STOCK PURCHASE AGREEMENT
Between
ODYSSEY PICTURES CORPORATION, as Purchaser
and
FLANDERS FILM S.A., as Seller
Relating to the Shares of
E3 Sports New Mexico, Inc.
and
Media Trust S.A.
Dated: March 2, 1998
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of March 2, 1998 (this "Agreement")
between ODYSSEY PICTURES CORPORATION, a Nevada corporation ("Purchaser") and
FLANDERS FILM S.A., a Luxembourg corporation ("Seller").
W I T N E S S E T H
WHEREAS, Seller is the record and beneficial owner of certain shares of
common stock of E3 Sports New Mexico, Inc. ("E3");
WHEREAS, Seller is the record and beneficial owner of certain shares of
common stock of Media Trust S.A. ("Media Trust"); and
WHEREAS, Seller wishes to sell and transfer to Purchaser, and Purchaser
wishes to acquire from Seller, (i)16,200 shares of common stock of E3
representing 18% of the total issued and outstanding capital stock of E3 (the
"E3 Shares") and (ii) 27,000 shares of common stock of Media Trust representing
18% of the total issued and outstanding capital stock of Media Trust (the "Media
Trust Shares," and together with the E3 Shares referred to collectively herein
as the "Shares").
NOW THEREFORE, in consideration of the premises and the mutual
covenants and undertakings of the parties hereto, it is hereby agreed as
follows:
1 Sale of Shares.
1.1 Seller shall sell, transfer and deliver to Purchaser at the date, time and
place indicated in Section 2, for the consideration provided in Section 3, the
Shares. Share certificates of each of E3 and Media Trust evidencing Seller's
ownership of the Shares (duly endorsed for transfer to Seller and with all
necessary transfer tax stamps affixed), shall be delivered to Purchaser free and
clear of all liens, pledges and encumbrances of every kind, character and
description whatsoever.
2 Date, TIME and Place of Closing.
2.1 The Closing shall be held at the offices of Xxxxxx, Xxxxxx & Xxxxxxxx, New
York, on such time and date on or prior to March 31, 1998 as may be mutually
agreed by Seller and Purchaser.
3 Purchase Price.
3.1 In consideration for Seller's transfer and sale of the Shares to Purchaser,
Purchaser shall: (a) Deliver to Seller at Closing two promissory notes, one in
the amount of Three Hundred and Fifteen Thousand United States Dollars (U.S.
$315,000)(the "Media Trust Note") and one in the amount of Xxx Xxxxxxx xxx
Xxxxxx-Xxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (U.S. $135,000)(the "E3 Note," and
collectively with the Media Trust Note, the "Notes"), which Notes shall contain
the following terms:
(i) the entire principal amount, together with any interest thereon shall
be paid twelve months after the date of issuance, and shall bear interest at a
rate of (a) 8% for the first three month period, (b) 12% for the second three
month period, (c) 16% for the third three month period and (d) 20% for the final
three month period; and
(ii) any outstanding amount of principal and interest may be prepaid, in
whole or in part, at any time without penalty.
4 Representations and Warranties of Seller.
Seller represents and warrants to Purchaser that the following is true and
correct as of the date hereof:
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4.1 Seller is the lawful owner of the Shares of common stock of each of E3 and
Media Trust described in the first and second recitals of this Agreement, free
and clear of all liens, encumbrances, restrictions and claims of every kind.
Seller has full legal right, power and authority to enter into this Agreement
and to sell, assign, transfer and convey the Shares pursuant to this Agreement
and the delivery to Purchaser of the Shares pursuant to the provisions hereof
will transfer to Purchaser good and marketable title thereto, free and clear of
all liens, encumbrances, restrictions and claims of every kind. No other person
has any agreement, right or option to acquire the Shares, and there are no
actions, suits, or proceedings pending, or to the knowledge of Seller,
threatened against or affecting Seller's ownership of the Shares.
