"), and Xxxx X. Xxxxxx, a resident of the State of
California, and Xxxxxx X. Xxxxxx, a resident of the State of Connecticut (each a
"SELLER", and collectively, the "SELLERS").
RECITALS
WHEREAS, Sellers currently own 231,132 shares of common stock, par
value $0.20 per share (the "SHARES"), of XxXxxx Technologies, Inc., a Delaware
corporation (the "COMPANY"); and
WHEREAS, Sellers have agreed to sell to Purchaser, and Purchaser has
agreed to purchase from Sellers, all of the Shares on the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, the parties hereto, in consideration of the premises
and of the mutual covenants, representations, warranties and agreements
contained herein, hereby agree as follows:
ARTICLE I.
PURCHASE AND SALE, CLOSING AND DELIVERY
Section 1.01 Sale and Purchase of the Shares.
On the terms and subject to the conditions set forth in this Agreement,
each Seller hereby agrees to sell, transfer, assign and deliver to Purchaser
without representation, warranty or recourse except as provided in Article II
and Section 6.01 of Article VI, and Purchaser hereby agrees to purchase from
each Seller, at the closing (the "CLOSING"), the number of Shares at a cash
purchase price (the "PURCHASE PRICE") set forth opposite each Seller's
respective name on Schedule 1.01 attached hereto.
Section 1.02 Closing.
The Closing shall take place at the offices of Purchaser, 000 Xxxxxxxx
Xxxx, Xxxxxxx, XX 00000, on the date of this Agreement (the "CLOSING DATE").
Section 1.03 Delivery of the Shares.
At the Closing, Sellers shall deliver to Purchaser certificates
representing the number of Shares to be sold by each Seller as set forth in
Schedule 1.01, together with duly executed stock powers, against receipt by
Sellers of the Purchase Price in immediately available funds by check
or electronic transfer to accounts designated by each Seller or by such other
method as Sellers and Purchaser may agree. Sellers shall also deliver to
Purchaser an irrevocable proxy, in form and substance satisfactory to Purchaser
and its counsel, to vote all Shares in the absolute discretion of Purchaser
until the transfer of the Shares to Purchaser has been recorded on the books and
records of the Company and its transfer agent and new certificate(s)
representing the Shares registered in the name of Purchaser shall have been
delivered to Purchaser.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller, severally and not jointly, hereby represents to Purchaser
as follows:
Section 2.01 Title, Etc.
Such Seller has valid and unencumbered title to the Shares to be sold
by such Seller to Purchaser hereunder, and full right, power and authority to
sell, transfer, assign and deliver such Shares to Purchaser hereunder; and upon
delivery and payment of the Purchase Price for such Shares as provided herein,
Purchaser will acquire valid and unencumbered title thereto.
Section 2.02 Authorization.
Such Seller has full power, right and authority to execute and deliver
this Agreement and to consummate all transactions required to be effected by it
as contemplated hereby and thereby. This Agreement has been duly authorized,
executed and delivered by such Seller, and, assuming the due authorization,
execution and delivery of this Agreement by Purchaser, constitutes a valid and
legally binding obligation of such Seller enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. Neither the execution and
delivery of this Agreement nor the consummation and performance of the
transactions contemplated hereby will (i) conflict with or violate any agreement
to which such Seller and the Company are parties or (ii) require the consent,
approval or authorization of any governmental entity or other person or entity.
The transfer of the Shares by such Seller to Purchaser pursuant to this
Agreement will not violate the Securities Act of 1933, as amended, or applicable
state securities laws.
Section 2.03 Brokers and Finders.
No person or entity acting on behalf or under the authority of such
Seller is or will be entitled to any broker's, finder's, or similar fee or
commission in connection with the transactions contemplated by this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents to Sellers as follows:
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Section 3.01 Investment Representation and Qualification of Purchaser.
