STOCK PURCHASE AGREEMENT BETWEEN VENTURES NATIONAL INCORPORATED AND FARWELL EQUITY PARTNERS LLC Dated as of August 12, 2005
BETWEEN
VENTURES
NATIONAL INCORPORATED
AND
XXXXXXX
EQUITY PARTNERS LLC
Dated
as of August 12, 2005
TABLE
OF
CONTENTS
| Section | Page |
|
ARTICLE
I SALE AND PURCHASE OF
SHARES.........................................................................................................................................................................................................................................................................................
|
1 |
|
1.1
Sale and Purchase of
Shares.........................................................................................................................................................................................................................................
|
1
|
|
ARTICLE
II PURCHASE PRICE AND
PAYMENT.................................................................................................................................................................................................................
|
1 |
|
2.1 Amount
of Purchase
Price............................................................................................................................................................................................................................................
|
1
|
|
ARTICLE
III CLOSING AND
TERMINATION.......................................................................................................................................................................................................................
|
2 |
|
3.1
Closing
Date....................................................................................................................................................................................................................................................................
|
2
|
|
ARTICLE
IV REPRESENTATIONS AND WARRANTIES OF THE
SELLER.....................................................................................................................................................................
|
2 |
|
4.1
Organization and Good
Standing.................................................................................................................................................................................................................................
|
2
|
|
4.2
Authorization of Agreement.
.......................................................................................................................................................................................................................................
|
2
|
|
4.3
Capitalization...................................................................................................................................................................................................................................................................
|
3
|
|
4.4
Corporate
Records.........................................................................................................................................................................................................................................................
|
3
|
|
4.5
Ownership and Transfer of
Shares..............................................................................................................................................................................................................................
|
3
|
|
4.6
Ownership and Transfer of
Shares..............................................................................................................................................................................................................................
|
3
|
|
4.7
Other Representations and
Warranties......................................................................................................................................................................................................................
|
4
|
|
ARTICLE
V REPRESENTATIONS AND WARRANTIES OF
PURCHASER.....................................................................................................................................................................
|
4 |
|
5.1
Organization and Good
Standing................................................................................................................................................................................................................................
|
4
|
|
5.2
Authorization of
Agreement........................................................................................................................................................................................................................................
|
4
|
|
5.3
Litigation.........................................................................................................................................................................................................................................................................
|
5
|
|
5.4
Financial Statements; SEC
Reports.............................................................................................................................................................................................................................
|
5
|
|
5.5
Financial Statements; SEC
Reports.............................................................................................................................................................................................................................
|
5
|
|
5.6
No Undisclosed
Liabilities............................................................................................................................................................................................................................................
|
6
|
|
5.7
Absence of Certain
Developments..............................................................................................................................................................................................................................
|
6
|
|
5.8
Capitalization; Issuance of
Shares...............................................................................................................................................................................................................................
|
8
|
|
5.9
Financial
Advisors.........................................................................................................................................................................................................................................................
|
8
|
|
5.10
Patriot
Act.......................................................................................................................................................................................................................................................................
|
8
|
|
ARTICLE
VI CONDITIONS TO
CLOSING...............................................................................................................................................................................................................................
|
9 |
|
6.1 Conditions
Precedent to Obligations of
Purchaser....................................................................................................................................................................................................
|
9
|
|
6.2 Conditions
Precedent to Obligations of the
Seller.....................................................................................................................................................................................................
|
10
|
|
ARTICLE
VII DOCUMENTS TO BE
DELIVERED..................................................................................................................................................................................................................
|
10 |
|
7.1 Documents
to be Delivered by the
Seller....................................................................................................................................................................................................................
|
10
|
|
7.2 Documents
to be Delivered by the
Purchaser............................................................................................................................................................................................................
|
11
|
|
ARTICLE
VIII
MISCELLANEOUS............................................................................................................................................................................................................................................
|
11 |
|
8.1
Payment of Sales, Use or Similar
Taxes.......................................................................................................................................................................................................................
|
11
|
|
8.2
Survival of Representations and
Warranties.............................................................................................................................................................................................................
|
11
|
|
8.3
Expenses..........................................................................................................................................................................................................................................................................
|
11
|
|
8.4
Specific
Performance......................................................................................................................................................................................................................................................
|
11
|
|
8.5
Further
Assurances.......................................................................................................................................................................................................................................................
|
12
|
|
8.6
Submission to Jurisdiction; Consent to Service of
Process....................................................................................................................................................................................
|
12
|
|
8.7
Entire Agreement; Amendments and Waivers.
