STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT ("Agreement"), dated November 17,
1997 by and among Xxxxx Xxxxxxxx Entertainment, Inc., a Colorado
corporation (hereinafter called "JNE") and Xxxxxxxx X. Xxxxxxxxxx
("Purchaser").
W I T N E S S E T H
WHEREAS, JNE is the owner of certain shares of Series A
Convertible Preferred Stock (the "Preferred Stock") of AmeriNet
Financial Systems, Inc. ("AFSI") and desires to convert such
Preferred Stock into unrestricted shares of common stock and sell
19,145 shares of such unrestricted common stock (the "Shares") to
Purchaser on the terms and conditions set forth in this Stock
Purchase Agreement (hereinafter called "Agreement"); and
WHEREAS, Purchaser desires to acquire the Shares at $2.25 per
share for an aggregate of $43,076.25 pursuant to the terms and
conditions set forth in this Stock Purchase Agreement; and
WHEREAS, the Preferred Stock is presently held in escrow and
shall be released in accordance with the terms of that certain
Escrow Agreement dated as of February 12, 1997 (the "Shares
Escrow"); and
WHEREAS, the proceeds for the sale of the Shares shall be held
in escrow and released to JNE pursuant to the terms hereof and of
that certain Escrow Agreement of even date herewith (the "Proceeds
Escrow").
NOW THEREFORE, in consideration of the premises and
respective mutual agreements, covenants, representations and
warranties herein contained, it is agreed between the parties hereto
as follows:
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1 Sale of the Shares. At the date of the signing of this
Agreement as provided in Section 3.1 hereto (the "Closing"), subject
to the terms and conditions herein set forth, and on the basis of
the representations, warranties and agreements herein contained, JNE
shall sell to Purchaser and Purchaser shall purchase from JNE, the
Shares.
1.2 Instruments of Conveyance and Transfer. At the Closing,
JNE shall instruct the Escrow Agent under the Shares Escrow to
deliver certificates of the Preferred Stock which are convertible
into the Shares to the transfer agent of JNE for transfer and
delivery to Purchaser, together with appropriate medallion
guaranteed stock powers, sufficient to convert the Preferred Stock
and transfer the Shares into Purchaser's name, in form and substance
satisfactory to Purchaser as shall be effective to vest in Purchaser
all right, title and interest in and to all of the Shares. JNE
shall provide an opinion of its counsel with respect to the
transferability of the Preferred Stock convertible into the Shares
to Purchaser in accordance with the terms of the Shares Escrow and
applicable state and federal securities laws.
1.3 Consideration. On or before November 21, 1997, Purchaser
shall pay to the Escrow Agent by wire transfer (to the instructions
attached hereto as Exhibit A) under the Proceeds Escrow an aggregate
of $2.25 per share or an aggregate of $43,076.25. The Escrow Agent
under the Proceeds Escrow shall immediately disburse 5% of such
funds to JNE and shall retain the balance to be disbursed in
accordance with the terms of the Proceeds Escrow. The terms and
conditions of the Proceeds Escrow are incorporated herein by reference.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of JNE. To induce
Purchaser to enter into this Agreement and to consummate the
transactions contemplated hereby, JNE represents and warrants, as of
the date hereof and as of the Closing, as follows:
2.1.1 Corporate Existence and Authority. JNE is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Colorado. It has all requisite
corporate power, franchises, licenses, permits and authority to own
its properties and assets and to carry on its business as it has
been and is being conducted. It is in good standing in each state,
nation or other jurisdiction in each state, nation or other
jurisdiction wherein the character of the business transacted by it
makes such qualification necessary.
