Exhibit 10.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of September 13, 2004 (this "Agreement"), by
and among Xxxxxxx Xxxxxxx, an individual having an address at Xxxxx 0000-0000
Xxxxxxxx, Xxx Xxxx, XX 00000 ("Seller"), on the one hand, and First Jemini Trust
and/or its designees having an office and address at 00 Xxxxxxx Xxxxxxxx,
Xxxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 ("Purchaser"), on the other hand, and
Clixtix, Inc., a corporation incorporated under the laws of New York, having an
office and address at Xxxxx 0000-0000 Xxxxxxxx, Xxx Xxxx, XX 00000 (the
"Company").
W I T N E S S E T H
WHEREAS, Seller desires to sell to Purchaser 5,086,600 shares (the
"Shares") of the Company's common stock, par value $0.0001 per share (the
"Common Stock"), representing 49.7% of the Company's issued and outstanding
shares of the Common Stock of the Company, on the terms and conditions set forth
in this Stock Purchase Agreement ("Agreement");
WHEREAS, Purchaser desires to buy the Shares on the terms and
conditions set forth herein;
WHEREAS, the Company joins in the execution of this Agreement for
the purpose of evidencing its consent to the consummation of the foregoing
transactions and for the purpose of making certain representations and
warranties to, and covenants and agreements with, the Purchaser; and
WHEREAS, in connection the purchase of the Shares, Xxxxxxx Xxxxxxx,
or her assignee, will purchase certain assets of the Company pursuant to that
certain Asset Purchase Agreement, between Xxxxxxx Xxxxxxx and the Company of
even date herewith, and the Company will acquire all of the outstanding capital
stock of Medeorex, Inc., pursuant to that certain Share Exchange Agreement
between the shareholders of Medeorex, Inc. and the Company of even date herewith
(the "Related Transactions").
NOW, THEREFORE, in consideration of the promises and respective
mutual agreements herein contained, it is agreed by and between the parties
hereto as follows.
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1 Sale of the Shares. On the Closing Date (as hereinafter
defined), subject to the terms and conditions herein set forth, on the basis of
the representations, warranties and agreements herein contained, Seller shall
sell, assign, transfer and deliver all right, title and interest in and to the
Shares to the Purchaser free and clear of all liens, security interests,
pledges, encumbrances, charges, restrictions, demands and claims, of any kind or
nature whatsoever, whether direct or indirect or contingent to Purchaser who
shall purchase the Shares from the Seller.
1.2 The Closing. The purchase of the Shares shall be deemed
effective upon the consummation of the deliveries set forth in Sections 6.1(a)
and (b) and the Related Transactions (the "Closing"), and shall take place at
the office of Xxxxxxxx Xxxxx & Xxxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 or such other place as Purchaser and Seller may mutually agree, on
September 13, 2004. Such date is herein referred to as the "Closing Date."
1.3 Instruments of Conveyance and Transfer. At the Closing, Seller
shall deliver to the Purchaser certificates representing the Shares, with
appropriate stock powers with medallion guarantees ("Certificates") as shall be
effective to vest in Purchaser all right, title and interest in and to all of
the Shares.
1.4 Consideration and Payment for the Shares. In consideration for
the Shares, Purchaser shall pay to the Seller a total purchase price of Two
Hundred Forty-Eight Thousand, Two Hundred Forty-Five Dollars ($248,245) in cash
("Purchase Price"). Purchaser shall pay to the Seller the Purchase Price at the
Closing Date.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents, warrants and undertakes to the Purchaser the following:
2.1 Authority and Title.
(a) Due Execution. This Agreement has been duly executed and
delivered by the Seller.
(b) Valid Agreement. This Agreement constitutes, and upon
execution and delivery thereof by the Seller, will
constitute, a valid and binding agreement of the Seller
enforceable against the Seller in accordance with its
terms.
(c) Authorization. No consent or authorization of the
Company, its Board of Directors, or its stockholders is
required for the execution, delivery or performance of
this Agreement.
(d) Seller's Title to Shares; No Liens or Preemptive Rights;
Valid Issuance. Seller has and at the Closing will have
good and valid title and control of the Shares free and
clear of all encumbrances of any kind, except those
created in favor of the Purchaser pursuant hereto and
those created by applicable federal and state securities
laws; and on delivery to the Purchaser of the Shares,
good and valid title to all the Shares will pass to
Purchaser. The Shares have been legally and validly
issued in compliance with all applicable U.S. federal
and state securities laws, and are fully paid and
non-assessable shares of the Company's Common Stock; and
the Shares have all been issued under duly authorized
resolutions of the Board of Directors of the Company.
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2.2 No Governmental Action Required. The execution and delivery by
the Seller of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental official,
except for filings required to be made with the Securities and Exchange
Commission ("Commission") and the National Association of Securities Dealers
("NASD"), and except for such actions or filings that have been undertaken or
made prior to the date hereof and that will be in full force and effect (or as
to which all applicable waiting periods have expired) on and as of the date
hereof.
