EXHIBIT 2.8
STOCK ACQUISITION AGREEMENT
This STOCK ACQUISITION AGREEMENT (the "Agreement"), is made and entered
into as of January 31, 2000, by and among XxxxxXxxxxx.xxx, Corporation ("Buyer")
a Delaware corporation formerly known as Divot Golf Corporation, with its
executive office located at Xxx Xxxxx Xxxxxx Xxxxx Xxxxx 00-X, Xxx Xxxx, XX
00000, XXX, and Xxxxxxxxxx Artist Management LLC, a New York limited liability
company ("Seller"), with its executive office located at 000 Xxxx Xxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxx Xxxx, XX 00000.
RECITALS
--------
I. Seller owns 1,000 shares of common stock of XxxxxxxxxxXxxxxxXxxx.xxx,
Inc. ("WTF"), a Delaware corporation, which constitutes all issued and
outstanding shares of capital stock of WTF (such shares hereinafter
referred to as the "WTF Stock"); and
II. Seller desires to exchange its WTF stock for shares of the Buyer's
common stock in a tax free transaction in accordance with the terms and
subject to the conditions set forth in this Agreement (the
"Acquisition").
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants, promises, representations and warranties set forth herein, and for
other good and valuable consideration, intending to be legally bound hereby, the
parties agree as follows:
SECTION 1. PURCHASE AND SALE OF SECURITIES
------------------------------------------
1.1 Acquisition of Stock: Subject to the terms and conditions hereof, at
--------------------
the Closing (as hereinafter defined), Seller will transfer to Buyer,
and Buyer will receive from Seller, all right, title and interest of
Seller in the WTF Stock.
1.2 Consideration: The aggregate acquisition consideration (the
-------------
"Acquisition Consideration") for the WTF stock shall be a number of
shares of Buyer's common stock, .001 par value, equivalent to ten
percent (10%) of the issued and outstanding shares of Buyer on a fully
diluted basis (calculated as of the Closing Date) and rounded to the
nearest whole share, to be issued to Seller at the Closing (the "Buyer
Stock").
1.3 The Closing: The closing of the Acquisition (the "Closing") will take
-----------
place as promptly as practicable, but no later than five (5) business
days following satisfaction or waiver of the conditions set forth in
Article 6, at the offices of Buyer located at Xxx Xxxxx Xxxxxx Xxxxx,
Xxxxx 00-X, Xxx Xxxx, Xxx Xxxx 00000, unless another place or time is
agreed to by the parties. The date upon which the Closing actually
occurs is herein referred to as the "Closing Date". On the Closing
Date, the parties hereto shall cause the Acquisition to be consummated
in accordance with the relevant provisions of applicable law. The
parties currently intend that the Closing Date will occur on or prior
to January 28, 2000.
(a) Procedure at the Closing: At the Closing, the parties agree
------------------------
that the following shall occur:
(i) The parties shall have satisfied each of the
conditions set forth in Sections 5 and 6, and shall
deliver any and all documents required by such
Sections, unless such delivery is waived.
(ii) Seller will assign and transfer to Buyer all of
Seller's right, title, and interest in and to the WTF
Stock by delivering to Seller a certificate or
certificates representing the WTF Stock, in genuine
and unaltered form, duly endorsed in blank or
accompanied by duly executed stock powers endorsed in
blank, with requisite stock transfer tax stamps, if
any, attached.
(iii) Buyer shall execute, provide and deliver to Seller a
certificate or certificates representing the Buyer
Stock, in genuine and unaltered form, duly endorsed
in blank or accompanied by duly executed stock powers
endorsed in blank, with requisite stock transfer
stamps, if any, attached.
1.4 Taking of Necessary Action; Further Action: If, at any time after the
------------------------------------------
Closing, any such further action is necessary or desirable to carry out
the purposes of this Agreement and to vest Buyer with full right, title
and possession to the WTF Stock, or to vest Seller with full right,
title, and possession to the Buyer Stock, the officers and directors of
both Buyer and Seller are fully authorized in the name of their
respective corporations or otherwise to take, and will take, all such
lawful and necessary action.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SELLER
---------------------------------------------------
Seller hereby represents and warrants to Buyer as follows:
2.1 Organization, Standing, and Power: Seller is a limited liability
---------------------------------
company duly organized, validly existing, and in good standing under
the laws of the State of New York.
