Exhibit 4.19
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT"), is made as of February
___, 2005, by and among ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, a Massachusetts resident, with an
address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (the "SELLER"), and the purchasers
set forth on SCHEDULE A hereto (each, a "PURCHASER," and collectively the
"PURCHASERS"). (Seller and Purchasers may hereinafter be referred to singularly
as a "PARTY," and collectively as the "PARTIES.")
WHEREAS, Seller is the record and beneficial owner of an aggregate of
Two Million Three Hundred Twenty-Three Thousand Seventy One (2,323,071) shares
of the issued and outstanding common stock of Utix Group, Inc., a Delaware
corporation (the "SHARES"); and
WHEREAS, Purchasers desire to purchase from Seller, and Seller desires
to sell to Purchasers, the Shares, at a purchase price of $0.40 per share, in
such amounts as are set forth on SCHEDULE A hereto, upon the terms and subject
to the conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, such parties
agree as follows:
1. PURCHASE AND SALE. Subject to the terms and conditions hereof,
at the Closing (as defined in Section 2 below), Purchasers shall purchase, and
Seller shall sell, all of Seller's right, title and interest in and to the
Shares, for an aggregate purchase price of Nine Hundred Twenty-Nine Thousand Two
Hundred Twenty-Eight and 40/100 ($929,228.40) Dollars (the "PURCHASE PRICE").
2. THE CLOSING. Subject to the terms and conditions hereof, the
closing of the purchase and sale of the Shares described in Section 1 hereof
(the "CLOSING") shall take place on or before February ___, 2005, (the "Closing
Date") at the offices of ▇▇▇▇▇ & Schloss LLP, located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other place as the parties shall
mutually agree. At the Closing:
(a) Seller, or Seller's representative(s), will, prior to
the Closing deliver to ▇▇▇ ▇▇▇▇▇, Esq. ("▇▇▇▇▇"), in-house general counsel for
Utix Group, Inc., a stock certificate representing the Shares, duly endorsed in
blank or accompanied by duly executed stock powers or other instruments of
transfer, in proper form for transfer, with all signatures guaranteed, free and
clear of all liens, charges, claims or other encumbrances of any nature, other
than those restrictions set forth in the Lock-Up Agreement (as defined herein)
(collectively "LIENS"); and
(b) Upon ▇▇▇▇▇'▇ receipt of the stock certificate
representing the Shares, he shall promptly notify Purchasers and Purchasers'
representatives via email (with a copy of such email to Seller and her counsel
at ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇) that Seller has complied with Section 2(a). Upon
notice from ▇▇▇▇▇ confirming receipt of the certificates representing the
Shares, Purchasers, or Purchasers' representative(s), will promptly (and in no
event later than the end of the next business day) deliver the Purchase Price by
wire transfer of immediately available funds to an account designated by the
Seller.
(c) Once ▇▇▇▇▇ confirms Seller's receipt of the Purchase
Price, ▇▇▇▇▇ shall, within twenty-four hours of the Closing Date, release the
certificates and other instruments set forth in Paragraph 2(a) to the
Purchasers. Purchasers and ▇▇▇▇▇ agree and covenant that all stock certificates
issued to Purchasers with respect to the Shares shall bear legends substantially
similar to the legends currently imprinted on Seller's stock certificate. In the
event Seller does not receive the Purchase Price by the Closing Date, ▇▇▇▇▇
shall promptly return the Purchase Price to Purchaser and the stock certificate,
stock powers and related items and documents to Seller.
