Exhibit 2.2
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STOCK PURCHASE AGREEMENT
Dated November 2, 2004
between
VFINANCE INVESTMENTS HOLDINGS, INC.
and
XXXXX0.XXX, INC.
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SECTION 1. DEFINITIONS AND INTERPRETATIONS.............................2
1.1 Defined Terms...............................................2
SECTION 2. REPRESENTATIONS OF THE SELLER...............................8
2.1 Existence and Good Standing; Power..........................8
2.2 Capacity; Binding Effect....................................8
2.3 Capitalization; Power.......................................8
2.4 Subsidiaries and Investments................................9
2.5 Financial Statements........................................9
2.6 Books and Records..........................................10
2.7 Title to Properties; Encumbrances..........................10
2.8 Real Property..............................................10
2.9 Leases.....................................................10
2.10 Material Contracts.........................................10
2.11 Restrictive Documents......................................12
2.12 Litigation.................................................12
2.13 Taxes......................................................12
2.14 Insurance..................................................14
2.15 Intellectual Property......................................14
2.16 Compliance with Laws.......................................15
2.17 Governmental Licenses......................................15
2.18 Labor Matters..............................................16
2.19 Employee Benefit Plans.....................................16
2.20 No Changes Since Balance Sheet Date........................16
2.21 Liabilities................................................17
2.22 Consents and Approvals; No Violations......................17
2.24 Broker's or Finder's Fees..................................17
2.25 Copies of Documents........................................18
2.26 Interests in Clients, Suppliers, Etc.;
Affiliate Transactions.....................................18
2.27 Bank Accounts and Powers of Attorney.......................18
2.28 Accounts Receivable........................................18
2.29 Unregistered Securities....................................18
2.30 Accredited Investor........................................19
SECTION 3. REPRESENTATIONS OF THE BUYER...............................19
3.1 Existence and Good Standing; Binding Effect; Power.........19
3.2 Broker's or Finder's Fees..................................19
3.3 Litigation.................................................19
3.4 Compliance with Laws.......................................20
3.5 Consents and Approvals; No Violations......................20
3.6 SEC Reports................................................20
3.7 vFinance Common Stock......................................20
SECTION 4. THE TRANSACTION............................................20
4.1 Sale of Stock..............................................20
4.2 Purchase Price.............................................20
4.3 Deliveries by the Seller...................................21
4.4 Deliveries by the Buyer....................................22
4.5 NASD Approval..............................................22
4.6 Breach of Related Documents................................23
SECTION 5. NONCOMPETITION.............................................23
5.1 Noncompetition and Nonsolicitation.........................23
5.2 Acknowledgment.............................................23
SECTION 6. INDEMNIFICATION............................................24
6.1 Survival of Representations and Liability Limitations......24
6.2 Indemnification............................................24
6.3 Indemnification Procedure..................................26
SECTION 7. MISCELLANEOUS..............................................28
7.1 Due Diligence..............................................28
7.2 Expenses...................................................28
7.3 Confidentiality............................................28
7.4 Governing Law; Jurisdiction................................29
7.5 Notices....................................................29
7.6 Parties in Interest........................................30
7.7 Counterparts...............................................30
7.8 Attorneys' Fees............................................30
7.9 Entire Agreement...........................................30
7.10 Amendments.................................................30
7.11 Severability...............................................30
7.12 Third Party Beneficiaries..................................30
-2-
*Pursuant to Item 601(b)(2) of Regulation S-B, the following exhibits and
schedules have been omitted and will be provided to the Commission upon request.
Exhibit A-1 Form of Employment Agreement with Xxxxxx Xxxxx
Exhibit A-2 Form of Employment Agreement with Xxxxx Xxxxx
Exhibit B Form of Asset Purchase Agreement
Exhibit C Form of Escrow Agreement
Exhibit D Form of Registration Rights Agreement
Exhibit E Form of Standstill Agreement
Exhibit F Affiliates not subject to Section 5
Disclosure Schedule
STOCK PURCHASE AGREEMENT
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This STOCK PURCHASE AGREEMENT (as the same may be amended, modified and
supplemented from time to time, this "Agreement") is entered into on November 2,
2004 between VFINANCE INVESTMENTS HOLDINGS INC., a wholly-owned subsidiary of
vFinance, Inc., a Delaware corporation (the "Buyer"), and XXXXX0.XXX, INC., a
Florida corporation (the "Seller"; the Buyer and the Seller each, a "Party" and,
collectively, the "Parties").
RECITALS:
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A. The Seller owns 1,000 shares of common stock, $0.001 par value
(the "Stock"), of EquityStation, Inc., a Florida corporation (the "Company"),
being all of the issued and outstanding shares of capital stock of the Company.
B. The Seller desires to sell, and the Buyer desires to purchase,
the Stock, pursuant to the terms and conditions of this Agreement.
C. It is the intention of the Parties that, upon consummation of
the purchase and sale of the Stock pursuant to this Agreement, the Buyer or its
designee shall own all of the issued and outstanding shares of capital stock of
the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements herein contained, the
Parties agree as follows:
SECTION 1.
DEFINITIONS AND INTERPRETATIONS
-------------------------------
1.1 Defined Terms. In this Agreement, the following words and
expressions shall have the following meanings (such meaning to be equally
applicable to both the singular and plural forms of the terms defined):
"Acts" has the meaning provided in Section 3.6.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under
common control with, such Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled
by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by Contract
or otherwise.
"Agreement" has the meaning provided in the introductory
paragraph.
"Asset Purchase Agreement" shall mean the form of Asset
Purchase Agreement attached as Exhibit B to be entered into on the date
hereof among the Buyer and Global Partners Securities, Inc.
"Balance Sheet Date" means September 30, 2004.
"Buyer" has the meaning provided in the introductory
paragraph.
"Buyer's Business" shall mean the business of research,
investment banking, brokerage and trading services.
"Buyer Indemnified Party" has the meaning provided in Section
6.2(a).
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and the rulings
issued thereunder.
"Contracts" means any contract, agreement, understanding,
note, bond, mortgage, indenture, guarantee, license, franchise,
commitment, lease or instrument, whether oral or written, including all
amendments thereto.
"Company" has the meaning provided in the first recital.
"Company Balance Sheet" means the unaudited balance sheet of
the Company as of the Balance Sheet Date.
"Company Intellectual Property" shall mean all Intellectual
Property owned by the Company or used in connection with the business
of the Company.
"Encumbrances" means all liens, security interests, options,
rights of first refusal, claims, easements, mortgages, charges,
indentures, deeds of trust, rights of way, restrictions on the use of
real property, encroachments, licenses to third parties, leases to
third parties, security agreements and any other encumbrances and other
restrictions or limitations on use of real or personal property or
irregularities in title thereto.
"Entity" means any Person that is not a natural person.
"ERISA" has the meaning provided in Section 2.19.
"Escrow Agent" means Xxxxxxx & Xxxxxx, LLP.
"Escrow Agreement" shall mean the form of Escrow Agreement
attached as Exhibit C to be entered into on the date hereof among the
Buyer, vFinance, Inc., the Seller, Global Partners Securities, Inc. and
Escrow Agent.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Financial Statements" shall mean the correct and complete
copies of the audited balance sheets and statements of income and cash
flows of the Company for and as of the periods ended December 31, 2003
and 2002, and the Company Balance Sheet and the related statements of
operations for the nine months then ended September 30, 2004, in each
case together with any explanatory notes thereto.
"GAAP" means United States generally accepted accounting
principles applied on a consistent basis.
"Governmental Entity" means any instrumentality, subdivision,
court, administrative agency, commission, official or other authority
of the United States or any other country or any state, province,
prefect, municipality, locality or other government or political
subdivision thereof, or any quasi-governmental or private body
exercising any regulatory, taxing, importing or other governmental or
quasi-governmental authority.
"Indebtedness" of any Person shall mean and include (a)
indebtedness for borrowed money or indebtedness issued or incurred in
substitution or exchange for indebtedness for borrowed money, (b)
amounts owing as deferred purchase price for property or services, (c)
indebtedness evidenced by any note, bond, debenture, mortgage or other
debt instrument or debt security, (d) commitments or obligations by
which such Person assures a creditor against loss (including contingent
reimbursement obligations with respect to letters of credit), (e)
indebtedness secured by an Encumbrance on assets or properties of such
Person, (f) obligations or commitments to repay deposits or other
amounts advanced by and owing to third parties, (g) obligations under
any interest rate, currency or other hedging agreement or (h)
guarantees or other contingent liabilities (including so called
take-or-pay or keep-well agreements) with respect to any indebtedness,
obligation, claim or liability of any other Person of a type described
in clauses (a) through (g) above.
"Indemnification Claim" has the meaning provided in Section
6.3(a).
"Indemnified Party" has the meaning provided in Section
6.3(a).
"Indemnifying Party" has the meaning provided in Section
6.3(a).
"Intellectual Property" shall mean all: (a) patents, patent
applications, patent disclosures and all related continuation,
continuation-in-part, divisional, reissue, reexamination, utility
model, certificate of invention and design patents, patent
applications, registrations and applications for registrations; (b)
trademarks, service marks, trade dress, Internet domain names, logos,
trade names and corporate names and registrations and applications for
registration thereof; (c) copyrights and registrations and applications
for registration thereof; (d) mask works and registrations and
applications for registration thereof; (e) computer software, data and
documentation; (f) inventions, trade secrets and confidential business
information, whether patentable or nonpatentable and whether or not
reduced to practice, know-how, manufacturing and product processes and
techniques, research and development information, copyrightable works,
financial, marketing and business data, pricing and cost information,
business and marketing plans and customer and supplier lists and
information; (g) other proprietary rights relating to any of the
foregoing (including remedies against infringements thereof and rights
of protection of interest therein under the laws of all jurisdictions);
and (h) copies and tangible embodiments thereof.
