MEMBERSHIP INTEREST PURCHASE AGREEMENT
This MEMBERSHIP INTEREST PURCHASE AGREEMENT (this "AGREEMENT") is entered
into as of the "Effective Date" set forth below, by and between VMdirect,
L.L.C., a Nevada limited liability company (the "COMPANY"), and the "Purchaser"
set forth below.
Effective Date:
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Name: ("PURCHASER")
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Address:
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Tel No.:
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Fax No.:
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This Agreement is made with reference to the following facts:
A. Articles of Organization for the Company, then named Xxx Xxxxx,
L.L.C., a limited liability company under the laws of the State of Nevada, were
filed with the Nevada Secretary of State on May 18, 2001.
B. An Amendment to the Articles of Organization of the Company,
changing the name of the Company to VMdirect, L.L.C., was filed with the Nevada
Secretary of State on December 6, 2001.
C. Effective as of May 18, 2001, the Managers and initial Members
entered into that certain Operating Agreement (the "OPERATING AGREEMENT"), a
copy of which is attached hereto as Exhibit A, which governs the rights,
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preferences, privileges and restrictions of the Members and Economic Interest
Owners of the Company.
D. Pursuant to the terms and conditions of this Agreement, the
Purchaser desires to purchase, and the Company desires to sell to the Purchaser,
the number of Class A Units of the Company (the "CLASS A UNITS"), evidencing
Membership Interests in the Company, set forth on the signature page hereto (the
"PURCHASER INTERESTS").
NOW, THEREFORE, in consideration of the foregoing premises, the terms,
covenants, and conditions hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, with the intent to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
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The capitalized terms used in this Agreement shall, unless otherwise noted
or unless the context otherwise requires, have the meanings assigned to such
terms in the Operating Agreement. In addition, for purposes of this Agreement,
the terms identified below shall have the meanings assigned to them as follows:
1.1 "GOVERNMENTAL AUTHORITY" means any federal, state or local
government or regulatory agency, authority, commission, court or
instrumentality, domestic or foreign.
1.2 "LIEN" means any charge, claim, encumbrance, condition, equitable
interest, lien, option, pledge, security interest, right of first refusal, or
restriction of any kind, including any restriction on use, voting, transfer,
receipt of income, or exercise or any other attribute of ownership.
ARTICLE 2
SALE OF CLASS A UNITS
2.1 SALE OF THE CLASS A UNITS. Upon the terms and subject to the
conditions set forth in this Agreement, Purchaser hereby purchases from Company,
and Company hereby sells, transfers, conveys and assigns to Purchaser, the
Purchaser Interests, at the price per Class A Unit, and for the aggregate
purchase price (the "PURCHASE PRICE"), set forth on the signature page hereto.
2.2 CLOSING. The Closing shall take place at such location, date and
time as may be agreed upon between the Company and Purchaser (such closing being
called the "CLOSING" and such date and time being called the "CLOSING DATE").
At the Closing, the Company shall issue and deliver to Purchaser a certificate
or certificates in definitive form, registered in the name of Purchaser,
representing the Class A Units being purchased by Purchaser at the Closing. As
payment in full for the Class A Units being purchased by Purchaser under this
Agreement, and against delivery of the certificate or certificates representing
such Class A Units as aforesaid, on the Closing Date, Purchaser shall pay and/or
deliver to the Company by wire transfer, or by such other method as may be
reasonably acceptable to the Company, immediately available funds in the amount
of the Purchase Price.
2.3 CLASS A UNITS. The Managers of the Company have authorized the
issuance of the Class A Units and have designated that the Class A Units shall
evidence Membership Interests of the Company having all of the rights,
preferences, privileges and restrictions of such Membership Interests as are set
forth in the Operating Agreement. Immediately following the Closing, Purchaser
shall be deemed a Member under the Operating Agreement, and shall have all of
the rights, and shall be subject to all of the obligations, applicable to such
Interest Owner thereunder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COMPANY
Company hereby represents and warrants to Purchaser that, as of the
Effective Date:
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3.1 AUTHORIZATION; NECESSARY ACTIONS; BINDING EFFECT. Company has the
full legal right, authorization, and capacity to execute and deliver, and to
perform its obligations under, this Agreement. Company has taken all action
necessary to execute, deliver and perform its obligations under this Agreement.