4.2 Seller is a corporation duly organized, validly existing and in good
standing (to the extent such concept exists) under the laws of Luxembourg.
Seller has all necessary corporate power and authority to execute and deliver
this Agreement, and to carry out the transactions contemplated hereby to be
performed by it. This Agreement has been duly authorized, executed and delivered
by Seller and is the legal, valid and binding obligation of Seller, enforceable
in accordance with its terms except as the enforcement thereof may be limited by
bankruptcy and other laws of general application relating to creditors' rights
or general principles of equity.
4.3 The execution and delivery of this Agreement by Seller and the consummation
by Seller of the transactions contemplated hereby will not: (i) violate any
provision of the organizational documents of Seller, (ii) violate any statute,
ordinance, rule, regulation, order or decree of any court or governmental or
regulatory authority applicable to Seller, (iii) require any filing with, or
permit, consent or approval of, or the giving of any notice to, any governmental
or regulatory authority, or (iv) except as would not have a material adverse
affect on its ability to consummate the transactions contemplated hereby, result
in a violation or breach of, conflict with or constitute a default under, any of
the terms, conditions, or provisions of any material agreement or instrument or
other obligation to which Seller is a party.
4.4 E3 is a corporation duly organized, validly existing and in good standing
under the laws of the State of New Mexico. Media Trust is a corporation duly
organized, validly existing and in good standing under the laws of Belgium. Each
of E3 and Media Trust has the power to own its property and to carry on its
business as now being conducted. Each of E3 and Media Trust is duly qualified to
do business and is in good standing in the jurisdictions in which the character
or location of the properties owned or leased by them or the nature of the
business conducted by them makes such qualification necessary.
4.5 Neither E3 nor Media Trust has made any assignment for the benefit of
creditors nor has it filed or had filed against it, any bankruptcy,
reorganization or insolvency proceedings or other proceedings relating to the
relief of creditors.
4.6 There are no actions, suits or proceedings pending or threatened against or
affecting E3 or Media Trust at law or in equity or before or by any court or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign; and neither E3 nor Media Trust is in
default with respect to any order, writ, injunction or decree of any court or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
4.7 Each of E3 and Media Trust owns outright all the respective properties and
assets, tangible and intangible, of every nature and description used in its
business, all free and clear of all liens, claims and encumbrances of any nature
whatsoever.
4.8 Seller is not aware of any fact, condition, contingency, occurrence or any
other situation whatsoever relating to the business of E3 or Media Trust which
is reasonably likely to have a material adverse affect on either the business or
business prospects of either entity.
4.9 The sale of the Shares does not transfer control (or any indicia thereof) of
either E3 or Media Trust to Purchaser. The Shares do not represent control of
either of E3 or Media Trust. For purposes of this Section 4.9, "control" shall
have the meaning provided in Rule 405 promulgated under the Securities Act of
1933, as amended.
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5 Representations and Warranties of Purchaser.
Purchaser represents and warrants to Seller that:
5.1 Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of Nevada. Purchaser has all necessary corporate power
and authority to execute and deliver this Agreement, and to carry out the
transactions contemplated hereby to be performed by it. This Agreement has been
duly authorized, executed and delivered by Purchaser and is the legal, valid and
binding obligation of Purchaser, enforceable in accordance with its terms except
as the enforcement thereof may be limited by bankruptcy and other laws of
general application relating to creditors' rights or general principles of
equity.
5.2 The execution and delivery of this Agreement by Purchaser and the
consummation by Purchaser of the transactions contemplated hereby will not: (i)
violate any provision of the organizational documents of Purchaser, (ii) violate
any statute, ordinance, rule, regulation, order or decree of any court or
governmental or regulatory authority applicable to Purchaser, (iii) require any
filing with, or permit, consent or approval of, or the giving of any notice to,
any governmental or regulatory authority, or (iv) except as would not have a
material adverse affect on its ability to consummate the transactions
contemplated hereby, result in a violation or breach of, conflict with, or
constitute a default under, any of the terms, conditions, or provisions of any
material agreement, instrument or other obligation to which Purchaser is a
party.