(a) WTF is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware; has all
requisite corporate power to own, lease, and operate its
properties and to carry on its business as currently being
conducted; is duly qualified to do business and is in good
standing in each jurisdiction in which the failure to be so
qualified and in good standing would have a material adverse
effect on the business, assets (including intangible assets),
properties, liabilities (contingent or otherwise), financial
condition, or operations (a "Material Adverse Effect") of WTF;
and WTF does not directly or indirectly own any equity or
similar interest in, or any interest convertible or
exchangeable or exercisable for any equity or similar interest
in, any corporation, partnership, joint venture, or other
business association or entity. WTF is not in violation of any
of the provisions of its Certificate of Incorporation or
Bylaws.
2.2 WTF Capital Structure: The authorized capital stock of WTF consists of
---------------------
One Thousand (1,000) shares of WTF Common Stock, $1.00 par value, of
which Five Hundred (500) shares are issued and outstanding and are held
of record by Seller. All outstanding shares
2
of WTF Stock have been duly authorized and validly issued, are fully
paid and nonassessable, and are subject to no preemptive rights or
rights of first refusal created by statute, the Certificate of
Incorporation, or Bylaws of WTF or any agreement to which WTF is a
party or by which it is bound. Seller owns all of the issued and
outstanding capital stock of WTF free and clear of any mortgage,
pledge, assessment, security interest, lease, lien, adverse claim,
levy, charge, or other encumbrance of any kind, or any contract or
agreement to grant any of the foregoing ("Liens"). The delivery of a
certificate or certificates at the Closing representing the WTF Stock
will transfer to Buyer good and valid title to the WTF Stock, free and
clear of all Liens.
(a) There are (i) no equity securities of any class of WTF or any
securities exchangeable into or exercisable for such equity
securities issued, reserved for issuance, or outstanding and
(ii) no outstanding subscriptions, options, warrants, puts,
calls, rights, or other commitments or agreements of any
character to which WTF is a party or by which it is bound
obligating WTF to issue, deliver, sell, repurchase, or redeem,
or cause to be issued, delivered, sold, repurchased, or
redeemed, any equity securities of WTF or obligating WTF to
grant, extend, accelerate the vesting of, change the price of,
or otherwise amend or enter into any such option, warrant,
call, right, commitment, or agreement.
2.3 Authority: Seller has all requisite corporate power and authority to
---------
enter into this Agreement and the other documents required to be
executed and delivered by Seller hereunder (collectively, the "Seller
Transaction Documents") and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement and
the other Seller Transaction Documents and the consummation of the
transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action on the part of Seller. This Agreement
and the other Seller Transaction Documents have been duly executed and
delivered by Seller and constitute the valid and binding obligations of
Seller, enforceable against Seller in accordance with their terms,
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to creditors'
rights generally, and general principles of equity.
(a) The execution and delivery by Seller of this Agreement and the
other Seller Transaction Documents do not, and the
consummation of the transactions contemplated hereby and
thereby will not: (i) conflict with, or result in any
violation or breach of any provision of the Certificate of
Formation or Operating Agreement of Seller, or the Certificate
of Incorporation or Bylaws of WTF, (ii) result in any
violation or breach of, or constitute (with or without notice
or lapse of time, or both) a default under, or give rise to a
right of termination, cancellation, or acceleration of any
material obligation or loss of any benefit under any note,
mortgage, indenture, lease, contract, or other agreement or
obligation to which Seller or WTF is a party or by which
Seller or WTF or any of their properties or assets may be
bound; (iii) conflict with or violate any permit, concession,
franchise, license, judgment, order, decree, statute, law,
ordinance, rule, or regulation applicable to Seller or WTF or
any of their properties or assets; or (iv) require Seller or
WTF to obtain any consent, approval, or action of, make any
filing with or give any notice to any entity or person
3
as a result or under the terms of any contract or agreement to
which Seller or WTF is a party or by which their properties or
assets are bound, except in the case of (ii) and (iii) for
such violations, breaches, defaults, rights, or conflicts
which would not be reasonably likely to have a Material
Adverse Effect on WTF or materially affect the ability of
Seller to consummate the transactions contemplated by this
Agreement in accordance with its terms, and, except in the
case of (iv) for such consents, approvals or actions which, if
not obtained or made, would not be reasonably likely to have a
Material Adverse Effect on WTF or materially adversely affect
the ability of Seller to consummate the transactions
contemplated by this Agreement in accordance with its terms.
