EXHIBIT 2.1
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STOCK PURCHASE PLAN AND SUBSCRIPTION AGREEMENT
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April 5, 2000
xxxxx.xxx, Inc.
00000 X.X. Xxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx Xxxxx, Xxxxxxx 00000
Gentlemen:
1. Pursuant to the terms and conditions set forth in this Stock Purchase
Plan and Subscription Agreement (this "Plan") the undersigned subscribes for and
agrees to purchase, in the amount and for the consideration indicated below,
shares of the $.01 par value per share common stock (the "Shares") of xxxxx.xxx,
Inc., a Florida corporation (the "Company").
Subscriber's Name Shares Subscribed Aggregate Subscription Price
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Xxxxxxx Xxxxxxxxxx 431,499 $997,841.44
2. The purchase price shall be paid in cash upon the Company's acceptance
of this Subscription and Investment Letter Agreement. The undersigned and the
Company understand and agree that the rules and regulations of the Nasdaq
National Market may require that the Company's issuance and sale of the Shares
to the undersigned pursuant to this Plan be approved by the stockholders of the
Company. In connection therewith, it is understood and agreed that the Company
shall hold the purchase price and the Shares in escrow until the earlier of (a)
the date and time the Company's stockholders vote on a proposal to approve the
issuance and sale of the Shares under this Plan or (b) such time as the Company,
upon the advice of counsel, reasonably determines that such stockholder approval
is not required by the Nasdaq National Market. In the event stockholders of the
Company approve the issuance and sale of the Shares under the Plan or the
Company reasonably determines that such stockholder approval is not required,
the purchase price will be released from escrow to the Company and the Company
will deliver the Shares to the undersigned. In the event the Company submits
the issuance and sale of the Shares under the Plan to a vote by the stockholders
of the Company, and the stockholders do not approve the proposal, the Company
shall return the purchase price, with interest, to the undersigned and shall
cancel the Shares.
3. By execution hereof, the undersigned covenants and agrees with you as
follows:
a. In consideration of the sale to the undersigned of the Shares, the
undersigned represents, covenants and warrants that the aforementioned Shares
are being acquired by the undersigned for investment for the undersigned's own
account and not with a view to, or for resale in connection with, any transfer
or distribution of such Shares; and covenants that the undersigned will only
resell such Shares either pursuant to a valid registration statement under the
Securities Act of 1933, as amended, or any applicable state securities laws
(collectively, the "Securities Laws") or without registration in an exempt
transaction or transactions that permit such resales without registration under
the Securities Laws.
b. The undersigned acknowledges being informed by the Company that the
Shares being transferred to the undersigned have not been registered under the
Securities Laws, by reason of special exemptions under the provisions of those
laws which, in part, depend upon the non-distributive intent of the undersigned.
In this connection, the undersigned understands that such Shares may have to be
held indefinitely unless they are subsequently registered under such laws or an
exemption from such registration is available.
c. The undersigned subscriber has substantial experience in evaluating
and investing in securities in companies similar to the Company so that the
undersigned subscriber is capable of evaluating the merits and risks of his
investment in the Company and has the capacity to protect his own interests. The
undersigned subscriber has had an opportunity to discuss the Company's business,
management and financial affairs with the Company's management and the
opportunity to review the Company's contracts and facilities as well as the
Company's reports filed with the Securities and Exchange Commission. The
undersigned subscriber also has had an opportunity to ask questions of officers
and representatives of the Company, which were answered to his satisfaction. The
undersigned subscriber is an "accredited investor" as that term is defined in
Rule 501(a) of Regulation D under the Securities Act of 1933, as amended, and
has accurately completed the .
d. The undersigned consents that any transfer of the Shares referred
to out of the undersigned's name shall be made only upon receipt by the Company
of an opinion of counsel retained by the undersigned, which is satisfactory to
the Company, to the effect that any offer or sale or proposed transfer is exempt
from registration, and will not result in any violation of the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, or any
applicable state securities laws; or is pursuant to an effective registration
statement covering the Shares the undersigned proposes to offer or sell.
e. The undersigned agrees that stop-transfer instructions may be
placed upon the transfer records of the Company, and that each certificate for
stock issued now or hereafter to the undersigned pursuant to this Plan shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN
ACQUIRED BY THE REGISTERED HOLDER HEREOF FOR PURPOSES OF INVESTMENT AND IN
RELIANCE ON STATUTORY EXEMPTIONS UNDER THE SECURITIES ACT, AND STATUTORY
EXEMPTIONS UNDER APPLICABLE STATE SECURITIES LAWS, INCLUDING THE EXEMPTION
PROVIDED BY SECTION 10-5-9(13) OF THE GEORGIA SECURITIES ACT OF 1973, AS
AMENDED. THESE SECURITIES MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR
ASSIGNED, EXCEPT IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER
PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS
OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER; AND IN THE
CASE OF AN EXEMPTION, ONLY IF THE CORPORATION HAS RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH TRANSACTION DOES NOT
REQUIRE REGISTRATION OF ANY SUCH SECURITIES.
f. The undersigned acknowledges and agrees that the undersigned shall
not have rights as a subscriber for shares of the Company unless and until this
Plan has been accepted by the Company by execution below, which acceptance shall
be in the sole discretion of the Company.
g. This Plan shall be binding upon the successors, assigns and legal
representatives of the undersigned and shall inure to the benefit of the
Company, its successors and assigns.
h. This Plan shall be governed by and construed in accordance with the
laws of the State of Florida.
i. The undersigned subscriber is a resident of the State set forth
below for the subscriber's address.
Very truly yours,
/s/Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxxxx, individually
Address:
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AGREED TO AND ACCEPTED, as of the 5th day
of April, 2000
xxxxx.xxx, Inc.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
