STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT (“Agreement”), dated as of the 14th
day of
September, 2007, is entered by and between Lomond International, Inc., a North
Carolina corporation, as Purchasers Agent (“Purchasers Agent”) and on behalf of
those parties named on Exhibit
A
(each a
“Purchaser”)(collectively
referred to herein as the “Purchasers”),
Synergy
Business Consulting, LLC, an Illinois limited liability company (“Seller”),
and
Forme
Capital, Inc.,
a
Delaware corporation (the “Issuer”).
WITNESSETH
THAT:
WHEREAS,
Seller
owns
a total
of
11,824,200 restricted shares of Common Stock of the Issuer,
par
value $.001 (the “Shares”);
and
WHEREAS,
Purchasers
desire to purchase from Seller
and
Seller desires to sell to
Purchasers
the
Shares
on
the
terms
and conditions set forth herein, in such amounts as stated opposite their
respective names on Exhibit
A.
NOW,
THEREFORE, in
consideration of the foregoing and mutual covenants set forth below, the parties
hereto agree as follows:
1. PURCHASE
AND SALE OF SHARES
1.1 Purchase
of Shares. On the date hereof and subject to the terms and conditions of this
Agreement, the Seller shall issue, sell, assign, transfer, and deliver to
Purchasers and Purchasers shall purchase, for the purchase price set forth
in
Section 1.3 hereof, the Shares at the closing provided for in Section 1.4 hereof
(the “Closing”), free and clear of all liens, charges, or encumbrances of
whatsoever nature.
1.2 Transfer
of Title to the Shares. The sale, assignment, conveyance, transfer, and delivery
by Seller of the Shares shall be made by delivering to the Purchasers duly
endorsed stock certificate(s) representing 11,824,200 restricted shares of
common stock of the Issuer.
1.3 Purchase
Price. Concurrent with the delivery of the Stock Certificate, Purchasers shall
deliver to Seller the purchase price of Six Hundred Twenty-Five Thousand Dollars
($625,000) (the “Purchase Price”) for the Shares. The Purchase Price shall be
paid in cash to Seller at Closing.
1.4 Closing.
The
Closing of the transactions provided for in this Agreement shall take
place on or before September 14, 2007
(the
“Closing Date”)
at 000
X. Xxxxxxxx, 0xx
Xxxxx,
Xxxxxxx, XX 00000.
2. RELATED
TRANSACTIONS
2.1 Finder. There
are
no finders with respect to the transaction contemplated herein.
3. REPRESENTATIONS
AND WARRANTIES BY THE SELLER, PURCHASER
AND
ISSUER
3.1 The
Seller hereby represents and warrants to Purchasers as follows:
(a) The
Issuer
is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of Delaware, and is qualified in no other state.
(b) This
Agreement and any other agreement executed by Seller in connection herewith
have
been duly executed and delivered by it and constitute the valid, binding and
enforceable obligation of Seller, subject to the applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and rights of
stockholders.
(c) The
authorized capital stock of the Issuer
consists
of 100,000,000 shares of common stock, 12,715,100 of which are validly issued
and outstanding, fully paid and non-assessable. The Shares have been validly
issued, are fully paid and non-assessable, and are owned beneficially and of
record by Seller free and clear of all liens, pledges, encumbrances, security
agreements, equities, options, claims, charges and restrictions of any nature
whatsoever, except any restrictions under applicable securities laws, and Seller
has not previously entered into any agreement or commitment for the sale of
all
or part of the Shares or otherwise conveyed or encumbered Seller’s interest
(voting or otherwise) with respect to the Shares. The Seller has the unqualified
right to sell, assign, and deliver the Shares, and, upon consummation of the
transactions contemplated by this Agreement, the Purchaser will acquire good
and
valid title to the Shares, free and clear of all liens, claims, options,
charges, and encumbrances of whatsoever nature. The Purchaser acknowledges
that
these Shares being acquired from the Seller are restricted securities as that
term is defined in Rule 144 of the Securities Act of 1933, as amended (the
“Act”).
(d) Seller
is
not a party to or bound by any unexpired, undischarged or unsatisfied written
or
oral contract, agreement, indenture, mortgage, debenture, note or other
instrument under the terms of which performance by Purchaser according to the
terms of this Agreement will be a default or an event of acceleration, or
grounds for termination, or whereby timely performance by Purchaser according
to
the terms of this Agreement may be prohibited, prevented or delayed.
(e) Seller
has full power and authority to sell and transfer the Shares to Purchaser
without obtaining the waiver, consent, order or approval of (i) any state or
federal governmental authority or (ii) any third party or other person
including, but not limited to, other stockholders of the Issuer.
(f) The
Issuer
has the
corporate power,
authority
and
capacity to
carry
on its business as presently conducted.
