STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into
this 10 day of July, 2000, by and among Xxxxxxx Xxxxx, a
resident of Florida, and his assigns (hereinafter referred to as
"Buyer"); and XXXXXX X. XXXXX, (hereinafter referred to as
"Seller"), being a shareholder of NETWORK SYSTEMS INTERNATIONAL,
INC., a Nevada corporation (hereafter referred to as "Company").
WHEREAS, Seller is the owner of record and beneficially owns
One Million Nine Hundred Thousand (1,900,000) shares of the
issued and outstanding shares of Common Stock of the Company
(herein referred to as"Shares"); and
WHEREAS, Seller desires to sell the Shares to Buyer, and
Buyer desires to purchase the Shares, upon the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, and subject to the accuracy of the
representations and warranties of the parties, the parties hereto
agree as follows:
I.
SALE AND PURCHASE OF THE SHARES
1.1 Sale and Purchase. Subject to the terms and conditions
hereof, at the Closing (as defined in paragraph 1.2 below),
Seller agrees to sell, assign, transfer, convey and deliver to
Buyer, and Buyer agrees to purchase the Shares from Seller.
1.2 Closing. The purchase shall be consummated at a
closing ("Closing") to take place at 9:00 o'clock a.m., at the
offices of Network Systems International, Inc. on or about July
21, 2000 ("Closing Date").
1.3 Purchase Price. The purchase price ("Purchase Price")
for the Shares shall be a cash payment of One Million Fifty-Five
Thousand Five Hundred Fifty Five Dollars ($1,055,555) payable to
the Seller in certified funds. At the closing, the Purchase
Price will be delivered and deposited with G. Xxxxx Xxxxxx &
Associates, P.C., as escrow agent ("Escrow Agent"). If the Put
Option described in Section 4.3 is exercised by the Company, the
Escrow Agent will deliver the Purchase Price to the Company as
the Seller's portion of the initial cash payment provided for
therein. If the Put Option is not exercised by the Company prior
to its expiration, the Escrow Agent will immediately release the
Purchase Price to Seller.
II.
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Seller. Seller
represents and warrants to Buyer as follows:
(a) Title to the Shares. At Closing, Seller shall own
of record and beneficially the Shares of the Company, free
and clear of all liens, encumbrances, pledges, claims,
options, charges and assessments of any nature whatsoever,
with full right and lawful authority to transfer the Shares
to Buyer. No person has any rights of first refusal with
respect to any of the Shares. There exists no voting
agreement, voting trust, or outstanding proxy with respect
to any of the Shares. There are no outstanding rights,
options, warrants, calls, commitments, or any other
agreements of any character, whether oral or written, with
respect to the Shares.
(b) Authority. Seller has full power and lawful
authority to execute and deliver this Agreement to which he
is a party and to consummate and perform the Agreement as
contemplated thereby. This Agreement to which Seller is a
party constitutes (or shall, upon execution, constitute)
valid and legally binding obligations upon Seller,
enforceable in accordance with their terms. Neither the
execution and delivery of this Agreement to which he is a
party by Seller, nor the consummation and performance of the
Agreement contemplated thereby, conflicts with, requires the
consent, waiver or approval of, results in a breach of or
default under, or gives to others any interest or right of
termination, cancellation or acceleration in or with respect
to, any agreement by which Seller is a party or by which
Seller or any of his properties or assets are bound or
affected.
(c) Full Disclosure. All statements of Seller
contained in this Agreement and in any other
written documents delivered by or on behalf of Seller to
Buyer are true and correct in all material respects and do
not omit any material fact necessary to make the statements
contained therein not misleading in light of the
circumstances under which they were made.
2.2 Representations and Warranties of Buyer. Buyer
represents and warrants to Seller as follows:
(a) Authority. Buyer has full power and lawful
authority to execute and deliver this
Agreement to which Buyer is a party and to consummate and
perform the Agreement as contemplated thereby. This
Agreement to which Buyer is a party constitutes (or shall,
upon execution, constitute) valid and legally binding
obligations upon Buyer, enforceable in accordance with their
terms. Neither the execution and delivery of this Agreement
to which Buyer is a party by Buyer, nor the consummation and
performance of this Agreement contemplated thereby,
conflicts with, requires the consent, waiver or approval of,
results in a breach of or default under, or gives to others
any interest or right of termination, cancellation or
acceleration in or with respect to, any agreement by which
Buyer is a party or by which Buyer or any of his properties
or assets are bound or affected.
(b) Investment Intent. Buyer is acquiring the Shares
for his own account, for investment
purposes only, and not with a view to the sale or
distribution of any part thereof, and Buyer has no present
intention of selling, granting participation in, or
otherwise distributing the same. Buyer understands the
specific risks related to an investment in the Shares,
especially as it relates to the financial performance of the
Company.
III.
COVENANTS
3.1 Covenants of Seller. Seller covenants and agrees that
from the date hereof to the Closing without the prior written
consent of Buyer:
(a) Maintain Books. Seller will use reasonable
efforts, as its Chairman of the Board, to cause the Company
to maintain its books, accounts and records in the usual,
regular ordinary and sound business manner and in accordance
with generally accepted accounting principles applied on a
basis consistent with past practices.
(b) Notice of Change. Seller will promptly advise
Buyer in writing of any material adverse change, or the
occurrence of any event which involves any substantial
possibility of a material adverse change, in the business,
financial condition, results of operations, assets,
liabilities or prospects of the Company, in the event he
becomes aware of any such circumstances.
IV.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF BUYER TO CLOSE
The obligation of Buyer to close the transactions
contemplated hereby is subject to the fulfillment by Seller prior
to Closing of each of the following conditions, which may be
waived in whole or in part by Buyer:
4.1 Compliance with Representations, Warranties and
Covenants. The representations and warranties of Seller
contained in this Agreement shall have been true and correct when
made and shall be true and correct as of the Closing with the
same force and effect as if made at the Closing. Seller shall
have performed all agreements, covenants and conditions required
to be performed by Seller prior to the Closing.
4.2 No Legal Proceedings. No suit, action or other legal or
administrative proceeding before any court or other governmental
agency shall be pending or threatened seeking to enjoin the
consummation of the transactions contemplated hereby.
4.3 Put Option. The Selling Shareholders (as that term is
defined in the Stock Purchase Agreement among the Company and the
Investors named therein dated July 10, 2000 (the "Initial Stock
Purchase Agreement")) shall have entered into an agreement to
provide the Company an option (the "Put Option") to require the
Selling Shareholders to purchase all of the issued and
outstanding shares of the Subsidiaries (as that term is defined
in the Initial Stock Purchase Agreement) for a purchase price of
three million dollars ($3,000,000), generally upon the terms and
conditions set forth in Section 4.5 of the Initial Stock Purchase
Agreement. Buyer acknowledges and agrees that the Company's
ability to exercise the Put Option will be conditioned upon (1)
compliance with the Company's Articles of Incorporation and
Bylaws; (2) the Company obtaining all requisite corporate
authorization with respect to the sale of all of the issued and
outstanding capital stock of the Subsidiaries; (3) compliance
with applicable laws with respect to the sale of all of the
issued and outstanding capital stock of the Subsidiaries; (4) the
Company's written commitment to reduce the Company's outstanding
obligation under its revolving credit arrangement with Wachovia
Bank, N.A., by three million dollars ($3,000,000); (5) the
Company's written commitment to amend its Articles of
Incorporation to change its name, to discontinue the use of the
name "Network Systems International" and to transfer all rights
to the "Network Systems International" name to Network Systems
International of North Carolina, Inc. ("NSI-NC"); and (6) the
Company's written commitment to transfer all benefits with
respect to the right to receive future tax refunds to NSI-NC.
4.4 Documents to be Delivered by Seller. Seller shall have
delivered the following documents to the Escrow Agent to be held
in escrow until delivery of the Purchase Price as provided in
section 1.3.
(a) Stock certificates representing all of the Shares,
duly endorsed to Buyer in blank or accompanied by duly
executed stock powers.
(b) Such other documents or certificates as shall be
reasonably required by Buyer or its counsel in order to
close and consummate this Agreement.
V.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF SELLER TO CLOSE
The obligation of Seller to close the transactions is
subject to the fulfillment prior to Closing of each of the
following conditions, any of which may be waived in whole or in
part by Seller:
5.1 Compliance with Representations, Warranties and
Covenants. The representations and warranties made by Buyer in
this Agreement shall have been true and correct when made and
shall be true and correct in all material respects at the Closing
with the same force and effect as if made at the Closing, and
Buyer shall have performed all agreements, covenants and
conditions required to be performed by Buyer prior to the
Closing.
