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Exhibit 10.19
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of the 13th
day of April 2000 by and between Venture Catalyst Incorporated, a Utah
corporation ("Purchaser"), and Xxxxxxxx X. Onubah ("Seller").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
A. Subject to the terms and conditions of this Agreement, Purchaser
agrees to purchase and Seller agrees to sell to Purchaser 100,000 shares (the
"Shares") of Common Stock, $0.001 par value per share (the "Common Stock"), of
XxxxxXxxxx.xxx, Inc., a Utah corporation (the "Company"). Concurrently with the
execution of this Agreement, Seller is delivering to Purchaser the stock
certificate representing the Shares, duly endorsed in blank or accompanied by
proper instruments of transfer duly signed by Seller in blank against payment of
the purchase price set forth in this Section 1 (the "Closing").
B. Purchase Price. Upon the terms and subject to the conditions set
forth in this Agreement, in reliance upon the representations, warranties,
covenants and agreements of Seller contained herein, and in exchange for the
Shares, Purchaser agrees to issue to Seller shares of Purchaser's Common Stock,
$0.001 par value per share (the "Purchaser Common Stock"). The number of shares
of Purchaser Common Stock to be issued by Purchaser hereunder shall be
determined by the formula set forth on Exhibit A (the "Purchase Price").
2. Representations and Warranties of Seller.
Seller hereby represents and warrants to Purchaser as follows:
(a) Seller is the beneficial and record owner of the Shares and has
valid and marketable title to the Shares, free and clear of any lien,
pledge and encumbrance or any claim of any third party.
(b) Seller has the necessary corporate power and authority to enter
into this Agreement, and this Agreement constitutes a valid and legally
binding obligation of the Seller, enforceable in accordance with its
terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, and (ii) as
limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
(c) No options, warrants or other rights to purchase any of the
Shares have been granted by Seller.
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(d) Neither Seller nor the Company has entered into any contract,
arrangement or understanding with any person or firm which may result in
the obligation of Purchaser to pay any finder's fees, brokerage or
agent's commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby, and Seller is not aware of any claim
or basis for any claim for payment of any finder's fees, brokerage or
agent's commissions or other like payments in connection with
negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby. Seller shall indemnify Purchaser for
any claims arising out of any breach of the foregoing representation.
(e) Seller represents that he understands that (i) the Purchaser
Common Stock being acquired by Seller pursuant to this Agreement has not
been registered under the Securities Act of 1933, as amended (the "1933
Act") and is being issued in reliance upon the exemption afforded by
Section 4(2) thereof for transactions by an issuer not involving any
public offering, (ii) such Purchaser Common Stock must be held
indefinitely unless a subsequent disposition thereof is registered under
the 1933 Act or is exempt from such registration, (iii) such Purchaser
Common Stock will bear a legend to such effect, and (iv) Purchaser will
make a notation on its transfer books to such effect. Seller further
represents that (i) such Purchaser Common Stock is being acquired for
investment and without any present view toward distribution thereof to
any other person, (ii) he will not sell or otherwise dispose of
Purchaser Common Stock except in compliance with the registration
requirements or exemption provisions under the 1933 Act, the rules and
regulations thereunder, and as otherwise set forth by the Securities and
Exchange commission (the "Commission"), (iii) he has knowledge and
experience in financial and business matters and that he is capable of
evaluating the risks and merits of an investment in Purchaser Common
Stock, (iv) he has consulted with counsel, to the extent deemed
necessary, as to all matters covered by this Agreement and has not
relied upon Purchaser for any explanation of the application of the
various federal or state securities laws with regard to the acquisition
of such Purchaser Common Stock, (v) he has investigated and is familiar
with the affairs, financial condition and prospects of Purchaser, and
has been given sufficient access to and has acquired sufficient
information about Purchaser to reach an informed and knowledgeable
decision to acquire such Purchaser Common Stock, and (vi) he is able to
bear the economic risks of such an investment.
3. Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to Seller as follows:
(a) Purchaser has the necessary corporate power and authority to
enter into this Agreement and this Agreement constitutes a valid and
legally binding obligation of Purchaser, enforceable in accordance with
its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, and (ii) as
limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies. The Purchaser Common
Stock, when issued in accordance with this Agreement, has been duly
issued and shall be fully paid and non-assessable.
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(b) Purchaser represents that he understands that (i) the Shares
being acquired by Purchaser pursuant to this Agreement has not been
registered under the Securities Act of 1933, as amended (the "1933 Act")
and is being sold in a transaction not involving any public offering,
(ii) such Shares must be held indefinitely unless a subsequent
disposition thereof is registered under the 1933 Act or is exempt from
such registration, and (iii) such Shares will bear a legend to such
effect. Purchaser further represents that (i) such Shares are being
acquired for investment and without any present view toward distribution
thereof to any other person, (ii) it will not sell or otherwise dispose
of Shares except in compliance with the registration requirements or
exemption provisions under the 1933 Act, the rules and regulations
thereunder, and as otherwise set forth by the Securities and Exchange
commission (the "Commission"), (iii) he has knowledge and experience in
financial and business matters and that he is capable of evaluating the
risks and merits of an investment in Shares, (iv) he has consulted with
counsel, to the extent deemed necessary, as to all matters covered by
this Agreement and has not relied upon Seller for any explanation of the
application of the various federal or state securities laws with regard
to the acquisition of such Shares, (v) he has investigated and is
familiar with the affairs, financial condition and prospects of the
Company, and has been given sufficient access to and has acquired
sufficient information about the Company to reach an informed and
knowledgeable decision to acquire such Shares, and (vi) he is able to
bear the economic risks of such an investment.
