STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of February 9, 1999 (the "Agreement") by
and between MIM CORPORATION, a Delaware corporation (the "Company"), and E.
XXXXX XXXXXXX (the "Seller").
WHEREAS, the Company desires to purchase, and the Seller desires to sell
and transfer to the Company, One Hundred Thousand (100,000) shares of the issued
and outstanding common stock, par value $.0001 per share, of the Company owned
by the Seller (the "Shares") upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth herein, the parties agree as follows:
1. Purchase and Sale of Shares. Effective upon the date of this Agreement,
the Seller hereby agrees to sell and the Company hereby agrees to purchase all
of the Seller's right, title and interest in and to the Shares, free and clear
of all liens, charges and security interests. Each party represents, warrants
and covenants with the other party that the purchase and sale of the Shares
contemplated by this Agreement will be effected privately and will not be
reported on the NASDAQ.
2. Purchase Price. The purchase price (the "Purchase Price") for the Shares
shall be Three Dollars and Thirty-Seven and One-Half Cents ($3.375) per Share,
for an aggregate of Three Hundred Thirty-Seven Thousand Five Hundred Dollars
($337,500.00) cash, which shall be paid by the Company to the Seller by wire
transfer of immediately available funds, together with an additional Six
Thousand Two Hundred Fifty Dollars ($6,250.00) which the Company has agreed to
pay Warburg Dillon Read LLC as a brokerage commission on behalf of the Company,
pursuant to wire instructions to be provided by Warburg Dillon Read LLC. In
addition, Warburg Dillon Read LLC shall retain Six Thousand Two Hundred Fifty
Dollars ($6,250.00) from the Purchase Price received by the Seller, as a
brokerage commission on behalf of the Seller. Warburg Dillon Read LLC shall
promptly disburse the remainder of the Purchase Price (a net amount of $331,250)
to the Seller.
3. Representations and Warranties of Seller. The Seller represents,
warrants and covenants to the Company that it owns (beneficially and of record)
the Shares, free and clear of all liens, charges, security interests and other
encumbrances, and that the execution, delivery and performance of this Agreement
by the Seller, and the consummation of the transactions contemplated hereby, (i)
does not require the consent, approval, waiver, license or authorization of, or
filing or registration with, any person or entity (including governmental
entity), (ii) will not violate any law, government rule or regulation, or
applicable order, judgment or decree, (iii) result in the breach of, or a
default under, any agreement, contract or other document to which the Seller is
a party or by which the Seller is bound, or (iv) give rise to any lien, charge,
security interest or other encumbrance on the Shares.
4. Representations and Warranties of the Company. The Company hereby
represents, warrants and covenants to Seller that: (i) the Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware; and (ii) the execution, delivery and performance of
this Agreement by the Company, and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by all necessary
corporate action on the part of the Company and will not violate any law,
government rule or regulation or applicable order, judgment or decree, or the
certificate of incorporation or bylaws of the Company, or result in the breach
of or a default under any agreement, contract or other document to which the
Company is a party or by which the Company is bound.
5. Settlement. The purchase and sale of the Shares shall be settled not
later than 5:00 p.m. on March 12, 1999 by the delivery of the Shares to the
Company and delivery of the Purchase Price to Warburg Dillon Read, Inc., as
agent (the "Agent") for the Seller, in the manner set forth below (the
"Closing").
(a) Deliveries by the Seller. At the Closing, the Seller shall deliver
to the Company, certificates representing the Shares duly endorsed to the
Company or accompanied by duly executed stock powers, or a certificate
registered in the name of MIM Corporation evidencing the Shares.
(b) Deliveries by the Company. At the Closing, the Company shall
deliver to the Agent, on behalf of the Seller, the Purchase Price in the
manner described in Section 2, as well as the Company's portion of the
brokerage commission set forth in Section 2.
6. Indemnification.
(a) By Seller. The Seller shall indemnify and hold harmless the
Company, its affiliates and the directors, officers, shareholders,
employees and agents of the Company and its affiliates, from and after the
date hereof, against and in respect of any and all claims, losses,
liabilities and expenses, including attorneys' fees ("Losses"), arising
from a breach by the Seller of any of the representations, warranties or
covenants made by Seller in this Agreement.
(b) By the Company. The Company shall indemnify and hold harmless the
Seller from and after the date hereof, against and in respect of Losses
arising from a breach by the Company of any of the representations,
warranties or covenants made by the Company in this Agreement.
7. Exclusive Remedy. The provisions for indemnification set forth above are
the exclusive remedies of the Company and the Seller arising out of or in
connection with this Agreement, and shall be in lieu of any rights under
contract, tort, equity or otherwise.
8. Notices. Any and all notices or other communications or deliveries
required or permitted to be given or made pursuant to any of the provisions of
this Agreement shall be deemed to have been fully given or made for all purposes
if (i) hand-delivered, (ii) sent by a nationally recognized overnight courier,
or (iii) sent by telephone facsimile transmission (with prompt oral confirmation
of receipt) as follows:
If to the Company, at: MIM Corporation
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx, 00000
Telecopy No.: (000) 000-0000
Attn: General Counsel
Tax ID No.: 00-0000000
If to Seller: Mr. E. Xxxxx Xxxxxxx
000-X Xxxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esquire
White and Xxxxxxxx LLP
0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
2
9. General Provisions.
(a) Binding Effect. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and
permitted assigns.
(b) Assignability. This Agreement shall not be assignable in whole or
in part by either party, except upon the prior written consent of the other
party.
(c) Entire Agreement. This Agreement constitutes the complete
understanding of the parties hereto and shall supersede all other oral or
written agreements, arrangements, representations and communications
relating to the purchase of the Shares by the Company. This Agreement may
not be modified or terminated orally, and no modification, termination or
attempted waiver shall be valid unless in writing and signed by the party
against whom the same is sought to be enforced.
(d) Waiver. Any delay by any party hereto in enforcing any right
hereunder with respect to a breach of any provision of this Agreement shall
not operate nor be construed as a waiver of any such right. Any waiver must
be in writing and shall not operate as a waiver with respect to any
subsequent breach.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which shall be deemed to be one and the same instrument.
(f) Governing Law. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Delaware (without regard to
any provisions thereof relating to conflicts of laws).
IN WITNESS WHEREOF, the undersigned have executed or caused this Agreement
to be executed on its behalf by its duly authorized officer as of the date set
forth above.
THE COMPANY:
MIM CORPORATION
By: /s/ XXXXX X. XXXXXX
---------------------------
Name: Xxxxx X. Xxxxxx
Title:
SELLER:
/s/ E. XXXXX XXXXXXX
---------------------------
E. Xxxxx Xxxxxxx
3
