Exhibit 10.22
SHARE PURCHASE AND SALE AGREEMENT
This Share Purchase and Sale Agreement (the "Agreement") is executed
this 5th day of June, 2001, as agreed to by the parties on, and effective as of,
March 31, 2001, by and between Azul Holdings Inc., a Delaware corporation
("Azul"), and Tudor Trust, a trust of which Xxxxxxx X. Xxxxxx is the sole
trustee and current beneficiary ("Tudor Trust").
RECITALS
WHEREAS:
1. Until the recent private placement by Xyvision Enterprise Solutions,
Inc., a Delaware corporation ("XyEnterprise"), of shares of its Series A
preferred stock, XyEnterprise was a majority owned subsidiary of Azul and after
giving effect to the XyEnterprise private placement Azul holds approximately 47%
of the outstanding shares of XyEnterprise capital stock.
2. Tudor Trust holds approximately 70% of the outstanding shares of
Azul capital stock and 19% of the outstanding shares of XyEnterprise capital
stock.
3. Azul has determined that holding a majority of the outstanding
shares of XyEnterprise capital stock is in Azul's best interests and desires to
purchase additional shares of XyEnterprise capital stock from Tudor Trust such
that XyEnterprise is again a majority owned subsidiary of Azul.
4. Azul has requested that Tudor Trust sell shares of XyEnterprise
capital stock to Azul in connection with the foregoing, and Tudor Trust is
willing to sell shares of XyEnterprise capital stock to Azul upon the terms of
this Agreement.
NOW THEREFORE, in consideration of the representations, warranties and
agreements set forth herein, Azul and Tudor Trust agree as follows:
ARTICLE I
THE SHARE PURCHASE AND SALE
Section 1.1 The Share Purchase and Sale. Subject to the terms hereof,
Azul hereby purchases from Tudor Trust and Tudor Trust hereby sells to Azul
575,000 shares of XyEnterprise Class A common stock, $.001 par value per share
(the "Transferred XyEnterprise Shares"), held by Tudor Trust, in exchange for
the issuance by Azul to Tudor Trust of 1,092,500 shares of Azul common stock,
$.03 par value per share (the "Issued Azul Shares"). The parties agree and
acknowledge that the foregoing exchange ratio reflects a valuation of the
Transferred XyEnterprise Shares based on recent XyEnterprise stock issuance
transactions and a valuation of the Issued Azul Shares based on the last quoted
price for Azul common stock on the OTC Bulletin Board on March 31, 2001.
Section 1.2 Deliveries. Tudor Trust shall deliver to Azul duly endorsed
stock certificates representing the Transferred XyEnterprise Shares, appropriate
irrevocable stock powers, and such other instruments as Azul may require to
complete the transfer of the Transferred XyEnterprise Shares from Tudor Trust to
Azul. Azul shall in turn deliver to Tudor Trust a stock certificate for the
Issued Azul Shares, which certificate shall bear a customary securities law
restrictive legend.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Tudor Trust. Tudor Trust
hereby makes the following representations and warranties to Azul:
(a) Authority, Enforceability and No Conflicts. Tudor Trust has all
requisite power and authority to enter into this Agreement and to perform the
terms of this Agreement. This Agreement has been executed and delivered by Tudor
Trust and constitutes a valid and binding obligation of Tudor Trust enforceable
in accordance with its terms (except as limited by bankruptcy, insolvency, or
other laws affecting the enforcement of creditors' rights). The execution,
delivery and performance of this Agreement will not conflict with any provision
of Tudor Trust's governing trust instrument or any agreement to which Tudor
Trust is a party or otherwise bound.
(b) Ownership and Transfer of Transferred XyEnterprise Shares. Tudor
Trust is the legal owner of the XyEnterprise Transferred Shares and has the full
power and authority to sell and transfer to Azul the Transferred XyEnterprise
Shares. Upon delivery by Tudor Trust to Azul of the duly endorsed stock
certificates representing the Transferred XyEnterprise Shares and appropriate
irrevocable stock powers, the Transferred XyEnterprise Shares will be duly
transferred to Azul and good and valid title in and to the Transferred
XyEnterprise Shares will be vested in Azul, free and clear of any liens,
encumbrances or claims of any nature whatsoever.
(c) Full Disclosure. Tudor Trust is not aware of any facts not
disclosed to the disinterested members of the Azul board of directors which
(individually or in the aggregate) could have a material adverse effect on the
business, financial condition, results of operations or cash flows of
XyEnterprise.
Section 2.2 Representations and Warranties by Azul. Azul hereby makes
the following representations and warranties to Tudor Trust:
(a) Organization and Standing of Azul. Azul is a corporation validly
existing and in good standing under the laws of the State of Delaware.
(b) Authority, Enforceability and No Conflicts. Azul has all requisite
corporate power and authority to carry on its business as now being conducted,
and to enter into this Agreement and to perform the terms of this Agreement. The
execution, delivery, and performance of this Agreement have been duly authorized
by all requisite corporate action on behalf of Azul, including approval by the
disinterested members of the Azul board of directors. This Agreement has been
executed and delivered by Azul and constitutes a valid and binding obligation of
Azul enforceable in accordance with its terms (except as limited by bankruptcy,
insolvency, or other laws affecting the enforcement of creditors' rights). The
execution, delivery and performance of this Agreement will not conflict with any
provision of Azul's certificate of incorporation, bylaws or any agreement to
which Azul is a party or otherwise bound.
(c) Valid Issuance of Issued Azul Shares. The Issued Azul Shares have
been duly authorized, and will upon issuance pursuant to the terms hereof be
validly issued, fully paid and non-assessable.
ARTICLE III
INDEMNIFICATION
Section 3.1 Survival of Representations and Warranties. The
representations and warranties herein shall survive from the date of this
Agreement for a period of one year.
Section 3.2 Tudor Trust Indemnification. Tudor Trust shall indemnify
and hold Azul harmless against any and all damages, liabilities, claims and
expenses (including reasonable attorney fees) resulting from any untrue
representation by Tudor Trust or the breach of any warranty of Tudor Trust
contained herein.
Section 3.3 Azul Indemnification. Azul shall indemnify and hold Tudor
Trust harmless against any and all damages, liabilities, claims and expenses
(including reasonable attorney fees) resulting from any untrue representation by
Azul or the breach of any warranty of Azul contained herein.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Counterparts and Facsimile Signatures. This Agreement may
be executed in counterparts and signature pages may be delivered by facsimile
transmission.
Section 4.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
Section 4.3 Amendment. This Agreement may be amended only by a written
instrument signed by both parties hereto.
* * *
IN WITNESS WHEREOF, this Share Purchase and Sale Agreement is hereby
duly executed on the date first written above effective as of March 31, 2001.
AZUL HOLDINGS INC., TUDOR TRUST
a Delaware corporation
By: /S/ XXXXXX X. XXXXXXX By: /S/ XXXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxxx, Vice President Xxxxxxx X. Xxxxxx, Sole Trustee
and Chief Financial Officer
