Stock Purchase Agreement
EXHIBIT 1
This Stock Purchase Agreement (“Agreement”) is made and entered into as of
January 24, 2007, by and among Summa Holdings, Inc., fka Arrowhead Holdings Corporation, a Delaware
corporation (“Seller”), and the individuals and entities listed on attached Exhibit A
(collectively, “Purchaser”).
Whereas, Seller beneficially owns 6,243,563 shares of common stock, $0.01 par value
per share (the “Shares”), of B.H.I.T. Inc., fka Banyan Hotel Investment Fund, a Delaware
corporation (“BHIT”);
Whereas, Seller desires to sell and Purchaser desires to purchase the Shares.
Now, Therefore, in consideration of the payments to be made by Purchaser to Seller,
the mutual covenants and conditions hereof, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Purchase of Stock; Payment. Seller agrees to sell to Purchaser or Purchaser’s designee,
and Purchaser or Purchaser’s designee agrees to purchase, the Shares for $0.25 per Share, or a
total of $1,560,890.75 (the “Purchase Price”) payable at Closing (as defined below).
2. Method of Payment. To effect the transfer of the Shares held both electronically and in
certificated form by Seller at the Closing, which Shares are set forth in Exhibit B
attached hereto, prior to Closing Seller shall deliver to Chernett Xxxxxxxxx Xxxxxx & Xxxxxxxxx,
LLC, counsel to Purchaser, to be held in escrow subject to Seller’s receipt of the Purchase Price,
a signed letter instructing the transfer agent to transfer the Shares held electronically and in
certificated form to Purchaser. At the Closing, Purchaser shall pay the Purchase Price by wire
transfer.
3. Representations and Warranties of Seller. Seller hereby warrants and represents that:
(a) Seller is the owner of the Shares, has good and marketable title to the Shares and the
Shares are not subject to any mortgage, pledge, encumbrance, security interest or other lien.
There are no contractual restrictions on the transfer of any of the Shares other than as provided
for in Article Fourth of BHIT’s certificate of incorporation. Seller is not a party to any
agreement, written or oral, creating rights in respect to the Shares in any third person or
relating to the voting of the Shares. There are no existing warrants, options, stock purchase
agreements, redemption agreements, calls or rights to subscribe of any character relating to the
Shares. Upon Seller’s receipt of the full Purchase Price described in Section 1, Seller will
transfer good and marketable title and all other rights and interests in the Shares by effecting
delivery of the Shares to Purchaser pursuant to Section 2 free and clear of any liens or
encumbrances. Other than the Shares, Seller is not the beneficial owner of any securities of BHIT.
(b) There are 14,988,051 shares of BHIT’s common stock outstanding. The Shares are validly
issued, fully paid, non-assessable and free of preemptive rights.
(c) BHIT has filed all forms, reports, schedules, proxy materials, registration statements and
related prospectuses and supplements and other documents required to be filed by BHIT with the
Securities and Exchange Commission (the “SEC”) pursuant to the Securities Act of 1933, as amended
(the “Securities
Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), through the date
hereof (collectively, the “SEC Documents”). The SEC Documents were, and those additional documents
filed between the date hereof and the date of the Closing will be, prepared and filed in compliance
in all material respects with the rules and regulations promulgated by the SEC, and do not and will
not contain any untrue statement of a material fact or omit to state any material fact required to
be stated therein in order to make the statements contained therein, in light of the circumstances
under which they were made, not misleading.
(d) The certificates representing the Shares issued to Purchaser will not bear any restrictive
legend of any kind. Notwithstanding anything in this Section 3(d) to the contrary, Seller gives no
representations of any kind as to whether the Shares are registered under the Securities Act.
(e) This Agreement is a legal, valid and binding obligation of Seller. Seller has the
authority to enter into this Agreement and to perform its obligations under this Agreement.
Seller’s sale of the Shares will not violate any agreement that is binding on Seller.
4. Representations and Warranties of Purchaser. Purchaser hereby represents and warrants
that:
(a) This Agreement is a legal, valid and binding obligation of Purchaser. Purchaser has the
authority to enter into this Agreement and to perform its obligations under this Agreement.