"IRS" means the Internal Revenue Service.
"Known to Buyer" or "to Buyer's Knowledge" means, with respect
to a specific matter, any information known, after reasonable inquiry,
by any of the officers or directors of Buyer.
"Known to Company" or "to Company's Knowledge" means, with
respect to a specific matter, any information known, after reasonable
inquiry, by any of the officers or directors of the Company.
"Known to Seller" or "to Seller's Knowledge" means, with
respect to a specific matter, any information known, after reasonable
inquiry, by any of the officers or directors of Seller.
"Known to vFinance" or "to vFinance's Knowledge" means, with
respect to a specific matter, any information known, after reasonable
inquiry, by any of the officers or directors of vFinance.
"Licenses" has the meaning provided in Section 2.17.
"Losses" has the meaning provided in Section 6.1(a).
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect on (a) the validity or enforceability of this
Agreement, (b) the ability of such Person to perform his or its
obligations under this Agreement or any Related Document to which such
Person is a party or (c) the business, assets, conditions (financial or
otherwise), results of operations or prospects of such Person.
"NASD" means National Association of Securities Dealers, Inc.
"NASD Approval" has the meaning provided in Section 4.5.
"Notice Date" has the meaning provided in Section 6.3(b).
"Notice of Claim" has the meaning provided in Section 6.3(a).
"Ordinary Course" means, with respect to any Person, the
ordinary course of commercial operations customarily engaged in by such
Person, consistent with past practices (including with respect to
quantity and frequency).
"OTCBB" means the Over-The-Counter Bulletin Board.
"Party" or "Parties" has the meaning provided in the
introductory paragraph.
"Permitted Encumbrances" has the meaning provided in Section
2.7.
"Purchase Price" shall mean the vFinance Shares and vFinance
Warrants.
"Person" means and includes any individual, partnership, joint
venture, association, joint stock company, corporation, trust, limited
liability company, unincorporated organization, a group and a
government or other department, agency or political subdivision
thereof.
"Related Documents" shall mean those other agreements,
documents and instruments contemplated hereby.
"SEC" means the U.S. Securities and Exchange Commission.
"SEC Reports" has the meaning provided in Section 3.6.
"Securities" has the meaning provided in Section 2.29.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" has the meaning provided in the introductory
paragraph.
"Seller Indemnified Party" has the meaning provided in Section
6.2(b).
"Stock" has the meaning provided in the first recital.
"Subsidiary" means, with respect to any Person, (a) any
corporation more than 50% of whose stock of any class or classes having
by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the
time stock of any class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency)
is at the time owned by such Person and/or one or more Subsidiaries of
such Person and (b) any Entity (other than a corporation) in which such
Person and/or one more Subsidiaries of such Person has more than a 50%
equity interest at the time or otherwise controls the management and
affairs of such Entity (including the power to veto any material act or
decision).
"Taxes" means all taxes, assessments, charges, duties, fees,
levies or other governmental charges, including all Federal, state,
local, foreign and other income, franchise, profits, gross receipts,
capital gains, capital stock, transfer, property, sales, use,
value-added, occupation, property, excise, severance, windfall profits,
stamp, license, payroll, social security, withholding and other taxes,
assessments, charges, duties, fees, levies or other governmental
charges of any kind whatsoever (whether payable directly or by
withholding and whether or not requiring the filing of a Tax Return),
all estimated taxes, deficiency assessments, additions to tax,
penalties and interest and shall include any liability for such amounts
as a result either of being a member of a combined, consolidated,
unitary or affiliated group or of a contractual obligation to indemnify
any Person.
"Tax Returns" has the meaning provided in Section 2.13(a).
"Third Party Claim" has the meaning provided in Section
6.3(b).
"Tipping Amount" has the meaning provided in Section 6.1(b).
"Trading Day" means a day on which the OTCBB is open for at
least one-half of its normal business hours.
"vFinance" means vFinance, Inc.
"vFinance Common Stock" has the meaning provided in Section
4.2(a).
"vFinance Shares" has the meaning provided in Section 4.2(a).
"vFinance Warrants" has the meaning provided in Section
4.2(a).
1.2 Principles of Construction.
---------------------------
(a) All references to Sections, subsections and Exhibits are to
Sections, subsections and Exhibits in or to this Agreement unless otherwise
specified. The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. The term "including" is not
limiting and means "including without limitation."
(b) All accounting terms not specifically defined herein shall be
construed in accordance with GAAP.
(c) In the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding"; and the word "through" means "to
and including."
(d) The Section headings herein are for convenience only and shall
not affect the construction hereof.
(e) In the event that the final day of any time period provided
herein does not fall on a business day, such time period shall be extended such
that the final day of such period shall fall on the next business day
thereafter.
(f) This Agreement is the result of negotiations among and has been
reviewed by each Party's counsel. Accordingly, this Agreement shall not be
construed against any Party merely because of such Party's involvement in its
preparation.
(g) It is understood and agreed that neither the specification of
any dollar amount in the representations and warranties contained in this
Agreement nor the inclusion of any specific item in the Exhibits hereto is
intended to imply that such amounts or higher or lower amounts, or the items so
included or other items, are or are not material, and no Party shall use the
fact of the setting of such amounts or the fact of the inclusion of any such
item in the Exhibits hereto in any dispute or controversy between the Parties as
to whether any obligation, item or matter is or is not material for purposes of
this Agreement.
SECTION 2.
REPRESENTATIONS OF THE SELLER
-----------------------------
The Seller represents, warrants and agrees in favor of the Buyer, as of
the date of this Agreement (unless a representation speaks as of a specific
date, in which case, as of such date), as follows:
2.1 Existence and Good Standing; Power. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida. The Company has all requisite power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted. The Company is duly qualified and/or licensed to conduct its
business, and is in good standing, in each jurisdiction in which the character
or location of the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except where the
failure to be so licensed or qualified will not have a Material Adverse Effect
on the Company. The Seller has delivered to the Buyer true and correct copies of
the articles of incorporation and bylaws (or equivalent organizational
documents) of the Company. Neither the Company nor the Seller is in violation of
any of the provisions of the articles of incorporation or bylaws (or equivalent
organizational documents) of the Company.
2.2 Capacity; Binding Effect. The Seller has the legal capacity
and full right and authority to enter into this Agreement and to perform its
obligations hereunder. This Agreement has been duly executed and delivered by
the Seller, and constitutes its valid and binding agreement, enforceable against
him in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency or similar laws and equitable principles relating to
or affecting the rights of creditors generally from time to time in effect.
2.3 Capitalization; Power.
(a) The authorized capital stock of the Company consists
of 10,000,000 shares of common stock, $0.001 par value, of which 1,000
shares are issued and outstanding. All issued and outstanding shares of
the Company's capital stock have been duly authorized and validly
issued, are fully paid and nonassessable and are not subject to, nor
were they issued in violation of, any preemptive rights. Except as
described in this Section 2.3(a), no shares of capital stock of the
Company are authorized, issued, outstanding or reserved for issuance.
(b) The Seller has full legal right, power and authority
to sell, assign, transfer and convey the Stock to the Buyer (or its
designee) pursuant to this Agreement. The Seller owns 100% of the
outstanding capital stock of the Company. The Seller is the sole and
lawful owner, beneficially and of record, of the Stock, free and clear
of all Encumbrances.
(c) Except as set forth on Schedule 2.3, there are no
outstanding options, warrants, rights (preemptive or otherwise), calls,
commitments, conversion rights, rights of exchange, plans or other
agreements of any character (contingent or otherwise) providing for the
purchase, issuance, redemption, transfer or sale of any interest in the
Company or its business, and none of the foregoing will arise as a
result of the execution or performance of this Agreement or the
transactions contemplated herein. There are no irrevocable proxies and
no voting agreements with respect to any shares of capital stock of,
or other equity or voting interest in, the Company. There are no
outstanding or authorized stock appreciation, phantom stock, profit
participation or similar rights with respect to the capital stock of,
or other equity or voting interest in, the Company. The Company does not
have any authorized or outstanding bonds, debentures, notes or other
Indebtedness the holders of which have the right to vote (or convertible
into, exchangeable for, or evidencing the right to subscribe for or
acquire securities having the right to vote) with the shareholders of
the Company on any matter. There are no Contracts to which the Company
is a party or by which any such Person is bound to (i) repurchase,
redeem or otherwise acquire any shares of capital stock of, or other
equity or voting interest in, the Company or any other Person or (ii)
vote or dispose of any shares of capital stock of, or other equity or
voting interest in, the Company or any other Person.
(d) The Seller shall transfer to the Escrow Agent good
and marketable title to the Stock, free and clear of all Encumbrances
until such time as Seller is entitled to receive the Purchase Price in
accordance with the terms of the Escrow Agreement.
2.4 Subsidiaries and Investments. The Company has no Subsidiaries.
The Company does not own, directly or indirectly, any capital stock of, or other
equity, ownership, proprietary or voting interest in, any Person.
