EXHIBIT 10.2
STOCK PURCHASE AND OPTION AGREEMENT
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THIS STOCK PURCHASE AND OPTION AGREEMENT ("Agreement") is entered into as
of July 20, 1999, between ENTREPORT CORPORATION, a Florida corporation
("Purchaser"), SPORTSWARE TECHNOLOGIES, INC., a Texas corporation ("Seller"),
and the stockholders of Seller listed on the list of selling stockholders ("List
of Selling Stockholders") attached as Exhibit "A" hereto and who have executed
this Agreement ("Selling Stockholders").
R E C I T A L S
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A. Seller has authorized capital stock consisting of 1,000,000 shares of
common stock ("Seller Common Stock"), $.01 par value, of which 105,882 shares
are issued and outstanding.
B. The Selling Stockholders are the sole stockholders of Seller and
Exhibit A to this Agreement accurately lists all of the Seller Common Stock
owned by each Selling Stockholder
C. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, up to 5,573 shares ("Shares") of Seller Common Stock, which, when
issued and conveyed to Purchaser, will represent five percent (5%) of all issued
and outstanding shares of Seller Common Stock, in accordance with the terms and
conditions contained in this Agreement.
D. As an inducement to Purchaser to enter into this Agreement and to
purchase the Shares, the Selling Stockholders desire to sell to Purchaser, and
Purchaser desires to purchase from the Selling Stockholders, an option to
purchase all of the issued and outstanding shares of Seller Common Stock held by
the Selling Stockholders for an aggregate of Eight Million Dollars
($8,000,000.00) payable Five Million, Five Hundred-Thousand Dollars
($5,500,000.00) in United States dollars and Two Million, Five Hundred-Thousand
Dollars ($2,50,000.00) in shares of Purchaser's $.001 par value common stock
based upon the average price per share of Purchaser's common stock for the most
recent thirty (30) days immediately preceding exercise of the Option, in
accordance with the terms and conditions contained in this Agreement.
A G R E E M E N T
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In consideration of the foregoing and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
I. PURCHASE AND SALE OF SHARES AND OPTIONS.
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1.1 Agreement to Purchase and Sell Shares. Subject to the terms and
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conditions of this Agreement, Seller agrees to sell, issue and deliver to
Purchaser, and the Purchaser agrees to purchase from Seller, the Shares at a
purchase price of Four Hundred Thousand Dollars ($400,000) or $71.78 per Share.
Purchaser shall purchase 2,715 of the Shares ("Initial Shares ") at the Initial
Closing (as defined below) in consideration of Purchaser's delivery of $200,000,
by
wire or cashier's check. At any time commencing on August 1, 1999 and up to
but not beyond December 21, 1999, Purchaser shall purchase from Seller, at
Seller's election and upon 72 hours advance written notice ("Notice to Sell") to
Purchaser, all of the other 2,858 Shares ("Other Shares") at the purchase price
of $69.98 per Share.
1.2 Agreement to Purchase and Sell Options. Subject to the terms and
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conditions of this Agreement, each Selling Stockholder, individually and not
jointly, hereby grants to Purchaser an option ("Option") to purchase all of the
Seller Common Stock owned by the Selling Stockholder. Each Option shall entitle
the Purchaser to purchase at any time, or from time to time, up to but not
beyond December 21, 1999 all or any portion of the Seller Common Stock owned by
the Selling Stockholder at an exercise price of $75.56 per share. The Options
shall otherwise be subject to the terms and conditions set forth in the form of
Option Agreement attached hereto as Exhibit B.
III. CLOSINGS
A. Initial Closing.
1. Date and Location. The initial closing ("Initial Closing") shall be
held at 2:00 p.m. on July 21, 1999, or such earlier or later date as may be
mutually agreed upon in writing by the parties hereto ("Initial Closing Date"),
at the offices of the Seller or such other location mutually acceptable to
Seller and Purchaser.
2. Delivery by Seller. At the Initial Closing, Seller shall cause to be
delivered to Purchaser the following documents, instruments and items, all of
which shall be dated on or effective as of the Initial Closing Date:
a. Certificates representing and evidencing the Initial Shares duly
endorsed by an appropriate officer of Seller;
b. Certified resolutions of Seller's officers and shareholders
authorizing the execution of this Agreement and the consummation of the
transactions contemplated hereby;
c. Option Agreements in the form attached hereto as Exhibit B duly
executed by each of the Selling Stockholders entitling the Purchaser to Purchase
all of the issued and outstanding shares of Seller Common Stock (other than the
Shares being purchased by Purchaser hereunder); and
d. All other documents reasonably requested by Purchaser.
