EXHIBIT 10.7
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
XXXXXX XXXXXXXXX AND CAPCO ENERGY, INC.
December 31, 2000
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, is made as of December 31, 2000 between
Xxxxxx Xxxxxxxxx, ("Purchaser") and Capco Energy, Inc., a Colorado corporation
("Seller").
WHEREAS, Capco Energy, Inc. is a company which owns 80,000 shares
of the common stock of Zelcom Industries, Inc. (the "Subsidiary or Zelcom");
WHEREAS, Purchaser desires to acquire and Seller desires to sell 45,000
shares of the common stock of the subsidiary (the "Stock") in exchange for the
consideration and upon the terms described herein (the "Purchase"); and
WHEREAS, The Sellers interest of 35% (thirty-five percent) in Zelcom
shall be non-dilutive unless Zelcom raises additional equity funding. In this
event the Seller shall be provided a 30 day prorate option to participate in the
equity offering on the same terms offered to any other party; and
WHEREAS, Purchaser and Seller desire to make certain representations,
warranties, covenants and agreements in connection with the purchase;
NOW THEREFORE, in consideration of the mutual promises, covenants,
provisions and representations contained herein, the parties hereto agree as
follows:
ARTICLE I
THE PURCHASE
1.1 Sale and Delivery of Stock. Subject to all the terms and conditions
of this Agreement, Seller shall sell, transfer, convey, assign and deliver to
Purchaser at the Closing (as defined in paragraph 1.3 hereof) and Purchaser
shall purchase, acquire and accept from the Seller the Stock.
1.2 Effective Date and Closing. The effective date (the "Effective
Date") of this transaction shall be December 31, 2000.
1.3 Purchase Price. Subject to all of the terms and conditions set forth
in the Agreement and in reliance on the representations, warranties and
covenants hereinafter set forth, Purchaser shall deliver to Seller 350,000
shares of Capco Energy, Inc. common stock (hereinafter referred to as the
"Purchase Price").
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ARTICLE II
REPRESENTATIONS OF SELLER
As an inducement to Purchaser to enter into this Agreement, Seller
represents and warrants to Purchaser as of the Closing the following:
2.1 Organization. The Seller is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation, has all necessary corporate powers to own properties and to carry
on its business as now owned and operated by it, and is duly qualified to do
business and is in good standing in each of the states where its business
requires qualification. To the best of Seller's knowledge and belief, each of
the Subsidiaries is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation, has all
necessary corporate powers to own properties and to carry on its business as now
owned and operated by it, and is duly qualified to do business and is in good
standing in each of the states where its business requires qualification.
2.2 Authority. The execution of this Agreement and the consummation of
the transactions contemplated herein have been authorized by the directors of
Seller and the officers and directors of its Subsidiaries and Seller has the
full power and authority to execute, deliver and perform this Agreement and this
Agreement is a legal, valid and binding obligation of the Seller, and is
enforceable in accordance with its terms and conditions, except as
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
moratorium or other laws generally effecting the rights of creditors and general
principles of equity.
2.3 Ability to Carry Out Obligations. The execution and delivery of this
Agreement by Seller and the performance by Seller of its obligations hereunder
will not cause, constitute, or conflict with or result in (a) any breach or
violation of any of the provisions of or constitute a default under any license,
indenture, mortgage, charter, instrument, certificate of incorporation, bylaw,
or other agreement or instrument to which Seller is a party, or by which it may
be bound, nor will any consents or authorizations of any party other than those
hereto be required, (b) an event that would permit any party to any agreement or
instrument to terminate it or to accelerate the maturity of any indebtedness or
other obligation of Seller, or (c) an event that would result in the creation or
imposition of any lien, charge, or encumbrance on any asset of Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement, the Purchaser
represents and warrants to the Seller as of the date hereof and as of the
Closing the following:
3.1 Organization. Purchaser is a corporation duly organized, validly
existing, and in good standing, has all necessary corporate powers to own
securities and to carry on its business as now owned and operated by it, and is
duly qualified to do business and is in good standing in each of the states
where its business requires qualification.