2.5 Financial Statements.
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(a) Schedule 2.5(a) contains accurate and complete copies
of each of the Financial Statements. Except as specifically disclosed
in the Financial Statements and the Schedules attached hereto, each of
the Financial Statements has been prepared in accordance with GAAP. The
Financial Statements fairly present, in all material respects, the
financial position of the Company at the dates thereof and reflect all
claims against and all debts and liabilities, fixed or contingent, of
the Company as at the dates thereof and the statements of income,
shareholders equity and cash flows fairly present, in all material
respects, the results of the operations of the Company and the changes
in cash flows of the Company for the periods indicated therein. As of
the date hereof, the shareholders equity of the Company is at least
$150,000. Each of the Financial Statements is consistent, in all
material respects, with the books and records of the Company. The assets
reflected on the Company Balance Sheet represent all of the assets
necessary for the maintenance and operation of the business of the
Company substantially in the manner in which such business is presently
conducted.
(b) Since the Balance Sheet Date, there has been no
change in the assets or liabilities, or in the business or condition,
financial or otherwise, or in the results of operations, of the Company
as a result of any legislative or regulatory change, revocation of any
License or right to do business, fire, explosion, accident, casualty,
labor trouble, flood, drought, riot, storm, condemnation, act of God,
public force or otherwise, except for immaterial changes due to the
normal operations of the Company's businesses in the Ordinary Course.
2.6 Books and Records. The Company does not have any of its
records, systems, controls, data or information recorded, stored, maintained,
operated or otherwise wholly or partly dependent on or held by any means
(including any electronic, mechanical or photographic process, whether
computerized or not) which (including all means of access thereto and therefrom)
are not under the exclusive ownership and direct control of the Company.
2.7 Title to Properties; Encumbrances. Except for properties and
assets sold or otherwise disposed of in the Ordinary Course, and except as set
forth on Schedule 2.7, the Company has good, valid and marketable title to or,
in the case of leased assets, a valid leasehold interest in, (a) all of the
properties and assets (real and personal, tangible and intangible) reflected in
the Company Balance Sheet and (b) all of the properties and assets purchased by
it since the Balance Sheet Date, in each case free and clear of all
Encumbrances, except for (i) Encumbrances set forth explicitly in the Company
Balance Sheet, (ii) Encumbrances consisting of zoning or planning restrictions,
easements, permits and other restrictions or limitations on the use of real
property or irregularities in title thereto which do not materially detract from
the value of, or impair the use of, such property in the operation of its
business and (iii) Encumbrances for current taxes, assessments or governmental
charges or levies on property not yet due and delinquent (Encumbrances of the
type described in clauses (i), (ii) and (iii) above are hereinafter sometimes
referred to as "Permitted Encumbrances"). The Company owns or has the exclusive
right to use all of the tangible personal properties and assets necessary for
the conduct of its business as currently conducted. All of the tangible personal
property used in the business of the Company is in good operating condition and
repair, ordinary wear and tear excepted, and is adequate and suitable for the
purposes for which it is presently being used.
2.8 Real Property. The Company does not own, directly or
indirectly, in whole or in part, any interest in any real property.
2.9 Leases. Schedule 2.9 contains an accurate and complete list of
each real and personal property lease to which the Company is a party (as lessee
or lessor). Each real and personal property lease to which the Company is a
party (as lessee or lessor) is in full force and effect; all rents and
additional rents due to date on each such lease have been paid; in each case,
the lessee has been in peaceable possession since the commencement of the
original term of such lease and is not in default thereunder and no waiver,
indulgence or postponement of the lessee's obligations thereunder has been
granted by the lessor; and there exists no default or event of default or event,
occurrence, condition or act (including the purchase of the Stock hereunder)
which, with the giving of notice, the lapse of time or the happening of any
further event or condition, would become a default or event of default under
such lease. The Company has not violated any of the terms or conditions under
any such lease in any material respect, and, to the Seller's Knowledge or the
Company's Knowledge, all of the covenants to be performed by any other party
under any such lease have been fully performed. The tangible personal property
leased by the Company is in a state of good maintenance and repair, reasonable
wear and tear excepted. The Seller has delivered to the Buyer true and complete
copies, including all amendments, of each such lease.
2.10 Material Contracts.
-------------------
(a) Except as set forth on Schedule 2.10(a), the
Company is not bound by any oral or written (i) Contract relating to the
employment of any Person or any bonus, deferred compensation, pension,
profit sharing, stock option, employee stock purchase, retirement or
other employee benefit plan (including any Contract under which the
Company is obligated to make any payment to any Person as a result of a
change in control of the Company or under which any Person may require
the Company to make a payment to any Person as a result of a change in
control of the Company), (ii) Contract which contains restrictions with
respect to payment of dividends or any other distribution in respect of
the Company's capital stock, (iii) Contract relating to capital
expenditures in excess of $5,000 per individual item or $10,000 in
the aggregate, (iv) Contract involving Indebtedness of the Company, (v)
loan or advance to, or investment in, any Person or any Contract
relating to the making of any such loan, advance or investment,
(vi) guarantee or other contingent liability in respect of any
Indebtedness or obligation of any Person, (vii) management service,
consulting or any other similar type contract or arrangement, (viii)
Contract limiting the ability of the Company to engage in any line of
business or to compete with any Person, (ix) Contract not entered into
in the Ordinary Course which by its operation or termination would have
a Material Adverse Effect on the Company, or (x) Contract not entered
into in the Ordinary Course which is not cancelable without penalty
within 30 days.
(b) Except as set forth on Part 1 of Schedule 2.10(b),
the Company is not a party to any Contract or Contracts with any
customer that accounts for more than 1% of the total sales of the
Company. Set forth on Part 2 of Schedule 2.10(b) is a true and complete
list of all suppliers of the Company to whom the Company pays more than
$3,000 per year. The relationships of the Company with each such
customer and supplier are good commercial working relationships, and
except as set forth on Schedule 2.10(b) no such customer or supplier
has canceled or otherwise terminated, or threatened to cancel or
otherwise terminate, its relationship with the Company. Neither the
Seller nor the Company has received any notice that any such customer
or supplier may cancel or otherwise materially and adversely modify its
relationship with the Company or limit its services, supplies or
materials to the Company or its usage or purchase of the services and
products of the Company either as a result of the transactions
contemplated hereby or otherwise.
(c) Each Contract set forth (or required to be set forth)
on Schedule 2.10(a) and Schedule 2.10(b) is in full force and effect and
there exists no (i) default or event of default by the Company or any
other party to any such Contract or (ii) event, occurrence, condition
or act (including the consummation of the transactions contemplated
hereby) which, with the giving of notice, the lapse of time or the
happening of any other event or condition, would become a default or
event of default by the Company or any other party thereto and would
have a Material Adverse Effect on the Company. The Company has not
violated any of the material terms or conditions of any Contract set
forth (or required to be set forth) on Schedule 2.10(a) or Schedule
2.10(b) and, to the Seller's Knowledge or the Company's Knowledge, all
of the covenants to be performed by any other party thereto have been
fully performed in all material respects. The Seller has delivered to
the Buyer true and complete copies, including all amendments, of
each Contract set forth (or required to be set forth) on Schedule
2.10(a) and Schedule 2.10(b).
2.11 Restrictive Documents. Except as set forth on Schedule 2.11,
neither the Seller nor the Company is subject to, or a party to, any charter,
bylaw, mortgage, lien, lease, license, permit, Contract, instrument, law, rule,
ordinance, regulation, order, judgment or decree, or any other restriction of
any kind or character, which would (a) have a Material Adverse Effect on the
Company, (b) prevent the purchase and sale of the Stock or the consummation of
the transactions contemplated by this Agreement or the other Related Documents,
(c) restrict the ability of the Company to acquire any property or conduct any
business in any area or (d) restrict the ability of the Company to make
distributions or pay dividends to its shareholders.
2.12 Litigation. Except as set forth on Schedule 2.12, there is no
action, suit, proceeding at law or in equity, arbitration or administrative or
other proceeding by or before (or to the Seller's Knowledge or the Company's
Knowledge any investigation by) any Governmental Entity or other
instrumentality, agency or Person, pending, or, to Seller's Knowledge or the
Company's Knowledge, threatened, against or affecting the Seller, the Stock, the
Company or any of their respective properties or rights, and to the Seller's
Knowledge or the Company's Knowledge, no fact or circumstance exists that could
form the basis therefor. Neither the Seller nor the Company is subject to any
judgment, order or decree entered in any lawsuit or proceeding which may have a
Material Adverse Effect on the Company.
2.13 Taxes.
-----
(a) For purposes of this Agreement, the following terms
have the following meanings: "Tax" (and, with correlative meaning,
"Taxes" and "Taxable") means any and all taxes, including without
limitation (i) any income, profits, alternative or add-on minimum tax,
gross receipts, sales, use, value-added, ad valorem, transfer,
franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, net worth, premium, property,
environmental or windfall profit tax, custom, duty or other tax,
governmental fee or assessment or charge of any kind whatsoever,
together with any interest or any penalty, addition to tax or additional
amount imposed by any governmental entity responsible for the imposition
of any such tax (domestic or foreign) (a "Taxing Authority"), (ii) any
liability for the payment of any amounts of the type described in
clause (i) above as a result of being a member of an affiliated,
consolidated, combined or unitary group for any Taxable period or as
the result of being a transferee or successor thereof, and (iii) any
liability for the payment of any amounts of the type described in
clause (i) or (ii) above as a result of any express or implied
obligation to indemnify any other Person.