(g) Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will constitute a violation or default under
any term or provision of the Certificate of Incorporation or By-Laws of the
Issuer,
or of
any contract, commitment, indenture, other agreement or restriction of any
kind
or character to which the Issuer
or the
Seller is a party to or by which the Issuer
or the
Seller is bound.
(h) The
Certificates representing the Shares delivered pursuant to this Agreement are
subject to certain trading restrictions imposed under Rule 144 of the Act or
Regulation S promulgated under the Act are applicable to the Shares.
(i) The
Issuer has no outstanding liabilities or obligations to any party except as
reflected on the Issuer’s Form 10-QSB for the quarter ended June 30, 2007, other
than charges since such date similar to those incurred in past periods and
consistent with past practice, all of which will be discharged prior to or
at
the Closing so that, at the Closing, the Issuer will have no direct, contingent
or other obligations of any kind or any commitment or contractual obligations
of
any kind and description. The Seller shall indemnify the Issuer and hold the
Issuer harmless from and against any loss, damage, liability or expense which
the Issuer may sustain from any liabilities or obligations which it may sustain
in the event of a breach of the representations, warranties and covenants
contained in this Section 3.1(i).
3.2 The
Issuer hereby represents and warrants to the Purchasers as follows:
(a) The
Issuer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Issuer has the corporate power
to
own its properties and to carry on its business as now being conducted and
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 Issuer. The Issuer is not in violation of any of the
provisions of its certificate of incorporation or by-laws. No consent, approval
or agreement of any individual or entity is required to be obtained by the
Issuer in connection with the execution and performance by the Issuer of this
Agreement or the execution and performance by the Issuer of any agreements,
instruments or other obligations entered into in connection with this Agreement.
The Issuer has no subsidiary, and it does not have any equity investment or
other interest, direct or indirect, in, or any outstanding loans, advances
or
guarantees to or on behalf of, any domestic or foreign individual or
entity.
(b)
To
the
best of Issuer’s knowledge, the authorized capital stock of the Issuer consists
of 100,000,000 shares of common stock, 12,715,100 of which are validly issued
and outstanding, fully paid and non-assessable as set forth in the Issuer’s
10KSB for the fiscal year ended April 30, 2007. The Purchaser acknowledges
that
these Shares being acquired from the Seller are restricted securities as that
term is defined in Rule 144 of the Securities Act of 1933, as amended (the
“Act”).
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(c)
The
Issuer is not a party to any agreement or understanding pursuant to which any
securities of any class of capital stock are to be issued or created or
transferred. The Issuer has not acquired any shares of Common Stock, and has
no
formal or informal agreements or understandings pursuant to which it can or
will
acquire any shares of Issuer Common Stock. The Issuer nor any officer, director
or 5% stockholder of the Issuer has any agreements, plans, understandings or
proposals, whether formal or informal or whether oral or in writing, pursuant
to
which it granted or may have issued or granted any individual or entity any
convertible security or any interest in the Issuer or the Issuer’s earnings or
profits, however defined. As used in this Agreement, the term “Convertible
Securities” shall mean any options, rights, warrants, convertible debt, equity
securities or other instrument or agreement upon the exercise or conversion
of
which or upon the exchange of which or pursuant to the terms of which additional
shares of any class of capital stock of the Issuer may be issued.
(d)
There
is
no private or governmental action, suit, proceeding, claim, arbitration or
investigation pending before any agency, court or tribunal, foreign or domestic,
or, to the Issuer’s best knowledge, threatened against the Issuer or any of its
properties or any of its officers or directors (in their capacities as such).
There is no judgment, decree or order against the Issuer that could prevent,
enjoin, alter or delay any of the transactions contemplated by this Agreement.
The term “Best Knowledge” of
the
Issuer shall mean and include (i) actual knowledge and (ii) that knowledge
which
a prudent businessperson would reasonably have obtained in the management of
such Person’s business affairs after making due inquiry and exercising the due
diligence which a prudent businessperson should have made or exercised, as
applicable, with respect thereto. Actual or imputed knowledge of any director
or
officer or Seller shall be deemed to be knowledge of the Issuer.
(e)
There
are
no material claims, actions, suits, proceedings, inquiries, labor disputes
or
investigations (whether or not purportedly on behalf of the Issuer) pending
or,
to the Issuer’s Best Knowledge, threatened against the Issuer or any of its
assets, at law or in equity or by or before any governmental entity or in
arbitration or mediation. No bankruptcy, receivership or debtor relief
proceedings are pending or, to the best of the Issuer’s knowledge, threatened
against the Issuer.
