SHARE PURCHASE AGREEMENT
This Share Purchase Agreement ("Agreement"), dated as of April 3, 2000
among Xxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxx Xxxxxxx and Xxx Xxxx (collectively,
"Sellers"), Advanced Ceiling Supplies, Inc. ("Advanced Ceiling"), the Other
Advanced Ceiling Shareholders ("Other Shareholders"), and United Venture Group,
Inc. ("Buyer"), a Delaware Corporation.
W I T N E S S E T H:
A. WHEREAS, Advanced Ceiling is a corporation duly organized under the laws of
the State of Colorado. B. WHEREAS, Buyer wishes to purchase 660 of the
outstanding common shares of Advanced Ceiling free and clear of liens and
encumbrances from Sellers (the "Purchase Shares") and twelve shares from the
Other Shareholders ("Other Shareholders") who join this Agreement by execution
of the Acceptance and Sale Addendum attached hereto. C. WHEREAS, the parties
intend to subsequently merge Advanced Ceiling, the wholly-owned subsidiary, with
and into the Buyer. D. WHEREAS, prior to the transaction Buyer is not an
affiliate of Advanced Ceiling.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
The Consideration
1.1 Subject to the conditions set forth herein, Sellers shall sell and Buyer
shall purchase 660 shares of common stock of Advanced Ceiling. The transactions
contemplated by this Agreement shall be completed simultaneously herewith. The
purchase price for the shares to be paid by Buyer to Sellers is $163.69 in cash
(the "Consideration") per share for which $108,035.71 is herewith paid into
escrow with M.A. Xxxxxxx.
1.2 In addition, on or before three days after the closing of the
purchase set forth in 1.1 above. Buyers shall pay $163.69 per share to each
Other Shareholder who joins this Agreement by execution of the Addendum hereto,
for a total of 12 shares for which $1964.28 shall be deposited into escrow with
M.A. Xxxxxxx for Other Shareholders within three days hereafter.
ARTICLE II
Conveyance of Shares
2.1 The Purchase Shares shall be delivered and conveyed by Sellers to Buyer
simultaneously herewith, with duly executed stock powers, upon receipt of the
Consideration by Sellers. 2.2 After closing with Sellers, the Other Shareholders
who join this Agreement by execution of the Acceptance and Sale Addendum will
convey their shares to Buyer and receive $163.69 per share of Advanced Ceiling
sold.
ARTICLE III
Representations, Warranties and Covenants of Sellers as to Advanced Ceiling
Sellers and Advanced Ceiling each hereby, jointly and severally,
represent, warrant and covenant to Buyer as follows:
3.1 Advanced Ceiling is a corporation duly organized, validly existing and
in good standing under the laws of the State of Colorado, and has the corporate
power and authority to own or lease its properties and to carry on its business
as it is now being conducted. The Articles of Incorporation and Amendments and
Bylaws of Advanced Ceiling, copies of which have been delivered to Buyer, are
complete and accurate, and the minute books of Advanced Ceiling, copies of which
have also been delivered to Buyer, contain a record, which is complete and
accurate in all material respects, of all meetings, and all corporate actions of
the shareholders and Board of Directors of Advanced Ceiling.
3.2 The authorized capital stock of Advanced Ceiling consists of 50,000,000
shares of common stock. There are 672 shares of Common Stock issued and
outstanding. All such shares of capital stock of Advanced Ceiling are validly
issued, fully paid and nonassessable. Advanced Ceiling has no outstanding
options, warrants, or other rights to purchase, or subscribe to, or other
securities convertible into or exchangeable for any shares of capital stock of
Advanced Ceiling, or contracts or arrangements of any kind relating to the
issuance, sale or transfer of any capital stock or other equity securities of
Advanced Ceiling. All of the outstanding shares of capital stock of Advanced
Ceiling have been offered, issued, sold and delivered in compliance with
applicable federal and state securities laws and none of such securities were,
at the time of issuance, subject to preemptive rights.
3.3 Advanced Ceiling does not own nor has it ever owned any outstanding
shares of capital stock or other equity interests of any partnership, joint
venture, trust, corporation, limited liability company or other entity and there
are no obligations of Advanced Ceiling to repurchase, redeem or otherwise
acquire any capital stock or equity interest of another entity.
