EXHIBIT 2.3
Subsidiary Stock PURCHASE AGREEMENT
This SUBSIDIARY STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of November___, 2004, between Xxxxx Xxxxxx, Xxx Xxxxxx and Xxxxxx
Xxxxxxx (`Purchaser") and BIB Holdings, Ltd., a Nevada corporation (the
"Company").
WHEREAS, the Company has recently acquired Incode Corporation, a company formed
under the laws of the State of Delaware ("Incode"), pursuant to an Agreement and
Plan of Merger (the "Merger Agreement");
WHEREAS, prior to the acquisition of Incode, the Company's sole business
consisted of its ownership of 100% of the issued and outstanding capital stock
of BIB Ltd., a corporation formed pursuant to the laws of the State of Nevada
("BIB Ltd");
WHEREAS, the Company has been unsuccessful to date in developing the business of
BIB Ltd and the Company believes it is in its best interest to dispose of BIB
Ltd, and focus its resources on the business and operation of Incode; and
WHEREAS, the Purchaser is willing to accept all of the outstanding capital stock
of BIB Ltd, together with all of the liabilities and obligations of BIB Ltd,
together with specified obligations of the Company;
NOW, THEREFORE, in consideration of the foregoing and the terms and conditions
hereof, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF STOCK AND SPECIFIED OBLIGATIONS
1.1 TRANSFER OF BIB LTD
Subject to the terms and conditions hereof, on the Closing Date (as defined
below), the Company shall sell, convey, transfer, assign and deliver to
Purchaser and Purchaser shall purchase from the Company all of the issued and
outstanding common shares of BIB Ltd, free of all liens, charges or other
encumbrances (the "BIB Ltd Stock").
1.2 PROVISION OF COLLATERAL
The Company is currently party to convertible debentures issued to Cornell
Capital Partners, L.P. ("Cornell") in February 2004. These debentures are
currently secured by the real property of BIB Ltd located in Pennsylvania and
used in connection with the business of BIB Ltd (the "PA Building"). On the
Closing Date, the Company shall provide Cornell with sufficient collateral to
obtain the release of the PA Building as collateral for Cornell.
1.3 THE CLOSING
The closing of this Agreement (the "Closing") shall occur on November , 2004
(the "Closing Date") at 10:00 a.m. local time at the offices of Sichenzia Xxxx
Xxxxxxxx Xxxxxxx LLP, New York, New York, or such other time or location as the
parties hereto shall agree.
1.4 DELIVERIES AT THE CLOSING
On the Closing Date in order to effectuate the transfer of the BIB Ltd Stock:
(a) The Company shall deliver to Purchaser certificates representing
all of the BIB Ltd Stock, free and clear of any claim, lien, pledge, option,
charge, easement, security interest, right-of-way, encumbrance, restriction on
sale or transfer, preemptive right or option or any other right of any third
party of any nature whatsoever ("Encumbrance"), duly endorsed in blank for
transfer or accompanied by stock powers duly executed in blank;
(b) The Company shall deliver documents sufficient to evidence the
release of lien on the PA Building;
(c) Purchaser and the Company shall each deliver all documents,
certificates, agreements and instruments required to be delivered pursuant to
Articles IV and V; and
(d) All instruments and documents executed and delivered to any party
pursuant hereto shall be in a form and substance, and shall be executed in a
manner, reasonably satisfactory to the receiving party.
1.5 PURCHASE PRICE
Subject to the terms and conditions of this Agreement, the total purchase price
for the BIB Ltd Stock (the "Purchase Price") shall be delivery by Purchaser to
the Company of 250,000 shares of the Company's common stock, together with stock
powers duly endorsed for transfer in blank, signature medallion or bank
guaranteed (the "Purchaser Stock"), and the assumption of and indemnification
against any and all liabilities of the Company and BIB Ltd, with the sole
exception of debt payable to Cornell, prior to the Closing. The Purchaser agrees
and acknowledges that the Purchaser Stock shall be cancelled upon delivery to
the Company. In further consideration for the sale of BIB Ltd. Stock, the
Purchaser agrees and acknowledges that BIB Ltd. has indemnified Incode and
Incandent Capital, L.L.C. pursuant to sections 3.2 and 3.3 of the Merger
Agreement and that such indemnification obligations are continuing obligations
of BIB Ltd.