(b) No consent, approval, order, or authorization of, or
registration, declaration, or filing with, any governmental
entity is required by Seller or WTF in connection with the
execution and delivery of this Agreement or the other Seller
Transaction Documents or the consummation of the transactions
contemplated hereby or thereby except for such consents,
authorizations, filings, approvals, and registrations which,
if not obtained or made, would not be reasonably likely to
have a Material Adverse Effect on WTF or materially adversely
affect the ability of Seller to consummate the transactions
contemplated by this Agreement in accordance with its terms.
2.4 Absence of Undisclosed Liabilities: WTF was formed on January 14, 2000,
----------------------------------
and does not have any liabilities, either accrued or contingent, and
whether due or to become due.
2.5 Absence of Certain Changes or Events: Since the date of its formation,
------------------------------------
WTF has conducted its business in the ordinary course and in a manner
consistent with past practices, and has not suffered any event or
occurrence that has had or could reasonably be expected to have a
Material Adverse Effect on WTF;
2.6 Taxes: Any and all federal, state and other tax returns and reports
-----
required to be filed by WTF have been duly filed and all taxes and
other assessments and levies (including all interest and penalties)
which may be owed by WTF as of the date of this Agreement have been
paid in full.
2.7 Intellectual Property: WTF owns, or is licensed or otherwise possesses
---------------------
legally enforceable rights to use, all patents, trademarks, trade
names, service marks, and copyrights, and any applications for and
registrations of such Intellectual Property, and all processes,
formulae, methods, schematics, technology, know-how, computer software
programs or applications, and tangible or intangible proprietary
information or materials that are necessary to conduct the business of
WTF as currently conducted.
2.8 Contracts: WTF is a party to a binding agreement with the Seller that
---------
provides an exclusive license for the electronic distribution via the
Internet of certain travel related information (the "License
Agreement"), a true and accurate copy of which is attached hereto as
Exhibit "A" and by this reference incorporated herein. WTF is not a
party or subject to any other binding agreements, obligations, or
commitments, written or oral:
4
(a) that call for any fixed and/or contingent payment or
expenditure or any related series of fixed an/or contingent
payments or expenditures by or to WTF totaling more than
$25,000.00 in any calendar year;
(b) with agents, advisors, salesmen, representatives, contractors,
or consultants that are not cancelable by it on no more than
thirty (30) days notice and without liability, penalty, or
premium;
(c) that restricts WTF from carrying on anywhere in the world its
business or any portion thereof as currently conducted;
(d) to provide funds to or to make any investment in any other
person or entity (in the form of a loan, capital contribution,
or otherwise);
(e) with respect to obligations as guarantor, surety, co-signer,
endorser, co-maker, indemnitor, or otherwise in respect of the
obligation of any other person or entity;
(f) for any line of credit, standby financing, revolving credit,
or other similar financial arrangement;
(g) with any distributor, original equipment manufacturer, value
added remarketer or other person for the distribution of any
WTF products.
WTF is not in material default under or in material breach or violation
of, nor is there any valid basis for any claim of material default by
WTF under, or material breach or violation by WTF of, any contract,
commitment, or restriction to which WTF is a party or by which WTF or
any of its properties or assets is bound (including the License
Agreement). To WTF's or Seller's knowledge, no other party is in
material default under or in material breach or violation of, nor is
there any valid basis for any claim of material default by any other
party under any contract, commitment, or restriction to which WTF is a
party or by which WTF or any of its properties or assets is bound.
2.9 Compliance with Laws: WTF has complied in all material respects with,
--------------------
is not in material violation of, and has not received any notices of
violation with respect to, any statute, law, or regulation applicable
to the ownership or operation of its business.
2.10 Litigation: There is no action, suit, proceeding, claim, arbitration,
----------
or investigation pending before any agency, court, or tribunal, or, to
Seller's and WTF's knowledge, threatened against WTF or any of its
properties or officers or directors (in their capacities as such).
