STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement (this "Agreement") dated this ____ day of
October, 1999 is made and entered into by and between Finantra Capital, Inc., a
Delaware corporation ("Finantra"), Travelers Acquisition Corporation, a Florida
corporation (the "Buyer"), the Shareholders whose names appear on the signature
pages attached hereto (the "Sellers") and Travelers Investment Corporation, a
California corporation (the "Corporation"). Throughout this agreement the Buyer
and Sellers may be referred to collectively as "Parties" or individually as a
"Party."
W I T N E S S E T H:
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WHEREAS, the Sellers collectively own 100% of the authorized, issued
and outstanding common shares of the Corporation consisting of 442,312 Shares
(the "Shares"), and
WHEREAS, the Corporation is the sole owner of all of the common stock
of the Corporation's Subsidiaries consisting of the following:
Xxxxx-TIC Financial Services, Inc.,
Travelers Acceptance Corporation,
Travelers Leasing Corporation,
Trace Credit Services, Inc., (the "Subsidiaries"), and
WHEREAS, the Corporation and its Subsidiaries are engaged in the
business of purchasing consumer receivables, leasing and other forms of
financing consumer debt and obligations and
WHEREAS, Buyer wishes to purchase from the Sellers and the Sellers
desire to sell to the Buyer all of the authorized, issued and outstanding common
stock of the Corporation, and
WHEREAS, the Parties are desirous of documenting their
representations, warranties, covenants, agreements and conditions relating to
the purchase and sale into a written agreement.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
covenants, agreements and warranties herein contained, the Parties agree as
follows:
1. RECITALS: The above and foregoing recitals are true and correct and
are incorporated herein.
2. DEFINITIONS: The following terms shall have the following meanings
for the purposes of this agreement:
2.1 "Agreement" shall mean this Stock Purchase Agreement,
including all exhibits and schedules attached hereto, as it may be amended from
time to time.
2.2 "Applicable Rate" shall mean the "lowest 3-month rate" as
set forth in Section 1274(d) ofthe Code.
2.3 "Business" shall mean the business of providing to
companies which offer primarily services to the public (but without targeting a
specific type of service provider as a client) the following financial services
on a consolidated basis: (i) acquiring marginal consumer installment contract
receivables at a discount; (ii) leasing equipment; (iii) servicing consumer
installment contracts and billing third party debtors for amounts due thereon;
and (iv) collecting on defaulted consumer installment contracts.
2.4 "Business Day" shall mean any day of the year other than a
Saturday or Sunday or any other day on which banks located in the State of
California or Florida generally are closed for business.
2.5 "Closing" shall mean the consummation of the transactions
contemplated in this Agreement.
2.6 "Closing Date" shall mean the date on which the Closing
occurs.
2.7 "Code" shall mean the United States Internal Revenue Code
of 1986, as amended.
2.8 "Common Shares" shall mean shares of common stock, $.00
par value per share. of the Cornoration.
2.9 "Contract" shall mean any contract, lease, commitment,
understanding, sales order, purchase order, agreement, indenture, mortgage,
note, bond, instrument, plan, permit or license, whether written or verbal,
which intended or purports to be binding and enforceable and in the case of a
Person which is a corporation, general partnership or limited partnership, such
Person's certificate or articles of incorporation and by-laws or partnership
agreement, as the case may be.
2.10 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
2.11 "Financial Statement" shall mean all of the following:
2.11.1 The audited consolidated financial statements of
the Corporation as of December 31, 1998 (including all notes thereto),
consisting of the consolidated balance sheet at such date and related
consolidated statements of earnings and retained earnings and cash flows for the
twelve month period ended December 31, 1998; and
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2.11.2 The unaudited consolidated financial statements
of the Corporation as of July 31, l999 consisting of the Balance Sheet at such
date and the related statements of income and cash flows for the seven month
period then ended.
2.12 "GAAP" shall mean U.S. generally accepted accounting
principles, consistently applied, in effect at the time of this Agreement.
2.13 "Governmental Authority" shall mean the government of the
United States or any foreign country or any state or political subdivision
thereof and any entity, body or authority exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.
2.14 "Indemnified Person" shall mean the person or persons
entitled to indemnification pursuant to the terms of this Agreement.
2.15 "Indemnifying Person" shall mean the person orpersons
obligated to provide indemnification under the terms of this Agreement.
2.16 "Knowledge" shall mean actual knowledge.
2.17 "Law" shall mean any law, statute, regulation,
ordinance, rule, order, decree, judgment, consent decree, settlement agreement
or governmental requirement enacted, promulgated or imposed by any Governmental
Authority; provided, however, for purposes of this Agreement, "Law" shall not be
deemed to include any changes, amendments or modifications to any Law
promulgated, enacted or effected or arising after the Closing Date or any Law
which did not exist prior to the Closing Date.
2.18 "Lien" shall mean any mortgage, lien (except for any
lien for taxes not yet due and payable), charge, pledge, security interest,
option, lease or sublease, claim, right of any third party or encumbrance.
2.19 "Losses" shall mean any and all liabilities, losses,
costs, claims, damages (including consequential damages), penalties and expenses
(including attorney's fees and expenses and costs of investigation and
litigation).
2.20 "Material Adverse Change" shall mean a change (or
circumstances involving a prospective change) in the business, operations,
assets, liabilities, results of operations, cash flows or condition (financial
or otherwise) of the Corporation or any Subsidiary which, taken as a whole, is
materially adverse.
2.21 "Material Adverse Effect" shall mean an effect (or
circumstances involving a prospective effect) on the business, operations,
assets, liabilities, results of operations, cash flows
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or condition (financial or otherwise) of the Corporation or a Subsidiary which,
taken as a whole, is materially adverse.
2.22 "Person" shall mean any individual, corporation,
proprietorship, firm, partnership, limited partnership, trust, association or
other entity.
2.23 "Purchase Price" shall mean the aggregate amount set
forth in Section 4 of this Agreement.
2.24 "Principal Sellers" shall mean those Sellers listed on
Schedule 2.24.
2.25 "Shares" shall mean the Common Shares being sold by the
Sellers to the Buyer.
2.26 "Subsidiary" shall mean, collectively, Xxxxx-TIC
Financial Services, Inc., Travelers Acceptance Corporation, Travelers Leasing
Corporation, and Trace Credit Services, Inc.
2.27 "Taxes" shall mean all taxes, charges, fees, duties,
levies or other assessments, including income, gross receipts, net proceeds, ad
valorem, turnover, real and personal property taxes (tangible and intangible),
sales, use, franchise, excise, value added, stamp, leasing, lease, user,
transfer, fuel, excess profits, occupational, windfall profits, interest
equalization, severance, employees' income withholding, unemployment and social
security taxes and other withholding taxes, which are imposed by any
governmental authority, and such terms shall include any interest, penalties or
additions to tax attributable thereto.
2.28 "Territory" shall mean anyplace within the United States
where the Corporation and its Subsidiaries conducts the Business prior to the
Closing Date.
2.29 "Tax Return" shall mean any report, return or other
information required to be supplied to a Governmental Authority in connection
with Taxes.
2.30 "Year 2000 Compliant" shall refer to computer systems
designed to be used prior to, during and after the Gregorian calendar year 2000
A.D. and that will operate during each such time period without material error
relating to date data, specifically including any material error relating to, or
the product of, date data which represents or references different centuries or
more than one century.
3. SALE AND PURCHASE OF SHARES: The Sellers hereby agree to sell to the
Buyer and the Buyer shall purchase and acquire from the Sellers all of the
authorized, issued and outstanding Shares of the Corporation owned by the
Sellers as set forth on Schedule 3 and consisting in the aggregate of 442,312
Common Shares.
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4. PURCHASE PRICE AND METHOD OF PAYMENT: The Purchase Price for the
Shares is the sum of Twenty Million Dollars ($20,000,000.00), which shall be
paid as follows:
4.1 Seller Carry Back Financing: The Buyer shall execute in
favor of each Seller a purchase money promissory note (collectively, the
"Notes") in the form attached hereto as Exhibit A. The aggregate amount of the
Notes shall be Five Million Dollars ($5,000,000.00), which shall be apportioned
among the Sellers in accordance with their pro rata ownership of the Shares set
forth on Schedule 3. The Notes shall bear interest at the rate of ten percent
(10%) per annum and shall be payable beginning thirty(30) days following the
Closing Date as follows: (i) during the first 12 months following the Closing
Date, the Buyer will pay interest and $500,000 of the principal on the Seller
Notes in equal monthly installments; (ii) at the beginning of the 13th month,
the Buyer will make a lump sum payment of an additional $500,000 of the
principal then owed on the Seller Notes; and (iii) thereafter and until the end
of the 36th month, the Notes shall be payable in equal monthly installments of
principal and interest. The Notes shall provide for a 15-day grace period
relative to all payments due thereunder (provided, however, that a late charge
shall be imposed for payments not made within 15 days of when due) and shall be
pre-payable in whole or in part at any time without penalty. Any such
prepayment shall be applied pro rata to all of the Notes.
4.1.1 Securitv for Sellers' Purchase Money Note:
As security for the Notes, the Sellers shall have a lien inferior only to the
Senior Lender (as defined below) on the assets of the Corporation and a pledge
of the Buyer's stock in the Corporation subordinated only to the pledge in favor
of the Senior Lender. In addition to the foregoing, Finantra shall execute a
guaranty of all amounts due the Sellers under the Notes substantially in the
form of Exhibit B (the "Guaranty").
