EXHIBIT 10.54
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 23rd day of February, 1999, by and
between XXXX.XXX, INC., a Delaware corporation (the "Company"), and IGC
PARTNERS ("Purchaser").
W I T N E S S E T H:
WHEREAS, the Company desires to issue to Purchaser thirty thousand
(30,000) shares of Common Stock of the Company (the "Stock") as herein
described, on the terms and conditions hereinafter set forth; and
WHEREAS, the issuance of Common Stock hereunder is in connection with
services rendered by the Purchaser to the Company; and
WHEREAS, the issuance of Common Stock hereunder is intended to comply with
the provisions of Rule 505 promulgated by the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act").
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. The Company agrees to issue and deliver to the Purchaser thirty
thousand (30,000) shares of the Company's Common Stock in consideration for
past services rendered by Purchaser to the Company.
2. Purchaser acknowledges that Purchaser is aware that the Stock to be
issued to him by the Company pursuant to this Agreement has not been registered
under the Act, and that the Stock is deemed to constitute "restricted
securities" under Rule 505 and Rule 144 promulgated under the Act. In this
connection, Purchaser warrants and represents to the Company that Purchaser is
purchasing the Stock for Purchaser's own account for investment only and not
with a view towards distribution, and Purchaser has no present intention of
distributing or selling said Stock except as permitted under the Act and
applicable provisions of the California Corporations Code and other applicable
Blue Sky requirements and Statutes. Purchaser further warrants and represents
that Purchaser has either (i) preexisting personal or business relationships
with the Company or any of its officers, directors or controlling persons, or
(ii) the capacity to protect Purchaser's own interests in connection with the
purchase of the Stock by virtue of the business or financial expertise of any
professional advisors to the Purchaser who are unaffiliated with and who are
not compensated by the Company or any of its affiliates, directly or
indirectly. Purchaser further acknowledges that the exemption from
registration under Rule 144 will not be available for at least one year from
the date of sale of the Stock (the date of the issuance of the stock
certificate) and unless other terms and conditions of Rule 144 are complied
with; and that any sale of the Stock may be made only in limited amounts in
accordance with such terms and conditions.
3. Purchaser further represents and warrants that Purchaser has received
and read the Company's annual report to shareholders for the most
recent fiscal year, the definitive proxy statement filed in connection with
such annual report, a copy of the Purchaser's most recent Form 10-K and copies
of documents or reports filed by the Purchaser with the Securities Exchange
Commission under the Securities Exchange Act of 1934, as amended, since the
filing of the most recent Form 10-K. Purchaser further represents and warrants
that Purchaser has had an opportunity (i) to discuss the Company's business,
management and financial affairs with directors, officers, and management of
the Company, (ii) to review the Company's operations and facilities, and (iii)
to ask questions of and receive answers from, the Company and its management
regarding the terms and conditions of this investment.
4. All certificates representing any shares of Stock subject to the
provisions of this Agreement shall have endorsed thereon the following legends:
(a) The securities represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act"). They may not be sold
or offered for sale or otherwise distributed unless the securities are
registered under the Act or an exemption therefrom is available.
(b) Any legend required to be placed thereon by the Company's
Bylaws.
(c) Any legend required to be placed thereon by appropriate Blue Sky
officials.
5. Without in any way limiting the foregoing, Purchaser further agrees
that Purchaser shall in no event make any disposition of all or any portion of
the Stock which Purchaser is purchasing unless and until:
(a) there is then in effect a registration statement under the Act
covering such proposed disposition and such disposition is made in accordance
with said registration statement; or
(b) purchaser shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition; provided, however, that
Purchaser shall not make such disposition if the Company is advised by its
counsel that the disposition will require registration of such shares under the
Act.
6. The Company shall not be required (a) to transfer on its books any
shares of Stock of the Company which shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement or (b) to treat
as owner of such shares or to accord the right to vote as such owner or to pay
dividends to any transferee to whom such shares shall have been so transferred.
7. Purchaser hereby agrees that for a period of not less than ninety (90)
days and up to a maximum of one hundred eighty (180) days following the
effective date of a registration statement of the Company covering Common Stock
(or other securities) to be sold on its behalf in an underwritten public
offering, Purchaser shall not, to the extent requested by the Company and any
underwriter, sell or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any Common Stock of the Company held
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by him at any time during such period except Common Stock included in such
registration; provided, however, that all officers and directors of the Company
who hold securities of the Company or options to acquire securities of the
Company enter into similar agreements. In order to enforce the foregoing
covenant, the Company may impose stop-transfer instructions with respect to the
Common Stock held by the Purchaser (and the shares or securities of every other
person subject to the foregoing restriction) until the end of such period.
8. The parties agree to execute such further instruments and to take such
further action as may reasonably be necessary to carry out the intent of this
Agreement.
9. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or delivery by
express courier, or four (4) days after deposit in the United States Post
Office, by registered or certified mail with postage and fees prepaid,
addressed to the other party hereto at its address hereinafter shown below its
signature or at such other address as such party may designate by ten (10)
days' advance written notice to the other party hereto.
10. This Agreement shall be governed by the laws of the State of
California and interpreted and determined in accordance with the laws of the
State of California, as such laws are applied by California courts to contracts
made and to be performed entirely in California by residents of that state.
11. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company. No rights under this Agreement shall be
assignable by purchaser, either voluntarily or by operation of law, except
where such assignment is required by law or expressly authorized by the terms
of the Agreement. Subject to the restrictions on transfer herein set forth,
shall be binding upon the Purchaser, Purchaser's heirs, executors,
administrators, successors and assigns.
12. This Agreement constitutes the entire, final and exclusive statement
of the agreement of the parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXX.XXX IGC PARTNERS
Signature: /s/ XXXXXX X. XXXXXX III Signature: /s/ XXXX X. XXXXXXXXX
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By: Xxxxxx X. Xxxxxx III By: Xxxx X. Xxxxxxxxx
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Title: CEO Title: President
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Address: 0000 Xxxxxx Xxxx Address: 0000 Xxxxx Xxxx - Xxxxx 000
Xxxxx Xxxx, XX 00000 Xxx Xxxxxxx, XX 00000
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