3. REPRESENTATIONS AND WARRANTIES.
(a) Seller hereby represents and warrants to Purchasers as
follows:
(i) Seller is the beneficial and record owner of all
of the Shares. All of such Shares have been duly authorized and validly issued
and are fully paid and non-assessable. At the Closing, Purchasers will acquire
from Seller good and valid title to the Shares, free and clear of all Liens;
(ii) Neither the execution and delivery of this
Agreement by Seller, nor the consummation by Seller of the transactions
contemplated hereby, will result in a breach of or constitute or result in a
default under any agreement, instrument or obligation to which Seller is a party
or by which any of his assets may be bound;
(iii) To the best of Seller's knowledge, without
independent inquiry, no consent, authorization or approval of, or filing or
registration with, any governmental or regulatory authority or any other person
or entity (other than any necessary filings in accordance with the requirements
of Section 13(d) of the Securities Exchange Act of 1934, as amended) is required
in connection with the execution and delivery of this Agreement by Seller and
the consummation of the transactions contemplated hereby by Seller.
(b) Purchasers hereby represent and warrant as follows:
(i) Purchasers have full power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered and
constitutes the valid and binding obligations of Purchasers, enforceable in
accordance with its terms;
(ii) Neither the execution and delivery of this
Agreement by Purchasers, nor the consummation by Purchasers of the transactions
contemplated hereby will conflict with or result in a breach of, or constitute
or result in a default under, any agreement, instrument or obligation to which
any Purchaser is a party, or in which any Purchaser's assets may be bound;
(iii) No consent, authorization or approval of, or
filing of registration with, any governmental or regulatory authority or any
other person or entity is required in connection with the execution and delivery
of this Agreement by Purchasers and the consummation of the transactions
contemplated hereby by Purchasers; and
(iv) The Shares being acquired by Purchasers
hereunder are being acquired for their own accounts for investment purposes only
and not with a view to or for resale or distribution thereof within the meaning
of the Securities Act of 1933, as amended (the "SECURITIES ACT"); nor with any
present intention of selling or otherwise disposing of all or any part of the
Shares. Purchasers represent and acknowledge that they are "accredited
investors" as such term is defined in Rule 501(a) of Regulation D of the General
Rules and Regulations promulgated under the Securities Act. Purchasers represent
that they are sufficiently experienced in financial and business matters to be
capable of evaluating the merits and numerous and substantial risks os of the
Purchasers' highly speculative investment in the Shares, and that they can
afford a substantial or a total loss of their investment in the Shares.
Purchasers are aware of Utix Group, Inc.'s business affairs and financial
condition and have acquired sufficient information about such company, its
management, financial condition, business and operations, and substantial risks
associated with the investment by Purchasers hereunder to reach an informed and
knowledgeable decision to acquire the Shares. Purchasers acknowledge that the
Shares have not been registered under the Securities Act, and further agree that
they shall not sell, assign, or transfer any of the Shares except (i) pursuant
to a Registration Statement under the Securities Act, which has become effective
and is current with respect to the Shares, or (ii) pursuant to a specific
exemption from registration under the Securities Act, but only upon Purchasers'
first having obtained a prior favorable written opinion with respect to such
sale, assignment or transfer. Purchasers acknowledge that the Shares being
acquired by it hereunder have not been registered under the Securities Act and
will be "restricted securities," as that term is defined under the Securities
Act and the General Rules and Regulations promulgated thereunder, with specific
limitations on their sale, assignment or transfer unless registered under the
Securities Act or an exemption from such registration is available. Purchasers
understand and acknowledge that the transaction contemplated hereby are being
consummated in reliance upon a specific exemption from registration under the
Securities Act, which exemption depends upon, among other thing, the bona fide
nature of Purchasers' investment intent as expressed herein. Transferee
understands that the statutory basis for such exemption may be unavailable if
Purchasers' representations were predicated solely upon an increase or decrease
in the market price of the Shares, or for a period of one year or any other
fixed period in the future. Purchasers understand that the certificate
evidencing the Shares will be imprinted with a legend which prohibits the
transfer of the Shares unless they are registered or such registration is not
required in the opinion of counsel to UTIX Group, Inc. and all other legends
presents imprinted on the stock certificates representing the Shares sold
hereunder by Seller to Purchasers. Purchasers acknowledge that the Shares being
acquired are subject to certain lock-up restrictions pursuant to the terms and
conditions of the CSI Lock-up Agreement dated as of November 13, 2003, by and
between Chantal Skin Care Corporation (UTIX Group, Inc.'s former legal name) and
Seller, as amended by that letter agreement dated October 27, 2004 by and UTIX
Group, Inc. and certain signatories thereto (collectively, the "LOCK-UP
AGREEMENT"), copies of which Purchasers represent and acknowledge that they have
received, read and understand the terms and conditions of the Lock-Up Agreement,
and understand that the restrictions imposed by the Lock-Up Agreement on the
Shares shall continue to apply to such Shares after the Closing.
