PURCHASE AND SALES AGREEMENT
This Purchase and Sale Agreement (the "Agreement") dated as of October 16,
2001, by and between Xxxxxxx X. Xxxxx ("Xxxxx") with an address of PMB 100, X.X.
Xxx 0000, Xxxxxx Xxxxx Xx, XX 00000 and Xxxxxxxxxxx X. Xxxx (the "Buyer"), with
an address c/o 000 X.X. 000xx Xxxxxx, Xxxxx Xxxxxx, XX 00000. Xxxxx and Buyer
are referred to herein collectively as the "Parties".
RECITALS
WHEREAS, Xxxxx is the beneficial owner of 3,076,700 issued and outstanding
shares of common stock of Call Now, Inc., a Nevada corporation (the "Shares")
(OTBCC: CNOW) valued at 75% of the average of the bid and asked price of the
Shares for the 60 trading days prior to the date hereof; and
WHEREAS, Buyer wishes to buy, and Xxxxx wishes to sell, subject to the
provisions of this Agreement, all right, title and interest to the Shares,; and
WHEREAS, Buyer is the beneficial owner of Retama Development Corp. Special
Facilities Revenue Bonds for the Retama Park racetracks, Series 1997A, in the
principal amount of $4,200,000 (collectively the "Bonds"); and
WHEREAS, Xxxxx wishes to buy and Buyer wishes to sell, subject to the
provisions of this Agreement, all right, title and interest to the Bonds;
NOW, THEREFORE, in consideration of the premises and the terms and
conditions herein contained, the Parties mutually agree as follows:
1. Purchase and sale of the Shares. Buyers agrees to purchase from
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Xxxxx and Xxxxx agrees to sell, transfer, assign, convey and deliver to Buyer at
the Closing, the Shares free and clear of all liens, clams or encumbrances.
2. Purchase and sale of Bonds. Buyers agrees to purchase from Xxxxx
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and Xxxxx agrees to sell, transfer, assign, convey and deliver to Buyer at the
Closing, the Shares free and clear of all liens, clams or encumbrances.
3. Closing. Closing of the purchase and sale of the Shares and the
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Bonds shall take place on November 15, 2001 at the offices of Xxxx Xxxxxxxxx,
Esq., P.A., 00000 Xxxxxxxx Xxxx., xxxxx 000, Xxxxx, XX 00000, counsel of Xxxxx.
The date on which the Closing occurs is herein referred to as the "Closing Date"
and the "closing". The Closing shall continue until the Shares and the Bonds
have been transferred as set forth in Sections 4 and 5 below. Any securities
received by a party prior to delivery of the securities sold to the other party
shall be held in trust for the benefit of the selling party until the selling
party has received the securities purchased herein. If either party has
received delivery of the securities to be purchased herein without
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delivering to the other party the securities to be delivered as set forth herein
(a "Non Compliant Party"), the Non-compliant Party shall immediately cause the
securities received from the other party to be returned to the other party.
4. Obligations of Xxxxx at the Closing. Xxxxx shall deliver, or cause
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to be delivered the Shares to Buyer at the Closing by delivery of certificates
for the Shares duly endorsed for transfer, free and clear of liens and
encumbrances.
5. Obligations of Buyer at the Closing. Buyer shall deliver, or cause to
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be delivered, the Bonds to Xxxxx at the Closing by electronic transfer to
Xxxxx'x brokerage account, free and clear of all liens and encumbrances and
shall deliver the sum of $294,000 by bank check or wire transfer to Xxxxx at the
closing which represents interest accrued on the Bonds from September 1, 2000
through September 1, 2001. Buyer shall also be entitled to receive all interest
accrued on the bonds since the last payment date. Buyer shall also deliver to
Xxxxx at the Closing an irrevocable assignment of the right to receive payment
of one-half (1/2) of the proceeds payable to Retama Development Corp. under that
certain Funding Agreement dated March 1, 1997.
6. Representations, Covenants and Warranties of Xxxxx. Except as set
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forth herein, Xxxxx hereby represents, warrants and covenants to Buyer as
follows:
(a) Xxxxx has the authority to execute and deliver this
Agreement and the consummate the transactions contemplated hereby. This
Agreement constitutes the valid and binding agreement of Xxxxx, enforceable
against him in accordance with its terms.
(b) Xxxxx knows of no requirement to make any filing with, or
to obtain any permit, authorization, consent or approval of , any governmental
or regulatory authority as a condition to the lawful consummation by him for the
transactions contemplated by the Agreement.
(c) There are no actions (including litigation), proceedings or
investigations pending, or to Xxxxx'x knowledge, threatened, or any verdicts or
judgments entered against Xxxxx by any court or any administrative agency that
might have material adverse effect on this transaction, financial or otherwise.
(d) the Shares will not be withdrawn, sold, pledged,
hypothecated, or otherwise transferred prior to transfer of the Shares to Buyer.
(e) Xxxxx will not place a stop transfer order with the
registrar and stock transfer agent of the Shares covering any of certificates or
electronic transfer orders representing the securities comprising the Shares
after the execution of this Agreement.
(f) That the Shares are duly and validly issued, fully paid and
non-assessable. The Shares are not subject to any voting trusts, voting
agreements, proxies, liens or encumbrances and all necessary action required to
be taken by Xxxxx prior to the Closing will have been taken.
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(g) Xxxxx understands and acknowledges that the Bonds have not
been registered under the Securities Act of 1933 (the "Securities Act").
(h) Xxxxx has conducted his own due diligence investigation of
the issuer of the Bonds ("RDC") and is fully capable of bearing the economic
risks of this investment. In making his investment in the Xxxxx, Xxxxx has not
received an representations or warranties from buyer regarding the business,
financial conditions or any other matter related to RDC and is relying solely on
his own investigation.
7. Representations, Covenants and Warranties of Buyer. Except as set
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forth herein, Buyer hereby represents, warrants and covenants to Xxxxx as
follows:
(a) Buyer has the authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement constitutes the valid and binding agreement of Buyer, enforceable
against him in accordance with its terms.
(b) Buyer knows of no requirement to make any filing with, or
to obtain any permit, authorization, consent or approval of, any governmental or
regulatory authority as a condition to the lawful consummation by him of the
transactions contemplated by this Agreement.
(c) There are no actions (including litigation), proceedings or
investigations pending, or to Buyer's knowledge, threatened, or any verdicts or
judgments entered against Buyer or any court or any administrative agency that
might have a material adverse effect on this transaction, financial or
otherwise.
(d) the Shares will not be withdrawn, sold, pledged,
hypothecated, or otherwise transferred prior to transfer of the Shares to Buyer.
(e) Xxxxx will not place a stop transfer order with the
registrar and stock transfer agent of the Shares covering any of certificates or
electronic transfer orders representing the securities comprising the Shares
after the execution of this Agreement.
(f) That the Shares are duly and validly issued, fully paid and
non-assessable. The Shares are not subject to any voting trusts, voting
agreements, proxies, liens or encumbrances and all necessary action required to
be taken by Xxxxx prior to the Closing will have been taken.
(g) Xxxxx understands and acknowledges that the Bonds have not
been registered under the Securities Act of 1933 (the "Securities Act") and will
contain a legend restricting transfer without compliance with the requirements
for registration or exemption from the registration requirements of the
Securities Act, and that:
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(i) Buyer agrees not to dispose of the Shares or any portion
thereof in violation of the Securities Act or any applicable state securities
laws, or the rules and regulations thereunder.
(ii) Buyer has conducted his own due diligence investigation
of the issuer of the Shares ("CNI") and is fully capable of bearing the economic
risks of his investment. In making his investment in the Shares, Buyer has not
received any representations or warranties from Xxxxx regarding the business,
financial condition or any other matter related to CNI, except as set forth
herein, and is relying solely on his own investigation.
(h) Buyer acknowledges that his purchase of the Shares makes him a
control person of Call Now, Inc. and he will comply with all the laws, rules and
regulations relating to his control of Call Now, Inc. and file all applicable
forms and reports with the Securities and Exchange Commission concerning this
transaction.
8. ADDITIONAL AGREEMENTS.
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(a) Xxxxx owns Stock Options issued by Call Now, Inc., a copy of
which is annexed hereto and which represent and CNI stock options issued to
Xxxxx.
At the Closing, Xxxxx will assign and deliver the foregoing Stock
Options to Buyer along with an irrevocable Power of Attorney authorizing Buyer
to exercise such Stock Options and receive the shares purchased. The Parties
acknowledge that $100 of the Purchase Price to Xxxxx set forth above is
allocated to such options.
(b) Buyer has requested Xxxxx enter into a consulting agreement
with CNI to assure his continued service to CNI for the three years following
the Closing (the "Consulting Term") in the form annexed hereto as Exhibit A to
be effective as of the Closing.