Purchaser’s purchase of the Shares will not violate any agreement that is binding on Purchaser.
(b) Purchaser has had the opportunity to review BHIT’s SEC Documents.
(c) Purchaser acknowledges that Purchaser has had the opportunity to conduct due diligence
concerning BHIT and to ask questions of and receive answers from BHIT’s officers and employees
concerning its historical results and future business and future operations.
(d) Purchaser either alone or with its financial advisor(s) has the necessary knowledge and
experience in financial and business matters as to be able to evaluate the merits and risks of
Purchaser’s participation in the transactions contemplated by this Agreement.
(e) Purchaser is acquiring the Shares for his or its own account with the present intention of
holding the Shares for purposes of investment and has no intention of selling such Shares in a
public distribution that would violate applicable federal or state securities laws.
(f) Purchaser shall not, and shall cause BHIT not to, bring, directly or indirectly, any
action, suit or proceeding against Seller or any officer, director or shareholder of Seller, for
any action or inaction relating to BHIT before the Closing.
5. Stand-Still Provisions. For a period of five years from the date hereof, neither the
Seller, nor any affiliate of Seller, shall, directly or indirectly:
(a) acquire, or offer to agree to acquire, directly or indirectly, by purchase or otherwise,
any securities of BHIT (including but not limited to direct or indirect rights or options to
acquire any securities of BHIT);
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(b) solicit proxies or consents or become a “participant” in a “solicitation” (as such terms
are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended) of proxies or
consents with respect to securities of BHIT with regard to any matter;
(c) seek to control or influence the management, board of directors or policies of BHIT, or
seek to advise, encourage or influence any person with respect to the voting of any securities of
BHIT, or induce, attempt to induce or in any manner assist any other person in initiating any
stockholder proposal or a tender or exchange offer for securities of BHIT or any change of control
of BHIT, or for the purpose of convening a stockholders’ meeting of BHIT;
(d) make any public announcement or make any written or oral proposal or invitation to discuss
any possibility, intention, plan or arrangement relating to a tender or exchange offer for
securities of BHIT or a business combination (or other similar transaction that would result in a
change of control), sale of securities or assets, liquidation or other extraordinary corporate
transaction involving BHIT that might require a public announcement regarding any of the foregoing;
(e) bring, directly or indirectly, any action, suit or proceeding against BHIT, any officer,
director or shareholder of BHIT, or any other person related in whole or in part to a change of
control transaction involving BHIT; or
(f) form, join or in any way participate in any business entity, syndicate or other group (or
otherwise act in concert with any other person) for the purpose of acquiring, holding, voting or
disposing of securities of BHIT or taking any other actions restricted or prohibited under clauses
(a) through (e) above, or announce an intention to do, or enter into any arrangement or
understanding with others to do, any of the actions restricted or prohibited under clauses (a)
through (e) above.
6. Board of Directors. Simultaneously with the Closing, each of Xxxxx Xxxxxxxx, Xx. and Xxxx
X. Xxxxx shall resign as directors and officers of BHIT and appoint Xxxx Xxxxxx, Xxxx X. Xxxxxx and
Xxxxxx Xxxxx to the board of directors of BHIT to serve until their successors are duly qualified
and elected. Each Purchaser shall jointly and severally indemnify and hold Xx. Xxxxxxxx, Xx.
Xxxxx, their heirs and assigns, and Seller and Seller’s affiliates, harmless from and against any
losses or liability suffered by Xx. Xxxxxxxx, Xx. Xxxxx, Seller or Seller’s affiliates as a result
of Xx. Xxxxx’x and Xx. Xxxxxxxx’x appointment of the forgoing directors to BHIT’s board.
Additionally, Purchaser shall cause BHIT to maintain D&O insurance at levels comparable to or
greater than those currently maintained during the five year period following the closing of the
transactions contemplated by this Agreement.
7. Further Acts. Following the Closing, each party hereto shall, upon the reasonable request
of the other party, execute and deliver in proper form any instruments or documents and perform any
acts necessary or desirable to satisfy or perform his or her respective obligations hereunder or
perfect in the other party title to all items intended to be transferred under the terms of this
Agreement.