3. Delivery by Purchaser. At the Initial Closing, Purchaser shall cause
to be delivered to Seller, as the case may be, the following documents,
instruments, and items, all of which shall be dated on or effective as of the
Initial Closing Date:
a. Cashier's check or wire transfer in the amount of $200,000;
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b. A certified resolution authorizing the execution of this
Agreement and the consummation of the transactions contemplated hereby; and
c. All other documents reasonably requested by Seller.
B. Additional Closings. Seller and Purchaser shall conduct additional
closings ("Additional Closings") from time to time hereunder for purposes of
effecting Seller's issuance and sale, and Purchaser's purchase, of the
Additional Shares. Each Additional Closing shall take place at the offices of
Seller at 10:00 a.m. on the third business day following Purchaser's receipt of
a Notice to Sell from Seller. At each of the Additional Closings, Purchaser
shall deliver to Seller the purchase price by way of cashier's check or wire
transfer and Seller shall deliver to Purchaser certificates representing and
evidencing the Other Shares duly endorsed by an appropriate officer of Seller.
C. Closing Costs. Each party shall be responsible for the payment of the
fees and expenses of the respective legal counsel involved in this transaction.
IV. SELLER'S COVENANTS, REPRESENTATIONS AND WARRANTIES
Seller makes the following covenants, representations and warranties to
Purchaser which covenants, representations and warranties shall be deemed to
have been restated on and as of the date of the Closing and the Option Closing:
A. Organization and Good Standing.
1. The Seller is a corporation duly organized, validly existing and in
good standing under the laws of Texas, and has full corporate power and
corporate authority to carry on its business as now conducted by it. Neither
the character of the properties and assets of Seller nor the nature of the
business transacted by Seller is such that it is required to qualify to do
business in any jurisdiction other than its jurisdiction of incorporation.
2. Seller has furnished to Purchaser complete and correct copies of the
Articles of Incorporation and Bylaws of Seller as in effect on the date hereof.
3. Seller has made available to Purchaser for its examination the minute
books and stock certificate books of Seller. Said minute books reflect all
resolutions adopted and all material actions expressly authorized or ratified by
the shareholders and directors of Seller. The stock certificate books reflect
all issuances, transfers and cancellations of capital stock of Seller.
4. Seller agrees that the funds received under this Agreement shall be
used for the Seller's business and no shareholders of Seller shall have any
loans or debts repaid.
B. Capitalization. The authorized capital stock of Seller consists of One
Million (1,000,000) shares of common stock, $0.01 par value, of which 105,882
shares are issued and outstanding on the date hereof. All such issued and
outstanding shares are validly issued, fully
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paid and nonassessable. There are no options, warrants, subscriptions or other
rights outstanding for the purchase of, nor any securities convertible into, the
capital stock of Seller. No shares of Seller are held as treasury stock. The
Shares issuable hereunder, when issued in accordance with the terms of this
Agreement, will be duly authorized, validly issued, fully paid and
nonassessable. The Shares will be free of any liens or encumbrances, except for
any restrictions imposed by federal or state securities laws. Until the earlier
of the termination of this Agreement in accordance with its terms or December
21, 1999, Seller shall not issue or sell any shares of the capital stock of
Seller without the prior written consent of Purchaser, which consent Purchaser
shall have the absolute right to withhold unless the proposed issuee agrees to
grant Purchaser an option to purchase the securities to be acquired from the
Seller pursuant to an Option Agreement on the terms and conditions set forth in
Exhibit B.
C. Authority of Seller. Seller has legal capacity and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions provided for herein. This Agreement has been duly
executed and delivered by Seller and constitutes the valid and binding agreement
of Seller, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies.
D. Financial Statement and Tax Returns. Seller heretofore has delivered
to Purchaser Seller's tax returns for the years 1995, 1996 and 1997 ("Tax
Returns") and Seller's balance sheet and income statement for fiscal year ending
December 31, 1998, including the notes thereto ("Financial Statement"). The
Financial Statement has been prepared in accordance with generally accepted
accounting principles consistently applied throughout the period indicated and
fairly presents the financial position of Seller as of the dates thereof.