........................................................................................................................................................................................................
|
12
|
|
8.8
Governing
Law...............................................................................................................................................................................................................................................................
|
13
|
|
8.9
Table of Contents and
Heading...................................................................................................................................................................................................................................
|
13
|
|
8.10
Notices.............................................................................................................................................................................................................................................................................
|
13
|
|
8.11 Severability......................................................................................................................................................................................................................................................................
|
14
|
|
8.12 Binding
Effect;
Assignment.........................................................................................................................................................................................................................................
|
14
|
|
8.13
Third Party
Beneficiary..................................................................................................................................................................................................................................................
|
14
|
i
STOCK
PURCHASE AGREEMENT, dated as of August ___, 2005 (the “Agreement”), between
Ventures National Incorporated, a corporation existing under the laws of the
State of Utah (the “Purchaser”), and Xxxxxxx Equity Partners LLC., a Delaware
limited liability company (the “Seller”).
W
I T
N E S S E T H:
WHEREAS,
the Seller owns 1,000 shares of common stock, par value $0.01 (the “Shares”), of
Oblio Telecom, Inc., a corporation existing under the laws of the State of
Delaware, which Shares constitute all of the issued and outstanding shares
of
capital stock of the Company;
WHEREAS,
the Company, immediately prior to the completion of the transaction hereunder,
has acquired substantially all of the assets of Oblio Telecom L.L.P., a Texas
limited liability partnership (“Oblio”), pursuant to that certain Asset Purchase
Agreement dated July 27, 2005 (the “Purchase Agreement”) between the Seller, the
Company, Oblio, and Xxxxx Xxxxxx and Xxxx Xxxxxxxxxxx (together, the “Owners”);
and
WHEREAS,
the Seller desires to sell to Purchaser, and the Purchaser desires to purchase
from the Seller, the Shares for the purchase price and upon the terms and
conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter contained, the parties hereby agree as
follows:
ARTICLE
I
SALE
AND
PURCHASE OF SHARES
1.1 Sale
and Purchase of Shares.
Upon
the
terms and subject to the conditions contained herein, on the Closing Date the
Seller shall sell, assign, transfer, convey and deliver to the Purchaser, and
the Purchaser shall purchase from the Seller, the Shares. The purchase and
sale
of the Shares pursuant to this Agreement shall be effective as of the close
of
business on the Closing Date (the "Effective Time").
ARTICLE
II
PURCHASE
PRICE AND PAYMENT
2.1 Amount
of Purchase Price. The
purchase price for the Shares shall be the issuance and delivery to the Seller
of 66,000,000 shares of Purchaser’s common stock, par value $0.001 (the
“
Purchaser Shares”).
ARTICLE
III
CLOSING
AND TERMINATION
3.1 Closing
Date. Subject
to the satisfaction of the conditions set forth in Sections 7.1 and 7.2 hereof
(or the waiver thereof by the party entitled to waive that condition), the
closing of the sale and purchase of the Shares provided for in Section 1.1
hereof (the "Closing") shall take place at the offices of Sichenzia Xxxx
Xxxxxxxx Xxxxxxx LLP located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx
00000 (or at such other place as the parties may designate in writing) on the
date first above written or on such other date as the Seller and the Purchaser
may determine. The date on which the Closing shall be held is referred to in
this Agreement as the "Closing Date
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller hereby represents and warrants to the Purchaser that:
4.1 Organization
and Good Standing. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation as set forth above
and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now conducted. The Company is duly
qualified or authorized to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which it owns or leases real
property and each other jurisdiction in which the conduct of its business or
the
ownership of its properties requires such qualification or authorization, except
where the failure to be so qualified would not have a material adverse effect
on
the business, assets or financial condition of Company taken as a whole
(“Material Adverse Effect”).