3.4 This Agreement has been duly authorized, validly executed and delivered
on behalf of the Sellers and Advanced Ceiling and is a valid and binding
agreement and obligation of the Sellers and Advanced Ceiling enforceable against
each Seller, jointly and severally, and against Advanced Ceiling in accordance
with its terms, subject to limitations on enforcement by general principles of
equity and by bankruptcy or other laws affecting the enforcement of creditors'
rights generally, and the Sellers and Advanced Ceiling each have complete and
unrestricted power to enter into and, upon the appropriate approvals as required
by law, to consummate the transactions contemplated by this Agreement.
3.5 Neither the making of nor the compliance with the terms and provisions
of this Agreement and consummation of the transactions contemplated herein by
Advanced Ceiling will conflict with or result in a breach or violation of the
Articles of Incorporation or Bylaws of Advanced Ceiling, or of any material
provisions of any indenture, mortgage, deed of trust or other material agreement
or instrument to which Advanced Ceiling is a party or by which it or any of its
material properties or assets are bound, or of any material provision of any
law, statute, rule, regulation, or any existing applicable decree, judgment or
order by any court, federal or state regulatory body, administrative agency, or
other governmental body having jurisdiction over Advanced Ceiling, or any of its
material properties or assets, or will result in the creation or imposition of
any material lien, charge or encumbrance upon any material property or assets of
Advanced Ceiling pursuant to the terms of any agreement or instrument to which
Advanced Ceiling is a party or by which Advanced Ceiling may be bound or to
which any of Advanced Ceiling property is subject and no event has occurred with
which lapse of time or action by a third party could result in a material breach
or violation of or default by Advanced Ceiling.
3.6 Except as disclosed herein, and based upon the representations and
warranties of the Buyer set forth herein, no authorization, consent, approval,
exemption or other action by or notice to any government entity or filing with
or consent of any governmental body is required for the sale of the Purchase
Shares to Buyer pursuant to this Agreement.
3.7 There is no claim, legal action, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order, decree
or judgment in progress, pending or in effect, or to the best knowledge of the
Sellers threatened against or relating to Advanced Ceiling or affecting any of
its assets, properties, business or capital stock. There is no continuing order,
injunction or decree of any court, arbitrator or governmental authority to which
Advanced Ceiling is a party or by which Advanced Ceiling or its assets,
properties, business or capital stock are bound.
3.8 Advanced Ceiling has accurately prepared and filed all Federal, state
and other tax returns required by law, domestic and foreign, to be filed by it,
has paid or made provisions for the payment of all taxes shown to be due and all
additional assessments, and adequate provisions have been and are reflected in
the financial statements of Advanced Ceiling for all current taxes and other
charges to which Advanced Ceiling is subject and which are not currently due and
payable. None of the Federal income tax returns of Advanced Ceiling have been
audited by the Internal Revenue Service or other foreign governmental tax
agency. Advanced Ceiling has no knowledge of any additional assessments,
adjustments or contingent tax liability (whether federal or state) pending or
threatened against Advanced Ceiling for any period, nor of any basis for any
such assessment, adjustment or contingency.
3.9 Sellers are the legal, beneficial and registered owners of the Purchase
Shares, free and clear of any liens, charges, encumbrances, voting trusts,
shareholder agreements or rights of any kind granted to any person or entity, or
any interest in or the right to purchase or otherwise acquire any of the
Purchase Shares from the Sellers at any time upon the happening of any stated
event and may transfer such shares without the consent of any third party. Upon
closing of the transactions contemplated hereby, the Buyer will acquire all
right, title and interest in the Purchase Shares, free and clear of all liens,
charges or encumbrances and will have all of Seller's entire right, title and
interest in and to the Purchase Shares. All Purchase Shares owned by Sellers is
set forth hereto on Schedule 3.9.
3.10 Other Shareholders who join this Agreement by Addendum shall
warrant and represent that the shares sold by such shareholders are free and
clear of any liens and encumbrances and may be transferred without consent of
any third party.
3.11 Advanced Ceiling has delivered to Buyer audited financial
statements dated August 31, 1999. All such statements, herein sometimes called
"Advanced Ceiling Financial Statements" are complete and correct in all material
respects and, together with the notes to these financial statements, present
fairly the financial position and results of operations of Advanced Ceiling for
the periods indicated. All financial statements of Advanced Ceiling have been
prepared in accordance with generally accepted accounting principles.
