EXHIBIT 2.1/10.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the 12th day
of March, 2004 by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), an individual with an
address at 7 ▇▇▇▇▇ House, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇; ▇▇▇▇▇▇
▇▇▇▇ ("▇▇▇▇"), an individual with an address at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇; (▇▇▇▇▇ and Kent are collectively the "Sellers" and,
individually, each a "Seller"); the buyer listed on Exhibit A attached hereto
(the "Buyer"); and Gottbetter & Partners, LLP, a New York Limited Liability
Partnership with an address at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Escrow Agent").
WHEREAS, ▇▇▇▇▇ is the President, Chief Executive Officer and a Director,
and Kent is the Secretary, Chief Financial Officer and a Director of
VerticalBuyer, Inc., a Delaware corporation (the "Company"), with an address at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, each Seller is the owner of Six Million Nine Hundred Seventy Five
Thousand shares (6,975,000) of the Company's common stock, par value $0.001 per
share, which collectively represent approximately Eighty Percent (80%) of the
Company's outstanding common stock (the "Sellers' Common Stock").
WHEREAS, Sellers desires to sell and Buyer desires to purchase from Sellers
the Sellers' Common Stock.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock. Subject to the terms and conditions of
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this Agreement, and in reliance upon the representations and warranties and
covenants contained herein, Buyer hereby agrees to purchase from Sellers and
Sellers agrees to sell to Buyer the Sellers' Common Stock, or an aggregate of
Thirteen Million Nine Hundred Fifty Thousand (13,950,000) shares, for an
aggregate purchase price of One Hundred Fifty Thousand Dollars ($150,000) (the
"Purchase Price").
2. Closing.
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(a) The closing of the transactions contemplated hereunder (the
"Closing") shall take place by courier of documents delivered to Escrow Agent on
such date and time as Sellers and Buyer may mutually agree upon (the "Closing
Date"), but in no event shall the Closing be later than March 17, 2004, unless
the parties mutually agree to extend the closing deadline to a later date.
(b) At the Closing:
(i) Sellers shall transfer to Escrow Agent, good and marketable title
to the Sellers' Common Stock, free and clear of any and all liens, claims,
encumbrances and adverse interests of any kind, by delivering to Escrow Agent
the certificates representing the Sellers' Common Stock in negotiable form, duly
endorsed in blank, or with stock transfer powers attached thereto;
(ii) Sellers shall deliver to Escrow Agent their resignations as
officers and directors of the Company and their written appointment of one or
more persons designated by Buyers as successor officers and directors;
(iii) Sellers shall deliver to Escrow Agent a letter agreement (the "Letter
Agreement") signed by each Seller agreeing to vote their respective Sellers'
Common Stock in favor of Buyer's designees to the Board of Directors and in
favor of the reverse stock split and name change;
(iv) Sellers shall cause to be made available the books and records of the
Company to Buyers;
(v) Buyer shall deliver to Escrow Agent the Purchase Price by delivering
either 1) a check drawn on a US bank made payable to "Gottbetter & Partners,
LLP, as Escrow Agent" for the full amount of the Purchase Price; or 2) a wire
transfer with immediately available U.S. funds for the full amount of the
Purchase Price plus all wire transfer fees to:
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Gottbetter & Partners, LLP
▇▇▇▇ Account
Citibank N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇▇
Reference: (Your Name) for VBYR
(The items to be delivered to the Escrow Agent described in Section 2 (b) (i)
through (v) above, are collectively referred to as the "Closing Materials").
As soon as practicable following (1) the execution of this Agreement, (2)
the deliver of the Closing Materials to Escrow Agent, and (3) the satisfaction
of the Post-Closing Conditions (defined herein), Escrow Agent shall uses its
best efforts to distribute the Purchase Price to (i) the Company's creditors
listed in Exhibit 4(i) in the amounts listed under the caption settlement
payments (the "Settlement Payments"), and (ii) Gottbetter & Partners, LLP in the
amount of Ten Thousand Dollars ($10,000) (the "Retainer Fee"). Upon full
distribution of the Settlement Payments and the Retainer Fee, the balance of the
Purchase Price shall be equally distributed to Sellers (the "Balance Purchase
Price"). It is understood by the parties that no monies will be deducted from
the Purchase Price other than in accordance with this paragraph.