Purchaser is acquiring the Shares for Purchaser's own account, for
investment and not with a view to, or for sale in connection with, any
distribution of such stock or any part thereof. Purchaser acknowledges that the
Shares were purchased by the Sellers in private placement transactions, that
they have not been registered under the Securities Act of 1933, as amended, (the
"33 Act"), and that their transfer is subject to the legend on the certificates
and the provisions of the '33 Act. Purchaser understands that the purchase of
the Shares involves substantial risk and hereby represents that its financial
condition and investments are such that it is in a financial position to hold
the Shares for an indefinite period of time and to bear the economic risk of,
and withstand a complete loss of, its investment therein. In addition, by virtue
of its expertise, the advice available to it and previous investment experience,
Purchaser has extensive knowledge and experience in financial and business
matters, investments, securities and private placements and the capability to
evaluate the merits and risks of the transactions contemplated by this Agreement
and is an "accredited investor" as defined in Regulation D of the '33 Act.
Section 3.02 Authorization.
Purchaser has full power, right and authority to execute and deliver
this Agreement and to consummate all transactions required to be effected by it
as contemplated hereby and thereby. This Agreement has been duly authorized,
executed and delivered by Purchaser and, assuming the due authorization,
execution and delivery of this Agreement by each Seller, constitutes a valid and
legally binding obligation of Purchaser enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
Section 3.03 Brokers.
No person or entity acting on behalf or under the authority of
Purchaser is or will be entitled to any broker's, finder's or similar fee or
commission in connection with the transactions contemplated by this Agreement.
ARTICLE IV.
COVENANTS
Section 4.01 Efforts.
Subject to the terms and conditions hereof, Sellers and Purchaser shall
use reasonable best efforts to take, or cause to be taken all actions, and to
do, or cause to be done, all things necessary, proper and advisable to
consummate the transactions contemplated hereby on the terms and subject to the
conditions provided hereunder. In case at any time after the Closing any further
action is necessary, proper or advisable to carry out the purposes of this
Agreement, as soon as reasonably practicable, the parties hereto shall take all
such action to effectuate such purposes.
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Section 4.02 Further Assurances.
Prior to and after the Closing, each party will cooperate in good faith
with each other party and will take all appropriate action and execute any
agreement, instrument or other writing of any kind which may be reasonably
necessary or advisable to carry out and confirm the transactions contemplated by
this Agreement.
ARTICLE V.
CONDITIONS TO CLOSING
Section 5.01 Conditions to Purchaser's Obligations.
The obligations of Purchaser to effect the transactions contemplated
hereby shall be subject to the following conditions, any one or more of which
may be waived in writing by Purchaser in whole or in part:
(a) The representations and warranties of each Seller set forth in this
Agreement shall be true and correct as of the date of this Agreement and as of
the Closing Date.
(b) Each Seller shall have performed and complied in all material
respects with all agreements, covenants, obligations and conditions required by
this Agreement to be performed or complied with by such Seller at or prior to
the Closing Date.
(c) Such Seller shall have assigned to Purchaser all rights of such
Seller under that certain Registration Rights Agreement dated as of June 15,
1998 between the Company, Sellers and certain others, as amended by an Amendment
to Registration Rights Agreement dated as of January 7, 2000.
Section 5.02 Conditions to Sellers' Obligations.
The obligation of Sellers to effect the transactions contemplated
hereby shall be subject to the following conditions, any one or more of which
may be waived in writing by each Seller (as to itself only) in whole or in part:
(a) The representations and warranties of Purchaser set forth in this
Agreement shall be true and correct as of the date of this Agreement and as of
the Closing Date.
(b) Purchaser shall have performed and complied in all material
respects with all agreements, covenants, obligations and conditions required by
this Agreement to be performed or complied with by it at or prior to the Closing
Date.
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ARTICLE VI.
INDEMNIFICATION AND SURVIVAL
Section 6.01 Indemnification by Sellers.