There is no judgment, decree, or order against WTF or, to Seller's or
WTF's knowledge, any of its directors or officers (in their capacities
as such) that could prevent, enjoin, or materially alter or delay any
of the transactions contemplated by this Agreement, or that could
reasonably be expected to have a Material Adverse Effect on WTF.
2.11 Restrictions on Business: There is no agreement, judgment, injunction,
------------------------
order, or decree binding upon WTF which has or could reasonably be
expected to have the effect of
5
prohibiting or materially impairing any current business practice of
WTF or the conduct of its business as currently conducted.
2.12 Governmental Authorization: WTF has obtained each governmental consent,
--------------------------
license, permit, grant, or other authorization of a governmental entity
that is required for the operation of the business of WTF as currently
conducted except for those which, if not obtained, would not be
reasonably likely to have a Material Adverse Effect on WTF.
2.13 Broker's and Finder's Fees: Seller has not incurred, nor will it incur,
--------------------------
directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
2.14 Investment Representations:
--------------------------
(a) The Buyer Stock is being acquired for Seller's own account,
for investment and not with a view to, or for resale in
connection with, any distribution or public offering thereof
within the meaning of the Securities Act of 1933, as amended,
or other applicable securities laws.
(b) Seller is an "Accredited Investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act
of 1933, as amended.
(c) Seller shall abide by the lockup provisions concerning the
Buyer Stock set forth in Section 3.4(b) of this Agreement.
2.15 No Misrepresentation: No representation or warranty by Seller in this
--------------------
Agreement, and no written statement, certificate, or schedule furnished
or to be furnished by or on behalf of Seller pursuant to this
Agreement, when taken together, contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary in order to make such statements, in light of the
circumstances under which they were made, not misleading.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BUYER
--------------------------------------------------
Buyer represents and warrants to Seller as follows:
3.1 Organization, Standing, and Power: Buyer is a corporation duly
---------------------------------
organized and validly existing under the laws of the State of Delaware.
Buyer has the corporate power to own its properties and to carry on its
business as now being conducted.
3.2 Authority: Buyer has all requisite corporate power and authority to
---------
enter into this Agreement and the other documents required to be
executed and delivered by Buyer hereunder (collectively, the "Buyer
Transaction Documents") and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement and
the other Buyer Transaction Documents and the consummation of the
6
transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action on the part of Buyer. This Agreement
and the other Buyer Transaction Documents to which they are parties
have been duly executed an delivered by Buyer and constitute the valid
and binding obligations of Buyer, enforceable against Buyer in
accordance with their terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, moratorium, or other similar
laws and other similar laws affecting creditors' rights generally, and
(ii) general principles of equity.
(a) The execution and delivery by Buyer of this Agreement and the
other Buyer Transaction Documents do not, and the consummation
of the transactions contemplated hereby and thereby will not:
(i) conflict with, or result in any violation or breach of any
provision of the Certificate or Articles of Incorporation or
Bylaws of Buyer, (ii) result in any violation or breach of, or
constitute (with or without notice or lapse of time, or both)
a default under, or give rise to a right of termination,
cancellation, or acceleration of any material obligation or
loss of any benefit under any note, mortgage, indenture,
lease, contract, or other agreement or obligation to which
Buyer is a party or by which Buyer or any of its properties or
assets may be bound; (iii) conflict with or violate any
permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule, or regulation
applicable to Buyer or any of its properties or assets; or
(iv) require Buyer to obtain any consent, approval, or action
of, make any filing with, or give any notice to any entity or
person as a result or under the terms of any contract or
agreement to which Buyer is a party or by which their
properties or assets are bound, except in the case of (ii) and
(iii) for such violations, breaches, defaults, rights, or
conflicts which would not be reasonably likely to have a
Material Adverse Effect on Buyer and its parents and
subsidiaries, taken as a whole, or materially affect the
ability of Buyer to consummate the transactions contemplated
by this Agreement in accordance with its terms.
(b) No consent, approval, order, or authorization of, or
registration, declaration, or filing with, any Governmental
Entity (as defined in Section 8.2) is required by Buyer in
connection with the execution and delivery of this Agreement
or the other Buyer Transaction Documents or the consummation
of the transactions contemplated hereby or thereby except for
such consents, authorizations, filings, approvals, and
registrations which, if not obtained or made, would not be
reasonably likely to have a Material Adverse Effect on Buyer
or materially adversely affect the ability of Buyer to
consummate the transactions contemplated by this Agreement in
accordance with its terms.
