STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made and entered into on December 5, 2003,
by and between ▇▇▇▇ ▇. ▇▇▇▇▇ (the "Seller") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (collectively, the "Purchaser").
WHEREAS, the Seller is a shareholder of SPIDERBOY INTERNATIONAL, INC., a
Minnesota corporation (the "Company"); and
WHEREAS, the Company has 43,627,775 shares of its common stock, no par
value per share, issued and outstanding (the "Company Common Stock"); and
WHEREAS, the Company has no ongoing operations, no assets, and certain
minimum liabilities, which shall be reflected in an unaudited financial
statement which shall be provided by the Seller at the closing hereunder (the
"Closing"); and
WHEREAS, the Company has approximately 426 holders of record of the Company
Common Stock; and
WHEREAS, at the Closing, the Seller wishes to sell to the Purchaser
21,851,503 shares of the Company Common Stock, which shares constitute
approximately 50.09 percent of the issued and outstanding shares of the Company
Common Stock pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereafter set forth, the Purchaser and the Seller hereby agree as
follows:
1. Purchase and Sale of Stock. Subject to the terms and conditions
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hereof, on the Closing Date (as defined below) the Seller agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Seller 21,851,503
shares of the Company Common Stock in exchange for $250,000 (the "Purchase
Price"). The Purchase Price will be payable as follows:
(a) The sum of $90,000 will be payable at the Closing;
(b) The sum of $160,000 will be payable pursuant to the terms of
that certain promissory note in the form of Exhibit A, a copy of which is
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attached hereto and incorporated herein by reference for all purposes (the
"Note"). The Note will be secured by that certain Stock Pledge Agreement in the
form of Exhibit B, a copy of which is attached hereto and incorporated herein by
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reference for all purposes (the "Stock Pledge Agreement").
2. Further Terms of the Sale and Purchase. It is expressly agreed that
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the Company shall convey to the Seller before the Closing:
(a) Any and all of its tangible and intangible assets, including,
but not limited to, all intellectual rights owned by the Company and its
wholly-owned subsidiary, ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Florida corporation (the
"Subsidiary"), acquired on or before the Closing. As used herein, the term
"intellectual rights" include all trademarks or trademarks applied for by the
Company or the Subsidiary, such as but not limited to Spiderboy and Street
Confessions;
(b) Any films and film footage, movies, film releases signed by
people or celebrities or any other participant that may have agreed to appear in
any film;
(c) All other assets such as any and all computers and/or film
equipment in the possession of the Company or the Subsidiary before the Closing;
(d) The release of all employee agreements and employee contracts
signed on or before the Closing, and which agreements and contracts have been
assigned to the Seller; and
(e) Any rights to all Internet addresses or urls such as
▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
wallstreetinformation, and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇, including all other Internet
addresses registered in the name of the Company or the Subsidiary.
3. Reverse Spilt of the Company Common Stock. The Purchaser agrees
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that if a reverse split of the Company Common Stock is ever necessary in the
future, the Purchaser agrees not to reverse split the shares of the Company
Common Stock more than one time over a period of 36 months and any such reverse
split shall not be in excess of ten to one.
4. The Closing. The Closing hereunder shall be held at the offices of
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the Seller located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ on
or before November ___, 2003 or at such other time and place as the Seller and
the Purchaser may mutually agree (the "Closing Date").
5. Representations and Warranties of the Seller. The Seller represents
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and warrants to the Purchaser that the following is true and correct to the best
of his knowledge as of the date hereof and shall be true and correct to the best
of his knowledge as of the Closing:
(a) Existence. The Company is a corporation duly organized and
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validly existing under the laws of Minnesota.
(b) Authorization; No Violation. The execution, delivery and
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performance by the Seller of this Agreement are within the Seller's powers, have
been duly authorized by all necessary action, and do not contravene in any
material respect any Requirement of Law or Contractual Obligation of the Seller.
As used herein, "Requirement of Law" shall mean, as to any Person, the
certificate of incorporation and bylaws or other organizational or governing
documents of such Person, if applicable, and any law, treaty, rule or
regulation, or determination of an arbitrator or any court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject. As used
herein, "Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound. As used herein, "Person" shall mean an individual or any
corporation, association, partnership, joint venture, estate, trust or other
legal entity, including any Governmental Authority. As used herein,
"Governmental Authority" shall mean any nation or government, any state or other
political subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
The transfer of the shares of the company Common Stock hereunder constitutes a
transfer of control of the Company, which has been approved by the shareholders
of the Company.