From and after the Closing Date, each Seller shall severally indemnify,
hold harmless and defend Purchaser from and against any losses, claims, damages,
liabilities, costs and expenses (any "LOSSES") that Purchaser may incur as a
result or arising out of (a) any breach by such Seller of any of such Seller's
representations and warranties contained herein or (b) any defect in such
Seller's title to the Shares sold by such Seller to Purchaser pursuant to this
Agreement.
Section 6.02 Indemnification by Purchaser.
From and after the Closing Date, Purchaser shall severally indemnify,
hold harmless and defend each Seller from and against any Losses such Seller may
incur arising out of or resulting from (a) any breach by Purchaser of any of its
representations and warranties contained herein, or (b) except for any matter
for which Sellers have agreed to indemnify Purchaser hereunder, the sale,
transfer or delivery of the Shares to Purchaser pursuant to this Agreement,
including any action taken by Purchaser pursuant to the irrevocable proxy.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Entire Agreement.
This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, whether written or oral, among the parties
with respect to the subject matter hereof.
Section 7.02 Amendment; Waiver.
Any provision of this Agreement may be amended or waived only if such
amendment or waiver is in writing and signed, in the case of an amendment, by
each of the parties hereto, or in the case of a waiver, by the party or parties
against whom such waiver is to be effective. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
Section 7.03 Counterparts.
This Agreement may be executed in one or more counterparts (including
by facsimile), each of which shall be deemed an original, and all of which shall
together constitute one and the same Agreement.
Section 7.04 Headings.
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The titles of the Articles and the headings of the Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing the terms and provisions of this Agreement.
Section 7.05 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Section 7.06 Assignment; Third Party Beneficiaries.
Except as otherwise expressly provided herein, this Agreement shall
bind and inure to the benefit of the parties hereto and the respective
successors and permitted assigns of the parties hereto. Neither this Agreement
nor the rights and obligations hereunder are assignable by any party hereto
(except to a successor-in-interest by operation of law) without the prior
written consent of the other parties.
Section 7.07 Expenses.
Sellers, on the one hand, and Purchaser, on the other hand, shall bear
their own expenses in connection with the preparation for and consummation of
the transactions contemplated by this Agreement.
Section 7.08 Notices.
Any written notice herein required to be given shall be deemed to have
been duly given as provided below if (a) mailed, certified, or registered mail,
first-class postage paid, (b) sent by overnight mail or courier, (c) transmitted
via facsimile, telegram or telex or (d) delivered by hand, if to any Seller, to
such Seller's address as set forth opposite such Seller's respective name on
Schedule 1.01, or if to Purchaser, to Xxxxx X. Xxxxx, 000 Xxxxxxxx Xxxx,
Xxxxxxx, XX 00000, with a copy to Xxxxxx Xxxxxxxxx, III, Esq., Day, Xxxxx, &
Xxxxxx LLP, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000. Any notice shall be deemed
to have been duly given if personally delivered or sent by the mails or by
telegram or telex and will be deemed received, unless earlier received, (a) if
sent by certified or registered mail, return receipt requested, three (3) days
following the date so mailed, (b) if sent by overnight mail or courier, when
actually received, (c) if sent by facsimile, telegram or telex transmission, on
the date electronic confirmation is received by the sender and (d) if delivered
by hand, on the date of receipt.
Section 7.09 Severability.
In case any provision in this Agreement shall be declared or held
invalid, illegal or unenforceable, in whole or in part, whether generally or in
any particular jurisdiction, such provision shall be deemed amended to the
extent, but only to the extent, necessary to cure such invalidity, illegality or
unenforceability, and the validity, legality and enforceability of the remaining
provisions, both generally and in every other jurisdiction, shall not in any way
be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XXXXX HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Manager
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
SCHEDULE 1.01
Seller Name Mailing Address Shares Purchase Price
Xxxx X. Xxxxxx 22200 Puccioni Road 96,438 $96.44
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx 000 Xxxxxx Xxxx 134,694 $134.69
Xxxxxxxxx, XX 00000
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TOTAL: 231,132 $231.13