1.6 ASSISTANCE IN CONSUMMATION OF THIS AGREEMENT
Purchaser and the Company shall provide all reasonable assistance to, and shall
cooperate with, each other to bring about the consummation of the purchase and
sale of the BIB Ltd Stock and the other transactions contemplated herein as soon
as possible in accordance with the terms and conditions of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchaser, as of the date of this
Agreement and as of the Closing (which representations and warranties shall
survive the Closing Date to the extent provided in Section 7.5 hereof):
2.1 GOOD TITLE
The BIB Ltd Stock is owned by the Company with good and marketable title
thereto, free and clear of any Encumbrance.
2.2 ORGANIZATION, GOOD STANDING
The Company is a corporation duly incorporated, validly existing and in good
standing under the laws of Nevada, and has all requisite corporate power and
authority to own, operate and lease its properties and assets and to carry on
its business as now conducted.
BIB Ltd., is a corporation duly incorporated, validly existing and in good
standing under the laws of Nevada, and has all requisite corporate power and
authority to own, operate and lease its properties and assets and to carry on
its business as now conducted.
2.3 AUTHORIZATION
The Company has the full corporate power and authority enter into this Agreement
and each of the documents to which it is a party, and to carry out the
transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by the Company, and this Agreement is, and will be, on
the Closing Date, a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with the terms of this Agreement.
2.4 NO APPROVALS OR NOTICES REQUIRED; NO CONFLICTS WITH INSTRUMENTS
The execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby will not (a) constitute a
violation (with or without the giving of notice or lapse of time, or both) of
any provision of law or any judgment, decree, order, regulation or rule of any
court or other governmental authority applicable to the Company, or (b) require
any consent, approval or authorization of, or declaration, filing or
registration with, any person, corporation, partnership, joint venture,
association, organization, other entity or governmental or regulatory authority
(a "Person").
2.5 AUTHORIZED CAPITALIZATION OF BIB LTD
BIB Ltd's authorized capital stock consists solely of common shares of which 200
shares are issued and outstanding on the date of this Agreement and entirely
held by the Company. All issued and outstanding shares of BIB Ltd Stock are
validly issued, fully paid and nonassessable. The Company is the sole owner of
all issued and outstanding shares of capital stock of BIB Ltd. There are no
outstanding or authorized subscriptions, options, warrants, calls, rights,
commitments or other agreements of any character which obligate or may obligate
BIB Ltd to issue any additional shares of any of its capital stock or any
securities convertible into or evidencing the right to subscribe for any shares
of any such capital stock. There are no voting trusts or other agreements or
understandings with respect to the capital stock of BIB Ltd to which the Company
is a party or by which the Company is bound.
2.6 BROKERS AND FINDERS
The Company has not retained any broker or finder in connection with the
transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Company, as of the date of this
Agreement and as of the Closing (which representations and warranties shall
survive the Closing to the extent provided in Section 7.5 hereto):
3.1 AUTHORITY
Purchaser has full power and authority to execute, deliver and perform this
Agreement and to carry out the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Purchaser, and this Agreement is, and
will be, on the Closing Date, a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms.
3.2 NO APPROVALS OR NOTICES REQUIRED; NO CONFLICTS WITH INSTRUMENTS
The execution, delivery and performance of this Agreement by Purchaser and the
consummation of the transactions contemplated hereby will not (a) constitute a
violation (with or without the giving of notice or lapse of time, or both) of
any provision of law or any judgment, decree, order, regulation or rule of any
court or other governmental authority applicable to Purchaser, or (b) require
any consent, approval or authorization of, or declaration, filing or
registration with, any Person.
3.3 OWNERSHIP OF THE PURCHASER STOCK
The Purchaser Stock is owned by the Purchaser with good and marketable title
thereto, free and clear of any Encumbrance.
3.4 SATISFACTION OF COMPANY OBLIGATIONS
Upon the sale of BIB Ltd to the Purchaser, the Company shall have no further
material debts or liabilities other than amounts due to Cornell as set forth on
Schedule A.
3.5 BROKERS AND FINDERS
Purchaser has not retained any broker or finder in connection with the
transactions contemplated by this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser to perform and observe the covenants, agreements
and conditions hereof to be performed and observed by them at or prior to the
Closing Date shall be subject to the satisfaction of the following conditions on
or prior to the Closing Date, which condition may be expressly waived in writing
by Purchaser.