2.3 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Seller and the Company of this Agreement does not
and will not, and the sale by the Seller of the Shares and the consummation of
the other transactions contemplated by this Agreement does not and will not
contravene or constitute a default under or violation of (or constitute an event
which might, upon passage of time or giving of notice, constitute a default
under or violation of) (i) any provision of applicable law or regulation, (ii)
the articles of incorporation or by-laws or any other governing document of the
Company or (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Seller or any of her or the Company's assets, or
result in the creation or imposition of any lien on any asset of the Seller.
2.4 Due Diligence Materials. The information heretofore furnished by
the Seller to the Purchaser for purposes of or in connection with this Agreement
or any transaction contemplated hereby does not, and all such information
hereafter furnished by the Seller to the Purchaser will not (in each case taken
together and on the date as of which such information is furnished), contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they are made, not misleading.
2.5 Not a Voting Trust: No Proxies. None of the Shares are or will
be subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to the Shares. Except as
provided in this Agreement, the Seller is not a party to any agreement which
offers or grants to any person the right to purchase or acquire any of the
Shares. There is no applicable local, state or federal law, rule, regulation, or
decree which would, as a result of the sale contemplated by this Agreement,
impair, restrict or delay any voting rights with respect to the Shares.
2.6 Survival of Representations. The representations and warranties
made herein by the Seller will be true and correct in all material respects on
and as of the Closing Date with the same force and effect as though said
representations and warranties had been made on and as of the Closing and will,
except as provided herein, survive the Closing Date until the earlier of the
expiration of the applicable statute of limitations or the date that is six
years from the Closing Date.
2.7 Adoption of Company's Representations. The Seller adopts and
remakes as her own each and every representation, warranty and undertaking made
by the Company in Article 3 below as if she had made such representations,
warranties and undertakings to the Purchaser directly.
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2.8 No Solicitation. No form of solicitation was used by the Seller
or, to the best of her actual knowledge, any other person acting on behalf of
the Seller, in connection with the offer and sale of the Shares. Neither the
Seller, nor, to her knowledge, any person acting on behalf of the Seller, has,
either directly or indirectly, sold or offered for sale to any person (other
than the Purchaser) any of the Shares, and the Seller represents that she will
not, nor will any person authorized to act on her behalf (except that the Seller
makes no representation as to the Purchaser) sell or offer for sale any such
security to, or solicit any offers to buy any such security from, or otherwise
approach or negotiate in respect thereof with, any person or persons so as
thereby to cause the issuance or sale of any of the Shares to be in violation of
any of the provisions of Section 5 of the Securities Act of 1933 or any other
provision of law.
2.9 Brokers. Except for commissions payable by Purchaser to Xxxxx
Xxxxxxx, no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission payable by the Purchaser or the Company in
connection with the transactions contemplated by this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COMPANY
The Company represents, warrants and undertakes to the Purchaser the following:
3.1 Due Organization. Except for Xxxxxxx Group Entertainment, Inc.,
the Company has no subsidiaries. Each of the Company and its subsidiary is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York (a) with full power and authority to own, lease, use,
and operate its properties and to carry on its business as and where now owned,
leased, used, operated and conducted. Neither the Company nor its subsidiary is
qualified to conduct business in any jurisdiction other than the State of New
York and (b) all actions taken by the current directors and stockholders of the
Company have been valid and in accordance with the laws of the State of New York
and all actions taken by the Company have been duly authorized by the current
directors and stockholders of the Company as appropriate.
3.2 (a) Company Authority. The Company has all requisite
corporate power and authority to enter into and perform this Agreement and to
consummate the transactions contemplated herein.
(b) Due Authorization. The execution, delivery and
performance by the Company of this Agreement has been
duly and validly authorized and no further consent or
authorization of the Company, its Board of Directors or
its stockholders is required. The Seller is not
disqualified from acting as a director with respect to
the transactions contemplated hereby by reason of her
interest in the transactions.
(c) Valid Execution. This Agreement has been duly executed
and delivered by the Company.
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(d) Binding Agreement. This Agreement constitutes, and upon
execution and delivery thereof by the Company, will
constitute, a valid and binding agreement of the
Company, enforceable against the Company in accordance
with its terms.
(e) No Violation of Corporate Documents or Agreements. The
execution and delivery of this Agreement by the Company
and the performance by the parties hereto of their
obligations hereunder will not cause, constitute, or
conflict with or result in (i) any breach or violation,
or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material
benefit under, or to increased, additional, accelerated
or guaranteed rights or entitlements of any person under
any of the provisions of, or constitute a default under,
any license, indenture, mortgage, charter, instrument,
articles of incorporation, bylaw, judgment, order,
decision, writ, injunction, or decree or other governing
document, agreement or instrument or proceeding to which
the Company or its stockholders are a party, or by which
they may be bound, nor will any consents or
authorizations of any party other than those hereto by
required, (ii) an event that (including an event that
with the passage of time or the giving of notice) would
cause the Company to be liable to any party, or (iii) an
event that (including an event that with the passage of
time or the giving of notice) would result in the
creation or imposition of any lien, charge or
encumbrance on any asset of the Company or on the
securities of the Company to be acquired by the
Purchaser.