4.2 Authorization
of Agreement. The
Seller
has all requisite power, authority and legal capacity to execute and deliver
this Agreement, and each other agreement, document, or instrument or certificate
contemplated by this Agreement or to be executed by the Seller in connection
with the consummation of the transactions contemplated by this Agreement
(together with this Agreement, the "Seller Documents"), and to consummate the
transactions contemplated hereby and thereby. This Agreement has been, and
each
of the Seller Documents will be at or prior to the Closing, duly and validly
executed and delivered by the Seller and (assuming the due orization, execution
and delivery by the other parties hereto and thereto) this Agreement
constitutes, and each of the Seller Documents when so executed and delivered
will constitute, legal, valid and binding obligations of the Seller, forceable
against the Seller in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
nforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
2
4.3 Capitalization.
The
authorized capital stock of the Company consists of 1,000 shares of common
stock, par value $0.01 (the “Common Stock”), all of which are issued and
outstanding, and 10,000 shares of preferred stock, par value $0.01 (the
“Preferred Stock”), none of which have been issued. All of the issued and
outstanding shares of Common Stock were duly authorized for issuance and are
validly issued, fully paid and non-assessable.
4.4 Corporate
Records.
(a) The
Seller has delivered to the Purchaser true, correct and complete copies of
the
certificate of incorporation (certified by the Secretary of the State of
Delaware) and by-laws (certified by the Company’s secretary, assistant secretary
or other appropriate officer) of the Company.
(b) The
minute books of the Company previously made available to the Purchaser contain
complete and accurate records of all meetings and accurately reflect all other
corporate action of the stockholders and board of directors (including
committees thereof) of the Company. The stock certificate books and stock
transfer ledgers of the Company previously made available to the Purchaser
are
true, correct and complete.
4.5 Conflicts;
Consents of Third Parties.
(a) None
of
the execution and delivery by the Seller, the Seller Documents, the consummation
of the transactions contemplated hereby or thereby, or compliance by the Seller
with any of the provisions hereof or thereof will (i) conflict with, or result
in the breach of, any provision of the certificate of incorporation or by-laws
of the Company; (ii) conflict with, violate, result in the breach or termination
of, or constitute a default under any note, bond, mortgage, indenture, license,
agreement or other instrument or obligation to which the Company is a party
or
by which any of them or any of their respective properties or assets is bound;
(iii) violate any statute, rule, regulation, order or decree of any governmental
body or authority by which the Company is bound; or (iv) result in the creation
of any lien, charge or encumbrance or any kind or nature (“Lien”) upon the
properties or assets of the Company except, in case of clauses (ii), (iii)
and
(iv), for such violations, breaches or defaults as would not, individually
or in
the aggregate, have a Material Adverse Effect.
(b) Except
as
set forth in Schedule 4.5, no consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification to, any person,
entity or governmental body is required on the part of the Seller or the Company
in connection with the execution and delivery of the Seller Documents, or the
compliance by the Seller or the Company as the case may be, with any of the
provisions hereof or thereof.
4.6 Ownership
and Transfer of Shares.The Seller
is
the record and beneficial owner of the Shares, free and clear of any and all
Liens. The Seller has the power and authority to sell, transfer, assign and
deliver such Shares as provided in this Agreement, and such delivery will convey
to the Purchaser good and marketable title to such Shares, free and clear of
any
and all liens.
3
4.7 Other
Representations and Warranties.
The
Seller, with Oblio’s and the Owners’ consent, herewith repeats all
representations and warranties made by Oblio and the Owners set forth in
Sections 3.6 through 3.28 of the Purchase Agreement which representations and
warranties are hereby incorporated by reference to the Purchase Agreement and
which, under the terns of the Purchase Agreement, may be relied upon by
Purchaser as though made by Oblio and the Owners herein. In case of a breach
of
such representations and warranties, Purchaser shall be entitled exclusively
to
the remedies against the Seller, Oblio and the Owners afforded to the Seller
under the Purchase Agreement, including, without limitation, Article VIII
thereof. Purchaser shall have no remedies against Oblio and the Owners
hereunder.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
5.1 Organization
and Good Standing.
The
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Utah upon filing of its annual reports as
required by Utah law.
5.2 Authorization
of Agreement.
The
Purchaser has full corporate power and authority to execute and deliver this
Agreement and each other agreement, document, instrument or certificate
contemplated by this Agreement or to be executed by the Purchaser in connection
with the consummation of the transactions contemplated hereby and thereby
(together with such other documents, the “Purchaser Documents”), and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance by the Purchaser of this Agreement and each Purchaser
Document have been duly authorized by all necessary corporate action on behalf
of the Purchaser. This Agreement has been, and each Purchaser Document will
be
at or prior to the Closing, duly executed and delivered by the Purchaser and
(assuming the due authorization, execution and delivery by the other parties
hereto and thereto) this Agreement constitutes, and each Purchaser Document
when
so executed and delivered will constitute, legal, valid and binding obligations
of the Purchaser, enforceable against the Purchaser in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in
equity).
4
5.3 Conflicts;
Consents of Third Parties.
(a) Neither
of the execution and delivery by the Purchaser of the Purchaser Documents,
nor
the compliance by the Purchaser with any of the provisions hereof or thereof
will (i) conflict with, or result in the breach of, any provision of the
certificate of incorporation or by-laws of the Purchaser, (ii) conflict with,
violate, result in the breach of, or constitute a default under any note, bond,
mortgage, indenture, license, agreement or other obligation to which the
Purchaser is a party or by which the Purchaser or its properties or assets
are
bound or (iii) violate any statute, rule, regulation, order or decree of any
governmental body or authority by which the Purchaser is bound, except, in
the
case of clauses (ii) and (iii), for such violations, breaches or defaults as
would not, individually or in the aggregate, have a material adverse effect
on
the business, properties, results of operations, prospects, conditions
(financial or otherwise) of the Purchaser and its subsidiaries, taken as a
whole.
(b) No
consent, waiver, approval, order, permit or authorization of, or declaration
or
filing with, or notification to, any person or governmental body is required
on
the part of the Purchaser in connection with the execution and delivery of
this
Agreement or the Purchaser Documents or the compliance by Purchaser with any
of
the provisions hereof or thereof.
5.4 Litigation.
There
are no Legal Proceedings pending or, to the best knowledge of the Purchaser,
threatened that are reasonably likely to prohibit or restrain the ability of
the
Purchaser to enter into this Agreement or consummate the transactions
contemplated hereby.
5.5 Financial
Statements; SEC Reports.
(a) The
Purchaser has delivered to the Seller copies of (i) the audited consolidated
balance sheets of the Purchaser as at August 31, 2004 and 2003 and the related
audited consolidated statements of income and of cash flows of the Purchaser
for
the fiscal years then ended and (ii) the unaudited but reviewed consolidated
balance sheet of the Purchaser as at February 28, 2005 and the related
consolidated statements of income and cash flows of the Purchaser for the
six-month period then ended (such audited and unaudited statements, including
the related notes and schedules thereto, are referred to herein as the
“Purchaser Financial Statements”). Each of the Purchaser Financial Statements is
complete and correct in all material respects, will be prepared in accordance
with GAAP (subject to normal year-end adjustments in the case of the unaudited
statements) and in conformity with the practices consistently applied by the
Purchaser without modification of the accounting principles used in the
preparation thereof and will present fairly the financial position, results
of
operations and cash flows of the Purchaser as at the dates and for the periods
indicated.
For
the
purposes hereof, the unaudited but reviewed consolidated balance sheet of the
Purchaser as at February 28, 2005 is referred to as the “Purchaser Balance
Sheet” and February 28, 2005 is referred to as the “Purchaser Balance Sheet
Date”.
5
(b) The
Purchaser has filed all reports required to be filed by it under the Securities
Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act
of 1934, as amended (the “Exchange Act”) including pursuant to Section 13(a) or
15(d) thereof, for the two years preceding the date hereof (or such shorter
period as the Company was required by law to file such material) (the foregoing
materials, including the exhibits thereto, being collectively referred to herein
as the “SEC Reports”) on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC Reports complied
in
all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to
be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading.