At any time and from time to time after the Closing, the Parties shall duly
execute, acknowledge and deliver all such further assignments, conveyances,
instruments and documents, and shall take such other action consistent with the
terms of this Agreement to carry out the transactions contemplated by this
Agreement.
3. Representations and Warranties of Buyer. Buyer hereby makes the
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following representations and warranties to Sellers, none of which shall survive
closing:
(a) Buyer has the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby and otherwise
to carry out its obligations hereunder.
(b) The Seller's Common Stock are being acquired by Buyer solely for
investment for Buyer's own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof; and, further, Buyer will
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not sell or transfer such Seller's Common Stock unless covered by a registration
statement or an exemption therefrom.
(c) Buyer represents and warrants that Buyer is an investor experienced in
the evaluation of businesses similar to the Company, has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of this investment, and has had access to all information
respecting the Company that Buyer have requested.
4. Representations and Warranties of Sellers. Each Seller, jointly and
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severally, hereby make the following representations and warranties to Buyer,
all of which shall survive the Closing:
(a) The Company is a corporation duly organized, and will be validly
existing and in good standing under the laws of Delaware upon the Company's
payment of all franchise taxes owed to the state of Delaware and the filing of a
Certificate of Renewal and Revival of Certificate of Incorporation with the
Delaware Secretary of State. The Company has the corporate power to own its
properties and to carry on its business as now being conducted and as proposed
to be conducted and is duly qualified to do business and are in good standing in
each jurisdiction in which the failure to be so qualified and in good standing
would have a material adverse effect on the Company. The Company has delivered
a true and correct copy of its certificate of incorporation, certificate of
amendment, certificate of good standing and by-laws or other charter documents,
as applicable, to Buyers. The Company is not in violation of any of the
provisions of its certificate of incorporation or bylaws or equivalent
organizational documents. The Company has no subsidiary. The Company has
dissolved Lightseek Limited under the laws of England.
(b) The Company has authorized capital stock consisting of 50,000,000
shares of common stock, $0.001 par value per share (the "Common Stock") and
5,000,000 shares of preferred stock, $.001 per value per share (the "Preferred
Stock"), of which 17,391,667 shares of Common Stock and no shares of Preferred
Stock are presently issued and outstanding.
(c) The Company has issued and outstanding options to purchase up to
1,350,000 shares (the Option Shares") of its common stock at $1 per share,
issued under its 2000 Non-statutory Stock Option Plan. Attached hereto as
Exhibit 4(c) is a list identifying the holders of the Option Shares. The Company
has no other outstanding securities that are or can be convertible,
exercisable or exchangeable into additional shares of its capital stock, and
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further, the Company has no obligation to issue any of its capital stock
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pursuant to outstanding agreements, written or otherwise; other than the
issuance of the Company's common stock to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
(d) There is no private or governmental action, suit, proceeding, claim,
arbitration or investigation pending before any agency, court or tribunal,
foreign or domestic, or, to the knowledge of the Sellers, threatened against the
Company or any of its properties or any of its officers or directors (in their
capacities as such) other than the final judgment entered on February
11, 2002 captioned Intratech Capital Partners, Ltd. v. VerticalBuyer, Inc.,
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Cause No. CC-01-06374-B, in the County Court, Dallas County, Texas (the
"Intratech Litigation"). There is no judgment, decree or order against the
Company to the knowledge of the Sellers other than Intratech Litigation, that
could prevent, enjoin, alter or delay any of the transactions contemplated by
this Agreement.
(e) The Company has complied with, is not in violation of, and has not
received any notices of violation with respect to, any federal, state, local or
foreign statute, law or regulation with respect to the conduct of its business,
or the ownership or operation of its business.
(f) The Sellers will make available to Buyer a complete and accurate
summary of all meetings of directors and shareholders or actions by written
consent since the time of incorporation of the Company, and reflect all
transactions
referred to in such.
(g) The Company has timely filed all tax returns required to be filed
and has paid all taxes shown thereon to be due, except for the state franchise
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taxes due to the Delaware Secretary of State. The Company agrees to file all
reports with, and pay all taxes to, the Delaware Secretary of State so as to
become current with such tax obligations, and further, shall duly execute,
acknowledge and deliver all such other documents, and shall take all such other
actions, so as to have the Company renewed and revived in the state of Delaware.
If, prior to the satisfaction of the Post-Closing Conditions, a tax liability is
discovered, the Company hereby undertakes to duly execute, acknowledge and
deliver all such documents, and shall take all such actions, so as to have a tax
return covering such tax liability filed. Taxes due upon such a filing shall be
payable with the use of the Purchase Price and prior to the distribution of the
Balance Purchase Price.
