STOCK PURCHASE AGREEMENT
For the Sale of the Capital Stock of
Downtown Theatre Ticket Agency, Inc.,
a subsidiary of
U. S. Transportation Systems, Inc.,
and related Entertainment
Subsidiaries and Divisions
Dated as of December 31, 1996
A G R E E M E N T
STOCK PURCHASE AGREEMENT, dated as of December 31, 1996, by and between
U. S. TRANSPORTATION SYSTEMS, INC., a Nevada corporation ("USTS") and PACKAGING
PLUS SERVICES, INC. a Nevada corporation ("PKGP").
W I T N E S S E T H:
WHEREAS, PKGP desires to purchase all of the issued and outstanding
shares of capital stock of Downtown Theatre Ticket Agency, Inc. (D/B/A "Advance
Entertainment"), and its related entertainment subsidiaries and divisions
("Entertainment"), as set forth in Schedule A hereto; and
WHEREAS, USTS is the sole shareholder of Entertainment and is willing
to sell all of the issued and outstanding shares of capital stock of
Entertainment to PKGP;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. SALE AND PURCHASE OF CAPITAL STOCK OF ENTERTAINMENT.
1.1 Sale of Stock and Delivery. USTS hereby agrees to sell,
transfer and deliver to PKGP, free of all debt, liens and
encumbrances, and PKGP agrees to purchase from USTS, on the
date fixed in accordance with Section 3 for the closing
hereunder (the "Closing Date"), all of the outstanding
shares of the capital stock of Entertainment. Certificates
for the Entertainment capital stock, endorsed in blank,
shall be delivered by USTS to PKGP at the Closing.
1.2 Purchase Price. The purchase price to be paid by PKGP to
USTS for Entertainment shall be by delivery at the Closing
of a stock certificate of PKGP for 850,000 of its common
shares, "restricted", for a two year period (the "Shares").
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1.3 Repurchase of Shares of PKGP. PKGP will have a right to
repurchase the Shares as follows:
a) PKGP has a right to repurchase all or any part of the
850,000 Shares for $1.15 per share, during the first 6
months from the Closing. If PKGP does not repurchase
all of such shares during the 6-month period, PKGP
shall deliver an additional 50,000 shares to USTS, and
the repurchase period shall be extended for the 7th
through 12th month;
b) PKGP has a right to repurchase all or any part of the
900,000 Shares or the remaining Shares not repurchased,
at $1.20 per share, during the 7th through 12th month.
If PKGP does not repurchase all of such shares during
such period, PKGP shall deliver an additional 50,000
shares to USTS, and the repurchase period shall be
extended for the 13th through 18th month;
c) PKGP has a right to repurchase all or any part of the
950,000 Shares or the remaining Shares not repurchased,
at $1.25 per share, during the 13th through 18th month.
If PKGP does not repurchase all of the shares during
such period, PKGP shall deliver an additional 50,000
shares to USTS, and the repurchase period shall be
extended for the 19th through the 24th month; and
d) PKGP has a right to repurchase all or any part of the
1,000,000 Shares at $1.30 per share during the 19th
through 24th month.
e) The right to repurchase Shares shall terminate at the
end of the 24th month.
1.4 Registration of Shares of PKGP. PKGP will agree to include
or "piggyback" any Shares of PKGP owned by USTS on its next
registration statement.
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1.5 Loan to PKGP. At the Closing, USTS will loan PKGP $100,000,
to be repaid with interest at 10% per annum, in eighteen
(18) monthly installments from the date of Closing, the
first six (6) monthly installments of which shall be
interest only, and the last twelve (12) monthly installments
shall consist of equal payments of principal and interest.
The loan will be secured by 300,000 "restricted" common
shares of PKGP, placed in an appropriate escrow account with
Xxxxxx & XxXxxx, XX. Failure to make any payment when due
after a 10 business day grace period shall require the
release of the Shares to USTS, but shall in no way effect
PKGP's obligation to repay the loan.
1.6 Adjustment of Purchase Price. PKGP and USTS will agree that
the purchase price for Entertainment will be adjusted after
the first year from the Closing if gross revenue generated
by Entertainment falls below 10% from gross revenues
estimated for the 1997 of $2,300,000. Accordingly, for every
$100,000 less than $2,070,000 in revenues, USTS will return
42,500 shares to PKGP.