3.3 Investment Representations:
--------------------------
(d) The WTF Stock is being acquired for Buyer's own account, for
investment and not with a view to, or for resale in connection
with, any distribution or public offering thereof within the
meaning of the Securities Act of 1933, as amended, or other
applicable securities laws.
(e) Buyer is an "Accredited Investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act
of 1933, as amended.
7
3.4 The Buyer Stock: The Buyer Stock to be issued in accordance with the
---------------
terms and provisions of this Agreement will be duly authorized, validly
issued, fully paid, and non-assessable.
(a) Registration: As soon as practicable (but in no event later
------------
than sixty (60) days following the Closing, Buyer shall
prepare and file with the Securities and Exchange Commission
("SEC") a form SB-2, registering 100% of the Buyer Stock
issued to Seller in accordance with this Agreement, and Buyer
shall use its best efforts to have such Registration Statement
declared effective by the SEC within ninety (90) days
following the Closing. Following the effective registration of
the Buyer Stock, such shares shall be freely tradable under
the federal securities laws and any applicable state "blue
sky" laws, and shall not be "restricted securities" as defined
in Rule 144 of the Securities Act of 1933 ("Rule 144").
3.5 Brokers' and Finders' Fees: Buyer has not incurred, nor will it incur,
--------------------------
directly or indirectly, any liability for brokerage or finders' fees or
agent's commissions or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
SECTION 4. ADDITIONAL AGREEMENTS
--------------------------------
4.1 Limitation on Trading/Staggered Lockup. In consideration for Buyer
--------------------------------------
performing its obligation to register the Buyer Stock issued to Seller
pursuant to this Agreement, the Seller hereby agrees not to sell, make
any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of ("Trade") such Buyer Stock or other securities
exercisable or exchangeable for, or convertible into, Buyer Stock,
except as follows:
(i) The Buyer Stock shall be subject to a "Staggered lockup," such
that the Seller may only Trade up to twenty five percent (25%)
of the aggregate amount of its initially issued registered
Buyer Stock at the following times: (1) immediately following
the effective date of Registration; (2) ninety (90) days
following the effective date of Registration; (3) one hundred
eighty (180) days following the effective date of
Registration; and (4) any amount of Buyer Stock two hundred
seventy (270) days following the effective date of
Registration; and
(ii) In accordance with such other limitations as may be imposed
upon the shares by applicable governmental regulations.
4.2 Confidentiality: "Confidential Information" as used in this Agreement
---------------
shall mean any information, not generally known in the trade or
industry, which was obtained from the parties to this Agreement, or
which was learned, discovered, developed, conceived, originated, or
prepared during or as a result of any performance hereunder and which
falls within the following general categories: (i) information relating
to trade secrets of the parties; (ii)information relating to existing
or contemplated products, services, technology, designs, computer
systems, computer software and research, or developments of the
parties; (iii) information relating to business plans, sales or
8
marketing methods, methods of doing business, customer lists, customer
usages and/or requirements, names of sales representatives, and
supplier information of the parties; (iv) information relating to
proprietary computer software not generally known to the public; and
(v) any other confidential information that the parties may wish to
protect by patent, copyright, or by keeping such information secret and
confidential.
(a) The party which receives confidential information from the
other party agrees to maintain such information in secrecy at
all times, and to take reasonable steps, including such steps
as it takes to protect its own proprietary information, prior
to and (if applicable) after termination of this Agreement, to
prevent the duplication or disclosure of any such confidential
and proprietary information, other than by or to its own
employees or agents who must have access to such information
to perform such party's obligations hereunder. Information of
either party shall not be subject to the obligations imposed
by this Section if such information is publicly available or
is lawfully obtained by the disclosing party from another
source free of restrictions or is independently developed by
the disclosing party.
4.2 Expenses: Regardless of whether the transaction provided for herein is
--------
consummated, all fees and expenses incurred in connection with such
share exchange including, without limitation, all legal, accounting,
financial advisory, consulting and all other fees and expenses of third
parties incurred by a party in connection with the negotiation and
effectuation of the terms and conditions of this Agreement and the
transactions contemplated hereby, shall be the obligation of the
respective party incurring such fees and expenses.
