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EXHIBIT 10.
SECURITIES PURCHASE AGREEMENT
by and among
REGENT GROUP, INC.
and
the members of
STOCK ▇▇▇▇▇.▇▇▇, LLC
Dated as of July 7, 1999
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TABLE OF CONTENTS
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PURCHASE AND SALE OF LLC INTERESTS................................................................................1
1.1 Purchase of Interests...........................................................................1
1.2 Purchase Price..................................................................................1
1.3 Closing; Deliveries.............................................................................1
1.4 Closing Date....................................................................................2
1.5 Tax Election; Preparation of Short Year Return; Allocation of Price.............................2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................................................................3
2.1 Organization and Qualification..................................................................3
2.2 Capitalization..................................................................................3
2.3 Subsidiaries and Affiliates.....................................................................3
2.4 Options or Other Rights.........................................................................3
2.5 Ownership of the LLC Interests..................................................................3
2.6 Validity and Execution of Agreement.............................................................3
2.7 No Conflict.....................................................................................3
2.8 Books and Records...............................................................................4
2.9 Certificate of Incorporation and By-Laws........................................................4
2.10 Financial Statements............................................................................4
2.11 Undisclosed Liabilities.........................................................................4
2.12 No Material Adverse Change......................................................................5
2.13 Tax Matters.....................................................................................5
2.14 Litigation......................................................................................5
2.15 Contracts and Other Agreements..................................................................5
2.16 Real Estate.....................................................................................6
2.17 Transactions with Affiliates....................................................................6
2.18 Accounts Receivable; Inventory and Accounts Payable.............................................6
2.19 Compensation Arrangements; Officers, Directors and Employees....................................7
2.20 ERISA...........................................................................................7
2.21 Operations......................................................................................7
2.22 Tangible Property...............................................................................9
2.23 Intangible Property.............................................................................9
2.24 Environmental Matters...........................................................................9
2.25 Employee Relations.............................................................................10
2.26 Insurance......................................................................................10
2.27 Licenses and Permits...........................................................................11
2.28 Compliance with Laws...........................................................................11
2.29 Banks and Proxies..............................................................................11
2.30 Year 2000 Compliance...........................................................................11
2.31 Brokers........................................................................................11
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2.32 Acquisition of Regent Shares...................................................................11
2.33 Disclosure.....................................................................................12
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER..................................................................13
3.1 Validity and Execution of Agreement............................................................13
3.2 No Conflict....................................................................................13
3.3 Brokers........................................................................................13
3.4 Disclosure.....................................................................................13
PRE-CLOSING COVENANTS............................................................................................13
4.1 Corporate Examinations and Investigations......................................................13
4.2 Conduct of Business............................................................................14
4.3 Preservation of Business.......................................................................14
4.4 Restructuring of the Purchaser.................................................................14
4.5 Other Agreements...............................................................................14
CONDITIONS PRECEDENT TO THE CLOSING..............................................................................15
5.1 Conditions Precedent to the Obligations of the Purchaser to Complete the
Closing........................................................................................15
5.2 Conditions Precedent to the Obligations of the Members to Complete the Closing.................15
POST-CLOSING COVENANTS...........................................................................................16
6.1 Further Information............................................................................16
6.2 Record Retention...............................................................................16
6.3 Post-Closing Assistance........................................................................16
6.4 SEC Reporting..................................................................................17
6.5 Board of Directors; Compliance with Section 14(f) of the Exchange Act..........................17
SURVIVAL; INDEMNIFICATION........................................................................................17
7.1 Survival of Agreements, Representations and Warranties.........................................17
7.2 Indemnification by the Members.................................................................18
7.3 Purchaser's Indemnity..........................................................................18
7.4 Method of Asserting Claims.....................................................................18
7.5 General Provisions.............................................................................20
TERMINATION OF AGREEMENT.........................................................................................20
8.1 Termination....................................................................................20
8.2 Survival After Termination.....................................................................20
MISCELLANEOUS....................................................................................................21
9.1 Certain Definitions............................................................................21
9.2 Expenses.......................................................................................26
9.3 Further Assurances.............................................................................26
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9.4 Notices........................................................................................26
9.5 Publicity......................................................................................27
9.6 Entire Agreement...............................................................................27
9.7 Waivers and Amendments.........................................................................27
9.8 Governing Law..................................................................................27
9.9 Binding Effect, No Assignment..................................................................27
9.10 Variations in Pronouns.........................................................................28
9.11 Counterparts...................................................................................28
9.12 Exhibits and Schedules.........................................................................28
9.13 Effect of Disclosure on Schedules..............................................................28
9.14 Headings.......................................................................................28
9.15 Severability of Provisions.....................................................................28
EXHIBITS
EXHIBIT A- 1 Closing Certificate of the Company
EXHIBIT A-2 Closing Certificate of the Purchaser
SCHEDULES
SCHEDULE I Members; Allocations of Regent Shares among Members
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SECURITIES PURCHASE AGREEMENT, dated as of July ___, 1999, by
and among Regent Group, Inc. (the "Purchaser"), a Delaware corporation having an
address at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, the persons named on Schedule
I attached to this Agreement (the "Members") and Stock ▇▇▇▇▇.▇▇▇, LLC (the
"Company"), a New York limited liability company having an address at ▇▇▇ ▇▇▇▇▇▇
▇▇., ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇.
WHEREAS, the Members own 100% of the issued and outstanding
membership interests of the Company (the "LLC Interests"); and
WHEREAS, the Members wish to sell, and the Purchaser wishes to
purchase, the LLC Interests on the terms and subject to the conditions
hereinafter set forth such that after the completion of the transactions
contemplated by this Agreement, the Company will become wholly-owned by the
Purchaser;
NOW, THEREFORE, in consideration of the mutual terms,
conditions and other agreements set forth herein, the Purchaser, the Members and
the Company hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF LLC INTERESTS
1.1 Purchase of Interests. On the terms and subject to the
conditions set forth in this Agreement, the Members agree to sell the LLC
Interests to the Purchaser, and the Purchaser agrees to purchase the LLC
Interests from the Members, free and clear of all Liens. Capitalized terms used
without definition shall have the respective meanings given them in Section 9.1.
1.2 Purchase Price. The purchase price for the LLC Interests shall
be 11,550,000 Interests of the Purchaser's Common Stock, $.06 2/3 par value per
share (the "Regent Shares"), free and clear of all Liens, allocated among the
Members as set forth in Schedule I.
1.3 Closing; Deliveries. At the Closing (as defined in Section
1.4)
(a) The Purchaser shall sell, issue and deliver the Regent
Shares to the Members, together with the certificates, opinions and other
agreements and instruments contemplated by Section 5.1.
(b) The Members shall sell and deliver the LLC Interests to
the Purchaser, together with the certificates, opinions and other agreements and
instruments contemplated by Section 5.2.
(c) The delivery of both the LLC Interests and the Regent
Shares shall be effected by the presentation of certificates of the Company
representing the LLC Interests (if certificated) and the Purchaser representing
the Regent Shares, respectively in the case of the LLC Interests, duly endorsed
for transfer. The Members shall be solely liable for any taxes
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arising from the sale or transfer of the LLC Interests, and the Purchaser shall
be solely liable for any taxes arising from the issuance or sale of the Regent
Shares.
1.4 Closing Date. The consummation of the purchase and sale of
the Interests (the "Closing") shall be held at 10:00 a.m. at the offices of the
Purchaser's counsel, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ on
July 16, 1999, or such other time and date as shall be mutually agreed to by the
parties.
1.5 Tax Election; Preparation of Short Year Return; Allocation of
Price. Upon the signing of this Agreement, the Members and the Purchaser agree
that the purchase price paid by the Purchaser and the liabilities of the Company
(plus other relevant items) will be quantified based on the basis of recent
trading prices for the Regent Shares and will further be allocated for all
purposes (including financial, accounting and reporting tax purposes) in a
manner consistent with Department of Treasury Regulations ("Treasury
Regulations") promulgated pursuant to and under Code Section 338 as set forth in
the Allocation Schedule attached as Schedule 1.5. The Members, the Company and
the Purchaser will file all Tax Returns and information reports in a manner
consistent with such values. None of the Members, the Company nor the Purchaser
shall take any position for purposes of federal, state or local income tax
respecting the foregoing allocation which is inconsistent with the allocation so
agreed upon by the parties in accordance with this Section. The parties will
make every effort to attach an objective definitive dollar amount Allocation
Schedule to this Agreement at the Closing. The parties agree to use their good
faith efforts to attach an Allocation Schedule within 60 days following the
Closing. If the parties are not able to agree upon, and therefore have not
attached, the Allocation Schedule to this Agreement setting forth objective
dollar amounts at the Closing, the parties hereby acknowledge that the fair
market for the Company's assets generally were not readily available at the
Closing, and that the Members and the Purchaser, within 30 days after the
Closing of this Agreement, will jointly hire an appraiser to appraise the assets
of the Company for purposes of creating the foregoing Allocation Schedule. If
the Members and the Purchaser are unable to agree on the choice of an appraisal
firm, they will select a nationally recognized appraisal firm by lot (after
excluding their respective regular outside appraisal firms). The determination
of any appraisal firm so selected will be set forth in writing and will be
conclusive and binding upon the parties. The Members and the Purchaser will each
pay one-half of the fees, expenses and costs of the appraisal firm for the
services described in this Section.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
To induce the Purchaser to enter into this Agreement and to perform its
obligations under this Agreement, the Members and the Company hereby jointly and
severally represent and warrant to the Purchaser as follows:
2.1 Organization and Qualification. The Company is a limited
liability company duly formed and, validly existing under the laws of the State
of New York and has all requisite power and authority to (a) own, lease and
operate its properties and assets as they are now owned, leased and operated and
(b) carry on its business as currently conducted and as proposed to be
conducted. The Company is duly qualified to do business in each jurisdiction in
which the nature of its business or properties makes such qualification
necessary.
2.2 Capitalization. The LLC Interests have been duly authorized
and have been validly issued and are fully paid and nonassessable.
2.3 Subsidiaries and Affiliates. Except as described on Schedule
2.3, the Company does not own, directly or indirectly, any capital stock of, or
any partnership, membership or other interest in, any other Person.
2.4 Options or Other Rights. Except as described on Schedule 2.4,
no options, warrants, calls, commitments or other rights to acquire, sell or
issue membership interests or other equity interests of the Company, whether
upon conversion of other securities or otherwise, are issued or outstanding, and
there is no agreement or understanding with respect to the voting of such
membership interests or other equity interests.
2.5 Ownership of the LLC Interests. Each of the Members has good
and marketable title to, and is the lawful record and beneficial owner of, the
LLC Interests listed next to the name of such holder on Schedule I, subject to
no Liens. The Members have not entered into any agreements or understandings
with respect to the ownership or voting of the LLC Interests.
2.6 Validity and Execution of Agreement. Each of the Members and
the Company has the full legal right, capacity and power required to enter into,
execute and deliver this Agreement and to perform fully its respective
obligations hereunder. This Agreement has been duly executed and delivered by
each of the Members and the Company and constitutes the valid and binding
obligation of each of the Members and the Company, enforceable in accordance
with its terms, subject to the qualifications that enforcement of the rights and
remedies created hereby is subject to (a) bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and (b) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
2.7 No Conflict. Neither the execution and delivery of this
Agreement by each of the Members and the Company nor the performance by each of
the Members and the Company of
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the transactions contemplated hereby will: (a) violate or conflict with any of
the provisions of the Certificate of Incorporation or By-Laws of the Company;
(b) violate, conflict with, result in the acceleration of, or entitle any party
to accelerate the maturity or the cancellation of the performance of any
obligation under, or result in the creation or imposition of any Lien in or upon
any of the properties or assets of any of the Members or the Company, as the
case shall be, or constitute a default (or an event which might, with the
passage of time or the giving of notice, or both, constitute a default) under
any mortgage, indenture, deed of trust, lease, contract, loan or credit
agreement, license or other instrument to which any of the Members or the
Company, as the case shall be, is a party or by which it or any of its
respective properties or assets may be bound or affected; or (c) violate or
conflict with any provision of any Law or Order applicable to any of the Members
or the Company or require any consent or approval of or filing or notice with
any Governmental or Regulatory Body by any of the Members or the Company, as the
case shall be.
2.8 Books and Records. Each of the Books and Records of the
Company as supplied to the Purchaser is true, correct, complete and current in
all material respects and, as applicable, accurately reflects all actions taken
by the members and managers of the Company since the date of inception of the
Company, and all signatures contained therein are the true signatures of the
Persons whose signatures they purport to be.
2.9 Articles of Organization and Operating Agreement . The
Company has heretofore delivered to the Purchaser true, correct and complete
copies of the Articles of Organization (certified by the Secretary of State of
New York and the Company's limited liability company operating agreement (the
"Operating Agreement"), as certified by the secretary of the Company, as in full
force and effect on the date hereof.
2.10 Financial Statements. The unaudited balance sheets of the
Company as of May 31, 1999, and the related audited statements of income,
statements of cash flow and statements of members' equity for the period from
inception through May 31, 1999 (the "Period Financial Statements"), true and
complete copies of which have been delivered to the Purchaser, present fairly,
in all material respects, the financial position of the Company as at such dates
and the results of operations of the Company for the years then ended, in
accordance with GAAP consistently applied for the periods covered thereby.
2.11 Undisclosed Liabilities. The Company does not have any
material direct or indirect indebtedness, liability, claim, loss, damage,
deficiency, obligation or responsibility, fixed or unfixed, ▇▇▇▇▇▇ or inchoate,
liquidated or unliquidated, secured or unsecured, accrued, absolute, contingent
or otherwise (all of the foregoing being collectively referred to as
"Liabilities" and individually as a "Liability"), of a kind required by GAAP to
be set forth on a financial statement that is not fully and adequately reflected
or reserved against on the Period Financial Statements. The Company does not
have any Liabilities, whether or not of a kind required by GAAP to be set forth
on a financial statement, other than (a) Liabilities incurred since the
Company's inception in the ordinary course of business (none of which is a
Liability for breach of contract, breach of warranty, tort, infringement, or a
pending claim or lawsuit), and
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fully reflected as Liabilities on the Company's Books and Records, none of which
individually or in the aggregate, is material to the business, operations,
income, condition (financial or otherwise), assets or properties of the Company
or (b) Liabilities disclosed and reflected as liabilities on the Period
Financial Statements.
2.12 No Material Adverse Change. Since the Company's inception,
there has been no material adverse change in the business, operations, income or
condition (financial or otherwise), assets or properties of the Company, nor is
any such change threatened, nor has there been any damage, destruction or loss
which could reasonably be expected to have a Material Adverse Effect on the
Company, whether or not covered by insurance.
2.13 Tax Matters. All Tax Returns, reports and declarations of
estimated tax or estimated tax deposit forms required to be filed by the Company
have been duly and timely filed; the Company has paid all Taxes which have
become due whether pursuant to such returns or any assessment received by it or
otherwise, and has paid all installments of estimated Taxes due; and all Taxes
which the Company is required by law to withhold or to collect have been duly
withheld and collected, and have been paid over to the proper Governmental or
Regulatory Body. There are no tax liens upon any of the assets or properties of
the Company except for Liens for Taxes not yet due. No property of the Company
is property that the Purchaser will be required to treat as being owned by
another Person pursuant the provision of Code Section 168(f)(8) (as in effect
prior to its amendment by the Tax Reform Act of 1986) or is "tax-exempt use
property" within the meaning of Code Section 168. The Company is not a United
States Real Property Holding Corporation (a "USRPHC") within the meaning of Code
Section 897 and was not a USRPHC on any "determination date" (as defined in
Section 1.897-2(c) of the Treasury Regulations) that occurred in the five-year
period preceding the Closing. The Company is not a party to any express tax
settlement agreement, arrangement, policy or guideline, formal or informal (a
"Settlement Agreement"), and the Company does not have any obligation to make
payments under any Settlement Agreement.
2.14 Litigation. There are no outstanding Orders by which the
Company, or any of its securities, assets, properties or businesses are bound,
and there is no Action or Proceeding pending or, to the knowledge of the
Company, threatened (whether or not the defense thereof or liabilities in
respect thereof are covered by insurance) against or affecting the Company or
any of its assets, properties or businesses, nor are there any facts which are
likely to give rise to any such Action or Proceeding which if adversely decided,
would have a Material Adverse Effect on the Company.
2.15 Contracts and Other Agreements. Schedule 2.15 sets forth the
Material Contracts to which the Company is a party or by or to which the
Company, or its assets, properties or businesses, is bound or subject. The
Members have delivered true and complete copies of all of the Material Contracts
have been delivered to the Purchaser. All of the Material Contracts are valid,
subsisting, in full force and effect and binding upon the Company and, to the
knowledge of the Company, the other parties thereto in accordance with their
terms, subject to the qualifications that enforcement of the rights and remedies
created thereby is subject to (i)
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bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and (ii) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and the Company has satisfied in full or
provided for all of its liabilities and obligations thereunder requiring
performance prior to the date hereof in all material respects, and is not in
default under any of them, nor, to the knowledge of the Company, does any
condition exist that with notice or lapse of time or both would constitute such
a default. To the knowledge of the Company, no other party to any such Material
Contract is in default thereunder, nor does any condition exist that with notice
or lapse of time or both would constitute such a default. Except as set forth on
Schedule 2.15 under the heading "Required Consents/Contracts," no approval or
consent of any Person is needed for any of the Material Contracts to continue to
be in full force and effect, and all of the Company's rights under such Material
Contracts will be in full force and effect following consummation of the
transactions contemplated by this Agreement.
2.16 Real Estate. Schedule 2.16 sets forth a true, correct and
complete list and description of (and the Purchaser has received true and
complete copies) of all real property owned or leased by the Company.
2.17 Transactions with Affiliates. Except as set forth on Schedule
2.17, no member, manager or Affiliate of the Company or Affiliate of such
member, manager or shareholder has: (a) borrowed money from or loaned money to
the Company which remains outstanding; (b) had any contractual or other claim,
express or implied, of any kind whatsoever against the Company; (c) had any
interest in any property or assets used by the Company in the business of the
Company; (d) engaged in any other transaction with the Company; or (e) owned,
directly or indirectly, any interest in (except not more than five percent (5%)
stockholdings for investment purposes in securities of publicly held and traded
companies), or served as an officer, director, employee or consultant of or
otherwise receives remuneration from, any Person which is, or has engaged in
business as, a competitor, lessor, lessee, customer or supplier of the Company.
2.18 Accounts Receivable; Inventory and Accounts Payable. All
accounts receivable reflected on the balance sheet of the Company included in
the 1997 and 1998 Financial Statements, and all accounts receivable arising
subsequent to December 31, 1998, (a) have arisen from bona fide sales
transactions in the ordinary course of business on ordinary trade terms and (b)
have been collected or are collectible in the ordinary course of business in the
aggregate recorded amounts thereof in accordance with their terms without valid
set-off or counterclaim. The Company has made payments on accounts payable and
other current obligations arising subsequent to December 31, 1998, in accordance
with past practice of the business of the Company.
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2.19 Compensation Arrangements; Officers, Directors and Employees.
Schedule 2.19 sets forth: (a) the name of all present officers, directors and
employees of the Company and current annual salary, including any promised,
expected or customary bonus or such other amount, and (b) the names and titles
of all directors and officers of the Company. The Company has not made a
commitment or agreement (verbally or in writing) to increase the compensation or
to modify the conditions or terms of employment of any Person listed on Schedule
2.19. To the knowledge of the Company, none of such Persons has made a threat to
the Company to terminate such Person's relationship with the Company.
2.20 ERISA. Except as set forth on Schedule 2.20, there are no
Plans maintained for the benefit of, or covering, any employee, former employee,
independent contractor or former independent contractor of the Company, or their
dependents or their beneficiaries, or otherwise, now or heretofore contributed
to by the Company, and no such Plan is or has ever been subject to ERISA.
2.21 Operations. Except as expressly authorized by this Agreement,
except as set forth in Schedule 2.21, since December 31, 1998 the Company has
not:
(a) amended its Articles of Organization or the Operating
Agreement or merged with or into or consolidated with any other Person, or
changed or agreed to rearrange in any manner the character of the business of
the Company;
(b) issued, sold or purchased options or rights to subscribe
to, or entered into any contracts or commitments to issue, sell or purchase, any
shares of its capital stock or other equity interests;
(c) entered into, amended or terminated any (i) employment
agreement or collective bargaining agreement, (ii) adopted, entered into or
amended any arrangement which is, or would be, a Plan or (iii) made any change
in any actuarial methods or assumptions used in funding any Plan or in the
assumptions or factors used in determining benefit equivalencies thereunder;
(d) issued any note, bond or other debt security, created,
incurred or assumed any indebtedness for borrowed money other than in the
ordinary course of business in connection with trade payables, or guaranteed any
indebtedness for borrowed money or any capitalized lease obligation;
(e) made any distributions of any kind to its members (other
than tax distributions) or made any direct or indirect redemption, retirement,
purchase or other acquisition of its equity interests;
(f) knowingly waived any right of material value to the
business of the Company;
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(g) made any change in its accounting methods or practices or
made any changes in depreciation or amortization policies or rates adopted by it
or made any material write-down of inventory or material write-off as
uncorrectable of accounts receivable;
(h) made any wage or salary increase or other compensation
payable or to become payable or bonus, or increase in any other direct or
indirect compensation, for or to any of its managers, employees, consultants,
agents or other representatives, or any accrual for or commitment or agreement
to make or pay the same, other than increases made in the ordinary course
consistent with past practice;
(i) entered into any transactions with any of its members,
managers, Affiliates, employees, consultants, agents or other representatives
(other than employment arrangements made in the ordinary course of business
consistent with past practice), or any Affiliate of any shareholder, officer,
director, consultant, employee, agent or other representative;
(j) made any payment or commitment to pay any severance or
termination pay to any Person or any of its officers, directors, employees,
consultants, agents or other representatives, other than payments or commitments
to pay such Persons or their officers, directors, employees in the ordinary
course of business;
(k) except in the ordinary course of business, (i) entered
into any lease (as lessor or lessee), (ii) sold, abandoned or made any other
disposition of any of its assets or properties other than in the ordinary course
of business consistent with past practice- (iii) granted or suffered any Lien on
any of its assets or properties other than sales of inventory in the ordinary
course of business- or (iv) entered into or amended any material contract or
other agreement to which it is a party, or by or to which it or its assets or
properties are bound or subject, or pursuant to which it agrees to indemnify any
Person or to refrain from competing with any Person, m each case or type
required to be disclosed pursuant to Section 2.14;
(l) except in the ordinary course of business, incurred or
assumed any debt, obligation or liability (whether absolute or contingent and
whether or not currently due and payable);
(m) except for inventory or equipment acquired in the ordinary
course of business, made any acquisition of all or any part of the assets,
properties, capital stock or business of any other Person;
(n) except in the ordinary course of business, paid, directly
or indirectly, any of its Liabilities before the same became due in accordance
with their terms or otherwise than in the ordinary course of business, except to
obtain the benefit of discounts available for early payment;
(o) except in the ordinary course of business, created,
incurred or assumed any indebtedness for borrowed money, or guaranteed any
indebtedness for borrowed money or any capitalized lease obligation, in each
case in excess of $5,000 individually or in the aggregate;
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(p) except in the ordinary course of business, made any
capital expenditures or commitments for capital expenditures in aggregate amount
exceeding $5,000; or
(q) except in the ordinary course of business, terminated,
failed to renew, amended or entered into any contract or other agreement of a
type required to be disclosed pursuant to Section 2.15.
2.22 Tangible Property. Schedule 2.22 sets forth a true, complete
and correct list of all categories of tangible personal property with an
aggregate value in excess of $5,000, which is material to the business of the
Company (other than inventory), including, without limitation, equipment,
furniture, leasehold improvements, fixtures, vehicles, structures, any related
capitalized items and other similar tangible property, in each case owned or
leased by the Company and material to the business of the Company (collectively,
the "Tangible Property"), together with a description of all material leases or
subleases of Tangible Property to which the Company is the lessor, sublessor,
lessee or sublessee and all options to purchase or sell the underlying property.
The Tangible Property is in good operating condition, subject to continued
repair and replacement in accordance with past practice, and the Company has not
received notice that any of the Tangible Property is in violation of any
existing Law or Order. During the past three years there has not been any
material interruption of the operations of the Company due to inadequate
maintenance of the Tangible Property. Except as set forth on Schedule 2.22 under
the heading "Required Consents/Tangible Property," no approval or consent of any
Person is needed so that the interest of the Company in the Tangible Property
shall continue to be in full force and effect and enforceable by the Purchaser
following the transactions contemplated by this Agreement.
2.23 Intangible Property. Schedule 2.23 sets forth a list of all
Intangible Property of the Company which is material to the business of the
Company (other than trade secrets, know-how and goodwill attendant to the
Intangible Property and other intellectual property rights not reducible to
schedule form), true and complete copies of which have been delivered or made
available to the Purchaser. None of the Intangible Property infringes upon the
rights of any other Person in any material respect or, to the knowledge of the
Company, is so infringed upon by any other Person or its property the Company
has not received any notice of any claim of any other Person relating to any of
the Intangible Property or any process or confidential information of the
Company and does not know of any basis for any such charge or claim. Except for
the Intangible Property, no other material intellectual property or intangible
property rights are required for the Company to conduct the business of the
Company in the ordinary course consistent with past practice. Except as
separately identified on Schedule 2.23 under the heading "Required
Consents/Intangible Property," no approval or consent of any Person is needed so
that the interest of the Company in the Intangible Property shall continue to be
in full force and effect and enforceable by the Company following the
transactions contemplated by this Agreement.
2.24 Environmental Matters. There have not been any activities on
or at the Company's facilities at any time during which such facilities were
occupied by the Company or any Affiliate or, to the knowledge of the Company, at
any time prior thereto involving the use,
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generation, Treatment, Storage, or Disposal of any Hazardous Substances or
Petroleum Products in violation of applicable Environmental Laws, or any Release
or threatened Release from any such facilities of any Hazardous Substances or
Petroleum Products. The Company is now and has been at all times in material
compliance with a Environmental Laws; there are no pending environmental
litigation, enforcement actions, administrative orders or notices of violation
brought under any Environmental Law concerning the Company's facilities and it
does not know of any threats of such litigation, enforcement actions,
administrative orders or notices of violation; the Company has not received any
request for information, notice of claim, demand or other notification that it
may be potentially responsible for any threatened or actual Release of Hazardous
Substances or Petroleum Products on any of its facilities at any time during
which such facilities were leased or occupied by the Company or any Affiliate
or, to the knowledge of the Company, at any time prior thereto; and the Company
has all material permits, licenses, orders, approvals, authorizations,
concessions or franchises of every governmental authority having jurisdiction
under an Environmental Law required to conduct its business substantially as it
is currently being conducted. All such permits, licenses, orders, approvals,
authorizations, concessions and franchises are in full force and effect, and, to
the knowledge of the Company, there is no state of facts or event which could
reasonably be expected to form the basis for any revocation or non-renewal of
any such permit or authorization.
2.25 Employee Relations. The Company is not a party any agreement
with any labor organization, collective bargaining or similar agreement with
respect to employees of the Company. There are no material complaints,
grievances or arbitrations, employment-related litigation, administrative
proceedings or controversies either pending or, to the knowledge of the Company,
threatened, involving any employee, applicant for employment, or former employee
of the Company against the Company. During the past five years, the Company has
not suffered or sustained any labor dispute resulting in any work stoppage and
no such work stoppage is, to the knowledge of the Company, threatened. To the
knowledge of the Company, there are no attempts presently being made to organize
any employees employed by the Company.
2.26 Insurance. Schedule 2.26 sets forth a list and brief
description (specifying the insurer, the policy number or covering note number
with respect to binders and the amount of any deductible, describing the pending
claims if such claims exceed applicable policy limits, setting forth the
aggregate amount paid out under each such policy through the date hereof and the
aggregate limit, if any, of the insurer's liability thereunder) of all policies
or binders of fire, liability, efforts and omissions, workers' compensation,
vehicular, unemployment and other insurance held by or on behalf of the Company.
The Company is not in default with respect to any material provision contained
in any such policy or binder and has not failed to give any notice or present
any claim under any such policy or binder in due and timely fashion. There are
no outstanding unpaid claims under any such policy or binder which have gone
unpaid for more than 45 days or as to which the carrier has disclaimed
liability. The Company has not received any notice of cancellation or non
renewal of any such policy or binder. The Company has not received any notice
from any of its insurance carriers that any insurance premiums will be
materially increased in the future or that any insurance coverage listed on
Schedule 2.26 will not be available in the future on substantially the same
terms as now in effect.
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2.27 Licenses and Permits. Schedule 2.27 sets forth a fist of the
material government permits, licenses, domain name and other registrations and
other consents and authorizations (federal, state, local and foreign) of any
Governmental or Regulatory Body (collectively, "Permits") which the Company has
obtained in connection with its assets, properties and business. Except as set
forth on Schedule 2.27 under the heading "Required Consents/Permits," no
material Permit is required to be obtained by the Company in connection with its
properties or the business of the Company. The Company has not received any
notice of any claim of revocation of any such Permit and has no knowledge of any
event which would be likely to give rise to such a claim.
2.28 Compliance with Laws. The Company (a) is in compliance in all
material respects with all, and not in violation in any material respect of any,
and has not received any claim or notice that it is not in compliance in any
material respect with, or that its is in violation in any material respect of,
any Law or Order to which the Company or any of its businesses, operations,
assets or properties (including the use and occupancy thereof) are subject and
(b) has not failed in any material respect to obtain or to adhere to the
requirements of any permit, license, registration and other consent or
authorization of any Governmental or Regulatory Body necessary in connection
with its assets, properties or business.
2.29 Banks and Proxies. Schedule 2.29 sets forth (a) the name of
each bank, trust company, securities or other broker or other financial
institution with which the Company has an account, credit line or safe deposit
box or vault, or otherwise maintains relations; (b) the name of each person
authorized by the Company to draw thereon or to have access to any safe deposit
box or vault; (c) the purpose of each such account, safe deposit box or vault;
and (d) the names of all persons authorized by proxies, powers of attorney or
other instruments to act on behalf of the Company in matters concerning the
business of the Company. All such accounts, credit lines, safe deposit boxes and
vaults are maintained by the Company for normal business purposes, and no such
proxies, powers of attorney or other like instruments are irrevocable.
2.30 Year 2000 Compliance. All Date Data and Date-Sensitive
Systems of the Company are Year 2000 Compliant.
2.31 Brokers. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried out by the Members directly
with the Purchaser, without the intervention of any other Person on behalf of
the Members in such manner as to give rise to any valid claim by any Person
against the Members or the Purchaser for a finder's fee, brokerage commission or
similar payment.
2.32 Acquisition of Regent Shares.
(a) Each of the Members represents and warrants that the
Regent Shares to be acquired by him pursuant to the terms of Section 1.1 is
being acquired for his own account, with no intention of transferring or
assigning any participation Regent Shares or any interest therein, and without a
view to the distribution of any of the portion of the Regent Shares, except in
accordance with the Securities Act. Each of the Members will not sell, assign,
transfer or
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encumber any of such shares unless (i) a registration statement under the
Securities Act with respect thereto is in effect and the prospectus included
therein meets the requirements of Section 10 of the Securities Act or (ii) the
Purchaser has received a written opinion of its counsel that, after an
investigation of the relevant facts, such counsel is of the opinion that such
proposed sale, assignment, transfer or encumbering does not require registration
under the Securities Act.
(b) Each of the Members understands, that, the Regent Shares
are not being registered under Securities Act and must be held indefinitely
unless they are subsequently registered thereunder or any exemption from such
registration is available and therefore the Members may be required to bear the
economic risk of the investments for an indefinite period of time. Each of the
Members understands that the Regent Shares are not being registered under the
Securities Act in part on the ground that the issuance thereof is exempt under
Section 4(2) of the Securities Act as a transaction by an issuer not involving
any public offering; that the Purchaser's reliance on such exemption is
predicated in part on the foregoing representation and warranty of the Members
and that in the statutory basis for the exemption claimed would not be present
if, notwithstanding such representation and warranty, such Member contemplates
acquiring any of the Regent Shares for sale upon the occurrence or nonoccurrence
of some predetermined event.
(c) Each of the Members understands that the Purchaser will
have an appropriate stop order placed on its stock records indicating the
existence of the terms of this Agreement, and that each certificate representing
any of the Regent Shares shall bear the following or a substantially similar
legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED
OR ENCUMBERED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT, OR UNLESS
THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT THAT SUCH
SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT."
(d) Each of the Members has received copies of Regent's Annual
Report on SEC Form 10-K for the fiscal year ended July 31, 1998 and Regent's
Quarterly Reports on SEC Forms 10-Q for the quarters ended January 31, 1999 and
April 30, 1999.
2.33 Disclosure. To the knowledge of the Members, neither this
Agreement, nor any Schedule or Exhibit to this Agreement, contains an untrue
statement of a material fact or omits a material fact necessary to make the
statements contained herein or therein not misleading.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
To induce the Members to enter into this Agreement and perform their
obligations under this Agreement, the Purchaser hereby represents and warrants
to the Members as follows:
3.1 Validity and Execution of Agreement. The Purchaser has the
full legal right and power required to enter into, execute and deliver this
Agreement and to perform fully its obligations hereunder. This Agreement has
been duly executed and delivered by the Purchaser and constitutes the valid and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, subject to the qualifications that enforcement of the
rights and remedies created hereby is subject to (a) bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and (b) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
3.2 No Conflict. Neither the execution and delivery of this
Agreement by the Purchaser nor the performance by the Purchaser of the
transactions contemplated hereby will: (a) violate or conflict with any
provisions of any Law or Order applicable to the Purchaser; or (c) require any
consent or approval by or filing or notice with any Governmental or Regulatory
Body.
3.3 Brokers. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried out by the Purchaser directly
with the Members without the intervention of any other Person on behalf of the
Purchaser in such manner as to give rise to any valid claim by any Person
against the Members for a finder's fee, brokerage commission or similar payment.
3.4 Disclosure. To the knowledge of the Purchaser, none of the
representations, warranties or covenants contained in this Agreement, nor in any
Schedule or Exhibit hereto, made by the Purchaser, contains any untrue statement
of a material fact or omits a material fact necessary to make the statements
contained herein or therein not misleading.
ARTICLE 4
PRE-CLOSING COVENANTS
The Members and the Purchaser hereby covenant and agree as follows:
4.1 Corporate Examinations and Investigations. At or prior to the
Closing Date, the Purchaser shall be entitled to make such investigation of the
assets, properties, business and operations of the Company and such examination
of the books, records, Tax Returns, financial condition and operations of the
Company as the Purchaser may wish. Any such investigation and examination shall
be conducted at reasonable times and under reasonable circumstances and
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the Company shall cooperate fully therein. In order that the Purchaser may have
full opportunity to make such a business, accounting and legal review,
examination or investigation as they may wish of the business and affairs of the
Company, the Company shall furnish to the Purchaser during such period all such
information and copies of such documents concerning the affairs of the Company
as the Purchaser may reasonably request and cause the Company's officers,
employees, consultants, agents, accountants and attorneys to cooperate fully
with the Purchaser in connection with such review and examination and to make
full disclosure to the Purchaser of all material facts affecting the financial
condition and business operations of the Company. Until the Closing and if the
Closing shall not occur, thereafter, the Purchaser and its Affiliates shall keep
confidential and shall not use in any manner inconsistent with the transactions
contemplated by this Agreement and after termination of this Agreement, the
Purchaser and its Affiliates shall not disclose, nor use for their own benefit,
any information or documents obtained from the Company concerning its assets,
properties, business and operations, unless (a) readily ascertainable from
public or published information, or trade sources, (b) received from a third
party not under an obligation to the Company to keep such information
confidential or (c) required by any Law or Order. If this transaction does not
close for any reason, the Purchaser and its Affiliates shall return or destroy
all such confidential information and compilations thereof as is practicable,
and shall certify such destruction or return to the Company.
4.2 Conduct of Business. From the date hereof through the Closing
Date, the Members shall cause the business of the Company to be conducted in the
ordinary course in the same manner as it has been conducted since it inception
on June 23, 1998.
4.3 Preservation of Business. From the date hereof through the
Closing Date, the Members shall cause the Company to use commercially reasonable
efforts to (i) preserve intact the business, assets, properties and
organizations of the Company, (ii) keep available the services of the present
officers, employees, consultants and agents of the Company; and (iii) maintain
the present suppliers and customers and preserve the goodwill of the Company.
4.4 Restructuring of the Purchaser. The Purchaser shall enter
into agreements with persons indebted to it and with persons to whom it is
indebted as a result of which the Purchaser will no longer own the notes
receivable reflected on the Period Financial Statements and will no longer have
any liability with respect to the indebtedness (current and long-term) reflected
on the Period Financial Statements.
4.5 Other Agreements. The Members and the Purchaser agree to take,
or cause to be taken, all actions and to do, or cause to be done, all things
reasonably necessary, proper or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement,
including, without limitation, the obtaining of all necessary waivers, consents
and approvals and the effecting of all necessary registrations and filings,
including, but not limited to, submissions of information requested by
Governmental or Regulatory Bodies and any other Persons required to be obtained
by them for the consummation of the closing and the continuance in full force
and effect of the permits, contracts and other agreements set forth on the
Schedules to this Agreement.
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ARTICLE 5
CONDITIONS PRECEDENT TO THE CLOSING
5.1 Conditions Precedent to the Obligations of the Purchaser to
Complete the Closing. The obligations of the Purchaser to enter into and
complete the Closing are subject to the fulfillment of the following conditions,
any one or more of which may be waived by the Purchaser:
(a) Closing Certificate of the Members. The Members shall have
delivered to the Purchaser a certificate signed by their representative, dated
the Closing Date, substantially in the form of Exhibit A-1 hereto.
(b) Delivery of Interests. The Members shall have delivered to
the Purchaser a certificate or certificates evidencing the LLC Interests.
(c) No Litigation. No Action or Proceeding shall be pending in
which it is sought to restrain or prohibit the consummation of the transactions
contemplated hereby. No order which restrains or prohibits the transactions
contemplated hereby shall be in effect and no Governmental or Regulatory Body
shall be seeking such an Order or threatening to do so.
(d) Required Consents. Each of the Required Consents shall
have been obtained.
(e) Opinion of Counsel. The Purchaser shall have received an
opinion of counsel from ▇▇▇▇, Dill, Carr, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C., Denver,
Colorado, as to such matters it shall reasonably requests.
(f) Approval of Documents. The form and substance of all legal
proceedings, documents, or papers used or delivered hereunder by the Members
shall be reasonably satisfactory to the Purchaser.
5.2 Conditions Precedent to the Obligations of the Members to
Complete the Closing. The obligations of the Members to enter into and complete
the Closing are subject to the fulfillment on or prior to the Closing Date, of
the following conditions, any one or more of which may be waived by the Members:
(a) Closing Certificate of the Purchaser. The Purchaser shall
have delivered to the Members a certificate signed by the Purchaser, dated the
Closing Date, substantially in the form of Exhibit A-2 hereto.
(b) Delivery of Purchase Price. The Purchaser shall have
delivered the Regent Shares to the Members.
(c) No Litigation. No Action or Proceeding shall be pending in
which it is sought to restrain or prohibit the consummation of the transactions
contemplated hereby. No
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order which restrains or prohibits the transactions contemplated hereby shall be
in effect and no Governmental or Regulatory Body shall be seeking such an Order
or threatening to do so.
(d) Opinion of Counsel. The Members shall have received an
opinion from ▇▇▇▇▇▇▇▇▇ Traurig, counsel for the Purchaser, as to such matters as
the Members shall reasonably request.
(e) Approval of Documents. The form and substance of all legal
proceedings, documents, or papers used or delivered hereunder by the Purchaser
shall be reasonably satisfactory to the Members.
ARTICLE 6
POST-CLOSING COVENANTS
The parties covenant to take the following actions after the Closing
Date:
6.1 Further Information. Following the Closing, each party will
afford to the other party, its counsel and its accountants, during normal
business hours, reasonable access to the books, records and other data of the
Company relating to the business of the Company in their possession with respect
to periods prior to the Closing and the right to make copies and extracts
therefrom, to the extent that such access may be reasonably required by the
requesting party (a) to facilitate the investigation, litigation and final
disposition of any claims which may have been or may be made against any party
or its Affiliates and (b) for any other reasonable business purpose.
6.2 Record Retention. Each party agrees that for a period of not
less than five years following the Closing Date, such party shall not destroy or
otherwise dispose of any of the Books and Records of the Company relating to the
business of the Company in his or its possession with respect to periods prior
to the Closing Date. Each party shall have the right to destroy all or part of
such Books and Records after the fifth anniversary of the Closing Date or, at an
earlier time by giving each other party hereto 30 days prior written notice of
such intended disposition and by offering to deliver to the other party or
parties, at the other party's or parties' expense, custody of such Books and
Records as such party may intend to destroy.
6.3 Post-Closing Assistance. The Members, on the one hand, and the
Purchaser, on the other hand, will provide each other with such assistance as
may reasonably be requested in connection with the preparation of any Tax
Return, any audit or other examination by any taxing authority, or any judicial
or administrative proceedings relating to liability for Taxes, and each will
retain and provide the requesting party with any records or information that may
be reasonably relevant to such return, audit or examination, proceedings or
determination. The party requesting assistance shall reimburse the other party
for reasonable out-of-pocket expenses incurred in providing such assistance. Any
information obtained pursuant to this Section 6.3 or pursuant to any other
Section hereof providing for the sharing of information or the review of
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any Tax Return or other schedule relating to Taxes shall be kept confidential by
the parties hereto.
6.4 SEC Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Regent Shares and other securities of the Purchaser to the
public without registration, from and after the Closing, the Company will:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times;
and
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Exchange Act.