(h) ▇▇▇▇▇ and Kent are the sole officers, directors and employees of the
Company.
(i) Those creditors listed in Exhibit 4(i) attached hereto (the
"Creditors") are the only individuals or entities with any claims against the
Company. The Company does not have any obligations or liabilities of any nature
(matured or unmatured, fixed or contingent).
(j) Each of the Creditors have agreed to accept as full and complete
satisfaction of the debts owed to them by the Company (and as listed under the
caption Total Due of Exhibit 4(i), the amount described under the caption
Settlement Payment of Exhibit 4(i).
(k) The Company shall engage an accounting firm chosen by the Buyer (the
"Auditors"), to prepare any and all of the Company's financials statement that
are required to be filed with Securities and Exchange Commission ("SEC")
pursuant to the Securities Exchange Act of 1934, and shall cause the Company to
become current with its reporting obligations. The expense incurred for such
financial statement preparation will be borne by the Buyer. It is understood
that the Company is delinquent in its SEC reporting obligations and the Sellers
hereby agree to use their reasonable efforts to assist the Auditors so as to
ensure that the Company becomes current with such obligations.
(l) The Sellers' Common Stock, when sold to Buyer, will be free and clear
of all liens, claims, encumbrances, and charges.
(m) Sellers have the legal right to enter into and to consummate the
transactions contemplated hereby and otherwise to carry out their obligations
hereunder.
(n) The Sellers' Common Stock is being sold to Buyer in reliance on Section
4(2) of the Securities Act of 1933, as amended.
(o) The Sellers' Common Stock, when transferred, will contain restrictive
legends and will be subject to restrictions on transfer.
(p) This Agreement constitutes a valid and legally binding obligation of
Sellers and neither the execution of this Agreement, nor the consummation of the
transactions contemplated herein, will constitute a violation of or default
under, or conflict with, any judgment, decree, statute or regulation of any
governmental authority applicable to Sellers or the Company or any contract,
commitment, agreement or restriction of any kind to which Sellers or the Company
is a party or by which their assets are bound. The execution and delivery of
this Agreement does not, and the consummation of the transactions described
herein will not, violate applicable law, or any mortgage, lien, agreement,
indenture, lease or understanding (whether oral or written) of any kind
outstanding relative to Sellers or the Company.
(q) All representations, covenants and warranties of Sellers contained in
this Agreement shall be true and correct on and as of the Closing Date with the
same effect as though the same had been made on and as of the such dates. Any
and all schedules and exhibits attached hereto or provided to Buyer in
conjunction with execution of this Agreement shall likewise be true and correct
as of the Closing Date, and if there are any changes therein and such changes
are approved by Buyer, the same shall be amended or supplemented as appropriate,
so that they shall be true as of the Closing Date and the date the Post-Closing
Conditions have been satisfied;
5. Post-Closing Conditions. The obligation of the Escrow Agent to
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deliver (i) the Settlement Payments to the Creditors (ii) the Retainer Fee to
Gottbetter & Partners, LLP, and (iii) the Balance Purchase Price to the Sellers,
is subject to the fulfillment of each of the following conditions (the
"Post-Closing Condition") , any of which may be waived by the Buyer in its sole
discretion:
(i) Sellers obtain resignations of all officers and directors of the
Company and deliver same to Escrow Agent;
(ii) The Company becomes current in its reporting obligations as required
by the Securities Exchange Act of 1934;
(iii) The Company files a current report on Form 8-K disclosing the
dissolution of Lightseek Limited and the change of control contemplated by this
Agreement;
(iv) The Letter Agreement is delivered to the Escrow Agent;
(v) Delivery of such copies of the Company's books and records;
(vi) Copies of releases signed by each of the Company's Creditors have been
deliver to Escrow Agent;
(vii) Buyer is satisfied with the condition of the Company following a due
diligence review of the books, records, business and affairs of the Company.
