EXHIBIT 10.75
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made as of the 9th
day of August, 2001 by and between Heartsoft, Inc., a Delaware corporation (the
"Company"), and Xxxxx & Xxxxxxx, A Professional Corporation (the "Purchaser").
WHEREAS, in exchange for a credit against certain legal fees and
expenses incurred or to be incurred by the Company and payable to the
Purchaser in the amount of $ (the "Legal Fees") as more fully described
in a letter agreement of even date herewith between the Company and the
Purchaser (the "Letter Agreement"), the Company desires to issue the Shares
(as defined below) to the Purchaser; and
WHEREAS, subject to the terms of this Agreement and the Letter Agreement,
Purchaser is willing to accept the Shares in full satisfaction and payment of
the Legal Fees.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF COMMON STOCK.
1.1 SALE AND ISSUANCE OF COMMON STOCK. The Purchaser hereby
agrees to acquire, and the Company hereby agrees to sell and issue to the
Purchaser, shares of the Company's common stock, par value $.0005 per
share (the "Shares"), at a purchase price of U.S. $ per share, for a
total purchase price of U.S. $ (the "Purchase Price"), payable as
provided in Section 1.2 below. Contemporaneously with the execution and
delivery hereof, the Company shall deliver to the Purchaser a duly executed
stock certificate evidencing the Shares.
1.2 CONSIDERATION. Contemporaneously with the execution and
delivery hereof, and against delivery of the certificate representing the
Shares as provided above, the Purchaser shall enter on its books and records a
credit to the account of the Company in the amount of the Legal Fees (and such
fees thereby shall be deemed to be paid in full). The entry of such credit
shall constitute payment in full of the Purchaser Price hereunder.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Purchaser as follows:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would have a
material adverse effect on its business or properties.
2.2 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the performance of
all obligations of the Company hereunder and the authorization, issuance and
delivery of the Shares has been taken, and this Agreement constitutes a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
2.3 VALID ISSUANCE OF SECURITIES. The Shares that are being
issued to the Purchaser, when issued, sold and delivered in accordance with
the terms hereof for the consideration expressed herein, will be duly and
validly issued, fully paid and nonassessable and free of preemptive rights.
Based in part upon the representations of the Purchaser in this Agreement, the
Shares will be issued in compliance with applicable United States federal and
state securities laws.
2.4 COMMISSION DOCUMENTS AND OTHER REPORTS. Since January 1,
2000, the Company has filed all periodic reports required to be filed by it
with the Commission (the "Commission Documents"). As of their respective
dates, the Commission Documents complied in all material respects with the
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended, as the case may be, and none of the Commission Documents contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
consolidated financial statements of the Company included in the Commission
Documents complied as to form in all material respects with the applicable
accounting requirements and the published rules and regulations of the
Commission with respect thereto, were prepared in accordance with GAAP
(except, in the case of the unaudited statements, as permitted by the
regulations of the Commission) consistently applied throughout the periods
involved (except as may be indicated therein or in the notes thereto) and
fairly present in all material respects the consolidated financial position,
results of operations and cash flows of the Company and its consolidated
subsidiaries as of the dates or for the periods indicated therein, subject, in
the case of the unaudited statements, to normal year-end audit adjustments and
the absence of footnote disclosure.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to the Company as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Purchaser
is a professional corporation duly organized, validly existing and in good
standing under the laws of the State of Oklahoma and has all requisite
corporate power and authority to carry on its business as now conducted and as
proposed to be conducted.
3.2 AUTHORIZATION. All corporate action on the part of the
Purchaser, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement and the performance of
all obligations of the Purchaser hereunder has been taken, and this Agreement
constitutes a valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms.
2
3.3 PURCHASE FOR OWN ACCOUNT; SUBSTANTIAL RISK AND ABSENCE OF
LIQUIDITY. The Purchaser is acquiring the Shares solely for the Purchaser's
own account, and not with a view to, or for, subdivision, resale,
distribution, or fractionalization thereof, or for the account, in whole or in
part, of others. The Purchaser recognizes the restrictions on the
transferability of the Shares, and is able to bear the substantial economic
risk of an investment in the Shares, including a complete loss thereof, for an
indefinite period of time. The Purchaser has no need for liquidity in this
investment and has no reason to anticipate any change in circumstances,
financial or otherwise, or other particular occasion or event which might
cause or require the Purchaser to attempt to sell or transfer any of the
Shares.
