Exhibit 1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into as of September
8, 2000, by and among Dibo Attar, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxx and
Xxxxxxxx Xxxxx (herein collectively referred to as "Purchasers") and Greenwich
Securities, Ltd., a British Virgin Islands corporation ("Seller").
RECITALS:
WHEREAS, Seller hereby desires to sell, transfer and convey to Purchasers
and Purchasers hereby desire to purchase and accept from Seller a total of
985,800 shares of Common Stock, $ .01 Par Value, of T. H. Xxxxxx & Co.,
Incorporated, a Delaware corporation (the "Company").
NOW, THEREFORE, in consideration of the mutual promises, representations
and warranties herein contained, and on the terms and subject to the conditions
herein set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES
1.1 Sale. Subject to the condition precedent in Section 6.1(iv) below,
Seller hereby agrees to sell, assign, transfer and deliver to Purchasers, and
Purchasers hereby agree to purchase, acquire and accept from Seller for the
consideration stated in Article V hereof, the respective number of Shares set
forth opposite each Purchaser's name on Schedule I attached hereto, free and
clear of all security interests, encumbrances and adverse claims. Seller's
agreement with Purchasers to sell the Shares pursuant to the terms hereunder
shall be considered one sale.
1.2 Closing. The closing ("Closing") of the purchase and sale of the Shares
hereunder shall be held at the offices of the Company at 0000 Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx, within sixty (60) days from completion of the Xxxxxxx
Debt Conversion (the "Closing Date"). At the Closing, Seller will deliver to
Purchasers the stock certificates representing the Shares, duly endorsed by
Seller in blank for transfer, or with duly executed stock powers attached.
Against such delivery of the certificates, each Purchaser shall deliver to
Seller the consideration set forth in Article V hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Seller hereby represents and warrants to and agrees with each Purchaser as
follows:
2.1 Status of Sellers: Authority. Seller is a corporation organized under
the laws the British Virgin Islands, and has fill power and legal capacity to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Seller and constitutes a valid, binding and enforceable obligation of Seller.
2.2 Organization of the Company. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full power to own, lease and operate its properties and to
carry on its business as now being conducted. The Company is duly licensed under
all applicable laws, regulations, ordinances or orders of public authorities, or
otherwise, to carry on its business in the places and in the manner now and
heretofore conducted, the failure to obtain which would not materially adversely
affect the assets, properties, business, operations or financial condition of
the Company.
2.3 Capitalization of the Company: Ownership of Shares. As of August 31,
2000, the authorized capital stock of the Company consists of 20 million shares
of Common Stock, $.01 par value, of which 4,742,720 shares are issued and
outstanding. Other than the Common Stock, there are no outstanding shares of
securities of the Company, or any options, rights, warrants, calls or
commitments relating to the Company's authorized but unissued shares of capital
stock.
At the Closing; such Shares to be transferred hereunder shall be free and
clear of any lien; mortgage, adverse claim, charge, security interest,
encumbrance or other restriction or limitation affecting Seller's ability to
transfer the Shares to each Purchaser. By delivery of the consideration for the
Shares at the Closing, each Purchaser will acquire good and marketable title to
the Seller's Shares transferred hereunder, free and clear of any lien, mortgage,
adverse claim, charge, security interest, encumbrance or other restriction or
limitation whatsoever.
2.4 No Consent. No consent of and other party and no consent, license,
approval or authorization of, or exemption by, or registration or other
declaration with, any governmental authority, bureau or agency or any other
agreement to which Seller is a party is required in connection with the
execution, delivery, validity or enforceability of this Agreement with respect
to Seller or the consummation of the transactions contemplated hereby.
2.5 No Breach. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will:
(1) violate any provision of the Articles of Incorporation or Bylaws
of the Company;
(2) violate, conflict with or result in the breach or termination of,
or otherwise give any other contracting party the right to
terminate, or constitute a default (by way of substitution or
otherwise) under the terms of, any mortgage, lease, bond,
indenture, agreement, franchise or other instrument or obligation
to which any of the shareholders of the Company is a party or by
which any of the Company's properties or assets may be bound, the
result of which would materially adversely affect such assets,
properties, business, operations or financial condition of the
Company;
(3) result in the creation of any lien, charge or encumbrance upon
the properties or assets of the Company pursuant to the terms of
any such mortgage, bond, indenture, agreement, franchise or other
instrument or obligation which will materially and adversely
affect the assets, properties, business, operations or financial
condition of the Company;
(4) violate any judgment, order injunction, decree or award of any
court, arbitrator, administrative agency or governmental body
against, or binding upon Seller, the Company or upon the
securities, properties, assets or business of the Company; or
(5) constitute a violation by Seller or the Company of any law or
regulation of any jurisdiction as such law or regulation relates
to Seller or the Company, the result of which would adversely
affect the assets, properties, business, operations or financial
condition of the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Each Purchaser hereby represents and warrants to Seller as follows:
3.1 Investment. Each Purchaser hereby represents that he is acquiring the
Shares for investment for his own account, not as nominee or agent, and not with
a view to, or for resale in connection with, any distribution thereof. Each
Purchaser understands that the Shares to be purchased pursuant to this Agreement
have not been, and will not be, registered under the Securities Act of 1933, as
amended (the "Act"), or any state securities laws by reason of specific
exemptions from the registration provisions of the Act and any applicable state
securities laws, the validity of
which will depend upon, among other things, the bona fide nature of the
investment intent and the accuracy of each Purchaser's representations as
expressed herein. Each Purchaser acknowledges that the Shares must be held in
accordance with Rule 144 under the Act unless subsequently registered under the
Act and any applicable state securities laws or unless exemptions from such
registration are available. Each Purchaser acknowledges that the Shares are
being acquired from an "Affiliates" as that term is defined under the Act, and
such shares must comply with Rule 144 before they can be sold thereunder,
including the applicable holding period.
