EXHIBIT 10.13
STOCK REDEMPTION AGREEMENT
THIS AGREEMENT is made and entered into as of the 15th day of December,
1997, by and among XXXXXX #1, INC., a Georgia corporation (the "CORPORATION");
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XXXXX XXXXXXX, an individual resident of the State of Georgia ("XXXXX XXXXXXX");
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and XXXXXX XXXXXXX, an individual resident of the State of Florida ("SELLER").
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WITNESSETH:
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WHEREAS, Innotrac Corporation ("INNOTRAC"), an affiliate of the
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Corporation, intends to offer a number of its shares of common stock to the
public; and
WHEREAS, in connection with such public offering, the operations of
Innotrac's affiliates, including the Corporation, will be combined with those of
Innotrac pursuant to an Acquisition Agreement, in the form attached hereto as
EXHIBIT A; and
WHEREAS, Xxxxx Xxxxxxx and Seller are among the equity holders of Innotrac
and its affiliates; and
WHEREAS, in connection with the combination of the operations of Innotrac's
affiliates with those of Innotrac, as more fully described in the Acquisition
Agreement (such combination and transactions being referred to herein as the
"CONSOLIDATION TRANSACTION"), the owners of the ownership and equity interests
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have been given the opportunity to become parties to the Acquisition Agreement,
to participate in the Consolidation Transaction, and to receive a number of
shares of the common stock of Innotrac in connection therewith based upon the
relative values of such affiliates and their business; and
WHEREAS, after thorough consideration thereof, Seller has decided not to
participate in the Consolidation Transaction; but rather to enter into this
Agreement and to consummate the transactions contemplated hereby, subject to the
terms and conditions contained herein; and
WHEREAS, Seller is the record and beneficial owner of 10 shares of the no
par value per share common stock of the Corporation (such shares being referred
to herein as the "REDEEMED SHARES");
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WHEREAS, the Corporation, Xxxxx Xxxxxxx and Seller are parties to that
certain Shareholder's Agreement, dated September 22, 1993, as the same may have
been modified or supplemented through the date hereof (the "SHAREHOLDERS
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AGREEMENT"); and
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WHEREAS, upon the terms and subject to the conditions of this Agreement,
Seller desires to sell the Redeemed Shares to the Corporation, and the
Corporation desires to purchase the Redeemed Shares from Seller;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
1. SALE AND REDEMPTION OF REDEEMED SHARES. On the Closing Date and
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subject to the terms and conditions hereof, Seller agrees to sell, convey,
transfer and assign to the Corporation, and the Corporation agrees to purchase,
redeem and take from Seller, all of the Redeemed Shares, free and clear of all
liens, claims, charges and encumbrances.
2. PURCHASE PRICE. The price payable by the Corporation to Seller for the
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Redeemed Shares in accordance with SECTION 3(B) hereof (the "PURCHASE PRICE")
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shall be the sum of (i) $388,000 plus (ii) to the extent that the Closing occurs
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after February 28, 1998, an amount equal to (A) 4.3% multiplied by (B) $388,000
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multiplied by (C) the number of days from February 28, 1998 to the Closing Date
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divided by 360.
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3. CLOSING AND DELIVERY. (a) At the Closing (as hereinafter defined) and
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against delivery of the Purchase Price, Seller shall deliver to the Corporation
certificates evidencing the Redeemed Shares, duly endorsed for transfer or
accompanied by appropriate stock transfer powers duly endorsed in blank, free
and clear of any and all liens, claims, charges and encumbrances.
(b) At the Closing and against delivery of certificates evidencing the
Redeemed Shares, the Corporation shall pay the Purchase Price to Seller by
either (x) transferring by wire transfer such amount in immediately available
funds to a bank account designated by Seller in writing to the Corporation on or
prior to the Closing Date, or (y) delivering to Seller the Corporation's check
payable to Seller in such amount.
(c) The consummation of the transactions contemplated herein is referred to
as the "CLOSING". The Closing shall take place at the offices of Xxxxxxxxxx
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Stockton LLP, 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, at 10:00
a.m., Atlanta time, on the day that the transactions contemplated by the
Acquisition Agreement are closed (the "CLOSING DATE"). Should the transactions
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contemplated by the Acquisition Agreement not close by April 30, 1998, then
either Seller or the Corporation may immediately terminate this Agreement by
written notice to the other.
4. TERMINATION OF SHAREHOLDERS AGREEMENT. Effective at the Closing and
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without any further action on the part of any of the Corporation, Xxxxx Xxxxxxx
or Seller, the Shareholders Agreement shall terminate and be of no further force
and effect. It is understood and agreed that should the Closing not occur, the
Shareholders Agreement will continue in effect in accordance with its terms.