(c) Xxxxx hereby makes the following representations and
warranties to Buyer concerning CNI:
(i) Since March 31, 2001, CNI has conducted its business only
in the ordinary course and in a manner consistent with past practice and has not
suffered any material adverse change in its condition, results of operation,
properties or business. This does not imply that the net losses of CNI have not
continued.
(ii) There is no action, suit, proceeding of investigation,
pending or, to the best knowledge of Xxxxx threatened, against or involving CNI
or its assets and Xxxxx knows of no basis for the commencement of any action,
proceeding or investigation against CNI.
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(iii) From March 31, 2001 through the Closing CNI has not
made or authorized any single capital expenditures which is in excess of $5,000.
(iv) Between the date hereof and the Closing, CNI will not
enter into any transaction increasing the number of shares of its capital stock
outstanding or agree to any transaction which may result in such increase in
outstanding shares of capital stock, including issuance of additional options,
warrants or convertible securities.
(d) Within twenty (20) days of the date hereof, Buyer and CNI
shall execute and deliver (and Buyer shall cause Global Trust to execute and
deliver) documents (including the documents which are annexed hereto as Exhibit
B) and take such other actions as may be required to convert $5,000,000 of
Retama Development Corp. Special Facilities Revenue Bonds, Series B to Series A
Bonds and the taking of such actions by CNI, Buyer and Global Trust shall be a
condition to Closing herein.
9. MISCELLANEOUS.
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(a) The Parties shall, at any time after the Closing upon the
request of one of the Parties, execute and deliver to the requesting party such
documents or instruments of conveyance or assignment or take such other action
an is reasonably necessary to complete the transfer of the securities and other
transactions contemplated by this Agreement.
(b) Each of the Parties hereto Buyer bear the costs of their
respective counsel and all other legal fees and costs related thereto. The
Parties hold the each other harmless from any obligation for the payment of any
finders fees or commissions in connection with the transactions contemplated by
this Agreement.
(c) If any provision of this Agreement shall be held to be invalid
or void, the remaining provisions shall nevertheless remain in effect. No
provision of this Agreement may be modified and the performance or observance
thereof may not be waived except by written agreement of the Parties affected
hereby. No waiver of any violation or nonperformance of any provision of this
Agreement shall be deemed to waiver of any subsequent violation or
nonperformance of the same or any other prevision of this Agreement.
(d) This Agreement, the performance of the Parties hereunder and
any disputes related hereto shall be governed by the laws of the State of
Florida. If any of the Parties shall initiate a legal proceeding to enforce its
rights hereunder, the prevailing party in such legal proceedings shall be
entitled to recover from the other party all costs, expenses and reasonable
attorneys' fees incurred in connection with such proceedings.
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(e) This Agreement is, and sets forth, the entire agreement
between the Parties hereto with respect to the subject matter hereof and
supersedes any prior or contemporaneous discussion, agreements, representation
and warranties related thereto.
(f) From the date hereof until the Closing, Seller will cooperate
with Buyer's due diligence investigation of CNI. If Buyer is not satisfied with
Seller's cooperation or the results of its due diligence investigation for any
reason. Buyer's sole and exclusive remedy shall be to cancel this Agreement as
provided below. Buyer may terminate this Agreement without penalty by giving
notice of such termination to Xxxxx on or before November 9, 2001 in the manner
set forth herein.
(g) All notices, requests, demands, or other communications
hereunder shall be in writing and shall be deemed to have been duly given when
sent by registered mail, return receipt requested:
(i) If to Xxxxx addressed to him at:
PMB 100
X.X. Xxx 0000
Xxxxx Xxxxx Xx, XX 00000
With a copy to his counsel:
Xxxx Xxxxxxxxx, Esq., P.A.
00000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxx, XX 00000
(ii) If to Buyer addressed to him at:
000 X.X. 000xx Xxxxxx
Xxxxx Xxxxxx, XX 00000
With a copy to his counsel:
Xxxx Xxxxxxx, Esq., P.A.
000 X.X. Xxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
(h) The Parties shall consult with each other with respect to any
public announcement of the transactions provided for herein.
(i) This Agreement shall inure to the benefit of and be binding
upon the Parties and their respective successors and assigns.
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(k) This Agreement may be executed in two or more counterparts and
by facsimile, all of which shall be deemed originals and enforceable and
together shall constitute a single agreement.
AGREED TO AND ACCEPTED as of the date first above written.
/s/ XXXXXXX X. XXXXX
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XXXXXXX X. XXXXX
/s/ XXXXXXXXXXX X. XXXX
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XXXXXXXXXXX X. XXXX
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