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3.2 Authority. The Board of Directors of Purchaser has authorized the
execution of this Agreement and the transactions contemplated herein, and
Purchaser has full power and authority to execute, deliver and perform this
Agreement and this Agreement is the legal, valid and binding obligation of
Purchaser, and is enforceable in accordance with its terms and conditions,
except as enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, moratorium or other laws generally effecting the rights of creditors
and general principles of equity.
3.3 Ability to Carry Out Obligations. The execution and delivery of this
Agreement by Purchaser and the performance by Purchaser of its obligations
hereunder will not cause, constitute, or conflict with or result in (a) any
breach or violation of any of the provisions of or constitute a default under
any license, indenture, mortgage, charter, instrument, certificate of
incorporation, bylaw, or other agreement or instrument to which Purchaser is a
party, or by which it may be bound, nor will any consents or authorizations of
any party other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of Purchaser, or (c) an event
that would result in the creation or imposition of any lien, charge, or
encumbrance on any asset of Purchaser.
ARTICLE IV
COVENANTS
4.1 Release of Guaranties. Purchaser shall have released Seller of all
obligations, contingent or otherwise, relating to or in any way connected to or
with the Brokerage.
ARTICLE V
MISCELLANEOUS
5.1 Captions and Headings. The Articles and paragraph/section headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit or add to the meaning of any provisions of
this Agreement.
5.2 No Oral Change. This Agreement and any provision hereof, may not be
waived, changed, modified or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
5.3 Waiver. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants, or conditions of
this Agreement to exercise any option herein contained shall not be construed as
a waiver or relinquishment for the future of any such provisions, covenants, or
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conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a covenant,
condition, or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver with respect to any other subsequent breach.
5.4 Entire Agreement. This Agreement contains the entire Agreement and
understandings between the parties hereto, and supersedes all prior agreements
and understandings with respect to the subject matter hereof.
5.5 Choice of Law, Jurisdiction and Venue. This Agreement and the rights
and obligations of the parties hereunder shall be governed by and construed in
accordance with the laws of the State of California without regard to conflict
of laws principles. Any action at law or in equity directly or indirectly in
connection with, related to or in any way connected to this Agreement or any
provisions hereof, shall be litigated exclusively in the state or federal courts
located California. The parties hereto irrevocably waive any rights such party
may otherwise have to transfer or change the venue of any litigation brought or
arising in connection with this Agreement.
5.6 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
5.7 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of receipt if served personally on the party to whom notice is
to be given, by telecopy or telegram, or mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
Purchaser: XXXXXX XXXXXXXXX
00000 Xxxxx Xxx Xxxxx
Xxxxx Xxx, XX 00000
Seller: CAPCO ENERGY, INC.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
5.8 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
5.9 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
5.10 Expenses. Except as specifically provided in this Agreement, all
direct costs and expenses including legal, and any other out-of-pocket expense
incurred by Seller, in connection with this transaction, shall be paid by the
Seller. All costs and expenses including legal, accounting and any other
out-of-pocket expenses incurred by the Purchaser, in connection with this
transaction, shall be paid by the Purchaser.
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5.11 Assignment. This Agreement may not be assigned by operation of law
or otherwise by the Seller or the Purchaser; provided, however, that Purchaser
may assign its rights and obligations to Capco Resources Ltd. or any subsidiary
or affiliate of Purchaser, provided however that such assignment shall not
release the Purchaser of it's obligations hereunder and Purchaser shall
guarantee the obligation of any assignee.
AGREED TO AND ACCEPTED as of the date first above written.
PURCHASER: XXXXXX XXXXXXXXX
/signed/
By:
Title:
SELLER: CAPCO ENERGY, INC.
/signed/
By:
Title:
