EXHIBIT 10.4
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is dated as of June 8, 2000,
between XxxxxXxXxxXxx.xxx, Inc., a Delaware Corporation ("Buyer "), and Xxxxxx
Xxxxxxxxxx, an individual ("Seller").
WHEREAS, Seller owns 11,260,825 shares of the $.001 par value common
stock (the "Company Shares") of the Buyer; and
WHEREAS, Buyer wishes to purchase, and the Seller is willing to sell,
5,555,555 Company Shares from Seller in exchange for $500,000 or $.09 per share
(which amount shall be delivered to Xxxxxxx Xxxxx Business Financial Services,
Inc. and First Southern Bank as previously instructed), subject to the terms and
conditions contained in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree that the foregoing recitals are
true and correct and further agree as follows:
1. Purchase and Sale. On the Closing (as provided in Section 2 herein),
Seller shall sell, assign, transfer, convey and deliver the Company Shares to
Buyer, free and clear of any and all liens, claims and encumbrances (except for
the lien in favor of First Southern Bank more particularly described in Section
3.2 below) and Seller shall evidence such transaction by delivering to Buyer
certificates for the Company Shares, duly endorsed to Buyer, with all applicable
transfer taxes paid by Seller. In consideration of the conveyance of the Company
Shares to Buyer, at the Closing Buyer shall deliver $500,000 by cashier's check
or wire transfer (the "Purchase Price") as follows: (i) $250,000 shall be
delivered to First Southern Bank and (ii) $250,000 shall be delivered to Xxxxxxx
Xxxxx Business Financial Services, Inc.
2. Closing and Closing Agreements.
2.1 The Closing (the "Closing") of the purchase and sale of
the Company Shares shall be held on or before June 1, 2000, at a date, place and
time mutually agreed to by the parties, unless the parties mutually agree in
writing to extend the date of Closing (the "Closing Date").
2.2 At the Closing, the Seller shall cause First Southern Bank
to deliver to Buyer the certificate or certificates representing the Company
Shares, along with a stock power duly endorsed for transfer in order to sell,
transfer, convey and assign the Company Shares upon the payment of all cash sums
specified in Section 1 above, and such other duly executed instruments or
documents as may be reasonably requested by Buyer in order to consummate the
transactions contemplated by this Agreement. Simultaneously with the delivery of
the certificates representing the Company Shares to the Buyer, the Buyer shall
cause new certificates (the "Substitute Certificates") to be issued from the
treasury of the Buyer in the name of "XxxxxXxXxxXxx.xxx, Inc." and such
Substitute Certificates shall be delivered to First Southern Bank, along with a
stock power duly endorsed for transfer in order to sell, transfer, convey and
assign such Substitute Certificates, in accordance with the terms of the Stock
Pledge (as hereinafter defined). After substitution of the Company Shares with
the Substitute Certificates, the certificates evidencing the Company Shares
shall be cancelled.
2.3 At the Closing, the Buyer shall deliver to the Seller (i)
the Purchase Price due at Closing in accordance with Section 1, above and such
other duly executed instruments or documents as may be reasonably requested by
Seller in order to consummate the transactions contemplated by this Agreement.
2.4. At or subsequent to the Closing, the parties shall
execute and deliver any other instruments and take any actions, which may be
reasonably required for the implementation of this Agreement and the
transactions contemplated hereby.
3. Seller's Representations and Warranties. In order to induce Buyer to
enter into this Agreement and purchase the Company Shares, Seller makes the
following representations and warranties to Buyer, which representations and
warranties shall be true and correct as of the Closing date as well as on the
date hereof:
3.1 Seller has full power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby. This Agreement
constitutes the legal, valid and binding obligation of Seller, enforceable in
accordance with its terms. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby requires the
approval or consent of any third party, whether governmental or otherwise.
3.2 Seller is the only legal, record and beneficial owner of
the Company Shares. Except for the lien created by that certain Stock Pledge
Agreement (the "Stock Pledge"), dated as of May __, 2000, by and among First
Southern Bank, the Seller and other parties, the Company Shares are free and
clear of all liens, pledges, security interests, irrevocable proxies,
encumbrances or restrictions of any kind. Upon the conveyance of the Company
Shares, the Buyer will be vested with legal and valid title to the Company
Shares, free and clear of all liens, pledges, security interests, irrevocable
proxies, encumbrances or restrictions of any kind, except for the Stock Pledge..
3.3 There is no outstanding right, agreement, power of
attorney, commitment or understanding of any nature whatsoever, that (i) calls
for the issuance, sale, pledge or other disposition of any stock constituting
the Company Shares, (ii) obligates the Seller to enter into any of the foregoing
or (iii) relates to the voting or control of such Company Shares.
3.4 The execution, delivery and performance of this Agreement
and the transactions contemplated by this Agreement will not conflict with, or
constitute or result in a breach, default or violation of (i) any law,
ordinance, regulation or rule applicable to Seller; (ii) any order, judgment,
injunction or other decree by which Seller is bound; or (iii) any written or
oral contract, agreement, or commitment to which Seller is a party; nor will
such execution, delivery and performance result in the creation of any lien or
encumbrance upon the Company Shares.
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3.5 The representations and warranties contained in this
Section do not contain any untrue statement of a material fact or omit to state
a material fact required or necessary to be stated therein to make the
statements made therein, in light of the circumstances in which they were made,
not misleading.
4. Buyer's Representations and Warranties. In order to induce Seller to
enter into this Agreement and sell the Company Shares, Buyer makes the following
representations and warranties to Seller, which representations and warranties
shall be true and correct as of the Closing date as well as the date hereof:
4.1 Buyer has all requisite right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby requires the approval or
consent of any third party.
4.2 This Agreement constitutes the legal, valid and binding
obligation of Buyer enforceable in accordance with its terms.
5. Conditions to Buyer's Obligations. The obligations of Buyer to
consummate the transactions contemplated hereby shall be subject to the
satisfaction on or prior to the Closing Date of all of the following conditions,
except such conditions as Buyer may waive:
5.1 Seller shall have complied in all material respects with
all of his agreements and covenants contained herein required to be complied
with at or prior to the Closing Date, and all the representations and warranties
of Seller contained herein shall be true on and as of the Closing Date with the
same effect as though made on and as of the Closing Date.
5.2 All action (including notifications and filings) that
shall be required to be taken by Seller in order to consummate the transactions
contemplated hereby shall have been taken and all consents, approvals,
authorizations and exemptions from third parties (if any) that shall be required
in order to enable Seller to consummate the transactions contemplated hereby
shall have been duly obtained.
5.3 No order of any court or governmental or regulatory
authority or body which restrains or prohibits the transactions contemplated
hereby shall be in effect on the Closing Date and no suit or investigation by
any government agency to enjoin the transactions contemplated hereby or seek
damages or other relief as a result thereof shall be pending or threatened as of
the Closing Date.
5.4 Buyer shall have received from the Seller all of the
documents and items required to be delivered at Closing as provided in Section
2.2 herein.
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6. Conditions to Seller's Obligations. The obligations of Seller to
consummate the transactions contemplated hereby shall be subject to the
satisfaction on or prior to the Closing Date of all of the following conditions,
except such conditions as Seller may waive:
6.1 Buyer shall have complied in all material respects with
all of its agreements contained herein required to be complied with at or prior
to the Closing Date, and all of the representations and warranties of Buyer
contained herein shall be true in all material respects on and as of the Closing
Date with the same effect as though made on and as of the Closing Date.
6.2 All action (including notifications and filings) that
shall be required to be taken by Buyer in order to consummate the transactions
contemplated hereby shall have been taken and all consents, approvals,
authorizations and exemptions from third parties that shall be required in order
to enable Seller to consummate the transactions contemplated hereby shall have
been duly obtained.
6.3 No order of any court or governmental or regulatory
authority or body which restrains or prohibits the transactions contemplated
hereby shall be in effect on the Closing Date and no suit or investigation by
any government agency to enjoin the transactions contemplated hereby or seek
damages or other relief as a result thereof shall be pending or threatened in
writing as of the Closing Date.
6.4 Seller shall have received from the Buyer all of the
documents and other items required to be delivered at Closing as provided in
Section 2.3 herein.
7. Survival and Indemnification.
7.1 The representations, warranties, covenants and agreements
contained herein to be performed or complied with after the Closing shall
survive without limitation as to time, unless the covenant or agreement
specifies a term, in which case such covenant or agreement shall survive until
the expiration of such specified term.