(f)
The
Issuer has complied with, is not in violation of, and has not received any
notices of violation with respect to, any federal, state, local or foreign
laws,
judgment, decree, injunction or order, applicable to it, the conduct of its
business, or the ownership or operation of its business. References in this
Agreement to “Laws” shall refer to any laws, rules or regulations of any
federal, state or local government or any governmental or quasi-governmental
agency, bureau, commission, instrumentality or judicial body (including, without
limitation, any federal or state securities law, regulation, rule or
administrative order).
(g) The
Issuer has properly filed all tax returns (if any) required to be filed and
has
paid all taxes shown thereon to be due. To the Best Knowledge of the Issuer,
all
tax returns previously filed are true and correct in all material respects.
(h) The
Issuer has no outstanding liabilities or obligations to any party except as
reflected on the Issuer’s Form 10-QSB for the quarter ended June 30, 2007, other
than charges since such date similar to those incurred in past periods and
consistent with past practice, all of which will be discharged prior to or
at
the Closing so that, at the Closing, the Issuer will have no direct, contingent
or other obligations of any kind or any commitment or contractual obligations
of
any kind and description.
(i) All
of
the business and financial transactions of the Issuer have been fully and
properly reflected in the books and records of the Issuer in all material
respects and in accordance with generally accepted accounting principles
consistently applied.
(j) The
Issuer is current with its reporting obligations under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”). None of the Issuer’s filings made
pursuant to the Exchange Act (collectively, the “Issuer SEC Documents”) contain
any misstatements of material fact or omit to state a material fact necessary
to
make the statements made therein not misleading. The Issuer SEC Documents,
as of
their respective dates, complied in all material respects with the requirements
of the Exchange Act, and the rules and regulations of the Commission thereunder,
and are available on the Commission’s XXXXX system. The financial statements
included in the Issuer SEC Documents present and reflect, in accordance with
generally accepted accounting principles, consistently applied, the financial
condition of the Issuer on the balance sheet dates and the results of its
operations, cash flows and changes in stockholders’ equity for the periods then
ended in accordance with generally accepted accounting principles, consistently
applied. The accountants who audited the Issuer’s financial statements are
independent, within the meaning of the Securities Act and are a member of the
PCAOB. There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial
or
otherwise, or in the earnings, business or operations of the Issuer, from that
set forth in the Issuer’s Quarterly Report on Form 10-QSB for the quarter ended
June 30, 2007.
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(k) The
execution and delivery of this Agreement by the Issuer and the consummation
of
the transactions contemplated by this Agreement will not result in any material
violation of the Issuer’s certificate of incorporation or by-laws.
(l) All
representations, covenants and warranties of the Issuer and Sellers contained
in
this Agreement shall be true and correct on and as of the Closing date with
the
same effect as though the same had been made on and as of such
date.
(m) The
Issuer has the corporate power, authority and capacity to carry on its business
as presently conducted.
3.3 Each
Purchaser, individually and not jointly, represents and warrants to Seller
and
Issuer as follows:
(a) Purchaser
understands that the Shares have not been registered with the United States
Securities and Exchange Commission or any state or foreign securities agencies.
(b) Purchaser
has the requisite competence and authority to execute and deliver this Agreement
and any other agreements and undertakings referenced herein, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement and any other agreements executed by Purchaser in connection
herewith have been duly executed and delivered by it and constitute the valid,
binding and enforceable obligation of Purchaser, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and the rights of stockholders.
(c) Purchaser
is capable of evaluating the merits and risks of its investment in the
Issuer
and has
the capacity to protect its interests. Purchaser acknowledges that it must
bear
the economic risk of this investment indefinitely, unless the Shares are
subsequently registered pursuant to the Securities Act of 1933, as amended
(the
“Act”), or an exemption from registration is available. Purchaser understands
that the Issuer
has no
present intention of registering the Shares.
(d) Purchaser
is not an underwriter and is acquiring the Seller’s Shares for Purchaser’s own
account for investment only and not with a view towards distribution thereof
within the meaning of the Act, the state securities laws and any other
applicable laws.
(e) Purchaser
has the capacity to protect its interests in connection with the transactions
contemplated hereby as a result of its business or financial
expertise.
(f) The
Shares purchased
for
herein may not be transferred, encumbered, sold, hypothecated, or otherwise
disposed of to any person, without the express prior written consent of the
Issuer
and/or
the prior opinion of legal counsel that is reasonably acceptable to the
Issuer
that
such disposition will not violate federal and/or state securities laws.
Disposition shall include, but is not limited to acts of selling, assigning,
transferring, pledging, encumbering, hypothecating, gifting, and any form of
conveying, whether voluntary or not.
(g) To
the
extent that any federal, and/or state securities laws shall require, the
Purchaser hereby agrees that any Shares acquired pursuant to this Agreement
shall be without preference as to assets.