2.1.2 Execution of Agreement. The execution and delivery
of this Agreement does not, and the consummation of the transactions
contemplated hereby will not: (a) violate, conflict with, modify or
cause any default under or acceleration of (or give any party any
right to declare any default or acceleration upon notice or passage
of time or both), in whole or in part, any charter, article of
incorporation, bylaw, mortgage, lien, deed of trust, indenture,
lease, agreement, instrument, order, injunction, decree, judgment,
law or any other restriction of any kind to which JNE is a party or
by which either of them or any of their properties are bound; (b)
result in the creation of any security interest, lien, encumbrance,
adverse claim, proscription or restriction on any property or asset
(whether real, personal, mixed, tangible or intangible), right,
contract, agreement or business of JNE; (c) violate any law, rule or
regulation of any federal or state regulatory agency; or (d) permit
any federal or state regulatory agency to impose any restrictions or
limitations of any nature on JNE or any of its actions.
2.2 Representations and Warranties of Purchaser. To
induce JNE to enter into this Agreement and to consummate the
transactions contemplated hereby, Purchaser represents and warrants,
as of the date hereof and as of the Closing, as follows:
2.2.1 Authority of Purchaser. Purchaser has all requisite
power, corporate or otherwise, to enter into this Agreement and to
consummate the transactions contemplated hereunder.
2.2.2 Execution of Agreement. The execution and delivery
of this Agreement does not, and the consummation of the transactions
contemplated hereby will not: (a) violate, conflict with, modify or
cause any default under or acceleration of (or give any party any
right to declare any default or acceleration upon notice or passage
of time or both), in whole or in part, any charter, article of
incorporation, bylaw, mortgage, lien, deed of trust, indenture,
lease, agreement, instrument, order, injunction, decree, judgment,
law or any other restriction of any kind to which Purchaser is a
party or by which it or any of its properties are bound; (b) result
in the creation of any security interest, lien, encumbrance, adverse
claim, proscription or restriction on any property or asset (whether
real, personal, mixed, tangible or intangible), right, contract,
agreement or business of Purchaser; (c) violate any law, rule or
regulation of any federal or state regulatory agency; or (d) permit
any federal or state regulatory agency to impose any restrictions or
limitations of any nature on Purchaser or any of its actions.
ARTICLE 3
CLOSING AND DELIVERY OF DOCUMENTS
3.1 Closing. The Closing shall be deemed to have occurred as
of the date of signing of this Agreement. Subsequent to the
signing, the following shall occur as a single integrated transaction:
3.2 Delivery by JNE:
(a) JNE shall instruct the Escrow Agent for the Shares Escrow
to immediately deliver to the transfer agent of ANFS for immediate
transfer to Purchaser the stock certificates representing the
Preferred Stock convertible into the Shares and all instruments of
conveyance and transfer required by Section 1.1.
(b) JNE shall deliver to the transfer agent and the Purchaser
the opinion of its counsel as set forth in Section 1.2 hereof.
(c) JNE shall deliver, or cause to be delivered, to Purchaser
such instruments, documents and certificates as are required to be
delivered by Purchaser or its representatives pursuant to the
provisions of this Agreement.
3.3 Delivery by Purchaser:
(a) Purchaser shall deliver, or cause to be delivered, to the
Escrow Agent for the Proceeds Escrow the Consideration as required
by Section 1.3.
(b) Purchaser shall deliver, or cause to be delivered, to JNE
such instruments, documents and certificates as are required to be
delivered by Purchaser or its representatives pursuant to the
provisions of this Agreement.
ARTICLE 4
TERMINATION, AMENDMENT AND WAIVER
4.1 Termination. Notwithstanding anything to the
contrary contained in this Agreement, this Agreement may be
terminated and the transactions contemplated hereby may be abandoned
at any time prior to the Closing by the mutual consent of all of the
parties;
4.2 Waiver and Amendment. 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, 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 or 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 5
MISCELLANEOUS
5.1 Expenses. Except as otherwise specifically provided
for herein, whether or not the transactions contemplated hereby are
consummated, each of the parties hereto shall bear all taxes of any
nature (including, without limitation, income, franchise, transfer
and sales taxes) and all fees and expenses relating to or arising
from its compliance with the various provisions of this Agreement
and such party's covenants to be performed hereunder, and except as
otherwise specifically provided for herein, each of the parties
hereto agrees to pay all of its own expenses (including, without
limitation, attorneys and accountants' fees and printing expenses)
incurred in connection with this Agreement, the transactions
contemplated hereby, the negotiations leading to the same and the
preparations made for carrying the same into effect, and all such
taxes, fees and expenses of the parties hereto shall be paid prior
to Closing.