4.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Company contained herein shall have
been true in all material respects when made and shall be true as of the Closing
Date as though made on that date, except as affected by transactions
contemplated hereby and except to the extent that such representations and
warranties are made as of a specified date, in which case such representations
and warranties shall be true in all material respects as of the specified date.
4.2 PERFORMANCE OF AGREEMENT
The Company shall have performed in all material respects all obligations and
agreements and complied with all covenants and conditions contained in this
Agreement to be performed and complied with by them at or prior to the Closing
Date.
4.3 DELIVERY OF SHARES
Purchaser shall have received certificates representing the BIB Ltd Stock,
together with stock powers duly endorsed in blank.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
The obligations of the Company to perform and observe the covenants, agreements
and conditions hereof to be performed and observed by it at or prior to the
Closing Date shall be subject to the satisfaction of the following conditions on
or prior to the Closing Date, which conditions may be expressly waived in
writing by the Company.
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of Purchaser contained herein shall have been
true in all material respects when made and shall be true in all material
respects as of the Closing Date as though made on that date, except as affected
by transactions contemplated hereby and except and to the extent that such
representations and warranties are made as of a specified date, in which case
such representations and warranties shall be true as of the specified date.
5.2 PERFORMANCE OF AGREEMENT
Purchaser shall have performed all obligations and agreements and complied with
all covenants and conditions contained in this Agreement to be performed and
complied with by them at or prior to the Closing Date.
5.3 DELIVERY OF SHARES
The Company shall have received certificates representing the Purchaser Stock,
together with stock powers duly endorsed in blank, signature guaranteed.
ARTICLE VI
TERMINATION
6.1 This Agreement may be terminated at any time prior to the Closing:
(a) by the mutual consent of Purchaser and the Company;
(b) by the Company (provided that the Company is not then in
material breach of any representation, warranty, covenant or
other agreement contained herein for which the Purchaser shall
have previously notified the Company), if there has been a
breach by the Purchaser of any of its representations,
warranties, covenants or agreements contained in this
Agreement, or any such representation and warranty shall have
become untrue, and such breach or condition has not been
promptly cured within 30 days following receipt by the
Purchaser of written notice of such breach; and
(c) by the Purchaser (provided that the Purchaser is not then in
material breach of any representation, warranty, covenant or
other agreement contained herein for which the Company shall
have previously notified the Purchaser), if there has been a
breach by the Company of any of its representations,
warranties, covenants or agreements contained in this
Agreement, or any such representation and warranty shall have
become untrue, and such breach or condition has not been
promptly cured within 30 days following receipt by the Company
of written notice of such breach.
6.2 In the event of termination of this Agreement pursuant to this Article VI,
written notice thereof shall be given as promptly as practicable to the other
party to this Agreement and this Agreement shall terminate and the transactions
contemplated hereby shall be abandoned, without further action by any of the
parties hereto. If this Agreement is terminated as provided herein (a) there
shall be no liability or obligation on the part of the Seller, the Purchaser, or
their respective officers, directors and Affiliates, and all obligations of the
parties shall terminate, except for that a party that is in material breach of
its representations, warranties, covenants, or agreements set forth in this
Agreement shall be liable for damages occasioned by such breach, including
without limitation any expenses, including the reasonable fees and expenses of
attorneys, accountants and other agents, incurred by the other party in
connection with this Agreement and the transactions contemplated hereby;
provided, however, that the Purchaser shall not be deemed to be in material
breach of this Agreement solely by reason of its inability to satisfy one or
more of the conditions set forth in Section 7 if the Purchaser is attempting to
satisfy such conditions in good faith.
ARTICLE VII
GENERAL
7.1 COOPERATION
Each party hereto will fully cooperate with the other parties, their counsel and
accountants in connection with any steps required to be taken as part of its
obligations under this Agreement. Each party will use its reasonable best
efforts to cause all conditions to this Agreement to be satisfied as promptly as
possible and to obtain all consents and approvals necessary for the due and
punctual performance of this Agreement and for the satisfaction of the
conditions hereof. No party will undertake any course of action inconsistent
with this Agreement or which would make any representations, warranties or
agreements made by such party in this Agreement untrue or any conditions
precedent to this Agreement unable to be satisfied at or prior to the Closing.