6 Covenants of SELLER.
6.1 Seller covenants and agrees unto Purchaser that from the date hereof up to
and including the date of Closing, Seller shall not take any action, or by
inaction permit any action to be taken or event to occur, which would cause any
representation or warranty made by Seller in or pursuant to Section 4 of this
Agreement to be untrue as of the Closing Date.
6.2 Seller shall use all reasonable efforts, and take all such actions as may be
reasonably necessary or appropriate, to cause the satisfaction of all conditions
referred to in Section 8 of this Agreement and the consummation of the
transactions contemplated by this Agreement. Seller shall cooperate in good
faith with Purchaser in Purchaser's efforts to cause the satisfaction of the
conditions referred to in Section 8 of this Agreement.
7 COVENANTS OF PURCHASER.
7.1 Purchaser covenants and agrees unto Seller that from the date hereof up to
and including the date of Closing, Purchaser shall not take any action, or by
inaction permit any action to be taken or event to occur, which would cause any
representation or warranty made by Purchaser in or pursuant to Section 5 of this
Agreement to be untrue as of the Closing Date.
7.2 Purchaser shall use all reasonable efforts, and take all such actions as may
be reasonably necessary or appropriate, to cause the satisfaction of all
conditions referred to in Section 9 of this Agreement and the consummation of
the transactions contemplated by this Agreement. Purchaser shall cooperate in
good faith with Seller in Seller's efforts to cause the satisfaction of the
conditions referred to in Section 9 of this Agreement.
8 Conditions of Closing - Seller.
8.1 The obligation of Seller to consummate the transactions contemplated by this
Agreement are subject to the following conditions precedent having been
satisfied on or prior to the Closing Date:
(a) Purchaser shall have delivered to Seller the Notes as provided under
Section 3.1(a) of this Agreement.
(b) All the terms, covenants and conditions of this Agreement required to
be complied with and satisfied by Purchaser at or prior to the Closing Date
shall have been fully satisfied in all material respects.
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(c) The representations and warranties of Purchaser set forth in Section 5
shall be true and correct on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of the
Closing Date, and Seller shall have received a certificate from an officer of
Purchaser to such effect.
(d) Seller shall have received from Purchaser true and complete copies of
resolutions of Purchaser's Board of Directors approving this Agreement and the
transactions contemplated hereby, certified by Purchaser's Secretary.
(e) No statute, rule or regulation or order, decree or judgment of or in
any court or tribunal of competent jurisdiction shall be in effect that
prohibits Seller from consummating the transactions contemplated hereby.
(f) All consents, approvals, orders or clearances of any governmental or
regulatory authority, the granting of which is required for the consummation of
the transactions contemplated hereby, shall have been obtained and all waiting
periods specified under applicable law the expiration of which is necessary for
such consummation shall have passed.
All of the conditions precedent contained in this Section 8.1 are
for the sole benefit of Seller and Seller may waive any or all of them in its
sole discretion.
9 Conditions of Closing - Purchaser.
9.1 The obligations of Purchaser to consummate the transactions
contemplated by this Agreement are subject to the following conditions precedent
having been satisfied at or prior to the Closing Date:
(a) Seller shall have tendered to Purchaser the Shares in the manner
provided under Section 1 of this Agreement. If requested by Purchaser, Seller
shall have done, executed, acknowledged, and delivered to Purchaser all such
further acts, deeds, assignments, transfers, conveyances, powers of attorney and
instruments, whether from Seller or from third parties, as Purchaser in its sole
discretion may deem necessary or desirable to convey and transfer to and vest in
Purchaser all of the right, title and interest in and to the Shares.
(b) All the terms, covenants and conditions of this Agreement required to
be complied with and satisfied by Seller at or prior to the Closing Date shall
have been satisfied in all material respects.
