4
wrk\excal\roxbury\stockpur.agr
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT dated as of the 1st day of January, 2002,
is by and among, Excal Enterprises, Inc. a Delware corporation, with an
address at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (the
"Seller"), and W. Xxxx Xxxxxx, residing at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxxxx 00000 ("Xxxxxx") and Xxxx Xxxxxx, residing at 4017 Barcelona, Xxxxx,
Xxxxxxx 00000 ("Xxxxxx").
W I T N E S SE T H :
WHEREAS, Seller owns all of the issued and outstanding capital stock of
Wild Hare, Inc., a Florida corporation, with an address at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (the "Company");
WHEREAS, there are Fifteen Hundred (1,500) shares of the common stock,
no par value, of the Company (the "Stock") issued and outstanding on the date
of this Agreement which are held by the Seller;
WHEREAS, the Company currently owes $663,541.75 in indebtedness (the
"Indebtedness") to the Seller;
WHEREAS, the Seller's board of directors have determined that it is in
the best interests of Seller to transfer 50% of the Stock to Xxxxxx and 50%
of the Stock to Xxxxxx, subject to the terms and conditions of this
Agreement;
WHEREAS, on or about the same date as this Agreement, the Company is
issuing a Promissory Note in favor of the Seller evidencing the Indebtedness
and a Security Agreement to secure the payment of the Promissory Note.
NOW, THEREFORE, in consideration of the mutual covenants of the parties
hereinafter set forth, and for other good and valuable consideration, receipt
of which is hereby acknowledged,
IT IS AGREED:
1. Recitals. The parties hereby adopt as part of this Agreement each
of the recitals which is contained in the WHEREAS clauses, and agree that
such recitals shall be binding upon the parties hereto by way of contract and
not merely by way of recital or inducement; and such clauses are hereby
confirmed and ratified as being true and accurate by each party as to
himself, herself or itself.
2. Purchase and Sale of Stock. At the Closing, the Seller shall
transfer seven hundred and fifty (750) shares of Common Stock to Xxxxxx and
seven hundred and fifty (750) shares of Common Stock to Xxxxxx (collectively,
the "Purchased Shares"), and Xxxxxx and Xxxxxx shall acquire the Purchased
Shares from the Seller upon the terms and conditions herein set forth.
3. Purchase Price. The purchase price for the Purchased Shares is
one hundred dollars ($100.00) (the "Purchase Price").
4. Company Debt. At the Closing, the Company shall issue a Promissory
Note and a Security Agreement to the Seller.
5. Representations, Warranties and Covenants of the Seller. The
Seller represents, warrants and covenants to the Xxxxxx and Xxxxxx, as
follows:
A. The Seller is the record, beneficial and equitable owners of
the Stock, free and clear of all pledges, mortgages, liens, encumbrances or
any other charges of any nature.
B. The Seller has the full right, power and legal capacity to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution of this Agreement by the Seller and the consummation by
it of the transactions which are contemplated herein have been duly approved
and authorized by all necessary action by the Seller's Board of Directors and
no further authorization shall be necessary on the part of the Seller for the
performance and consummation by the Seller of the transactions which are
contemplated by this Agreement.
C. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida with all
requisite power and authority to carry on its business as presently conducted
in all jurisdictions where presently conducted, to enter into this Agreement
and to the transactions which are contemplated herein.
D. Upon Closing, the Company's authorized capital stock will
consist of One Thousand Five Hundred (1,500) shares of Common Stock, no par
value, all of which are issued and outstanding.
7. Survival of Representations and Warranties. All covenants,
agreements, representations and warranties made in or in connection with this
Agreement and in certificates delivered pursuant hereto shall continue in
full force and effect for one year after the Closing. Each of such
covenants, agreements, representations and warranties is of the essence of
this Agreement and the same shall be binding upon and inure to the benefit of
the parties hereto, their successors and assigns.
8. Miscellaneous.
A. Headings. Headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
B. Enforceability. If any provision which is contained in this
Agreement should, for any reason, be held to be invalid or unenforceable
in any respect under the laws of any state or of the United States, such
invalidity or unenforceability shall not affect any other provision of this
Agreement. Instead, this Agreement shall be construed as if such invalid or
unenforceable provisions had not been contained herein.