(c) Purchaser has not entered into any contract, arrangement or
understanding with any person or firm which may result in the obligation
of Seller to pay any finder's fees, brokerage or agent's commissions or
other like payments in connection with the negotiations leading to this
Agreement or the consummation of the transactions contemplated hereby,
and Purchaser is not aware of any claim or basis for any claim for
payment of any finder's fees, brokerage or agent's commissions or other
like payments in connection with negotiations leading to this Agreement
or the consummation of the transactions contemplated hereby. Purchaser
shall indemnify Seller for any claims arising out of any breach of the
foregoing representation.
4. Registration Rights.
4.1 Registration Procedures. The Purchaser shall:
(a) as soon as practicable after the Closing, but in any event
within 30 days after the Closing, prepare and file with the Commission a
registration statement on appropriate form (the "Registration
Statement") pursuant to the 1933 Act relating to the resale of the
Purchaser Common Stock by the Seller;
(b) use its best efforts, subject to receipt of necessary
information from Seller, to cause the Registration Statement to become
effective no later than 60 days after the Registration Statement is
filed by Purchaser;
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(c) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep the Registration
Statement effective until the earlier of (i) twelve months after the
effective date of the Registration Statement or (ii) the date on which
all of the Purchaser Common Stock have been sold by Seller pursuant to
the Registration Statement or Rule 144 under the 1933 Act or any other
rule of similar effect;
(d) furnish to the Seller with respect to the Purchaser Common
Stock registered under the Registration Statement such reasonable number
of copies of prospectuses in order to facilitate the public sale or
other disposition of all or any of the Purchaser Common Stock by the
Seller; provided, however, that the obligation of Purchaser to deliver
copies of prospectuses to Seller shall be subject to the receipt by
Purchaser of reasonable assurances from Seller that Seller will comply
with the applicable provisions of the 1933 Act and of such other
securities or blue sky laws as may be applicable in connection with any
use of such prospectuses;
(e) file documents required of Purchaser for normal blue sky
clearance in states reasonably requested in writing by Seller; provided,
however, that Purchaser shall not be required to qualify to do business
or consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented; and
(f) notify Seller at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act of the happening of any
event as a result of which the prospectus included the Registration
Statement, as then in effect includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing.
(g) bear all expenses in connection with the procedures in
paragraphs (a) through (e) of this Section 4.1 and the registration of
the Purchaser Common Stock pursuant to the Registration Statement, other
than fees and expenses, if any, of counsel or other advisers to Seller
or underwriting discounts, brokerage fees and commissions incurred by
the Seller, if any.
4.2 Transfer of Shares After Registration. Seller agrees that it will not effect
any disposition of the Purchaser Common Stock or its right to purchase Purchaser
Common Stock that would constitute a sale within the meaning of the Securities
Act, except as contemplated in the Registration Statement referred to in Section
4.1, and that it will promptly notify Purchaser of any changes in the
information set forth in the Registration Statement regarding Seller or its Plan
of Distribution.
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4.3 Indemnification.
(a) Purchaser agrees to indemnify and hold harmless Seller and each
person, if any, who controls Seller within the meaning of the 1933 Act,
against any losses, claims, damages, liabilities or expenses, joint or
several, to which Seller or such controlling person may become subject,
under the Securities Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or any other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent
of Purchaser), insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state in any of them a material fact
required to be stated therein or necessary to make the statements in any
of them, in light of the circumstances under which they were made, not
misleading, and will reimburse Seller and each such controlling person
for any legal and other expenses as such expenses are reasonably
incurred by Seller or such controlling person in connection with
investigating, or defending, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that
Purchaser will not be liable in any such case to the extent that any
such loss, claim, damage, liability or expense arises out of or is based
upon (i) an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity
with written information furnished to Purchaser by or on behalf of
Seller expressly for use therein, or (ii) the failure of Seller to
comply with the covenants and agreements contained in Section 4.2 hereof
respecting sale of the Purchaser Common Stock, or (iii) any statement or
omission in any prospectus that is corrected in any subsequent
prospectus that was delivered to Seller prior to the pertinent sale or
sales by Seller.