5.6 No
Undisclosed Liabilities.
The
Purchaser has no indebtedness, obligations or liabilities of any kind (whether
accrued, absolute, contingent or otherwise, and whether due or to become due)
that would have been required to be reflected in, reserved against or otherwise
described on the Purchaser Balance Sheet or in the notes thereto in accordance
with GAAP which was not fully reflected in, reserved against or otherwise
described in the Purchaser Balance Sheet or the notes thereto or was not
incurred in the ordinary course of business consistent with past practice since
the Purchaser Balance Sheet Date.
5.7 Absence
of Certain Developments.
Except
as expressly contemplated by this Agreement or as set forth on Schedule 4.7,
since the Purchaser Balance Sheet Date:
(i) there
has
not been an event which had a Material Adverse Effect on Purchaser nor has
there
occurred any event which is reasonably likely to result in a Material Adverse
Effect on Purchaser;
(ii) there
has
not been any damage, destruction or loss, whether or not covered by insurance,
with respect to the property and assets of the Seller having a replacement
cost
of more than $50,000 for any single loss or $100,000 for all such
losses;
(iii) there
has
not been any declaration, setting aside or payment of any dividend or other
distribution in respect of any shares of capital stock of the Seller or any
repurchase, redemption or other acquisition by the Seller of any outstanding
shares of capital stock or other securities of, or other ownership interest
in,
the Seller;
(iv) the
Purchaser has not awarded or paid any bonuses to employees of the Purchaser
with
respect to the fiscal year ended 2004, except to the extent accrued on the
Purchaser Balance Sheet or entered into any employment, deferred compensation,
severance or similar agreement (nor amended any such agreement) or agreed to
increase the compensation payable or to become payable by it to any of the
Purchaser’s directors, officers, employees, agents or representatives or agreed
to increase the coverage or benefits available under any severance pay,
termination pay, vacation pay, company awards, salary continuation for
disability, sick leave, deferred compensation, bonus or other incentive
compensation, insurance, pension or other employee benefit plan, payment or
arrangement made to, for or with such directors, officers, employees, agents
or
representatives (other than normal increases in the ordinary course of business
consistent with past practice and that in the aggregate have not resulted in
a
material increase in the benefits or compensation expense of the
Purchaser);
6
(v) there
has
not been any change by the Purchaser in accounting or Tax reporting principles,
methods or policies;
(vi)
the
Purchaser has not entered into any transaction or Contract or conducted its
business other than in the ordinary course consistent with past
practice;
(vii) the
Purchaser has not failed to promptly pay and discharge current liabilities
except where disputed in good faith by appropriate proceedings;
(viii) the
Purchaser has not made any loans, advances or capital contributions to, or
investments in, any Person or paid any fees or expenses to the Seller or any
Affiliate of the Seller;
(ix) the
Purchaser has not mortgaged, pledged or subjected to any Lien any of its assets,
or acquired any assets or sold, assigned, transferred, conveyed, leased or
otherwise disposed of any assets of the Seller, except for assets acquired
or
sold, assigned, transferred, conveyed, leased or otherwise disposed of in the
ordinary course of business consistent with past practice;
(x)
the
Purchaser has not discharged or satisfied any Lien, or paid any obligation
or
liability (fixed or contingent), except in the ordinary course of business
consistent with past practice and which, in the aggregate, would not be material
to the Seller;
(xi) the
Purchaser has not canceled or compromised any debt or claim or amended,
canceled, terminated, relinquished, waived or released any Contract or right
except in the ordinary course of business consistent with past practice and
which, in the aggregate, would not be material to the Purchaser;
(xii) the
Purchaser has not made or committed to make any capital expenditures or capital
additions or betterments in excess of $50,000 individually or $200,000 in the
aggregate;
(xiii)
the
Purchaser has not instituted or settled any material legal proceeding;
and
(xiv) the
Purchaser has not agreed to do anything set forth in this Section
5.7.
7
5.8
Capitalization;
Issuance of Shares.
(a) The
authorized capital stock of the Purchaser consists of 950,000,000 shares of
common stock, $.001 par value (“Purchaser Common Stock”), of which 24,749,305
shares are outstanding as of the date hereof. All of the issued and outstanding
shares of Common Stock were duly authorized for issuance and are validly issued,
fully paid and non-assessable.
5.9
Financial
Advisors.
No
person
has acted, directly or indirectly, as a broker, finder or financial advisor
for
the Purchaser in connection with the transactions contemplated by this Agreement
and no person is entitled to any fee or commission or like payment in respect
thereof.
5.10
Patriot
Act.
The
Purchaser certifies that, to the best of the Purchaser’s knowledge, the
Purchaser has not been designated, and is not owned or controlled, by a
“suspected terrorist” as defined in Executive Order 13224. The Purchaser hereby
acknowledges that the Seller seeks to comply with all applicable Laws concerning
money laundering and related activities. In furtherance of those efforts, the
Purchaser hereby represents, warrants and agrees that: (i) none of the cash
or
property owned by the Seller has been or shall be derived from, or related
to,
any activity that is deemed criminal under United States law; and (ii) no
contribution or payment by the Purchaser has, and this Agreement will not,
cause
the Purchaser to be in violation of the United States Bank Secrecy Act, the
United States International Money Laundering Control Act of 1986 or the United
States International Money Laundering Abatement and Anti-Terrorist Financing
Act
of 2001.
8
ARTICLE
VI
CONDITIONS
TO CLOSING
6.1 Conditions
Precedent to Obligations of Purchaser.
The
obligation of the Purchaser to consummate the transactions contemplated by
this
Agreement is subject to the fulfillment, on or prior to the Closing Date, of
each of the following conditions (any or all of which may be waived by the
Purchaser in whole or in part to the extent permitted by applicable
Law):
(a) all
representations and warranties of the Seller contained herein shall be true
and
correct, as of the date hereof;
(b) all
representations and warranties of the Seller contained herein qualified as
to
materiality shall be true and correct, and the representations and warranties
of
the Seller contained herein not qualified as to materiality shall be true and
correct in all material respects, at and as of the Closing Date with the same
effect as though those representations and warranties had been made again at
and
as of that time;
(c) the
Seller shall have performed and complied in all material respects with all
obligations and covenants required by this Agreement to be performed or complied
with by them on or prior to the Closing Date;
(d) the
Purchaser shall have been furnished with certificates (dated the Closing Date
and in form and substance reasonably satisfactory to the Purchaser) executed
by
each Seller certifying as to the fulfillment of the conditions specified in
Sections 6.1(a), 6.1(b) and 6.1(c) hereof;
(e) Certificates
representing the Shares shall have been, or shall at the Closing be, validly
delivered and transferred to the Purchaser, free and clear of any and all
liens;
(f) there
shall not have been or occurred any event causing a Material Adverse Effect
on
the Company;
(g) the
Seller shall have obtained all consents and waivers referred to in Section
4.6
hereof and not otherwise waived by Purchaser, in a form reasonably satisfactory
to the Purchaser, with respect to the transactions contemplated .
(h) no
Legal
Proceedings shall have been instituted or threatened or claim or demand made
against the Seller, the Company, or the Purchaser seeking to restrain or
prohibit or to obtain substantial damages with respect to the consummation
of
the transactions contemplated hereby, and there shall not be in effect any
order
by a governmental body of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the transactions contemplated
hereby;
9
6.2 Conditions
Precedent to Obligations of the Seller.