(c) Enforceable Obligations. This Agreement has been duly
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executed and delivered on behalf of the Seller and constitutes the legal, valid
and binding obligation of the Seller enforceable against the Seller in
accordance with its terms and conditions, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
(d) Liabilities. The Seller shall pay all of the liabilities of
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the Company as described on the Company's latest filings with the Securities and
Exchange Commission existing as of the Closing which total $18,066.94 and are
set out in Exhibit C, attached hereto and incorporated herein by reference for
all purposes. At the Closing, the Seller shall pay the liability owed to
Fidelity Transfer in the amount of $1,231.19 and the liability owed to ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and Associates in the amount of $5,075.00 out of the cash payment to be
made at the Closing. The remaining liabilities described in Exhibit C shall be
paid by the Seller out of the first payment due on the Note. In the event that
the Seller fails to pay any such remainder of the liabilities described in
Exhibit C, then the Purchaser may at its option, pay any such liabilities and
receive a credit upon the next maturing installments of principal due on the
Note to the extent of any such payment.
(e) No Litigation. No claim, action, suit, investigation or
--------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Seller, threatened by or against the Seller with respect
to the Company, this Agreement or any of the transactions contemplated hereby.
To the best of the Seller's knowledge, no judgment, order, writ, injunction,
decree or award issued by any Governmental Authority
is applicable to the Seller, which affects any of the shares of the Company
Common Stock, the Company, this Agreement or any of the transactions
contemplated hereby.
(f) Ownership of the shares of the Company Common Stock. The
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Seller owns of record and beneficially 21,851,503 shares of the Company Common
Stock, which shares constitute approximately 50.09 percent of the issued and
outstanding shares of the Company Common Stock, all of which are free and clear
of any liens, claims and encumbrances (collectively, the "Encumbrances"). The
Seller has the right to transfer title to the shares of the Company Common Stock
to the Purchaser as contemplated hereunder. There are no commitments,
agreements or rights relating to the purchase, sale or other disposition of the
shares of the Company Common Stock to be sold by the Seller hereunder or any
interest therein (including, without limitation, any subscription agreement,
preemptive right or right of first refusal). None of the shares of the Company
Common Stock to be sold by the Seller hereunder are subject to any voting trust,
voting agreement, or other similar agreement or understanding with respect to
the voting or control thereof, nor is any proxy in existence with respect to any
of the shares. Upon the sale of the shares of the Company Common Stock to the
Purchaser pursuant to this Agreement, the Purchaser will own the shares free and
clear of all Encumbrances, except for the Purchaser's obligations under the
Stock Pledge Agreement, and those restrictions imposed by Rule 144 promulgated
under the Securities Act of1933, as amended (the "Securities Act").
(g) Disclosure. No representation made by the Seller in this
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Agreement and in any attachment hereto, to the best knowledge of the Seller,
contains any untrue statement of material fact or omits any material fact in
order to make the statements made and information contained therein as of the
date hereof not misleading.
(h) Organization, Standing and Qualification of the Company. The
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Company is a corporation duly organized, validly existing and in good standing
under the laws of Minnesota and has all necessary corporate power and authority
to engage in the business in which it is presently engaged. The Company has not
qualified to do business as a foreign corporation in any state other than
Minnesota. The Seller shall deliver to the Purchaser true, correct and complete
copies of the certificate of incorporation and bylaws of the Company, and all
amendments thereto.
(i) Capital Structure of the Company. The authorized capital
------------------------------------
stock of the Company consists of 50,000,000 shares of common stock of which
43,627,775 shares are issued and outstanding and 5,000,000 shares of preferred
stock of which none is issued or outstanding. No other class or series of
capital stock of the Company is or has been authorized, nor has the Company
authorized or issued, nor does it have outstanding, any other securities
(including, without limitation, options, warrants, conversion privileges or
other rights, contingent or otherwise, to purchase any capital stock or other
securities of the Company). All of the shares of the Company Common Stock are
duly authorized, validly issued, fully paid and non-assessable, and were issued
in compliance with all applicable Requirements of Law (including securities
laws) and in compliance with the certificate of incorporation and bylaws of the
Company. There are no outstanding subscriptions for any securities to be issued
by the Company
(j) Subsidiary. The Company has one subsidiary, ▇▇▇▇▇▇▇▇▇.▇▇▇,
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Inc., a Florida corporation.