4.2 Cash Due at Closing: On the Closing Date, the Buyer shall
pay to the Sellers the sum of Fifteen Million Dollars ($ 15,000,000.00), less
the good faith deposit of Two Hundred and Fifty Thousand Dollars ($250,000.00)
previously paid by Buyer to the Sellers, by means of a cashiers check or wire
transfer to the trust account of the Sellers' attorney in this transaction who
shall distribute the remaining cash amount to the Sellers in accordance with
their pro rata ownership of the Shares set forth on Schedule 3; provided,
however, that the amount payable to the Sellers pursuant to this Section 4.2
shall be net of commissions payable upon Closing to GVC Financial Services, LLC
("GVC").
4.2.1 Sources of Cash Due at Closing: The cash due at Closing
shall be derived by the Buyer utilizing Debt obtained from Finova Capital
Corporation and its affiliates (collectively, the "Senior Lender") who will
secure the Debt at their option with joint or separate superior liens on the
tangible and intangible assets of the Corporation and Subsidiaries and such
other forms of collateral which the Senior Lender deems appropriate and
necessary including but not limited to a pledge of the Shares of the common
stock in the Corporation and/or Subsidiaries. The Sellers agree that the Debt of
the Senior Lender shall be superior to the Notes and their security and the
Sellers agree to execute all documentation reasonably required by Senior Lender
confirming the subordinate nature of the Notes, including a Subordination
Agreement in a form acceptable to the Sellers and which is attached hereto as
Exhibit C. The balance of the cash due at Closing shall be
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cash from the Buyer. "Debt" shall mean up to Ten Million Dollars
($10,000,000.00) provided by the Senior Lender to fund the purchase of the
Corporation's stock or its ongoing operations. Prior to the Closing Date, the
Buyer shall provide the Sellers with operating projections that demonstrate the
Buyer's ability to repay the Debt and the Notes.
4.3 Purchase Price Adjustment. The Purchase Price for the
Shares shall be adjusted upward on a dollar-for-dollar basis to the extent the
stockholders' equity of the Corporation as of September 30, 1999 (the "Closing
Date Stockholders' Equity") exceeds Twelve Million One Hundred Twenty-Eight
Thousand Two Hundred Eighty-One Dollars ($12,128,281) and downward on a
dollar-for-dollar basis to the extent the Closing Date Stockholders' Equity is
below Twelve Million One Hundred Twenty-Eight Thousand Two Hundred Eighty-One
Dollars ($12,128,281). The determination of Closing Date Stockholders' Equity
shall be made by the Corporation. The determination shall be made within sixty
(60) days of the Closing. In arriving at such determination no adjustment to
reserves for the items mentioned in Section 18.1.3 shall be made as the parties
intend to separately deal with those matters as indicated in that section. Any
dispute regarding such determination shall be resolved by Deloitte & Touche LLP,
the outside independent accountants of the Corporation ("Deloitte"), which shall
recalculate the Closing Date Stockholders' Equity in accordance with the
foregoing condition and with GAAP consistently applied with the 1998 year end
audit of the Corporation's financial statements. Deloitte's determination shall
be deemed final and binding upon each of the parties hereto. Any upward
adjustment to the Purchase Price made pursuant to this Section 4.3 shall first
be offset against any indemnification claim made by the Buyer or Finantra
pursuant to Section 18.1. Any downward adjustment to the Purchase Price shall be
offset against the next ensuing principal payments on the Notes and shall be
subject to the limitations set forth in Section 18.7.
5. REPRESENTATIONS AND WARRANTIES OF SELLERS: Each
Seller represents and warrants to the Buyer, severally and not jointly, as of
the date of this Agreement and as of the Closing Date (as if such
representations and warranties were remade on the Closing Date), as follows:
5.1 Authorizations: Each such Seller has full power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by each such Seller
of this Agreement have been duly and validly approved by all Persons necessary
and no other actions or proceedings on the part of any such Seller are necessary
to authorize the execution of this Agreement and the transactions contemplated
hereby. Each such Seller has duly and validly executed and delivered this
Agreement and has duly and validly executed and delivered any related agreements
required hereby. This Agreement constitutes the legal, valid and binding
obligations of each such Seller and is enforceable against each such Seller in
accordance with the terms contained herein, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws, or by equitable principles, relating to or limiting the rights of
creditors generally and (b) limitations imposed by law or equitable principles
upon the availability of specific performance, injunctive relief or other
equitable remedies.
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5.2 Consents and Approvals: No consent, authorization or
approval of, filing or registration with, or cooperation from, any governmental
authority or any other person not a party to this Agreement is necessary in
connection with the execution, delivery and performance by each such Seller of
this Agreement.
5.3 Title to Shares: The assignments, endorsements, stock
powers or other instruments of transfer delivered by each such Seller to the
Buyer at the Closing will be sufficient to transfer such Seller's entire
interest, legal and beneficial, in the Shares set forth opposite such Seller's
name on Schedule 3. Each such Seller is and on the Closing Date will be the
legal and beneficial owner of record of the Shares set forth opposite each such
Seller's name on Schedule 3. Each such Seller has and on the Closing Date will
have, full power and authority to convey good and marketable title to his or her
shares and upon transfer to the Buyer of the certificates representing such
shares, the Buyer will receive good and marketable title to such shares free and
clear of all liens.
5.4 Brokers and Finders: The Sellers and the Corporation have
utilized the services of GVC as a broker in this transaction and Sellers have
the responsibility for any brokerage or finder's fee or other commission payable
to GVC in connection with any of the transactions contemplated by this
Agreement.
6. REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL SELLERS: The
Principal Sellers represent and warrant to the Buyer, severally and not jointly,
as of the date of this Agreement and as of the Closing Date (as if such
representations and warranties were remade on the Closing Date), as follows:
6.1 Authority: The Corporation and the Subsidiaries are
corporations duly organized, validly existing and in good standing under the
laws of their jurisdiction of organization, with all corporate power and
corporate authority to own, lease and operate their businesses as they are now
being owned, operated and conducted. The Corporation and the Subsidiaries are
licensed or qualified to do business and are in good standing as foreign
corporations authorized to do business in each jurisdiction where the nature of
the properties owned, leased or operated by them and the businesses transacted
by them require such licensing or qualification, except where the failure to be
so licensed or qualified would not have a Material Adverse Effect. The
jurisdictions in which the Corporation or the Subsidiaries are qualified to do
business as foreign corporations are set forth on Schedule 6.1. Except for the
Subsidiaries named herein, the Corporation has no direct or indirect
Subsidiaries, either wholly or partially owned, and the Corporation and the
Subsidiaries do not hold any economic, voting or management interest in any
Person or own any security issued by any Person. True, correct and complete
copies of the Certificates of Incorporation, By-laws, as amended, and minutes(or
written consents in lieu of meetings) of the Boards of Directors (and all
committees thereof) and shareholders of the Corporation and the Subsidiaries
have been made available to the Buyer.
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6.2 Consents and Approvals:
6.2.1 Except as set forth on Schedule 6.2, except for
state securities filings, no consent, authorization or approval of, filing or
registration with, or cooperation from, any governmental authority or any other
person not a party to this Agreement is necessary in connection with the
execution, delivery and performance by the Corporation of this Agreement.
6.2.2 Except as set forth on Schedule 6.2, the
execution, delivery and performance by the Corporation of this Agreement does
not and will not (i) violate any Law; (ii) violate or conflict with, result in a
breach or termination of, constitute a default (or a circumstance which, with or
without notice or lapse of time or both, would constitute a default) or give any
third party any additional right (including a termination right) under, permit
cancellation of, or result in the creation of any lien upon any of the assets or
properties of the Corporation or the Subsidiaries under, any contract to which
the Corporation or a Subsidiary is a party or by which the Corporation or a
Subsidiary or any of their respective assets or properties are bound; (iii)
permit the acceleration of the maturity of any indebtedness of the Corporation
or its Subsidiaries or indebtedness secured by their respective assets or
properties; or (iv) violate or conflict with any provision of any of the
Certificates of Incorporation, By-laws, partnership agreements, trust agreements
or similar organizational instruments of the Cornoration or the Subsidiaries.
6.3 Capitalization:
6.3.1 The authorized capital stock of the Corporation
consists of five million Common Shares having no par value. There are currently
issued and outstanding 442,312 Common Shares owned by the Sellers. All of the
issued and outstanding Shares are validly issued, fully paid and non-assessable
and free of preemptive rights. All certificates and instruments representing the
Shares which are surrendered, transferred and assigned to the Buyer at Closing
validly represent the number of Shares respectively purported to be represented
thereby.
6.3.2 The authorized capital stock of each Subsidiary is
as set forth on Schedule 6.3, of which the only shares currently issued and
outstanding by a Subsidiary are owned 100% by the Corporation. All outstanding
shares of common stock of the Subsidiaries have been validly issued, are fully
paid and non-assessable and are owned by the Corporation, free and clear of any
and all liens.
6.3.3 There are no shares of capital stock or other
equity securities of the Corporation or any Subsidiary issued or outstanding or
any subscriptions, options, warrants, calls, rights, convertible securities or
other agreements or commitments of any character obligating the Corporation or
any Subsidiary, obligating any Seller to cause the Corporation or a Subsidiary
or obligating the Corporation to cause the Subsidiary to issue, transfer or sell
any shares of capital stock or other securities of the Corporation or a
Subsidiary. There are no outstanding contractual obligations of the Corporation,
the Sellers or a Subsidiary which relate to the purchase, sale,
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issuance, repurchase, redemption, acquisition, transfer, disposition, holding or
voting of any shares of capital stock or other securities of the Corporation or
a Subsidiary.