The
obligations of the Seller to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, prior to or on the Closing Date,
of
each of the following conditions (any or all of which may be waived by the
Seller in whole or in part to the extent permitted by applicable
Law):
(a) all
representations and warranties of the Purchaser contained herein shall be true
and correct as of the date hereof;
(b) all
representations and warranties of the Purchaser contained herein qualified
as to
materiality shall be true and correct, and all representations and warranties
of
the Purchaser contained herein not qualified as to materiality shall be true
and
correct in all material respects, at and as of the Closing Date with the same
effect as though those representations and warranties had been made again at
and
as of that date;
(c) the
Purchaser shall have performed and complied in all material respects with all
obligations and covenants required by this Agreement to be performed or complied
with by Purchaser on or prior to the Closing Date;
(d) the
Seller shall have been furnished with certificates (dated the Closing Date
and
in form and substance reasonably satisfactory to the Seller) executed by the
Chief Executive Officer and Chief Financial Officer of the Purchaser certifying
as to the fulfillment of the conditions specified in Sections 6.2(a), 6.2(b)
and
Section 6.2(c);
(e) there
shall not have been or occurred any event causing a Material Adverse Effect
on
the Purchaser;
(f) no
Legal
Proceedings shall have been instituted or threatened or claim or demand made
against the Purchaser seeking to restrain or prohibit or to obtain substantial
damages with respect to the consummation of the transactions contemplated
hereby, and there shall not be in effect any order by a governmental body of
competent jurisdiction restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby.
ARTICLE
VII
DOCUMENTS
TO BE DELIVERED
7.1 Documents
to be Delivered by the Seller.
At
the
Closing, the Seller shall deliver, or cause to be delivered, to the Purchaser
the following:
(a) stock
certificates representing the Shares, duly endorsed in blank or accompanied
by
stock transfer powers and with all requisite stock transfer tax stamps attached;
10
(b) the
certificates referred to in Section 6.1(d) hereof; and
(c) such
other documents as the Purchaser shall reasonably request.
7.2 Documents
to be Delivered by the Purchaser.
At
the
Closing, the Purchaser shall deliver to the Seller the following:
(a) The
Purchaser Shares;
(b) the
certificates referred to in Section 6.2(d) hereof;
(c) such
other documents as the Seller shall reasonably request.
ARTICLE
VIII
MISCELLANEOUS
8.1 Payment
of Sales, Use or Similar Taxes.
All
sales, use, transfer, intangible, recordation, documentary stamp or similar
Taxes or charges, of any nature whatsoever, applicable to, or resulting from,
the transactions contemplated by this Agreement shall be borne by the
Seller.
8.2 Survival
of Representations and Warranties.
The
parties hereto hereby agree that the representations and warranties contained
in
this Agreement or in any certificate, document or instrument delivered in
connection herewith, shall survive the execution and delivery of this Agreement,
and the Closing hereunder, regardless of any investigation made by the parties
hereto; provided, however, that any claims or actions with respect thereto
shall
terminate unless within twenty four (24) months after the Closing Date written
notice of such claims is given to the Seller or such actions are
commenced.
8.3 Expenses.
Except
as
otherwise provided in this Agreement, the Seller and the Purchaser shall each
bear its own expenses incurred in connection with the negotiation and execution
of this Agreement and each other agreement, document and instrument contemplated
by this Agreement and the consummation of the transactions contemplated hereby
and thereby, it being understood that in the event the transaction is
consummated the Company shall not bear any of such costs and expenses; provided,
however, that the costs associated with the audit of the Company in connection
with the transaction contemplated hereby shall be paid by the Purchaser as
a
post-transaction expense.
8.4 Specific
Performance.
The
Seller acknowledges and agrees that the breach of this Agreement would cause
irreparable damage to the Purchaser and that the Purchaser will not have an
adequate remedy at law. Therefore, the obligations of the Seller under this
Agreement, including, without limitation, the Seller’s obligation to sell the
Shares to the Purchaser, shall be enforceable by a decree of specific
performance issued by any court of competent jurisdiction, and appropriate
injunctive relief may be applied for and granted in connection therewith. Such
remedies shall, however, be cumulative and not exclusive and shall be in
addition to any other remedies which any party may have under this Agreement
or
otherwise.
11
8.5 Further
Assurances.
The
Seller and the Purchaser each agree to execute and deliver such other documents
or agreements and to take such other action as may be reasonably necessary
or
desirable for the implementation of this Agreement and the consummation of
the
transactions contemplated hereby.
8.6 Submission
to Jurisdiction; Consent to Service of Process.