(k) No Violation of Statute or Breach of Contract. To the best
------------------------------------------------
knowledge of the Seller, the Company is not in default under, or in violation of
(i) any material applicable Requirement of Law, or (ii) any material Contractual
Obligation. The Company has not received notice that any Person claims that the
Company has committed such a default or violation.
(l) Effect of this Agreement. The execution and delivery of this
-------------------------
Agreement by the Seller, performance of the obligations of the Seller hereunder
and consummation of the transactions contemplated hereby will not (i) result in
a breach or violation of any Requirement of Law applicable to the Company; (ii)
result in the breach of, or be in conflict with, any term, covenant, condition
or provision of, any Contractual Obligation of the Company; or (iii) result in
the creation or imposition of any Encumbrance upon any assets of the Company.
(m) Financial Statements. The audited balance sheet and income
---------------------
statement of the Company as of July 31, 2003 (the "Financial Statements") is
complete and accurate and fairly presents the assets and liabilities of the
Company as of the dates and for the periods therein specified.
(n) Assets and Business. The Company, at the Closing will have no
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assets or business.
(o) Tax Returns and Payments. All income tax returns, federal,
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state, local, foreign and other, including, without limitation, all federal
income tax returns and reports for each fiscal year of the Company through the
fiscal year ended December 31, 2002 required to be filed by and/or on behalf of
the Company in respect of any income taxes (including, without limitation, all
foreign, federal, state, county and local income taxes) have been filed, and the
Company has paid all income taxes shown thereon as owing except where the
failure to file or to pay income taxes would not have a material adverse affect
on the financial condition of the Company. There are no deficiency assessments
against the Company with respect to any foreign, federal, state, local or other
taxes. There are no outstanding agreements or waivers extending the period of
limitation applicable for assessment or collection for any federal, state, local
or foreign tax, or for the filing of any tax return, in respect of the Company
for any period. Neither the federal tax returns nor any state, county, local or
foreign tax returns of the Company have in the past been audited by the Internal
Revenue Service or any other taxing authority. The Seller has heretofore made
available to the Purchaser copies of all federal, state, local and foreign tax
returns or reports of the Company filed prior to the Closing. To the Seller's
best knowledge, all tax returns filed by or on behalf of the Company are
materially true, correct and complete. To the best knowledge of the Seller, all
taxes that the Company is or was required to withhold or collect (including,
without limitation, payroll taxes) have been duly withheld or collected and paid
to the proper Governmental Authority.
(p) Contracts. There are no written agreements and contracts to
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which the Company is a party or by which it is bound.
(q) Litigation. No claim, action, suit, or other proceeding
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against the Company is pending or, to the knowledge of the Seller, is threatened
before or by any court, administrative or regulatory body, or other Governmental
Authority. The Seller knows of no investigation of the Company by any
administrative agency of any federal, state or local government. No judgment,
order, writ, injunction, decree or award issued by any Governmental Authority is
applicable to the Company.
(r) Accounts, Powers of Attorney. There are no persons holding a
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power of attorney on behalf of the Company or otherwise holding the right to act
as an agent on behalf of the Company.
(s) Insurance. There are no insurance policies maintained by or
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on behalf of the Company.
(t) Minute Books. All stock books, stock ledgers and minute books
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of the Company shall be provided to Purchaser at the Closing.
6. Representations of the Purchaser. The Purchaser hereby represents
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and warrants to the Seller as follows:
(a) Authorization; No Violation. The execution, delivery and
-----------------------------
performance by the Purchaser of this Agreement are within the Purchaser's powers
and have been duly authorized by all necessary action, and do not contravene in
any material respect any Requirement of Law or Contractual Obligation of the
Purchaser.
(b) Government Authorization. No authorization or approval or
-------------------------
other action by, and no notice to or filing with, any Governmental Authority is
required to be obtained or made by the Purchaser for the due execution, delivery
and performance by the Purchaser of this Agreement.
(c) Enforceable Obligations. This Agreement has been duly
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executed and delivered on behalf of the Purchaser and constitutes the legal,
valid and binding obligation of the Purchaser enforceable against the Purchaser
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
(d) No Litigation. No claim, action, suit, investigation or other
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proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Purchaser, threatened by or against the Purchaser with
respect to this Agreement or any of the transactions contemplated hereby.