6.4 Financial Statements; Undisclosed Liabilities; Other
Documents:
6.4.1 Except as set forth on Schedule 6.4 and except in
connection with the matters addressed in Sections 4.3, 18.1.3 and 22.1, the
Financial Statements of the Corporation and its Subsidiaries have been prepared
in accordance with GAAP consistently applied (subject, in the case of interim
unaudited financial statements, to normal recurring year-end adjustments, the
effect of which will not, individually or in the aggregate, result in a Material
Adverse Effect, and the absence of notes that, if presented, would not differ
materially from those included in the audited Financial Statements) and present
fairly the consolidated financial position, assets and liabilities of the
Corporation and the Subsidiaries as of the date thereof and the revenues,
expenses, results of operations and cash flows of the Corporation and the
Subsidiaries for the periods covered thereby. The Financial Statements are in
accordance with the books and records of the Corporation and the Subsidiaries,
do not reflect any transactions which are not bona fide transactions and do not
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements contained therein, in light of the
circumstances in which they were made, not misleading. The Financial Statements
make full and adequate disclosure of, and provisions for, all obligations and
liabilities of the Corporation and its Subsidiaries as of the date thereof.
Except as set forth in Schedule 6.4 or in the Balance Sheet dated July 31, 1999,
the Corporation and the Subsidiaries have no liabilities, debts, claims or
obligations, whether accrued, absolute, contingent or otherwise, whether due or
to become due, other than trade payables and accrued expenses incurred in the
normal course of business since the date of the July 31, 1999 Balance Sheet.
6.4.2 Except as set forth on Schedule 6.4 and except in
connection with the matters addressed in Sections 4.3, 18.1.3 and 22.1, the
Balance Sheet dated July 31, 1999 fairly presents in all material respects, the
information shown therein.
6.5 Title to Assets and Properties: Except as set forth in
Schedule 6.5, the Corporation and the Subsidiaries have good and marketable
title to and are the lawful owners of all of the tangible and intangible assets,
properties and rights used in connection with their respective businesses and
all of the tangible and intangible assets, properties and rights reflected in
the Financial Statements (other than assets leased under the leases set forth in
the documents delivered to the Buyer by the Sellers and assets disposed of in
the ordinary course of business since the July 31, 1999 Balance Sheet), and
except as set forth in Schedule 6.5, on the Closing Date will have good and
marketable title to and will be the lawful owners of all of the tangible and
intangible assets, properties and rights reflected on the July 31, 1999 Balance
Sheet, free and clear of any and all Liens unless otherwise set forth in this
Agreement (other than assets, properties or rights which are disposed of or
encumbered in transactions which do not, in the aggregate, result in a Material
Adverse Effect.)
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6.6 Condition and Sufficiency of Assets:
6.6.1 Except as set forth on Schedule 6.6, all of the
tangible assets and properties of the Corporation and Subsidiaries, whether real
or personal, owned or leased, have been well maintained are in good operating
condition and repair and are free from defects other than such minor defects as
do not interfere with the intended use thereof in the conduct of normal
operations or adversely effect the resale value thereof. Immediately after the
Closing, the Corporation and its Subsidiaries shall possess the assets,
properties, processes and abilities which are required for the continued
operation of their respective businesses as presently conducted.
6.6.2 Except as set forth on Schedule 6.6, all computer
hardware and software and related materials used by the Corporation and its
Subsidiaries in their businesses are in good working order and condition and
neither the Corporation nor the Subsidiaries have experienced any significant
defects in design, workmanship or material and the computer system has the
performance capabilities, characteristics and functions necessary to conduct the
business of the Corporation and Subsidiaries. The use of the computer system by
the Corporation and the Subsidiaries (including any software modifications) have
not violated and will not violate or in any way infringe upon the rights of
third parties and has not resulted and will not result in the termination of any
maintenance, service or support agreement relating to any part of the computer
system or any reduction in the services provided to the Corporation or the
Subsidiaries, warranties available to the Corporation or the Subsidiaries or
rights of the Corporation or Subsidiaries thereunder. The Corporation and the
Subsidiaries have full service documentation for the computer system. To the
Knowledge of the Principal Sellers and except as set forth on Schedule 6.6, the
computer system and all of the software utilized by the Corporation and the
Subsidiaries is Year 2000 Compliant.
6.7 Real Property:
6.7.1 Neither the Corporation nor any Subsidiary owns
any real property. Schedule 6.7 includes a complete and accurate list of all
real estate utilized by the Corporation and the Subsidiaries in connection with
their respective businesses together with the terms of all leases authorizing
the utilization of said real property ("Leases"). Schedule 6.7 lists all Leases,
of which true and correct copies have been made available to the Buyer. The
Leases are in full force and effect, valid and enforceable in accordance with
their respective terms, except as to enforcement as may be limited by
bankruptcy, insolvency and other laws effecting the enforcement of creditor's
rights generally and applicable limitations on equitable remedies. The Leases as
of the date hereof are not in default. Neither the Corporation or any of its
Subsidiaries has received any notice of any claim, dispute, event of default or
event which constitutes or would constitute upon the passage of time a default.
6.8 Accounts Receivable: Schedule 6.8 contains a true and
accurate aging schedule of all accounts receivable of the Corporation and its
Subsidiaries. Except as set forth on Schedule 6.8, to the Knowledge of the
Principal Sellers, each account receivable of the Corporation and its
Subsidiaries represents a receivable which arose pursuant to an enforceable
written contract
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for a bona fide sale of goods or for services performed and is not subject to
any claim for reduction, counterclaim, setoff, recoupment or other claim or
credit, allowances or adjustments by the obligor thereof. The allowance for
uncollectible receivables set forth on the Balance Sheet dated July 31, 1999 is
adequate and reasonable, as qualified by the matters addressed in Sections 4.3,
18.1.3 and 22.1
6.9 Leases: Schedule 6.9 contains a true and accurate aging
schedule of all leases in the inventory of the Corporation and its Subsidiaries.
Except as set forth in Schedule 6.9, each such lease constitutes a legal, valid
and binding agreement between the lessor and the lessee and the Principal
Sellers have no Knowledge of any facts which would materially adversely affect
the lessee's ability to satisfy the obligations of the lease as they fall due
pursuant to the terms of the lease. To the Knowledge of the Principal Sellers,
the Corporation and its Subsidiaries have verified the credit of all lessees to
industry standards and verified that all personal property leased pursuant to
the leases were delivered and accepted by the lessee and the Principal Sellers
have no Knowledge of any claims for set offs, recoupment or abatement of any
amounts due under the lease and that the leases do not violate or contravene any
law, ordinance or regulation of any federal, state or municipal government.
6.10 Intellectual Property: Schedule 6.10 is a true and
complete list of all of the trademarks, tradenames, service marks, patents,
copyrights, technology, proprietary computer software and other intangible
assets, properties and rights used by the Corporation or the Subsidiaries in the
conduct of their respective businesses. Except as set forth on Schedule 6.10:
6.10.1 All of the intellectual property owned by the
Corporation or the Subsidiaries is free and clear of all Liens and is not
subject to any license, royalty or other agreement;
6.10.2 None of the intellectual property has been or is
the subject of any pending or, to the Knowledge of the Principal Sellers,
threatened litigation or claim of infringement; and
6.10.3 No license or royalty agreement to which the
Corporation or a Subsidiary is a party is in breach or default
6.11 Contracts: Except as set forth on Schedule 6.11, the
Corporation and its Subsidiaries are not a party to any contract or arrangement
by which either is bound or to which any of their respective assets or
properties is subject, including but not limited to contracts for:
6.11.1 any collective bargaining agreement;
6.11.2 any contract or arrangement of any kind with any
employee, officer or director of the Corporation or a Subsidiary;
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6.11.3 any contract or agreement of any nature which
involves the payment or receipt of cash or other property, an unperformed
commitment or goods or services, having a value in excess of $50,000.00;
6.11.4 any contract or arrangement pursuant to which the
Corporation or a Subsidiary has made or will make loans or advances or has or
will have incurred debts or become a guarantor or surety or pledged its credit
on or otherwise become responsible with respect to any undertaking of another
(except for the collection of contracts and negotiable instruments in connection
with transactions performed in the ordinary course of the Corporation's
business);
6.11.5 any indenture, credit agreement, loan agreement,
note, mortgage, security agreement, lease of real property or personal property
or agreement for financing which would obligate the Corporation or a Subsidiary
for an amount in excess of $50,000.00;
6.11.6 any contract or arrangement involving a
partnership, joint venture or other cooperative undertaking;
6.11.7 any contract for which the full performance
thereof may extend beyond sixty (60) days from the date of this Agreement;
6.11.8 any contract not made in the ordinary course of
business which is to be performed at or after the date of this Agreement;
6.11.9 any contract relating to any acquisition or
disposition of the Corporation, a Subsidiary or any predecessor in interest of
either;
6.11.10 any contract not specified above that is
material to the Corporation, a Subsidiary or will have a Material Adverse Effect
on the Financial Statement of the Corporation.
6.12 Permits: The Corporation and its Subsidiaries hold all
licenses and permits necessary to conduct their respective businesses, except
where failure to hold such licenses and permits would not have a Material
Adverse Effect. No other permits or licenses are necessary for the lawful
operation of the respective businesses of the Corporation and the Subsidiaries.
Attached hereto as Schedule 6.12 is a list of all material licenses and permits
held by the Corporation and Subsidiaries.
6.13 Insurance: Attached hereto as Schedule 6.13 is a complete
list of all policies of fire, liability, workers compensation and other forms of
insurance owned or held by the Corporation or a Subsidiary. The Corporation has
heretofore made available to the Buyer true and accurate copies of all such
policies and as of the Closing Date all of such policies shall be in full force
and effect with all premiums relative thereto paid to the end of the policy
period reflected in the policies. To the best Knowledge of the Principal
Sellers, all policies of insurance are sufficient
12
for compliance with the material requirements of law and of all contracts to
which the Corporation or a Subsidiary is a party and are valid, outstanding and
enforceable policies. Except as set forth on Schedule 6.13, neither the
Corporation nor a Subsidiary has been refused any insurance with respect to its
assets or operations and its coverage has not been limited by any insurance
carrier to which it has applied for any insurance or with which it has carried
insurance during the last three years.
6.14 Employment Benefit Plans and Employment Agreements:
6.14.1 General: Except as set forth on Schedule 6.14,
neither the Corporation nor a Subsidiary is a party to or participates in or has
any liability with respect to:
6.14.1.1 any employee welfare benefit plan or
employee pension benefit plan as those terms are respectively defined in
Sections 3(1) and 3(2) of ERISA;
6.14.1.2 any retirement or deferred compensation
plan, incentive compensation plan, stock plan, unemployment compensation plan,
vacation pay, severance pay, bonus or benefit arrangement, insurance or
hospitalization program or any other fringe benefit arrangement for any current
or former employee, director, consultant or agent, whether pursuant to contract,
arrangement, custom or informal understanding, which does not constitute an
employee benefit plan, or
6.14.1.3 any employment agreement not terminable
on thirty (30) days notice without further liability.
6.14.2 Compliance With Laws; Liabilities:
6.14.2.1 All plans, arrangements, and agreements
comply and have been administered in form and in operation in all material
respects with all requirements of Law applicable thereto and there has been no
notice issued by any Governmental Authority questioning or challenging such
compliance.
6.14.2.2 All employee pension benefit plans comply
in form and in operation with all applicable requirements of the Code.
6.14.2.3 None of the assets of any plan,
arrangement or agreement are invested in employer securities or employer real
property.
6.14.2.4 There have been no prohibited
transactions with respect to any employee benefit plan and neither the
Corporation nor a Subsidiary has otherwise engaged in any prohibited
transactions.
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6.14.2.5 There has been no act or omission which
has given rise to or may give rise to fines, penalties, taxes or related charges
under the applicable provisions of ERISA or the Code.
6.14.2.6 There are no actions, suits or claims
pending or threatened involving such plans, arrangements or agreements or the
assets thereof and no facts exist which could give rise to any such action, suit
or claim.
6.14.2.7 Any plan, arrangement or agreement of the
Corporation are in compliance with all governmental rules, regulations and
requirements.
6.15 Taxes: All Tax Returns have been filed for the
Corporation and the Subsidiaries either individually or on a consolidated basis
for any period required before the Closing Date. All Taxes shown as due on any
Tax Returns and other filings have been paid. All Tax Returns filed through the
Closing Date are true and correct and neither the Corporation nor a Subsidiary
has or will have any additional liability for Taxes with respect to any Tax
Return or other filing heretofore filed or which was required to be filed prior
to the Closing Date unless otherwise set forth herein or described on the
Corporation's Financial Statement. As of the date of executing this Agreement,
neither the Corporation or a Subsidiary is under an audit or, to the Knowledge
of the Principal Sellers, being investigated by any Govemmental Authority and no
facts exist which would constitute grounds for the assessment of any additional
Taxes by any Governmental Authority with respect to the taxable years covered in
all Tax Retunns heretofore filed. All information returns required to be filed
by the Corporation or a Subsidiary prior to the Closing Date have been filed and
all statements required to be furnished to payee of the Corporation or a
Subsidiary prior to the Closing Date have been furnished to such payees and the
information set forth on such returns and statements are true and correct. After
the Closing and except as otherwise provided in Section 22.2, all Tax Returns
required to be filed with respect to the Corporation shall be the sole
responsibility of Buyer.
6.15.1 The basis of all depreciable or amortizable
assets and the methods used in determining allowable depreciation or
amortization (including cost recovery) deductions of the Corporation and the
Subsidiaries are correct and are in compliance with the Code and the
regulations thereunder.
6.16 No Defaults or Violations: Neither the Corporation nor
any of its Subsidiaries has breached any provision of, nor is it in default
under the terms of, any contract to which it is a party or under which it has
any rights or by which it is bound and no other party to any such contract has
breached such contract or is in default thereunder. The Corporation and its
Subsidiaries are in compliance with and no violation exists under any and all
laws applicable to the Corporation or the Subsidiaries. Neither the Corporation
nor a Subsidiary has received notice that it is in violation of any governmental
rule or regulation.
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6.17 Litigation: Except as set forth on Schedule 6.17, there
are no actions, suits, arbitrations, regulatory proceedings or other litigation,
proceedings or governmental investigations pending or, to the Knowledge of the
Principal Sellers, threatened against or affecting the Corporation or any
Subsidiary or any of their respective officers, directors, employees, agents or
shareholders thereof in their capacity as such or any of their respective
properties or businesses and the Principal Sellers have no Knowledge of any
facts or circumstances which may give rise to any of the foregoing. Except as
set forth on Schedule 6.17, all of the proceedings pending against the
Corporation or any Subsidiary are covered and are being defended by insurers
unless otherwise disclosed. Except as disclosed on Schedule 6.17, neither the
Corporation nor any Subsidiary is subject to any order, judgment, decree,
injunction, stipulation or consent order of or with any court or other
governmental authority.
6.18 Bank Accounts: Schedule 6.18 sets forth the names and
locations of each bank or other financial institution at which either the
Corporation or a Subsidiary has an account (giving the account numbers) and the
names of all persons authorized to draw thereon or have access thereto. The cash
in the Corporation's bank accounts as of the Closing Date will be in an amount
consistent with the Corporation's past practice
6.19 Ordinary Course of Business: Except as set forth on
Schedule 6.19, subsequent to the date of the Corporation's last financial
statement on July 31, 1999, the Business of the Corporation and its Subsidiaries
has been conducted in its ordinary course of Business and to the Knowledge of
the Principal Sellers there has been no material loss of any ofthe Corporation's
customers or clients which would have a Material Adverse Effect on the
Corporation's future income and profitability.
7. REPRESENTATIONS AND WARRANTIES OF BUYER AND FINANTRA: The Buyer
and Finantra represent and warrant to the Sellers as of the date of this
Agreement and as of the Closing Date (as if such representations and warranties
were remade on the Closing Date), as follows:
7.1 Authority; Good Standing: The Buyer and Finantra are
corporations duly organized, validly existing and in good standing under the
laws of their jurisdictions of organization, with all requisite power and
authority to own, lease and operate their businesses as they are now being
owned, operated and conducted. The Buyer and Finantra are licensed or qualified
to do business and are in good standing as foreign corporations authorized to do
business in each jurisdiction where the nature of the properties owned, leased
or operated by them and the businesses transacted by them require such licensing
or qualification.
7.2 Authorizations: The Buyer and Finantra have full power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Buyer and
Finantra of this Agreement have been duly and validly approved by all Persons
necessary and no other actions or proceedings on the part of the Buyer or
Finantra are necessary to authorize the execution of this Agreement and the
transactions
15
contemplated hereby. The Buyer and Finantra have duly and validly executed and
delivered this Agreement and have duly and validly executed and delivered any
related agreements required hereby. This Agreement constitutes the legal, valid
and binding obligations of the Buyer and Finantra and is enforceable against the
Buyer and Finantra in accordance with the terms contained herein.
7.3 Consents and Approvals:
7.3.1 No consent, authorization or approval of, filing
or registration with, or cooperation from, any governmental authority or any
other person not a party to this Agreement is necessary in connection with the
execution, delivery and performance by the Buyer or Finantra of this Agreement
or the consummation of the transactions contemplated hereby or thereby.
7.3.2 The execution, delivery and performance by the
Buyer or Finantra of this Agreement does not and will not (i) violate any law;
(ii) violate or conflict with any provision of its Certificate of Incorporation,
By-laws, or similar organizational instruments of the Buyer or Finantra.
7.4 Brokers and Finders: Neither the Buyer nor Finantra has
used a broker or finder in connection with the transaction contemplated hereby.
7.5 Financial Statements: The Buyer and Finantra have
delivered to each Seller copies of their most recent year end audited balance
sheet and related audited statements of income, stockholders' equity and cash
flows, along with all unaudited interim financial statements for all quarters
ended thereafter, but prior to the Closing Date (collectively, the "Buyer
Financials"). Finantra's Annual Report on Form 10-K for the year ended December
31, 1998 and its Quarterly Reports on Form 1O-Q filed with the Securities and
Exchange Commission (the "SEC") thereafter, but prior to the Closing Date, the
Buyer Financials, and the information contained in any reports, statements or
filings delivered to the Sellers by or on behalf of Buyer and Finantra, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading or to present fairly or
truthfully the financial position of Buyer or Finantra as of the respective
dates of such reports, statements or filings. The Buyer Financials have been
prepared in accordance with GAAP consistently applied and present fairly the
consolidated financial position, assets and liabilities of the Buyer and
Finantra as of the date thereof and the revenues, expenses, results of
operations and cash flows of the Buyer and Finantra for the periods covered
thereby. Such financial statements are in accordance with the books and records
of the Buyer and Finantra and do not reflect any transactions which are not bona
fide transactions. The stockholders' equity of Finantra, as determined in
accordance with GAAP, is not less than Eleven Million Five Hundred Thousand
Dollars ($11,500,000.00).
7.6 Litigation: Except as set forth on Schedule 7.6, there are
no actions, suits, arbitrations, regulatory proceedings or other litigation,
proceedings or governmental investigations pending or, to the Knowledge of the
Buyer or Finantra, threatened against or affecting the Buyer or
16
Finantra or any of their respective officers, directors, employees, agents or
shareholders thereof in their capacity as such or any of their respective
properties or businesses and the Buyer and Finantra have no Knowledge of any
facts or circumstances which may give rise to any of the foregoing. Except as
disclosed on Schedule 7.6, neither the Buyer nor Finantra is subject to any
order, judgment, decree, injunction, stipulation or consent order of or with any
court or other governmental authority.
8. COVENANTS OF SELLERS: The Sellers and Principal Sellers, as
applicable, covenant with the Buyer as follows:
8.1 Implementation of Agreement: The Sellers shall use their
best efforts to take all action required of them to fulfill their obligations
under the terms of this Agreement and to facilitate the consummation of the
transactions contemplated hereby. The Sellers will not sell their Shares to any
Person other than the Buyer and will not take any other action which would have
the effect of preventing or disabling the Sellers' performance of their
obligations under this Agreement.
8.2 Preservation of Business: From the date of this Agreement
and until the Closing Date, the Principal Sellers shall cause the Corporation
and the Subsidiaries to operate only in the ordinary and usual course of
business consistent with past practice and shall use their best efforts to (a)
preserve intact the present business organization and personnel of the
Corporation and the Subsidiaries, (b) preserve the good will and advantageous
relationships of the Corporation and the Subsidiaries with customers, employees
and other Persons material to the operation of their respective businesses and
(c) not permit any action or omission which would cause any of the
representations or warranties of the Principal Sellers contained herein to
become inaccurate or any of the covenants of the Principal Sellers to be
breached. Without limiting the generality of the foregoing, neither the
Corporation or a Subsidiary will, without the prior written consent of the
Buyer:
8.2.1 take any action or enter into or authorize
any contract or transaction other than in the ordinary course of business and
consistent with past practice;
8.2.2 sell, transfer, convey, assign or otherwise
dispose of any assets or properties except in the ordinary course of business;
8.2.3 waive, release or cancel any claims against
third parties or debts owing to or any rights which have any value;
8.2.4 make any changes in its accounting systems,
policies, principles or practices;
8.2.5 enter into, authorize, or permit any
transaction with any Seller;
8.2.6 sell or encumber any Shares being sold to
the Buyer;
17
8.2.7 make any borrowings, incur any debt or
assume, guaranty, endorse or otherwise become liable for obligations out of the
ordinary course of business or which would create additional debt in excess of
Fifty Thousand Dollars ($50,000.00) arising out of any one transaction;
8.2.8 authorize or make any capital expenditure
which individually or in the aggregate is in excess of Fifty Thousand Dollars
($50,000.00);
8.2.9 agree to settle or compromise any federal,
state, local or foreign income tax liability or waive or extend the statute of
limitations in respect to any such taxes or pay or agree to pay any amount in
settlement or compromise of any suits or claims for liability against the
Corporation, its Subsidiaries or directors, officers, employees or agents;
8.2.10 terminate, modify, amend or otherwise alter
or change any of the terms or provisions of any contract, or pay any amount not
required by law or by any contract.
8.3 Consents and Approvals: The Principal Sellers shall use
their best efforts to obtain all consents, approvals, certificates and other
documents required in connection with the performance of this Agreement and the
consummation of the transaction required herein.
8.4 Maintenance of Insurance: The Principal Sellers shall
cause the Corporation and its Subsidiaries to continue to carry its existing
insurance and shall use commercially reasonable efforts to not allow any breach,
default, termination or cancellation of such insurance policies to occur or
exist.
8.5 Resignation of Officers and Directors: The Principal
Sellers agree to cause at the time of Closing the of ficers and members of the
Board of Directors of the Corporation and the Subsidiaries, if so requested by
the Buyer, to render their resignation from such position effective as of the
Closing.
9. COVENANTS OF THE BUYER: The Buyer and Finantra covenant with the
Sellers as follows:
9.1 Implementation of Agreement: The Buyer and Finantra shall
use their best efforts to take all action required of them to fulfill their
obligations under the terms of this Agreement and to facilitate the consummation
of the transactions contemplated hereby. Neither the Buyer nor Finantra will
take any action which would have the effect of preventing or disabling their
performance of their obligations under this Agreement.
9.2 Consents and Approvals: The Buyer and Finantra shall use
their best efforts to obtain all consents, approvals, certificates and other
documents required in connection with the performance of this Agreement and the
consummation of the transaction required herein.
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10. CERTAIN COVENANTS DURING NOTE PERIOD:
10.1 Cooperation in Business Operations: During the period
beginning at the Closing Date and ending after the Notes are paid in full (the
"Note Period"), the Buyer and the Principal Sellers hereby declare their
intention to jointly and in good faith cooperate in the management and conduct
of the Corporation's business, including but not limited to the day-to-day
management over the Corporation's operations.
10.2 No Sale or Distribution: The Buyer and Finantra shall
not, during the Note Period, (i) sell the capital stock of the Corporation
(including by merger), (ii) without the written consent of the Sellers, which
consent shall not be unreasonably withheld, sell or transfer (or cause to be
sold or transferred) all or substantially all of the Corporation's assets, or
(iii) declare or pay any dividend, distribution or other payment or amount with
respect to the capital stock of the Corporation; provided, however, that nothing
in this Section 10.2 shall prevent Finantra from selling Finantra capital stock.
10.3 Sellers' Right of Access: The Sellers shall, during the
Note Period, have reasonable access to and a right to copy, at the Sellers' own
expense, the accounting books and records of the Buyer and Finantra.
10.4 Minimum Stockholders' Equity: During the Note Period,
Finantra shall at all times maintain stockholders' equity, as determined in
accordance with GAAP, of at least Eleven Million Five Hundred Thousand Dollars
($11,500,000.00). Failure to meet this threshold amount at all times during the
Note Period shall constitute a material default under the Notes, and Finantra
shall provide prompt written notice of such default to each Seller. During the
Note Period, (i) each of the Buyer and Finantra shall deliver to each Seller
annual and quarterly financial statements, and (ii) Finantra shall deliver to
each Seller any Annual Report on Form 10-K or Quarterly Report on Form 10-Q
filed by it with the SEC.
1 1. NON-COMPETITION:
11.1 Unless and except expressly approved by the Buyer, each
Principal Seller agrees that from and after the date of this Agreement until two
(2) years after the later of (i) the Closing Date or (ii) the date the
employment of such Principal Seller by the Corporation terminates, the Principal
Seller will not, directly or indirectly:
11.1.1 except as an officer or employee of the
Corporation or any of its Subsidiaries, engage in, control, advise, manage,
serve as a director, officer, or employee of, act as a consultant to, receive
any economic benefit from or exert any influence upon, any Business which
conducts activities in the Territory, provided that this restriction shall not
apply to any activity in connection with a Business that does not actually or
potentially compete with the activities of the Corporations and its
Subsidiaries;
19
11.1.2 except in connection with any duties as an
officer or employee of the Corporation or its Subsidiaries, solicit, divert or
attempt to divert any party who is, or was solicited to become a customer or
client of the Corporation and its Subsidiaries at any time prior to the Closing
Date, provided that this restriction shall not apply to any activity on behalf
of a Business that does not actually or potentially compete with the activities
of the Corporation and its Subsidiaries:
11.1.3 employ, solicit for employment or encourage
to leave their employment any person who is an officer or employee of the
Corporation and its Subsidiaries;
11.1.4 disturb, or attempt to disturb any business
relationship between any third party and the Corporation and/or its
Subsidiaries.
For the purposes of this Section, the term "directly" or "indirectly" shall
include acts or omissions as proprietor, partner, joint venturer, employer,
salesman, agent, employee, officer, director, lender, owner, shareholder, or
consultant.
11.2 In the event of actual or threatened breach of the
provisions of this Section, the Buyer, in addition to any other remedies
available to it for such breach or threatened breach, including the recovery of
damages, shall be entitled to an injunction restraining the Principal Sellers
from such conduct. If a bond is required to be posted in order for the Buyer to
secure such injunction, the Parties agree that said bond need not exceed the sum
of One Thousand Dollars ($ 1,000.00).
11.3 If at any time any of the provisions of this Section
shall be determined to be invalid or unenforceable by reason of being vague or
unreasonable as to duration, area or scope of activity, then this Section shall
be considered divisible (with the other provisions to remain in full force and
effect) and the invalid or unenforceable provisions shall become and be deemed
to be immediately amended to include only such time, area and scope of activity,
as shall be determined to be reasonable and enforceable by the court or other
body having jurisdiction over the matter, and the holders expressly agree that
this Agreement, as so amended, shall be valid and binding as though any invalid
or unenforceable provision had not been included herein.
11.4 The provisions of this Section shall be in addition to
and not in limitation of, any other provisions contained in any other agreement
restricting competition by the Principal Sellers including (without limitation)
any employment agreement between the Corporation or a Subsidiary and any
Principal Seller.
12. TERMINATION OF CONSULTING AGREEMENTS: The Corporation shall,
effective as of the Closing Date, terminate, rescind, cancel, and render null
and void and of no further force and effect the Corporation's consulting
agreements with each of XxXxxxx & Sears, Inc., Xxx Xxxxxx Enterprises and
Fitness Management Corporation (the "Consulting Agreements"). The payments made
to such entities in connection with the termination of the Consulting
20
Agreements are the sole responsibility of the Sellers and therefore will have
been accounted for on the Corporation's financial statements as of the Closing
Date.
13. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE: The Buyer's
obligation to close the transaction contemplated by this Agreement is subject to
the following conditions being performed on or before the Closing Date:
13.1 The representations and warranties of the Sellers and
the Principal Sellers contained herein shall be accurate, true and correct on
and as of the date of this Agreement, and shall be accurate, true and correct on
and as of the Closing Date with the same force and effect as though made on and
as of the Closing Date.
13.2 The Sellers and the Principal Sellers shall have
performed and complied with all of their covenants, obligations and agreements
contained in this Agreement to be performed and complied with by them on or
prior to the Closing Date.
13.3 The Sellers shall have received written evidence that
all consents and approvals required for the consummation of the transactions
contemplated in this Agreement with respect to the Corporation and the
Subsidiaries and their respective businesses have been obtained and all required
filings have been made, except where the failure to obtain such consents or
approvals or make such filings would not have a Material Adverse Effect.
13.4 A satisfactory employment agreement has been entered
into between the Corporation and Xxxxx Xxxxx.
13.5 No Material Adverse Change shall have occurred and no
event shall have occurred which, in the judgment of the Buyer may have a
Material Adverse Effect on the financial condition or business of the
Corporation and/or its Subsidiaries.
13.6 The Board of Directors and Shareholders of the
Corporation shall have consented in writing to the transactions contemplated by
this Agreement.
13.7 No action or proceeding by any Governmental Authority or
Person shall have been instituted or threatened which could enjoin, restrain and
prohibit, or could result in substantial damages in respect of, any provision of
this Agreement or the consummation of the transactions contemplated hereby.
14. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS TO CLOSE: The
obligations of the Sellers under this Agreement to close are conditioned upon
the following:
14.1 The representations and warranties of the Buyer and
Finantra contained herein shall have been accurate, true and correct on and as
of the date of this Agreement, and shall also be
21
accurate, true and correct on and as of the Closing Date with the same force and
effect as though made by the Buyer and Finantra on and as of the Closing Date.
14.2 The Buyer and Finantra shall have performed and complied
with all of the covenants, obligations and agreements contained in this
Agreement, to be performed and complied with by the Buyer and Finantra on or
prior to the Closing Date.
14.3 The Buyer shall have received written evidence that all
consents and approvals required for the consummation of the transactions
contemplated in this Agreement with respect to the Corporation and the
Subsidiaries and their respective businesses have been obtained and all
required filings have been made.
14.4 No action or proceeding by any governmental authority or
other person shall have been instituted or threatened which could enjoin,
restrain or prohibit, or could result in substantial damages in respect of, any
provision of this Agreement or the consummation of the transactions contemplated
hereby.
14.5 The Board of Directors of Finantra and the Buyer shall
have consented in writing to the transactions contemplated by this Agreement.
14.6 The Buyer shall have obtained the Debt from the Senior
Lender.
15. CLOSING: The Closing of this transaction shall take place at the
offices of Xxxx, Forward, Xxxxxxxx & Scripps LLP, 000 Xxxx Xxxxxxxx, Xxxxx 0000,
Xxx Xxxxx, Xxxxxxxxxx 00000, at 10:00 a.m. on October 8, 1999, or at such later
date and time as the parties shall mutually agree in writing.
16. DOCUMENTATION TO BE DELIVERED AT CLOSING: The following
documentation shall be delivered by the respective Parties hereto at Closing:
16.1 By Sellers: At the Closing, in addition to any other
documents or agreements required by this Agreement, the Sellers shall deliver to
the Buyer the following:
16.1.1 Certificates evidencing all ofthe issued
and outstanding Shares, which certificates shall be duly endorsed in blank or
accompanied by duly executed stock powers, with all signatures guaranteed;
16.1.2 the resignations of all officers and
directors ofthe Corporation and any Subsidiary which may be requested by the
Buyer;
16.1.3 an estoppel letter from Bank of America,
confirming the repayment of the indebtedness secured thereby and the amount
necessary to release and/or satisfy said lien;
22
16.1.4 a certificate dated as of the Closing Date
certifying the Principal Sellers' representations and warranties under this
Agreement to be true and correct;
16.1.5 certificates of the Corporation's secretary
certifying that the Board of Directors of the Corporation has authorized the
execution, delivery and performance of this Agreement and any related agreement
required hereby;
16.1.6 Certificates of Good Standing for the
Corporation and all Subsidiaries;
16.1.7 Opinion of Counsel dated as of the Closing
Date by counsel for the Sellers in form and substance satisfactory to the Buyer;
16.1.8 Termination of authority effective as of
the Closing Date having the effect of terminating all current signatories on
current bank accounts of the Corporation and its Subsidiaries together with
corporate resolutions appointing signatories to the account effective as of
Closing;
16.2 Bv Buyer: At the Closing, the Buyer shall deliver to the Sellers the
following:
16.2.1 The cash required to close;
16.2.2 The Notes;
16.2.3 Security Agreement, in the form attached
hereto as Exhibit D;
16.2.4 Stock Pledge Agreement, in the form
attached hereto as Exhibit E:
16.2.5 a certificate of Buyer's secretary
certifying the resolutions of the Board of Directors of the Buyer approving this
Agreement together with an incumbency and signature certificate regarding the
of ficers signing on behalf of the Buyer;
16.2.6 an Opinion of Counsel dated as of the
Closing Date in form and substance satisfactory to the Sellers;
16.2.7 the Guaranty; and
16.2.8 a certificate dated as of the Closing Date
certifying that Finantra has satisfied the minimum stockholders' equity
requirement set forth in Section 10.4.
17. TERMINATION: This Agreement may be terminated at any time on or
prior to the Closing Date as follows:
17.1 by the mutual consent of the Buyer and Sellers;
23
17.2 by the Buyer or Sellers, if the Closing shall not have
taken place on or before October 15, 1999, provided, however, that the right to
terminate this Agreement under this provision shall not be available to any
Party whose failure to fulfill any obligations under this Agreement has been the
cause of or resulted in the failure of the Closing to occur on or before such
date;
17.3 by Buyer, if there shall have been a material breach of
any covenant, representation or warranty of the Sellers or the Principal Sellers
hereunder or there has been a Material Adverse Change in the business or
finances of the Corporation or its Subsidiaries and such breach shall not have
been remedied within five (5) Business Days after receipt by the Sellers of a
notice in writing from the Buyer specifying the nature of the breach and
requesting such be remedied;
17.4 by the Sellers, if there shall have been a material
breach of any covenant, representation or warranty of the Buyer or Finantra
hereunder and such breach shall not have been remedied within five (5) Business
Days after receipt by the Buyer of notice in writing from the Sellers specifying
the breach and requesting such be remedied.
18. INDEMNIFICATION:
18.1 By each Seller: Each Seller, severally and not jointly,
agrees to indemnify the Buyer (including the Corporation and all Subsidiaries),
its of ficers, directors, employees, agents and representatives against, and
agree to hold each of them harmless from, any and all Losses incurred or
suffered by them relating to or arising out of or in connection with any of the
following:
18.1.1 any breach of or any inaccuracy in any
representation or warranty made by the Seller pursuant to this Agreement; or
18.1.2 any breach of or failure by the Seller to
perform any covenant or obligation of the Seller required or contemplated by
this Agreement or any document delivered at Closing; or
18.1.3 The Corporation's dispute with the Maryland
Consumer Protection Division regarding payments received by the Corporation
under certain contracts it purchased from Interlink Travel Network, Inc., or the
default on the Corporation's leases by Scrub-a-Club, Inc.; provided, however,
that the indemnification obligations of the Sellers under this Section 18.1.3
shall be limited (i) to the extent to which the applicable Losses exceed the
amount reserved on the Corporation's Financial Statements in relation to such
Losses as of the Closing Date, and (ii) by the applicable provisions of and
handled pursuant to Section 18.7; but provided, further, that any amount by
which such reserves exceed such Losses shall be deemed an adjustment to the
Purchase Price and distributed to the Sellers, in accordance with their pro rata
ownership of the Shares set forth on Schedule 3, concurrently with the Buyer's
final payment on the Notes. The applicable Losses and the excess by which such
reserves exceed such Losses shall be determined by the Corporation as of
24
the date 23 months following the Closing Date. Any dispute regarding such
determination shall be conclusively resolved by Deloitte in accordance with
GAAP. The adjustments to purchase price provided for herein shall be netted
against adjustments to purchase price, if any, attributable to the provisions of
Section 4.3.
18.2 By Buyer: The Buyer and Finantra agree to indemnify the
Sellers against and agree to hold each of them harmless from, any and all Losses
incurred or suffered by them relating to or arising out of or in connection with
any of the following:
18.2.1 any breach of or any inaccuracy in any
representation or warranty made by the Buyer or Finantra pursuant to this
Agreement or in any other agreement or document including, but not limited, to
the information contained in the exhibits to this Agreement or delivered to the
Sellers during due diligence or contained in any document or agreement delivered
at Closing;
18.2.2 any breach of or failure by the Buyer or
Finantra to perform any covenant or obligation of the Buyer or Finantra required
or contemplated by this Agreement or any document delivered at Closing.
18.3 Claims: Upon becoming aware of a claim for
indemnification arising hereunder, the Indemnified Person shall promptly give,
in accordance with the terms hereof, notice to the Indemnifying Person of such
claim and the amount the Indemnified Person will be entitled to receive
hereunder from the Indemnifying Person, if known should the claim be of a
liquidated amount. A notice of claim shall specify the basis for such claim and
shall be supported by relevant information and documentation with respect
thereto. If the Indemnifying Person does not object in writing to such
indemnification claim within twenty (20) business days of receiving notice
thereof, the Indemnified Person shall be entitled to recover promptly from
the Indemnifying Person the amount of such claim and no later objection by
the Indemnifying Person shall be permitted. In the event that the Indemnifying
Person shall have timely given a notice of objection in whole or in part
to any notice of claim, the Indemnifying Person and the Indemnified Person
shall privately attempt to resolve or compromise the claim. If the Indemnifying
Person and the Indemnified Person shall have failed to resolve or compromise or
agree to postpone resolution of the claim within the period of 60 days from the
date the Indemnifying Person shall have mailed the notice of objection, then the
claim shall be settled pursuant to Section 21.
18.4 Notice of Third Party Claims: Assumption of Defense: The
Indemnified Person shall give prompt notice to the Indemnifying Person in
accordance with the terms hereof of the assertion of any claim, or the
commencement of any suit, action or proceeding by any person not a party hereto
in respect of which indemnity may be sought hereunder and shall give the
Indemnifying Person the right to defend such suit, action or proceeding with
counsel reasonably satisfactory to the Indemnified Person. If the Indemnifying
Person assumes such defense, the Indemnified Person shall have the right (but
not the duty) to participate in the defense thereof and to employ counsel at its
own expense, separate from counsel employed by the Indemnifying Person. If,
however, the Indemnified Person reasonably determines that the representation by
the
25
Indemnifying Person's counsel of both the indemnifying and the Indemnified
Person would present such counsel with a conflict of interest, then such
Indemnified Person may employ separate counsel to represent or defend it in any
such claim, action, suit or proceeding and the Indemnifying Person shall pay the
fees and disbursements of such separate counsel if it is ultimately determined
it is responsible for such claim. Whether or not the Indemnifying Person chooses
to defend or prosecute such claim, suit, action or proceeding, all of the
Parties hereto shall cooperate in the defense or prosecution thereof.
18.5 Settlement or Compromise: Any settlement or compromise
made or caused to be made by the Indemnified Person or the Indemnifying Person,
as the case may be, of any such claim, suit, action or proceeding of any kind
referred to herein shall also be binding upon the Indemnifying Person and the
Indemnified Person in the same manner as if a final judgment or decree had been
entered by a court of competent jurisdiction in the amount of such settlement or
compromise; provided, however, that no obligation, restriction or loss shall be
imposed on the Indemnified Person or Indemnifying Person as the result of such
settlement without its prior written consent. Each Party will give the other
Party at least fifteen (15) days notice of any proposed settlement or compromise
of any claim, suit, action or proceeding it is defending, during which time the
other Party may accept or reject such proposed settlement or compromise in its
reasonable discretion.
18.6 Failure of Indemnifying Person to Act: In the event
that the Indemnifying Person does not elect to assume the defense of any claim,
suit, action or proceeding, then any failure of the Indemnified Person to
defend or to participate in the defense of any such claim, suit, action or
proceeding or cause the same to be done, shall not relieve the Indemnifying
Person of its obligations hereunder.
18.7 Limitation on Sellers' Obligation to Indemnify:
Notwithstanding anything to the contrary contained in this Agreement or any
subsidiary documents executed by the Parties in connection with this Agreement,
the sole and exclusive post-Closing remedy of the Buyer shall be for indemnity
under this Section 18. In no event shall the Sellers be liable for such
indemnity unless and until the aggregate Losses exceed $200,000.00, at which
point the Sellers shall be liable for all such Losses, including the $200,000.00
threshold amount; provided, however, that the $200,000.00 limitation shall not
apply to (i) Losses arising from a breach of the representations and warranties
in Section 6.15 (Taxes), or (ii) the Maryland Consumer Protection matter set
forth in Section 18.1.3. The maximum liability of the Sellers collectively
under this Section 18 shall not exceed the lesser of (i) $500,000.00 or (ii) the
total remaining principal balance of the Notes, and the maximum liability of
each individual Seller under this Section 18 shall not exceed the lesser of (i)
$500,000.00 multiplied by such Seller's percentage ownership of the Shares as
set forth on Schedule 3, or (ii) the then existing principal balance for such
Seller's Note. Subject to the foregoing limitations, Buyer's sole recourse for
satisfaction of indemnification obligations arising from
a breach of a representation or warranty made by a Seller under Section 5 shall
be to set off against the then outstanding balance due to the breaching Seller
under such Seller's Note. In the event of obligations arising from a breach of a
representation or warranty made by a Principal Seller under Section 6, then the
Buyer's
26
offset right may be asserted against the then existing balance of each Seller's
Note in proportion to such Seller's equity ownership interest in the Corporation
as of the Closing Date, regardless of whether or not such Seller gave such
representation or warranty. Amounts previously due and payable under the terms
of the Note, but not yet paid on the date the indemnification claim is made,
shall not be included in the "outstanding balance due under the Notes" for
purposes of determining the maximum indemnification obligations of Sellers under
this Section 18.7.
18.8 Indemnification Payment Adjustments. Any payments made
under this Section 18 shall be net of related tax effects and net of insurance
proceeds received or to be received by the indemnified party on account of such
indemnification claim. The parties shall diligently submit claims and pursue
recovery of any Losses covered or potentially covered by the past or present
insurance policies of Sellers, the Corporation or Buyer, as appropriate.
19. REPRESENTATIONS AND WARRANTIES: The representations and warranties
under Sections 5, 6 and 7 of this Agreement shall survive the Closing for a
period of two years; provided, however, that the representations and warranties
in Section 6.15 (Taxes) shall terminate when the applicable statutes of
limitations with respect to the liabilities in question expire.
20. OFFICER AND DIRECTOR INDEMNIFICATION. After the Closing Date, the
Corporation or its successors and assigns shall indemnify and hold harmless any
person who was a director or officer of the Corporation at any time prior to
the Closing Date and the heirs, executors and administrators of any such person,
to the extent authorized or permitted by the Corporation's certificate of
incorporation or by-laws or provided pursuant to the applicable state law in
effect immediately prior to the Closing Date, against any liabilities, costs or
expenses (including attorneys' fees) imposed upon or reasonably incurred by him
or her in his or her capacity as, or arising out of his or her status as, or
because of his or her having been a director or officer of the Corporation or
any of its subsidiaries at any time prior to the Closing Date, provided that
in each such case, such director or officer reasonably believed that he or she
acted in the interest of the Corporation and did not violate his or her
fiduciary duty to the Corporation; provided, however, that such indemnification
shall not extend to liabilities, costs or expenses incurred as a result of a
director or officer's gross negligence or willful misconduct. Such obligations
shall apply to any action, suit or proceeding commenced or threatened before or
after the Closing Date.
21. DISPUTE RESOLUTION.
21.1 In the event of any dispute or disagreement between the
Parties following the Closing as to the interpretation of any provision of this
Agreement or the performance of any obligations hereunder (except those
pertaining to the payment of the Notes), the matter, upon the written request of
any Party, shall be referred to representatives of the Parties for decision (the
"Representatives"). The Representatives shall promptly meet in a good faith
effort to resolve the dispute. If the Representatives do not agree upon a
decision within 30 calendar days after reference of the matter to them, each of
the Parties shall be free to exercise the remedies available to it under
subsection 21.2 below.
