SHARE PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement") dated as of the 5th th day of October
2001 by and among Genesis Realty Group, Inc., a Delaware corporation ("GRG" or
the "Corporation"), and Xxxxx Global Development, LLC, a Delaware limited
liability company ("Xxxxx Global" or "Buyer").
WITNESSETH:
WHEREAS, the Corporation was incorporated to develop and operate an
online auction web site that was dedicated to bringing together buyers and
sellers of real estate (the "Business");
WHEREAS, the Corporation effective at time of Closing (as hereinafter
defined), shall have authorized 100,000,000 shares of common stock (the "Common
Stock"), $.001 par value, of which 19,580,350 shares are issued and outstanding;
and
WHEREAS, the Corporation desires to sell and Buyer desires to purchase
17,078,661 shares of the Corporation's authorized, but unissued Common Stock
which upon issuance thereof shall constitute 87.2 percent of the issued and
outstanding Common Stock, (the "Purchased Securities") subject to the terms of
this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements herein contained, the
result and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. Sale and Purchase of Common Stock; Consideration. Subject to the
terms and conditions of this Agreement, and in reliance upon the representation,
warranties, covenant and agreements herein, the Corporation shall sell,
transfer, convey and deliver to the Buyer, and the Buyer shall purchase, pay
aggregate consideration of $170,786.61 to the Corporation (the "Purchase Price")
and accept delivery of, an aggregate of 17,078,661 shares of the Corporation's
Common Stock free and clear of all encumbrances as follows: (a) at Closing (as
hereinafter defined) the Buyer shall deliver to the Corporation a non-recourse
promissory note, in the principal amount of the Purchase Price, in the form
attached as Exhibit A hereto. The Promissory Note shall bear interest at an
annual rate equivalent to 6.0% per annum and shall be due and payable on October
4, 2005. The Promissory Note shall be secured by the Purchased Securities.
2. The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on such date, at such place and at
such time (the "Closing Date") within five business days after the satisfaction
or waiver of the last of the conditions set forth in Sections 7 and 8 hereof as
shall be determined by the mutual consent of GRG and Xxxxx Global.
3. Xxxxx Global Representations and Warranties. In order to induce GRG
to execute, and perform their obligations under, this Agreement, Xxxxx Global
does hereby represent, warrant, covenant and agree (which representations,
warranties, covenants and agreements shall be, and be deemed to be, continuing
and survive the execution and delivery of this Agreement, and the Closing Date)
as follows:
(a) Xxxxx Global is a limited liability company duly organized
and validly existing under the laws of the State of Delaware and has all
requisite power and authority to own, lease and operate its properties and
assets and to conduct the business as now conducted and as proposed to be
conducted. A true, complete and correct copy of each of the Certificates of
Formation, Operating Agreement and other governing documents of Xxxxx Global as
in effect on the date of this Agreement, including all amendments thereto, have
heretofore been delivered to GRG.
(b) Xxxxx Global is duly qualified to do business as a foreign
corporation, and is in good standing, in all jurisdictions, if any, wherein such
qualification is necessary and where failure so to qualify would have a material
adverse effect on the business, properties, liabilities, assets, operations,
results of operations, condition (financial or otherwise) or affairs of Xxxxx
Global.
(c) (i) Xxxxx Global has the full power and authority,
corporate and otherwise, to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby; (ii) the execution, delivery
and performance of this Agreement, the consummation by Xxxxx Global of the
transactions herein contemplated and the compliance by Xxxxx Global with the
terms of this Agreement have been duly authorized by all necessary corporate
action; (iii) this Agreement is the valid and binding obligation of Xxxxx Global
enforceable in accordance with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally and the discretion of
courts in granting equitable remedies; (iv) the execution, delivery and
performance of this Agreement by Xxxxx Global and the consummation by Xxxxx
Global of the transactions herein contemplated do not, and will not, with or
without the giving of notice or the lapse of time, or both, (A) result in any
violation of the Certificate of Formation or Operating Agreement of Xxxxx Global
or (B) result in a breach of, or a conflict with, any of the terms or provisions
of, or constitute a default under, or result in the modification or termination
of, or result in the creation or imposition of any lien, security interest,
charge or encumbrance upon any of the properties or assets of Xxxxx Global
pursuant to, any indenture, mortgage, note, contract, commitment or other
agreement or instrument to which Xxxxx Global is a party or by which it is, or
any of its respective properties or assets are, or may be, bound or affected. No
consent, approval, authorization or order of, or any filing with, any court,
governmental agency, authority or body and/or any party to any agreement to
which Xxxxx Global is a party and/or by which it is bound is required in
connection with the execution, delivery and performance of this Agreement and/or
the consummation by Xxxxx Global of the transactions contemplated by this
Agreement.
(d) Xxxxx Global is not in violation of, or in default under,
(i) any term or provision of its Certificate of Formation or Operating
Agreement; (ii) any material term or provision of any financial covenant of any
indenture, mortgage, contract, commitment or other agreement or instrument to
which it is a party or by which it is, or any or its properties or assets are,
or may be, bound or affected; or (iii) any existing applicable law, rule,
regulation, judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over it or any of its properties or
business. Xxxxx Global owns, possesses or has obtained all governmental and
other licenses, permits, certifications, registration, approvals or consents and
other authorizations necessary to own or lease, as the case may be, and to
operate its properties and to conduct its business or operations as presently
conducted and all such governmental and other licenses, permits, certifications,
registrations, approvals, consents and other authorizations are outstanding and
in good standing and there are no proceedings pending or, to the best of its
knowledge,
threatened or any basis therefor existing, seeking to cancel, terminate or limit
such licenses, permits, certifications, registrations, approvals or consents or
authorizations.