6.5 Board of Directors; Compliance with Section 14(f) of the
Exchange Act. At Closing, all existing members of the Purchaser's Board of
Directors shall appoint F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., and four persons to be
designated by the Members to become the sole members of the Purchaser's Board of
Directors (subject to compliance with Rule 14f-1 referred to below) and all
existing members shall then resign. In order to effect such change in the
composition of the Purchaser's Board of Directors, the Purchaser, at or prior to
Closing shall have complied with the requirements of Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder; provided, that the
Purchaser's obligation to effect such compliance shall be contingent upon the
Members' furnishing to the Purchaser such information with respect to its
nominees to the Purchaser's Board of Directors as is required by the applicable
provisions of the Exchange Act and the rules and regulations promulgated
thereunder for compliance with Section 14(f) thereof.
6.6 Financial Statements of Daily Stocks, Inc. On or prior to
August 31, 1999, the Company will provide the Purchaser with true and complete
copies of the audited balance sheet of Daily Stocks, Inc., a Delaware
corporation, as of December 31, 1998 and the related statements of income,
statements of cash flow and statements of stockholders' equity for the year then
ended.
ARTICLE 7
SURVIVAL; INDEMNIFICATION
7.1 Survival of Agreements, Representations and Warranties.
Notwithstanding any investigation conducted or notice or knowledge obtained by
or on behalf of any party hereto, each agreement in this Agreement shall survive
the Closing without limitation as to time until fully performed and each
representation and warranty in this Agreement or in the Exhibits, Schedules or
certificates delivered pursuant to this Agreement shall survive the Closing for
a period of two years (other than the representations and warranties contained
in Section 2.5 which shall survive the Closing without limitation as to time,
and other than the representations and warranties contained in Sections 2.13,
which shall survive the Closing until the earlier of (i) three and one-half
years from the Closing Date and (ii) three years following the date on which the
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Company files the Tax Return relating to the taxable period from December 31,
1998 through the Closing Date). Notice must be given to the party from whom
indemnification is sought of any claim for indemnification under Article 7 prior
to the termination of the relevant survival period.
7.2 Indemnification by the Members. From and after the Closing
Date, the Members agree jointly and severally, to indemnify, hold harmless,
protect and defend the Purchaser and its Affiliates (including, without
limitation, the Company) (and their respective directors, officers, agents and
employees, successors and assigns) (each, a "Purchaser Indemnified Party") in
accordance with the provisions of this Article 7 from and against:
(i) any and all Damages incurred by any of them arising out
of, relating to or based upon or in connection with any inaccuracy in,
or breach of, any of the representations or warranties, covenants or
agreements of any of the Members or the Company contained in or
incorporated into this Agreement, in the Schedules hereto or in
certificates delivered pursuant to this Agreement; and
(ii) any Cost incurred by the Company in connection with this
Agreement and the transactions contemplated hereby.
The right of the Purchaser Indemnified Parties to be indemnified hereunder shall
not be limited or affected by any investigation conducted or notice or knowledge
obtained by or on behalf of any such Persons.
7.3 Purchaser's Indemnity. The Purchaser shall indemnify the
Members and hold the Members harmless against and in respect of any and all
damages, losses, claims, penalties, liabilities, costs and expenses (including,
without limitation, all fines, interest, reasonable legal fees and expenses and
amounts paid in settlement), that arise from or relate or are attributable to
(and without giving effect to any tax benefit to the indemnified party) (a) any
misrepresentation by the Purchaser or breach of any warranty by the Purchaser in
this Agreement and (b) any breach of any covenant or agreement on the part of
the Purchaser in this Agreement.
7.4 Method of Asserting Claims. The party making a claim under
this Article 7 is referred to as the "Indemnified Party" and the party against
whom such claims are asserted under this Article 7 is referred to as the
"Indemnifying Party". All claims by any Indemnified Party under this Article 7
shall be asserted and resolved as follows:
(a) Whenever an Indemnified Party becomes aware of a claim for
which an Indemnifying Party would be liable to an Indemnified Party hereunder,
the Indemnified Party shall with reasonable promptness notify in writing the
Indemnifying Party of such claim, identifying the representation or warranty on
which such claim is based, the basis for such claim or demand, and the amount or
the estimated amount thereof to the extent then determinable (which estimate
shall not be conclusive of the final amount of such claim and demand; the "Claim
Notice"); provided, that any failure to give a Claim Notice will not be deemed a
waiver of any rights of the Indemnified Party except to the extent the rights of
the Indemnifying Party are actually prejudiced by such failure. If the basis of
such claim is a claim or demand by a third
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party, the Indemnifying Party, upon request of the Indemnified Party, shall
retain counsel (who shall be reasonably acceptable to the Indemnified Party) to
represent the Indemnified Party and shall pay the reasonable fees and
disbursements of such counsel with regard thereto; provided, that any
Indemnified Party is hereby authorized prior to the date on which it receives
written notice from the Indemnifying Party designating such counsel, to retain
counsel, whose fees and expenses shall be at the expense of the Indemnifying
Party, to file any motion, answer or other pleading and take such other action
which it reasonably shall deem necessary to protect its interests or those of
the Indemnifying Party until the date on which the Indemnified Party receives
such notice from the Indemnifying Party. After the Indemnifying ▇▇▇▇▇ shall
retain such counsel, the Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (y)
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. The Indemnifying Party
shall not, in connection with any proceedings or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one such firm for
the Indemnified Party (except to the extent the Indemnified Party retained
counsel to protect its (or the Indemnifying Party's) rights prior to the
selection of counsel by the Indemnifying Party). If requested by the
Indemnifying Party, the Indemnified Party agrees to cooperate with the
Indemnifying Party and its counsel in contesting any claim or demand which the
Indemnifying Party defends. A claim or demand may not be settled by either party
without the prior written consent of the other party (which consent will not be
unreasonably withheld) unless, as part of such settlement, the Indemnified Party
shall receive a full and unconditional release reasonably satisfactory to the
Indemnifying Party.
(b) Whenever any Indemnified Party shall have a claim against
any Indemnifying Party hereunder which does not involve a claim or demand being
asserted against or sought to be collected from it by a third party, the
Indemnified Party shall send a Claim Notice with respect to such claim to the
Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to
indemnification exists pursuant to this Article 7, the affected parties each
agree to retain all Books and Records related to such Claim Notice. In each
instance, the Indemnified Party shall have the right to be kept fully informed
by the Indemnifying Party and its legal counsel with respect to any legal
proceedings. Any information or documents made available to any party hereunder
and designated as confidential by the party providing such information or
documents and which is not otherwise generally available to the public and not
already within the knowledge of the party to whom the information is provided
(unless otherwise covered by the confidentiality provisions of any other
agreement among the parties hereto, or any of them), and except as may be
required by applicable law, shall not be disclosed to any third Person (except
for the representatives of the party being provided with the information, in
which event the party being provided with the information shall request its
representatives not to disclose any such information which it otherwise required
hereunder to be kept confidential).
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7.5 General Provisions. The following general provisions shall
apply to any claim for indemnification under this Article 7:
(a) The amount of any claim subject to indemnification shall
be determined after taking into account the present value of any tax benefits
(net of tax detriments) accruing to the Indemnified Party or any Affiliate as a
result of such claim.
(b) Except as otherwise set forth in this Section 7.5(b), with
respect to any breach, violation or nonfulfillment of or default in the
performance of any representation, warranty or covenant of this Agreement for
which a right to claim indemnification is provided in this Article 7, after the
Closing a claim or an action under and pursuant to the terms, conditions and
limitations of this Article 7 shall be the sole and exclusive right and remedy
of the Purchaser and the Members, and neither the Purchaser nor any Member shall
have any other claim, cause of action, right, or remedy for such breach,
violation, non-fulfillment or default against the other based upon this
Agreement, any provision of any federal or state securities or other statute,
law, rule or regulation or based upon any other cause of action arising at law
or in equity; provided, that if for any reason a court of competent jurisdiction
shall refuse to enforce this provision, and shall permit the Purchaser or the
Members to assert any action based other than upon the right to claim
indemnification as provided in this Article 7, the Purchaser and the Members
agree that the amount of such other claim shall be subject to and limited by the
provisions of this Article 7. The provisions of this Section 7.5(b) shall not
preclude the prosecution of any action or proceeding based on fraud that, if
found to exist, would be sufficient to give rise to the right of rescission with
respect to the transactions contemplated by this Agreement.