3.3 Authorized Capital, No Preemptive Rights, No Liens;
Anti-Dilution. As of the date hereof, the authorized capital of the Company is
20,000,000 shares of Common Stock, with a par value of $0.0001 per share. There
is no authorized preferred stock of any kind. The issued and outstanding capital
stock of the Company is 10,228,000 shares of Common Stock. All of the shares of
capital stock are duly authorized, validly issued, fully paid and
non-assessable. No shares of capital stock of the Company are subject to
preemptive rights or similar rights of the stockholders of the Company or any
liens or encumbrances imposed through the actions or failure to act of the
Company, or otherwise. As of the date hereof (i) there are no outstanding
options, warrants, convertible securities, scrip, rights to subscribe for, puts,
calls, rights of first refusal, tag-along agreements, nor any other agreements,
understandings, claims or other commitments or rights of any character
whatsoever relating to, or securities or rights convertible into or exchangeable
for any shares of capital stock of the Company, or arrangements by which the
Company is or may become bound to issue additional shares of capital stock of
the Company, and (ii) there are no agreements or arrangements under which the
Company is obligated to register the sale of any of its securities under the
Securities Act and (iii) there are no anti-dilution or price adjustment
provisions contained in any security issued by the Company (or in the Company's
articles of incorporation or by-laws or in any agreement providing rights to
security holders) that will be triggered by the transactions contemplated by
this Agreement. The Company has furnished to Purchaser true and correct copies
of the Company's articles of incorporation and by-laws, copies of which are
attached to this Agreement at Exhibit 1.
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3.4 No Governmental Action Required. The execution and delivery by
the Seller of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental official,
except for filings required to be made with the Commission and the NASD, and
except for such actions or filings that have been undertaken or made prior to
the date hereof and that will be in full force and effect (or as to which all
applicable waiting periods have expired) on and as of the date hereof.
3.5 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Company of this Agreement and the performance by
the parties hereto of the transactions contemplated hereby does not and will not
contravene or constitute a default under or violation of (or constitute an event
which might upon the passage of time or the giving of notice could result in
default or a violation of) (i) any provision of applicable law or regulation,
(ii) the Company's articles of incorporation or bylaws or any other governing
document, or (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any of its assets, or result in the
creation or imposition of any lien on any asset of the Company. The Company is
in compliance with and conforms to all statutes, laws, ordinances, rules,
regulations, orders, restrictions and all other legal requirements of any
domestic or foreign government or any instrumentality thereof having
jurisdiction over the conduct of its businesses or the ownership of its
properties.
3.6 SEC Representations. Through the date hereof, the Company has
duly, timely, accurately and completely filed all forms, reports and documents
with the Commission required to be filed by it pursuant to Section 15(d) of the
Securities Exchange Act of 1934 including without limitation its registration
statement on Form SB-2 ("SEC Reports"). The Company has fewer than 500
shareholders of record as determined in accordance with Rule 12g5-1 and is not
required to register its shares under the Securities Exchange Act of 1934. True
and complete copies of the required SEC Reports have been made available to the
Purchaser by the Seller and are incorporated herein by reference. Such SEC
Reports, at the time filed, complied in all material respects with the
requirements of the federal and state securities laws and the rules and
regulations of the Commission thereunder applicable to such SEC Reports. Except
as set forth on Schedule 3.6 hereto, none of the SEC Reports, including without
limitation, any financial statements or schedules included therein, contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements made, in light of the circumstances under which
they were made, not misleading.
3.7 Financial Statements.
(a) The Purchaser has received a copy of the audited
financial statements of the Company for the fiscal year
ended December 31, 2003 ("Audited Financial
Statements"), and the related statements of income and
retained earnings for the period then ended. The Audited
Financial Statements have been prepared in accordance
with generally accepted accounting principles
consistently followed by the Company throughout the
periods indicated. Such financial statements fairly
present the financial condition of the Company at the
dates indicated and its results of operations and
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cash flows for the periods then ended and, except as
indicated therein, reflect all claims against, debts and
liabilities of the Company, fixed or contingent, and of
whatever nature.
(b) Except as set forth on Schedule 3.7(b), since June 30,
2004 (the "Balance Sheet Date"), there has been no
material adverse change in the assets or liabilities, or
in the business or condition, financial or otherwise, or
in the results of operations or prospects, of the
Company, whether as a result of any legislative or
regulatory change, revocation of any license or rights
to do business, fire, explosion, accident, casualty,
labor trouble, flood, drought, riot, storm,
condemnation, act of God, public force or otherwise and
no material adverse change in the assets or liabilities,
or in the business or condition, financial or otherwise,
or in the results of operation or prospects, of the
Company except in the ordinary course of business.
