SUBSIDIARY STOCK PURCHASE AGREEMENT
This SUBSIDIARY STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of August 30, 2006, between DIRECTVIEW HOLDINGS, INC. ("Purchaser") and
DIRECTVIEW, INC., a Delaware corporation (the "Company").
WHEREAS, the Company is party to that certain Share Purchase Agreement (the
"Agreement") with GS Energy Corporation pursuant to which the Company has agreed
to acquire 100% of the stock of GS Carbon Trading, Inc., a company formed under
the laws of the State of Delaware ("GS Carbon");
WHEREAS, prior to this acquisition, the Company's sole business consisted of its
ownership of 100% of the issued and outstanding capital stock of ▇▇▇▇▇▇▇
Communications, Inc. and Meeting Technologies, Inc., and other related
operations (collectively, the "DRVW Subsidiaries");
WHEREAS, the Company believes it is in its best interest to dispose of the DRVW
Subsidiaries and focus its resources on the business and operation of GS Carbon;
and
WHEREAS, the Purchaser is willing to accept all of the outstanding capital stock
of the DRVW Subsidiaries together with all of the liabilities and obligations of
the DRVW Subsidiaries together with specified obligations of the Company;
NOW THEREFORE, in consideration of the foregoing and the terms and conditions
hereof, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF STOCK AND SPECIFIED OBLIGATIONS
1.1 TRANSFER OF THE DRVW SUBSIDIARIES
Subject to the terms and conditions hereof, on the Closing Date (as defined
below), the Company shall sell, convey, transfer, assign and deliver to
Purchaser and Purchaser shall purchase from the Company all of the issued and
outstanding common shares of the DRVW Subsidiaries, free of all liens, charges
or other encumbrances (the "Subsidiary Stock").
1.2 PROVISION OF COLLATERAL
The Company is currently party to several convertible debentures issued to
Cornell Capital Partners, LP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Debenture
Holders"). These debentures are currently secured by the stock of the DRVW
Subsidiaries used in connection with the prior business of the Company. The
Company shall use its best efforts to provide the Debenture Holders with
sufficient collateral to obtain the release of the stock of the DRVW
Subsidiaries used as collateral for the Debenture Holders.
1.3 THE CLOSING
The closing of this Agreement (the "Closing") shall occur on or before OCTOBER
1, 2006 (the "Closing Date").
1.4 DELIVERIES AT THE CLOSING
On the Closing Date in order to effectuate the transfer of the Subsidiary Stock:
(a) The Company shall deliver to Purchaser certificates representing all of the
Subsidiary Stock, free and clear of any claim, lien, pledge, option, charge,
easement, security interest, right-of-way, encumbrance, restriction on sale or
transfer, preemptive right or option or any other right of any third party of
any nature whatsoever ("Encumbrance"), duly endorsed in blank for transfer or
accompanied by stock powers duly executed in blank; (b) the Purchaser and the
Company shall each deliver all documents, certificates, agreements and
instruments required to be to affect the purposes hereof; and (c) all
instruments and documents executed and delivered to any party pursuant hereto
shall be in a form and substance, and shall be executed in a manner, reasonably
satisfactory to the receiving party.
1.5 PURCHASE PRICE
Subject to the terms and conditions of this Agreement, the purchase price for
the Subsidiary Stock (the "Purchase Price") shall be the assumption by the
Purchaser of any and all liabilities of the Company and the DRVW Subsidiaries
arising prior to the Closing, with the sole exception of convertible debt
payable to the Debenture Holders.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchaser, as of the date of this
Agreement and as of the Closing (which representations and warranties shall
survive the Closing Date to the extent provided for herein):
2.1 GOOD TITLE
The Subsidiary Stock is owned by the Company with good and marketable title
thereto, free and clear of any Encumbrance.
2.2 ORGANIZATION, GOOD STANDING
The Company is a corporation duly incorporated, validly existing and in good
standing under the laws of Delaware, and has all requisite corporate power and
authority to own, operate and lease its properties and assets and to carry on
its business as now conducted.
2.3 AUTHORIZATION
The Company has the full corporate power and authority enter into this Agreement
and each of the documents to which it is a party, and to carry out the
transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by the Company, and this Agreement is, and will be, on
the Closing Date, a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with the terms of this Agreement.
2.4 NO APPROVALS OR NOTICES REQUIRED; NO CONFLICTS WITH INSTRUMENTS
The execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby will not (a) constitute a
violation (with or without the giving of notice or lapse of time, or both) of
any provision of law or any judgment, decree, order, regulation or rule of any
court or other governmental authority applicable to the Company, or (b) require
any consent, approval or authorization of, or declaration, filing or
registration with, any person, corporation, partnership, joint venture,
association, organization, other entity or governmental or regulatory authority
(a "Person").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Company, as of the date of this
Agreement and as of the Closing (which representations and warranties shall
survive the Closing to the extent provided for herein):
3.1 AUTHORITY
Purchaser has full power and authority to execute, deliver and perform this
Agreement and to carry out the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Purchaser, and this Agreement is, and
will be, on the Closing Date, a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms.