7.2 CONFIDENTIALITY
In connection with the transactions contemplated herein, the Company and
Purchaser are furnishing each other with certain information which is either
nonpublic, confidential or proprietary in nature. All such information furnished
by one party to the other or its representatives is hereinafter referred to as
the "Confidential Information." As used in this Agreement, the "representatives"
of any party shall mean such party's officers, employees, agents or other
representatives, including, without limitation, attorneys, accountants,
consultants and financial advisors. In consideration of each party's being
furnished with the Confidential Information of the other, each party agrees
that:
(a) The Confidential Information will be kept confidential and
except as required by law will not, without the prior written consent of the
party supplying the information, be disclosed by the receiving party or its
representatives during such three-year period in any manner whatsoever, in whole
or in part, and will not be used by the receiving party or its representatives
directly or indirectly for any purpose other than evaluating and facilitating
the transactions contemplated herein; provided, however, that upon the execution
of this Agreement by the parties, the Company and its representatives will be
free to use the Confidential Information to the extent required by law in any
subsequent filings with federal or state authorities relating to the
transactions contemplated herein. Each party agrees to transmit the Confidential
Information only to those of its representatives who need to know the
Confidential Information for the purpose of advising it regarding any of the
purposes for which it is permitted to use the Confidential Information under the
terms of this Agreement, who are informed by the party supplying such
information of the confidential nature of the Confidential Information and who
are directed by such party to comply with the terms of this Agreement. Each
party will be responsible for any material breach of this Agreement by its
representatives.
(b) Without the prior written consent of the other parties to
this Agreement, no party or any of its representatives will disclose to any
other Person the fact that the Confidential Information has been made available,
or any of the terms, conditions or other facts with respect to the transactions
contemplated herein, including the status thereof, except as required by law or
permitted under the terms of this Agreement.
(c) In the event the parties do not proceed with the
transactions contemplated herein, the Confidential Information and all copies
thereof will be destroyed or returned promptly without retaining any copies
thereof.
(d) This Section 7.2 shall be inoperative as to such portions
of the Confidential Information which (i) are or become generally available to
the public other than as a result of a disclosure by the receiving party or its
representatives which is not required by law; (ii) become available to the
receiving party from a source with no obligation of confidentiality to the other
party; (iii) describe technology independently developed by the receiving party;
or (iv) were known to the receiving party on a non-confidential basis prior to
its disclosure to the receiving party by the supplying party or one of its
representatives.
(e) In the event that a receiving party or any of its
representatives is requested or becomes legally compelled (by written or oral
interrogatories, subpoena, civil investigative demand or similar process) to
disclose any of the Confidential Information for purposes not permitted by this
Agreement, the receiving party will provide the supplying party with prompt
written notice so that the supplying party may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this
Agreement. In the event that such protective order or other remedy is not
obtained, or that the supplying party waives compliance with the provisions of
this Agreement, the receiving party will furnish only that portion of the
Confidential Information which is legally required, and will exercise good-faith
efforts to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information.
(f) Each party agrees that the other parties shall be entitled
to equitable relief, including injunction and specific performance, in the event
of any breach of the provisions of clause (a), (b), (c) or (e) of this Section
7.2. Such remedies shall not be deemed to be the exclusive remedies for a breach
of this Section 7.2 by any party or its representatives but shall be in addition
to all other remedies available at law or equity.
(g) It is further understood and agreed that no failure or
delay by any party in exercising any right, power or privilege under this
Section 7.2 shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise of any right, power or
privilege hereunder.
7.3 FURTHER ACTS
After the Closing Date, each party hereto, at the request of and without any
further cost or expense to the other parties, will take any further actions
necessary or desirable to carry out the purposes of this Agreement.
7.4 AMENDMENT
The parties may amend, modify or supplement this Agreement at any time, but only
in writing duly executed on behalf of each of the parties to be bound thereby.
7.5 SURVIVAL OF WARRANTIES
The representations and warranties contained in this Agreement shall survive the
Closing for a period of three (3) years from the Closing.
7.6 EXPENSES
Each of the parties hereto shall pay its own fees and expenses (including the
fees of any attorneys, accountants, or others engaged by such party) in
connection with this Agreement and the transactions contemplated hereby whether
or not the transactions contemplated hereby are consummated.
7.7 COUNTERPARTS
This Agreement may be executed simultaneously 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.