(e) Investment Intent. The Purchaser acknowledges that there is
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no existing public market for the shares of the Company Common Stock to be
purchased hereunder and that no registration statement relating to the shares of
the Company Common Stock to be purchased hereunder has been filed under the
Securities Act or any applicable state securities laws, and that the shares of
the Company Common Stock must be held by him for an indefinite period of time
unless the shares of the Company Common Stock are subsequently registered under
the Securities Act and state securities laws or unless an exemption from any
such applicable registration requirement is available, and the Purchaser
acknowledges that there is no assurance or obligation as to any such
registration or exemption.
(f) Acquisition. Within 90 days following the Closing, the
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Purchaser shall cause the Company to acquire a 51 percent interest in BigVault,
Inc., a Delaware corporation ("BigVault"). The Purchaser shall cause the
interest in BigVault to be contributed to the Company as a contribution to the
capital of the Company at no charge to the Company.
7. Conditions to the Purchaser's Obligations. The obligation of the
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Purchaser to purchase the shares of the Company Common Stock at the Closing is
subject to the fulfillment on or prior to the Closing of the following
conditions:
(a) Representations Correct; Performance of Obligations. The
-------------------------------------------------------
representations made by the Seller herein shall be true and correct in all
material respects when made, and shall be true and correct in all material
respects at the Closing with the same force and effect as if they had been made
on and as of the Closing Date. The Seller shall have performed in all material
respects all obligations and conditions herein required to be performed or
observed by him on or prior to the Closing.
(b) Dividends. The Company shall not have declared or paid any
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dividend or otherwise changed its capitalization between the date hereof and the
Closing.
(c) Audited Financial Statements. The Purchaser shall have
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received and approved the Financial Statements.
(d) Election of Officers and Directors. Before the Closing, the
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Seller shall have caused the election of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, as president, and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as chief financial officer, of the Company, and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇ as directors of
the Company.
(e) Payments at the Closing. At the Closing, the Seller shall pay
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the liability owed to Fidelity Transfer in the amount of $1,231.19 and the
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liability owed to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Associates in the amount of $5,075.00 out
--------------------------------------------------------------------------------
of the cash payment to be made at the Closing.
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8. Conditions to Obligations of the Seller. The Seller's obligation to
---------------------------------------
sell the shares of the Company Common Stock at the Closing is subject to the
fulfillment that on or prior to the Closing all of the representations of the
Purchaser herein shall be true and correct in all material respects when made,
and shall be true and correct in all material respects at the Closing with the
same force and effect as if they had been made on and as of the Closing Date,
and the Purchaser shall have performed in all material respects all obligations
and conditions herein required to be performed by him on or prior to the
Closing.
9. Indemnification by the Seller.
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(a) Subject to the provisions of this Paragraph 9, the Seller
shall indemnify and hold harmless the Company, the Purchaser and their
affiliates and the officers, partners, directors, employees, agents, owners,
successors and assigns thereof from any loss, damage, liability or expense,
including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses incurred in connection with any action,
suit or proceeding against any thereof ("Adverse Consequence") incurred or
suffered by such party and
arising out of or resulting from any claim resulting from personally signed
agreements by the Seller excluding filings and also agreements to creditors
authorized in writing by the Seller during his term as officer of the Company
and the Seller does not warrant against any claim not mentioned in this
Paragraph 9(a). The Seller also agrees to provide to the Purchaser at the
Closing the previous indemnification letter from the previous president and
chief executive officer of the Company.
(b) Anything to the contrary contained herein notwithstanding, in
the event of liability of the Seller to the Purchaser under this Paragraph 9,
the Seller may discharge such liability by transferring to the Purchaser shares
of the Company Common Stock which shall be deemed to have a value per share
equal to the average public trading price of the Purchaser's shares of the
Company Common Stock during the 20 trading days prior to such transfer, but not
less than $1.00 per share.
10. Indemnification by the Purchaser. The Purchaser shall indemnify
-----------------------------------
and hold the Seller and existing officers and directors harmless from any loss,
damage, liability or expense (including, without limitation, reasonable expenses
of investigation and reasonable attorneys' fees and expenses) in connection with
any action, suit or proceeding brought against the Seller, incurred or suffered
by the Seller and arising out of or resulting from (a) any breach of any
representation, warranty, or covenant made by the Purchaser hereunder, or (b)
any lawsuit or other proceeding or claim brought by a third party after the
Closing against the Seller and other officers and directors in office before the
Closing Date with respect to any acts or omissions of the Purchaser or the
Company after the Closing.