2. OTHER DELIVERIES AND ASSURANCES.
2.1 Other Deliveries. At the Closing, in addition to the
delivery of the stock certificates for Entertainment, in
accordance with Section 1.1 hereof, USTS shall deliver to
PKGP the following:
2.1.1 Corporate Books. The minute books, certificates of
incorporation, by-laws, stock transfer books and
corporate seals of Entertainment and any of its
subsidiaries.
2.1.2 Resignations. The resignations of all of the present
officers and directors of Entertainment and any of its
subsidiaries, to be effective upon completion of the
Closing.
2.2 Assurances. Each party hereto shall take such other action
from time to time as the other party may reasonably request
in order to more effectively carry out the sale and the
deliveries provided for in this Agreement.
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3. CLOSING.
Subject to the terms and conditions of this Agreement, the closing of
the transactions provided for herein (the "Closing") shall take place at the
offices of USTS, 00 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx on January 8, 1997, at
10:30 a.m.; or at such prior date and time as may be mutually agreed upon by
USTS and PKGP.
4. USTS'S REPRESENTATIONS AND WARRANTIES.
USTS hereby represents and warrants to PKGP as follows:
4.1 Organization and Good Standing. USTS, and Entertainment and
its subsidiaries, are corporations duly organized, validly
existing and in good standing under the laws of the states
of their incorporation. USTS and Entertainment have
authority to own, operate and lease their properties and to
carry on their businesses as now being conducted. Copies of
the charter and By-Laws, and all amendments thereto, of
Entertainment and its subsidiaries have been delivered to
PKGP and are complete and correct as of the date hereof.
Entertainment is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction
where the character of its properties owned or leased or the
nature of its activities makes such qualification necessary,
except where the failure so to qualify or to be in good
standing would not have a materially adverse effect on the
business, operations, assets or financial condition of
Entertainment.
4.2 Capitalization. Entertainment has the authorized, issued and
outstanding capital stock set forth in Schedule A. All of
such issued and outstanding shares are validly issued, fully
paid and nonassessable. Entertainment does not have
authorized, issued or outstanding any other shares of
capital stock or any subscription or other rights to the
issuance or receipt of shares of its stock.
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4.3 Authorization. USTS has all requisite corporate power and
authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this
Agreement by USTS and the consummation by USTS of the
transactions contemplated hereby have been duly authorized
by USTS's Board of Directors and no other corporate action
or proceeding on the part of USTS is necessary for the
execution or delivery of this Agreement by USTS or for the
consummation by USTS of the transactions contemplated
hereby. This Agreement has been duly executed and delivered
by USTS and (assuming this Agreement has been duly executed
and delivered by PKGP) is a legally valid and binding
obligation of USTS, enforceable against USTS in accordance
with its terms.
4.4 Non Conflict; No Consents or Approvals Required. Neither the
execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby by USTS
will, with or without notice or passage of time, or both,
(i) violate any provision of the Certificate or
Incorporation or By-Laws or USTS or the charter documents or
by-laws of Entertainment, (ii) violate any law, rule,
regulation, ordinance, order, writ, injunction, judgment or
decree applicable to USTS or Entertainment or by which
Entertainment's properties or assets are bound or affected,
or (iii) conflict with or result in any breach of or
constitute a default under the terms, conditions or
provisions of any note, bond, mortgage, indenture, permit,
license, franchise agreement, lease or other contract,
instrument or obligation to which USTS or Entertainment is a
party or by which USTS or Entertainment or any of their
respective properties or assets is bound or affected,
except, in the case of clauses (ii) and (iii) above, for any
such violation , conflict, breach or default which
individually or in the aggregate will not have a material
adverse effect on the business, operations, assets or
financial condition of Entertainment.
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4.5 Litigation. To the best knowledge of USTS, there is no
action, proceeding or investigation pending or threatened
against or involving Entertainment, which, if determined
adversely, would materially and adversely affect the
financial condition, business or operations of
Entertainment, nor is there any judgment, decree,
injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or
arbitrator outstanding against Entertainment having, or
which, insofar as can be foreseen, in the future would be
likely to have, any such effect.
4.6 Contracts. To the best knowledge of USTS, Entertainment is
not in material default under any contract made or
obligation owed by Entertainment, which contract or
obligation, individually or in the aggregate, is material to
Entertainment.