8. Closing. The closing of this Agreement and the transactions contemplated hereunder (the
“Closing”) is expected to occur on or before January 24, 2007. If the Closing does not occur by
January 26, 2007, this Agreement will terminate and be of no further force and effect.
9. General Provisions.
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(a) Entire Agreement. This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, oral and written, between the parties hereto with respect to
the subject matter hereof.
(b) Severability. If any provision of this Agreement is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this Agreement shall remain in full force
and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree
shall remain in full force and effect to the extent not held invalid or unenforceable.
(c) Expenses. Each party agrees to pay its own fees and expenses in connection with the
transactions contemplated by this Agreement, none of which are to be reimbursed by BHIT.
(d) Remedies. In the event of the violation or threatened violation by either party of any of
the covenants contained in this Agreement, in addition to any other remedy available in law or in
equity, the other party shall have (i) the right and remedy of specific enforcement, including
injunctive relief, it being acknowledged and agreed that any such violation or threatened violation
will cause irreparable injury to that party and that monetary damages will not provide an adequate
remedy, and (ii) the right to any and all damages available as a matter of law, and costs and
expenses incurred by that party in pursuing its rights under this Agreement, including reasonable
attorneys’ fees and other litigation expenses.
(e) Governing Law. This Agreement, and all transactions contemplated hereby, shall be
governed by, construed and enforced in accordance with the laws of the State of Ohio.
(f) Counterparts. This Agreement may be executed in multiple counterparts, each of which will
be deemed an original for all purposes and all of which will be collectively one agreement.
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In Witness Whereof, this Agreement has been executed by the parties hereto on the
date first above written.
Seller: |
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Summa Holdings, Inc. |
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/s/ Xxxx X. Xxxxx |
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Purchaser: |
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/s/ Xxxxxx X. Xxxxxxxxx |
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Exhibit A
Purchasers
Name | No. of Shares | |||
Xxxx X. Xxxxxx |
586,250 | |||
00000 Xxxxxxx Xxxx Xxxx Xxxxxx Xxxxx, XX 00000 |
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DEJ Investments, LLC |
195,417 | |||
00 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxx, XX 00000 |
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MLH Investments, LLC |
195,417 | |||
00 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxx, XX 00000 |
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Xxxxxx Xxxxx |
390,833 | |||
0000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxx, XX 00000 |
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Xxxxxxx X. Xxxxxxx, Xx. |
214,958 | |||
0000 Xxxx Xxxxxx Xxxx Xxxx Xxxxx, XX 00000 |
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Xxxx X. Xxxxx |
156,333 | |||
0000 Xxxxxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000 |
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Xxxxxx Xxxxx |
586,250 | |||
0000 Xxxxx Xxxxx Xxxx. Xxxxxxxxx 0 Xxxxxxxx Xxxxx, XX 00000 |
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Xx. Xxxx Xxxxxx |
97,708 | |||
0 Xxxxxxx Xxxxx Xxxxxxxxx, XX 00000 |
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Xxxxx X. Xxxxxx Rev. Trust |
97,708 | |||
Xxxxx X. Xxxxxx Trustee 00000 Xxxxxxxxx Xxxx Xxxx Xxxxx, XX 00000 |
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Xxxxx Xxxxxxxxx |
156,333 | |||
00000 Xxxxxx Xxxxx Xxxx. Xxxxxxx Xxxxx, XX 00000 |
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Name | No. of Shares | |||
Xxxxxxx Lamborghini |
78,167 | |||
00000 Xxxxx Xxxxx Xx. Xxxx Xxxxx, XX 00000 |
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Xxxxxx Xxxxxx |
78,167 | |||
0000 Xxxxxxxxx Xxxx Xxxxxx Xxxx, XX 00000 |
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Xxxxx Family Trust |
78,167 | |||
c/o Xxxxxx Xxxxx 0000 Xxxxxxxxxx Xxxx. Xxxx, XX 00000 |