(e) there are no claims, actions, suits, proceedings,
arbitrations, investigations or inquiries before any court or governmental
agency, court or tribunal, domestic or foreign, or before any private
arbitration tribunal, pending or, to the best of the knowledge of Xxxxx Global,
threatened against Xxxxx Global or involving its assets which, if determined
adversely to Xxxxx Global, would, individually or in the aggregate, result in a
material adverse change in the financial position, results of operations,
properties, business, management or affairs of Xxxxx Global, or which question
the validity of this Agreement or of any action taken, or to be taken, by Xxxxx
Global pursuant to, or in connection with, this Agreement; nor, to the best of
the knowledge of Xxxxx Global, is there any basis for any such claim, action,
suit, proceeding, arbitration, investigation or inquiry to be made by any person
and/or entity. There are no outstanding orders, judgments or decrees of any
court, governmental agency or other tribunal specifically naming Xxxxx Global
and/or enjoining Xxxxx Global from taking, or requiring Xxxxx Global to take,
any action, and/or by which Xxxxx Global is, and/or its assets are, bound or
subject.
(f) Xxxxx Global is not default, in any respect, under the
terms of any outstanding agreement which is material to the business,
operations, properties, assets or condition of Xxxxx Global and there exists no
event of default or event which, with notice and/or the passage of time, or
both, would constitute any such default.
(f) Buyer's Private Offering Representations.
(i) The Buyer has such knowledge and experience in financial
and business matters and is capable of evaluating the merits and risks of an
investment in the Corporation.
(ii) The Buyer does not intend or anticipate that this
investment be a source of current income, and has the ability to bear the
economic risks of its investment in the Corporation.
(iii) The Buyer understands that the Securities subscribed for
hereby have not been registered under the Securities Act of 1933 and are sold in
reliance on an exemption thereunder for intrastate sales, have not been approved
or disapproved by the Securities and Exchange Commission or by any other Federal
or state agency. A RESALE OF THE SECURITIES SUBSCRIBED FOR HEREUNDER CANNOT
OCCUR UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNLESS AN EXEMPTION
FOR SUCH RESALE EXISTS.
(iv) The Buyer is acquiring the Purchased Securities hereunder
for its own account for investment purposes only and not with view to the sale
or other distribution thereof.
4. GRG Representations and Warranties. In order to induce Xxxxx Global
to execute, and perform its obligations under, this Agreement, GRG does hereby
represent, warrant, covenant and agree (which representations, warranties,
covenants and agreements shall be, and be deemed to be, continuing and survive
the execution and delivery of this Agreement, and the Closing Date) as follows:
(a) GRG is a corporation duly organized, validly existing and in
standing under the laws of the State of Delaware, with full power and authority,
corporate and otherwise, and with all licenses,
permits, certifications, registrations, approvals, consents and franchises
necessary to own or lease and operate its properties and to conduct its business
as currently being conducted.
(b) GRG is duly qualified to do business as a foreign corporation, and
is in good standing, in all jurisdictions, if any, wherein such qualification is
necessary and where failure so to qualify would have a material adverse effect
on the business, properties, liabilities, assets, operations, results of
operations, condition (financial or otherwise) or affairs of GRG.
(c) Other than Acquisition Corp., which is a wholly-owned subsidiary of
GRG, GRG never had, nor does it have, any subsidiaries, nor has it ever owned,
nor does it currently own, any capital stock or other proprietary interest,
directly or indirectly, in any corporation, association, trust, partnership,
joint venture or other entity.
(d) (i) GRG has the full power and authority, corporate and otherwise,
to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby; (ii) the execution, delivery and performance
of this Agreement, the consummation by GRG of the transactions herein
contemplated and the compliance by GRG with the terms of this Agreement have
been duly authorized by all necessary corporate action; (iii) this Agreement is
the valid and binding obligation of GRG enforceable in accordance with its
terms, subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the rights of
creditors generally and the discretion of courts in granting equitable remedies;
(iv) the execution, delivery and performance of this Agreement by GRG and the
consummation by GRG of the transactions herein contemplated do not, and will
not, with or without the giving of notice or the lapse of time, or both, (A)
result in any violation of the Certificate of Incorporation or By-Laws of GRG,
(B) result in a breach of, or a conflict with, any of the terms or provisions
of, or constitute a default under, or result in the modification or termination
of, or result in the creation or imposition of any lien, security interest,
charge or encumbrance upon any of the properties or assets of GRG pursuant to,
any indenture, mortgage, note, contract, commitment or other agreement or
instrument to which GRG is a party or by which it is, or any of its respective
properties or assets are, or may be, bound or affected. No consent, approval,
authorization or order of, or filing with, any court, governmental agency,
authority or body (other than as required pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder) or as otherwise provided in this Agreement) and/or any
party to an agreement to which GRG is a party and/or by which it is bound is
required in connection with the execution, delivery and performance of this
Agreement and/or the consummation by GRG of the transactions contemplated by
this Agreement.