5.2 No Legal Proceedings. No suit, action or other legal
or administrative proceedings before any court or other
governmental agency shall be pending or threatened seeking to
enjoin the consummation of the transactions contemplated hereby.
5.3 Payments. Escrow Agent shall have received from Buyer
the Purchase Price as provided in section 1.3.
5.4 Closing of Sale of Newly Issued Company Shares. The Company
shall have consummated the sale of
1,666,667 shares of newly issued common stock pursuant to
the terms of the initial Stock Purchase Agreement.
VI.
MODIFICATION, WAIVERS, TERMINATION
AND EXPENSES
6.1 Modification. Buyer and Seller may amend, modify or
supplement this Agreement in any manner as they may mutually
agree in writing.
6.2 Waivers. Buyer and Seller may in writing extend the
time for or waive compliance by the other with any of the
covenants or conditions of the other contained herein.
6.3 Termination and Abandonment. This Agreement may be
terminated and the purchase of the Shares may be abandoned before
the Closing:
(a) By the mutual consent of Seller and Buyer;
(b) By Buyer, if the representations and warranties of
Seller set forth herein shall not be accurate, or the
conditions precedent set forth in Article IV shall have not
have been satisfied by the closing date , in all material
respects; or
(c) By Seller, if the representations and warranties
of Buyer set forth herein shall not be accurate, or the
conditions precedent set forth in Article V shall not have
been satisfied by the closing date in all material respects.
Termination shall be effective on the date of receipt of
written notice specifying the reasons therefor.
VII.
MISCELLANEOUS
7.1 Representations and Warranties to Survive. Unless
otherwise provided, all of the representations and warranties
contained in this Agreement and in any certificate, exhibit or
other document delivered pursuant to this Agreement shall survive
the Closing for a period of one (1) year. No investigation made
by any party hereto or their representatives shall constitute a
waiver of any representation or warranty, and no such
representation or warranty shall be merged into the Closing.
7.2 Binding Effect of the Agreement. This Agreement and
the certificates and other instruments delivered by or on behalf
of the parties pursuant thereto, constitute the entire agreement
between the parties. The terms and conditions of this Agreements
shall inure to the benefit of and be binding upon the respective
heirs, legal representatives, successor and assigns of the
parties hereto. Nothing in the Agreement, expressed or implied,
confers any rights or remedies upon any party other than the
parties hereto and their respective heirs, legal representatives
and assigns.
7.3 Applicable Law. The Agreement are made pursuant to, and
will be construed under, the laws of the State of North Carolina.
7.4 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and will be deemed
to have been duly given when delivered or mailed, first class
postage prepaid:
(a) If to Seller, to:
Xxxxxx X. Xxxxx
000 Xxxxx Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone (000)-000-0000
Fax (000)-000-0000
(b) If to Buyer, to:
G. Xxxxx Xxxxxx, Esquire
0000 Xxxx 00xx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
These addresses may be changed from time to time by written
notice to the other parties.
7.5 Headings. The headings contained in this Agreement are
for reference only and will not affect in any way the meaning or
interpretation of this Agreement.
7.6 Counterparts. This Agreement may be executed in
counterparts, each of which will be deemed an original and all of
which together will constitute one instrument.
7.7 Severability. If any one or more of the provisions of
this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable under applicable law this Agreement
shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. The remaining
provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
7.8 Forbearance; Waiver. Failure to pursue any legal or
equitable remedy or right available to a party shall not
constitute a waiver of such right, nor shall any such
forbearance, failure or actual waiver imply or constitute waiver
of subsequent default or breach.
7.9 Attorneys' Fees and Expenses. The prevailing party in
any legal proceeding based upon this Agreement shall be entitled
to reasonable attorneys' fees and expenses and court costs.
7.10 Expenses. Each party shall pay all fees and expenses
incurred by it incident to this Agreement and in connection with
the consummation of all transactions contemplated by this
Agreement.
7.11 Exhibits. All of the following Exhibits to this
Agreement are incorporated herein in the places referenced in
this Agreement as if fully set forth herein.
IN WITNESS WHEREOF, the undersigned parties hereto have
duly executed this Agreement on the date first written
above.
"BUYER"
/s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
"SELLER"
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
"Escrow Agent"
G. Xxxxx Xxxxxx & Associates, P.C.
/s/ G. Xxxxx Xxxxxx
President