This Agreement constitutes the valid obligation of Company and is legally
binding on and enforceable against Company in accordance with its respective
terms except as such enforceability may be limited by (i) bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights, and
(ii) general principles of equity relating to the availability of equitable
remedies (regardless of whether any applicable agreements are sought to be
enforced in a proceeding at law or in equity).
3.2 ORGANIZATION AND STANDING. Company is a limited liability company
validly existing and in good standing under the laws of the State of Nevada.
3.3 TITLE TO PURCHASER INTERESTS. Company has good title to the
Purchaser Interests free and clear of any and all Liens.
3.4 NO CONFLICT OR VIOLATION; CONSENTS. The execution and delivery by
Company of this Agreement and the other documents and agreements contemplated
hereby, and the performance by Company of its obligations hereunder and
thereunder do not and will not: (i) violate or conflict with any provision of
the articles of organization, operating agreement, or similar charter documents
of Company; or (ii) violate any provision of law, or any order, judgment or
decree of any court or other Governmental Authority known to Company. No
consent, waiver, approval or authorization of any third party is required to be
obtained on the part of Company in connection with the sale of the Purchaser
Interests.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Company that, as of the
Effective Date:
4.1 AUTHORIZATION; NECESSARY ACTIONS; BINDING EFFECT. Purchaser has
the full legal right, authorization, and capacity to execute and deliver, and to
perform its obligations under, this Agreement. Purchaser has taken all action
necessary to execute, deliver and perform its obligations under this Agreement.
This Agreement constitutes the valid obligation of Purchaser and is legally
binding on and enforceable against Purchaser in accordance with its respective
terms except as such enforceability may be limited by (i) bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights, and
(ii) general principles of equity relating to the availability of equitable
remedies (regardless of whether any applicable agreements are sought to be
enforced in a proceeding at law or in equity).
4.2 NO CONFLICT OR VIOLATION; CONSENTS. The execution and delivery by
Purchaser of this Agreement and the other documents and agreements contemplated
hereby, and the performance by Purchaser of its obligations hereunder and
thereunder do not and will not: (i) violate or conflict with any provision of
the articles of organization, operating agreement, or similar charter documents
of Purchaser; or (ii) violate any provision of law, or any order, judgment or
decree of any court or other Governmental Authority known to Purchaser. No
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consent, waiver, approval or authorization of any third party is required to be
obtained on the part of Purchaser in connection with the purchase of the
Purchaser Interests.
4.3 INVESTMENT REPRESENTATIONS.
(a) Purchaser is an "accredited investor" within the meaning of Rule
501 of Regulation D promulgated under the Securities Act of 1933, as amended
(the "1933 ACT").
(b) Purchaser is acquiring the Purchaser Interests for its own account,
not as nominee or agent, and not with a view to, or for resale in connection
with, any distribution thereof in any transaction which would be in violation of
the securities laws of the United States or any state thereof. By executing
this Agreement, Purchaser further represents that Purchaser does not presently
have any contract, undertaking, agreement or arrangement with any Person to
sell, transfer or grant participations to such Person or to any third Person,
with respect to any of the Purchaser Interests.
(c) Purchaser understands that the Purchaser Interests have not been
registered under the 1933 Act by reason of a specific exemption therefrom, and
that Purchaser must, therefore, bear the economic risk of such investment
indefinitely, unless the Purchaser Interests are registered under the 1933 Act
or unless an exemption from registration is available. Purchaser further
understands that the Purchaser Interests are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being
acquired in a transaction not involving a public offering and that under such
laws and applicable regulations restricted securities may be resold without
registration under the 1933 Act only in certain limited circumstances, and it
represents that it is familiar with Rule 144 and Rule 144A promulgated under the
1933 Act, as presently in effect, and understands the resale limitations imposed
thereby and by the 1933 Act.