Sellers will ensure that the Company will provide Buyer and their agents
complete access to all of the Company's books, records and personnel for
purposes of conducting Buyer's investigation;
(viii) There will be no material liabilities on the books of the Company,
other than what may be disclosed in the Company's financial statements for the
fiscal year ended December 31, 2003, and there are no undisclosed or contingent
liabilities;
(ix) There have been no changes in the Company's business or capitalization
between the date of signing this Agreement and the date the Post-Closing
Conditions have been satisfied, other than as required herein, other than the
issuance of the Company's common stock to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.;
(x) Sellers shall have performed and satisfied all covenants and conditions
required by this Agreement to be performed or satisfied by them; and
(xi) No action or proceedings shall have been instituted or threatened
prior to or at the Closing Date and the date the Post-Closing Conditions have
been satisfied before any court or governmental body or authority pertaining to
the acquisition by Buyer of the Sellers' Common Stock to be transferred
hereunder, the result of which could prevent or make illegal the consummation of
such transfer.
6. Finder's Fee. The parties acknowledge that no person is entitled to
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received a finder's fee in connection with this Agreement.
7. Terms of Escrow. As soon as practicable following (i) the execution of
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this Agreement; (ii) Escrow Agents receipt of the Purchase Price; (iii) Escrow
Agents receipt of the Closing Materials; and (iv) the fulfillment of each of the
Post-Closing Conditions, unless waived in accordance herein, the Escrow Agent
shall release the Purchase Price from escrow and deliver the Settlement Payment
to the Creditors, the Retainer Fee to Gottbetter and Partners, LLP, and deliver
the Balance Purchase Price to the Sellers.
8. Duties and Obligations of the Escrow Agent.
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(a) Buyer and Sellers hereto agree that the duties and obligations of
Escrow Agent are only such as are herein specifically provided and no other.
Escrow Agent's duty is to manage the distribution of the Purchase Price to
Creditors, Gottbetter & Partners, LLP, and the Balance Purchase Price to Sellers
in accordance with the terms of this Agreement only, and Escrow Agent shall
incur no liability whatsoever, except as a direct result of its willful
misconduct or gross negligence.
(b) Escrow Agent may consult with counsel of its choice, and shall not
be liable for any action taken, suffered or omitted by it in accordance with the
advice of such counsel.
(c) Escrow Agent shall not be bound in any way by the terms of any other
agreement to which Sellers and Buyer are parties, whether or not it has
knowledge thereof, and Escrow Agent shall not in any way be required to
determine whether or not any other agreement has been complied with by Sellers
and Buyer, or any other party thereto. Escrow Agent shall not be bound by any
modification, amendment, termination, cancellation, rescission or supersession
of this Agreement unless the same shall be in writing and signed jointly by
Sellers and Buyer, and agreed to in writing by the Escrow Agent.
(d) If Escrow Agent shall be uncertain as to its duties or rights hereunder
or shall receive instructions, claims or demands which, in its opinion, are in
conflict with any of the provisions of this Agreement, it shall be entitled to
refrain from taking any action, other than to keep safely all property held in
escrow or to take certain action, until it shall be directed otherwise in
writing by Seller and Buyer or by a final judgment of a court of competent
jurisdiction.
(e) Escrow Agent shall be fully protected in relying upon any written
notice, demand, certificate or document which it, in good faith, believes to be
genuine. Escrow Agent shall not be responsible for the sufficiency or accuracy
of the form, execution, validity or genuineness of documents or securities now
or hereafter deposited hereunder, or of any endorsement thereon, or for any lack
of endorsement thereon, or for any description therein; nor shall Escrow Agent
be responsible or liable in any respect on account of the identity, authority or
rights of the persons executing or delivering or purporting to execute or
deliver any such document, security or endorsement.
(f) Escrow Agent shall not be required to institute legal proceedings of
any kind and shall not be required to defend any legal proceedings which may be
instituted against it or in respect of the distribution of the Purchase Prices.
(g) If Escrow Agent at any time, in its sole discretion, deems it necessary
or advisable to relinquish custody of the Purchase Price, it may do so by
delivering the same to any other escrow agent agreeable to Sellers and Buyer
and, if no such escrow agent shall be selected within three days of the Escrow
Agent's notification to Sellers and Buyer of its desire to so relinquish custody
of the Purchase Price, then the Escrow Agent may do so by delivering the
Purchase Price to the clerk or other proper officer of a court of competent
jurisdiction as may be permitted by law. The fee of any court officer shall be
borne by Sellers and Buyer. Upon such delivery, the Escrow Agent shall be
discharged from any and all responsibility or liability with respect to the
Purchase Price and this Agreement.