(e) GRG is not in violation of, or in default under, (i) any term or
provision of its Certificate of Incorporation or By-Laws; (ii) any material term
or provision of any financial covenant of any indenture, mortgage, contract,
commitment or other agreement or instrument to which it is a party or by which
it is, or any or its properties or assets are, or may be, bound or affected; or
(iii) any existing applicable law, rule, regulation, judgment, order or decree
of any governmental agency or court, domestic or foreign, having jurisdiction
over it or any of its properties or business, including, without limitation, all
reporting obligations pursuant to the Exchange Act and the rules and regulations
promulgated thereunder. GRG owns, possesses or has obtained all governmental and
other licenses, permits, certifications, registration, approvals or consents and
other authorizations necessary to own or lease, as the case may be, and to
operate its properties and to conduct its business or operations as presently
conducted and all such governmental and other licenses,
permits, certifications, registrations, approvals, consents and other
authorizations are outstanding and in good standing and there are no proceedings
pending or, to the best of its knowledge, threatened or any basis therefor
existing, seeking to cancel, terminate or limit such licenses, permits,
certifications, registrations, approvals or consents or authorizations.
(f) There are no claims, actions, suits, proceedings, arbitrations,
investigations or inquiries before any court or governmental agency, court or
tribunal, domestic or foreign, or before any private arbitration tribunal,
pending or, to the best of the knowledge of GRG, threatened against GRG or
involving its assets which, if determined adversely to GRG, would, individually
or in the aggregate, result in a material adverse change in the financial
position, stockholders' equity, results of operations, properties, business,
management or affairs of GRG, or which question the validity of this Agreement
or of any action taken, or to be taken, by GRG pursuant to, or in connection
with, this Agreement; nor, to the best of the knowledge of GRG, is there any
basis for any such claim, action, suit, proceeding, arbitration, investigation
or inquiry to be made by any person and/or entity. There are no outstanding
orders, judgments or decrees of any court, governmental agency or other tribunal
specifically naming GRG and/or enjoining GRG from taking, or requiring GRG to
take, any action and/or by which GRG is, and/or its assets are, bound or
subject.
(g) GRG owns no trademarks, service marks, tradenames, copyrights,
similar rights and their registrations, trade secrets, methods, practices,
systems, ideas, know how and confidential materials (collectively the "GRG
Intangibles") used or proposed to be used in the conduct of its business as
intended to be conducted as of the date hereof. All GRG Intangibles related to
its former intended business of conducting on the Internet auctions between
prospective buyers and sellers have been disposed of and are no longer assets of
GRG, nor does GRG have any liabilities related thereto.
(h) GRG is not aware of any material misstatements or omissions in any
periodic report previously filed by GRG pursuant to Section 13 of the Exchange
Act or in any proxy or information material previously furnished to its
stockholders pursuant to Section 14 of the Exchange Act.
(i) GRG has previously delivered to Xxxxx Global a copy of the
following financial statements as they were filed in; (a) GRG's Annual Report on
Form 10-KSB for the fiscal year ended December 31, 2000 accompanied by the audit
report of Salibello & Broder LLP, GRG's independent auditors, with respect to
such financial statements and (b) GRG's Quarterly Reports on Form 10-Q for the
months ended March 31, 2001 and June 30, 0000, (xxx "XXX Xxxxxxxxx Xxxxxxxxxx").
The GRG Financial Statements are true and accurate, are in accordance with the
books and records of GRG and present fairly in all material respects the
financial position and related results of operations of GRG as of the times and
for the periods referred to herein, in each case in accordance with GAAP. All of
the financial books and records of GRG have been made available to Xxxxx Global,
and such books and records completely and fairly record in all material respects
GRG's financial affairs, which would normally be recorded in financial books and
records.
Except as set forth in Schedule 4(i), GRG has no debt, liabilities or
obligations of any nature, whether accrued, absolute, contingent or otherwise,
whether due or to become due and whether or not the amount thereof is readily
ascertainable, that are not reflected as a liability in the GRG Financial
Statements or except for liabilities incurred by GRG in the ordinary course of
business since June 30, 2001 consistent with past practices which are not
otherwise prohibited by, or in violation of, or which will not result in a
breach of, the representations, warranties and
covenants of GRG contained in this Agreement. There was no material loss
contingencies (as such term is used in FAS No. 5 issued by the FASB) which were
not adequately provided for in the GRG Financial Statements as required by FAS
No. 5.
(j) GRG does not currently own, nor has it ever owned, any real
property, Schedule 4(j) hereto contains a list and a brief description of (i)
all real property leased by GRG and (ii), with respect to each lease, the name
of the lessor, any requirement of consent of the lessor to assignment (including
assignment by way of merger or change in control) and the termination date of
the lease. GRG has made available to Xxxxx Global true and complete copies of
all leases. GRG owns and has good and marketable title to its assets, properties
and interests in properties which are reflected in the latest balance sheet
included in the GRG Financial Statements, in all cases free and clear of all
liens, security interests, claims and encumbrances of every kind, nature and
description and rights and options of others except as expressly set forth in
such balance sheet.
(k) GRG has not, except as set forth on Schedule 4 (k) hereto, (i)
incurred any obligation or liability (absolute or contingent, secured or
unsecured); (ii) cancelled, without payment in full, any notes, loans or other
obligations receivable or other debts or claims held by it; (iii) sold,
assigned, transferred, abandoned, mortgaged, pledged or subjected to lien or
security interest any of its material properties, tangible or intangible, or
rights under any contract, permit, license, franchise or other agreement; (iv)
entered into any line of business other than that previously conducted by it
prior to the date hereof or entered into any transaction not in the ordinary
course of its business; or (v) declared, made or paid, or set aside for payment,
any cash or non-cash dividends or other distribution on any shares of its
capital stock.
