STOCK PURCHASE AGREEMENT
Exhibit
1.01
THIS STOCK PURCHASE AGREEMENT,
(the "Agreement") is entered into and effective this 5th day of February
2010, and supersedes any and all other agreements whether in writing or orally
communicated, by and among MSP on Demand a North Carolina LLC, located at 12
Falls, Xxxxxxx Xxxxx, XX, 00000, , (hereinafter collectively referred to as
"SELLER"), and XnE, Inc. a Nevada corporation, located at 00000 Xxxxxx Xxxxx Xx,
Xxxxx 000, Xxx Xxxx Xxxxxxxxxx, XX 00000, (hereinafter referred to as the
"PURCHASER" or the “Company”);
WITNESSETH:
WHEREAS, XnE, Inc. is a
corporation organized in the State of Nevada for the sole purpose of owning and
operating small to medium sized businesses in the United States.
WHEREAS, the Seller is the
sole record owner and holder of an aggregate of one-hundred percent (100%) of
the shares of MSP on Demand.
WHEREAS,
the PURCHASER desires to purchase 60% of MSP on Demand shares and the
SELLER desires to sell, or cause to be sold, the shares, upon the terms and
subject to the conditions herein.
NOW, THEREFORE, in
consideration of the mutual covenants, and agreements contained in this
Agreement, and in order to consummate the purchase and the sale of the shares,
it is hereby agreed as follows:
AGREEMENT:
1. CLOSING.
A. Procedure for
Closing. The closing of the transaction contemplated by this
Agreement shall be held at the offices of XnE, Inc. on or about February 5, 2010
at 5:00 pm PST ("Closing Date") or such other place, date and time as the
parties hereto may otherwise agree.
B. Purchase and Sale of
the Shares. Upon the closing date set forth in this Agreement,
and subject to the terms and conditions hereinafter set forth, the SELLER shall
sell, convey and transfer, or cause to be sold, conveyed or transferred, the
Shares representing 60% of the shares to MSP on Demand on the Closing
Date.
C. Amount and Payment of
Purchase Price. The total consideration for purchase of the
shares and method of payment thereof shall be pursuant to the
following:
(i)
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The
PURCHASER will trade Twenty Five Million (25,000,000.00) Preferred
Convertible to Common Shares for the 60% ownership to MSP on
Demand, LLC.
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(ii)
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The
PURCHASER will vote Xxxxxx Xxxxxxxxx to a seat on the Board of Directors
for XnE.
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(iii)
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The
PURCHASER will pay to have an audit completed for the 2008 and 2009 fiscal
years.
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(iv)
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XnE
will provide One Hundred and Fifty Thousand Dollars ($150,000.00) within
90 days of closing for operating capital to MSP on
Demand.
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(v)
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Any
transactions that are out of the normal day to day operations will be
discussed with the Management of XnE, Inc. and MSP on Demand,
LLC.
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2. REPRESENTATIONS
AND WARRANTIES OF SELLER. SELLER
hereby warrants and represents:
A. Authority Relative to this
Agreement. Except as otherwise stated herein, the SELLER has
full power and authority to execute this Agreement and carry out the
transactions contemplated by it and no further action is necessary by the SELLER
to make this Agreement valid and binding upon SELLER and enforceable against
them in accordance with the terms hereof, or to carry out the actions
contemplated hereby. The execution, delivery and performance of this Agreement
by the SELLER will not:
(i)
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Constitute
a breach or a violation of MSP on Demand’s Articles of Operation, or of
any law, agreement, indenture, deed of trust, mortgage, loan agreement or
other instrument to which it is a party, or by which it is
bound;
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(ii)
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Constitute
a violation of any order, judgment or decree to which it is a party or by
which its assets or properties are bound or affected;
or
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(iii)
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Result
in the creation of any lien, charge or encumbrance upon its assets or
properties, except as stated
herein.
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B. Assets. SELLER
represents that the PURCHASER is entitled to all 60% shares of MSP on Demand,
LLC with no exception.
C. Lawsuits, Liens &
Taxes. SELLER represents that to the best of SELLER’s
knowledge, that neither the SELLER nor MSP on Demand, LLC are currently the
subject of any lawsuit threatened or filed. SELLER shall be solely responsible
for all taxes which may be incurred by SELLER resulting from the receipt of
consideration by SELLER pursuant to this Agreement.
D. Brokerage. The
SELLER has not made any agreement or taken any other action which might cause
anyone to become entitled to a broker's fee or commission as a result of the
transactions contemplated hereunder.
4. REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER. PURCHASER hereby warrants
and represents:
A. Authority Relative to this Agreement
and Ancillary Documents. Except as otherwise stated herein,
the PURCHASER has full power and authority to execute this Agreement, and carry
out the transactions contemplated hereby and thereby and no further action is
necessary by the PURCHASER to make this Agreement valid and binding upon
PURCHASER and enforceable against it in accordance with the terms hereof, or to
carry out the actions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement by the PURCHASER will
not:
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(i)
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Constitute
a breach or a violation of any law, agreement, indenture, deed of trust,
mortgage, loan agreement or other instrument to which it is a party, or by
which it is bound;
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(ii)
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Constitute
a violation of any order, judgment or decree to which it is a party or by
which its assets or properties are bound or affected;
or
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(iii)
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Result
in the creation of any lien, charge or encumbrance upon its assets or
properties except as stated herein.
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B. Brokerage. The
PURCHASER has not made any agreement or taken any other action which might cause
anyone to become entitled to a broker's fee or commission as a result of the
transactions contemplated hereunder.
C. Taxes. PURCHASER
shall be solely responsible for all taxes which may be incurred by PURCHASER
resulting from the receipt of consideration by PURCHASER pursuant to this
Agreement.
5. EXPENSES. Each of the
parties hereto shall pay its own expense in connection with this Agreement and
the transactions contemplated hereby, including the fees and expenses of its
counsel and its certified public accountants and other experts.
6. CLOSING
DELIVERIES. At the Closing, the deliveries hereinafter
specified shall be made by the respective parties hereto, in order to consummate
the transactions contemplated hereby. A best effort shall be made by
both parties regarding deliveries by the Closing date or such reasonable time
thereafter.
A. Deliveries by SELLER. SELLER
shall deliver or caused to be delivered to PURCHASER:
(i)
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Shares,
and any and all other instruments of conveyance and transfer as required
by Section l A of this Agreement;
and
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(ii)
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Copies
of all third party consents necessary to consummate the transaction
contemplated herein.
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B. Deliveries by
PURCHASER. PURCHASER shall deliver or caused to be delivered
to SELLER:
(i)
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The
Twenty-Five Million (25,000,000) Preferred Convertible to Common Shares,
and any and all other instruments of conveyance and transfer as required
by Section 1(B) of this Agreement;
and
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(ii)
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All
third party consents necessary to consummate the transaction contemplated
herein.
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7. GENERAL.
A. Survival of Representations and
Warranties. Each of the parties to this Agreement covenants and agrees
that its respective representations, warranties, covenants and statements and
agreements contained in this Agreement and the exhibits hereto, and in any
documents delivered in connection herewith, shall survive the Closing Date
indefinitely. Except agreements between the PURCHASER and certain individual
members of SELLER, and as set forth in this Agreement, the exhibits hereto or in
the documents and papers delivered in connection herewith, there are no other
agreements, representations, warranties or covenants by or among the parties
hereto with respect to the subject matter hereof.
XnE, Inc. --
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B. Waivers. No action taken
pursuant to this Agreement, including any investigation by or on behalf of any
party shall be deemed to constitute a waiver by the party taking such action or
compliance with any representation, warranty, covenant or agreement contained
herein, therein and in any documents delivered in connection herewith or
therewith. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
C. Notices. All notices,
requests, demands and other communications, which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered or mailed, first class mail, postage prepaid to the addresses
first indicated in this Agreement.
D. Entire Agreement. This
Agreement (including all documents and papers delivered pursuant hereto and any
written amendments hereof executed by the parties hereto) constitutes the entire
agreement and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter
hereof.
E. Sections and Other Headings.
The section and other headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
F. Governing Law. This Agreement
and all transactions contemplated hereby, shall be governed by, construed and
enforced in accordance with the laws of the State of California. The parties
herein waive trial by jury and agree to submit to the personal jurisdiction and
venue of a court of subject matter jurisdiction located in Orange County,
California. In the event that litigation results from or arises out
of this Agreement or the performance thereof, the parties agree to reimburse the
prevailing party's reasonable attorney's fees, court costs, and all other
expenses, whether or not taxable by the court as costs, in addition to any other
relief to which, the prevailing party may be entitled.
G. Contractual Procedures. Unless
specifically disallowed by law, should litigation arise hereunder, service of
process therefore, may be obtained through certified mail, return receipt
requested; the parties hereto waiving any and all rights they may have to object
to the method by which service was perfected.
H. Confidentiality and
Non-Disclosure: Except to the extent required by law, without the prior
written consent, the undersigned will not make, and will each direct its
representatives not to make, directly or indirectly, any public comment,
statement, or communication with respect to, or to disclose or permit the
disclosure of the existence of this transaction prior to closing.
I. Amendment and Waiver. The
parties may by mutual agreement amend this Agreement in any respect, and any
party, as to such party, may (a) extend the time for the performance of any of
the obligations of any other party, and (b) waive: (i) any inaccuracies in
representations by any other party, (ii) compliance by any other party with any
of the agreements contained herein and performance of any obligations by such
other party, and (iii) the fulfillment of any condition that is precedent to the
performance by such party of any of its obligations under this Agreement. To be
effective, any such amendment or waiver must be in writing and be signed by the
party against whom enforcement of the same is sought.
K. Counterparts. This
Agreement may be executed in one or more counterparts, each of whom shall for
all purposes are deemed to be an original and all of which shall constitute one
instrument.
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IN WITNESS WHEREOF, this
Agreement has been executed by each of the individual parties hereto, on the
date so indicated, with the effective date as first above written.
Seller: By: Xxxxxx Xxxxxxxxx Date 2 - 5-
10
Purchaser: XnE, Inc.
By: Xxxxxxx Xxxxxxxx Date 0 - 0-
00
Xxxxx Xxxxxxxx
Agreement
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