3.2 No Public Market. Each Purchaser understands that no public market now
exists for any of the shares, subject to Purchaser and the Company's compliance
with Rule 144.
3.3 Authorization. This Agreement has been duly executed and delivered by
each Purchaser, and each Purchaser has the right, power, authority and legal
capacity to enter into and perform this Agreement and to consummate the
transactions contemplated hereby.
3.4 No Consent. No consent of any other party and no consent, license,
approval or authorization of or exemption by, or registration or declaration
with, any governmental authority, bureau or agency or any other agreement to
which each Purchaser is a party is required in connection with the execution,
delivery, validity or enforceability of this Agreement with respect to each
Purchaser or the consummation of the transactions contemplated hereby.
3.5 Suitability. Each Purchaser has such knowledge and experience in
financial and business matters that each Purchaser is capable of evaluating the
merits and risks of the proposed investment in the Shares and each Purchaser is
able to bear the economic risk of the investment in the Shares. Each Purchaser
is an "accredited investor" as that term is defined under the Act, and has
completed the Subscription Agreement attached hereto as Exhibit "A-l" through
"A-5".
ARTICLE IV
COVENANTS OF SELLERS ANT) PURCHASERS
4.1 Best Efforts. Subject to the terms and conditions herein provided, each
of the parties hereto covenants arid agrees to use his best efforts to take, or
cause to be taken, all action or to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and effect the transactions contemplated by this Agreement.
ARTICLE V
PURCHASE PRICE
5.1 Consideration. The total consideration to be paid at Closing by
Purchasers to Seller for the Shares shall be $123,225.00, representing a price
of $.125 per Share. Such consideration shall be evidenced by cash or certified
bank funds payable in United States Dollars. The amount of consideration payable
by each Purchaser to Seller is set forth in Schedule I attached hereto.
ARTICLE VI
CONDITIONS TO CLOSING OF PURCHASER
6.1 Condition to Purchasers Obligations. The obligations of each Purchaser
to effect the transactions contemplated by this Agreement at the Closing are
subject to the satisfaction on or prior to the Closing Date of each of the
conditions set forth below (any one or more of which may, in the absolute
discretion of any Purchaser, be waived by such Purchaser):
(1) The representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects at
and as of the Closing Date as if such representations and
warranties were made at and as of the Closing Date, except for
changes contemplated by the terms of this Agreement;
(2) Seller shall have performed in all material respects all
agreements and covenants required by this Agreement to be
performed by him or her prior to or at the Closing Date;
(3) Seller shall have exhibited to each Purchaser, against receipt of
the consideration therefor, certificates representing the
Seller's Shares, duly endorsed to each Purchaser in blank or with
duly executed stock powers attached, in proper form for transfer
to such Purchaser; and
(4) Xxxxxxx Corp. must give its written approval to convert all of
its current loan to the Company in the approximate principal
amount of $330,000 to common stock in the Company.
ARTICLE VII
CONDITIONS TO CLOSING OF SELLERS
7.1 Condition to the Obligations of Seller. The obligations of Seller to
effect the transactions contemplated by this Agreement at Closing are subject to
the
satisfaction on or prior to the Closing of each of the conditions set forth
below (any one or more of which may, in the absolute discretion of the Seller,
be waived by Seller):
(1) All representations and warranties of each Purchaser contained in
this Agreement shall be true and correct in all material respects
at and as of the Closing Date as if such representations and
warranties were made at and as of the Closing Date, except for
changes contemplated by the terms of this Agreement;
(2) Each Purchaser shall have performed all agreements and covenants
recurred by this Agreement to be performed by him prior to the
Closing Date; and
(3) Each Purchaser shall have delivered to Seller a certified or bank
cashier's check in the amount set forth opposite each Purchaser's
name as set forth in Schedule I attached hereto.