C. Notices. Any notice or other communication required or
permitted hereunder must be in writing and sent by either (i) registered or
certified mail, postage prepaid, return receipt requested, (ii) overnight
delivery with confirmation of delivery or (iii) facsimile transmission with
an original mailed by first class mail, postage prepaid, in each case
addressed to the party as their address appears below:
If to Seller: Excal Enterprises, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
If to Company: Wild Hare Holdings, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
If to Xxxxxx: W. Xxxx Xxxxxx
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile No.:
If to Xxxxxx: Xxxx Xxxxxx
4017 Barcelona
Xxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing by registered or certified mail is
impossible due to an absence of postal service, and if the other methods of
sending notice set forth in this Paragraph of this Agreement are not
otherwise available, notice shall be in writing and personally delivered to
the aforesaid address. Each notice or communication shall be deemed to have
been given as of the date so mailed or delivered, as the case may be;
provided, however that any notice sent by facsimile shall be deemed to have
been given as of the date sent by facsimile if a copy of such notice is also
mailed by first class mail on the date sent by facsimile; if the date of
mailing differs from the date of sending by facsimile, then the date of
mailing by first class mail shall be deemed to be the date upon which notice
was given.
D. Governing Law; Disputes. This Agreement shall in all respects
be construed, governed, applied and enforced in accordance with the internal
laws of the State of Florida without giving effect to the principles of
conflict of laws and be deemed to be an agreement entered into in the State
of Florida and made pursuant to the laws of the State of Florida. The
parties agree that they shall be deemed to have agreed to binding arbitration
with respect to the entire subject matter of any and all disputes relating to
or arising under this Agreement, including, but not limited to, the specific
matters or disputes as to which arbitration has been expressly provided for
by other provisions of this Agreement. Any such arbitration shall be by a
panel of three arbitrators and pursuant to the commercial rules then existing
of the American Arbitration Association in Hillsboro County, Florida. In all
arbitrations, judgment upon the arbitration award may be entered in any court
having jurisdiction. The parties agree, further, that the prevailing party
in any such arbitration as determined by the arbitrators shall be entitled to
such costs and attorney's fees, if any, in connection with such arbitration
as may be awarded by the arbitrators. In connection with the arbitrators'
determination for the purpose of which party, if any, is the prevailing
party, they shall take into account all of the factors and circumstances
including, without limitation, the relief sought, and by whom, and the
relief, if any, awarded, and to whom. In addition, and notwithstanding the
foregoing sentence, a party shall not be deemed to be the prevailing party in
a claim seeking monetary damages, unless the amount of the arbitration award
exceeds the amount offered in writing by the other party by fifteen percent
(15%) or more. For example, if the party initiating arbitration ("A") seeks
an award of $100,000 plus costs and expenses, the other party ("B") has
offered A $50,000 prior to the commencement of the arbitration proceeding,
and the arbitration panel awards any amount less than $57,500 to A, the panel
should determine that B has "prevailed".
E. Entire Agreement. The parties have not made any representations,
warranties, or covenants with respect to the subject matter hereof which is
not set forth herein, and this Agreement, together with any instruments or
other agreements executed simultaneously herewith, constitutes the entire
Agreement between them with respect to the subject matter hereof. All
understandings and Agreements heretofore had between the parties with respect
to the subject matter hereof are merged in this Agreement and any such
instrument, which alone fully and completely expresses their Agreement. This
Agreement may not be changed, modified, extended, terminated or discharged
orally, but only by an Agreement in writing, which is signed by all of the
parties to this Agreement.
F. Further Assurances. The Parties agree to execute any and all
such other and further instruments and documents, and to take any and all
such further actions, which are reasonably required to effectuate this
Agreement and the intents and purposes hereof.
G. Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their heirs, executors,
administrators, personal representatives, successors and assigns.
H. 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 or to exercise any
option herein contained shall not be construed as a waiver or relinquishment
for the future of any such provisions, covenants, or 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 or subsequent breach.
I. Counterparts. This Agreement 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.
J. Signatures. This Agreement may be validly signed and executed
by a facsimile of the signature of any party with the same force and effect
as if an original signature was affixed.
IN WITNESS WHEREOF, the parties hereof have signed these presents,
as of the day, month and year first above written.
Excal Enterprises, Inc.
By:
--------------------------
W. Xxxxx Xxxx, President
------------------------------
Xxxx Xxxxxx
------------------------------
W. Xxxx Xxxxxx