3.12 As of the date hereof, the total indebtedness of Advanced Ceiling
is $7,500.00. Advanced Ceiling and the Sellers hereby, jointly and severally,
represent and warrant that all outstanding indebtedness of Advanced Ceiling
shall have been paid and released prior to the closing of the transactions
hereby and that there are no outstanding liens, charges or encumbrances on the
assets of Advanced Ceiling.
3.13 Since the dates of the Advanced Ceiling Financial Statements,
there have not been any material adverse changes in the business or condition,
financial or otherwise, of Advanced Ceiling. Advanced Ceiling does not have any
liabilities, commitments or obligations, secured or unsecured except as shown on
updated financials (whether accrued, absolute, contingent or otherwise).
3.14 Advanced Ceiling is not a party to any contract performable in the
future.
3.15 The representations and warranties of the Sellers and Advanced Ceiling
shall be true and correct as of the date hereof.
3.16 Advanced Ceiling has delivered to Buyer, all of its corporate books
and records for review.
3.17 Advanced Ceiling has no employee benefit plan in effect at this time.
3.18 No representation or warranty by Advanced Ceiling or the Sellers in
this Agreement, or any certificate delivered pursuant hereto contains any untrue
statement of a material fact or omits to state any material fact necessary to
make such representation or warranty not misleading.
3.19 Sellers or Advanced Ceiling have delivered, to Buyer true and correct
copies of a Form 10SB declared effective by the Securities and Exchange
Commission ("SEC") and each of its other reports to shareholders filed with the
SEC for the year ended December 31, 1999. Advanced Ceiling is a registered
company under the Securities Exchange Act of 1934, as amended.
3.20 Advanced Ceiling has duly filed all reports required to be filed by it
under the Securities Act of 1933, as amended, and the Securities Exchange Act of
1934, as amended (the "Federal Securities Laws"). No such reports, or any
reports sent to the shareholders of Advanced Ceiling generally contained any
untrue statement of material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements in such report, in
light of the circumstances under which they were made, not misleading.
3.21 The Sellers have not received any general solicitation or general
advertising regarding the shares of Buyer's common stock comprising the
Consideration.
3.22 Advanced Ceiling has conducted no business to date, has incurred
no liabilities (other than $7,500 being settled by Sellers), and has no contract
or open account affiliations whatsoever.
ARTICLE IV
Termination of Representation and
Warranties and Certain Agreements; Indemnification
4.1 The respective representations and warranties of the parties hereto
shall survive this Agreement for three years and the covenants shall survive
hereafter.
4.2 The right to indemnification, payment of Damages (as defined in section
4.5) or other remedy based on any representation, warranty, covenant or
obligation of a party hereunder shall not be affected by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
acquired) at any time, whether before or after the execution and delivery of
this Agreement, with respect to the accuracy or inaccuracy of or compliance
with, any such representation, warranty, covenant or obligation.
4.3 The waiver of any condition to a party's obligation to consummate the
transactions contemplated hereunder, where such condition is based on the
accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or obligation, will not affect the right to
indemnification, payment of Damages, or other remedy based on such
representation, warranty, covenant or obligation.
4.4 Advanced Ceiling and each of the Sellers, jointly and severally, shall
indemnify and hold harmless the Buyer, and each of its representatives,
employees, officers, directors, stockholders, controlling persons and affiliates
(collectively, the "Buyer Indemnified Persons") for, and will pay to the Buyer
Indemnified Persons, the amount of, any loss, liability, claim, damage
(including, without limitation, incidental and consequential damages), cost,
expense (including, without limitation, interest, penalties, costs of
investigation and defense and the reasonable fees and expenses of attorneys and
other professional experts) or diminution of value, whether or not involving a
third-party claim (collectively, "Damages"), directly or indirectly arising
from, attributable to or in connection with:
(a) any representation or warranty made by the Sellers and Advanced
Ceiling in this agreement or any of the Sellers' and Advanced
Ceiling closing deliveries, that is, or was at the time made,
false or inaccurate, or any breach of, or misrepresentation with
respect to, any such representation or warranty; and
(b) any breach by any of the Sellers or Advanced Ceiling of any
covenant, agreement or obligation of the Sellers contained in this
agreement.
(c) any claims or litigation relating to Advanced Ceiling now pending
or threatened or which may hereafter be brought against Buyer
and/or Advanced Ceiling based upon events occurring prior to the
date hereof and not attributable to the acts of the Buyer.
(d) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, losses, liabilities and reasonable
legal and other expenses incident to any of the foregoing.