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(h) Neither
the Issuer
nor the
Seller is under an obligation to register or seek an exemption under any
federal, state or foreign securities acts for any stock of the Issuer
or to
cause or permit such stock to be transferred in the absence of any registration
or exemption and that the Purchaser herein must hold such stock indefinitely
unless such stock is subsequently registered under any federal and/or state
securities acts or an exemption from registration is available.
(i) The
Purchaser has had the opportunity to ask questions of the Issuer
and the
Seller and receive additional information from the Issuer
and the
Seller to the extent that the Issuer
and the
Seller possessed such information or could acquire it without unreasonable
effort or expense necessary to evaluate the merits and risks of any investment
in the Issuer.
Further, the Purchaser has been given or has had access to: (1) all material
books and records of the Issuer;
(2) all
material contracts and documents relating to the Issuer
and this
proposed transaction; and (3) an opportunity to question the Seller and the
appropriate executive officers of the Issuer.
4. SURVIVAL
OF REPRESENTATIONS; INDEMNIFICATION
4.1 Survival
of Representations.
All
representations, warranties, and agreements made by any party in this Agreement
or pursuant hereto shall survive the execution and delivery hereof and any
investigation at any time made by or on behalf of any party for a period not
to
exceed 180 days.
4.2 Indemnification.
The Seller agrees to indemnify the Purchaser, and hold it harmless from and
in
respect of any assessment, loss, damage, liability, cost and expense (including,
without limitation, interest, penalties, and reasonable attorneys’ fees) in
excess of $1,000.00 in the aggregate, imposed upon or incurred by the Purchasers
resulting from a breach of any agreement, representation, or warranty of the
Seller. Assertion by the Purchasers to their right to indemnification under
this
Section 4.2 shall not preclude assertion by the Purchasers of any other rights
or the seeking of any other remedies against the Seller.
5. MISCELLANEOUS
5.1 Expenses.
All fees and expenses incurred by the Purchasers and Seller in connection with
the transactions contemplated by this Agreement shall be borne by the respective
parties hereto.
5.2 Further
Assurances. From time to time, at the Purchasers Agent request and without
further consideration, the Seller, at the Purchasers Agents expense, will
execute and transfer such documents and will take such action as the Purchasers
may reasonably request in order to effectively consummate the transactions
contemplated herein.
5.3 Parties
in Interest. All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of, and shall be enforceable by the prospective
heirs, beneficiaries, representatives, successors and assigns of the parties
hereto.
5.4
Resignation
as Officer/Director.
On
the
Closing Date:
(a)
Each
of
the directors and officers of Issuer shall have resigned as directors
and/or officers
of Issuer; and
(b)
Xxxx
Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxx Xxxxxxxx shall be appointed as members of
the
Board of Directors.
5.5 Prior
Agreements; Amendments. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to the subject matter hereof. This Agreement shall not be amended
except by a writing signed by both parties or their respective successors or
assigns.
5
5.6 Headings.
The
section and paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretations
of
this Agreement.
5.7 Governing
Law. The situs of this Agreement is Chicago, Illinois, and for all purposes
this
Agreement will be governed exclusively by and construed and enforced in
accordance with the laws and Courts prevailing in the state of
Illinois.
5.8 Notices.
All notices, requests, demands, and other communication hereunder shall be
in
writing and shall be deemed to have been duly given if delivered or mailed
(registered or certified mail, postage prepaid, return receipt requested) as
follows:
If
to the
Seller:
Synergy
Business Consulting, LLC
000
Xxxx
Xxxxxxxx Xx.
0xx
Xxxxx
Xxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxx
If
to the
Purchasers:
Lomond
International, Inc.
00000
Xxxxxxxx Xxxxxxx Xxxx
Xxxxx
000
Xxxxxxxxx,
XX 00000
Attn:
Xxxxxx Sumicrest
If
to the
Issuer:
Forme
Capital, Inc.
000
Xxxx
Xxxxxxxx Xx.
0xx
Xxxxx
Xxxxxxx,
XX 00000
5.9 Effect.
In the event any portion of this Agreement is deemed to be null and void under
any state, provincial, or federal law, all other portions and provisions not
deemed void or voidable shall be given full force and effect.
5.10 Counterparts.
This Agreement may be executed in one or more counterparts and by transmission
of a facsimile or digital image containing the signature of an authorized
person, each of which shall be deemed and accepted as an original, and all
of
which together shall constitute a single instrument. Each party represents
and
warrants that the person executing on behalf of such party has been duly
authorized to execute this Agreement.
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
Seller, the Purchaser and the Issuer on the date first written
above.
*
* * * *
* * * *
(signature
page follows)
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first written above.
SELLER:
Synergy
Business Consulting, LLC
By:
Its:
ISSUER:
Forme
Capital, Inc.
By:
Its:
PURCHASERS:
By:
Lomond
International Inc., as agent for the individual purchasers
Its:
President
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