STOCK PURCHASE AGREEMENT
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Exhibit
10.1
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THIS STOCK PURCHASE AGREEMENT,
(the "Agreement") is entered into and effective this 24th day of
August 2009, and supersedes any and all other agreements whether in writing or
orally communicated, by and among The Triple Play Group, LLC, a Utah limited
liability company, located at 000 Xxxx Xx. Xxxxxx Xxxx, Xx. Xxxxxx, XX 00000,
(“Triple Play”), and all Members of Triple Play as identified in Exhibit “A”,
attached hereto and incorporated herein by reference, (hereinafter collectively
referred to as "SELLER"), and XnE, Inc. a Nevada corporation, located at 00000
Xxxxx Xxxxxxx, Xxxxx 000-000, Xxxxxx, XX 00000, (hereinafter referred to as the
"PURCHASER" or the “Company”);
WITNESSETH:
WHEREAS, the Triple Play
Group, LLC is a limited liability company organized in the state of Utah for the
sole purpose of owning and operating a professional independent baseball team in
St. Xxxxxx, Utah, called the St. Xxxxxx Roadrunners, (the “TEAM”).
WHEREAS, the Seller's are the
sole record owners and holder of an aggregate of one-hundred percent (100%) of
the issued and outstanding limited liability units of Triple Play Group, as
identified in Exhibit “A”, (the "Units").
WHEREAS, the PURCHASER desires
to purchase the Units, and the SELLER desires to sell, or cause to be sold, the
Units, upon the terms and subject to the conditions herein.
NOW, THEREFORE, in
consideration of the mutual covenants, and agreements contained in this
Agreement, and in order to consummate the purchase and the sale of the Units, it
is hereby agreed as follows:
AGREEMENT:
1. CLOSING.
A. Procedure for
Closing. The closing of the transaction contemplated by this
Agreement shall be held at the offices of Triple Play on or about August 21,
2009 at 5:00 pm MST ("Closing Date") or such other place, date and time as the
parties hereto may otherwise agree.
B. Purchase and Sale of
the Units. Upon the closing date set forth in this Agreement,
and subject to the terms and conditions hereinafter set forth, the SELLER shall
sell, convey and transfer, or cause to be sold, conveyed or transferred, the
Units representing 100% of the membership interests of Triple Play on the
Closing Date.
C. Amount and Payment of
Purchase Price. The total consideration for purchase of the
Units and method of payment thereof shall be pursuant to the
following:
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(i)
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The
PURCHASER will issue and deliver a certain number of shares of convertible
preferred stock in the Company, (the “Preferred Stock”) equally to KATTS,
LLC, a Utah limited liability company, (“KATTS”) and Spyglass Enterprises,
LLC, a Utah limited liability company, (“Spyglass”). The
Preferred Stock will be convertible, at the sole discretion of KATTS and
Spyglass, into 102,000,000 shares of common stock, representing 51% of the
authorized stock of the Company. The PURCHASER and SELLER both
acknowledge that as an integral inducement to enter into this Agreement,
KATTS and Spyglass would own no less than 51% of the Company’s outstanding
stock at any given time, resulting in KATTS and Spyglass retaining the
majority voting power of the
Company.
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1
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(ii)
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The
PURCHASER will issue shares of restricted common stock in the Company as
follows:
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a.
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Xxxx
Xxxxx: 5,100,000
shares
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b.
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Xxxx
Xxxxxx: 5,100,000
shares
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c.
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Xxxx
Xxxxxxx: 1,020,000
shares
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d.
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SGRPSPFBOJAD: 1,020,000
shares
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x.
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Xxxx
D & Xxxxx X.
Xxxxxxx: 408,000
shares
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f.
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Xxxxx
Xxxxxxxx: 408,000
shares
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x.
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Xxxxxx
& Xxxxxxxx
Xxxxxx: 408,000
shares
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h.
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Xxxxx
Xxxxx: 204,000
shares
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i.
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RD
Consultants,
Inc.:
204,000 shares
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(iii)
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The
PURCHASER will also pay Fifty Five Thousand Dollars ($55,000.00) to Triple
Play, to be used in paying certain debt of Triple
Play.
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(iv)
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The
SELLER will have the right to appoint 2 of the 3 Members on the Board of
Directors of the Company.
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(v)
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The
SELLER will have the right to appoint 2 Officers on the Management of the
Company.
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2. LOCATION
OF THE TEAM. Both parties
acknowledge that as a condition of entering in this Agreement, the location and
operation of the TEAM is and will remain in St. Xxxxxx, UT until a unanimous
vote indicating otherwise by all individuals listed as SELLER in Exhibit “A”
attached hereto.