(b) All Tax returns, statements, reports and forms
(including estimated Tax returns and reports and information returns and
reports) required to be filed with any Taxing Authority with respect to
any Taxable period ending on or before the date of this Agreement, by
or on behalf of the Company (the "Company Returns"), have been or will
be filed when due (including any extensions of such due date), and all
amounts shown to be due thereon on or before the date of this Agreement
have been or will be paid on or before such date, other than such Taxes
which are adequately reserved for in accordance with GAAP. The Financial
Statements fully accrue all actual and contingent liability for Taxes
with respect to all periods through the dates thereof in accordance
with GAAP. The Financial Statements (i) fully accrue consistent with
past practices and in accordance with GAAP all actual and contingent
liabilities for Taxes with respect to all periods through the date of
the Company Financial Statements and (ii) properly accrue consistent
with past practices and in accordance with GAAP all liabilities for
Taxes payable after the Balance Sheet Date with respect to all
transactions and events occurring on or prior to such date. All
information set forth in the notes to the Financial Statements relating
to Tax matters is accurate in all material respects.
(c) No Tax liability has been incurred since the date of
the Financial Statements other than in the ordinary course of business
and adequate provision has been made for all Taxes since that date in
accordance with GAAP on at least a quarterly or, with respect to
employment taxes, monthly basis. The Company has withheld and paid
to the applicable financial institution or Taxing Authority all amounts
of Taxes required to be withheld in all material respects. No
Company Returns filed with respect to federal income tax returns for
Taxable years of the Company in the case of the United States, have
been examined by the Internal Revenue Service. The Company has not
been granted any extension or waiver of the limitation period
applicable to any Company Return.
(d) There is no claim, audit, action, suit, proceeding
or, investigation now pending or, to the Seller's Knowledge or the
Company's Knowledge, threatened against or with respect to the Company
in respect of any Tax or assessment. There are no liabilities for Taxes
with respect to any notice of deficiency or similar document of any Tax
Authority received by the Company which have not been satisfied in full
(including liabilities for interest, additions to tax and penalties
thereon and related expenses). There are no liens for Taxes upon the
assets of the Company except liens for current Taxes not yet
delinquent. Except as may be required as a result of this Agreement,
the Company has not nor will it be required to include any adjustment in
Taxable income for any Tax period (or portion thereof) pursuant to
section 481 or 263A of the Code or any comparable provision under state
or foreign Tax laws as a result of transactions, events or accounting
methods employed prior to the date of this Agreement.
(e) There is no contract, agreement, plan or arrangement,
including without limitation the provisions of this Agreement, covering
any employee or independent contractor or former employee or independent
contractor of the Company that, individually or collectively, could,
as a result of the transactions contemplated hereby, give rise to the
payment of any amount that would not be deductible pursuant to section
280G or section 162 (m) of the Code. Other than pursuant to this
Agreement, the Company is not a party to or bound by any tax indemnity,
tax sharing or tax allocation agreement (whether written, unwritten
or arising under operation of federal law as a result of being a member
of a group filing consolidated tax returns, under operation of certain
state laws as a result of being a member of a unitary group, or under
comparable laws of other states or foreign jurisdictions) which includes
a party other than the Company. None of the assets of the Company (i)
is property that the Company is required to treat as owned by any other
Person pursuant to the so-called "safe harbor lease" provisions of
former section 168(f)(8) of the Code, (ii) directly or indirectly
secures any debt the interest on which is tax exempt under section
103(a) of the Code, or (iii) is "tax exempt use property" within the
meaning of section 168(h) of the Code. The Company has not participated
in an international boycott within the meaning of section 999 of the
Code. The Company has disclosed on its federal income tax returns all
positions taken therein that could give rise to a substantial
understatement of federal income tax within the meaning of section 6661
of the Code. The Company has previously provided or made available to
Parent complete and accurate copies of all the Company Returns and, as
reasonably requested by Parent, prior to or following the date hereof,
presently existing information statements, reports, work papers, Tax
opinions and memoranda and other Tax data and documents.
2.14 Insurance. Set forth on Schedule 2.14 is an accurate and
complete list of each insurance policy (including self-insurance) which covers
the Company or its businesses, properties, assets or employees. Such policies
are in full force and effect, all premiums thereon have been paid, and the
Company is otherwise in compliance in all material respects with the terms and
provisions of such policies. The Company is not in default under any of the
insurance policies set forth (or required to be set forth) on Schedule 2.14,
and, to the Seller's Knowledge or the Company's Knowledge, there exists no
event, occurrence, condition or act (including the consummation of the
transactions contemplated by this Agreement) which, with the giving of notice,
the lapse of time or the happening of any other event or condition, would have a
Material Adverse Effect on the Company. The Company has not received any notice
of cancellation or non-renewal of any such policy or arrangement nor, to the
Seller's Knowledge or the Company's Knowledge, has the termination of any such
policies or arrangements been threatened, and there exists no event, occurrence,
condition or act (including the consummation of the transactions contemplated by
this Agreement) which, with the giving of notice, the lapse of time or the
happening of any other event or condition, would entitle any insurer to
terminate or cancel any such policies. Such policies, with respect to their
amounts and types of coverage, are adequate to insure against risks to which the
Company and its properties and assets are normally exposed in the operation of
its business. Except as set forth on Schedule 2.14, since one year prior to the
date hereof, there has not been any material adverse change in the Company's
relationship with its insurers or any material increase in the premiums payable
pursuant to such policies.
2.15 Intellectual Property.
----------------------
(a) Schedule 2.15(a) lists each patent, patent
application, copyright registration or application therefor, mask work
registration or application therefor, and trademark, service xxxx and
domain name registration or application therefor of the Company.
(b) The Company owns or has the right to use all
Intellectual Property. The Company has taken all reasonable measures to
protect the proprietary nature of each item of Company Intellectual
Property, and to maintain in confidence all trade secrets and
confidential information, that it owns or uses. No other person or
entity has any rights to any of the Company Intellectual Property owned
by the Company (except pursuant to agreements or licenses specified in
Schedule 2.15(b)), and, to the best of the Company's Knowledge, no other
person or entity is infringing, violating or misappropriating any of the
Company Intellectual Property.
(c) Schedule 2.15(c) identifies each license or other
agreement pursuant to which the Company has licensed, distributed or
otherwise granted any rights to any third party with respect to, any
Company Intellectual Property. Except as described in Exhibit 2.15(c),
the Company has not agreed to indemnify any person or entity against any
infringement, violation or misappropriation of any Intellectual Property
rights with respect to any Company Intellectual Property.
(d) Schedule 2.15(d) identifies each item of Company
Intellectual Property that is owned by a party other than the Company,
and the license or agreement pursuant to which the Company uses it
(excluding off-the-shelf software programs licensed by the Company
pursuant to "shrink wrap" licenses).
(e) The Company has not disclosed the source code for any
software developed by it, or other confidential information
constituting, embodied in or pertaining to such software, to any person
or entity, except pursuant to the agreements listed in Exhibit 2.15(e),
and the Company has taken reasonable measure to prevent disclosure of
such source code.
(f) All of the copyrightable materials incorporated in or
bundled with the Company Intellectual Property have been created by
employees of the Company within the scope of their employment by the
Company or by independent contractors of the Company who have executed
agreements expressly assigning all right, title and interest in such
copyrightable materials to the Company. No portion of such copyrightable
materials was jointly developed with any third party.
2.16 Compliance with Laws. The Company is and has been in full
compliance with all applicable laws, regulations, orders, judgments and decrees,
except for such failure to comply which does not have a Material Adverse Effect
on the Company. Neither the Seller nor the Company has received any notice or
information that any violation of the foregoing is being or may be alleged.
Without limiting the generality of the preceding sentence, the Company has not
violated any credit reporting, privacy (including the solicitation of customers
who have elected under applicable law to prevent the sharing of personal
information), data protection, publicity, advertising or similar federal, state
or local law of any kind in the United States or any other nation (including the
Fair Credit Reporting Act, 15 U.S.C. xx.xx. 1681 et seq and the Driver's Privacy
Protection Act of 1994, 18 U.S.C. xx.xx. 2771 et seq), nor has the Company
received notice of any such violation, and the Company is not aware of any facts
that would give rise to such a violation.
2.17 Governmental Licenses. The Company and each of its employees
have all governmental licenses, permits, franchises, approvals, permits and
other authorizations of, and has made all registrations and or filings with, all
Governmental Entities (the "Licenses"), necessary to own, lease and operate the
properties of the Company and to enable the Company to carry on its business as
presently conducted, except for such Licenses the failure of which to hold,
individually or in the aggregate, does not have and in the future is not likely
to have, a Material Adverse Effect on the Company. For each state and/or
jurisdiction where the Company carries on its business, the Company maintains in
effect the individual agent, agency or any other Licenses that may be required
by that jurisdiction for the Company's employees, agents, and offices to conduct
its business. Set forth on Schedule 2.17 is a true, accurate and complete list
of all Licenses held by the Company, any employee of the Company and any third
party private investigator. All Licenses held by the Company, its employees and
its third party private investigators are in full force and effect. Each License
held or sponsored by the Company can be renewed in the Ordinary Course by the
Company. Any applications for the renewal of any such License which are due have
been timely made or filed by the Company. Neither the Seller nor the Company has
received notice of any proceeding for suspension or revocation of, or similar
proceedings with respect to, any such License and no fact or circumstance exists
that could form the basis for any such proceedings. No jurisdiction has demanded
or requested that the Company qualify or become licensed as a foreign
corporation. There have been no instances where a jurisdiction or governmental
entity has demanded or requested that the Company be licensed or obtain a
license, permit, registration, administrative approval or any similar
authorization to perform any and all services provided by the Company and the
Company has not complied with such demand or request.