ARTICLE 8
TERMINATION OF AGREEMENT
8.1 Termination. This Agreement may be terminated at any time
prior to the Closing as follows:
(a) by mutual written consent of the Purchaser and the
Members;
(b) by the Purchaser, on the one hand, or by all of the
Members, on the other hand, by written notice to the other party hereto, if the
Closing shall not have occurred on or prior to the close of business on July 31,
1999 (unless such event has been caused by a breach of this Agreement by the
party seeking such termination); and
(c) by the Purchaser or by all of the Members, if any Judgment
shall have been enacted, entered, promulgated or enforced which prohibits or
enjoins the consummation of the sale and purchase of the LLC Interests or the
Regent Shares and such Judgment is or shall have become final and nonappealable;
8.2 Survival After Termination. If this Agreement is terminated
pursuant to Section 8.1, (a) this Agreement shall become null and void and of no
further force and effect, except for
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the provisions of Article 4 relating to the obligation to keep confidential
certain information and (b) there shall be no liability on the part of the
Company or the Purchaser or their respective Affiliates.
ARTICLE 9
MISCELLANEOUS
9.1 Certain Definitions. As used in this Agreement, the
following terms have the following meanings unless the context otherwise
requires:
"Action or Proceeding" means any action, suit, proceeding or
arbitration by any Person or any investigation or audit by any Governmental or
Regulatory Body.
"Affiliate" with respect to any Person, means any other Person
controlling, controlled by of under common control with such Person.
"Agreement" means this Agreement.
"Books and Records" of any Person means all files, documents,
instruments, papers, books and records relating to the business, operations,
conditions of (financial or other), results of operations and assets and
properties of such Person, including without limitation financial statements,
Tax Returns and related work papers and letters from accountants, budgets,
pricing guidelines, ledgers, journals, deeds, title policies, minute books,
membership interest certificates and books, stock transfer ledgers, contracts
and other agreements, licenses, customer lists, computer files and programs,
retrieval programs, operating data and plans and environmental studies and
plans.
"Claim Notice" has the meaning specified in Section 7.4.
"Closing" has the meaning specified in Section 1.4.
"Closing Date" has the meaning specified in Section 1.4.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the U.S. Securities and Exchange Commission.
"Contracts" means all executory contracts, agreements, notes
understandings, indentures, bonds, loans, instruments, leases, mortgages,
franchises, licenses, commitments or other legally binding arrangements.
"Costs" means costs, fees and expenses.
"Damages" shall mean any and all losses, costs, claims, damages,
Liabilities Judgments, settlements, demands, offsets, Taxes, reasonable
out-of-pocket costs, expenses and attorneys'
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26
fees and penalties and interest, if any, incurred by any indemnified party, but
shall not include any incidental or consequential damages unless assessed
against an indemnified party as a result of a third party Claim or attorneys'
fees incurred in enforcing any indemnified party's right to indemnification
under this Agreement.
"Date Data" means any data of any type that includes date information
or which is otherwise derived from, dependent on or related to date information.
"Date-Sensitive System" means any software, microcode or hardware
system or component, including any electric or electronically controlled system
or component, that processes any Date Data and (a) that is installed, in
development or on order by the Company for its internal use, or (b) which the
Company sells, supports, maintains, operates, warrants, leases, licenses,
assigns or otherwise provides as an integral part of its products or services
(or has sold, supported, maintained, operated, warranted, leased, licensed,
assigned or otherwise provided in the past as an integral part of its products
or services).
"Disposal" means disposal as defined by RCA and the regulations
thereunder.
"Documents and other papers" means any document, agreement, instrument,
certificate, notice, consent, affidavit, letter, telegram, telex, statement,
schedule (including any Schedule to this Agreement) or exhibit (including any
Exhibit to this Agreement).
"DSI Financial Statements" has the meaning specified in Section
2.10(b).
"Environmental Laws" means any federal, state or local law,
regulation, ordinance or order pertaining to the protection of natural
resources, the environment and the health and safety of the public, including,
but not limited to, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. ss.ss.9601 et seq., the Resource
Conservation and Recovery Act ("RCA"), as amended, 42 U.S.C. ss.ss.6901 et
seq., the Hazardous Materials Transportation Act, as amended, 49 U.S.C. ▇▇.▇▇.
1801 et seq., the Federal Mine Safety and Health Act of 1977, as amended, 30
U.S.C. ss. 801 et seq., the Occupational Safety and Health Act, as amended, 29
U.S.C. ▇▇.▇▇. 651 et seq., and any other state, federal or local law,
regulation, rule, ordinance or order, currently in existence, which govern:
(a) the existence, cleanup and/or remedy of contamination on
property;
(b) the emission or discharge of Hazardous Substances into
the environment;
(c) the control of Hazardous Wastes; or
(d) the use, generation, transport, treatment, storage,
disposal, removal or recovery of Hazardous Substances, including building
materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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27
"GAAP" means generally accepted accounting principles.
"Governmental or Regulatory Body" means any court, tribunal, arbitrator
or any government or political subdivision thereof, whether federal, state,
county, local or foreign, or any agency, authority, official or instrumentality
of any such government or political subdivision.
"Hazardous Substances" means (a) any oil, flammable substances,
explosives, radioactive materials, hazardous wastes or substances, toxic wastes
or substances or any other wastes, materials or pollutants defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous waste", "restricted hazardous
waste", or "toxic substances" or words of similar import under any applicable
local, state or federal law or under the regulations adopted or publications
promulgated pursuant thereto, including, but not limited to, Environmental Laws;
and (b) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority.
"Hazardous Wastes" means hazardous wastes as defined by RCA and the
regulations thereunder.
"Indemnified Party" has the meaning specified in Section 7.4.
"Intangible Property" means all intellectual property rights used or
held for use in the conduct of the business of the Company (including the
Company's goodwill therein) and all rights, privileges, claims, causes of action
and options relating or pertaining to the business of the Company or its assets
or properties, including but not limited to advertiser lists and all related
databases, patents and applications therefor, know-how, trade secrets, secret
formulas, business and marketing plans, computer software (including source
codes to the extent the Company has rights therein) and related documentation,
copyrights and applications therefor, trademarks and applications therefor,
trade names, service marks and all names and slogans used by the Company in
connection with its business and licenses relating thereto.
"Indemnifying Party" has the meaning specified in Section 7.4.
"IRS" means the Internal Revenue Service.
"Judgment" means any judgments, orders, injunction (temporary or
permanent), decrees, rulings or awards of any federal state, local or foreign
court, arbitrator or other judicial authority or any federal, state, local or
foreign governmental, administrative or regulatory authority.
"Law" means any law, statute, rule, regulation, ordinance and other
pronouncement having the effect of law of the United States, any foreign country
or any domestic or foreign state, county, city or other political subdivision or
of any Governmental or Regulatory Body.
"Liabilities" has the meaning specified in Section 2.11.
"Lien" means any lien, pledge, hypothecation, mortgage, security
interest, claim, lease, charge, option, right of first refusal, easement,
servitude, transfer restriction under any member
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or similar agreement, encumbrance or any other restriction or limitation
whatsoever, other than (i) materialmen's, mechanics', repairmen's or other like
liens arising in the ordinary course of business for amounts either not yet due
or being contested in good faith and by appropriate proceedings so long as such
proceedings shall not involve any material danger of sale, forfeiture or loss of
any part of the Assets and shall have been disclosed to Purchase hereunder, or
(ii) any lien arising as a result of any act or omission of the Purchaser.
"Material Adverse Effect" means, in the case of any Person, any change
or changes or effect or effects that individually or in the aggregate are or may
reasonably be expected to be materially adverse to (i) the assets, properties,
business, operations, income or condition (financial or otherwise) of such
Person or (ii) the ability of such Person to perform its obligations under this
Agreement.
"Material Contract" shall mean any Contract of the following categories
to which the Company is a party or by which the Company or any of its assets or
properties is bound: (i) employment Contracts, including Contracts to employ
executive officers and other Contracts with officers, directors or shareholders,
and all severance, change in control or similar arrangements with any officers,
employees or agents that will result in any obligation (absolute or contingent)
to make any payment to any officers, employees or agents following either the
consummation of the transactions contemplated hereby, termination of employment,
or both; (ii) Contracts with organizations representing employees; (iii)
Contracts out of the ordinary course of business; (iv) Contracts which,
individually, involve an aggregate yearly amount in excess of $25,000 and are
not cancelable (without material penalty, cost or other liability) within ninety
days; (v) Contracts the duration of which exceeds three years and involving an
annual amount in excess of $25,000; (vi) other Contracts that create a right
and/or an obligation with respect to the Company in excess of $50,000; (vii)
Contracts (and in particular, promissory notes, loan agreements, indentures or
other evidence of indebtedness) providing for the lending of money, whether as
borrower, lender or guarantor; (viii) Contracts containing covenants limiting
the freedom to engage in any line of business or compete with any Person or
operate at any location; (ix) joint venture or partnership agreements or joint
development or similar agreements involving a commitment in excess of $25,000
(x) Contracts providing for the acquisition, directly or indirectly (by merger
or otherwise), of substantially all of the assets or any part of the capital
stock of another Person; (xi) Contracts including a change of control or similar
provision, pursuant to which the other party to such Contract has the right, as
a mere result of the transactions contemplated by this Agreement, to
substantially modify the terms of such Contract (including accelerate any
payment thereunder), or to terminate such Contract; and (xii) Contracts
providing for powers of attorney or similar authorizations that have been
entered into out of BDSI's ordinary course of business.