(c) SURVIVAL OF WARRANTIES. All statements contained in this
Agreement and in any certificate, instrument or document delivered by or on
behalf of Purchasers or Seller pursuant hereto, or in connection with the
transactions contemplated hereby, shall be deemed representations and warranties
hereunder by such party. All representations, warranties and agreements set
forth herein shall survive the Closing for a period of one (1) year.
(d) LIMITATION ON WARRANTIES. Except as expressly set forth
in Paragraphs 3(a) and 3(b) above, neither Seller nor either Purchaser have made
any other warranty or representation, express or implied, as to this
transaction, as to the advisability of the investment, or as to the future
prospects (financial or otherwise) of UTIX Group, Inc. or as to any other matter
whatsoever.
4. INDEMNIFICATION.
(a) Seller, on the one hand, and Purchasers, on the other
hand, shall indemnify and hold harmless the other (including officers,
directors, agents and representatives) (in such capacity, an "INDEMNIFIED
PARTY") against any loss, claim, liability, expense (including reasonable
attorneys' fees) or other damage (collectively, "LOSSES") caused by or arising
out of: (i) the failure by the party against whom indemnification is sought (the
"INDEMNIFYING PARTY") to perform any of its covenants or agreements in this
Agreement, or (ii) the breach of any representation or warranty made by or on
behalf of the Indemnifying Party in this Agreement.
(b) The Indemnified Party shall notify the Indemnifying
Party of any claim to be asserted under this Section 4(b) against the
Indemnifying Party as soon as practicable after the Indemnified Party receives
notice of or otherwise has actual knowledge of such claim, and shall provide to
the Indemnifying Party as soon as practicable after the Indemnified Party
receives notice of or otherwise has actual knowledge of such claim, and shall
provide to the Indemnifying Party as soon as practicable thereafter all
information and documentation necessary to support and verify the claim being
asserted.
(c) Promptly after receipt by the Indemnified Party of
notice of the commencement by any third party of any action, suit or proceeding
which might result in the Indemnifying Party becoming obligated to indemnify or
make any other payment to the other under this Agreement, the Indemnified Party
shall, if a claim in respect thereof is to be made against the Indemnifying
Party under this Agreement, notify the Indemnifying Party forthwith in writing
of the commencement thereof. The failure of the Indemnified Party to so notify
the Indemnifying Party shall not relieve such party from any liability which it
or he may have on account of this indemnification or otherwise, except to the
extent that such party is prejudiced thereby. The Indemnifying Party shall have
the right, within thirty (30) days after being so notified, to assume the
defense of such litigation or proceeding with counsel reasonably satisfactory to
the Indemnified Party. In any such litigation or proceeding the defense of which
the Indemnifying Party shall have so assumed, the Indemnified Party shall have
the right to participate therein and retain his or its own counsel at his or its
own expense unless (i) the parties shall have mutually agreed to the retention
of such counsel, or (ii) the named parties to any such litigation or proceeding
(including impleaded parties) include both the Indemnifying Party and the
Indemnified Party, and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them; in
either such case, such separate counsel may be retained by the Indemnified Party
at the Indemnifying Party's expense. To the extent that the settlement of such
an action or proceeding, the defense of which has been assumed by the
Indemnifying Party, involves the payment of money, the Indemnifying Party shall
have the right, in consultation with the Indemnified Party, to settle those
aspects dealing only with the payment of money. Notwithstanding the foregoing,
in connection with any such defense or settlement, the Indemnifying Party shall
not enter into a consent decree involving injunctive relief or consent to an
injunction without the Indemnified Party's prior written consent,
which consent shall not be unreasonably withheld. The Indemnified Party shall
cooperate with the Indemnifying Party in the defense of any action, suit or
proceeding assumed by the Indemnifying Party.