4.7 Trademarks and Trade Names. Set forth in Schedule B hereto
is a list of the trademarks and trade names owned by
Entertainment. Entertainment owns, or is licensed or
otherwise has the full right to use, all trademarks, trade
names, copyrights, technology, know-how and processes
currently used and conducted which are material to the
financial condition, results of operations or business of
Entertainment. To the best knowledge of USTS, no claim has
been asserted by any person with respect to the use of any
such trademark, trade name, copyright, technology, know-how
or process or challenging or questioning the validity or
effectiveness of any such license.
4.8 Tax Matters. Entertainment has filed, or on behalf of
Entertainment there has been filed, all United States
federal income tax returns, declarations and information
returns, state and local income and franchise tax returns,
declarations and information returns which are required to
be filed including, but not limited to, Federal, New York
State and Illinois Unemployment Taxes and New York City
Occupancy Tax. All taxes as shown on said returns and all
assessments received have been paid to the extent that such
taxes have become due. All income and franchise tax returns
filed on behalf of Entertainment by USTS, with respect to
periods ending on or prior to the Closing Date, shall be
filed based on normal and consistent tax accounting
practices and in accordance with applicable law.
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4.9 Lists of Certain Items. The following lists, setting forth
summary descriptions, as of the date hereof, shall be true
as of the Closing Date.
(i) Insurance Policies. Schedule C. USTS shall deliver
simultaneously with the execution of this Agreement
a summary description of all present policies of
insurance with respect to Entertainment and covering
its properties, buildings, equipment, furniture,
fixtures or operations, all of which are presently
in force;
(ii) Real Property. Schedule D. All real property owned
of record or beneficially or leased by
Entertainment;
(iii) Automobiles and Trucks. Schedule E. All automobiles
and trucks owned or leased by Entertainment;
(iv) Leases. Schedule F. Each presently existing lease of
personal property to which Entertainment is a party;
(v) Sales Contracts and Customer Purchase Orders.
Schedule G. Schedule G lists each sales contract and
customer purchase order for the delivery of products
or performance of services by Entertainment, which
would result in the right to receive revenues of at
least $1,000 and a list of specific contracts or
commitments each involving purchases of inventories
or supplies in excess of $1,000;
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(vi) Banks. Schedule H. The name of each bank in which
Entertainment has an account or safe deposit box,
and the names of all persons authorized to draw
thereon or have access thereto;
(vii) Loan and Credit Agreement, etc. Schedule I. All
mortgages, pledges, deeds of trust, loan or credit
agreements, notes and similar instruments to which
Entertainment is a party, and all amendments or
modifications of any thereof.
(viii) Apportionment of Expenses. All rents, bond payments,
payroll and other expenses relating to Entertainment
will be prorated between USTS and PKGP as of the
date of the Closing.
4.10 Brokers. USTS represents that it has not incurred any
obligation to pay a finder's fee or similar acquisition
services compensation in connection with the proposed
acquisition, or if it has or does, it will pay such
obligation.
4.11 Financial Matters. USTS represents that Entertainment will
be debt free at the Closing; USTS will retain accounts
payable and accounts receivable of Entertainment in effect
as of the Closing, but will deliver to PKGP all of the
inventory associated with Entertainment.
4.12 Transfer of Shares. USTS will transfer title to the capital
stock of Entertainment to PKGP on the Closing Date, free and
clear of all debt, liens, pledges, encumbrances, voting
trusts and voting agreements. There is no existing option,
warrant or other agreement (other than this Agreement) to
which USTS or Entertainment is a party requiring, and there
are no convertible or exchangeable securities of USTS or
Entertainment, which upon conversion or exchange would
require, the issuance or sale of any shares of the capital
stock of Entertainment.
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5. PKGP's REPRESENTATIONS AND WARRANTIES.
PKGP hereby represents and warrants to USTS as follows:
5.1 Membership on PKGP's Board of Directors. USTS will receive
one board seat on PKGP's Board of Directors as long as USTS
holds at least 200,000 of the Shares. As long as USTS has
one board seat, the Board shall not exceed five members.
5.2 Consent of Designated Director. As long as USTS holds at
least 200,000 of the Shares, PKGP will not take any action
without the consent of USTS' designated director, which
would affect USTS' Shares and not similarly and
proportionally affect the shares held by PKGP's President,
Xxxxxxx X. Xxxxxxxx, or his assigns or any related party.
5.3 Organization and Good Standing. PKGP is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Nevada, with full corporate power and
authority to carry on its business as it is now being
conducted and as proposed to be conducted. Copies of PKGP'S
Certificate of Incorporation, By-Laws, and all amendments
thereto, in effect prior to the date hereof, have been
delivered to USTS and are complete and correct as of the
date hereof.