(h) This Agreement shall not create any fiduciary duty on Escrow
Agent's part to Sellers and Buyer, nor disqualify Escrow Agent from representing
either party hereto in any dispute with the other, including any dispute with
respect to the Purchase Price.
(i) Escrow Agent represents that it is presently acting as counsel to
Buyer. The parties agree that the Escrow Agent's engagement as provided for
herein is not and shall not be objectionable for any reason.
(j) Upon the performance of this Agreement, Escrow Agent shall be deemed
released and discharged of any further obligations hereunder.
9. Escrow AgentIndemnification.
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(a) Sellers hereby agrees to indemnify and hold the Escrow Agent free
and harmless from any and all losses, expenses, liabilities and damages
(including but not limited to reasonable attorney's fees, and amounts paid in
settlement) resulting from claims asserted by Buyer against the Escrow Agent
with respect to the performance of any of the provisions of this Agreement.
(b) Buyer hereby agrees to indemnify and hold the Escrow Agent free and
harmless from and against any and all losses, expenses, liabilities and damages
(including but not limited to reasonable attorney's fees, and amounts paid in
settlement) resulting from claims asserted by Sellers against Escrow Agent with
respect to the performance of any of the provisions of this Agreement.
(c) Sellers and Buyer hereby agree to, jointly and severally, indemnify
and hold Escrow Agent harmless from and against any and all losses, damages,
taxes, liabilities and expenses that may be incurred by Escrow Agent, arising
out of or in connection with its acceptance of appointment as Escrow Agent
hereunder and/or the performance of its duties pursuant to this Agreement,
including, but not limited to, all legal costs and expenses of Escrow Agent
incurred defending itself against any claim or liability in connection with its
performance hereunder, provided that Escrow Agent shall not be entitled to any
indemnity for any losses, damages, taxes, liabilities or expenses that directly
result from its willful misconduct or gross negligence.
(d) In the event of any legal action between the parties to this
Agreement to enforce any of its terms, the legal fees of the prevailing party
shall be paid by the party(ies) who did not prevail.
10. Termination.
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(a) Termination by Mutual Agreement. This Agreement may be terminated
at any time by mutual consent of the parties hereto, provided that such consent
to terminate is in writing and is signed by each of the parties hereto.
(b) Termination for Failure to Close. This Agreement shall be automatically
terminated if the Closing shall not have occurred within five (5) days of the
date hereof (except if such sixth (6th) day is not a Business Day, then the next
Business Day).
(c) Termination by Operation of Law. This Agreement may be terminated by
any party hereto if there shall be any statute, rule or regulation that renders
consummation of the transactions contemplated herein illegal or otherwise
prohibited, or a court of competent jurisdiction or any government (or
governmental authority) shall have issued an order, decree or ruling, or has
taken any other action restraining, enjoining or otherwise prohibiting the
consummation of such transactions and such order, decree, ruling or other action
shall have become final and nonappealable.
(d) Termination for Failure to Perform Post-Closing Conditions. This
Agreement may be terminated prior to the Closing Date:
(a) by Sellers if: (i) any of the representations and warranties made
in this Agreement by the Buyer shall not be materially true and correct,
when made or at any time prior to consummation of the transactions
contemplated herein as if made at and as of such time; (ii) any of the
post-closing conditions set forth in Section 5 herein have not been
fulfilled in all material respects as promptly and as practically after the
execution of this Agreement; (iii) the Buyer shall have failed to observe
or perform any of its material obligations under this Agreement; or (iv) as
otherwise set forth herein; or
(b) by the Buyer if: (i) any of the representations and warranties
made in this Agreement by the Sellers shall not be materially true and
correct, when made or at any time prior to consummation of the transactions
contemplated herein as if made at and as of such time; (ii) any of the
post-closing conditions set forth in Section 5 herein have not been
fulfilled in all material respects as promptly and as practically after the
execution of this Agreement; (iii) the Sellers shall have failed to observe
or perform any of its material obligations under this Agreement; or (iv) as
otherwise set forth herein; or
(c) by either Party, if the Post-Closing Conditions have not been
satisfied within eight (8) weeks from the date of this Agreement.