(l) GRG is not in default, in any respect, under the terms of any
outstanding agreement which is material to the properties, assets or financial
condition of GRG and there exists no event of default or event which, with
notice and/or the passage of time, or both, would constitute any such default.
(m) GRG has filed all federal, state, municipal and local tax returns
(whether relating to income, sales, franchise, withholding, real or personal
property or otherwise) required to be filed under the laws of the United States
and all applicable states and has paid in full all taxes which are due pursuant
to such returns or claimed to be due by any taxing authority or otherwise due
and owing. No penalties or other charges are, or will become, due with respect
to the late filing of any such return. To the best of the knowledge of GRG,
after due investigation, each such tax return heretofore filed by GRG correctly
and accurately reflects the amount of its tax liability thereunder. GRG has
withheld, collected and paid all other levies, assessments, license fees and
taxes to the extent required and, with respect to payments, to the extent that
the same have become due and payable.
(n) The authorized and outstanding capitalization of GRG is as set
forth on Schedule 4 (n) hereto. As of the date hereof and the Closing Date,
there shall not be authorized and/or issued and outstanding any shares of
capital stock of GRG except as set forth on Schedule 4 (n) or in the next
sentence and there shall not be outstanding any rights to purchase shares of
capital stock of GRG. The issued and outstanding shares of the GRG Common Stock
have been duly authorized and validly issued and the shares to be issued to
Atlas will be duly authorized and validly issued. All of the outstanding shares
of the GRG Common Stock are fully paid and nonassessable. Except as set forth on
Schedule 4 (n), there are no outstanding warrants, options, or similar rights to
purchase or
convert into the GRG Common Stock. There are no preemptive rights with respect
to the GRG Common Stock. GRG has no reason to believe that any holder of such
outstanding shares of the GRG Common Stock is subject to personal liability
solely by reason of being such a holder. The offers and sales of such
outstanding shares of the GRG Common Stock were, at all relevant times, exempt
from the registration or prospectus delivery requirements of the Securities Act
and any applicable state securities laws pursuant to an exemption for which GRG
and/or such offering or sale fully qualified. No dividends, redemptions or other
distributions of the assets of GRG have been, or will be, declared and/or Xxxxx
Global prior to the Closing Date on or with respect to the GRG Common Stock. The
shares of the GRG Common Stock have been registered under Section 12(g) of the
Exchange Act.
(o) Except as set forth in Schedule 4 (o) hereto and as contemplated by
this Agreement, since June 30, 2000, there has not been with respect to GRG:
(i) Any loan to any person or entity and/or the issuance of any
guaranty for, or with respect to, its or another's
obligations;
(ii) Any waiver or release of any material right or claim;
(iii) Any incurrence of any material obligation or liability,
absolute or contingent;
(iv) Any payment of any material obligation or liability,
absolute or contingent, except for current liabilities
reflected in, or shown on, the most recent balance sheet of
GRG and/or incurred subsequent to the date thereof in the
ordinary course of business and/or in connection with the
transactions contemplated by this Agreement; and
(v)Any material adverse change in the business, assets,
properties, liabilities, operations, results of operations,
condition (financial or otherwise) or affairs of GRG;
(vi) Any damage, destruction or loss, whether or not covered by
insurance, having or which could reasonably be expected to
have a material adverse effect on GRG;
(vii) (A) Any liability created, assumed, guaranteed or incurred,
or (B) any transaction, contract or commitment entered into,
by GRG, in the case of either clause (A) or (B) other than
in the ordinary course of business;
(viii) Any payment, discharge or satisfaction of any material
encumbrance by GRG or any cancellation by GRG of any
material debts or claims or any amendment, termination or
waiver of any rights of material value to GRG;
(ix) Any direct or indirect redemption, purchase or other
acquisition of any such shares of the capital stock of GRG;
(x) Except for a 1 for 2 reverse stock split that took place in
October, 2001, any stock split, reverse stock split,
combination, reclassification or recapitalization of the GRG
Common Stock, or any issuance of any other security in
respect of, or in exchange for, any shares of the GRG Common
Stock;
(xi) Any issuance by GRG of any shares of its capital stock or
any debt security or any subscription or similar right to
acquire any shares of the GRG capital stock;
(xii) Any license, sale, transfer, pledge, mortgage or other
disposition of any material tangible or intangible asset
(including any GRG Intangibles) of GRG;
(xiii) Any termination of, or written indication of an intention
to terminate or not renew, any material contract, license,
commitment or other agreement between GRG and any other
person;
(xiv) Any material write-down or write-up of the value of any
asset of GRG, or any material write-off of any accounts
receivable or notes receivable of GRG or any portion
thereof;
(xv) Any increase in, or modification of, compensation payable,
or to become payable to, any director, officer, employee,
consultant or agent of GRG, or the entering into of any
employment contract with any officer or employee;
(xvi) Any increase in, or modification or acceleration of, any
benefits payable or to become payable under any bonus,
pension, severance, insurance or other benefit plan, payment
or arrangement (including, but not limited to, the granting
of stock options, restricted stock awards or stock
appreciation rights) made to, for or with any director,
officer, employee, consultant or agent of GRG other than as
described in Schedule 9(n) hereto;
(xvii) The making of any loan, advance or capital contribution
to, or investment in, any person or the engagement in any
transaction with any employee, officer, director or security
holder of GRG, other than advances to employees in the
ordinary course of business for travel and similar business
expenses;
(xviii) Any change in the accounting methods or practices
followed by GRG or any change in depreciation or
amortization policies or rates theretofore adopted;
(xix) Any termination of employment of any officer or key
employee of GRG or any expression of intention by any
officer or key employee of GRG to resign from such office or
employment with GRG;
(xx) Any amendments or changes in GRG's Certificate of
Incorporation or By- Laws not relating to a change in name;
(xxi) Any agreement, understanding, authorization or proposal,
whether in writing or otherwise, for GRG to take any of the
actions described in this Section 4(o).