4.3 Public Disclosure: Following the execution of this Agreement, the
-----------------
parties shall agree to the text of the initial public disclosure to be
made concerning the transaction discussed in this Agreement. The
parties shall further agree on the timing and nature of such
disclosure. No disclosure (whether or not in response to an inquiry) of
the existence or nature of this Agreement shall be made by any party
hereto unless approved in writing by duly authorized officers of all
parties prior to release, provided that such approval shall not be
unreasonably withheld and subject in any event to Buyer's parent's
obligation to comply with applicable securities laws and stock market
regulations.
4.4 Reasonable Efforts: Subject to the terms and conditions provided in
------------------
this Agreement, each of the parties hereto shall use its reasonable
efforts to take promptly, or cause to be taken, all actions, and to do
promptly, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated hereby to obtain all necessary
waivers, consents and approvals and to effect all necessary
registrations and filings and to remove any injunctions or other
impediments or delays, legal or otherwise, in order to consummate and
make effective the transactions contemplated by this Agreement for the
purpose of securing to the parties hereto the benefits contemplated by
this Agreement.
4.5 Notification of Certain Matters: Seller shall give prompt notice to
-------------------------------
Buyer, and Buyer shall give prompt notice to Seller, of (a) the
occurrence or non-occurrence of any event, the occurrence or
non-occurrence of which is likely to cause any representation or
warranty
9
of any party, respectively, contained in this Agreement to be untrue or
inaccurate in any material respect at or prior to the Closing except as
contemplated by this Agreement, and (b) any failure of Seller or Buyer,
as the case may be, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this
Section 4.5 shall not limit or otherwise affect any remedies available
to the party receiving such notice.
4.6 Taxes: The parties understand and agree that the transaction
-----
contemplated hereby is intended to be a tax-free exchange of shares as
described in the Internal Revenue Code.
SECTION 5. CONDITIONS TO THE CLOSING
------------------------------------
5.1 Conditions to Obligations of Each Party: The respective obligations of
---------------------------------------
each party to this Agreement to effect the transactions provided for
herein shall be subject to the satisfaction at or prior to the Closing
of the following conditions:
(a) Director and/or Stockholder Approval: Director and/or
------------------------------------
Stockholder approval shall have been obtained;
(b) No Injunctions or Restraints; Illegality: No temporary
----------------------------------------
restraining order, preliminary or permanent injunction, or
other order issued by any court of competent jurisdiction or
other legal or regulatory restraint or prohibition preventing
the consummation of the transactions provided for herein shall
be in effect;
(c) Regulatory Approvals and Third Party Consents: All
---------------------------------------------
governmental and third party consents, orders and approvals
legally required for the consummation of the transactions
provided for herein shall have been obtained and be in effect
as of the Closing;
5.2 Additional Conditions to the Obligations of Buyer: The obligations of
-------------------------------------------------
Buyer to effect the transactions provided for herein are subject to the
satisfaction of each of the following additional conditions, any of
which may be waived in writing exclusively by Buyer:
(a) The representations and warranties of Seller set forth in this
Agreement shall be true and correct in all material respects
as of the date of this Agreement and (except to the extent
such representations and warranties speak as of an earlier
date) as of the Closing Date, except for changes contemplated
by this Agreement and except in all cases for such breaches
of, inaccuracies in or omissions from such representations and
warranties that do not have a Material Adverse Effect.
(b) Seller shall have performed in all material respects all
obligations required to be performed by it under this
Agreement at or prior to the Closing Date.
(c) The exclusive license granted to WTF by Seller shall be in
full force and effect in accordance with its terms as of the
Closing Date.
10
5.3 Additional Conditions to the Obligations of Seller: The obligations of
--------------------------------------------------
Seller to effect the transactions provided for herein are subject to
the satisfaction of each of the following additional conditions, any of
which may be waived in writing exclusively by Seller:
(a) The representations and warranties of Buyer set forth in this
Agreement shall be true and correct in all material respects
as of the date of this Agreement and (except to the extent
such representations and warranties speak as of an earlier
date) as of the Closing Date, except for changes contemplated
by this Agreement and except in all cases for such breaches
of, inaccuracies in or omissions from such representations and
warranties that do not have a Material Adverse Effect.