(c) Since the Balance Sheet Date, the Company has not
suffered any damage, destruction or loss of physical
property (whether or not covered by insurance) affecting
its condition (financial or otherwise) or operations
(present or prospective), nor has the Company issued,
sold or otherwise disposed of, or agreed to issue, sell
or otherwise dispose of, any capital stock or any other
security of the Company and has not granted or agreed to
grant any option, warrant or other right to subscribe
for or to purchase any capital stock or any other
security of the Company or has incurred or agreed to
incur any indebtedness for borrowed money.
3.8 No Litigation. The Company is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or pending or
threatened governmental investigation. The Company is not subject to or in
default with respect to any order, writ, injunction, or decree of any federal,
state, local, or foreign court, department, agency, or instrumentality.
3.9 No Taxes. The Company is not, and will not become with respect
to any periods ending on or prior to the Closing Date, liable for any income,
sales, withholding, franchise, excise, license, real or personal property taxes
(a "Tax") to any foreign, United States federal, state or local governmental
agencies whatsoever, including without limitation, in respect of the forgiveness
of debt to be made by the Seller on or prior to the Closing Date. All United
States federal, state, county, municipality local or foreign income Tax returns
and all other material Tax returns (including information returns) that are
required, or have been required, to be filed by or on behalf of the Company have
been or will be filed as of the Closing Date and all Taxes due pursuant to such
returns or pursuant to any assessment received by the Company have been or will
be paid as of the Closing Date. The charges, accruals and reserves on the books
of the Company in respect of taxes or other governmental charges have been
established in accordance with GAAP. All returns that have been filed or lodged
relating to Tax are true and accurate in all material respects. No audit,
action, suit, proceeding or other examination
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regarding taxes for which the Company may have any liability is currently
pending against or with respect to the Company and neither Seller nor Company
has received any notice (formally or informally) of any audit, suit, proceeding
or other examination. No material adjustment relating to any Tax returns, no
closing or similar agreement has been entered into or issued or has been
proposed (formally or informally) by any tax authority (insofar as such action
relate to activities or income of or could result in liability of the Company
for any Tax) and no basis exists for any such action. The Company has not
changed any election, adopted or changed any accounting method or period, filed
any amended return for any Tax, settled any claim or assessment of any Tax, or
surrendered any right to claim any refund of any Tax, or consented to any
extension or waiver of the statute of limitations for any Tax. The Company has
not had an "ownership change" as that term is defined in Section 382 of the
Internal Revenue Code of 1986, as amended and in effect.
3.10 Material Agreements.
(a) Schedule 3.10(a) represents and contains a complete and
correct list of all material contracts entered into by
the Company other than those assumed by Aisle Seats,
Inc. pursuant to an asset purchase agreement between
Aisle Seats, Inc. and the Company of even date herewith,
including, but not limited to, all contracts, (a) which
have unexpired terms of more than one (1) year or cannot
be terminated by the Company without penalty or payment
on thirty (30) days notice or less; (b) which would
require over the full term thereof payments by the
Company of more than $5,000; or (c) pursuant to which
there were payments by or to the Company of more than
$5,000 for the calendar year ended December 31, 2003.
True and correct copies of the contracts listed on
Schedule 3.10(a) have been delivered or made available
to Purchaser. Each of such contracts is valid, binding
and enforceable against the Company and the other
parties thereto, in accordance with its terms, and to
the best knowledge of the Company is in full force and
effect. Except as set forth in Schedule 3.10(a), to the
best knowledge of the Company, each of the other parties
thereto has performed in all material respects all
obligations required to be performed by it under, and is
not in default in any material respect under, any of
such contracts, and no event has occurred which, with
notice or lapse of time, or both, would constitute such
a default. Except as disclosed on Schedule 3.10(a), the
Company has not received any written claim from any
other party to any such contract that the Company has
breached any obligations to be performed by it
thereunder, or is otherwise in default or delinquent in
performance thereunder. Except as disclosed on Schedule
3.10(a), there are no contracts to which the Company is
a party that contain provisions relating to agreements
not to compete that bind the Company which affect or
restrict the conduct of the business as currently
conducted or could reasonably be expected to affect or
restrict the conduct of the
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business of the Company, as intended to be conducted by
Purchaser after the Closing.
(b) Xxxxxxx Xxxxxxx has and upon consummation of the
transactions contemplated by this Agreement, Purchaser
will have good and marketable title to the Shares.
(c) [Intentionally Deleted].
(d) The Company owns no property and has a valid leasehold
interest in all properties occupied by it. Such leases
are set forth on Schedule 3.10(d).
(e) Except as set forth on Schedule 3.10(e):
(i) The Company does not have, and never has had, any
employees or agents.
(ii) The Company has no employment contracts or
agreements with any of its officers, directors, or
with any consultants, employees or other such
parties.
(iii) The Company has no stockholder contracts or
agreements.
(f) The Company has no outstanding powers of attorney and no
obligations concerning the performance of the Seller
concerning this Agreement.
(g) The Company is not required to hold and does not hold
any Permits ("Permits" means all licenses, franchises,
grants, authorizations, permits, easements, variances,
exemptions, consents, certificates, orders and approvals
necessary to own, lease and operate the properties, of,
and to carry on the business of the Company).