(b) Seller will severally indemnify and hold harmless Purchaser,
each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls Purchaser within the
meaning of the 1933 Act, against any losses, claims, damages,
liabilities or expenses to which Purchaser, each of its directors, each
of its officers who signed the Registration Statement or controlling
person may become subject, under the 1933 Act, the 1934 Act, or any
other federal or state statutory law or regulation (including in
settlement of any litigation, if such settlement is effected with the
written consent of Seller) insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of or are based upon (i) any failure to comply with the
covenants and agreements contained in Section 4.2 hereof respecting the
sale of the Purchaser Common Stock or (ii) any untrue or alleged untrue
statement of any material fact contained in the Registration Statement,
the prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged
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omission was made in the Registration Statement, the prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to Purchaser by or on behalf of Seller
expressly for use therein, and will reimburse Purchaser, each of its
directors, each of its officers who signed the Registration Statement or
controlling person for any legal and other expense reasonably incurred
by Purchaser, each of its directors, each of its officers who signed the
Registration Statement or controlling person in connection with
investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action.
4.4 Certain Information.
With a view to making available to Seller the benefits of certain
rules and regulations of the Commission which may permit the sale of the
Purchaser Common Stock to the public without registration. Purchaser
agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 or any similar or
analagous rule promulgated under the 1933 Act, at all times:
(b) file with the Commission, in a timely manner, all reports
and other documents required of Purchaser under the 1934 Act;
and
(c) furnish to Seller upon request a written statement by
Purchaser as to its compliance with the reporting requirements
of said Rule 144 and of the 1934 Act, a copy of the most recent
annual or quarterly report of Purchaser, and such other reports
and documents as Seller may reasonably request in availing
himself of any rule or regulation of the Commission allowing him
to sell any such securities without registration.
5. Miscellaneous.
(a) Neither Seller nor Purchaser nor any of their respective
successors, agents, affiliates, directors, officers, employees or
assigns shall issue any press release or other form of public comment
relating to the matters set forth in this Agreement without the prior
consent of the other party, which consent shall not be unreasonably
withheld; provided, however, nothing herein shall be construed to
restrict any party from any disclosure required by law, following prior
written notice to the other party. Nothing in this Paragraph 5 (a) shall
be construed as creating any liability on any other party for the
disclosure made by a party, with or without such other party's prior
consent.
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(b) The parties hereto will at any time, and from time to time
after the Closing, upon request of the other party, execute, acknowledge
and deliver all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may be required to
carry out the intent of this Agreement, and to transfer and vest title
to any Shares being transferred hereunder, and to protect the right,
title and interest in and enjoyment of all of the Shares sold, granted,
assigned, transferred, delivered and conveyed pursuant to this
Agreement; provided, however, that this Agreement shall be effective
regardless of whether any such additional documents are executed.
(c) This Agreement shall be binding upon Purchaser, Seller, their
respective administrators, legal representatives, successors, and
permitted assigns. Nothing in this Agreement, expressed or implied, is
intended to confer upon any person, other than the parties hereto, any
rights or remedies under or by reason of this Agreement.
(d) The representations and warranties contained herein shall
survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and remain in full
force and effect, notwithstanding any investigation at any time made by
or on behalf of the parties.
(e) This Agreement shall be construed in accordance with and
governed by the laws of the State of California, without regard to
principles of conflicts of laws.
(f) The parties to this Agreement hereby agree that an award of
damages alone is inadequate to remedy a breach of the terms of this
Agreement, and that specified performance, injunctive relief, or other
equitable remedy is the only way by which the intent of this Agreement
may be adequately realized upon breach by one or more of the parties
hereto. Such remedy shall, however, be cumulative and not exclusive, and
shall be in addition to any other remedy which the parties may have.
(g) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and may be
amended only by a writing executed by all of the parties.
(h) If for any reason whatsoever, any one or more of the provisions
of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid as applied to any particular case or in all
cases, such circumstances shall not have the effect of rendering such
provision invalid in any other case or of rendering any of the other
provisions of this Agreement inoperative, unenforceable or invalid.
(i) Neither this Agreement nor any of the parties' rights hereunder
shall be assignable by any party hereto without the prior written
consent of the other parties hereto and any purported assignment without
such consent shall be null and void.
(j) This Agreement may be executed in any number of counterparts,
each of which shall be considered an original but all of which shall
constitute the agreement by
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(k) Each of the parties hereto shall be responsible for its own
fees and expenses, including all legal and accounting fees incurred in
connection with this transaction.
IN WITNESS WHEREOF, the Purchaser and Seller have duly executed and
delivered this Agreement as of the date first above written.
VENTURE CATALYST INCORPORATED,
a Utah corporation
By: /s/ XXXXXX XXXXXXX
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Title: President
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/s/ XXXXXXXX X. ONUBAH
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XXXXXXXX X. ONUBAH
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EXHIBIT A
x = axb
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z
where
a = the number of Shares
b = the average of the closing bid price of the Common Stock reported on the
over-the-counter market for the five trading days prior to Closing, but in
no event greater than $3.00 per Share
z = the average of the last sale price of the Purchaser Common Stock as
reported on the Nasdaq National Market on the trading day prior to Closing
x = the number of shares of Purchaser Common Stock
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