5.2 Notices. Any notice, request, instruction or other
document required by the terms of this Agreement, or deemed by any
of the parties hereto to be desirable, to be given to any other
party hereto shall be in writing and shall be given by prepaid
telegram or delivered or mailed by registered or certified mail,
postage prepaid, with return receipt requested, to the following
addresses:
TO JNE:
Xxxxx Xxxxxxxx Entertainment, Inc.
0000 Xxxxx Xxxx., Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
with a copy to:
Law offices of M. Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: M. Xxxxxxx Xxxxxx, Esq.
Facsimile No.: 000-000-0000
TO PURCHASER:
Xxxxxxxx X. Xxxxxxxxxx c/o Xxxx Xxxxxx
Lumiere Securities
00000 X. Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
The persons and addresses set forth above may be changed from
time to time by a notice sent as aforesaid. If notice is given by
delivery in accordance with the provisions of this Section, said
notice shall be conclusively deemed given at the time of such
delivery. If notice is given by mail in accordance with the
provisions of this Section, such notice shall be conclusively deemed
given forty-eight (48) hours after deposit thereof in the United
States mail. If notice is given by telegraph in accordance with the
provisions of this Section, such notice shall be conclusively deemed
given at the time that the telegraphic agency shall confirm delivery
thereof to the addressee.
5.3 Entire Agreement. This Agreement, together with the
Schedule and exhibits hereto, 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 understandings 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 in the Schedule 1 or exhibits hereto or the written
statements, 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 so set forth.
5.4 Survival of Representations. All statements of fact
(including financial statements) contained in the Schedule, the
exhibits, the certificates or any other instrument delivered by or
on behalf of the parties hereto, or in connection with the
transactions contemplated hereby, shall be deemed representations
and warranties by the respective party hereunder. All
representation, warranties agreements and covenants hereunder shall
survive the Closing and remain effective regardless of any
investigation or audit at any time made by or on behalf of the
parties or of any information a party may have in respect thereto.
Consummation of the transactions contemplated hereby shall not be
deemed or construed to be a waiver of any right or remedy possessed
by any party hereto, notwithstanding that such party knew or should
have known at the time of Closing that such right or remedy existed.
5.5 Remedies Cumulative. No remedy herein conferred upon
Purchaser is intended to be exclusive of any other remedy and each
and every such remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or otherwise.
5.6 Execution of Additional Documents. Each party hereto
shall make, execute, acknowledge and deliver such other instruments
and documents, and take all such other actions as may be reasonably
required in order to effectuate the purposes of this Agreement and
to consummate the transactions contemplated hereby.
5.7 Finders' and Related Fees. Each of the parties
hereto is responsible for, and shall indemnify the other against,
any claim by any third party to a fee, commission, bonus or other
remuneration arising by reason of any services alleged to have been
rendered to or at the instance of said party to this Agreement with
respect to this Agreement or to any of the transactions contemplated
hereby.
5.8 Governing Law. This Agreement has been negotiated
and executed in the State of California and shall be construed and
enforced in accordance with the laws of such state.
5.9 Forum. Each of the parties hereto agrees that any
action or suit which may be brought by any party hereto against any
other party hereto in connection with this Agreement or the
transactions contemplated hereby may be brought only in a federal or
state court in Orange County, California.
5.10 Binding Effect and Assignment. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, legal
representatives and assigns.
5.11 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
In making proof of this Agreement, it shall not be necessary to produce
or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, as of the date first written hereinabove.
XXXXX XXXXXXXX ENTERTAINMENT, INC.
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, Chief Executive Officer
PURCHASER
By: /s/Xxxxxxxx Xxxxxxxxxx