(h) Neither the Company nor, to the Company's knowledge, any
employee or agent of the Company has made any payments
of funds of the Company, or received or retained any
funds, in each case in violation of any law, rule or
regulation or of a character required to be disclosed by
the Company in any of the SEC Reports.
(i) There are no outstanding judgments or UCC financing
statements or UCC security interests filed against the
Company or any of its properties.
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(j) The Company has no debt, loans, or obligations of any
kind, to any of its directors, officers, stockholders or
employees or third parties that will not be satisfied
prior to the Closing Date.
(k) The Company has no outstanding provisions for
indemnification of any person with respect to
liabilities relating to any current or former business
of the Company or any predecessor person.
3.11 No Liabilities. Except as set forth in the financial statements
of the Company and other than expenses arising in the ordinary course of
business consistent with past practices and related to this Agreement and
related transactions, and expenses incurred or accrued to prepare and file the
quarterly report of the Company on Form 10-QSB for the quarter ended June 30,
2004: (a) there are no liabilities of the Company of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or otherwise,
and there is no existing condition, situation or set of circumstances that could
reasonably be expected to result in such a liability; and (b) except as set
forth on Schedule 3.11(b), the Company does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due, that is not reflected on the Company's
financial statements.
3.12 OTC Listing. The Company is currently listed on the OTC
Electronic Bulletin Board under the trading symbol "CXTX."
3.13 Compliance with Law. To the best of its knowledge, the Company
has complied with, and is not in violation of any provision of laws or
regulations of federal, state or local government authorities and agencies
applicable to its business. There are no pending or threatened proceedings
against the Company by any federal, state or local government, or any
department, board, agency or other body thereof.
3.14 Corporate Documents Effective. The articles of incorporation,
as amended, and the bylaws of the Company, as provided to Purchaser and attached
at Exhibit 1, are in full force and effect and all actions of the Board of
Directors or stockholders required to accomplish same have been taken.
3.15 No Stockholder Approval Required. The acquisition of the Shares
by Purchaser from Seller does not require the approval of the stockholders of
the Company under any applicable law, the Company's articles of incorporation or
bylaws, or any other requirement of law or, if stockholder approval is required
it has or will, prior to the Closing, be properly obtained in accordance with
the requirements of the Company's articles of incorporation and by-laws and
applicable law.
3.16 No Dissenters' Rights. The acquisition of the Shares by
Purchaser from Seller will not give rise to any dissenting stockholders' rights
under applicable law, the Company's articles of incorporation or bylaws, or
otherwise.
3.17 Not Subject to Voting Trust. None of the Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to such Shares. The Company
is not a party to any agreement that offers or grants to any person the right to
purchase or acquire any of the securities to be issued pursuant
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to this Agreement. There is no applicable local, state or federal law, rule,
regulation, or decree which would, as a result of the transfer of the Shares to
Purchaser, impair, restrict or delay any voting rights with respect to the
Shares.
3.18 Prior Offerings. All issuances by the Company of shares of
Common Stock in past transactions have been legally and validly effected, and
all of such shares of Common Stock are fully paid and non-assessable. All of the
offerings of the Company's Common Stock were conducted in accordance with the
requirements of Regulation D, Rules 504 and 506, as applicable, in compliance
with the requirements of the Securities Act of 1933 and in compliance with and
according to the requirements of applicable law and the Company's articles of
incorporation and bylaws.
3.19 True Representations. The information heretofore furnished by
the Seller or the Company to the Purchaser for purposes of or in connection with
this Agreement or any transaction contemplated hereby does not, and all such
information hereafter furnished by the Seller or the Company to the Purchaser
will not (in each case taken together and on the date as of which such
information is furnished), contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they are made,
not misleading.
3.20 Complete Books and Records. The Certificates and all corporate
records and documents of Company (which have been made available for inspection
by Purchaser prior to the date hereof) are true and complete in all respects.
3.21 Corporate Name. The Company (i) has the exclusive right to use
the name "Clixtix, Inc." as the name of a corporation in any jurisdiction in
which the Company does business and (ii) has not received any notice of conflict
in the past with respect to the rights of others regarding the corporate name of
the Company. To the knowledge of the Seller, no person is presently authorized
by the Seller or the Company to use the name of the Company. Seller has
previously made available to Purchaser copies of any documents in the possession
of the Seller granting any authorizations of the type referred to in the
previous sentence.
3.22 Complete Shareholder List. The list of shareholders of the
Company and their respective holdings of shares in the Company to be delivered
to the Purchaser at the Closing Date is complete, true, accurate and complete in
all respects as of the date such shareholder list was generated.