(d) Purchaser acknowledges that it (i) has a pre-existing personal or
business relationship with the Company or any of its Managers or Members, or
(ii) by reason of Purchaser's business or financial experience, it is able to
fend for itself, can bear the economic risk of its investment and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Purchaser Interests.
(e) Purchaser understands that no securities administrator of any state
or any other jurisdiction has made any finding or determination relating to the
fairness of an investment in the Purchaser Interests and that no securities
administrator of any state or any other jurisdiction has recommended or
endorsed, or will recommend or endorse, the offering of the Purchaser Interests.
(f) Purchaser acknowledges that no general solicitation or general
advertising (including communications published in any newspaper, magazine or
other broadcast) has been received by Purchaser and that no public solicitation
or advertisement with respect to the offering of the Purchaser Interests has
been made to Purchaser.
(g) Purchaser has relied solely upon the advice of Purchaser's own tax
and legal advisors with respect to the tax and other legal aspects of the
investment in the Purchaser Interests.
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(h) Purchaser acknowledges that except as expressly stated in Article 3
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of this Agreement, neither the Company nor any officer, director, employee,
agent or representative of the Company have made any representations or
warranties of any kind to Purchaser including representations regarding future
revenues, earnings or profits of the Company, the future value of the Purchaser
Interests, the future capitalization of the Company, the occurrence or timing of
any public offering by the Company, the amount of future business that may be
transacted by the Company or otherwise. Purchaser further understands that the
Company's success in achieving its goals and objectives in the future and
implementing its business plan cannot be predicted and is subject to numerous
factors not within the control of the Company. Purchaser is not purchasing the
Purchaser Interests based upon representations, oral or written, by any person
with respect to the future value of, or income from, the Purchaser Interests, or
the length of time that Purchaser will be required to remain as the owner of the
Purchaser Interests but rather upon an independent examination and judgment as
to the prospects of the Company.
4.4 LEGENDS. It is understood that the certificates evidencing the
Class A Units may bear one or all of the following legends:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE ACT
AND THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION THEREUNDER."
Any other legend required by applicable state securities laws.
4.5 NO BROKER. Purchaser has not retained any broker, agent or finder
in connection with the purchase of the Purchaser Interests contemplated by this
Agreement. Purchaser shall indemnify, hold harmless and defend Company for any
commissions, finder's and other fees and expenses of any such Persons retained
or purportedly retained by Purchaser.
ARTICLE 5
MISCELLANEOUS
5.1 PIGGYBACK REGISTRATION RIGHTS.
(a) Right to Piggyback. If the Company shall determine to register for
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sale any of its Class A Units, or other securities into which such Class A Units
may be converted or exchanged from time to time, for its own account or for the
account of others (each a "PIGGYBACK REGISTRATION"), other than (i) a
registration relating solely to employee benefit plans or securities issued or
issuable to employees, consultants (to the extent the securities owned or to be
owned by such consultants could be registered on Form S-8) or any of their
family members (including a registration on Form S-8), or (ii) a registration
relating solely to a Rule 145 transaction (under
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the 1933 Act), a registration on Form S-4 in connection with a merger,
acquisition, divestiture, reorganization, or similar event, the Company shall
promptly give to the Purchaser written notice thereof (and in no event shall
such notice be given less than ten (10) calendar days prior to the filing of
such registration statement), and shall include in such Piggyback Registration
(and any related qualification under blue sky laws or other compliance) all of
the Purchaser Interests specified in a written request or requests, made within
five (5) calendar days after receipt of such written notice from the Company, by
the Purchaser. However, the Company may, without the consent of the Purchaser,
withdraw such registration statement prior to its becoming effective if the
Company has elected to abandon the proposal to register the securities proposed
to be registered thereby.