4.5 The Sellers and Advanced Ceiling shall have no liability for
indemnification with respect to any representation or warranty, unless, on or
before the [third] anniversary of the date hereof, the Buyer notifies the
Sellers of a claim specifying the basis thereof in reasonable detail to the
extent then known by the Buyer. A claim with respect to any covenant, agreement
or obligation contained in this agreement, may be made at any time without any
time limitation.
4.6 Promptly after receipt by an indemnified party of written notice (the
"Notice of Claim") of the commencement of any action, suit or proceeding against
it, or written threat thereof, such indemnified party will, if a claim is to be
made against an indemnifying party under either of said sections, as applicable,
give notice to the indemnifying party of the commencement of such action, suit
or proceeding. The indemnified party shall furnish to the indemnifying party in
reasonable detail such information as the indemnified party may have with
respect to such indemnification claims (including copies of any summons,
complaint or other pleading which may have been served on it and any written
claim, demand, invoice, billing or other document evidencing or assenting the
same). Subject to the limitations set forth in this section, no failure or delay
by the indemnified party in the performance of the foregoing shall reduce or
otherwise affect the obligation of the indemnifying party to indemnify and hold
the indemnified party harmless except to the extent that such failure or delay
shall have materially and adversely affected the indemnifying party's ability to
defend against, settle or satisfy any action, suit or proceeding the claim for
which the indemnified party is entitled to indemnification hereunder. The
foregoing shall not apply to the extent inconsistent with the provisions of
section 4.8 relating to Proceedings.
4.7 If the claim or demand set forth in the Notice of Claim given by the
indemnified party is a claim or demand asserted by a third party, the
indemnifying party shall have 30 days after the Date of Notice of Claim to
notify the indemnified party in writing of its election to defend such third
party claim or demand on behalf of the indemnified party (the "Notice Period");
provided, however, that the indemnified party is authorized to file any motion,
answer or other pleading which it deems necessary or appropriate to protect its
interests during the Notice Period. If the indemnifying party elects to defend
such third party claim or demand, the indemnified party shall make available to
the indemnifying party and its agents and representatives all records and other
materials which are reasonably required in the defense of such third party claim
or demand and shall otherwise cooperate (at the sole cost and expense of the
indemnifying party) with, and assist (at the sole cost and expense of the
indemnifying party) the indemnifying party in the defense of, such third party
claim or demand, and so long as the indemnifying party is diligently defending
such third party claim in good faith, the indemnified party shall not pay,
settle or compromise such third party claim or demand. If the indemnifying party
elects to defend such third party claim or demand, the indemnified party shall
have the right to control the defense of such third party claim or demand, at
the indemnified party's own expense. If the indemnifying party does not elect to
defend such third party claim or demand or does not defend such third party
claim or demand in good faith, the indemnified party shall have the right, in
addition to any other right or remedy it may have hereunder at the indemnifying
party's expense, to defend such third party claim or demand.
4.8 The term "Date of Notice of Claim" shall mean the date the Notice of
Claim is effective pursuant to section 5.5 of this Agreement.
4.9 A claim for indemnification for any matter not involving a third-party
claim may be asserted by notice to the party from whom indemnification is
sought.
4.10 Any legal action or proceeding with respect to this Agreement or any
matters arising out of or in connection with this Agreement or the transactions
contemplated hereby or the documents executed and delivered in connection
herewith, and any action for enforcement of any judgment in respect thereof may
be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Agreement, the parties each hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts and appellate courts thereof. The parties irrevocably consent to service
of process out of any of the aforementioned courts in any such action or
proceeding in accordance with the notice provisions set forth in Section 5.5.
The parties each hereby irrevocably waive any objection that it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or the
transactions contemplated hereby or the documents execute and delivered in
connection herewith brought in the courts referred to above and hereby further
irrevocably waive and agree, to the extent permitted by applicable law, not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of any party hereto to serve process in any other manner
permitted by law.
ARTICLE V
Procedure for Closing
5.1 At the Closing Date, the purchase and sale shall be effective with
common stock certificates of Advanced Ceiling being delivered duly executed for
660 shares of common stock to Buyer and the delivery of $163.69 per share to
Sellers from Buyer (from the Escrow with M.A. Xxxxxxx), together with deliver of
all other agreements, schedules, warranties, and representations set forth in
this Agreement.