3.23 Survival. The representations and warranties in this Article 3
will be true and correct in all material respects on and as of the Closing Date
with the same force and effect as though said representations and warranties had
been made on and as of the Closing Time and will survive the Closing Date for a
period of three (3) years, provided, however, that the representations and
warranties set out at Section 3.1 and 3.2 shall not be limited by this Section
3.23 and the representation and warranty set out at Section 3.9 shall survive
for all applicable statutes of limitations.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Unless specifically stated otherwise, Purchaser represents and
warrants that the following are true and correct as of the date hereof and will
be true and correct through the Closing Date as if made on that date:
4.1 Agreement's Validity. This Agreement has been duly executed and
delivered by Purchaser and constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
4.2 Investment Intent. Purchaser is acquiring the Shares for its own
account for investment and not with a view to, or for sale or other disposition
in connection with, any distribution of all or any part thereof, except in an
offering covered by a registration statement filed with the Commission under the
Securities Act covering the Shares, or pursuant to an applicable exemption under
the Securities Act.
4.3 Restricted Securities. Purchaser understands that the Shares
have not been registered pursuant to the Securities Act or any applicable state
securities laws, that the Shares will be characterized as "restricted
securities" under federal securities laws, and that under such laws and
applicable regulations the Shares cannot be sold or otherwise disposed of
without registration under the Securities Act or an exemption therefrom. In this
connection, Purchaser represents that it is familiar with Rule 144 promulgated
under the Securities Act, as currently in effect, and understands the resale
limitations imposed thereby and by the Securities Act. Stop transfer
instructions may be issued to the transfer agent for securities of the Company
(or a notation may be made in the appropriate records of the Company) in
connection with the Shares.
4.4 Legend. It is agreed and understood by Purchaser that the
Certificates representing the Shares shall each conspicuously set forth on the
face or back thereof a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS TO THE SECURITIES UNDER SAID ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
4.5 Disclosure of Information. Purchaser acknowledges that it has
been furnished with information regarding the Company and its business, assets,
results of operations, and financial condition to allow Purchaser to make an
informed decision regarding an investment in the Shares. Purchaser represents
that it has had an opportunity to ask questions of and receive answers from the
Company regarding the Company and its business, assets, results of operation,
and financial condition.
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4.6 Affirmation of No Solicitation. Purchaser affirms that he was
not solicited by Seller to enter into this Agreement.
ARTICLE 5
INDEMNIFICATION
5.1 Seller shall be liable for and hereby agrees to indemnify and
hold harmless the Purchaser and the Company (which includes, for purposes of
this Article, Purchaser's and the Company's officers and directors, and
stockholders) against any Losses joint or several, to which Purchaser and/or the
Company may become subject under the Securities Act, the Securities Exchange
Act, any state or federal law, statutory or common law, or otherwise insofar as
such losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) that arise from, relate to or are
otherwise in respect of:
(a) the inaccuracy of any warranty or representation of
Seller or Company contained in this Agreement, or any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make
the statements therein not misleading;
(b) any breach of any covenant of the Seller contained in
this Agreement; or
(c) the Company or its assets or liabilities to the extent
that such Losses relate to events, occurrences, actions,
omissions, facts or circumstances occurring or existing
prior to the Closing Date, except for such liabilities
that are expressly retained by the Company.
This indemnification will include, without limitation whatsoever,
indemnification for all liabilities for Taxes of the Company or Taxes of the
Seller or any other corporation which is or has been affiliated with the Seller
(other than the Company) for all periods ending on or prior to the Closing Date
and all Taxes for the Company or Taxes of the Seller or any other corporation
which is or has been affiliated with the Seller (other than the Company) for all
periods ending on or prior to the Closing Date. Seller will in addition
reimburse Purchaser and the Company for any legal or any other expenses
reasonably incurred by Purchaser in connection with investigating or defending
any such loss, claim, liability, action or proceeding. The indemnity provided
for in this Section 5.1 shall remain in full force and effect regardless of any
investigations made by or on behalf of Purchaser and shall survive the Closing
for a period of two years, and with respect to any Tax, for the duration of any
applicable statute of limitations. As used in this Section 5.1, "Losses" means
any loss, claim, demand, damage, award, liabilities, suits, penalties,
forfeitures, cost or expense (including, without limitation, reasonable
attorneys', consultant and other professional fees and disbursements of every
kind, nature and description).
5.2 The Seller shall release all currently existing, new, or
hereinafter arising claims against the Company that relate to or in connection
with the execution of this Agreement and the performance of the transactions
contemplated herein.
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5.3 Purchaser shall be liable for and hereby agrees to indemnify and
hold harmless Seller against any Losses joint or several, to which Seller may
become subject under the Securities Act, the Securities Exchange Act, any state
or federal law, statutory or common law, or otherwise insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) that arise from, relate to or are otherwise in
respect of:
(a) the inaccuracy of any warranty or representation of
Purchaser contained in this Agreement;
(b) any breach of any covenant of the Purchaser contained in
this Agreement; or
(c) the Company or its assets or liabilities to the extent
that such Losses relate to events, occurrences, actions,
omissions, facts or circumstances that occur after the
Closing Date.