(b) Indemnification. The Company will indemnify and hold the Purchaser
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and its directors, officers, shareholders, partners, employees and agents (each,
an "INVESTOR PARTY") harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs, and reasonable attorneys' fees and
costs of investigation (collectively, "LOSSES") that any such Investor Party may
suffer or incur as a result of or relating to any misrepresentation, breach, or
inaccuracy of any representation, warranty, covenant, or agreement made by the
Company in the Piggy Registration, this Agreement, and any other documents
delivered in connection herewith and therewith.
5.2 NOTICES. Any notice, demand or communication required or permitted
to be given by any provision of this Agreement shall be in writing and sent via
hand delivery or overnight courier, charges prepaid, addressed as provided on
the signature page hereto, or to such other address as the parties hereto may
from time to time specify by notice to the other party. Any such notice shall
be deemed to be delivered, given, and received as of the date so received.
5.3 GOVERNING LAW. THE PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEVADA, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
5.4 CONSENT TO JURISDICTION. Each of the parties hereto (a) consents
to submit itself to personal jurisdiction in the Federal and state courts
located in Las Vegas, Nevada, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (c) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than the Federal and state courts located in Las Vegas, Nevada.
5.5 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
5.6 PARTIES IN INTEREST/NO THIRD PARTY BENEFICIARY. Nothing in this
Agreement shall confer any rights, benefits or remedies under or by reason of
this Agreement on any party other than the parties hereto and their respective
successors and assigns.
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5.7 PRONOUNS; STATUTORY REFERENCES. All pronouns and all variations
thereof shall be deemed to refer to the masculine, feminine, or neuter, singular
or plural, as the context in which they are used may require, unless otherwise
expressly provided herein. Any reference to the 1933 Act or state securities
laws include all amendments, modifications or replacements of the specific
sections and provisions concerned.
5.8 HEADINGS. All headings herein are inserted only for convenience
and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement.
5.9 SEVERABILITY. If any provision of this Agreement or the
application of any such provision to any party hereto or circumstance is or
becomes or is deemed invalid, illegal or unenforceable in any jurisdiction, it
will be stricken, but the validity, legality and enforceability of such
provision shall not in any way be affected or impaired thereby in any other
jurisdiction and the remainder of this Agreement or the application of such
provision to Persons or circumstances other than those to which it is held
invalid shall not be affected thereby. To the extent permitted by applicable
law, the parties hereto waive any provision of law that prohibits or renders
void or unenforceable any provision of this Agreement or the application of any
such provision.
5.10 ADDITIONAL DOCUMENTS AND ACTS. Each party hereto agrees to
execute and deliver such additional documents and instruments and to perform
such additional acts as may be reasonably necessary or appropriate to
effectuate, carry out and perform all of the terms, provisions, and conditions
of this Agreement and the transactions contemplated hereby.
5.11 MULTIPLE COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party shall have received a
counterpart signed by the other party hereto. Delivery of a counterpart
signature by facsimile shall constitute delivery of such signature for all
purposes hereunder.
5.12 REMEDIES CUMULATIVE. Except as otherwise provided herein to the
contrary, the remedies under this Agreement are cumulative and shall not exclude
any other remedies to which any Person may be lawfully entitled.
5.13 SURVIVAL. The representations and warranties contained herein
shall not survive the Effective Date.
5.14 ENTIRE AGREEMENT. This Agreement constitutes the complete and
exclusive statement of agreement among the Parties hereto with respect to the
subject matter hereof and replaces and supersedes all prior written and oral
agreements or statements by and among the parties or any of them. With respect
to the subject matter of this Agreement, no representation, statement, condition
or warranty not contained herein shall be binding on the parties hereto or have
any force or effect whatsoever.
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IN WITNESS WHEREOF, the Parties have entered into this Agreement as of
the Effective Date.
COMPANY:
VMDIRECT, L.L.C.
By:
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Xxxxx Xxxxxx, Manager
Address: VMdirect, L.L.C.
0000 Xxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Managers
PURCHASER:
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Number of Class A Units Purchased:
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Price per Class A Unit:
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Total Purchase Price:
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[SIGNATURE PAGE TO MEMBERSHIP INTEREST PURCHASE AGREEMENT.]
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EXHIBIT A
OPERATING AGREEMENT