2.18 Labor Matters. Except as set forth on Schedule 2.18, the
Company has been and is in compliance with all applicable laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and has not and is not engaged in any unfair labor practice,
except for such noncompliance or practice which does not have, and in the future
is not likely to have, a Material Adverse Effect on the Company. No union is
currently certified, and there is no union representation question and no union
or other organizational activity that would be subject to the National Labor
Relations Act (20 U.S.C. ss.151 et. seq.) existing or, to Seller's Knowledge or
the Company's Knowledge, threatened with respect to the operations of the
Company. The Company is not subject to or bound by any collective bargaining or
labor union agreement applicable to any Person employed by the Company and no
collective bargaining or labor union agreement is currently being negotiated by
the Company. The Company has not experienced any material labor difficulty or
work stoppage during the last three years.
2.19 Employee Benefit Plans. Schedule 2.19 hereto lists all
"employee benefit plans," as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended, and the rules and regulations
thereunder ("ERISA") maintained by the Company. Each of such employee benefit
plans complies in all material respects with (i) all applicable requirements of
ERISA and (ii) all applicable requirements of the Code.
2.20 No Changes Since Balance Sheet Date. Except as set forth on
Schedule 2.20, since the Balance Sheet Date the Company has not (a) incurred any
liability or obligation of any nature (whether accrued, absolute, contingent or
otherwise), except in the Ordinary Course, (b) permitted any of its assets to be
subjected to any Encumbrance (other than Permitted Encumbrances), (c) sold,
transferred or otherwise disposed of any assets, except in the Ordinary Course,
(d) made any capital expenditure or commitment therefor, (e) made any
distribution to its shareholders or declared or paid any dividend or made any
distribution on any shares of its capital stock, (f) redeemed, purchased or
otherwise acquired any shares of its capital stock, (g) granted or issued any
option, warrant or other right to purchase or acquire any shares of its capital
stock, (h) made any bonus or profit sharing distribution or payment of any kind,
(i) increased its Indebtedness, except current borrowings from banks in the
Ordinary Course, or made any loan to any Person, (j) written off as
uncollectible any notes or accounts receivable, except write-offs in the
Ordinary Course charged to applicable reserves, none of which individually or in
the aggregate is material to the Company, (k) granted any increase in the rate
of wages, salaries, bonuses or other remuneration of any employee, except in the
Ordinary Course, (l) canceled or waived any claims or rights of material value,
(m) made any change in any method of accounting or auditing practice,
(n) otherwise conducted its business or entered into any material transaction,
except in the Ordinary Course or (o) agreed, whether or not in writing, to do
any of the foregoing.
2.21 Liabilities. Except as set forth on Schedule 2.21, the Company
has no claims, obligations, liabilities or Indebtedness, whether absolute,
accrued, contingent or otherwise, except for (a) claims, obligations,
liabilities or Indebtedness set forth in the Company Balance Sheet or
specifically disclosed in the footnotes thereto and (b) accounts payable to
trade creditors and accrued expenses incurred subsequent to the Balance Sheet
Date in the Ordinary Course and that would not, individually or in the
aggregate, have a Material Adverse Effect with respect to the Company.
Notwithstanding any term or condition contained herein to the contrary, as of
this date all Indebtedness of the Company to all of its Affiliates has been paid
in full and written evidence of such has been provided to the Buyer.
2.22 Consents and Approvals; No Violations. The execution and
delivery of this Agreement and the other instruments and agreements to be
executed and delivered by the Seller and/or the Company and the consummation of
the transactions contemplated hereby and thereby by the Seller and/or the
Company will not (a) violate any provision of the articles of incorporation or
bylaws (or equivalent organizational documents) of the Company, (b) violate any
statute, ordinance, rule, regulation, order or decree of any court or any
Governmental Entity applicable to the Seller or the Company, (c) except as set
forth on Schedule 2.22(c), require any filing with, or permit, consent or
approval of, or the giving of any notice to, any Governmental Entity or
(d) except as set forth on Schedule 2.22(d) result in a violation or breach of,
conflict with, constitute (with or without due notice or lapse of time or both)
a default (or give rise to any right of termination, cancellation, payment or
acceleration) under, or result in the creation of any Encumbrance upon any of
the properties or assets of the Company under any of the terms, conditions or
provisions of any Contract to which the Seller and/or the Company is a party, or
by which they or any of their respective properties or assets may be bound,
excluding from the foregoing clauses (b) and (d) violations, breaches, conflicts
or defaults which, either individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect or impair materially the ability
of the Seller to perform their obligations hereunder.
2.23 Disclosure. None of this Agreement, the Schedules, Exhibits
and certificates attached or provided hereto, and the documents delivered or
made available to the Buyer and its representatives pursuant hereto by the
Seller or the Company contains any untrue statement of a material fact, or omits
any statement of a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances in which they were
made, not misleading. There is no fact known to the Seller or the Company
relating to the Company or the Stock which would have a Material Adverse Effect
on the Company or the Stock, and which has not been disclosed in a Schedule,
Exhibit or certificate attached or provided hereto.
2.24 Broker's or Finder's Fees. No agent, broker, person or firm
acting on behalf of the Seller or the Company is, or will be, entitled to any
commission or broker's or finder's fees from Buyer or any of its Affiliates
(including, the Company) in connection with any of the transactions contemplated
by this Agreement. Seller is not paying any fee or commission to Xxxxxxxx
Advisory Group, LLC or any individual, in violation of Section 517.061(11) of
the Florida Securities and Investor Protection Act or Rule 3E-500.006 of the
Florida blue sky regulations.
2.25 Copies of Documents. The Seller has caused, and will cause,
the Company to make available for inspection and copying by the Buyer and its
advisers, true, complete and correct copies of all documents referred to in this
Section 2 and in any Exhibit attached hereto.
2.26 Interests in Clients, Suppliers, Etc.; Affiliate Transactions.
Except as set forth on Schedule 2.26, no Seller, officer, director, Affiliate
or, to the knowledge of the Seller's Knowledge or the Company's Knowledge,
employee of the Company either (a) is, (b) possesses, directly or indirectly,
any financial interest in or (c) is a director, officer, member, manager or
employee of, any Person which is, a client of, supplier to, customer of, lessor
to, lessee of or competitor or potential competitor of the Company. Except as
set forth on Schedule 2.26, the Company is not a party to any transaction,
agreement, arrangement or understanding with any Affiliate (including the
Seller), officer, director or employee of the Company. The Company is not
indebted to the Seller, director, officer, employee or agent of the Company
(except for amounts due as normal salaries and in reimbursement of ordinary
expenses) and no such person is indebted to the Company.
2.27 Bank Accounts and Powers of Attorney. Set forth on Schedule
2.27 is an accurate and complete list showing (a) the name and address of each
bank in which the Company has an account or safe deposit box, the number of any
such account or any such box and the names of all Persons authorized to draw
thereon or to have access thereto and (b) the names of all Persons, if any,
holding powers of attorney from the Company, including a summary statement of
the terms thereof.
2.28 Accounts Receivable. The amount of all accounts receivable,
unbilled invoices and other debts due or recorded in the records and books of
account of the Company as being due to the Company are valid, have been recorded
in accordance with GAAP and, other than for the amount reserved on the Company
Balance Sheet and as set forth in Schedule 2.28, will be good and collectible in
full in the ordinary course of business and in any event not later than 180 days
after the date hereof; and, to Seller's Knowledge, none of such accounts
receivable or other debts is subject to any counterclaim or set-off except to
the extent of any such provision or reserve.
2.29 Unregistered Securities. The Seller is acquiring the vFinance
Shares and vFinance Warrants (the "Securities") for its own account as
principal, not as a nominee or agent, for investment purposes only, and not with
a view to, or for, resale, distribution or fractionalization thereof in whole or
in part and no other Person has a direct or indirect beneficial interest in such
Securities, provided, however, the Buyer acknowledges that the Seller may
distribute Shares to the shareholders of the parent of the Seller all of whom
are "accredited investors" as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act. The Seller does not have any contract,
undertaking, agreement or arrangement with any Person to sell, transfer or grant
participations to such Person or to any third party, with respect to any of the
Securities for which the Seller shall receive in consideration for the purchase
by the Buyer of the Stock. The Seller has been given the opportunity for a
reasonable time to ask questions of, and receive answers from, the Buyer or its
representatives concerning the terms and conditions of the Securities. The
Seller represents, warrants and agrees that it will not sell or otherwise
transfer the Securities without registration under the Securities Act or an
exemption therefrom and fully understands that the Securities have not been
registered under the Securities Act or under the securities laws of any state
and, therefore, cannot be resold, pledged, assigned or otherwise disposed of
unless they are subsequently registered under the Securities Act and under the
applicable securities laws of such states or an exemption from such registration
is available. The Seller is aware that the Securities are "restricted
securities," as such term is defined in Rule 144 promulgated under the
Securities Act ("Rule 144"), and they may not be sold pursuant to Rule 144
unless all of the conditions of Rule 144 are met. The Seller understands that,
except as otherwise provided in that certain Registration Rights Agreement of
even date herewith, the Buyer is under no obligation to register the Securities
on its behalf or to assist it in complying with any exemption from registration
under the Securities Act or applicable state securities laws. The Seller
understands that sales or transfers of the Securities are further restricted by
state securities laws and the provisions of this Agreement.