(e) Effect of Termination or Default; Remedies. In the event of
termination of this Agreement as set forth above, this Agreement shall forthwith
become void and there shall be no liability on the part of any party hereto,
provided that such party is a Non Defaulting Party (as defined below). The
foregoing shall not relieve any party from liability for damages actually
incurred as a result of such party's breach of any term or provision of this
Agreement. In the event that any party shall fail or refuse to consummate the
transactions contemplated herein or if any default under or beach of any
representation, warranty, covenant or condition of this Agreement on the part of
any party (the "Defaulting Party") shall have occurred that results in the
failure to consummate the transactions contemplated herein, then in addition to
the other remedies provided herein and by law, the non defaulting party (the
"Non Defaulting Party") shall be entitled to seek and obtain money damages from
the Defaulting Party. The Non Defaulting Party shall be entitled to obtain from
the Defaulting Party court costs and reasonable attorneys' fees incurred in
connection with or in pursuit of enforcing the rights and remedies provided
hereunder.
11. Indemnification.
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(a) Obligation of theSellersto Indemnify. The Sellers agrees to
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indemnify, defend and hold harmless the Buyer (and its directors, officers,
employees, affiliates, stockholders, debenture holders, agents, attorneys,
successors and assigns) from and against all losses, liabilities, damages,
deficiencies, costs or expenses (including interest, penalties and reasonable
attorneys' and consultants' fees and disbursements) (collectively, "Losses")
based upon, arising out of or otherwise in respect of any (i) inaccuracy in any
representation or warranty of the Sellers contained in this Agreement or in the
Exhibits hereto or (ii) breach by the Sellers of any covenant or agreement
contained in this Agreement.
(b) Obligation ofthe Buyerto Indemnify. Buyer agrees to indemnify,
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defend and hold harmless the Sellers (and its directors, officers, employees,
affiliates, stockholders, agents, attorneys, successors and assigns) from and
against any Losses based upon, arising out of or otherwise in respect of any (i)
inaccuracy in any representation or warranty of Buyer contained in this
Agreement or in the Exhibits hereto or (ii) breach by Buyer of any covenant or
agreement contained in this Agreement.
(c) Notice and Opportunity to Defend. (a) Promptly after receipt by any
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Person entitled to indemnity under this Agreement (an "Indemnitee") of notice of
any demand, claim or circumstances which, with the lapse of time, would or might
give rise to a claim or the commencement (or threatened commencement) of any
action, proceeding or investigation (an "Asserted Liability") that may result in
a Loss, the Indemnitee shall give notice thereof (the "Claims Notice") to any
other party (or parties) who is or may be obligated to provide indemnification
pursuant to Section 11 (a) or 11 (b) (the "Indemnifying Party"). The Claims
Notice shall describe the Asserted Liability in reasonable detail and shall
indicate the amount (estimated, if necessary and to the extent feasible) of the
Loss that has been or may be suffered by the Indemnitee.
(d) The Indemnifying Party may elect to compromise or defend, at its own
expense and by its own counsel, any Asserted Liability. If the Indemnifying
Party elects to compromise or defend such Asserted Liability, it shall within 30
days after the date the Claims Notice is given (or sooner, if the nature of the
Asserted Liability so requires) notify the Indemnitee of its intent to do so,
and the Indemnitee shall cooperate, at the expense of the Indemnifying Party, in
the compromise of, or defense against, such Asserted Liability. If the
Indemnifying Party elects not to compromise or defend the Asserted Liability,
fails to notify the Indemnitee of its election as herein provided or contests
its obligation to indemnify under this Agreement, the Indemnitee may pay,
compromise or defend such Asserted Liability and all reasonable expenses
incurred by the Indemnitee in defending or compromising such Asserted Liability,
all amounts required to be paid in connection with any such Asserted Liability
pursuant to the determination of any court, governmental or regulatory body or
arbitrator, and amounts required to be paid in connection with any compromise or
settlement consented to by the Indemnitee, shall be borne by the Indemnifying
Party. Except as otherwise provided in the immediately preceding sentence, the
Indemnitee may not settle or compromise any claim over the objection of the
Indemnifying Party. In any event, the Indemnitee and the Indemnifying Party may
participate, at their own expense, in (but the Indemnitee may not control) the
defense of such Asserted Liability. If the Indemnifying Party chooses to defend
any claim, the Indemnitee shall make available to the Indemnifying Party any
books, records or other documents within its control that are necessary or
appropriate for such defense.
12. Miscellaneous.
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(a) Successors and Assigns. The terms and conditions of this Agreement
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shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties.
(b) Governing Law/Venue. This Agreement shall be governed by and construed
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under the laws of the State of New York as applied to agreements entered into
and to be performed entirely within New York. Any dispute or controversy
concerning or relating to this Agreement shall be exclusively resolved in the
federal or state courts located in the City, County and State of New York.