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5.4 Authorization. PKGP has all requisite corporate power and
authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this
Agreement by PKGP and the consummation by PKGP of the
transactions contemplated hereby have been duly authorized
by PKGP's Board of Directors and no other corporate action
or proceeding on the part of PKGP is necessary for the
execution or delivery of this Agreement by PKGP or for the
consummation by PKGP of the transactions contemplated
hereby. This Agreement has been duly executed and delivered
by PKGP and (assuming this Agreement has been duly executed
and delivered by USTS) is a legally valid and binding
obligation of PKGP enforceable against PKGP in accordance
with its terms.
5.5 Brokers. PKGP represents that it has not incurred any
obligation to pay a finder's fee or similar acquisition
services compensation in connection with the proposed
acquisition, or if it has or does, it will pay such
obligation.
6. TAX LIABILITIES.
6.1 USTS agrees that it shall be responsible for and shall pay
(a) the federal income tax liabilities of Entertainment for
all taxable periods ending with and prior to the Closing
Date and (b) the state and local income and franchise tax
liabilities of Entertainment for all taxable periods ending
with and prior to the Closing Date.
6.2 USTS's liability for federal, state and local income and
franchise taxes for Entertainment for periods prior to the
Closing Date shall survive the Closing for a period
coterminous with the applicable statute of limitations.
7. LITIGATION, CLAIMS AND LIABILITIES.
7.1 Liability Claims. USTS has no knowledge of any material
liability claim against Entertainment.
7.2 USTS's Obligations. USTS hereby agrees to indemnify, hold
harmless and defend PKGP and its shareholders, directors,
officers and employees from all such obligations and
liabilities incurred by Entertainment or arising from
Entertainment business prior to the Closing, including the
payment of all expenses and attorneys' fees arising
therefrom.
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8. SURVIVAL OF REPRESENTATIONS AND COVENANTS.
The representations, warranties and covenants of USTS and PKGP in this
Agreement shall survive the Closing for a period of four years, except that
subsections 1.4, 5.1 and 5.2 shall survive the Closing without limitation.
9. BEST EFFORTS TO OBTAIN SATISFACTION OF CONDITIONS AND TRANSITION.
USTS agrees to use its best efforts to perform and fulfill all
conditions required to be performed by it under this Agreement, and PKGP agrees
to use its best efforts to perform and fulfill all conditions required to be
performed by it under this Agreement. Based upon the information presently
available to PKGP and its impressions gained in discussions with USTS, it is the
intention of PKGP to retain most of the present management personnel and other
employees of Entertainment and USTS shall use its best efforts to assure
management and employee continuity and a smooth transition of the businesses of
Entertainment to PKGP, with the exception of any persons who may be named in a
separate statement between the parties hereto.
10. PUBLIC ANNOUNCEMENTS.
Prior to the Closing and for one week thereafter, neither USTS nor PKGP
shall make any public announcement regarding any aspects of this Agreement, or
any of the transactions contemplated hereby, without first advising and
obtaining the consent of the other party.
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11. WAIVER.
The parties may mutually agree to waive any and all of the conditions
or requirements herein contained or defer them until after the Closing.
12. AMENDMENTS.
PKGP and USTS, by mutual consent of their respective duly authorized
officers, may amend or modify this Agreement, in such manner as may be agreed
upon, by a written instrument, executed by both PKGP and USTS.
13. SECTION AND PARAGRAPH HEADINGS.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14. NOTICES.
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered or mailed
first claims postage prepaid:
(a) To USTS. If to USTS, to Xxxxxxx Xxxxxxxxx, Chairman, U.S.
Transportation Systems, Inc., 00 Xxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxx Xxxx 00000.
(b) To PKGP. If to PKGP, to Xxxxxxx X. Xxxxxxxx, President and
CEO, Packaging Plus Services, Inc., 00 Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxxxx, Xxx Xxxx 00000.
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15. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
16. ENTIRE AGREMENT.
This Agreement contains the entire agreement between the parties hereto
with respect to the transactions contemplated herein.
17. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the principles of conflicts
of laws thereunder.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Agreement as of the date first above written.
December 31, 1996
PACKAGING PLUS SERVICES, INC.
By /s/ Xxxxxxx X Xxxxxxxx
----------------------------------------
Xxxxxxx X Xxxxxxxx,
President and CEO
U.S. TRANSPORTATIONS SYSTEM, INC.
By /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxx
Chairman
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