2.30 Accredited Investor. The Seller is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act.
SECTION 3.
REPRESENTATIONS OF THE BUYER
----------------------------
The Buyer represents, warrants and agrees in favor of the Seller, as of
the date of this Agreement (unless a representation or warranty speak as of a
specific date, in which case, as of such date), as follows:
3.1 Existence and Good Standing; Binding Effect; Power. The Buyer
is a corporation validly existing and in good standing under the laws of the
State of Delaware. This Agreement has been duly executed and delivered by the
Buyer and constitutes the valid and binding agreement of the Buyer, enforceable
against the Buyer in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency or similar laws and equitable
principles relating to or affecting the rights of creditors generally from time
to time in effect. The Buyer has the power and authority to enter into this
Agreement.
3.2 Broker's or Finder's Fees. No agent, broker, person or firm
acting on behalf of the Buyer is, or will be, entitled to any commission or
broker's or finder's fees from any of the Parties or from any of their
Affiliates, in connection with any of the transactions contemplated by this
Agreement.
3.3 Litigation. There is no action, suit, proceeding at law or in
equity, arbitration or administrative or other proceeding by or before (or to
the Buyer's Knowledge any investigation by) any Governmental Entity or other
instrumentality or agency, pending, or, to the Buyer's Knowledge, threatened,
against or affecting the Buyer which would materially and adversely affect the
right or ability of the Buyer to enter into this Agreement and to purchase the
Stock hereunder. The Buyer is not subject to any judgment, order or decree
entered in any lawsuit or proceeding which would materially and adversely affect
the right or ability of the Buyer to enter into this Agreement and to purchase
the Stock hereunder.
3.4 Compliance with Laws. The Buyer is and has been in full
compliance with all applicable laws, regulations, orders, judgments and decrees,
except where the failure to so comply would not, individually or in the
aggregate, materially and adversely affect the right or ability of the Buyer to
enter into this Agreement and to purchase the Stock hereunder.
3.5 Consents and Approvals; No Violations. The execution and
delivery of this Agreement by the Buyer and the consummation of the transactions
contemplated hereby by the Buyer will not (a) violate any provision of the
certificate of incorporation or bylaws of the Buyer, (b) violate any statute,
ordinance, rule, regulation, order or decree of any court or any Governmental
Entity applicable to the Buyer or (c) require by the Buyer any filing with, or
permit, consent or approval of, or the giving of any notice to, any Governmental
Entity having authority over the Buyer.
3.6 SEC Reports. Each form, report, schedule, registration
statement, definitive proxy statement filed by vFinance since January 1, 2004
(as such documents have been amended prior to the date hereof, the "SEC
Reports"), as of their respective dates, complied in all material respects with
the applicable requirements of the Securities Act and the Exchange Act and the
rules and regulations thereunder. None of the SEC Reports, as of their
respective dates, contained any untrue statement of material fact or failed to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. As of the date of this Agreement, to vFinance's Knowledge,
vFinance is not required under the Securities Act, the Exchange Act
(collectively, the "Acts") or the rules and regulations promulgated under either
of the Acts to file any amendments to the SEC Reports or any new form, report,
schedule or registration statement, except to disclose this Agreement and the
Related Documents in accordance with the rules of SEC Form 8-K.
3.7 vFinance Common Stock. The vFinance Shares delivered or to be
delivered pursuant to Section 4.2 of this Agreement are authorized and, when so
delivered, will be validly issued, fully paid and nonassessable. The vFinance
Shares underlying the vFinance Warrants delivered or to be delivered pursuant to
Section 4.2 of this Agreement are authorized and, when fully paid and in
accordance with the terms of the vFinance Warrants, will be validly issued,
fully paid and nonassessable.
SECTION 4.
THE TRANSACTION
---------------
4.1 Sale of Stock. Upon the terms and subject to the conditions
set forth in this Agreement, the Seller agrees to sell, convey, assign, transfer
and deliver to the Buyer (or its designee), and the Buyer agrees to purchase (or
cause its designee to purchase) the Stock.
4.2 Purchase Price.
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(a) In consideration for the purchase by the Buyer (or
its designee) of the Stock, the Buyer shall deliver (a) 4,162,345
restricted shares ("vFinance Shares") of common stock, $0.01 par value,
of vFinance ("vFinance Common Stock") and (b) warrants to purchase
1,649,864 shares of vFinance Common Stock (the "vFinance Warrants") to
the Escrow Agent no more than two (2) business days following the date
hereof.
(b) The vFinance Shares and vFinance Warrants shall be
held in escrow by the Escrow Agent and dispersed in accordance with the
terms of the Escrow Agreement.
4.3 Deliveries by the Seller. The Seller shall deliver or caused
to be delivered to the Buyer:
(a) Company Balance Sheet;
(b) a certificate of the Secretary of the Company
attaching a correct and complete copy of the bylaws, including all
amendments thereto, of the Company;
(c) a certificate, dated the date of this Agreement and
executed by a duly authorized officer of the Seller, certifying that
(i) each of the representations and warranties of the Seller contained
in this Agreement is true and correct; and (ii) that all of the
covenants and agreements to be performed by the Seller on or prior to
the date hereof have been duly performed.
(d) a copy of the articles of incorporation, including
all amendments thereto, of the Company, certified by the Secretary of
State of Florida as being true and correct and in effect as of the date
of this Agreement;
(e) a good standing certificate for the Company certified
by the Secretary of State of Florida or other appropriate official in
Florida and each other state or country in which the Company is
qualified to do business as a foreign corporation and in each case dated
a date no more than five (5) Business Days prior to the date of this
Agreement;
(f) an Employment Agreement between the Buyer and Xxxxxx
Xxxxx substantially in the form attached hereto as Exhibit A-1;
(g) an Employment Agreement between the Buyer and Xxxxx
Xxxxx substantially in the form attached hereto as Exhibit A-2;
(h) an Asset Purchase Agreement between the Buyer and
Global Partners Securities, Inc. substantially in the form attached
hereto as Exhibit B;
(i) an Escrow Agreement among the Buyer, vFinance, Inc.,
the Seller, Global Partners Securities, Inc. and Escrow Agent
substantially in the form attached hereto as Exhibit C;
(j) a Registration Rights Agreement between vFinance,
Inc., the Seller and Global Partners Securities, Inc. substantially in
the form attached hereto as Exhibit D;
(k) a Standstill Agreement among vFinance, Inc., Xxxxxx
Xxxxx, Xxxxx Xxxxx and Xxxxxxx Xxxxx, substantially in the form attached
hereto as Exhibit E;
(l) resignation letters of all members of the boards of
directors of the Company, together with an acknowledgment that they have
no prior or present claim whatsoever against the Company;
(m) the original corporate record books and stock record
books of the Company;
(n) evidence that all Indebtedness of the Company to all
of its Affiliates has been paid in full; and
(o) such other documents and instruments as are
reasonably required to be delivered to the Buyer by the Seller in order
to effect the transactions contemplated by this Agreement.
4.4 Deliveries by the Buyer. The Buyer shall deliver or cause to
be delivered to the Seller the following:
(a) the vFinance Shares and vFinance Warrants, which
shall be deposited in escrow to be held and dispersed in accordance with
the terms of the Escrow Agreement;
(b) an Asset Purchase Agreement between the Buyer and
Global Partners Securities, Inc. substantially in the form attached
hereto as Exhibit B;
(c) an Escrow Agreement between the Buyer, vFinance,
Inc., the Seller, Global Partners Securities, Inc. and Escrow Agent
substantially in the form attached hereto as Exhibit C;
(d) a Registration Rights Agreement between vFinance,
Inc., the Seller and Global Partners Securities, Inc. substantially in
the form attached hereto as Exhibit D;
(e) a Standstill Agreement among vFinance, Inc., Xxxxxx
Xxxxx, Xxxxx Xxxxx and Xxxxxxx Xxxxx, substantially in the form attached
hereto as Exhibit E;
(f) a certificate, dated the date of this Agreement and
executed by a duly authorized officer of the Buyer, certifying that
(i) each of the representations and warranties of the Buyer contained in
this Agreement is true and correct; and (ii) that all of the covenants
and agreements to be performed by the Buyer on or prior to the date
hereof have been performed; and
(g) such other documents and instruments as are
reasonably required to be delivered to the Seller by the Buyer in order
to effect the transactions contemplated by this Agreement.
4.5 NASD Approval. All required approvals, applications or notices
with governmental entities shall be obtained within 90 days of the date of this
Agreement, including without limitation, the NASD (the "NASD Approval"). The
Parties agree to assist each other, on an as-needed basis, in connection with
the NASD approval process. Should NASD Approval not be obtained within 90 days
of the date of this Agreement, the parties shall negotiate in good faith in
order to restructure this Agreement on similar terms and conditions to meet the
requirements of the NASD.
4.6 Breach of Related Documents. If a breach of any of the Related
Documents shall occur, which (to the extent, and only to the extent, that any
cure period is permitted or provided for) is not timely cured in accordance with
the terms of such Related Documents, this Agreement shall also be deemed to be
in breach.
SECTION 5.