E. Absence of Certain Changes. Since December 31, 1998, there has not
been (a) any material change in the business, financial condition or operations
of Seller; (b) any damage, destruction or loss materially adversely affecting
Seller's properties and business; (c) any declaration, setting aside or payment
of any dividend, whether in cash, stock or property in respect of Seller's
common stock, or any redemption or acquisition of such stock of Seller; (d) any
entry into any Material Contract (as hereinafter defined) or any other material
commitment or transaction not in the ordinary course of business; or (e) any
change by Seller in its accounting methods or principles.
F. Contracts. Seller has provided to Purchaser a schedule of all
"Material Contracts" to which seller is a party or by which Seller is bound. As
used in this Agreement, the term "Material Contracts" means: (a) contracts or
commitments (i) entered into out of the ordinary course of business or (ii) of
material importance to the conduct of the business of Seller; (b) bonus,
incentive compensation, pension, profit sharing, stock option, group insurance,
medical reimbursement or employee welfare or benefit plans of any nature
whatsoever; (c) collective bargaining agreements or other contracts or
commitments to or with labor unions or other employee groups; (d) leases,
contracts or commitments affecting ownership of, title to, use of or any
interest in real estate; (e) employment contracts and other contracts or
agreements or
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commitments to or with the individual employees or consultants extending for a
period of more than one month from the date hereof or providing for earlier
termination only upon payment of a penalty of the equivalent thereof; (f)
contracts and commitments to which seller is a party or by which Seller is bound
which involve an annual commitment or annual payment by any party thereto of
more than Fifty Thousand Dollars ($50,000.00) individually, or which have a
fixed term extending more than twenty-four (24) months from the date hereof and
which involve an annual commitment or annual payment by any party thereto of
more than Fifty Thousand Dollars ($50,000.00) individually; (g) credit and loan
agreements, indentures, promissory notes and other documents representing
indebtedness for borrowed money; and (h) agreements and commitments with respect
to trademarks, service marks, trade names, patents, patent applications,
technical assistance, special processes, know-how, copyright or other like
items. To the best knowledge of Seller, the Material Contracts are valid and
binding contracts of Seller, enforceable in accordance with their terms (subject
to applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies), in each case to the
extent material to the assets, liabilities, results of operations, financial
condition and business of Seller. To the best knowledge of Seller, except for
events or occurrences, the consequences of which, individually or in the
aggregate, would not have a material adverse effect on the assets, liabilities,
results of operations, financial condition or business of Seller, there is not
under any of the Material Contracts any existing breach, default or event of
default by Seller or event that with notice or lapse of time or both would
constitute a breach, default or event of default by Seller, nor is Seller aware
of, and Seller has not received notice of, or made a claim with respect to, any
breach or default by any other party thereto.
G. Title to and Condition of Properties. Except as set forth on Exhibit
"C" attached hereto, Seller has good and marketable title to its properties
reflected in its Financial Statements or acquired after the date thereof (other
than properties sold or otherwise disposed of in the ordinary course of
business), and all of such properties are held free and clear of all title
defects, liens, encumbrances and restrictions.
H. Accounts Receivable. Each account receivable shown in the Financial
Statements generated since the date thereof represents a bona fide amount due
from an account debtor in the usual and ordinary course of business.
I. Outstanding Indebtedness. Seller has delivered a true and complete
schedule of all notes payable, trade payables and other indebtedness owed by
Seller, including a description of the material terms thereof and a description
of all properties or assets pledged, mortgaged or otherwise hypothecated
(voluntarily or involuntarily) as security therefor.
J. Absence of Undisclosed Liabilities. To the best knowledge of Seller,
Seller has no debt, liability, or obligation of any nature, whether accrued,
absolute, contingent, or otherwise, and whether due or to become due, that is
not reflected or reserved against in the Financial Statements, except for (a)
those that may have been incurred after the date of same and (b) those that are
not required by generally accepted accounting principles to be included in a
balance sheet. All debts, liabilities, and obligations incurred after that date
were incurred in the
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ordinary course of business and are usual and normal in amount both individually
and in the aggregate.