3. REPRESENTATIONS
AND WARRANTIES OF SELLER. SELLER
hereby warrants and represents:
A. Authority Relative to this
Agreement. Except as otherwise stated herein, the SELLER has
full power and authority to execute this Agreement and carry out the
transactions contemplated by it and no further action is necessary by the SELLER
to make this Agreement valid and binding upon SELLER and enforceable against
them in accordance with the terms hereof, or to carry out the actions
contemplated hereby. The execution, delivery and performance of this Agreement
by the SELLER will not:
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(i)
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Constitute
a breach or a violation of Triple Play’s Articles of Organization,
Operating Agreement, or of any law, agreement, indenture, deed of trust,
mortgage, loan agreement or other instrument to which it is a party, or by
which it is bound;
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(ii)
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Constitute
a violation of any order, judgment or decree to which it is a party or by
which its assets or properties are bound or affected;
or
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(iii)
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Result
in the creation of any lien, charge or encumbrance upon its assets or
properties, except as stated
herein.
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B. Ownership. All of
such outstanding Units of Triple Play have been duly authorized, validly issued
and are fully paid and non-assessable, and were not issued in violation of the
terms of any agreement or other understanding legally binding upon Triple Play
and were issued in compliance with all applicable laws and
regulations.
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C. Assets. SELLER
represents that the PURCHASER is entitled to all assets of Triple Play as they
appear on Triple Play’s “Financial Statements” with no exception.
D. Lawsuits, Liens &
Taxes. SELLER represents that to the best of SELLER’s
knowledge, that neither the SELLER nor Triple Play are currently the subject of
any lawsuit threatened or filed. SELLER also represents that the
assets of Triple Play are pledged as collateral for the debt payable to the
Golden Baseball League with a principal balance of $315,275. SELLER
shall be solely responsible for all taxes which may be incurred by SELLER
resulting from the receipt of consideration by SELLER pursuant to this
Agreement.
E. Brokerage. SELLER
has not made any agreement nor taken any other action which might cause anyone
to become entitled to a broker’s fee or commission as a result of the
transactions contemplated hereunder.
4. REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER. PURCHASER hereby warrants
and represents:
A. Authority Relative to this Agreement
and Ancillary Documents. Except as otherwise stated herein,
the PURCHASER has full power and authority to execute this Agreement, and carry
out the transactions contemplated hereby and thereby and no further action is
necessary by the PURCHASER to make this Agreement valid and binding upon
PURCHASER and enforceable against it in accordance with the terms hereof, or to
carry out the actions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement by the PURCHASER will
not:
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(i)
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Constitute
a breach or a violation of any law, agreement, indenture, deed of trust,
mortgage, loan agreement or other instrument to which it is a party, or by
which it is bound;
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(ii)
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Constitute
a violation of any order, judgment or decree to which it is a party or by
which its assets or properties are bound or affected;
or
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(iii)
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Result
in the creation of any lien, charge or encumbrance upon its assets or
properties except as stated herein.
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B. Brokerage. The
PURCHASER has not made any agreement or taken any other action which might cause
anyone to become entitled to a broker's fee or commission as a result of the
transactions contemplated hereunder.
C. Taxes. PURCHASER
shall be solely responsible for all taxes which may be incurred by PURCHASER
resulting from the receipt of consideration by PURCHASER pursuant to this
Agreement.
D. Liabilities. PURCHASER
represents that it shall assume all liabilities of Triple Play as listed in
Triple Play’s “Financial Statements”, with no exceptions.
E. Shares
Authorized. PURCHASER represents that it is authorized to
issue no more than 200,000,000 of common stock.
5. EXPENSES. Each of the
parties hereto shall pay its own expense in connection with this Agreement and
the transactions contemplated hereby, including the fees and expenses of its
counsel and its certified public accountants and other experts.
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6. CLOSING
DELIVERIES. At the Closing, the deliveries hereinafter
specified shall be made by the respective parties hereto, in order to consummate
the transactions contemplated hereby. A best effort shall be made by
both parties regarding deliveries by the Closing date or such reasonable time
thereafter.
A. Deliveries by SELLER. SELLER
shall deliver or caused to be delivered to PURCHASER:
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(i)
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Stock
certificates, and any and all other instruments of conveyance and transfer
as required by Section lA of this Agreement;
and
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(ii)
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Copies
of all third party consents necessary to consummate the transaction
contemplated herein.
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B. Deliveries by
PURCHASER. PURCHASER shall deliver or caused to be delivered
to SELLER:
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(i)
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The
cash portion of the Purchase Price of this Agreement in the amount of
Fifty Five Thousand Dollars, ($55,000); and all preferred and common stock
listed above, and any and all other instruments of conveyance and transfer
as required by Section 1(B) of this Agreement;
and
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(ii)
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All
third party consents necessary to consummate the transaction contemplated
herein.
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7. GENERAL.
A. Survival of Representations and
Warranties. Each of the parties to this Agreement covenants and agrees
that its respective representations, warranties, covenants and statements and
agreements contained in this Agreement and the exhibits hereto, and in any
documents delivered in connection herewith, shall survive the Closing Date
indefinitely. Except agreements between the PURCHASER and certain individual
members of SELLER, and as set forth in this Agreement, the exhibits hereto or in
the documents and papers delivered in connection herewith, there are no other
agreements, representations, warranties or covenants by or among the parties
hereto with respect to the subject matter hereof.