NONCOMPETITION
--------------
5.1 Noncompetition and Nonsolicitation. The Seller agrees that for
a period of three (3) years following the date hereof, so long as an ownership
interest in Global Partners Securities, Inc. is held by Xxxxxx Xxxxx, Xxxxx
Xxxxx or Xxxxxxx Xxxxx:
(a) Except for those individuals listed on Exhibit F, the
Seller and its Affiliates will not compete with the Buyer, without the
Buyer's prior written consent, in any activity relating to the Buyer's
Business. For purposes of the preceding sentence, competition shall
include, without limitation, direct or indirect competition by the
Seller or its employees.
(b) Except for those individuals listed on Exhibit F, the
Seller and its Affiliates will not, directly or indirectly, appropriate
any of the Buyer's individuals and business entities that were
(i) existing clients of the Buyer as of the date hereof and (ii) clients
of the Buyer at any time during the three-year period immediately
preceding the date hereof.
(c) Except for those individuals listed on Exhibit F, the
Seller and its Affiliates will not hire, contract with or solicit for
employment any employee of the Buyer or any former employee of the Buyer
who left such employment less than six (6) months prior to the date of
this Agreement. Notwithstanding anything contained herein to the
contrary, the Seller and its Affiliates may hire Xxxxxx Xxxxx for
employment.
5.2 Acknowledgment. The Parties acknowledge and agree that each of
their businesses is specialized and not confined to any geographic market and
agree that such geographic scope is reasonable. The Parties acknowledge that the
restrictions set forth in this Section are considered by the Parties to be
reasonable for the purposes of protecting the legitimate business interests of
the Parties and are a material inducement to the Parties entering into the other
transactions contemplated hereby. The Parties acknowledge and agree that
monetary damages would not provide an adequate remedy in the event of a breach
or threatened breach of provisions of this Section. The Parties agree that, in
addition to any other remedies available to the Parties, the Parties shall be
entitled to injunctive relief, specific performance and other equitable relief
to secure the enforcement of these provisions. It is the desire and intent of
the Parties that the provisions of this Section be enforced to the fullest
extent permissible under the laws and public policies of each jurisdiction in
which enforcement is sought. If any provisions of this Section relating to the
time period, scope of activities, geographic area of restrictions or otherwise
is declared by a court of competent jurisdiction to exceed the maximum
permissible time period, scope of activities, geographic area or other matter of
public policy, the maximum time period, scope of activities, geographic area or
other matter, as the case may be, shall be reduced to the maximum which such
court deems enforceable. If any provisions of this Section other than those
described in the preceding sentence are adjudicated to be invalid or
unenforceable, the invalid or unenforceable provisions shall be deemed amended
(with respect only to the jurisdiction in which such adjudication is made) in
such manner as to render them enforceable and to effectuate as nearly as
possible the original intentions and agreement of the Parties.
SECTION 6.
INDEMNIFICATION
---------------
6.1 Survival of Representations and Liability Limitations.
-----------------------------------------------------
(a) The representations and warranties of the Parties
contained in Sections 2 and 3 (and in any Exhibit attached hereto or
certificate delivered in connection with this Agreement) are made only
as of the date of this Agreement. Such representations and warranties
shall survive until twenty-four (24) months after the date of this
Agreement; provided, however, that the representations and warranties
contained in Sections 2.2, 2.3, 2.4, 2.24, and 3.2 shall survive
indefinitely.
(b) The Parties shall have no liability (for
indemnification or otherwise), including, without limitation, the
matters set forth in Section 6.2 hereof, until the total of all Losses
(as defined in Section 6.2 hereof) exceeds $10,000 (the "Tipping
Amount"), excluding any Losses incurred in the Asset Purchase Agreement
and any schedules thereto; provided that if, in any case, the aggregate
amount of such Losses exceeds the Tipping Amount, then the applicable
indemnifying party hereunder shall be obligated to pay the full amount
of the Losses, including the Tipping Amount.
(c) Notwithstanding anything to the contrary in this
Agreement, the aggregate liability of any Party including, without
limitation, with respect to the matters set forth in Section 6.2 hereof,
shall not exceed the Purchase Price.
6.2 Indemnification.
----------------
(a) The Seller agrees to indemnify and hold harmless the
Buyer and vFinance and any of their directors, officers, shareholders, employees
and agents, successors and assigns (each, a "Buyer Indemnified Party") from and
against any and all losses, obligations, liabilities, damages, claims,
deficiencies, costs and expenses (including but not limited to, the amount of
any settlement entered into pursuant hereto and all reasonable legal and other
expenses incurred in connection with the investigation, prosecution or
defense of the matter) (collectively, "Losses"), which may be sustained or
incurred by the Buyer Indemnified Party in connection with, arising out of, or
relating to (i) any breach of any, or any false, incorrect or misleading,
representation or warranty that is made by the Seller herein or in any Exhibit,
certificate or other document delivered to the Buyer Indemnified Party by or
on behalf of the Seller pursuant to this Agreement and that is qualified as to
materiality, (ii) any material breach of, or any materially false, incorrect
or misleading, representation or warranty that is made by Seller herein or in
any Exhibit, certificate or other document delivered to the Buyer Indemnified
Party by or on behalf of the Seller pursuant to this Agreement and that is
qualified as to materiality, (iii) any material breach of any agreements and
covenants made by Seller herein or in any Exhibit, certificate or other document
delivered to the Buyer Indemnified Party by or on behalf of the Seller in
connection with this Agreement, and (iv) any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Buyer Indemnified Party
in connection with the enforcement of its rights under this Agreement.
Notwithstanding anything contained herein to the contrary, the Seller shall
have the right to pay the full amount of the Losses incurred by the Buyer
Indemnified Party in vFinance Common Stock or in cash. The vFinance Common Stock
shall be valued at $0.20 per share, which represents the value per share of
the vFinance Common Stock as of the date of this Agreement.
(b) The Buyer agrees to indemnify and hold harmless the
Seller and any of its directors, officers, shareholders, employees and agents,
successors and assigns (each, a "Seller Indemnified Party") from and against any
Losses, which may be sustained or incurred by the Seller Indemnified Party in
connection with, arising out of, or relating to (i) any breach of any, or
any false, incorrect or misleading, representation or warranty that is made by
the Buyer herein or in any Exhibit, certificate or other document delivered
to the Seller Indemnified Party by or on behalf of the Buyer pursuant to this
Agreement and that is qualified as to materiality, (ii) any material breach of,
or any materially false, incorrect or misleading, representation or warranty
that is made by Buyer herein or in any Exhibit, certificate or other document
delivered to the Seller Indemnified Party by or on behalf of the Buyer
pursuant to this Agreement and that is qualified as to materiality,
(iii) any material breach of any agreements and covenants made by Buyer herein
or in any Exhibit, certificate or other document delivered to the Seller
Indemnified Party by or on behalf of the Buyer in connection with this
Agreement, and (iv) any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Seller Indemnified Party in connection with the
enforcement of its rights under this Agreement. Notwithstanding anything
contained herein to the contrary , the Buyer shall have the right to pay the
full amount of the Losses incurred by the Seller Indemnified Party in vFinance
Common Stock or in cash. The vFinance Common Stock shall be valued at the lower
of (x) the Fair Market Value per shares at the time of a Notice of Claim
(as defined in Section 6.3) or (y) $0.20 per share. "Fair Market Value" shall
mean the last reported sale price of the vFinance Common Stock, or in case no
such reported sale takes place on such day, the average of the last reported
sales prices for the last three trading days, in either case as officially
reported by the principal securities exchange on which the vFinance Common
Stock is listed or admitted to trading or if the vFinance Common Stock is
not listed or admitted to trading on any national securities exchange, the last
reported sale price as furnished by the NASD through NASDAQ or the OTC
Bulletin Board if NASDAQ is no longer reporting such information, or if the
vFinance Common Stock is not quoted on NASDAQ or the OTC Bulletin Board, as
determined in good faith by resolution of vFinance's Board of Directors, based
on the best information available to it for the day immediately preceding such
issuance or sale. Notwithstanding anything contained herein to the contrary,
the Buyer shall not have any liability for indemnification to the
Seller Indemnified Party, including, without limitation, with respect to the
matters set forth in this Section 6.2(b), as to which the Buyer has not
received a Notice of Claim within a period of twenty-four (24) months following
the date hereof.
(c) If either Party or any of its successors or assigns
(i) consolidates with or merges into any other Person and will not be
the continuing or surviving Person of such consolidation or merger or
(ii) transfers all or substantially all of its properties and assets to
any Person, then in each such case, proper provisions will be made so
that the successors and assigns of such Party assume the obligations set
forth in this Section 6.
6.3 Indemnification Procedure.
--------------------------
(a) Notice of Claim. Promptly, but in any event within 30
days after obtaining knowledge of any claim or demand which may give
rise to, or could reasonably give rise to, a claim for indemnification
hereunder (any such claim an "Indemnification Claim"), the party or
parties entitled to indemnification hereunder (the "Indemnified Party")
shall give written notice to the party or parties subject to
indemnification obligations therefor (the "Indemnifying Party") of such
Indemnification Claim (a "Notice of Claim"). A Notice of Claim shall be
given with respect to all Indemnification Claims then known; provided,
however, that the failure to timely give a Notice of Claim to the
Indemnifying Party shall not relieve the Indemnifying Party from any
liability that it may have to the Indemnified Party hereunder to the
extent that the Indemnifying Party is not prejudiced by such failure.