3.4 RESTRICTIONS ON TRANSFER. The Purchaser understands that the
sale of the Shares to the Purchaser is intended to be exempt from registration
under the Securities Act of 1933, as amended (the "Securities Act"), by virtue
of Section 4(2) of the Securities Act and applicable state securities laws.
The Purchaser will not sell, hypothecate or otherwise transfer any or all of
the Shares other than pursuant to a specific exemption from registration under
the Securities Act and applicable state securities laws.
3.5 NOT REGISTERED. The Purchaser understands that the Shares
are not registered under the Securities Act or applicable state securities
laws and such securities must be held indefinitely, unless an exemption from
such registration is available. The Company has not undertaken to register the
Shares pursuant to the Securities Act and will have no obligation to effect on
behalf of the Purchaser any registration under the Securities Act or to assist
the Purchaser in complying with any exemption from registration under the
Securities Act or any state securities laws.
3.6 LEGENDS. The Purchaser acknowledges that the certificates
representing the Shares, and any substitutions or replacements thereof, may
bear one or all of the following legends:
(a) "The Shares represented by this certificate have not been
registered under the Securities Act of l933, as amended, and may not be
sold, hypothecated or otherwise transferred or disposed of in the absence
of such registration, unless an exemption from the requirement of such
registration is available under the circumstances at the time obtaining."
(b) Any legend required by the applicable securities laws of any
state to the extent such laws are applicable to the certificate so
legended.
3.7 SUITABILITY. The Purchaser represents and warrants that the
Purchaser has substantial knowledge and experience in the making of
investments of the type contemplated by this Agreement.
3.8 NO INCONSISTENT REPRESENTATIONS. No oral or written
representations have been made or oral or written information furnished to the
Purchaser or the Purchaser's advisors in connection with the purchase of the
Shares that were in any way inconsistent with the information provided to the
Purchaser.
3
3.9 FORWARD-LOOKING STATEMENTS. The Purchaser understands and
acknowledges that the contents of any discussions with Company management and
the matters included in any information provided by the Company to the
Purchaser may include "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. As such, those statements
involve known and unknown risks and uncertainties that may cause the actual
results in future periods to be materially different from any future
performance that the Company presently anticipates or predicts.
3.10 NO GENERAL SOLICITATION. The Purchaser is not purchasing
the Shares as a result of or subsequent to any advertisement, article, notice
or other communication published in any newspaper, magazine or similar media
or broadcast over television or radio, or presented at any seminar or meeting,
or any solicitation of a subscription by a person not previously known to the
Purchaser in connection with investments in securities generally.
4. MISCELLANEOUS.
4.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in this Agreement shall survive the
consummation of the transactions contemplated by this Agreement.
4.2 FURTHER ASSURANCES. Each party agrees to cooperate fully
with the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by any other party to evidence and reflect the purchase and sale of
the Shares and to carry into effect the intents and purposes of this Agreement.
4.3 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any right, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
4.4 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Oklahoma without giving effect to
its conflict of law principles.
4.5 COUNTERPARTS; EFFECTIVENESS. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
4.6 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4
4.7 NOTICES. Any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery to the party to be notified, upon delivery by a nationally
recognized overnight courier service, or upon deposit with the United States
Post Office, by registered or certified mail, postage prepaid and addressed
(i) if to the Company, to the offices of the Company at 0000 Xxxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx, XX 00000 and (ii) if to Purchaser, to the address set
forth on the signature page hereto, or, in each case, at such other address as
such party may designate by written notice.
4.8 AMENDMENTS AND WAIVERS. Neither this Agreement nor any of
its provisions shall be waived, modified, discharged or terminated except by
an instrument in writing signed by the party against whom any such waiver,
modification, discharge or termination is sought.
4.9 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provisions were so excluded and shall be enforceable in
accordance with its terms.
4.10 ENTIRE AGREEMENT. This Agreement and the Letter Agreement
collectively constitute the entire agreement between the parties hereto with
respect to the subject matter hereof, and supercede any all other written or
oral agreements existing between the parties hereto relating to the subject
matter hereof.
[SIGNATURES ON FOLLOWING PAGE]
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
HEARTSOFT, INC.
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxxx X. Xxxxx, Chief Executive
Officer, President and Chairman of the Board
PURCHASER:
XXXXX & XXXXXXX, A PROFESSIONAL
CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President, Tulsa Administration
Address:
500 Xxxxxxx Building
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000
6