Purchaser will in addition reimburse Seller for any legal or any
other expenses reasonably incurred by Seller in connection with investigating or
defending any such loss, claim, liability, action or proceeding. The indemnity
provided for in this Section 5.3 shall remain in full force and effect
regardless of any investigations made by or on behalf of Seller and shall
survive the Closing for a period of two years. As used in this Section 5.3,
"Losses" means any loss, claim, demand, damage, award, liabilities, suits,
penalties, forfeitures, cost or expense (including, without limitation,
reasonable attorneys', consultant and other professional fees and disbursements
of every kind, nature and description).
5.4 All indemnification payments required to be made under this
Agreement shall be made on an after-Tax basis, meaning that any such payment
shall be increased to account for the imposition of any Tax resulting from the
receipt or accrual of such indemnity payment, such that the net amount received
by the indemnified party or parties is equal to the full amount of the payment
prior to the imposition of and adjustment for such Taxes.
ARTICLE 6
CLOSING, DELIVERY OF DOCUMENTS AND POST CLOSING COVENANTS
6.1 Closing. The Closing Date shall be held on or before September
13, 2004. The Closing Date shall occur as a single integrated transaction, as
follows.
(a) Delivery by Seller. Seller shall deliver to Purchaser:
(i) an executed copy of the release (in a form
reasonably satisfactory to the Purchaser) of all
debt obligations of the Company owed to the
Seller;
(ii) copies of board resolutions by the Board of
Directors of the Company approving the terms of
this Agreement and the execution of the Agreement
by the Company.
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(iii) copies of all books, records and documents
relating to the Company;
(iv) a letter signed by the Seller (in a form
reasonably satisfactory to the Purchaser)
confirming that the Shares are the sole management
community property of the Seller;
(v) a certified copy of the list of the Company's
shareholders and their respective holdings of
shares in the Company as of the Closing Date;
(vi) any other such instruments, documents and
certificates as are required to be delivered by
Seller or its representatives pursuant to the
provisions of this Agreement; and
(vii) the Certificates to Purchaser as directed by
Purchaser.
(b) Delivery by Purchaser:
(i) The Purchaser shall pay to the Seller the Purchase
Price of $248,245 in U.S. currency by wire
transfer to a bank account designated in writing
by the Seller or by delivery of a certified check.
(c) Post-Closing Actions:
(i) Immediately upon the Closing Date, the Board of
Directors of the Company shall resolve to appoint
Xxxx Xxxxxxx as a director of the Company with
immediate effect; and
(ii) Following the appointment of Xxxx Xxxxxxx to the
Board of Directors of the Company, the Seller
shall resign from the Board of Directors.
6.2 Related Transactions. As a condition to each party's performance
pursuant to Section 6.1, the agreements governing the Related Transactions shall
have been executed and subsequently consummated.
ARTICLE 7
AMENDMENT AND WAIVER
7.1 Waiver. Any term, provision, covenant, representation, warranty
or condition of this Agreement may be waived, but only by a written instrument
signed by the party entitled to the benefits thereof. The failure or delay of
any party at any time or times to require performance of any provision hereof or
to exercise its rights with respect to any provision hereof shall in no manner
operate as a waiver of or affect such party's right at a later time to enforce
the same. No waiver by any party of any condition, or of the breach of any term,
provision, covenant, representation or warranty contained in this Agreement, in
any one or more instances,
15
shall be deemed to be or construed as a further or continuing waiver of any such
condition or breach or waiver of any other condition of the breach of any other
term, provision, covenant, representation or warranty. No modification or
amendment of this Agreement shall be valid and binding unless it be in writing
and signed by all parties hereto.
ARTICLE 8
POST CLOSING COVENANTS
8.1 Immediately following the Closing hereunder, all of the capital
stock of Medeorex, Inc. shall be transferred and assigned to the Company (the
"Medeorex Transaction") on the terms and conditions set forth in that certain
Share Exchange Agreement in the form attached hereto as Exhibit A.
8.2 Immediately following the closing of the Medeorex Transaction,
all of the assets of the Company shall be transferred and assigned to an entity
controlled by Seller on the terms and conditions set forth in that certain Asset
Purchase Agreement in the form attached hereto as Exhibit B.
ARTICLE 9
MISCELLANEOUS
9.1 Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understanding related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statement, certificates, or other documents delivered pursuant hereto or
in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not set forth.
9.2 Notices. Any notice or communications hereunder must be in
writing and given by depositing same in the United States mail addressed to the
party to be notified, postage prepaid and registered or certified mail with
return receipt requested or by delivering same in person. Such notices shall be
deemed to have been received on the date on which it is hand delivered or on the
third business day following the date on which it is to be mailed. For purpose
of giving notice, the addresses of the parties shall be:
If to Seller:
Xxxxxxx Xxxxxxx
Xxxxx 0000-0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
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If to Purchaser to:
First Jemini Trust
c/o Trustee
00 Xxxxxxx Xxxxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
If to Company to:
Clixtix, Inc.
Xxxxx 0000-0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
9.3 Governing Law. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of New York (without regard to principles of conflicts of law).
9.4 Consent to Jurisdiction. Each party irrevocably submits to the
exclusive jurisdiction of the appropriate state or federal court in the state of
New York for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby or thereby. Each party
agrees to commence any such action, suit or proceeding in a United States
District Court for the Southern District of New York, or if such suit, action or
other proceeding may not be brought in such court for jurisdictional reasons, in
the Southern court of New York. The parties agree that any service of process to
be made hereunder may be made by certified mail, return receipt requested,
addressed to the party at the address appearing in Section 9.2, together with a
copy to be delivered to such party's attorneys via telecopier (if provided in
Section 9.2). Such service shall be deemed to be completed when mailed and sent
and received by Telecopier. Seller and Purchaser each waive any objection based
on forum non-conveniens. Nothing in this paragraph shall affect the right of
Seller or Purchaser to serve legal process in any other manner permitted by law.
9.5 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
9.6 Waivers and Amendments; Non-Contractual Remedies; Preservation
of Remedies. This Agreement may be amended, superseded, canceled, renewed, or
extended, and the terms hereof may be waived, only by a written instrument
signed by authorized representatives of the parties or, in the case of a waiver,
by an authorized representative of the party waiving compliance. No such written
instrument shall be effective unless it expressly recites that it is intended to
amend, supersede, cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege, or any single or partial exercise of any such right,
power of privilege, preclude any further exercise
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thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided are cumulative and are not exclusive of any rights or
remedies that any party may otherwise have at law or in equity. The rights and
remedies of any party based upon, arising out of or otherwise in respect of any
inaccuracy in or breach of any representation, warranty, covenant or agreement
contained in this Agreement shall in no way be limited by the fact that the act,
omission, occurrence or other state of facts upon which any claim of any such
inaccuracy or breach is based may also be the subject of any other
representation, warranty, covenant or agreement contained in this Agreement (or
in any other agreement between the parties) as to which there is no inaccuracy
or breach.
9.7 Binding Effect; No Assignment, No Third-Party Rights. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement is not
assignable without the prior written consent of each of the parties hereto or by
operation of law. This Agreement is for the sole benefit of the parties hereto
and their permitted assigns, and nothing herein, expressed or implied, shall
give or be construed to give to any person, including any union or any employee
or former employee of Seller, any legal or equitable rights, benefits or
remedies of any nature whatsoever, including any rights of employment for any
specified period, under or by reason of this Agreement.
9.8 Further Assurances. Each party shall, at the request of the
other party, at any time and from time to time following the Closing Date
promptly execute and deliver, or cause to be executed and delivered, to such
requesting party all such further instruments and take all such further action
as may be reasonably necessary or appropriate to carry out the provisions and
intents of this Agreement and of the instruments delivered pursuant to this
Agreement.
9.9 Severability of Provisions. If any provision or any portion of
any provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of the Agreement, or the application of such provision or portion of
such provision is held invalid or unenforceable to person or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and such provision or portion of any provision as shall have
been held invalid or unenforceable shall be deemed limited or modified to the
extent necessary to make it valid and enforceable, in no event shall this
Agreement be rendered void or unenforceable.
9.10 Exhibits and Schedules. All exhibits annexed hereto, and all
schedules referred to herein, are hereby incorporated in and made a part of this
Agreement as if set forth herein. Any matter disclosed on any schedule referred
to herein shall be deemed also to have been disclosed on any other applicable
schedule referred to herein.
9.11 Captions. All section titles or captions contained in this
Agreement or in any schedule or exhibit annexed hereto or referred to herein,
and the table of contents to this Agreement, are for convenience only, shall not
be deemed a part of this Agreement and shall not affect the meaning or
interpretation of this Agreement. All references herein to sections shall be
deemed references to such parts of this Agreement, unless the context shall
otherwise require
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9.12 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the Closing Date occurs, each party hereto shall pay
its own expenses incidental to the preparation of this Agreement, the carrying
out of the provisions hereof and the consummation of the transactions
contemplated. For the avoidance of doubt, any fees and expenses incurred by the
Seller or the Company in connection with entering into this Agreement and the
transactions contemplated hereby shall be paid by the Seller and not the
Company.
9.13 Public Announcements. The parties agree to consult with each
other before issuing any press release or making any public statement or
completing any public filing with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable law or any
listing agreement with any national securities exchange or quotation system,
will not issue any such press release or make any such public statement prior to
consultation.
9.14 Non-confidentiality. Notwithstanding Section 9.13, the Company,
Seller and Purchaser, and each employee, representative or other agent of the
same (collectively the "Covered Parties"), may disclose to any and all persons,
without limitation of any kind, the tax treatment and tax structure of the
transaction and all materials of any kind (including opinions or other tax
analyses) that are provided to a Covered Party relating to such tax treatment
and tax structure.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
as of the date first written herein above.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Xxxxxxx Xxxxxxx
FIRST JEMINI TRUST
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------
Xxxxx Xxxxxxxxxx
Trustee
CLIXTIX, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Xxxxxxx Xxxxxxx
President