ARTICLE VII
INDEMNIFICATION
8.1 Indemnification. Seller agrees to jointly and severally indemnify in
respect of, and hold each Purchaser harmless against, any and all Liabilities,
as hereinafter defined. "Liabilities", as used herein, shall include, without
limitation, any claim, action, demand, loss, cost, expense, liability, penalty
or other damage, whether joint or several, including, without limitation,
punitive damages and attorneys fees and other costs and expenses reasonably
incurred in investigating, and attempting to avoid, or in opposing the
imposition of any Liability, resulting to any Purchaser, directly or indirectly,
from any misrepresentation, breach of warranty, nonfulfillment or failure to
perform any covenant or agreement on the part of Seller under this Agreement.
Seller shall, in addition, reimburse any Purchaser on demand for any payment
made by such Purchaser at any time after the Closing based upon a final judgment
of any court of competent jurisdiction or pursuant to a bona fide compromise or
settlement of any such claim, demand or action, in respect of any Liabilities to
which the foregoing indemnity relates.
8.2 Method of Asserting Claims. Promptly after receipt by any Purchaser of
notice of the commencement of any action or proceeding for which it is entitled
to be indemnified pursuant to Section 81, such Purchaser shall notify Seller in
writing of the commencement thereof; provided, however, that the omission to so
notify Seller shall not relieve them from any Liability which they may have to
such Purchaser otherwise than under this Section. If any such action or
proceeding shall be brought against such Purchaser, and it shall notify Seller
of the commencement thereof, Seller shall be
entitled to participate in, and, to the extent that they shall wish, to assume
the defense thereof, with counsel satisfactory to such Purchaser, and after
notice from Seller to such Purchaser of their election to assume the defense
thereof; Seller shall not be liable to such Purchaser under this Section 8.2 for
any legal or other expenses subsequently incurred by such Purchaser in
connection with the defense thereof other than reasonable costs of
investigation.
ARTICLE IX
MISCELLANEOUS
9.1 Survival of Representations. The representations and warranties of each
of the parties hereto under this Agreement shall survive the Closing and any
investigation of any of the parties with respect thereto.
9.2 No Brokers. Each party to this Agreement agrees that no third person
has in any way brought the parties together or been instrumental in the making
of this Agreement. Each such party agrees to indemnify the other party hereto
against any claim of any third person for any commission, brokerage or finder's
fee or other similar payment with respect to this Agreement or the transactions
contemplated hereby based on any alleged agreement or understanding between such
party and such third person, whether express or implied from the actions of such
party.
9.3 Costs and Expenses. Each of the pates to this Agreement shall bear his
own costs and expenses incurred in connection with the negotiation, preparation,
execution and closing of this Agreement and the transactions contemplated
hereby.
9.4 Notices. All notices or other communications required or permitted by
this Agreement shall be sufficiently given if in writing and personally
delivered or mailed by registered or certified mail, return receipt requested,
to Seller or to Purchasers at the address set forth under such person's name on
the signature page hereto or to such other address as hereafter shall be
furnished as provided in this Section 9.4 by any of the parties hereto to the
other parties hereto.
9.5 Assignment and Amendment. 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 assigns. This Agreement shall not be assignable
by Seller or any Purchaser except that it may be assigned by operation of law or
by will of Seller, and shall not be amended or modified, except pursuant to a
writing executed by all the parties hereto.
9.6 Severability. If any provision of this Agreement, or the application of
any such provision to any person or circumstance, shall be held invalid by a
court of competent jurisdiction, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
9.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.8 Entire Agreement. This Agreement, together with the Schedules and
Exhibits hereto, constitutes the entire understanding and agreement among the
parties as to matters covered herein and supersedes and replaces any prior
understanding, agreement or statement, written or oral, and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, covenants or agreements, except as specifically set forth
herein. No provision of this Agreement shall be construed to confer any rights
or remedies on any other person other than Seller or Purchasers.
9.9 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
9.10 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH,
AND GOVERNED BY, THE LAWS OF THE STATE OE TEXAS.
(the remainder of this page is intentionally left blank)
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date and year first above written.
PURCHASERS:
/s/ Dibo Attar /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------
Dibo Attar Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx /s/ Xxxx Xxxxx
----------------------------- ---------------------------------
Xxxxxxx Xxxxxx Xxxx Xxxxx
/s/Xxxxxxxx Xxxxx
-------------------------
Xxxxxxxx Xxxxx
SELLER:
Greenwich Securities, Ltd.,
a British Virgin Islands corporation
By:/s/Dibo Attar
---------------------
Name: Dibo Attar
Title: Power of Attorney
SCHEDULE I
SHARES TO BE PURCHASED AND CONSIDERATION PAID
Purchasers Shares Consideration
---------- ------ -------------
Dibo Attar 200,000 $ 25,000.00
Xxxxxxx Xxxxxx 125,000 $ 15,625.00
Xxxxxxx Xxxxxx 480,000 $ 60,000.00
Xxxx Xxxxx 90,400 $ 11,300.00
Xxxxxxxx Xxxxx 90,400 $ 11,300.00
------- -----------
Totals 985,800 $123,225.00