K. Taxes.
1. Seller has duly filed all federal, state, local and foreign tax returns
required to be filed by it, all such returns are true and correct in all
material respects, and Seller has duly paid or made adequate provision for the
payment of all taxes which are due and payable pursuant to such returns. The
Seller does currently owe the IRS Forty Thousand Dollars ($40,000.00) in back
payroll taxes and has arranged an agreed payment plan. The liability for taxes
reflected in the Financial Statements is sufficient for the payment of all
unpaid taxes, whether or not disputed, that are accrued or applicable for the
period ended as of the date thereof and for all years and periods ended prior
thereto. All deficiencies asserted as a result of any examinations by the
Internal Revenue Service or any other taxing authority have been paid, fully
settled or adequately provided for in the Financial Statements. There are no
pending claims asserted for taxes of the Seller or outstanding agreements or
waivers extending the statutory period of limitation applicable to any tax
return of Seller for any period. Seller has not filed a consent to the
application of Section 341(f) of the Internal Revenue Code of 1986, as amended
(the "Code"). Seller has provided Purchaser true, complete and correct copies
of each of the Seller's federal income tax returns for the last five years and
such other tax returns as have been requested by Purchaser.
2. All contributions due from Seller pursuant to any unemployment
insurance or workers compensation laws and all sales or use taxes which are due
or payable by Seller have been paid in full and will be so paid through the
Closing Date. Seller has withheld and paid to, or will cause to be paid to, the
appropriate taxing authorities all amounts required to be withheld from the
wages of their employees under state law and the applicable provisions of the
Code, and Seller will continue to do so with respect to all wages paid by them
through the Closing Date.
L. Legal Proceedings. Except as set forth on Exhibit "C" attached hereto,
there are no suits, actions, claims, proceedings or investigations pending or,
to the best knowledge of Seller, threatened against, relating to or involving
Seller (or any of their respective officers or directors in connection with the
business of any Seller) before any court, arbitrator or administrative or
governmental body, which, if finally determined adversely, are reasonably
likely, individually or in the aggregate, to have a material adverse effect on
the assets, liabilities, results of operations, financial condition or business
of Seller. Seller is not subject to any judgment, decree, injunction, rule or
order of any court which is reasonably likely to have a material adverse effect
on the assets, liabilities, results of operations, financial condition or
business of Seller or to cause a material limitation on Purchaser's ability to
operate the business of Seller after the Closing.
M. Labor Relations. Seller has not been a party to any contract or
agreement with a labor union or any local or subdivision thereof, nor has Seller
been charged with any unresolved unfair labor practices. Seller has no
knowledge of any present organizing activity among employees of Seller by any
union. There are no material controversies pending or, to the best
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knowledge of Seller, threatened between Seller and their employees. The best
knowledge of Seller, Seller has complied in all materiel respects with all laws
relating to the employment of labor, including any provisions thereof relating
to wages, hours, collective bargaining and the payment to social security and
similar taxes.
N. Insurance. Seller has provided a schedule of current insurance
coverages maintained by Seller including names of carriers and amounts of
coverage. Seller shall maintain such insurance through the Closing Date.
O. Compliance with Laws. To the best knowledge of Seller, Seller has not
failed to comply with any applicable law, statute, ordinance, regulation, decree
or any other legal requirement, except where the failure to comply would not
have a material adverse effect on the business, properties or financial
condition of Seller.
P. No Conflict with Other Instruments. The execution of this Agreement by
Seller, its delivery to Purchaser and the consummation of the transactions
contemplated hereby will not conflict with any provisions of the Articles of
Incorporation or Bylaws of Seller and will not conflict with or result in a
breach of any term or provision of, or constitute a default under, any
indenture, mortgage, deed of trust, contract or other agreement or instrument to
which Seller is a party or is subject or by which any of their properties or
assets are bound, or result in the creation of any lien, encumbrance or charge
upon any of the properties or assets of Seller.
Q. Brokerage and Finder's Fees. Neither Seller, nor any of its respective
officers, directors or employees, has employed any broker, finder or investment
banker or incurred any liability for any investment banking fees, financial
advisory fees, brokerage fees or finders' fees in connection with the
transactions contemplated herein.
R. Employee Benefit Plans. Seller does not maintain or contribute to any
"employee pension benefit plan" or employee welfare benefit plan" as defined in
Sections 3(2) and 3(1), respectively, of the Employee Retirement Income Security
Act of 1974 ("ERISA").