(c) Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(d) 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.
(e) Notices. Unless otherwise provided, any notice required or permitted
-------
under this Agreement shall be given in writing and shall be deemed effectively
given upon (i) personal delivery to the party to be notified; (ii) being sent by
overnight delivery by a nationally recognized overnight courier upon proof of
sending thereof and addressed to the party to be notified at the address
indicated for such party in this Agreement, or at such other address as such
party may designate by written notice to the other parties; (iii) being sent by
telecopier, upon proof of sending thereof.
(f) Expenses. Each of the parties shall bear its own costs and expenses
--------
incurred with respect to the negotiation, execution, delivery, and performance
of this Agreement.
(g) Amendments and Waivers. Any term of this Agreement may be amended
------------------------
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of Sellers and Buyer.
(h) Continuing Obligations; Cooperation. Each party reciprocally
-------------------------------------
agrees to promptly and duly execute and deliver to the other such documents and
assurances and take such action as may from time to time be reasonably requested
in order to more effectively carry out the intent and purpose of this Agreement
and to establish and protect the rights and remedies created or intended to be
created in favor of the other party hereunder.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned have executed, or caused to be executed
on their behalf by an agent thereunto duly authorized, this Agreement as of the
date first above written.
SELLERS:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇▇▇▇
BUYER:
MAXIMUM VENTURES, INC.
By:
-----------------------
Name:
Title:
ESCROW AGENT:
GOTTBETTER & PARTNERS, LLP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Partner
EXHIBIT A
---------
Name of Buyer
Maximum Ventures, Inc. with an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT4(C)
-----------
Option Holders
NAME DATE OF GRANT NUMBER OF SHARES EXERCISE PRICE EXPIRATION DATE
SUBJECT TO OPTION (PER SHARE)
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ March 1, 2000 250,000 $ 1.00 February 29, 2004
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇▇▇ ▇▇▇▇ March 1, 2000 250,000 $ 1.00 February 29, 2004
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ March 1, 2000 250,000 $ 1.00 February 29, 2004
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ March 1, 2000 250,000 $ 1.00 February 29, 2004
------------------- --------------- ----------------- ---------------- -----------------
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇ March 1, 2000 50,000 $ 1.00 February 29, 2004
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇ ▇▇▇▇▇▇ March 1, 2000 50,000 $ 1.00 February 29, 2004
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇▇ ▇▇▇▇▇ March 1, 2000 50,000 $ 1.00 February 29, 2004
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ March 1, 2000 50,000 $ 1.00 February 29, 2004
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ March 1, 2000 50,000 $ 1.00 February 29, 2004
------------------- --------------- ----------------- ---------------- -----------------
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇ January 1, 2001 25,000 $ 1.00 December 31, 2004
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇▇ ▇▇▇▇▇ January 1, 2001 25,000 $ 1.00 December 31, 2004
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ January 1, 2001 25,000 $ 1.00 December 31, 2004
------------------- --------------- ----------------- ---------------- -----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ January 1, 2001 25,000 $ 1.00 December 31, 2004
------------------- --------------- ----------------- ---------------- -----------------
=================
TOTAL 1,350,000
EXHIBIT4(I)
-----------
List of Creditors
CREDITORS TOTAL DUE SETTLEMENT PAYMENTS
------------------------------------------ ----------- --------------------
St Ives Burrups $ 2,844.55 $ 284.45
------------------------------------------ ----------- --------------------
Continental Stock Transfer & Trust Company $ 7,322.37 $ 4,000.00
------------------------------------------ ----------- --------------------
Electrical Advertiser $ 1,200.00 $ 120.00
------------------------------------------ ----------- --------------------
Intratech Capital Partners, LLP* $ 42,000.00 $ 17,500.00
------------------------------------------ ----------- --------------------
KCSA $ 16,515.17 $ 1,651.51
------------------------------------------ ----------- --------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ and Company, P.C. $ 67,051.00 $ 13,410.20
------------------------------------------ ----------- --------------------
===========
TOTAL $136,933.09 $ 36,966.16
* Intratech Capital Partners, Ltd., recovered a judgment in the sum of
$32,000 and 225,000 shares of the common stock of Verticalbuyer, Inc., plus
reasonable attorney fees found to be $10,000. This judgment has been settled
for $17,500.