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Xxxxx Xxxxxx, DDS |
78,167 | |||
UND XXX Account 000 Xxxxx Xxx Xxxxxx, XX 00000 |
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Xxxxx Xxxxxx |
78,167 | |||
00 Xxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxx, XX 00000 |
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Xx. Xxxx Xxxxxxx |
97,708 | |||
0000 X. Xxxx Xxxxx Xxxxxxxxx Xxxxxxx, XX 00000 |
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Xx. Xxxxxx X. Xxxx |
293,125 | |||
0000 Xxxxx Xxxx Xxxxxx Xxx., XX 00000 |
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Xx. Xxxxx Xxxx |
146,564 | |||
00000 Xxxxxxxxx Xxxx. Xxxxxxx Xxxxxx, XX 00000 |
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Xxxxxx Xxxxxxx |
195,417 | |||
00000 Xxxxx Xxxxxx Xxxx Xxxxx, XX 00000 |
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Xxxxxx X. Xxxxx |
97,708 | |||
0000 Xxxx Xxx Xxxxxx Xxxxx 000 Xxxx, XX 00000 |
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Name | No. of Shares | |||
Xx. Xxxxxx Xxxxxx |
48,854 | |||
0000 Xxxxxxxxxx Xxxxx Xxxx Xxxxx, XX 00000 |
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Xxx Xxxxxxx |
48,854 | |||
0000 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxx, XX 00000 |
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Xxxxxx Xxxxxxx RLVR XXX |
48,854 | |||
0000 X. Xxxxx Xxxx Xxxxx Xxxxxx, XX 00000 |
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Xxxxxx X. Xxxxx |
293,125 | |||
Maxim Group, LLC 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000 |
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Big Sky Consultants Corp. |
97,708 | |||
00 Xxxx 00xx Xxxxxx, Xxx. 00-X
Xxx Xxxx, XX 00000-0000 |
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Patriot Equity, LLC |
195,417 | |||
Xxxx Xxxxx, XX 00000 |
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C. Xxxxxxxx Xxxxxxxx |
48,854 | |||
0000 XX 00xx Xxxxxx Xxxx Xxxxx, XX 00000 |
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Xxxx X. Xxxxxxxx |
48,854 | |||
00000 Xx. Xxxxx Xxxxx Xxxx Xxxxx, XX 00000 |
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Xxxxxx X. Xxxxxxx |
48,854 | |||
0000 XX 00xx Xxxxxx Xxxx Xxxxx, XX 00000 |
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Xxxxxxx Xxxxx |
48,854 | |||
0000 XX 000xx Xxxxxxx Xxxxx Xxxxxxx, XX 00000 |
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Xxxxxxxx Xxx |
48,854 | |||
000 XX 00xx Xxxxxx Xxxx Xxxxx, XX 00000 |
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Name | No. of Shares | |||
Xxxxxx Xxxxx XXX |
195,417 | |||
00 Xxxxxx Xxxx Xxxx Xxxxxx Xxxxxx, XX 00000 |
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Xxxx & Xxxxx Xxxxxxx |
195,417 | |||
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 |
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Xxx Xxxxxxxxxx |
000,000 | |||
00 Xxxxxxxxxx X Xxxxx Xxxxxx |
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Xxx Chauflias |
390,833 | |||
000 0xx Xxxxxx, XX Xxxxxxxxx, XX 00000 |
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Xxxxxxx Xxxxxxxx |
195,417 | |||
0000 Xxxxxxx Xx. Xxxx, XX 00000 |
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6,243,563 | ||||
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Exhibit B
Shares
Number of Shares held electronically:
UBS Financial Services Inc. |
2,650,000 shares | |||
National Financial Services |
268,000 shares | |||
Xxxxxxxxxxx |
105,000 shares | |||
Number of Shares held in Certificated Form: |
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Certificate No. 24140 |
3,220,563 shares | |||
Total |
6,243,563 shares | |||
Sellers’ Wire Transfer Instructions: |
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Bank: |
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KeyBank, N.A. |
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000 Xxxxxx Xxxxxx |
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Xxxxxxxxx, Xxxx 00000 |
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ABA #000000000 |
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Credit to: |
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Summa Holdings, Inc. |
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A/C #10015-09298 |
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Confirm receipt of funds to: |
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Xxxxx Xxxxx (x262) or Xxxxxx Xxxxxxx (x236) |
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(000) 000-0000 |
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