(p) As required by applicable law, at the Closing, all of the shares of the
GRG Common Stock to be issued by GRG pursuant to this Agreement shall be, and be
deemed to be, duly and validly authorized and, when issued to the Xxxxx Global
shareholders in exchange for their shares of the Xxxxx Global Common Stock, duly
and validly issued, fully paid and nonassessable and free and clear of all
federal and state issuance, stock and/or company taxes, liens, security
interests, claims, encumbrances and charges.
5. Xxxxx Global Covenants. Xxxxx Global shall, during the period commencing
on the date hereof and terminating immediately following the close of business
on the Closing Date:
(a) Take and perform any and all actions necessary to render accurate,
and/or maintain the accuracy of, all of the representations and
warranties of Xxxxx Global herein contained and/or satisfy each
covenant or condition required to be performed or satisfied by Xxxxx
Global at or prior to the Closing;
(b) Not take or perform any action which would or might cause any
representation or warranty made by Xxxxx Global herein to be rendered
inaccurate, in whole or in part, and/or which would prevent, inhibit
or preclude the satisfaction, in whole or in part, of any covenant
required to be performed or satisfied by Xxxxx Global at or prior to
the Closing;
Carry on and maintain its business in substantially the same form, style and
manner as heretofore operated by it; perform, in all material respects, all of
its respective obligations under all material agreements, leases and documents
relating to or affecting its respective assets, properties and businesses; and
use its best efforts to preserve intact its business organization and the good
will and relationships with its suppliers, customers and others having business
relations with I
Immediately advise GRG of any event, condition or occurrence which
constitutes, or may, with the passage of time and/or giving of notice,
constitute, a breach of any representation or warranty of Xxxxx Global herein
contained and/or which prevents, inhibits or limits or may prevent, inhibit or
limit Xxxxx Global from satisfying, in full and on a timely basis, any covenant,
term or condition herein contained and/or implementing this Agreement.
6. GRG Covenants. GRG shall, during the period commencing on the date
hereof and terminating immediately following the close of business on the
Closing Date:
(a) Take and perform any and all actions necessary to render accurate,
and/or maintain the accuracy of, all of the representations and
warranties of GRG herein contained and/or satisfy each covenant or
condition required to be performed or satisfied by GRG at or prior to
the Closing ;
(b) Not take or perform any action which would or might cause any
representation or warranty made by GRG herein to be rendered
inaccurate, in whole or in part, and/or which would prevent, inhibit
or preclude the satisfaction, in whole or in part, of any covenant
required to be performed or satisfied by GRG at or prior to the
Closing;
(c) Perform, in all material respects, all of its obligations under all
material agreements, leases and documents relating to or affecting its
assets or properties; Immediately advise Xxxxx Global of any event,
condition or occurrence which constitutes, or may, with the passage of
time and/or giving of notice, constitute, a breach of any
representation or warranty of GRG herein contained and/or which
prevents, inhibits or limits or may prevent, inhibit or limit GRG from
satisfying, in full and on a timely basis, any covenant, term or
condition herein contained and/or implementing this Agreement;
7. GRG Conditions Precedent. The obligations of GRG to implement this
Agreement is subject to, and conditioned upon, the GRG satisfaction (and/or
waiver) of each of the following conditions:
(a) The representations and warranties of Xxxxx Global contained in this
Agreement shall be true and correct in all material respects as of the
Closing Date with the same effect as if made on and as of the Closing
Date and Xxxxx Global shall have performed in all material respects
all of its covenants and obligations contemplated hereunder to be
performed on or prior to the Closing Date. At the Closing, GRG shall
have received a certificate, executed by the Chief Executive Officer
and the Secretary of Xxxxx Global (effective as of the Closing and the
Effective Date) and in form reasonably acceptable to GRG, certifying
as of both the date of this Agreement and the Closing Date, the truth
and accuracy of (and the remaking of) the representations and
warranties of Xxxxx Global herein contained, including, without
limitation, those set forth in Section 3 hereof.
(b) Prior to the Closing, there shall not have occurred any material
adverse change in the financial condition, business or operations of
Xxxxx Global, nor shall any event have occurred or condition exist
which, with the passage of time or the giving of notice, or both, may
cause or create any such adverse material change.
(c) Prior to the Closing, all corporate and other proceedings in
connection with the transactions contemplated by this Agreement and
all documents and instruments incident to such transactions shall be
in form and content reasonably satisfactory to GRG and its counsel and
GRG and its counsel shall have received all counterpart originals or
certified or other copies of such documents and instruments as they
may reasonably request.