(c) The representations and warranties of Seller with respect to itself, E3
and Media Trust set forth in Section 4 hereof shall be true and correct on and
as of the Closing Date with the same force and effect as if such representations
and warranties had been made on and as of the Closing Date and Purchaser shall
have received a certificate from an officer or managing director of Seller
certifying to such effect.
(d) Purchaser shall have received from Seller true and complete copies of
(i) resolutions of its Board of Directors or equivalent governing body,
approving this Agreement and the transactions contemplated hereby.
(e) Purchaser shall have been provided (a) a certificate from an officer of
E3, and (b) a certificate from an officer or managing director of Media Trust,
certifying that such person maintains the stock and transfer records of the
respective entity and declares that the Shares being sold to Purchaser represent
18% of the outstanding capital stock of each such entity.
(f) No statute, rule or regulation or order, decree or judgment of or in
any court or tribunal of competent jurisdiction shall be in effect that
prohibits Purchaser from consummating the transactions contemplated hereby.
(g) All consents, approvals, orders or clearances of any governmental or
regulatory authority, the granting of which is required for the consummation of
the transactions contemplated hereby, shall have been obtained and all waiting
periods specified under applicable law the expiration of which is necessary for
such consummation shall have passed.
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All of the conditions precedent contained in this Section 9.1 are for the
sole benefit of Purchaser and Purchaser may waive any or all of them in its sole
discretion.
10 Survival of Representations and warranties; Indemnities.
10.1 The respective representations and warranties of Seller and Purchaser
contained in this Agreement or in any Schedule attached hereto shall survive the
purchase and sale of the Shares pursuant to this Agreement until the first
anniversary of the Closing Date, except the warranties of title and "free and
clear" ownership, which shall continue to survive.
10.2 Seller agrees to indemnify and hold Purchaser and Purchaser's
officers, directors and agents harmless from any and all damages, losses or
expenses (including, without limitation, reasonable attorneys' fees and
expenses) in the aggregate ("Losses"), suffered or paid, directly or indirectly,
through application of E3's, Media Trust's or Purchaser's assets or otherwise,
as a result of or arising out of the failure of any representation or warranty
made by Seller in this Agreement to be true and correct in all respects as of
the date of this Agreement and as of the Closing Date; provided, however, that
the total aggregate amount indemnified under this Section 10.2 for any such
Losses shall not exceed $500,000.
10.3 Purchaser agrees to indemnify and hold Seller and Seller's officers,
directors and agents harmless from any Losses suffered or paid, directly or
indirectly, as a result of or arising out of the failure of any representation
or warranty made by Purchaser in this Agreement to be true and correct in all
respects as of the date of this Agreement and as of the Closing Date; provided,
however, that the total aggregate amount indemnified under this Section 10.3 for
any such Losses shall not exceed $500,000.
10.4 If any claim or demand is made, or any suit or proceeding (including,
without limitation, an audit by any taxing authority) is instituted, against any
person which, if valid or prosecuted successfully, would entitle any person (an
"Indemnified Party") to indemnification under this Agreement (a "Claim"), such
Indemnified Party shall promptly notify the other party (the "Indemnifying
Party") in writing thereof. The Indemnifying Party may, at its own cost and
expense, and at its sole option, assume the defense of such Claim or participate
either directly or through its counsel, which shall be reasonably acceptable to
the Indemnified Party, with the Indemnified Party in the resolution, by
litigation or otherwise, of any Claim. The Indemnified Party agrees to cooperate
with the Indemnifying Party in determining the validity of any Claim or
assertion of any Losses. The Indemnifying Party shall not consent to a
settlement of, or the entry of any judgment arising from, any such Claim or
legal proceedings, without the prior written consent of the Indemnified Party
(which consent shall not be unreasonably withheld) except for settlements solely
for the payment of money. Indemnified Party shall be entitled to participate in
(but not control) the defense of any such claim or legal proceeding, with its
own counsel and at its own expense, provided however, that if Purchaser is in
the position of Indemnified Party as a result of the failure of any
representation or warranty made by Seller in this Agreement to be true and
correct in all respects as of the date of this Agreement and as of the Closing
Date, Purchaser shall have the right to offset amounts due under the Notes from
the total amount due by Seller as Indemnifying Party pursuant to this Section
10.4.