(b) Buyer shall have performed in all material respects all
obligations required to be performed by it under this
Agreement at or prior to the Closing Date.
SECTION 6. TERMINATION, AMENDMENT, AND WAIVER
---------------------------------------------
6.1 Termination: This Agreement may be terminated and the transaction
-----------
abandoned at any time prior to the Closing:
(a) By mutual consent of the parties;
(b) By either party if: (i) the Closing has not occurred by
February 15, 2000 (provided that the right to terminate this
Agreement under this clause 6.1(b)(i) shall not be available
to any party whose willful failure to fulfill any obligation
hereunder has been the cause of, or resulted in, the failure
of the Closing to occur on or before such date); (ii) there
shall be a final non-appealable order of a federal or state
court in effect preventing consummation of the transactions
provided for herein; or (iii) there shall be any statute,
rule, regulation or order enacted, promulgated or issued or
deemed applicable to the transactions provided for herein by
any governmental entity that would make consummation of the
transactions provided for herein illegal;
(c) By either party if there shall be any action taken, or any
statute, rule, regulation or order enacted, promulgated or
issued or deemed applicable to the transactions provided for
herein by any governmental entity, which would: (i) prohibit
Buyer's ownership of the WTF Stock; (ii) prohibit Seller's
ownership of the Buyer Stock; or (iii) compel Buyer to dispose
of or hold separate, as a result of the Acquisition, any
material portion of the business or assets of WTF.
Where action is taken to terminate this Agreement pursuant to this
Section 6.1, it shall be sufficient for such action to be authorized by
the Board of Directors (as applicable) of the party taking such action.
6.2 Effect of Termination: In the event of termination of this Agreement as
---------------------
provided in Section 6.1, this Agreement shall forthwith become void and
there shall be no liability or obligation on the part of either party
or their respective officers, directors or stockholders,
11
provided that each party shall remain liable for any breaches of this
Agreement prior to its termination.
6.4 Amendment: Except as is otherwise required by applicable law, this
---------
Agreement may be amended by the parties hereto at any time only by
execution of an instrument in writing signed on behalf of each of the
parties hereto.
6.5 Extension; Waiver: At any time prior to the Closing, either party may,
-----------------
to the extent legally allowed, (a) extend the time for the performance
of any of the obligations of the other party hereto, (b) waive any
inaccuracies in the representations and warranties made to such party
contained herein or in any document delivered pursuant hereto, and (c)
waive compliance with any of the agreements or conditions for the
benefit of such party contained herein. Any agreement on the part of a
party hereto to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party. The
failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right of such party at a
later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term in
this Agreement in one or more instances shall be deemed to be or
construed as a further or continuing waiver of such condition or breach
or a waiver of any other condition or of the breach of any other term
of this Agreement.
SECTION 7. INDEMNIFICATION
--------------------------
7.1 Survival of Representations and Warranties: All of the representations
------------------------------------------
and warranties of Seller and Buyer contained in this Agreement shall
survive the Closing Date for a period of twelve (12) months after which
they shall expire and be of no further force or effect.
7.2 Seller's Indemnification: Seller hereby agrees to indemnify and hold
------------------------
harmless Buyer, including its affiliates, subsidiaries, successors,
assigns, officers, directors, agents, and employees, from and against
any and all liabilities, damages, losses, expenses, claims, demands,
suits, fines, or judgments (including, but not limited to, attorneys'
fees, expert witness costs, court costs, and expenses) that may at any
time be threatened against, suffered by, accrued against, charged to,
or recoverable from Buyer in any forum, by reason of:
(a) The breach in any material respect of any representation or
warranty of Seller contained in or made pursuant to this
Agreement;
(b) A material breach in any covenant or agreement of Seller
contained in this Agreement;
7.3 Buyer's Indemnification: Buyer hereby agrees to indemnify and hold
-----------------------
harmless Seller, including its affiliates, subsidiaries, successors,
assigns, officers, directors, agents, and employees, from and against
any and all liabilities, damages, losses, expenses, claims, demands,
suits, fines, or judgments (including, but not limited to, attorneys'
fees, expert witness costs, court costs, and expenses) that may at any
time be threatened against,
12
suffered by, accrued against, charged to, or recoverable from Seller in
any forum, by reason of:
(a) The breach in any material respect of any representation or
warranty of Buyer contained in or made pursuant to this
Agreement;
(b) A material breach in any covenant or agreement of Buyer
contained in this Agreement;
SECTION 8. GENERAL PROVISIONS
------------------------------
8.1 Non-Survival of Representations and Warranties: Except as explicitly
----------------------------------------------
set forth in this Agreement, the representations and warranties set
forth in this Agreement shall not survive beyond the Closing.