7.8 HEADINGS
The headings preceding the text of Articles and Sections of this Agreement are
for convenience only and shall not be deemed parts thereof
7.9 APPLICABLE LAW
The Company and Purchaser hereby submit and consent to the exclusive venue and
jurisdiction of the Superior Court of the State of New Jersey, County of Bergen,
in respect of the interpretation and enforcement of the provisions of this
Agreement, and hereby waive and agree not to assert as a defense in any action,
suit or proceeding for the interpretation or enforcement of this Agreement, that
it is not subject thereto or that such action, suit or proceeding may not be
brought or is not maintainable in said courts or that this Agreement may not be
enforced in or by said courts or that its property is exempt or immune from
execution, that the suit, action or proceeding is brought in an inconvenient
forum, or that the venue of the suit, action or proceeding is improper. The
Company and Purchaser agree that service of process may be made in any manner
permitted by the laws of the State of New Jersey or the federal laws of the
United States in any such action, suit or proceeding against the Company or
Purchaser with respect to this Agreement, and the Company and Purchaser hereby
irrevocably designate and appoint Xxxxxxx Xxxxxxx, Esq. and Sichenzia Xxxx
Xxxxxxxx Xxxxxxx LLP, as their respective authorized agents upon which process
may be served in any such action, suit or proceeding, it being understood that
such appointment and designation shall become effective without any further
action on the part of the Company or Purchaser. Service of process upon such
authorized agent shall be deemed, in every respect, effective service of process
upon the Company or Purchaser and shall remain effective until Seller or
Purchaser shall appoint another agent for service or process acceptable to the
other Party. The Company and Purchaser agree that final judgment (with all right
of appeal having expired or been waived) against it in any such action, suit or
proceeding shall be conclusive and that the other Party is entitled to enforce
such judgment in any other jurisdiction by suit on the judgment, a certified
copy of which shall be conclusive evidence of the fact and amount of
indebtedness arising from such judgment.
7.10 PARTIES IN INTEREST
All the terms and provisions of this Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and permitted
assigns of the parties hereto, whether herein so expressed or not, but neither
this Agreement nor any of the rights, interests or obligations hereunder of any
party hereto shall be assigned without the prior written consent of the other
parties. This Agreement is not intended, nor shall it be construed, to confer
any enforceable rights on any Person not a party hereto.
7.11 NOTICES
Any notice or demand desired or required to be given hereunder shall be in
writing given by personal delivery or certified or registered mail, reputable
overnight courier service, telegram or confirmed facsimile transmission,
addressed as respectively set forth below or to such other address as any party
shall have previously designated by such a notice, The effective date of any
notice or request shall be three days from the date it is mailed by the
addressor, upon delivery of the courier package if it is sent by courier, upon
delivery to a telegraph company properly addressed with charges prepaid, upon
confirmation of a successful facsimile transmission, or in any event upon
personal delivery.
Notices to Purchaser and the Company shall be sent as follows:
To Company:
BIB Ltd Holdings, Ltd.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxx Xxxxxxx
Phone: (000) 000-0000
Telecopier: (000) 000-0000
Copy to:
Xxxxxxx Xxxxxxx, Esq.
Xxxx & Xxxxxxx, L.L.C.
00 Xxxx Xxxxx Xxxxx 0
Xxxxxxx, Xxx Xxxxxx 00000
Phone: (000) 000-0000
Telecopier: (000) 000-0000
To Purchaser:
Xxxx and Xxxx Xxxxxx
0000 Xxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Phone: (000) 000-0000
Telecopier: (000) 000-0000
Copy to:
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
1065 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
Phone: (000) 000-0000
Telecopier: (000) 000-0000
7.12 FORCE MAJEURE.
Neither Party hereto shall be liable for failure to perform any obligation under
this Agreement if such failure to perform is caused by the occurrence of any
contingency beyond the reasonable control of such party, including, without
limitation, fire, flood, strike or other industrial disturbance, failure of
transport, accident, war, riot, insurrection, act of God or order of
governmental agency or act of terrorism. Performance shall be resumed as soon as
is possible after cessation of such cause. However, if such inability to perform
continues for more than ninety (90) days, the other party may terminate this
Agreement without penalty and without further notice.
IN WITNESS WHEREOF, the parties hereto have entered into and signed this
Agreement as of the date and year first above written.
/S/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/S/ Xxx Xxxxxx
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Xxx Xxxxxx
/S/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
BIB HOLDINGS, LTD.
By: /S/ Xxx Xxxxxxx
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Xxx Xxxxxxx, President and CFO