EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered effective as of the 21st day of December, 1999 by and between
XXXXXXXXXXX.XXX, INC., a Delaware corporation ("Seller") and JVWEB, INC.,
a Delaware corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the holder of 900,000 shares of the issued and
outstanding common stock (the "Common Stock") of XXXXXXXXXXX.XX.XX, INC., a
Delaware corporation (the "Company"), which shares represent all of the issued
and outstanding shares of Common Stock; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, 350,000 shares of the Common Stock owned by Seller (the
"Shares"), for the consideration specified below; and
WHEREAS, Seller and Purchaser desire to memorialize in writing the
terms, provisions and conditions of Seller's sale and Purchaser's purchase of
the Shares; and
NOW, THEREFORE, in consideration of the mutual promises, covenants,
agreements, representations and warranties set forth hereinafter, and other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged by Seller and Purchaser, and subject to the terms, provisions and
conditions hereof, each of Seller and Purchaser hereby agrees as follows:
ARTICLE I
SALE AND PURCHASE OF STOCK
1.1 Subject to the terms, provisions and conditions set forth herein,
Seller hereby sells and delivers to Purchaser, and Purchaser hereby purchases
and receives from Seller, the Shares, in exchange for the purchase price set
forth hereinafter. Purchaser hereby acknowledges receipt of one or more stock
certificates representing the Shares, duly endorsed or accompanied by duly
executed stock transfer form.
1.2 The purchase price for the Shares shall be 500,000 registered
shares of the common stock of Purchaser (the "Purchaser Common Stock") and the
payment by Purchaser to Tanye Capital Corp. of 100,000 registered shares of
Purchaser Common Stock, representing the payment of the broker fee owed by
Seller. Seller hereby acknowledges receipt of stock certificates representing an
aggregate of 600,000 registered shares of Purchaser Common Stock, one stock
certificate issued in the name of Seller representing 100,000 registered shares
of Purchaser Common Stock and bearing no legend, one or more stock certificates
representing 400,000 registered shares of Purchaser Common Stock issued in the
name of Seller and bearing a restrictive legend regarding the lock-up agreement
entered into in connection with the sale and purchase provided for hereby, and
one stock certificate issued in the name of Tanye Capital Corp. representing
100,000 registered shares of Purchaser Common Stock and bearing no legend.
8
ARTICLE II
REPRESENTATIONS, WARRANTIES AND
AGREEMENTS OF SELLER
Seller hereby represents and warrants to, and agrees with Purchaser
that:
2.1 Concerning the Shares. All of the Shares are duly and validly
authorized and issued and are fully paid and non-assessable, and were not issued
in violation of the preemptive rights of any current or former shareholder of
the Company. No option, warrant, call, subscription, convertible security, or
commitment of any kind exists obligating the Company to issue any additional
shares of Common Stock or obligating Seller to sell any of the Shares to a third
party. There is not any compensation plan or agreement applicable to any of the
officers, directors, or employees of the Company under which compensation
accrued or payable is determined, in whole or in part, by reference to shares of
Common Stock. There are no agreements or commitments obligating the Company to
repurchase or otherwise acquire any of the outstanding shares of Common Stock.
2.2 Ownership of Stock. All of the Shares are owed by Seller, free and
clear of any mortgage, lien, security interest, claim, charge, pledge,
encumbrance and any restriction on the transfer thereof of any nature
whatsoever. None of the Shares is subject to any voting trust, voting agreement,
or other agreement or understanding with respect to the voting thereof, nor is
any proxy in existence with respect to any such shares.
2.3 Capacity to Enter into Agreement. Seller has been duly organized,
is validly existing and is in good standing in the jurisdiction in which it was
incorporated. Seller has full right, power and capacity to execute and deliver
this Agreement and all other agreements, documents and instruments to be
executed in connection herewith and perform its obligations hereunder and
thereunder. The execution and delivery by Seller of this Agreement and all other
agreements, documents and instruments to be executed by Seller in connection
herewith and therewith have been authorized by all necessary corporate action by
Seller. When this Agreement and all other agreements, documents and instruments
to be executed by Seller in connection herewith are executed by Seller and
delivered to Purchaser, this Agreement and such other agreements, documents and
instruments will constitute the valid and binding agreements of Seller
enforceable against Seller in accordance with their respective terms, and will
vest in Purchaser full right, title and interest in and to the Shares, free and
clear of any mortgage, lien, security interest, claim, charge, pledge,
encumbrance and any restriction on the transfer thereof of any nature
whatsoever.