5. REPRESENTATIONS AND WARRANTIES BY SELLER. Seller hereby represents and
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warrants to the Corporation as of the date hereof and as of the Closing Date as
follows:
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(a) Seller has full legal capacity and unrestricted power and authority to
execute and deliver this Agreement and any other document, agreement, instrument
or paper to be delivered by Seller pursuant to or in connection with this
Agreement.
(b) This Agreement has been duly executed and delivered by Seller, and
constitutes the legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, except as the same may be affected
by bankruptcy, insolvency, moratorium and similar laws affecting the rights of
creditors generally.
(c) The execution, delivery and performance of this Agreement do not and
will not (i) result in a violation of any law applicable to Seller, or (ii)
result in a material breach of, conflict with or default under, any term or
provision of any indenture, note, mortgage, bond, security agreement, loan
agreement, guaranty, pledge, or other instrument, contract, agreement or
commitment, to which Seller is a party or by which he or any of his assets and
properties, including, without limitation, the Redeemed Shares, is subject or
bound; nor will such actions result in the creation of any lien, claim, charge
or encumbrance on any of the Redeemed Shares.
(d) Seller is the legal and beneficial and of record owner of the Redeemed
Shares, free and clear of any and all liens, claims, charges or other
encumbrances of any kind or nature whatsoever, other than for those arising
under the Shareholders Agreement. The delivery by Seller of certificates
evidencing the Redeemed Shares, duly endorsed for transfer or accompanied by
stock transfer powers duly endorsed in blank, to the Corporation as described
above, against payment therefor, will transfer valid title to said Redeemed
Shares to the Corporation, free and clear of any and all liens, claims, charges
or other encumbrances of any kind or nature whatsoever. There are no warrants,
calls, commitments or rights of others, however evidenced or created with
respect to any of the Redeemed Shares.
6. REPRESENTATIONS AND WARRANTIES BY THE CORPORATION. The Corporation
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hereby represents and warrants to Seller as of the date hereof and as of the
Closing Date as follows:
(a) The Corporation is a corporation duly organized, validly existing and
in good standing under the laws of the State of Georgia. The Corporation has
full corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder.
(b) The execution and delivery by the Corporation of this Agreement and the
performance by the Corporation of its obligations hereunder have been duly
authorized by all requisite corporate action.
(c) This Agreement has been duly executed and delivered by the Corporation,
and, subject to due execution by Seller, constitutes, the legal, valid and
binding obligations of the Corporation, enforceable against the Corporation in
accordance with the terms hereof, except as the same may be affected by
bankruptcy, insolvency, moratorium and similar laws affecting the rights of
creditors generally.
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7. MISCELLANEOUS. (a) For the convenience of the parties, this Agreement
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may be executed 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.
(b) All notices and deliveries that are required or may be given or
delivered pursuant to the terms of this Agreement shall be in writing and shall
be sufficient in all respects if (i) delivered personally, (ii) mailed by
registered or certified mail, return receipt requested and postage prepaid (in
which case the second business day after the date of mailing shall be deemed the
date of receipt), (iii) sent via a nationally recognized overnight courier
service (in which case the day after delivery to such courier service shall be
deemed the date of receipt), or (iv) sent via facsimile confirmed in writing to
the recipient (in which case the date sent shall be deemed the date of receipt),
in each case to the respective address or facsimile number set forth below each
party's signature on this Agreement (or to such other address as either party
may from time to time designate in writing to the other party).
(d) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral and written, between the parties hereto with
respect to the subject matter hereof.
(e) This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia, exclusive of the conflicts of laws
provisions thereof.
(f) This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
Notwithstanding anything contained in this Agreement to the contrary, nothing in
this Agreement, expressed or implied, is intended to confer on any person other
than the parties hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
(g) Neither this Agreement nor any of the rights or obligations of the
parties hereunder shall be assignable by any party hereto without the prior
written consent of the other party hereto.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXX #1, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx, President
[CORPORATE SEAL]
Address: c/o Xxxxx Xxxxxxx, President
Xxxxxx #1, Inc.
0000 Xxxx Xxx
Xxxxxxxx, XX 00000
Facsimile: (000)000-0000
/s/ Xxxxxx Xxxxxxx
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XXXXXX XXXXXXX
Address: Ibis Golf & Country Club
0000 Xxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
/s/ Xxxxx X. Xxxxxxx
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XXXXX XXXXXXX
Address: c/o Innotrac Corporation
0000 Xxxx Xxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
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