27
21.2 Any controversy, dispute or claim arising out of or
relating in any way to this Agreement or the transactions arising hereunder
(except those arising in connection with the payment of the Notes) which is not
resolved by negotiation pursuant to subsection 21.1 above shall be settled
exclusively by arbitration in San Diego County, California. Such arbitration
shall be administered by the American Arbitration Association (the "AAA") in
accordance with its then prevailing Commercial Arbitration Rules (except as
otherwise provided herein) by one independent and impartial arbitrator who shall
be selected by the Sellers and the Buyer in accordance with such Rules. The fees
and expenses of the AAA and the arbitrator shall be shared equally by Buyer, on
the one hand, and the Sellers, on the other hand, and advanced by them from time
to time as required; provided that at the conclusion of the arbitration, the
arbitrator shall award costs and expenses (including the costs of the
arbitration previously advanced and the fees and expenses of attorneys,
accountants and other experts) and interest at the Applicable Rate to the
prevailing Party or Parties. The arbitrator shall permit and facilitate such
discovery as the Party initiating such claim shall reasonably request. The
arbitrator shall render his or her award within 90 days of the conclusion of the
arbitration hearing. The arbitrator shall be expressly empowered to determine
the amount of any Losses subject to indemnification hereunder in accordance with
the terms and provisions of this Agreement. Notwithstanding anything to the
contrary provided in this Section 21.2 and without prejudice to the above
procedures, any Party may apply to any court of competent jurisdiction for
temporary injunctive or other provisional judicial relief if such action is
necessary to avoid irreparable damage or to preserve the status quo until such
time as the arbitrator is selected and available to hear such Party's request
for temporary relief. The award rendered by the arbitrator shall be final and
not subject to judicial review (absent manifest error), and judgment thereon may
be entered in any court of competent jurisdiction. Notwithstanding anything to
the contrary provided in this Section 21, the Buyer and the Sellers may elect to
enforce any of the provisions of Section 11 by application to a court of
competent jurisdiction for equitable or legal relief (including damages or
injunctive relief) rather than pursuant to the above procedures.
22. S CORPORATION DISTRIBUTIONS; TAXES:
22.1 The Sellers and the Buyer acknowledge and understand that
the Corporation's "S" corporation status will terminate effective as of the
Closing Date. Immediately prior to the Closing, the Corporation shall declare a
dividend to each Seller (the "Closing Dividend") in an amount equal to (a) that
portion of the Corporation's income attributed to such Seller during the period
commencing on January 1, 1999 and ending on the Closing Date (the "Short Tax
Year"), less (b) the amount of any dividends declared by the Corporation and
paid to such Seller during the Short Tax Year. The Closing Dividend shall be
calculated and paid by the Corporation no later than one month following the
Closing Date. The declaration of the Closing Dividend by the Corporation
pursuant to this Section 22.1 shall not cause the Closing Date Stockholders'
Equity to fall below Twelve Million One Hundred Twenty-Eight Thousand Two
Hundred Eighty-One Dollars ($12,128,281).
28
22.2 Following the Closing, the Buyer and the Corporation
shall provide to the Sellers' accountants, without charge, such information from
the Corporation's books and records as may be reasonably necessary for the
preparation of such Sellers' tax returns for the Short Tax Year (the "Short Year
Tax Returns"). Each Seller shall be solely responsible for his or her own
accountants fees and costs incurred in preparing such Short Year Tax Returns and
any tax shown to be due thereon. All expenses of the Corporation shall be
determined as if its taxable year closed on the Closing Date.
22.3 The Buyer shall be solely responsible for, and shall
indemnify and hold harmless the Sellers against, any and all Losses arising in
connection with the conversion of the Corporation's tax status from an "S"
corporation to a "C" corporation (other than the costs of preparing and filing
the Short Year Tax Returns), including but not limited to expenses recognized
pursuant to accounting adjustments required by GAAP.
22.4 Certain of the Sellers are nonresidents of California.
The Corporation and such Sellers have heretofore entered into agreements at the
request of such nonresident Sellers pursuant to which such nonresident Sellers
have executed a group nonresident return election on FTB Form 3865 or its
equivalent, and pursuant thereto the Corporation prepares and files group
nonresident estimated tax returns (FTB Form 540-ES or its equivalent) and group
nonresident tax returns on behalf of each Nonresident Seller (FTB Form 540 NR or
its equivalent). In keeping with this prior practice, the Corporation pays the
taxes shown out of funds withheld from nonresident Sellers. The Buyer and the
Corporation agree that the Corporation shall prepare and file a quarterly
estimate group return for the calendar quarter covered by the Closing and a
final group return for the year in which the Closing occurs and shall charge any
tax due against the amounts next coming due to nonresident Sellers under the
terms of Notes.
23. MISCELLANEOUS:
23.1 Further Assurances: From time to time after the Closing
Date, at either Party's reasonable request and without expense to the other
Party, each Party agrees to execute and deliver such other instruments and take
such other action as the requesting Party may reasonably require to more
effectively carry out the intent of this Agreement. The Buyer and Seller will
fully cooperate with each other and their respective counsel and accountants in
connection with any steps required to be taken as part of their respective
obligations under this Agreement, including the preparation of tax returns.
23.2 Notices: All notices, demands and other communications
required or permitted hereunder shall be in writing, addressed to the parties at
their respective addresses as set forth below, or, as to each party, at such
other address as shall be designated by such party in a written notice to the
other parties complying as to delivery with the terms of this Section. All such
communications shall be deemed effective upon the earliest of (i) actual
delivery if delivered by personal delivery, (ii) upon the earliest to occur, if
sent by certified postage prepaid mail, of three (3) days following deposit
thereof in the United States mail or receipt (or refusal to accept delivery),
29
or (iii) on the next business day after timely and proper deposit with an
overnight air courier with request for next business day delivery.
As to Finantra: Finantra Capital, Inc.
000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
As to the Buyer: Travelers Acquisition Corporation
000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
with copies to Xxxxxxx X. Xxxxxxx, Esq.
000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
As to the Sellers: The addresses set forth on Schedule 3
As to the Corporation: Travelers Investment Corporation
0000 Xxxxxxx Xxxxxx #X
Xxxxxxxx, XX 00000
with copies to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx, Forward, Xxxxxxxx & Scripps LLP
000 Xxxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
23.3 Expenses: The expenses incurred by the Sellers in
connection with the negotiation and consummation of the transactions
contemplated by this Agreement shall be paid by the Corporation, and such
expenses incurred by the Buyer and Finantra shall be paid by Finantra.
23.4 Assianment: No Party may assign its obligations or rights
under this Agreement without the written consent of the other Parties.
23.5 Modification: There are no other Agreements, promises or
undertakings between the Parties except as specifically set forth herein. No
alteration, change, modification or amendment to this Agreement shall be made
except in writing and signed by the Parties hereto.
23.6 Severability: If any provision or paragraph of this
Agreement is deemed to be unlawful or unenforceable by any court, administrative
agency or statute, law or ordinance, the said provision or paragraph shall be
severed from this Agreement without affecting the enforceability of the
remainder of this Agreement.
30
23.7 Binding Effect: This Agreement shall be binding upon and
inure to the benefit of the respective Parties, their successors and assigns, if
applicable as well as to the heirs and legal representatives of the Parties
hereto, if applicable.
23.8 Entire Agreement: This Agreement and the agreements and
documents referred to herein contain the entire agreement and understanding
between the Parties with respect to the subject matter hereof and supersede all
prior agreements and understandings whether written or oral, relating to such
subject matter in any way.
23.9 Construction: This Agreement shall be construed and
enforced under the laws of the state of California.
23.10 Counterparts: This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
counterparts collectively shall constitute one instrument representing the
Agreement between the Parties.
23.11 Captions and Headings: The captions and headings of each
section or subsection in this Agreement are for convenience of reference only
and shall in no manner or way whatsoever effect the interpretation or meaning of
such section or subsection.
23.12 Exhibits: The exhibits attached hereto together with all
documents incorporated by reference herein form an integral part of this
Agreement and are hereby incorporated herein wherever reference is made to them
to the same extent as if they were set out in full at the point at which such
reference is made.
23.13 Attorney's Fees: The prevailing party in any litigation
arising out of the terms of this Agreement shall be entitled to reimbursement of
reasonable attorney's fees and costs at the trial and appellate court level.
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IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals
this day of October, 1999.
FINANTRA:
FINANTRA CAPITAL, INC., a Delaware corporation
By:
---------------------------
Xxxxxx Press, Chairman
BUYER:
TRAVELERS ACQUISITION CORPORATION, a Florida
corporation
By:
---------------------------
Xxxxxx Press, Chairman
SELLERS:
---------------------------
XXXX XXXXX
---------------------------
XXXXXX XXXXX
XXXXX FAMILY TRUST
By:
------------------------
------------------------
XXXXXXX XXXX
------------------------
X.X. XXXXXX
[Signature page to Stock Purchase Agreement]
32
X.X. XXXXXX VOTING TRUST FBO
XXXXX XXXXX
By:
------------------------
X.X. XXXXXX VOTING TRUST FBO
XXXXX XXXXXX
By:
------------------------
XXXXX XxXXXXX
---------------------------
XXXXX XxXXXXX
XxXXXXX CHILDREN'S TRUST
By:
------------------------
---------------------------
XXX XXXXXXXX
---------------------------
XXXXXXXX XXXXXXXX
XXXXXX & XXXXXXXX X. XXXXX
FAMILY TRUST
By:
------------------------
---------------------------
XXXXXX XXXXXX
---------------------------
XXXXXX XXXXXXXX
[Signature page to Stock Purchase Agreement]
33
XXXX X. & XXXX X. XXXXXX FAMILY
TRUST
By:
------------------------
XXXXX XXXXXX
By:
------------------------
Xxxx Xxxxxx, Special Administrator of the
Estate of Xxxxx Xxxxxx
THE XXXXX XXX XXXXXX-XXXXXXX FAMILY
TRUST
By:
-------------------------
THE XXXXXX XXX XXXXXX FAMILY TRUST
By:
-------------------------
XXXXXX TRUST DTD 3/23/95 (XXX XXXXXX)
By:
--------------------------
CORPORATION:
TRAVELERS INVESTMENT CORPORATION, a
California corporation
By:
--------------------------
Xxxxx Xxxxx, President
[Signature page to Stock Purchase Agreement]
34