(a) The
parties hereto hereby irrevocably submit to the non-exclusive jurisdiction
of
any federal or state court located within the State of Delaware over any dispute
arising out of or relating to this Agreement or any of the transactions
contemplated hereby and each party hereby irrevocably agrees that all claims
in
respect of such dispute or any suit, action proceeding related thereto may
be
heard and determined in such courts. The parties hereby irrevocably waive,
to
the fullest extent permitted by applicable Law, any objection which they may
now
or hereafter have to the laying of venue of any such dispute brought in such
court or any defense of inconvenient forum for the maintenance of such dispute.
Each of the parties hereto agrees that a judgment in any such dispute may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Each
of
the parties hereto hereby consents to process being served by any party to
this
Agreement in any suit, action or proceeding by the mailing of a copy thereof
in
accordance with the provisions of Section 8.10.
8.7 Entire
Agreement; Amendments and Waivers.
This
Agreement (including the schedules and exhibits hereto) represents the entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof and can be amended, supplemented or changed, and any provision
hereof can be waived, only by written instrument making specific reference
to
this Agreement signed by the party against whom enforcement of any such
amendment, supplement, modification or waiver is sought. No action taken
pursuant to this Agreement, including without limitation, any investigation
by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representation, warranty, covenant
or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further
or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise
of
any other right, power or remedy. All remedies hereunder are cumulative and
are
not exclusive of any other remedies provided by law.
12
8.8 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware.
8.9 Table
of Contents and Headings.
The
table
of contents and section headings of this Agreement are for reference purposes
only and are to be given no effect in the construction or interpretation of
this
Agreement.
8.10 Notices.
All
notices and other communications under this Agreement shall be in writing and
shall be deemed given when delivered by hand, overnight delivery or mailed
by
certified mail, return receipt requested, to the parties (and shall also be
transmitted by facsimile to the persons receiving copies
thereof) at the following addresses (or to such other address as a party may
have specified by notice given to the other party pursuant to this
provision):
|
|
(a) Purchaser:
|
Ventures-National
Incorporated
00000
Xxx
Xxxx Xxxxxxx Xxxx.
Xxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxx, Chairman
Phone:
000-000-0000
Fax: 000-000-0000
Copy
to:
Xxxxxx
X.
Xxxx, Esq.
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
|
(b) Seller:
|
0000
Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxx, Managing Member
Phone:
000-000-0000
Fax: 000-000-0000
13
8.11 Severability.
If
any
provision of this Agreement is invalid or unenforceable, the balance of this
Agreement shall remain in effect.
8.12 Binding
Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Nothing in this Agreement
shall create or be deemed to create any third party beneficiary rights in any
person or entity not a party to this Agreement except as provided below. No
assignment of this Agreement or of any rights or obligations hereunder may
be
made by either the Seller or the Purchaser (by operation of law or otherwise)
without the prior written consent of the other parties hereto and any
attempted assignment
without the required consents shall be void; provided, however, that the
Purchaser may assign this Agreement and any or all rights or obligations
hereunder (including, without limitation, the Purchaser's rights to seek
indemnification hereunder) to any Affiliate of the Purchaser. Upon any such
permitted assignment, the references in this Agreement to the Purchaser shall
also apply to any such assignee unless the context otherwise
requires.
8.13 Third
Party Beneficiary.
The
parties hereto agree that Oblio and the Owners are third party beneficiaries
of
the Purchaser’s representations and warranties made in Article V hereof and that
they shall have the right to rely upon same as if they were made in the final
and executed version of the Purchase Agreement. Breach of any such
representations and warranties by the Purchaser will entitle them to
indemnification under Article VIII of the Purchase Agreement.
[intentionally
blank]
14
VENTURES
NATIONAL INCORPORATED
By: /s/_____________________________
Xxxxx
Xxxxx, Chairman
XXXXXXX
EQUITY PARTNERS LLC.
By:
/s/______________________________
Xxxxx
Xxxxx, Managing Member
As
to
Section 4.7 only:
OBLIO
TELECOM L.L.P.
By:
/s/_______________________________
/s/___________________________________
XXXXX
XXXXXX
/s/____________________________________
XXXX
XXXXXXXXXXX