S. Material Misstatements or Omissions. No representation or warranty of
Seller in this Agreement, or in any exhibit, document, statement, certificate or
schedule furnished or to be furnished by Seller pursuant hereto, or in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements or facts contained therein not
misleading.
T. Access to Properties and Records. Until the earlier of the termination
of this Agreement in accordance with its terms or December 21, 1999, Seller
shall afford to Purchaser and its counsel, accountants and other representatives
full access to all of the properties, assets, employees, books, commitments,
contracts and records of Seller and shall furnish Purchaser with such additional
financial and operating data and other information as to the business of Seller
as Purchaser shall from time to time reasonably request. Such access to these
items shall be at reasonable times during ordinary business hours and shall not
involve the interference with the operation of Seller's business.
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U. Conduct of Business. Between the date hereof and the Closing Date,
Seller shall conduct its business diligently and only in the ordinary course.
V. Corporate Matters. From and after the date hereof and until the
Closing Date, Seller shall not (a) amend its Articles of Incorporation or
Bylaws; (b) issue any shares of its capital stock; (c) issue or create any
warrants, obligations, subscriptions, options, convertible securities or other
commitments under which any additional shares of its capital stock of any class
might be directly or indirectly authorized, issued or transferred from treasure;
(d) alter the composition of its Board of Directors; (e) redeem, purchase or
otherwise acquire any shares of its capital stock or declare, pay or set aside
for payment any dividend or other distribution in respect of its capital stock;
(f) distribute any cash or property to its shareholders or any of its affiliates
as a loan; or (g) agree to do any of the acts listed above.
V. PURCHASER'S COVENANTS, REPRESENTATIONS AND WARRANTIES
Purchaser makes the following covenants, representations and warranties to
Seller, which covenants, representations and warranties shall be deemed to have
been restated on and as of the date of the Closing and the Option Closing.
A. Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, has full corporate power and corporate authority to carry on its
business as now conducted by it and is entitled to own or lease and operate its
properties and assets now owned or leased and operated by it.
B. No Conflict with Other Instruments. The execution of this Agreement by
Purchaser, its delivery to Seller and the consummation of the transactions
contemplated hereby will not: (a) conflict with any provisions of the Articles
of Incorporation or Bylaws of Purchaser; (b) conflict with or result in a breach
of any term or provision of or constitute a default under any indenture,
mortgage, deed of trust or other material agreement or instrument to which
Purchaser is a party or to which it is subject or by which any of its properties
or assets are bound; (c) result I the creation of any lien, encumbrance or
charge upon any of the properties or assets of Purchaser; or (d) violate any
provision of any law, rule or regulation to which Purchaser is subject or any
order, writ, injunction or decree of any court or other governmental agency or
instrumentality to which Purchaser is subject.
C. Authorization. Purchaser has full corporate power and corporate
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions provided for herein. The execution
and delivery of this Agreement by Purchaser and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of Purchaser and no further corporate action is necessary on the part
of the Purchaser to make this Agreement binding upon Purchaser in accordance
with its terms. This Agreement has been duly executed and delivered by
Purchaser and constitutes the valid and binding agreement of Purchaser,
enforceable against Purchaser in accordance with its terms, subject to
applicable bankruptcy, insolvency and other similar laws affecting the
enforceability
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of creditors' rights generally, general equitable principles and the discretion
of courts in granting equitable remedies.
D. Brokerage and Finder's Fees. Neither Purchaser, nor any of its
respective officers, directors or employees, nor any affiliate of Purchaser has
employed any broker, finder or investment banker or incurred any liability for
any investment banking fees, financial advisory fees, brokerage fees or finders'
fees in connection with the transactions contemplated herein.
E. Material Misstatements or Omissions. No representation or warranty by
Purchaser in this Agreement, or in any exhibit, document, statement, certificate
or schedule furnished or to be furnished by Purchaser pursuant hereto, or in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements or facts contained therein not
misleading.