11. Duration of Indemnification. The indemnification obligations under
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this Agreement shall continue for the periods specified below and shall
terminate with the expiration of such respective periods:
(a) As to representations and warranties set forth in Paragraph
5(f), and Paragraphs 9 and 10, such representations and warranties shall survive
the Closing indefinitely;
(b) Any claim or demand against the Seller or the Purchaser of
which notice has been given pursuant to this Agreement at or prior to the
expiration of the related period shall continue to be subject to indemnification
hereunder notwithstanding the expiration of such period.
12. Notice Claim. The Purchaser, on the one hand, and the Seller, on
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the other hand, shall promptly notify the other of any claim, suit or demand of
which the notifying party has actual knowledge which entitles it to
indemnification hereunder, provided, however, that the delay or failure of any
party required to provide such notification shall not affect the liability of
the indemnifying party hereunder except to the extent the indemnifying party is
harmed by such delay or failure.
13. Defense. If the liability or claim for which indemnification under
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this Agreement is sought is asserted by a third party, the indemnifying party
shall have, at its election, the right to defend any such matter at its sole
cost and expense through counsel chosen by it and reasonably acceptable to the
indemnified party (provided that the indemnifying party shall have no such right
if it is contesting its liability hereunder). If the indemnifying party so
undertakes to defend, the indemnifying party shall promptly notify the
indemnified party hereto of its intention to do so. The indemnifying party
shall not, without the indemnified party's written consent, settle or compromise
any claim or consent to an entry of judgment which does not include as an
unconditional term thereof a release of the indemnified party.
14. Deliveries of the Seller at the Closing. At the Closing, in
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addition to any other documents or agreements required under this Agreement, the
Seller shall deliver or cause to be delivered to the Purchaser the following:
(a) A stock certificate representing 21,851,503 shares of the
Company Common Stock duly endorsed in the name of the Purchaser.
Notwithstanding anything herein contained to contrary, such stock certificate
shall be subject to the Stock Pledge Agreement.
(b) All records, documents and files of the Company including,
without limitation, all minute books, stock records and internal accounting
records.
(c) Letters of resignations of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as the officers and directors
of the Company.
(d) The indemnification letter from the previous president and
chief executive officer of the Company as described in Paragraph 9 hereof.
(e) Such other documents, assignments, instruments of conveyance
and certificates as reasonably may be required by the Purchaser to consummate
this Agreement and the transactions contemplated hereby.
15. Deliveries of the Purchaser at the Closing. At the Closing, in
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addition to any other documents or agreements required under this Agreement, the
Purchaser shall deliver or cause to be delivered to the Seller the following:
(a) A bank wire transfer in the amount of $90,000 to an account to
be designated by the Seller before the Closing.
(b) The Note.
(c) The Stock Pledge Agreement.
(d) Such other documents, assignments, instruments of conveyance
and certificates as reasonably may be required by the Seller to consummate this
Agreement and the transactions contemplated hereby.
16. Cooperation and Conflicts. Each party agrees in all cases to
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cooperate with the indemnifying party and its counsel in the defense of any such
liabilities or claims. The indemnifying party and the indemnified party or
parties may be represented by the same counsel unless such representation would
be inappropriate due to conflicts of interest between them. In addition, the
indemnified party or parties shall at all times be entitled to monitor and
participate in such defense through the appointment of counsel of its or their
own choosing, at its or their own cost and expense.
17. Waiver. Any extension or waiver with respect to any agreement or
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condition contained herein or the breach thereof shall be valid only if set
forth in a separate instrument in writing signed by the party to be bound
thereby. Any waiver of any term or condition shall not be construed as a waiver
of any subsequent breach or a subsequent waiver of the same term or condition,
or a waiver of any other term or condition, of this Agreement. The failure of
any party to assert any of its rights hereunder shall not constitute a waiver of
any such rights.
18. Further Assurances. The Seller agrees without further
-------------------
consideration, to execute and deliver following the Closing such other
instruments of transfer and take such other action as the Purchaser may
reasonably request in order to put the Purchaser in possession of, and to vest
in the Purchaser, good and valid title to the shares of the Company Common Stock
free and clear of any Encumbrances in accordance with this Agreement and to
otherwise consummate the transactions contemplated by this Agreement.
19. Entire Agreement; Amendment. This Agreement and the other
-----------------------------
documents delivered pursuant hereto constitute the full and entire understanding
and agreement among the parties hereto with regard to the subject matter hereof
and thereof and supersede all prior and contemporaneous agreements and
understandings, oral or written, among the parties hereto with respect to such
subject matter. Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived only with the written consent of the
parties hereto.
20. Severability. If any term or other provision of this Agreement is
------------
invalid, illegal or incapable of being enforced by any law, rule or regulation
or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent possible.