2.4 Conflicts. The execution, delivery, and consummation of the
transactions contemplated by this Agreement will not (a) violate, conflict with
or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any contract to which
Seller is a party or by which Seller is bound or by which any of the assets of
Seller is bound or affected, (b) result in the creation of any lien, charge or
encumbrance upon any assets of Seller pursuant to the terms of any such
contract, (c) violate any judgment against, or binding upon, Seller or upon the
assets of Seller or (d) violate any provision in the charter documents, bylaws
or any other agreement affecting the governance and control of Seller.
2.5 Consents. No consent from, or other approval of, any governmental
entity or any other person, which has not been obtained, is necessary in
connection with the execution, delivery, or performance of this Agreement by
Seller.
2.6 Litigation. There is no action, suit, proceeding, or claim pending
or, to the knowledge of Seller, threatened against Seller by persons not a party
to this Agreement wherein an unfavorable decision, ruling, or finding would
render unlawful or otherwise adversely affect the consummation of the
transactions contemplated by this Agreement.
2.7 Transactions with Affiliated Parties. Except for a certain license
of proprietary information pursuant to a written agreement, there are no
transactions currently engaged in between the Company and any party affiliated
with the Company (other than transactions inherent in the normal capacities of
shareholders, officers, directors, or employees). Except for the ownership of
non-controlling interests in securities of corporations the shares of which are
publicly traded, no party affiliated with the Company has any investment or
ownership interest, directly, indirectly, or beneficially, in any competitor or
potential competitor, major supplier, or customer of the Company.
2.8 Finder's Fees. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Seller and its counsel
directly with Purchaser and its counsel without the intervention of any other
person as the result of any act of any of them, and as far as is known to
Seller, without the intervention of any other person in such manner as to give
rise to any valid claim against any of the parties hereto for a brokerage
commission, finder's fee, or any similar payment.
2.9 Untrue Statements. This Agreement, the schedules and exhibits
hereto, and all other documents and information furnished by Purchaser or its
representatives pursuant hereto or in connection herewith do not include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements made herein and therein not misleading or otherwise.
ARTICLE III
REPRESENTATIONS, WARRANTIES,
AND AGREEMENTS OF PURCHASER
Purchaser hereby represents, warrants, and agrees to and with Seller,
that:
3.1 Capacity to Enter into Agreement. Purchaser has been duly
organized, is validly existing and is in good standing in the jurisdiction in
which it was incorporated. Purchaser has full right, power and authority to
execute and deliver this Agreement and all other agreements, documents and
instruments to be executed in connection herewith and therewith and perform such
its obligations hereunder and thereunder. The execution and delivery by
Purchaser of this Agreement and all other agreements, documents and instruments
to be executed by Purchaser in connection herewith and therewith have been
authorized by all necessary corporate action by Purchaser. When this Agreement
and all other agreements, documents and instruments to be executed by a
Purchaser in connection herewith and therewith are executed by a Purchaser and
delivered to Seller, this Agreement and such other agreements, documents and
instruments will constitute the valid and binding agreements of Purchaser
enforceable against Purchaser in accordance with their respective terms.
3.2 Conflicts. The execution, delivery, and consummation of the
transactions contemplated by this Agreement will not (a) violate, conflict with
or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any contract to which
Purchaser is a party or by which Purchaser is bound or by which any of the
assets of Purchaser is bound or affected, (b) result in the creation of any
lien, charge or encumbrance upon any assets of Purchaser pursuant to the terms
of any such contract, or (c) violate any judgment against, or binding upon,
Purchaser or upon the assets of Purchaser, or (d) violate any provision in the
charter documents, bylaws or any other agreement affecting the governance and
control of Purchaser.
3.3 Consents. No consent from, or other approval of, any governmental
entity or any other person, which has not been obtained, is necessary in
connection with the execution, delivery, or performance of this Agreement by
Purchaser.
3.4 Litigation. There is no action, suit, proceeding, or claim pending
or, to the knowledge of Purchaser, threatened against Purchaser by persons not a
party to this Agreement wherein an unfavorable decision, ruling, or finding
would render unlawful or otherwise adversely affect the consummation of the
transactions contemplated by this Agreement.