8.2 Notices: All notices and other communications hereunder shall be in
-------
writing, shall be effective when received, and shall in any event be
deemed to have been received (a) when delivered, if delivered
personally or by commercial delivery service, (b) three (3) business
days after deposit with U.S. Mail, if mailed by registered or certified
mail (return receipt requested), (c) one (1) business day after the
business day of deposit with Federal Express or similar nationally
recognized overnight courier for next day delivery (or, two (2)
business days after such deposit if deposited for second business day
delivery), if delivered by such means, or (d) one (1) business day
after delivery by facsimile transmission with copy by U.S. Mail, if
sent via facsimile plus mail copy (with acknowledgment of complete
transmission), to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
if to Buyer, to:
XxxxxXxxxxx.xxx, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, Xx. 00-X
Xxx Xxxx XX 00000
Attention: Xxxxxx Xxxxxxx, Chairman & CEO
if to Seller, to:
Wilhelmina Artist Management, LLC
000 Xxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx, Managing Member
8.3 Interpretation: The words "include," "includes" and "including" when
-------------- ------- -------- ---------
used herein shall be deemed in each case to be followed by the words
"without limitation." The word "agreement" when used herein shall be
------------------ ---------
deemed in each case to mean any contract, commitment or other
agreement, whether oral or written, that is legally binding. The
13
table of contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When reference is made herein to "the
business of" an entity, such reference shall be deemed to include the
business of all direct and indirect subsidiaries of such entity.
Reference to the subsidiaries of an entity shall be deemed to include
all direct and indirect subsidiaries of such entity.
8.4 Counterparts: This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other party, it
being understood that all parties need not sign the same counterpart.
Execution of this Agreement via facsimile shall have the same force of
authority as an original signature.
8.5 Entire Agreement: This Agreement, the schedules and Exhibits hereto,
----------------
and the documents and instruments and other agreements among the
parties hereto referenced herein: (a) constitute the entire agreement
among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof; and
(b) are not intended to confer upon any other person any rights or
remedies hereunder.
8.6 Severability: In the event that any provision of this Agreement or the
------------
application thereof becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the
application of such provision to other persons or circumstances will be
interpreted in such a manner so as reasonably to effect the intent of
the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the greatest extent possible, the
economic, business and other purposes of such void or unenforceable
provision.
8.7 Other Remedies: Except as otherwise provided herein, any and all
--------------
remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any
one remedy will not preclude the exercise of any other remedy.
8.8 Specific Performance: The parties hereto agree that irreparable damage
--------------------
would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof
in any court of the United States or any state having jurisdiction,
this remedy being in addition to any other remedy to which they are
entitled at law or in equity.
8.9 Governing Law: This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York, regardless of the
conflicts of law principles thereof. Each of the parties hereto
consents to the exclusive jurisdiction of the courts of the State
14
of New York, and any federal court sitting in the Southern District of
the State of New York, and that process may be served upon them in any
manner authorized by the laws of the State of New York for such persons
and waives and covenants not to assert or plead any objection which
they might otherwise have to the laying of venue in such jurisdiction
and such process.
8.10 Assignment: No party may assign either this Agreement or any of its
----------
rights, interests, or obligations hereunder without the prior written
approval of the other parties hereto. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
permitted assigns.
8.11 Absence of Third Party Beneficiary Rights: No provisions of this
-----------------------------------------
Agreement are intended, nor shall be interpreted, to provide or create
any third party beneficiary rights or any other rights of any kind in
any client, customer, affiliate, partner of any party hereto or any
other person or entity unless specifically provided otherwise herein.
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement
to be signed by their duly authorized respective officers, as of the date first
written above.
XXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
Chairman and CEO
WILHELMINA ARTIST MANAGEMENT, LLC
By: /s/ X. Xxxx
-----------------------------------------
Print: Xxxxxx Xxxx
-------------------------------------
Title: President
-------------------------------------
15