21. Notices. All notices and other communications required or
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permitted hereunder shall be in writing and shall be delivered personally,
mailed by first-class mail, postage prepaid, or sent by reputable overnight
courier service addressed (a) if to the Purchaser, at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the Purchaser
shall have furnished to the Seller by 10 days' notice in writing, with a copy to
(b) if to the Seller, at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
or such other address as the Seller shall have furnished to the Purchaser by 10
days' notice in writing.
22. Expenses. All costs and expenses, including, without limitation,
--------
fees and disbursements of counsel, financial advisors and accountants, incurred
in connection with the negotiation, preparation, execution and delivery of this
Agreement and consummation of the transactions contemplated hereby shall be paid
by the party incurring such costs and expenses; however, the Purchaser shall pay
for the audit of the Company.
23. Governing Law; Jurisdiction. This Agreement shall be governed in
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all respects by the laws of the State of Minnesota without application of
principles of conflicts of laws. Any action or proceeding seeking to enforce
any provision of, or based on any right arising out of, this Agreement may be
brought against any of the parties in any state or federal court located in the
State of Minnesota, and each of the parties consents to the jurisdiction of such
courts in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
24. Benefit of Agreement; Assignment. This Agreement will apply to, be
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binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the parties. This Agreement may not be assigned by
operation of law or otherwise by the Purchaser without the express written
consent of the Seller (which consent may be granted or withheld in the sole
discretion of the Seller). Notwithstanding the foregoing, this Agreement and
the rights hereunder may be (a) assigned as collateral security to any lender of
funds to the Company, and (b) assigned by the Purchaser after the Closing to the
beneficial owners of the Purchaser or to any subsequent purchaser or other
holder of all or a portion of the shares of the Company Common Stock, provided
that in no event shall the Purchaser be relieved from his obligations hereunder
in connection with any such assignment.
25. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES
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TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR AGAINST IT
ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT.
26. Titles and Subtitles. The titles of the paragraphs of this
----------------------
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
27. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
28. Representation Disclaimer. The Seller shall not be deemed to have
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made to the Purchaser any representation or warranty other than as expressly
made by the Seller herein. Without limiting the generality of the foregoing,
and notwithstanding any otherwise express representations and warranties made by
the Seller herein, the Seller makes no representation or warranty to Purchaser
with respect to:
(a) Any projections, estimates or budgets heretofore delivered to
or made available to the Purchaser of future revenues, expenses or expenditures
or future results of operations; or
(b) Except as expressly covered by a representation and warranty
contained herein, any other information or documents (financial or otherwise)
made available to the Purchaser or his counsel, accountants or advisers with
respect to the Company.
29. Purchaser's Due Diligence Investigation. The Purchaser shall have
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until the Closing Date (such period, the "Purchaser's Due Diligence Period") in
which to conduct his confirmatory due diligence. During the
Purchaser's Due Diligence Period, the Purchaser and his accountants,
consultants, and advisers shall be permitted to review the premises, facilities,
books and records and contracts of the Company, and to conduct interviews with
the Company's senior management regarding the business, operations, financial
condition and results of operations of the Company, for the purpose of
confirming the accuracy of the representations and warranties of the Seller
contained herein. The Purchaser has the right, at any time during the
Purchaser's Due Diligence Period, at the Purchaser's sole discretion and without
any liability or obligation, to terminate all negotiations with the Seller.
30. The Seller's Due Diligence Investigation. The Seller shall have
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until the Closing Date (such period, the "Sellers' Due Diligence Period") in
which to conduct his confirmatory due diligence. During the Seller's Due
Diligence Period, the Seller and his accountants, consultants, and advisers
shall be permitted to review the premises, facilities, books and records and
contracts of BigVault, and to conduct interviews with BigVault's senior
management regarding the business, operations, financial condition and results
of operations of BigVault, for the purpose of confirming the accuracy of the
representations and warranties of the Purchaser contained herein.
31. Press Releases and Public Announcements. No party shall issue any
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press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
Purchaser and the Seller; provided, however, that any party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing party will use its efforts to advise the other parties prior
to making the disclosure).
32. Entire Agreement. This instrument contains the entire Agreement of
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the parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought. Specifically, this Agreement supercedes that certain agreement dated
October 15, 2003 with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the heading hereof.
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Attachments:
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Exhibit A - The Note
Exhibit B - The Stock Pledge Agreement
Exhibit C - Liabilities of the Company