Subject to Section 6.1 hereof, no Indemnified Party shall be entitled to
give a Notice of Claim with respect to any representation and
warranty twenty-four (24) months from the date hereof. The Notice of
Claim shall set forth the amount (or a reasonable estimate) of the loss,
damage or expense suffered, or which may be suffered, by the
Indemnified Party as a result of such Indemnification Claim and a brief
description of facts giving rise to such Indemnification Claim
(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 asserting the same).
(b) Third Party Claims.
-------------------
(i) If the claim or demand set forth in the
Notice of Claim is a claim or demand asserted by a third party (a "Third
Party Claim"), the Indemnifying Party shall have fifteen (15) days (or
such shorter period if an answer or other response or filing with
respect to the pleading served by the third party is required prior to
the 15th day) after the date of receipt by the Indemnifying Party of the
Notice of Claim (the "Notice Date") to notify the Indemnified Party in
writing of the election by the Indemnifying Party to defend the Third
Party Claim on behalf of the Indemnified Party.
(ii) If the Indemnifying Party elects to
defend a Third Party Claim on behalf of the Indemnified Party, the
Indemnified Party shall make available to the Indemnifying Party and its
agents and representatives all records and other materials in its
possession which are reasonably required in the defense of the Third
Party Claim and subject to the limitations set forth in this Section 6,
the Indemnifying Party shall pay any expenses payable in connection with
the defense of the Third Party Claim as they are incurred (whether
incurred by the Indemnified Party or Indemnifying Party).
(iii) In no event may the Indemnifying Party settle or
comprise any Third Party Claim without the Indemnified Party's consent,
which shall not be unreasonably withheld.
(iv) If the Indemnifying Party elects to defend a Third
Party Claim, the Indemnified Party shall have the right to participate
in the defense of the Third Party Claim, at the Indemnified Party's
expense (and without the right to indemnification for such expense
under this Agreement); provided, however, that subject to the
limitations sets forth in this Section 6, the reasonable fees and
expenses of counsel retained by the Indemnified Party shall be at the
expense of the Indemnifying Party if (A) the use of the counsel chosen
by the Indemnifying Party to represent the Indemnified Party would
present such counsel with a conflict of interest; (B) the parties to
such proceeding include both the Indemnified Party and the Indemnifying
Party and there may be legal defenses available to the Indemnified
Party; (C) within ten (10) days after being advised by the Indemnifying
Party of the identity of counsel to be retained to represent the
Indemnified Party, the Indemnified Party shall have objected to the
retention of such counsel for valid reasons (which shall be stated in a
written notice to Indemnifying Party), and the Indemnifying Party
shall not have retained different counsel reasonably satisfactory to the
Indemnified Party; or (D) the Indemnifying Party shall authorize the
Indemnified Party to retain separate counsel at the expense of the
Indemnifying Party.
(v) Subject to the limitations set forth in this Section
6, if the Indemnifying Party does elect to defend a Third Party Claim,
or does not defend a Third Party Claim in good faith, the Indemnified
Party shall have the right, in addition to any other right or remedy it
may have hereunder, at the sole and exclusive expense of the
Indemnifying Party, to defend such Third Party Claim; provided, however,
that such expenses shall be payable by the Indemnifying Party only if
and when such Third Party Claim becomes payable.
(vi) To the extent that an Indemnified Party recovers on a
Third Party Claim, the amount of such recovery (after deduction of all
costs and expenses incurred in connection with such Third Party Claim)
shall reduce, dollar-for-dollar, the indemnification obligation
otherwise owing by the Indemnifying Party.
(c) Cooperation in Defense. The Indemnified Party shall
cooperate with the Indemnifying Party in the defense of a Third Party
Claim. Subject to the foregoing, (i) the Indemnified Party shall not
have any obligation to participate in the defense of or to defend any
Third Party Claim, and (ii) the Indemnified Party's defense of or its
participation in the defense of any Third Party Claim shall not in any
way diminish or lessen its right to indemnification as provided in this
Agreement.
(d) Periodic Payments. Any indemnification required in
this Section 6 shall be made by periodic payments during the
investigation or defense as and when bills are received or costs,
disbursements or expenses incurred.
SECTION 7.
MISCELLANEOUS
-------------
7.1 Due Diligence. Prior to the date of this Agreement, the Seller
has directly or through their representatives and advisers, permitted the Buyer
and its representatives to review the properties, books and records of the
Company and its financial and legal condition to the extent the Buyer deems
necessary or advisable to familiarize itself with such properties and other
matters. As a result of such review, nothing has come to the attention of the
Buyer that the Seller is in breach of any of the representations or warranties
set forth in Section 2 of this Agreement. Such review shall not, however, affect
the representations and warranties made by the Seller in this Agreement or the
remedies of the Buyer for breaches of those representations and warranties.
7.2 Expenses.
--------
(a) Except as expressly provided herein, each Party shall
bear its own (i) costs incurred as a result of the transfer of the
Stock, including payments to third parties, if any, to obtain their
consent to such transfer and (ii) professional fees and related costs
(including fees and costs of accountants, attorneys, benefits
specialists, tax advisors and appraisers) incurred by it in connection
with the preparation, execution and delivery of this Agreement and the
Related Documents and the transactions contemplated hereby or thereby.
(b) Notwithstanding anything to the contrary, all legal,
accounting, investment banking and other expenses of the Seller and/or
the Company in connection with the transactions contemplated by this
Agreement shall be the responsibility of the Seller and shall not be,
and shall not become, liabilities of the Company, and shall not be
assumed in any way whatsoever by the Buyer or any of its Affiliates.
7.3 Confidentiality. Subject to the requirements of applicable law
and regulations, including obligations of the Buyer under the securities laws of
the United States, each Party shall maintain in confidence (a) the provisions of
this Agreement and (b) all information received from another Party or a
representative of such Party as a result of any due diligence investigation
conducted relative to the execution of this Agreement and shall use such
information only in connection with evaluating the transactions contemplated
hereby. The obligation of confidentiality and non-use shall not apply to any
information which (i) is or becomes generally available to the public through no
fault of the receiving party, (ii) is independently developed by the receiving
party or (iii) is received in good faith from a third party who is lawfully in
possession of such information and has the lawful right to disclose or use it.
Notwithstanding the preceding sentence, the Buyer, the Seller and the Company
(and each employee, representative and other agent of the Buyer, the Seller and
the Company) may disclose to any and all Persons, without limitation of any
kind, th e tax treatment and tax structure of the transactions contemplated by
this Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to the Buyer, the Seller and/or the Company relating
to such tax treatment and tax structure. This Section is intended to reflect the
understanding of the Buyer, the Seller and the Company that this transaction has
not been offered under "conditions of confidentiality" as that phrase is used in
Treasury Regulation xx.xx. 1.6011-4(b)(3)(i) and 301.6111-2(c)(i), and shall be
interpreted in a manner consistent therewith.
7.4 Governing Law; Jurisdiction.
----------------------------
(a) The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the
laws of the state of Florida applicable to Agreements executed and to be
performed solely within such state, exclusive of conflicts of laws
principles.
(b) Each of the Parties hereby(i) consents to submit
itself to the exclusive personal jurisdiction of any Florida state court
or any federal court located in the State of Florida in Palm Beach
County or Broward County in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement and
(ii) agrees that it shall not attempt to deny or defeat such personal
jurisdiction or object to such venue by motion or other request for
leave from any such court.
7.5 Notices. Any notice or other communication required or
permitted under this Agreement shall be sufficiently given if delivered in
person or sent by facsimile or by registered or certified mail, postage prepaid,
addressed as follows:
(a) If to the Buyer, to:
vFinance Investments Holdings, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx
with a copy (which shall not constitute notice) to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxx Xxx Xxxx Xxxx., Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxxx, P.A.
(b) If to the Seller, to:
Xxxxx0.xxx, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxx
with a copy (which shall not constitute notice) to:
Wasserstrom Giulianti, P.A.
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxxxxxx, Esq.
or such other address or number as shall be furnished in writing by any such
Party, and such notice or communication shall, if properly addressed, be deemed
to have been given as of the date so delivered, sent by facsimile or three
business days after deposit into the U.S. mail.
7.6 Parties in Interest. This Agreement may not be transferred,
assigned, pledged or hypothecated by any Party hereto, other than by operation
of law. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and permitted assigns.
7.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
7.8 Attorneys' Fees. If any legal action or other proceeding is
brought for the enforcement of this Agreement, the prevailing Party shall be
entitled to recover reasonable attorneys' fees and other costs incurred at trial
and on appeal, in addition to any other relief to which it may be entitled.
7.9 Entire Agreement. This Agreement, including the other Related
Documents and the other documents referred to herein and in the Exhibits hereto
which form a part hereof, contains the entire understanding of the parties
hereto with respect to the subject matter contained herein and therein. This
Agreement supersedes all prior agreements and understandings between the Parties
with respect to such subject matter.
7.10 Amendments. This Agreement may not be amended or modified
orally, but only by an agreement in writing signed by the Parties.
7.11 Severability. In case any provision in this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
7.12 Third Party Beneficiaries. Each Party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the Parties hereto.
IN WITNESS WHEREOF, the Buyer and the Seller has caused its name to be
hereunto subscribed by its duly authorized signatory, as of the day and
year first above written.
VFINANCE INVESTMENTS HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Name: Xxxxxxx Xxxxxxx
Title: President
SELLER:
XXXXX0.XXX, INC.
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: President