VI. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
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Each Selling Stockholder represents, warrants and covenants, separately and
not jointly, to and with Purchaser as follows:
A. Power and Authority. The Selling Stockholder has all requisite
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individual power and authority to enter into and to carry out all of the terms
of this Agreement, the Option Agreement and all other documents executed and
delivered in connection herewith. All individual action on the part of the
Selling Stockholder necessary for the authorization, execution, delivery and
performance of this Agreement and the option Agreement by the Selling
Stockholder has been taken and no further authorization on the part of the
Selling Stockholder is required to consummate the transactions provided for in
this Agreement or the Option Agreement. When executed and delivered by the
Selling Stockholder, this Agreement and the Option Agreement shall constitute
the valid and legally binding obligation of the Selling Stockholder enforceable
in accordance with its terms.
B. Ownership of and Title to Securities. The Recitals to this Agreement
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set forth all of the authorized, issued and outstanding capital of Seller.
Exhibit A sets forth all of the capital stock of Seller owned by the Selling
Stockholder and the Selling Stockholder represents that he does not , and to his
knowledge no one else, owns any options, warrants or rights entitling its holder
to purchase the capital stock of Seller. The Selling Stockholder represents
that the Selling Stockholder has and will transfer to Purchaser, upon
Purchaser's exercise of the Option and payment for the underlying shares of
Seller common Stock, good and marketable title to the Seller Common Stock owned
by Selling Stockholder, free and clear of all pledges, security interests,
mortgages, liens, claims, charges, restrictions or encumbrances except for any
restrictions under applicable state and federal securities laws.
C. Waiver and Consent. The Selling Stockholder hereby consents to the
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execution of this Agreement and the Option Agreements by Seller and each of the
other Selling Stockholders and the performance of their obligations hereunder
and under the other Option
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Agreements, and specifically waives his right of first refusal to purchase any
shares of Seller Common Stock under that certain Shareholder's Agreement of
Sportsware Technologies, Inc. dated November 11, 1997 in connection with
Purchaser's exercise of the Option Agreements granted to Purchaser by the other
Selling Stockholders.
V. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser under this Agreement shall be subject to the
satisfaction on or before the Closing Date and the Option Closing Date of each
of the following conditions, except to the extent Purchaser may waive such
conditions in writing:
A. Representations and Warranties. All representations and warranties of
Seller contained in or made under or in connection with this Agreement shall be
true and correct in all material respects on and as of the Closing Date.
B. Performance of Obligations. Seller shall have performed in all
material respects all agreements and covenants required by this Agreement to be
performed by it on or prior to the Closing Date.
C. Delivery of Stock Certificates. Seller shall have delivered to
Purchaser the certificates representing the Stock together with appropriate
instruments of transfer in form and substance satisfactory to counsel for
Purchaser.
VII. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement shall be subject to the
satisfaction on or before the Closing Date and the Option Closing Date of each
of the following conditions, except to the extent Seller may waive any of such
conditions in writing:
A. Representations and Warranties. All representations and warranties of
Purchaser contained in or made under or in connection with this Agreement shall
be true and correct in all material respects on and as of the Closing Date.
B. Performance of Obligations. Purchaser shall have performed in all
material respects all agreements and covenants required by this Agreement to be
performed by it on or prior to the Closing Date.
C. Payment of Purchase Price. Purchaser shall have paid to Seller the
Purchase Price by cash, cashier's check and/or wire transfer.
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VIII. SURVIVAL
All statements contained herein or in any certificate or other instrument
delivered pursuant hereto by or on behalf of any party shall be deemed to be
representations and warranties made pursuant to this Agreement by such party.
All representations, warranties, covenants and agreements made herein or
otherwise by Purchaser and Seller shall survive the Closing, Option Closing and
any investigations made by or on behalf of any party hereto.
IX. INDEMNIFICATION
A. By Seller. Seller shall indemnify and hold harmless Purchaser against
all losses, liabilities, costs and expenses, including reasonable attorneys'
fees and court costs, resulting from any breach of any warranty, representation,
covenant or agreement made herein by Seller.
B. By Purchaser. Purchaser shall indemnify and hold harmless Seller
against all losses, liabilities, costs and expenses, including reasonable
attorneys' fees and court costs, resulting from any breach of any warranty,
representation, covenant or agreement made herein by Purchaser.
X. EVENT OF DEFAULT
Except as otherwise expressly provided herein, either party hereto shall be
deemed to be in default of this Agreement if such party fails or refuses to
comply with the terms and conditions set forth herein for any reason other than
the prior termination of this Agreement purchase to a right to so terminate
expressly set forth in this Agreement and said default continues for a period of
thirty (30) days after written notice from the non-defaulting party to the
defaulting party specifying the default (an "Event of Default").