(d) Neither the Seller, on the one hand, nor either of the
Purchasers, on the other hand, shall be entitled to indemnification from the
other under the provisions of this Paragraph 4, until such time as, and only to
the extent that, the claims subject to indemnification by such other party
exceed, in the aggregate, $25,000.00, and then only to the extent of such
excess. Further, the aggregate indemnification obligation of Seller or either of
the Purchasers shall not exceed the total Purchase Price actually received by
Seller. Notwithstanding the foregoing, the limitations set forth in this SECTION
4 shall not apply to willful, intentional or fraudulent misrepresentations.
5. EXPENSES. Except as otherwise provided herein, each party shall
bear its own expenses (including those of counsel) incurred in connection with
this Agreement and the transactions herein contemplated.
6. MISCELLANEOUS.
(a) FURTHER ASSURANCES. Each party hereto agrees to execute
and deliver such other documents and instruments and take such other actions as
the other party may reasonably request in order to consummate the sale and carry
out the transactions contemplated by this Agreement.
(b) ENTIRE AGREEMENT. This Agreement (including the
documents and instruments referred to herein) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter hereof. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
(c) GOVERNING LAW. This Agreement is governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to contracts to be performed wholly within such State.
(d) HEADINGS AND EXHIBITS. The headings of the various
sections and paragraphs herein are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
(e) ASSIGNMENT. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by a
party without the prior written consent of the other party hereto.
(f) RIGHTS AND REMEDIES. The rights and remedies of the
parties hereunder shall not be mutually exclusive, and the exercise of one or
more of the provisions of this Agreement shall not preclude the exercise of any
other provisions. Each of the parties confirms that damages at law may be an
inadequate remedy for a breach or threatened breach of any provision hereof. The
respective rights and obligations hereunder shall be enforceable by specific
performance, injunction or other suitable remedy, but nothing contained
hereunder is
intended to or shall limit or affect any rights at law or by statute or
otherwise of any party aggrieved as against the other party for a breach or
threatened breach of any provisions hereof, it being the intention of this
Section to make clear the agreement of the parties that the respective rights
and obligations of the parties hereunder shall be enforceable in equity as well
as at law or otherwise.
(g) NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and delivered at the addresses
designated below, or mailed by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows, or to such other address or
addresses as may hereafter be furnished by one party to the other party in
compliance with the terms hereof:
If to Purchasers, to the addresses set forth beneath
their respective names on SCHEDULE A hereto, with a copy
to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to Seller to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
All such notices and communications shall be effective when delivered at the
designated addresses or five days after deposited in the mails in conformity
with the provisions hereof.
(h) COUNTERPARTS. This Agreement may be executed in
counterparts each of which shall be deemed an original and all of which shall
constitute one and the same Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be duly executed as of the day and year first above written.
SELLER:
______________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
PURCHASERS:
THE INTERGROUP CORPORATION
By:___________________________________
Name:
Title:
______________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇
ESCROW AGENT
By:___________________________________
NAME: ▇▇▇ ▇▇▇▇▇, ONLY AS TO SECTION 2,
CLOSING
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SCHEDULE A
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THE PURCHASERS
---------------------------------------- -------------------- ------------------
SHARES PURCHASED PURCHASE PRICE
NAME AND ADDRESS (#) $
---------------------------------------- -------------------- ------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ 1,161,536 $464,614.40
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------- -------------------- ------------------
The InterGroup Corporation 1,161,535 $464.614.00
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------- -------------------- ------------------
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