B. Waivers. No action taken
pursuant to this Agreement, including any investigation by or on behalf of any
party shall be deemed to constitute a waiver by the party taking such action or
compliance with any representation, warranty, covenant or agreement contained
herein, therein and in any documents delivered in connection herewith or
therewith. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
C. Notices. All notices,
requests, demands and other communications, which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered or mailed, first class mail, postage prepaid to the addresses
first indicated in this Agreement.
D. Entire Agreement. This
Agreement (including all documents and papers delivered pursuant hereto and any
written amendments hereof executed by the parties hereto) constitutes the entire
agreement and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter
hereof.
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E. Sections and Other Headings.
The section and other headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
G. Governing Law. This Agreement
and all transactions contemplated hereby, shall be governed by, construed and
enforced in accordance with the laws of the State of Utah. The parties herein
waive trial by jury and agree to submit to the personal jurisdiction and venue
of a court of subject matter jurisdiction located in Washington County,
Utah. In the event that litigation results from or arises out of this
Agreement or the performance thereof, the parties agree to reimburse the
prevailing party's reasonable attorney's fees, court costs, and all other
expenses, whether or not taxable by the court as costs, in addition to any other
relief to which, the prevailing party may be entitled.
H. Contractual Procedures. Unless
specifically disallowed by law, should litigation arise hereunder, service of
process therefore, may be obtained through certified mail, return receipt
requested; the parties hereto waiving any and all rights they may have to object
to the method by which service was perfected.
I. Confidentiality and
Non-Disclosure: Except to the extent required by law, without the prior
written consent, the undersigned will not make, and will each direct its
representatives not to make, directly or indirectly, any public comment,
statement, or communication with respect to, or to disclose or permit the
disclosure of the existence of this transaction prior to closing.
J. Amendment and Waiver. The
parties may by mutual agreement amend this Agreement in any respect, and any
party, as to such party, may (a) extend the time for the performance of any of
the obligations of any other party, and (b) waive: (i) any inaccuracies in
representations by any other party, (ii) compliance by any other party with any
of the agreements contained herein and performance of any obligations by such
other party, and (iii) the fulfillment of any condition that is precedent to the
performance by such party of any of its obligations under this Agreement. To be
effective, any such amendment or waiver must be in writing and be signed by the
party against whom enforcement of the same is sought.
K. Counterparts. This
Agreement may be executed in one or more counterparts, each of whom shall for
all purposes are deemed to be an original and all of which shall constitute one
instrument.
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IN WITNESS WHEREOF, this
Agreement has been executed by each of the individual parties hereto, on the
date so indicated, with the effective date as first above written.
PURCHASER:
XnE,
Inc. By:
Xxxxxxx Xxxxxxxx, CEO Date 8-24-09
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EXHIBIT
“A”
COUNTERPART
SIGNATURE PAGE
The
undersigned, desiring to enter into the Stock Purchase Agreement, hereby execute
this Counterpart Signature Page to be attached to the Stock Purchase Agreement
and agree to all the terms, conditions and provisions thereof and to be bound
thereby. Execution of this Counterpart Signature Page shall constitute execution
of the Stock Purchase Agreement, and when such page is attached thereto, shall
become a party thereof.
IN WITNESS WHEREOF, the
undersigned has executed this Counterpart Signature Page to the Stock Purchase
Agreement as of the 25st day of
August, 2009.
SELLERS:
KATTS,
LLC SPYGLASS ENTERPRISES, LLC By: Xxxx
Xxxxxx, Manager By: Xxxxx Xxxxxx, Manager
XXXX
XXXXXX XXXX XXXXX
SGRPSPFBOJAD RD
CONSULTANTS, INC. By: Xxxx
DavisBy: Xxxxx Xxxxxx
J.P.
& XXX XXXXXXX XXXXX XXXXXXXX XXXXXX
& XXXXXXXX XXXXXX XXXXX & XXXXX XXXXX XXXX
XXXXXXX
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EXHIBIT
“A”
COUNTERPART
SIGNATURE PAGE
The
undersigned, desiring to enter into the Stock Purchase Agreement, hereby execute
this Counterpart Signature Page to be attached to the Stock Purchase Agreement
and agree to all the terms, conditions and provisions thereof and to be bound
thereby. Execution of this Counterpart Signature Page shall constitute execution
of the Stock Purchase Agreement, and when such page is attached thereto, shall
become a party thereof.
IN WITNESS WHEREOF, the
undersigned has executed this Counterpart Signature Page to the Stock Purchase
Agreement as of the 25st day of
August, 2009.
SELLERS:
KATTS,
LLC
SPYGLASS ENTERPRISES, LLC
_________________________ _______________________
By: Xxxx
Xxxxxx,
Manager By: Xxxxx
Xxxxxx, Manager
XXXX
XXXXXX
XXXX XXXXX
_________________________ _______________________
J.P.
& XXX
XXXXXXX
XXXXX XXXXXXXX
_________________________ _______________________
XXXXXX
& XXXXXXXX
XXXXXX XXXXX
& XXXXX XXXXX
_________________________ _______________________
XXXX
XXXXXXX
_________________________
SGRPSPFBOJAD RD
CONSULTANTS, INC.
By: Xxxx
Xxxxx By: Xxxxx
Xxxxxx
