BUSINESS PURCHASE AND
STOCK ACQUISITION AGREEMENT
AGREEMENT as of this 1st day of November, 1999, by and among
Xxxxxxxx.xxx, Inc., a Delaware corporation ("Nowseven"), Xxxxxxx Xxxxx Xxxxxxx
and Xxxxx X. Xxxxxxx, TBE ("Shareholders"), owners of all of the outstanding
shares of Nowseven, and xXxxxxxx.xxx, Inc., a Nevada corporation ("iShopper").
The parties hereto agree as follows:
A. FACTS AND OBJECTIVES
iShopper desires to acquire from Shareholders all of the outstanding
shares of Nowseven in exchange for certain shares of iShopper, and Shareholders
desire to exchange all the shares of Nowseven owned by them for shares of stock
of iShopper, according to the terms herein.
B. TERMS AND CONDITIONS
1. Plan of Reorganization. Shareholders are the owners of all of the
issued and outstanding stock of Nowseven, which consists of 1,500 shares of
common stock of the par value of $0.01 per share (the "Nowseven Shares"). It is
the intention of the parties hereto that all of the issued and outstanding
capital stock of Nowseven will be acquired by iShopper in exchange solely for
1,000,000 shares of the restricted common stock of iShopper (the "iShopper
Shares").
2. Exchange and Delivery of Shares. iShopper and Shareholder agree that
the Nowseven Shares will be exchanged with iShopper for the iShopper Shares. On
the closing date, Shareholders will deliver a stock certificate or certificates
for all of the outstanding stock of Nowseven, duly endorsed by Shareholders, as
their interests may appear, so as to make iShopper the sole owner of the
Nowseven Shares, free and clear of all liens, claims and encumbrances; iShopper
shall deliver at or before closing certificates of stock totaling 1,000,000
shares to Shareholders in proportion to their respective interests in the
Nowseven Shares, or as Shareholders may direct.
The certificates delivered to Shareholders pursuant to this Agreement shall bear
a legend in substantially the following form (to which terms Shareholders
agree):
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended,
or under the securities laws of any state. The shares of stock
have been acquired for investment and may not be sold, offered
for sale or transferred in the absence of an effective
registration under the Securities Act of 1933, as amended, and
any applicable state securities laws, or an opinion of counsel
satisfactory in form and substance to counsel for
xXxxxxxx.xxx, Inc. that the transaction shall not result in a
violation of federal or state securities laws."
3. Representations and Warranties of Shareholders. Shareholder and
Nowseven represent and warrant as follow:
a. Shareholders are and will be as of the closing date, the
sole owner of all of the outstanding shares of Nowseven, which shares
are and will be free from any claims, liens, or other encumbrances, and
Shareholders have the unqualified right to transfer said shares.
b. The Nowseven Shares constitute validly issued shares of
Nowseven, fully paid and nonassessable.
c. The financial statements of Nowseven attached hereto as
Exhibit A fairly and accurately represent the financial condition of
Nowseven as of the date of said statements; there has been no material
change in the financial condition of Nowseven since the date of said
statements except as set forth in Exhibit B; there are no substantial
liabilities, either fixed or contingent, not reflected in such
financial statements other than contracts or obligations in the usual
course of business; and no such contracts or obligations in the usual
course of business are liens or other liabilities which, if disclosed,
would alter substantially the financial condition of Nowseven as
reflected in such financial statements.
d. Neither Nowseven nor any Shareholder is involved in any
pending litigation or governmental investigation or proceeding, and no
threats or claims of litigation or governmental investigation have been
asserted against Nowseven, except as set forth at Exhibit C.
e. Shareholders have been supplied with this Agreement are
familiar with and understands its contents.
f. Shareholders, in determining to acquire the iShopper
Shares, have relied solely on their own analysis of information
obtained from iShopper and the advice of Shareholders' legal counsel
and accountants or other financial advisors with respect to the tax and
other consequences involved in purchasing iShopper Shares.
g. Shareholders understand and acknowledge that their rights
to the iShopper Shares will be governed by the terms and conditions of
the Agreement.
h. The iShopper Shares being acquired will be acquired for
Shareholders' own accounts without a view to public distribution or
resale and that Shareholders have no contract, undertaking, agreement,
or arrangement to sell or otherwise transfer or dispose of any iShopper
Shares or any portion thereof to any person;
i. Shareholders (i) can bear the economic risk of the purchase
of iShopper Shares, including the loss of their respective and entire
investment, (ii) have such knowledge and experience in business and
financial matters as to be capable of evaluating the merits and risks
of an investment in iShopper Shares, (iii) understand that there is no
guarantee that the actual performance of iShopper under any
circumstances will match and projections which may have been made, and
that such actual performance may differ substantially from what is
represented in any such projections.
j. Shareholders acknowledge and understands that the iShopper
Shares have not been registered under the 1933 Act or the securities
laws of any state and are subject to substantial restrictions on
transfer as described in the Agreement.
k. Shareholders will not sell or otherwise transfer ownership
or dispose of any iShopper Shares or any portion thereof unless (i)
such iShopper Shares are registered under the 1933 Act and any
applicable state securities laws or Shareholder obtains an opinion of
counsel which is satisfactory to iShopper that such iShopper Shares may
be sold in reliance on an exemption from such registration
requirements, and (ii) the transfer is otherwise made in accordance
with this Agreement.
l. Shareholders understands that (i) iShopper has no
obligation or intention to register any iShopper Shares for resale or
transfer under the 1933 Act or any state securities laws or to take any
action (including the filing of reports or the publication of
information as required by Rule 144 under the 0000 Xxx) which would
make available any exemption from the registration requirements of any
such laws and (ii) Shareholder therefore may be precluded from selling
or otherwise transferring ownership of or disposing of any iShopper
Shares or any portion thereof for an indefinite period of time or at
any particular time.