3.5 Finder's Fees. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Purchaser and its
counsel directly with Seller and its counsel without the intervention of any
other person as the result of any act by Purchaser, and so far as is known to
Purchaser, without the intervention of any other person in such manner as to
give rise to any valid claim against any of the parties hereto for a brokerage
commission, finders' fee, or any similar payment.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Further Assurances. Following the date hereof, Seller shall execute
and deliver such other documents, and take such other actions, as may be
reasonably requested by Purchaser to complete the transactions contemplated by
this Agreement.
4.2 Publicity. The parties hereto shall jointly prepare any press
release or other public announcement relating to this Agreement, except that the
foregoing shall not prevent any party hereto or any affiliate thereof from
issuing any press release required by applicable law.
4.3 Agreement Regarding the Company. In order to induce each other to
enter into the stock purchase provided for by this Agreement, each party agreed
to enter into the Voting, Right of First Refusal and Buy-Sell Agreement attached
hereto as Exhibit 4.3.
ARTICLE V
SURVIVAL AND INDEMNITY
5.1 Survival of Representations and Warranties. All of the
representations and warranties made by the parties hereto in this Agreement or
pursuant hereto, shall be continuing and shall survive the closing hereof and
the consummation of the transactions contemplated hereby, notwithstanding any
investigation at any time made by or on behalf of any party hereto.
5.2 Indemnification Seller. Seller shall protect, indemnify and hold
harmless Purchaser, and its stockholders, directors, officers, employees,
agents, affiliates, successors and assigns, from any and all demands, claims,
actions, causes of actions, lawsuits, proceedings, judgments, losses, damages,
injuries, liabilities, obligations, expenses and costs (including costs of
litigation and reasonable attorneys' fees), arising from any breach of any
agreement, representation or warranty made by Seller in this Agreement.
5.3 Indemnification by Purchaser. Purchaser shall protect, indemnify
and hold harmless Seller, and its stockholders, directors, officers, employees,
agents, affiliates, successors and assigns, from any and all demands, claims,
actions, causes of actions, lawsuits, proceedings, judgments, losses, damages,
injuries, liabilities, obligations, expenses and costs (including costs of
litigation and attorneys' fees), arising from any breach of any agreement,
representation or warranty made by Purchaser in this Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. Any notices to be given hereunder by any party to the
other parties may be effected either by personal delivery in writing or sent by
facsimile or by mail, registered or certified, postage prepaid with return
receipt requested, addressed to the one or more parties to be notified at the
addresses set forth beneath such parties' respective signatures below.
6.2 Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one and the
same instrument.
6.3 Amendments and Waivers. This Agreement may not be modified or
amended other than by an agreement in writing signed by all parties affected.
Any waiver of the terms, provisions, covenants, representations, warranties, or
conditions hereof shall be made only by a written instrument executed and
delivered by the party waiving compliance. The failure of any party at any time
or times to require performance of any provision hereof shall in no manner
affect the right to enforce the same. No waiver by any party of any condition,
or of the breach of any term, provision, covenant, representation, or warranty
contained in this Agreement in one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach or a
waiver of any other condition or the breach of any other term, provision,
covenant, representation, or warranty.
6.4 Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties with respect to the transactions contemplated
hereby and thereby, and supersede all prior agreements, arrangements, and
understandings relating to the subject matter hereof.
6.5 Successors and Assigns. All of the terms, provisions, covenants,
representations, warranties, and conditions of this Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties hereto
and their respective assigns and successors.
6.6 Applicable Law. THIS AGREEMENT AND ALL QUESTIONS RELATING TO ITS
VALIDITY, INTERPRETATION, PERFORMANCE, AND ENFORCEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
6.7 Severability. If any term, provision, covenant, or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and shall in no way be
affected, impaired, or invalidated.
6.8 Expenses. Each party shall bear its own legal, accounting and
administrative expenses in connection with the investigation, negotiation and
consummation of the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"SELLER"
XXXXXXXXXXX.XXX, INC.
By: /s/ Ian
----------------
Xxxxx-Xxxxxxxxx
Xxx
Xxxxx-Xxxxxxxxx, President
Address:: #0000-000
Xxxxxxx Xxxxxx,
Xxxxxxxxx, X.X. X0X-0X0
Telecopy:
604/681-9615
"PURCHASER"
JVWEB, INC.
By: /s/ Xxxx X. Xxxxx
------------------
Xxxx X.
Xxxxx, President
Address: 0000
Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy:
713/840-9034