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11 MISCELLANEOUS
11.1 Expenses. Except as otherwise specifically provided in this Agreement, the
parties hereto shall each pay all costs and expenses of their respective
performance of, and compliance with, the terms and conditions of this Agreement
and all documents contemplated hereby, including all fees of counsel. 11.2
Publicity. Except as otherwise required by law, none of the parties hereto shall
issue any press release or make any other public statement, in each case
relating to, connected with or arising out of this Agreement or the matters
contained herein, without obtaining the prior approval of the other party to the
contents and the manner of presentation and publication thereof. 11.3 Notices.
Any and all notices or communications given hereunder to any party may be sent
by registered or certified mail (postage prepaid), telefacsimile or telex to the
recipient at the address set forth below. All such communications shall be
deemed given upon dispatch.
To Seller:
Flanders Film S.A.
00 xxxxx xx Xxxxxx
X-0000 Xxxxxxx-xxx-Xxxxx
Xxxxx-Xxxxx xx Xxxxxxxxxx
011-352-677-310
fax 000-000-000-000
To Purchaser:
Odyssey Pictures Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
000-000-0000
fax 000-000-0000
Any party may change its address for purposes of this paragraph by
giving notice of such change to any other party in the manner provided above.
11.4 Governing Law; Jurisdiction.
(a) This Agreement shall be governed and construed in accordance with the
laws of New York.
(b) In relation to any dispute arising out of or in connection with this
Agreement, each of the parties hereto irrevocably and unconditionally submits to
the jurisdiction of New York and waives any objection to proceedings with
respect to this Agreement in such Courts on the grounds of venue or inconvenient
forum. Purchaser irrevocably and unconditionally appoints Xxxxxx Xxxxxx, Esq.,
and Seller irrevocably and unconditionally appoints Xxxxxx, Xxxxxx & Xxxxxxxx,
as its respective agent for service of process in respect of proceedings before
such Courts (and each agrees that service on such agent shall be deemed due
service for the purposes of proceedings in such Courts).
11.5 Benefit. This Agreement shall be binding upon and inure to the benefit
of all the parties hereto, and their respective successors and assigns.
11.6 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, and such counterparts shall together
constitute but one and the same instrument.
11.7 Captions and Severability. The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of the provisions hereof. If any provision of this Agreement or the
application thereof shall to any extent, be determined to be invalid,
unenforceable or contrary to law, the validity of the remaining provisions of
this Agreement shall in no way be affected thereby and shall be enforceable to
the fullest extent possible.
11.8 Amendment and Assignment. This Agreement, including the Exhibits and
Schedules attached hereto, constitutes the entire agreement of the parties with
respect to this transaction and may not be amended, modified or changed in any
manner except upon the written consent of the parties hereto. This Agreement may
not be assigned except upon the written consent of Purchaser and Seller.
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11.9 Termination of Agreement. If any precondition to the completion of the
transactions contemplated hereby is not fulfilled on or prior to March 31, 1998,
this Agreement shall be null and void and have no further force or effect.
11.10 Entire Agreement. This Agreement, including the other documents
referred to herein which form a part hereof, contains the entire understanding
of the parties hereto with respect to the subject matter contained herein and
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have caused their respective
duly authorized officers or representatives to execute this Agreement as of the
date first mentioned above.
FLANDERS FILM S.A.
By: __________________________
Name: Xxxxx Xxxxxxx
Its:
ODYSSEY PICTURES CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Its: Chief Executive Officer
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