XI. REMEDIES
A. Seller's Remedies Prior to Closing. Upon the occurrence of an Event of
Default by Purchaser prior to Closing, Seller shall be entitled to terminate
this Agreement by giving Purchaser written notice of termination in writing, and
the parties hereto shall be released from all obligations to each other
hereunder.
B. Seller's Remedies After Closing. Upon the occurrence of an Event of
Default by Purchaser after Closing which is not cured within the time permitted,
Seller may (i) require arbitration for specific performance under this Agreement
and/or (ii) require arbitration for damages sustained by Seller as a result of
Purchaser's default under this Agreement.
C. Purchaser's Remedies Prior to Closing. Upon the occurrence of an Event
of Default by Seller prior to Closing, Purchaser shall be entitled to (i)
terminate this Agreement by giving Seller notice of termination in writing, and
the parties hereto shall be released from all obligations to each other
hereunder, or (ii) require arbitration for specific performance of this
Agreement.
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D. Purchaser's Remedies After Closing. Upon the occurrence of an Event of
Default by Seller after Closing which is not cured within the time permitted,
Purchaser may (i) require arbitration for specific performance under this
Agreement and/or (ii) require arbitration for damages sustained by Purchaser as
a result of Seller's default under this Agreement.
XII. PURCHASER'S OBLIGATIONS
Seller recognizes and acknowledges that Purchaser is an independent
corporation, capitalized as required by applicable laws, chartered under the
laws of Florida, to whom Seller will solely look and who is solely responsible
for the obligations and liabilities of Purchaser recited herein, arising
hereunder, or in any manner related to the transactions contemplated hereby, and
Seller further recognizes and acknowledges that no other entity or entities,
including (i) Purchaser's parent corporation, (ii) any individual, or (iii) any
corporation affiliated with Purchaser is in any manner liable or responsible for
the obligations and liabilities of Purchaser, whether recited herein, arising
hereunder, or in any manner related to the transactions contemplated hereby.
Seller has made such inquiry and investigation as it deems appropriate as to the
financial ability of Purchaser to perform all of its obligations, duties,
liabilities, and undertakings contemplated by the transaction from which this
Agreement arises and that it has no further inquiry it desires to make. Seller
is not relying on any other entity to contribute to the financial where withal
of Purchaser to carry out its obligations, duties, liabilities, and
undertakings, and no oral representations have been made as to other financial
support of Purchaser by any party or entity. Seller is thus solely relying on
the financial ability of Purchaser, and Seller shall not attempt to ▇▇▇▇▇▇ the
corporate veil of Purchaser in order to obtain financial contribution or
responsibility.
XIII. NOTICES
Any notices or other communications shall be deemed given if hand
delivered, or sent by certified mail, return receipt requested, postage prepaid,
addressed as shown below. All notices hand delivered shall be deemed received
on the date of delivery. All notices forwarded by mail shall be deemed received
on the earlier of (i) the date seven (7) days (excluding Sundays and legal
holidays when the U.S. mail is not delivered) immediately following date of
deposit in the U.S. mail or (ii) the date of actual receipt.
If to Seller: SportsWare Technologies
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a Copy to: ▇▇▇ ▇. ▇▇▇▇, Esq.
Munsch, Hardt, ▇▇▇▇ & ▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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If to Purchaser: EntrePort Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
With a Copy to: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
The addresses and addressees may be changed by giving notice of such change
in the manner provided herein for giving notice. Unless and until such written
notice is received, the last address and addressee given shall be deemed to
continue in effect for all purposes. No notice to either Purchaser or Seller
shall be deemed given or received unless the entity noted "With a Copy to" is
simultaneously delivered notice in the same manner as any notice given to either
Seller or Purchaser, as the case may be.
XIV. MISCELLANEOUS
A. Entire Agreement. This Agreement embodies the entire agreement and
understanding of Seller and Purchaser relating to the subject matter hereof and
supersedes all prior representations, agreements, and understandings, oral or
written, relating to such matter.
B. Assignment. Except as expressly provided herein, this Agreement and
any documents executed in connection herewith shall not be assigned by Seller or
Purchaser without the prior written consent of the other party, and any
assignment without such prior written consent shall be null and void.