(d) No action or proceeding shall have been instituted and be pending by
any private party and/or governmental agency or authority challenging
the legality of this Agreement and/or seeking to prevent or delay
consummation of the transactions herein contemplated, which action or
proceeding shall have resulted in an order granting preliminary or
permanent injunctive relief prohibiting consummation of this Agreement
and which order shall not have been vacated as of the Closing.
(e) All statutory requirements for the valid consummation by Xxxxx Global
of the transactions herein described shall have been fully and timely
satisfied; all authorizations, consents and approvals of all federal,
state and local governmental agencies and authorities required to be
obtained in order to permit consummation by Xxxxx Global of the
transactions herein described and/or to permit the
businesses currently carried on by Xxxxx Global to continue unimpaired
in all material respects immediately following the Closing Date shall
have been obtained and shall be in full force and effect; and no
action or proceeding to suspend, revoke, cancel, terminate, modify or
alter any of such authorizations, consents or approvals shall be
pending or threatened.
(f) GRG's due diligence inquiry of Xxxxx Global shall be complete and
satisfactory. 8. Xxxxx Global Conditions Precedent. The obligation of
Xxxxx Global to implement this Agreement is, at its election, subject
to, and conditioned upon, the satisfaction (and/or waiver) of each of
the following conditions:
(a)The representations and warranties of GRG contained in this
Agreement shall be true and correct in all material respects as
of the Closing Date with the same effect as if made on and as of
the Closing Date. At the Closing, Xxxxx Global shall have
received a certificate, executed by the President and the
Secretary of GRG (effective as of the Closing Date) and in form
and content reasonably acceptable to Xxxxx Global, certifying, as
to both the date of this Agreement and the Closing Date the truth
and accuracy of (and the remaking of) the representations and
warranties of GRG herein contained, including, without
limitation, those set forth in Sections 9 and 10 hereof.
(b) Prior to the Closing, all corporate and other proceedings in
connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions
shall be in form and content reasonably satisfactory to Xxxxx
Global and its counsel and Xxxxx Global and its counsel shall
have received all counterpart originals or certified or other
copies of such documents and instruments as they may reasonably
request.
(c) No action or proceeding shall have been instituted and be
pending by any private party and/or governmental agency or
authority challenging the legality of this Agreement and/or
seeking to prevent or delay consummation of the transactions
herein contemplated, which action or proceeding shall have
resulted in an order granting preliminary or permanent injunctive
relief prohibiting consummation of this Agreement and which order
shall not have been vacated as of the Closing.
(d) All statutory requirements for the valid consummation by GRG
of the transactions herein described shall have been fully and
timely satisfied; all authorizations, consents and approvals of
all federal, state and local governmental agencies and
authorities required to be obtained in order to permit
consummation by GRG of the transactions herein described shall
have been obtained and shall be in full force and effect; and no
action or proceeding to suspend, revoke, cancel, terminate,
modify or alter any of such authorizations, consents or approvals
shall be pending or threatened.
(e) Xxxxx Global's due diligence inquiry of GRG shall be complete
and satisfactory. 9. Termination.
(a) This Agreement may be terminated at any time prior to
the Closing Date either: (a) by mutual agreement of the
Boards of Directors of Xxxxx Global and GRG; or (b) by the
Board of Directors of either Xxxxx Global or GRG if either
(i) the Closing shall not have taken place on or prior to
October 10, 2001 (other than by reason of the default
hereunder by the terminating party) or (ii) there is any
statute, rule or regulation which makes consummation of the
Agreement illegal or otherwise prohibited or any order,
decree, injunction or judgment enjoining GRG or Xxxxx Global
from consummating the Agreement is
issued by a court of competent jurisdiction and such order,
decree, injunction or judgment has become final and
non-appealable.
(b) In the event of the termination of this Agreement as
provided in subsection (a) of this Section 9, all of the
obligations and liabilities of the parties under this
Agreement shall terminates; provided, however, that nothing
in this Section 9 shall relieve any party from any liability
for any breach of this Agreement.
10. Costs and Expenses. Each party shall pay their own costs and expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the costs and expenses relating to the preparation of this
Agreement, such as attorneys' fees, accounting fees, printing expenses and
consent solicitation expenses.
11. Notices. Any and all notices, requests or instructions desired to be
given by any party hereto to any other party hereto shall be in writing and
shall be either be hand delivered, delivered by express courier or mailed to the
recipient first class, postage prepaid, certified, return receipt requested at
the following respective addresses:
To: Xxxxx Global:
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Chief Executive Officer
With a copy to:
Xxx Xxxxxxxxx, Esq.
Marks Paneth & Shron
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
To: GRG:
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
With a copy to:
Xxxxxx & Jaclin, LLP
0000 Xxxxx 0 Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
or to such other address as any party hereto shall designate in a writing
complying with the provisions of this Section 11.
12. Waiver. Each of the parties hereto may, by written instrument, (a)
extend the time for the performance of any of the obligations or other acts of
any other party hereto; (b) waive any inaccuracies of such other party in the
representations and warranties contained herein or in any document delivered
pursuant to this Agreement; (c) waive compliance with any of the covenants of
such other party contained in this Agreement; (d) waive such other party's
performance of any of such other party's obligations set out in this Agreement;
and (e) waive any condition to such other party's obligation to effect the
transaction.
13. Amendments. This Agreement may be amended at any time prior to the
Closing Date by a writing executed by an authorized officer of GRG and Xxxxx
Global.
14. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
executed and to be fully performed therein and without regard to any principles
of conflicts of laws. Any action or proceeding seeking to enforce any provision
of, or based on any right arising out of, this Agreement shall only be brought
against any of the parties in the state or federal courts of the State and
County of New York and each of the parties hereby consents to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein. The
parties hereto each waive any claim that such jurisdiction is not a convenient
forum for any such action; provided, however, that each party reserves the right
to seek to remove the action or proceeding from the state court to the federal
court in such jurisdiction or vice versa.
15. Effectiveness. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and any controlling person of any party hereof
as provided in Section 1 1 of the Securities Act and their respective
successors, transferees, heirs, assigns and beneficiaries.
16. Counterparts. This Agreement may be executed in multiple copies, each
of which shall constitute an original, but all of which shall constitute one and
the same agreement.
17. Partial Invalidity. If any term, covenant or condition in this
Agreement, or the application thereof to any person or circumstance, shall be
invalid or unenforceable, the remainder of this Agreement or the application of
such term, covenant or condition to persons or circumstances, other than those
as to which it is held invalid, shall be unaffected thereby and each term,
covenant or condition of this Agreement shall be enforced to fullest extent
permitted by law.
18. Integration. This Agreement (including the Exhibit and Schedules
hereto, the documents and instruments delivered by the parties hereto and any
other documents executed and delivered and/or to be executed and delivered
pursuant to the provisions of this Agreement as herein provided) sets forth the
entire agreement among the parties hereto with respect to the subject matter
herein contained. There are no covenants, promises, agreements, conditions or
understandings, either oral or written, between or among the parties hereto with
respect to the subject matter hereof except as herein and in such ancillary
documents provided. This Agreement can only be altered, amended, modified,
terminated or rescinded by a writing executed by the party to be charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
GENESIS REALTY GROUP , INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx, President
XXXXX GLOBAL DEVELOPMENT, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Xxxxxxx Xxxxx, Chief Executive Officer
EXHIBIT A
Promissory Note
Schedule 4 (i)
None
Schedule 4 (j)
None
Schedule 4 (k)
None
Schedule 4 (n)
100,000,000 shares of common stock authorized, par value $.001, with 2,501,689
shares issued and outstanding. Upon closing of the Share Purchase Agreement, GRG
shall have 19,580,350 shares issued and outstanding. No options or warrants are
outstanding.
Schedule 4 (o)
This Non-Recourse, Non-Negotiable Promissory Note has not been registered under
the Securities Act of 1933. It may not be offered or transferred by sale,
assignment, pledge or otherwise unless (i) a registration statement for such
Non-Negotiable Promissory Note under the Securities Act of 1933 is in effect or
(ii) the Company has received an opinion of counsel, which opinion is
satisfactory to the Company, to the effect that such registration is not
required under the Securities Act of 1933.
NON-RECOURSE NON-NEGOTIABLE
PROMISSORY NOTE
Principal: $170,786.61 New York, NY
Interest: 6.00% October 5, 2001
FOR VALUE RECEIVED, the undersigned Xxxxx Global Development, LLC, a
limited liability company with its principal address at 00 Xxxx 00xx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000 ("Maker" or "Company") hereby promises to pay to the
order of Genesis Realty Group, Inc., a corporation with its principal office
located at 000 Xxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 ("Payee"), the
principal sum of One Hundred Seventy Thousand Seven Hundred Eighty Six Dollars
and Sixty One Cents ($170,786.61) Dollars (the "Principal Amount"), together
with interest as set forth herein (as the same may be supplemented, modified,
amended or restated from time to time in the manner provided herein, this
"Note"). Interest on the Principal Amount shall accrue at the rate of 6.0% per
annum, to be paid in lawful money of the United States at the above address of
the Payee or such other place as Payee may designate.
1. Payment of Principal and Interest. The Principal Amount together with
----------------------------------
all interest accruing thereon shall be paid by the Maker to the Payee by October
4, 2005, except that all of the Principal Amount and Interest accruing thereon
shall be due upon the occurrence of an Event of Default (as defined below).
2. Prepayment. The Maker shall have the right to prepay this Note in full
-----------
at any time, or in part from time to time, without penalty or premium. Any such
prepayment shall be applied first to any accrued interest to the date of
prepayment, and then to any remaining principal balance.
3. Events of Default. An "Event of Default" shall be deemed to occur upon
-----------------
the happening of any of the following events: (a) the Maker shall fail to make
any payment of any principal and interest payable under this Note in the manner
or at the time provided for in this Note, after 10 days written notice has been
given by Payee of such failure and Maker shall not have cured such failure
within such period; (b) the Maker shall become insolvent (however evidenced) or
be
unable, or admit in writing its inability, to pay its debts as they mature; (c)
the Maker shall make an assignment for the benefit of creditors, or consent to
the appointment of a receiver; (d) the commencement of any proceedings by the
Maker under any law or statute concerning bankruptcy, arrangement of debt,
insolvency or readjustment of debt, or the commencement of any such proceedings
without the consent of the Maker and such proceedings shall continue
undischarged for a period of sixty (60) days; or (e) the Maker or its
shareholders approve a plan of liquidation for the Maker.