m. Shareholders acknowledges that Shareholder has been
encouraged to rely upon the advice of Shareholder's legal counsel and
accountants or other financial advisors with respect to the tax and
other considerations relating to the purchase of iShopper Shares and
has been offered, during the course of discussions concerning the
acquisition of iShopper Shares, the opportunity to ask such questions
and inspect such documents (including the books and records and
financial statements) concerning iShopper and its business and affairs
as Shareholder has requested so as to understand more fully the nature
of the investment and to verify the accuracy of the information
supplied.
n. (i) Shareholders are each at least 21 years of age; (ii)
Shareholders are all United States citizens; (iii) Shareholders have
adequate means of providing for Shareholders' current needs and
personal contingencies; (iv) Shareholders have no need for liquidity in
Shareholders' investments; (v) Shareholders maintain their respective
principal residences at the addresses shown below for each; and (vi)
all investments in and commitments to non-liquid investments are, and
after the purchase of iShopper Shares will be, reasonable in relation
to Shareholders' respective net worth and current needs.
o. Shareholders understand that no federal or state agency
including the Securities and Exchange Commission or the securities
commission or authorities of any state has approved or disapproved the
iShopper Shares, passed upon or endorsed the merits of the Offering, or
made any finding or determination as to the fairness of the iShopper
Shares for public investment.
p. Shareholders understand that the iShopper Shares are being
offered and sold in reliance on specific exemptions from the
registration requirements of federal and state laws and that iShopper
is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments, and understandings set forth
herein in order to determine the suitability of Shareholder to acquire
the iShopper Shares.
q. That the information set forth herein concerning
Shareholder is true and correct.
r. Shareholders are all "accredited investors" as that term is
defined in Regulation D promulgated under the Securities Act of 1933
(the "1933 Act"), in that each (i) has an individual net worth, or
joint net worth with his or her spouse, of at least $1,000,000, or (ii)
has had individual income in excess of $200,000, or joint income with
his or spouse in excess of $300,000, in each of the last two years, and
has a reasonable expectation of reaching the same income level in the
current year.
4. Representations and Warranties of iShopper
a. As of the closing date, the iShopper shares to delivered to
Shareholder will constitute the valid and legally issued shares of
iShopper, fully paid and nonassessable.
b. The officers of iShopper are duly authorized to execute the
agreement and have obtained any authorization required of its
stockholders.
c. As of the closing date, iShopper will be in good standing
as a Nevada corporation.
d. The financial statements of iShopper attached hereto as
Exhibit D fairly and accurately represent the financial condition of
iShopper as of the date of said statements; there has been no material
change in the financial condition of iShopper since the date of said
statements except as set forth in Exhibit E; there are no substantial
liabilities, either fixed or contingent, not reflected in such
financial statements other than contracts or obligations in the usual
course of business; and no such contracts or obligations in the usual
course of business are liens or other liabilities which, if disclosed,
would alter substantially the financial condition of iShopper as
reflected in such financial statements.
5. Conditions of Closing. The closing shall occur not later than
December 3, 1999 at 11:00 a.m., at the offices of iShopper, at on such date and
at such time as the parties mutually agree, and shall be effective as of
November 20, 1999.
6. Delivery of Records. Shareholder agrees to deliver on or before the
closing date, or at such time as may be mutually agreeable to the parties, such
documents and corporate records as iShopper may request.
7. Survival. All representations and warranties herein shall survive
the closing.
8. Governing Law. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of Utah, and venue with respect to any
dispute shall be fixed in the Third Judicial District Court, in and for Salt
Lake County, State of Utah.
9. Notices. All communications under this Agreement shall be in
writing, shall be delivered personally, sent by facsimile transmission or mailed
by first class mail, postage prepaid, to the telecopy numbers or addresses
specified below, or to such other telecopy number or address as any party hereto
may have furnished in writing to the others, and shall be deemed to be given on
the date of delivery if served personally, or the first business day after being
sent by telecopy, or the third business day after mailing:
If to iShopper: Mr. Xxxx Xxxxx
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Fax No. (000)000-0000
If Shareholders: Xxxxxxx Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxx
0000 Xxxxxx Xx.
Xxxxxxxx, XX 00000
Fax No. (000) 000-0000
9. Amendment and Waiver: This Agreement may be amended, and observance
of any term of this agreement may be waived, with (and only with) the written
consent of the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed to be or shall constitute a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver.
10. Severability. In the event that any particular provision(s) of this
Agreement shall for any reason hereafter be determined to be unenforceable, or
in violation of any law, governmental order or regulation, such unenforceability
or violation shall not affect the remaining provisions of this agreement, which
shall continue in full force and effect and be binding upon the respective
parties hereto.
11. Attorneys' Fees. The non-prevailing party, as determined by the
Court, in a judicial proceeding for breach of any of the provisions of this
Agreement shall be fully responsible for and pay the prevailing party's
reasonable attorneys' fees, costs, and expenses.
12. Captions. The section and/or paragraph titles or captions used in
this Agreement are inserted only as and intended solely for convenience of
reference, and shall in no manner modify, limit, explain, construe, describe the
scope of intent, or in any other way affect the terms of this Agreement.
SHAREHOLDERS
_______/s/__________________
_______/s/__________________
XXXXXXXX.xxx, INC.
By_______/s/___________________
Xxxxxxx X. Xxxxxxx
Its Sole Director
xXXXXXXX.xxx, INC.
By____________________________
Xxxxxxx X. Xxxxxxx, Xx.
Its CFO