C. Severability. Except as expressly provided to the contrary herein,
each section, part, term, or provision of this Agreement shall be considered
severable, and if for any reason any section, part, term, or provision herein is
determined to be invalid and contrary to or in conflict with any existing or
future law or regulation by a court or governmental agency having valid
jurisdiction, such determination shall not impair the operation of or have any
other effect on other sections, parts, terms, or provisions of this Agreement as
may remain otherwise intelligible, and the latter shall continue to be given
full force and effect and bind the parties hereto, and said invalid sections,
parts, terms, or provisions shall not be deemed to be a part of this Agreement.
D. Public Announcements. Prior to Closing, neither party hereto shall
make any public announcement or press release concerning this Agreement or the
transactions contemplated herein except as may be mutually agreed upon by the
parties in writing.
E. Construction and Interpretation of Agreement. This Agreement is to be
performed in the State of California and shall be governed by and construed in
accordance with the laws of the State of California. Should any provision of
this Agreement require
14
interpretation, it is agreed that the presumption that the terms hereof shall be
more strictly construed against a party by reason of the rule or conclusion that
a document should be construed more strictly against the party who itself or
through its agent prepared the same shall not apply. It is agreed and stipulated
that all parties hereto have participated equally in the preparation of this
Agreement and legal counsel was consulted by each party before the execution of
this Agreement.
F. Amendment and Waiver. This Agreement may not be amended or modified in
any way except by an instrument in writing executed by all parties hereto.
G. Access and Information. Seller shall permit Purchaser and Purchaser's
representatives, employees, agents, or independent contractors of Purchaser
access to all books, records, and documents pertaining to Seller at all times
during normal business hours from the date hereof to the Closing Date. Seller
shall cooperate to the fullest extent in securing and providing to Purchaser all
such information which may be in the possession of others.
H. Counterparts. This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
I. Successors and Assigns. This Agreement and the terms and provisions
hereof shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns whenever the context so requires or
permits.
J. Time. Time is of the essence in this Agreement and each and all of its
provisions. Any extension of time granted for the performance of any duty under
this Agreement shall not be considered an extension of time for the performance
of any other obligation under this Agreement.
K. Captions. Captions, titles to sections, and paragraph headings used
herein are for convenience of reference and shall not be deemed to limit or
alter any provision hereof.
L. Governing Document. This Agreement shall govern in the event of any
inconsistency between this Agreement and any of the Schedules attached hereto or
any other document or instrument executed or delivered pursuant hereto or in
connection herewith.
M. Arbitration. Any controversy arising out of, or relating to, this
Agreement, or a breach, shall be settled by binding arbitration administered by
the American Arbitration Association in accordance with its rules. A judgment
upon an award rendered by the arbitrator may be entered in any court having
jurisdiction. The initiating party shall give written notice to the other party
of its decision to arbitrate by providing a specific statement setting forth the
nature of the dispute, the amount involved, the remedy sought, and the hearing
locale requested. The initiating party shall be responsible for all filing
requirements and the payment of any fees according to the rules of the
applicable regional office of the American Arbitration Association. The
arbitrator shall award to the prevailing party, if any, as determined by the
arbitrator, all of its
15
costs and expenses including attorneys' fees, arbitrator's fees, and
out-of-pocket expenses of any kind. The consideration of the parties to be
bound by arbitration is not only the waiver of trial by jury, but also the
waiver of any rights to appeal the arbitration finding.
IN WITNESS WHEREOF, the parties have executed this Stock Purchase and
Option Agreement on the date first written above.
SELLER
SPORTSWARE TECHNOLOGIES, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: President
--------------------------------
Date: 7/21/99
--------------------------------
PURCHASER
ENTREPORT CORPORATION,
a Florida corporation
By: /s/ W.A. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Title: President
--------------------------------
Date: 7/21/99
--------------------------------
[Signatures of Selling Stockholders Appear on Exhibit "A"]
16
EXHIBIT "A"
LIST OF SELLING STOCKHOLDERS
----------------------------
Number of Shares
Name and Address of Owned by Selling
Selling Stockholder Signature Stockholder
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,000
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 49,241
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3,600
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BAI, LP /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 11,647
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ 24,512
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT "B"
EXHIBIT "C"