7.2 From and after the Closing Date, the Seller and the Buyer,
as the case may be, shall indemnify and hold harmless the other (the party
seeking indemnification being referred to as the "Indemnified Party") from and
against any and all claims, losses, liabilities and damages, including, without
limitation, amounts paid in settlement, reasonable costs of investigation and
reasonable fees and disbursements of counsel, arising out of or resulting from
the inaccuracy of any representation or warranty, or the breach of any covenant
or agreement, contained herein or in any instrument or certificate delivered
pursuant hereto, or in the case of the Seller or the Buyer, any claim arising
from any action prior to the Closing Date, by the party against whom
indemnification is sought (the "Indemnifying Party").
7.3 The Indemnified Party shall promptly notify the
Indemnifying Party in writing of any claim for indemnification, specifying in
detail the basis of such claim, the facts pertaining
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thereto and, if known, the amount, or an estimate of the amount, of the
liability arising therefrom. The Indemnified Party shall provide to the
Indemnifying Party as promptly as practicable thereafter all information and
documentation necessary to support and verify the claim asserted and the
Indemnifying Party shall be given reasonable access to all books and records in
the possession or control of the Indemnified Party or any of its affiliates
which the Indemnifying Party reasonably determines to be related to such claim.
8. Notices Any notices, requests, demands and other communications
required or permitted to be given hereunder must be in writing and, except as
otherwise specified in writing, will be deemed to have been duly given when
personally delivered or facsimile transmitted, or three days after deposit in
the United States mail, by certified mail, postage prepaid, return receipt
requested, as follows:
If to Buyer:
XxxxxXxXxxXxx.xxx, Inc.
0000 Xxxxx Xxxx 0
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
-- with a copy to --
Xxxxxx & Zeder, P.A.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
If to Seller:
Xxxxxx Xxxxxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
or to such other addresses or facsimile numbers as either party hereto may from
time to time give notice of (complying as to delivery with the terms of this
Section) to the other.
9. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, understandings,
negotiations and discussions, both written and oral, between the parties hereto
with respect to the subject matter hereof.
10. Benefits; Binding Effect; Assignment. This Agreement is for the
benefit of and binding upon the parties hereto, their respective successors and,
where applicable, assigns. Neither
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party may assign this Agreement or any of its rights, interests or obligations
hereunder without the prior approval of the other party.
11. Waiver. No waiver of any of the provisions of this Agreement will
be deemed to constitute or will constitute a waiver of any other provision
hereof (whether or not similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly so provided.
12. Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or will be construed, to confer upon or give any person
or entity other than the parties hereto, First Southern Bank and their
respective successors and assigns any rights or remedies under or by reason of
this Agreement, and First Southern Bank and its successors and assigns are
express third-party beneficiaries of Section 2.2 of this Agreement.
13. Section Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of any provisions of this Agreement.
14. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
will be deemed to be one and the same instrument.
15. Arbitration. All claims, disputes and other matters in question
between the parties to this Agreement, arising out of or relating to this
Agreement or the breach thereof, shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
then outstanding unless the parties mutually agree in writing otherwise. The
arbitration shall be conducted in a neutral location by one arbitrator.
16. Remedies Cumulative. No remedy made available by any of the
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy is cumulative and is in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity.
17. Equitable Remedies. Seller acknowledges and agrees that Buyer will
not have an adequate remedy at law in the event of any breach by Seller of this
Agreement and that, therefore, Buyer shall be entitled, in addition to any other
remedies which may be available to it, to injunctive and/or other equitable
relief to prevent or remedy a breach, with the posting of any bond in connection
therewith being hereby waived.
18. Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be
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deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The specifications of any dollar amount in the
representations and warranties or otherwise in this Agreement is not intended
and shall not be deemed to be an admission or acknowledgment of the materiality
of such amounts or items, nor shall the same be used in any dispute or
controversy between the parties to determine whether any obligation, item or
matter (whether or not described herein or included in any schedule) is or is
not material for purposes of this Agreement.
19. Further Documentation. The parties shall execute and deliver any
other instruments or documents and take any further actions after the execution
of this Agreement, which may be reasonably required for the implementation of
this Agreement and the transactions contemplated hereby.
20. Governing Law. This Agreement will be governed by and construed and
enforced in accordance with the internal laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Agreement as of the day and year first above written.
BUYER:
XxxxxXxXxxXxx.xxx, Inc.
By: /s/ Xxxxxxxx Xxxxxxxxxx
Title: Chief Executive Officer
SELLER:
/s/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
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