"Order" means any writ, judgment, decree, injunction or similar order
of any Governmental or Regulatory Body, in each case whether preliminary or
final.
"Period Financial Statements" has the meaning specified in Section
2.10(a).
"Permits" has the meaning specified in Section 2.27.
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"Person" means any individual, corporation, limited liability company,
partnership, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, Governmental or Regulatory Body or other entity.
"Petroleum Products" means petroleum, gasoline, oil, fuel oil, diesel
fuel, and petroleum solvents.
"Plan" means any written or unwritten plan, fund, program,
understanding, policy, arrangement, contract or commitment, whether qualified or
not qualified for federal income tax purposes, whether formal or informal,
whether for the benefit of a single individual or more than one individual
whether or not subject to ERISA, which is in the nature of (a) an employee
pension benefit plan (as defined in ERISA ss. 3(2)), (b) an employee welfare
benefit plan (as defined in ERISA ss. 3(1)) or (c) an incentive, deferred
compensation, bonus, executive or other benefit or compensatory arrangement for
employees, former employees, independent contractors, former independent
contractors or their dependents or their beneficiaries.
"Purchaser" has the meaning specified in the first paragraph of this
Agreement.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, placing, discharging, injecting, escaping, dumping or disposing into
the environment, whether intentional or unintentional.
"Required Consent" means any approval or consent of any Person to the
transactions contemplated by this Agreement required under (a) any Material
Contract, as set forth on Schedule 2.14 under the heading "Required
Consents/Contracts," (b) any right or interest of the Company relating to
Tangible Property, as set forth on Schedule 2.22 under the heading "Required
Consents/Intangible Property," (b) any right or interest of the Company relating
to Intangible Property, as set forth on Schedule 2.23 under the heading
"Required Consents/Intangible Property," or (d) any Permit, as set forth on
Schedule 2,26 under the heading "Required Consents/Permits."
"Securities Act" means the Securities Act of 1933, as amended.
"Tax Return" means any return, report, information return, or other
document (including any related or supporting information) filed or required to
be filed with any federal, state, local, or foreign governmental entity or other
authority in connection with the determination, assessment or collection of any
Tax (whether or not such Tax is imposed on the Company) or the administration of
any laws, regulations or administrative requirements relating to any Tax.
"Tax" and "Taxes" means all taxes, charges, fees, levies or other
assessments imposed by any federal, state, local or foreign taxing authority,
whether disputed or not, including, without limitation, income, capital,
estimated, excise, property, sales, transfer, withholding, employment, payroll,
and franchise taxes and such terms shall include any interest, penalties or
additions attributable to or imposed on or with respect to such assessments and
any expenses incurred in connection with the settlement of any tax liability.
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"Treatment" and "Storage" mean treatment and storage as defined by RCA
and the regulations thereunder.
"Year 2000 Compliant" means (i) with respect to Date Data, that such
data is in proper format and accurate for all dates in the twentieth and
twenty-first centuries, and (ii) with respect to Date-Sensitive Systems, that
each such system correctly and accurately processes all Date Data without
interruption before, during and after January 1, 2000, including those relating
to the twentieth and twenty-first centuries, without loss of any functionality
or performance, including but not limited to calculating, comparing, sequencing,
storing and displaying such Date Data (including all leap year considerations
and the quad-centennial rule), when used as a stand alone system or in
combination with other software or hardware.
9.2 Expenses. Each of the patties to this Agreement shall pay his
own expenses (including, without limitation, attorney's and accountants' fees
and out-of-pocket expenses) incident to this Agreement and the transactions
contemplated hereby.
9.3 Further Assurances. At any time and from time to time after
the Closing Date at the request of the Purchaser, and without further
consideration, the Members will execute and deliver such other instruments of
sale, transfer, conveyance, assignment and confirmation and take such other
action as the Purchaser may reasonably deem necessary or desirable in order to
transfer, convey and assign the Interests to the Purchaser and to assist the
Purchaser in exercising all rights with respect thereto. The parties shall use
their best efforts to fulfill or obtain the fulfillment of the conditions to the
Closing, including, without limitation, the execution and delivery of any
document or other papers, the execution and delivery of which are conditions
precedent to the Closing.
9.4 Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be given personally, sent by facsimile transmission or sent by prepaid
air courier or certified or express mail, postage prepaid. Any such notice shall
be deemed to have been given (a) when received, if delivered in person, sent by
facsimile transmission and confirmed in writing within three (3) business days
thereafter or sent by prepaid air courier or (b) three (3) business days
following the mailing thereof, if mailed by certified first class mail, postage
prepaid, return receipt requested, in any such case as follows (or to such other
address or addresses as a party may have advised the other in the manner
provided in this Section 9.4):
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If to the Company:
Stock ▇▇▇▇▇.▇▇▇ LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇
▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
President
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Dill, Carr, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Purchaser:
Regent Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
9.5 Publicity. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be made without advance
approval thereof by the Purchaser and the Members, except as may be required by
applicable law.
9.6 Entire Agreement. This Agreement (including the Exhibits and
Schedules) and the agreements, certificates and other documents delivered
pursuant to this Agreement contain the entire agreement among the parties with
respect to the transactions described herein, and supersede all prior
agreements, written or oral, with respect thereto.
9.7 Waivers and Amendments. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof
9.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
9.9 Binding Effect, No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable by any party hereto without
the prior written consent of the other parties hereto except by operation of law
and any other purported assignment shall be null and void.
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9.10 Variations in Pronouns. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the context
may require.
9.11 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
9.12 Exhibits and Schedules. The Exhibits and Schedules are a part of
this Agreement as if fully set forth herein. All references herein to Sections,
subsections, clauses, Exhibits and Schedules shall be deemed references to such
parts of this Agreement, unless the context shall otherwise require.
9.13 Effect of Disclosure on Schedules. Any item disclosed on any
Schedule to this Agreement shall only be deemed to be disclosed in connection
with (a) the specific representation and warranty to which such Schedule is
expressly referenced, (b) any specific representation and warranty which
expressly cross-references such Schedule and (c) any specific representation and
warranty to which any other Schedule to this Agreement is expressly referenced
if such other Schedule expressly cross-references such Schedule.
9.14 Headings. The headings in this Agreement are for reference only,
and shall not affect the interpretation of this Agreement.
9.15 Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of such provision or any portion
thereof to any Person or circumstance, shall be held invalid or unenforceable,
the remaining portion of such provision and the remaining provisions of this
Agreement, or the application of such provision or portion of such provision as
is held invalid or unenforceable to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
THE PURCHASER:
REGENT GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
THE COMPANY:
STOCK ▇▇▇▇▇.▇▇▇, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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34
LONG VIEW PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
SRU, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
30
35
SCHEDULE I
STOCK ▇▇▇▇▇.▇▇▇ LLC
MEMBERSHIP INTEREST SCHEDULE
------------------------------------------------------------------------------------------------------------------------
TIN OR MEMBERSHIP UNITS
NAME ADDRESS SS NO. TAX I.D.
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇, ▇▇, ▇▇ ▇▇▇▇▇ ###-##-#### 1,000,000
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ ###-##-#### 400,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ###-##-#### 1,000,000
Long View Partners, Inc. RD 2, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇-▇▇▇▇▇▇▇ 666,667
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇, ▇▇, ▇▇ ▇▇▇▇▇ ###-##-#### 333,333
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇, ▇▇ ▇▇▇▇▇ ###-##-#### 2,100,000
Redstone Partners, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇-▇▇▇▇▇▇▇ 1,000,000
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇, ▇▇ ▇▇▇▇▇ ###-##-#### 700,000
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ###-##-#### 2,900,000
SRU Inc. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., #▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 1,000,000
TOTAL 11,100,000
-----------------------------------------------------------------------------------------------------------------------
----------------------------------------------
MEMBERSHIP PERCENTAGE REGENT
SHARES
----------------------------------------------
9.00900901% 1,040,541
3.60380360% 416,216
9.00900901% 1,040,541
6.00600901% 693,694
3.00300000% 346,847
18.91891892% 2,185,135
9.00900901% 1,040,541
6.30630631% 728,376
26.12612613% 3,017,568
9.00900901% 1,040,541
100.0000000% 11,550,000
---------------------------------------------