5.2 Subsequently, the purchase and sale of 12 shares of Advanced
Ceiling common stock from the Other Shareholders shall occur upon tender of the
Acceptance and Sale Addendum executed by such Other Shareholders at $163.69 per
share.
ARTICLE VI
Conditions Precedent to the
Consummation of the Purchase
The following are conditions precedent to the consummation of the
Agreement on or before the Closing Date:
6.1 SELLERS shall have performed and complied with all of their
respective obligations hereunder which are to be complied with or performed on
or before the Closing Date and SELLERS and Advanced Ceiling and BUYER shall
provide one another at the Closing with a certificate to the effect that such
party has performed each of the acts and undertakings required to be performed
by it on or before the Closing Date pursuant to the terms of this Agreement.
6.2 No action, suit or proceeding shall have been instituted or shall
have been threatened before any court or other governmental body or by any
public authority to restrain, enjoin or prohibit the transactions contemplated
herein, or which might subject any of the parties hereto or their directors or
officers to any material liability, fine, forfeiture or penalty on the grounds
that the transactions contemplated hereby, the parties hereto or their directors
or officers, have violated any applicable law or regulation or have otherwise
acted improperly in connection with the transactions contemplated hereby, and
the parties hereto have been advised by counsel that, in the opinion of such
counsel, such action, suit or proceeding raises substantial questions of law or
fact which could reasonably be decided adversely to any party hereto or its
directors or officers.
6.3 All actions, proceedings, instruments and documents required to
carry out this Agreement and the transactions contemplated hereby and the form
and substance of all legal proceedings and related matters shall have been
approved by counsel for BUYER.
6.4 The representations and warranties made by BUYER and SELLERS in
this Agreement shall be true as though such representations and warranties had
been made or given on and as of the Closing Date, except to the extent that such
representations and warranties may be untrue on and as of the Closing Date
because of (1) changes caused by transactions suggested or approved in writing
by BUYER or (2) events or changes (which shall not, in the aggregate, have
materially and adversely affected the business, assets, or financial condition
of Advanced Ceiling during or arising after the date of this Agreement.)
6.5 All outstanding liabilities of Advanced Ceiling shall have been
paid and released prior to closing.
6.6 No change in the management or directors nor exercise of control of
Advanced Ceiling may occur until 1.1 and 2.2 and 5.2 have been completed with
deliver of all shares of outstanding Advanced Ceiling to Buyer and delivery of
purchase price to the Other Shareholders.
ARTICLE VII
Miscellaneous
7.1 This Agreement embodies the entire agreement between the parties,
and there have been and are no agreements, representations or warranties among
the parties other than those set forth herein or those provided for herein.
7.2 To facilitate the execution of this Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument.
7.3 All parties to this Agreement agree that if it becomes necessary or
desirable to execute further instruments or to make such other assurances as are
deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
7.4 This Agreement may not be amended except by written consent of both
parties.
7.5 Any notices, requests, or other communications required or
permitted hereunder shall be delivered personally or sent by overnight courier
service, prepaid, addressed as follows:
To Sellers: c/o M.A. Xxxxxxx
00000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
To: United Venture Group, Inc.
00-00 00xx Xxxxxx
Xxxx Xxxxxx, XX 00000
Copy to:
Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
7.6 No press release or public statement will be issued relating to the
transactions contemplated by this Agreement without prior approval of Buyer and
Sellers. However, Advanced Ceiling may issue at any time any press release or
other public statement it believes on the advice of its counsel it is obligated
to issue to avoid liability under the law relating to disclosures, but the party
issuing such press release or public statement shall make a reasonable effort to
give the other party prior notice of and opportunity to participate in such
release or statement.
7.7 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall be considered one and
the same agreement. This Agreement may be executed by facsimile signatures.
7.8 This Agreement shall be governed by and construed in accordance
with and enforced under the laws of the state of New York applicable to
agreements made and to be performed entirely in that state.
IN WITNESS WHEREOF, the parties have executed this Agreement this _____
day of April.
SELLERS:
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Xxxxx Xxxxxxx
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Xxx Xxxx
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Xxxxxxxx Xxxxxxx
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Xxx Xxxx
ADVANCED CEILING SUPPLIES, INC.
By: --------------------------------
UNITED VENTURE GROUP, INC.
By: --------------------------------
Schedule 3.9
Sellers Purchase Shares Owned
------- ---------------------
Xxxxx Xxxxxxx
Xxx Xxxx
Xxxxxxxx Xxxxxxx
Xxx Xxxx