4. Interest Upon Default. Without limiting any other rights or remedies of
---------------------
the Payee in accordance with this Note or applicable law, in the event of the
occurrence of an Event of Default, Payee, at its election, may accelerate and
demand immediate payment of the Principal and accrued interest due under this
Note and Payee shall be liable for all such amounts. Maker hereby waives
presentment, demand, notice, protest, and the benefit of any homestead exemption
law of any state and all other formalities in connection with the delivery,
acceptance, performance or enforcement of this Note.
5. Representations by Payee. The Payee acknowledges that the Company will
------------------------
rely on the information and on the representations set forth herein, and the
undersigned hereby represents, warrants and agrees that:
5.1 The Payee has not received any general solicitation or general
advertising regarding this Note.
5.2 The Payee has sufficient knowledge and experience in financial and
business matters so that he or it is able to evaluate the merits and risks
of accepting this Note as well as substantial experience in previous
private and public purchases of securities.
5.3 The Payee understands that an investment in the Company involves
significant risk. The Payee does not require the funds being used to invest
in the Company for his liquidity or other needs, possesses the ability to
bear the economic risk of holding the this Note indefinitely and can afford
a complete loss of its investment in the this Note.
5.4 The Payee has had full opportunity to ask questions of and receive
answers from the Company and its officers and authorized representatives
regarding the terms and conditions of this Note and the transactions
contemplated hereby, as well as the affairs of the Company and related
matters. The Payee confirms that he does not desire to receive any further
information.
5.5 The Payee understands that this Note has not been filed with or
reviewed by the Commission nor the securities department of any state
because of the private or limited nature of this offering as defined by
applicable laws, and that this Note has not been registered with the
Commission under the Securities Act of 1933, as amended, nor with the
securities department of any state in reliance upon an exemption therefrom
for non-public offerings.
5.6 The Payee is a bona fide resident of the state set forth above and
further represents that (a) if a corporation, partnership, trust or other
form of business organization, it has a principal office within such state;
and (b) if an individual, he has his principal residence in such state.
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5.7 The Payee represents and warrants that the Note is being acquired
for investment purposes and not with a view to or for a sale or
distribution. The Payee represents that there is no contract, undertaking,
agreement or arrangement with any person to sell, transfer or pledge to
such person or anyone else this Note or any part hereof, and the Payee has
no present plans to enter into such contract, undertaking, agreement or
arrangement and will neither directly or indirectly seek to assign,
transfer or sell the same.
5.8 The Payee represents and warrants that it understands and will be
responsible for all tax consequences resulting from or incident to this
Note and understands that acceptance of this Note may involve the
imposition of tax based on an original issue discount attributed hereto.
6. Governing Law. This Note shall be governed by, and construed in
--------------
accordance with, the laws of the State of New York, without regard to principles
of conflicts or choice of laws thereof. This Note shall not be interpreted or
construed with any presumption against the Payee by virtue of the Payee causing
this Note to be drafted.
7. Amendments. No amendment, modification, or waiver of any provision of
----------
this Note nor consent to any departure by the Maker therefrom shall be effective
unless the same shall be in writing and signed by the Payee and the Maker.
8. Successors And Assigns. This Note shall not be negotiable, transferable
----------------------
or assignable by the Payee without the prior written consent of the Maker
whether by operation of law or otherwise. This Note shall be binding upon the
Maker and its successors and permitted assigns and the terms hereof shall inure
to the benefit of the Payee and its successors and assigns, if any.
9. Entire Agreement. This Note sets forth the entire agreement and
----------------
understanding of the Maker and the Payee with respect to the subject matter of
this Note.
10. Waiver of the Right to Trial by Jury. The Maker hereby irrevocably
-------------------------------------
waives the right to trial by jury in any action, suit, claim, counterclaim or
other proceeding, whether in contract or tort, at law or in equity, in any
manner connected with this note or any transactions contemplated hereunder. The
exclusive jurisdiction of any disputes arising hereunder shall be in the federal
or state courts of the State of New York in New York County.
11. Notices. Any notice, request, demand or other communication permitted
-------
or required to be given hereunder shall be in writing, shall be sent by one of
the following means to the addressee at the address set forth above (or at such
other address as shall be designated hereunder by notice to the other parties
and persons receiving copies, effective upon actual receipt) and shall be deemed
conclusively to have been given: (a) on the first Business Day (as hereinafter
defined) following the day timely deposited with Federal Express (or other
equivalent national overnight courier) or United States Express Mail, with the
cost of delivery prepaid; (b) on the fifth Business Day following the day duly
sent by certified or registered United States mail, postage prepaid and return
receipt requested; or (c) when otherwise actually delivered to the addressee.
Copies may be sent by regular first-class mail, postage prepaid, to such
person(s) as a party may direct from time to time by notice to the others, but
failure or delay in sending copies shall not affect the validity of any such
notice, request, demand or other communication so given to a party. For purposes
hereof, "Business Day" shall mean any day during which banks are open for
business in New York, New
-3-
York, other than any Saturday, Sunday or a day on which commercial banks in New
York State are authorized or required to close.
12. Non-recourse. Maker and Payee each acknowledge that this Note is a
------------
Non-recourse Note and that recourse is limited to collateral securing the Note
and not to the Company or its members.
IN WITNESS WHEREOF, the Maker and Payee have executed this Note as of the
date first written above.
MAKER: PAYEE:
XXXXX GLOBAL DEVELOPMENT LLC GENESIS REALTY GROUP, INC.
By: By: /s/
Name: Name:
Title: Title:
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