3.2 NO APPROVALS OR NOTICES REQUIRED; NO CONFLICTS WITH INSTRUMENTS
The execution, delivery and performance of this Agreement by Purchaser and the
consummation of the transactions contemplated hereby will not (a) constitute a
violation (with or without the giving of notice or lapse of time, or both) of
any provision of law or any judgment, decree, order, regulation or rule of any
court or other governmental authority applicable to Purchaser, or (b) require
any consent, approval or authorization of, or declaration, filing or
registration with, any Person.
3.3 OWNERSHIP OF THE PURCHASER STOCK
The Purchaser Stock is owned by the Purchaser with good and marketable title
thereto, free and clear of any Encumbrance.
3.4 SATISFACTION OF COMPANY OBLIGATIONS
Upon the sale of the DRVW Subsidiaries to the Purchaser, the Company shall have
no further material debts or liabilities other than amounts due to the Debenture
Holders.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser to perform and observe the covenants, agreements
and conditions hereof to be performed and observed by them at or prior to the
Closing Date shall be subject to the satisfaction of the following conditions on
or prior to the Closing Date, which condition may be expressly waived in writing
by Purchaser.
4.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Company contained herein shall have
been true in all material respects when made and shall be true as of the Closing
Date as though made on that date, except as affected by transactions
contemplated hereby and except to the extent that such representations and
warranties are made as of a specified date, in which case such representations
and warranties shall be true in all material respects as of the specified date.
4.2 PERFORMANCE OF AGREEMENT
The Company shall have performed in all material respects all obligations and
agreements and complied with all covenants and conditions contained in this
Agreement to be performed and complied with by them at or prior to the Closing
Date.
4.3 DELIVERY OF SHARES
Purchaser shall have received certificates representing the Subsidiary Stock
together with stock powers duly endorsed in blank.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
The obligations of the Company to perform and observe the covenants, agreements
and conditions hereof to be performed and observed by it at or prior to the
Closing Date shall be subject to the satisfaction of the following conditions on
or prior to the Closing Date, which conditions may be expressly waived in
writing by the Company.
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of Purchaser contained herein shall have been
true in all material respects when made and shall be true in all material
respects as of the Closing Date as though made on that date, except as affected
by transactions contemplated hereby and except and to the extent that such
representations and warranties are made as of a specified date, in which case
such representations and warranties shall be true as of the specified date.
5.2 PERFORMANCE OF AGREEMENT
Purchaser shall have performed all obligations and agreements and complied with
all covenants and conditions contained in this Agreement to be performed and
complied with by them at or prior to the Closing Date.
5.3 DELIVERY OF SHARES
The Company shall have received certificates representing the Purchaser Stock,
together with stock powers duly endorsed in blank, signature guaranteed.
ARTICLE VI
TERMINATION
6.1 This Agreement may be terminated at any time prior to the Closing:
(a) by the mutual consent of Purchaser and the Company;
(b) by the Company (provided that the Company is not then in material
breach of any representation, warranty, covenant or other
agreement contained herein for which the Purchaser shall have
previously notified the Company), if there has been a breach by
the Purchaser of any of its representations, warranties,
covenants or agreements contained in this Agreement, or any such
representation and warranty shall have become untrue, and such
breach or condition has not been promptly cured within 30 days
following receipt by the Purchaser of written notice of such
breach; and
(c) by the Purchaser (provided that the Purchaser is not then in
material breach of any representation, warranty, covenant or
other agreement contained herein for which the Company shall have
previously notified the Purchaser), if there has been a breach by
the Company of any of its representations, warranties, covenants
or agreements contained in this Agreement, or any such
representation and warranty shall have become untrue, and such
breach or condition has not been promptly cured within 30 days
following receipt by the Company of written notice of such
breach.
6.2
In the event of termination of this Agreement pursuant to this Article VI,
written notice thereof shall be given as promptly as practicable to the other
party to this Agreement and this Agreement shall terminate and the transactions
contemplated hereby shall be abandoned, without further action by any of the
parties hereto. If this Agreement is terminated as provided herein (a) there
shall be no liability or obligation on the part of the Seller, the Purchaser, or
their respective officers, directors and Affiliates, and all obligations of the
parties shall terminate, except for that a party that is in material breach of
its representations, warranties, covenants, or agreements set forth in this
Agreement shall be liable for damages occasioned by such breach, including
without limitation any expenses, including the reasonable fees and expenses of
attorneys, accountants and other agents, incurred by the other party in
connection with this Agreement and the transactions contemplated hereby;
provided, however, that the Purchaser shall not be deemed to be in material
breach of this Agreement solely by reason of its inability to satisfy one or
more of the conditions set forth in Section 7 if the Purchaser is attempting to
satisfy such conditions in good faith.
ARTICLE VII
GENERAL
7.1 COOPERATION
Each party hereto will fully cooperate with the other parties, their counsel and
accountants in connection with any steps required to be taken as part of its
obligations under this Agreement. Each party will use its reasonable best
efforts to cause all conditions to this Agreement to be satisfied as promptly as
possible and to obtain all consents and approvals necessary for the due and
punctual performance of this Agreement and for the satisfaction of the
conditions hereof. No party will undertake any course of action inconsistent
with this Agreement or which would make any representations, warranties or
agreements made by such party in this Agreement untrue or any conditions
precedent to this Agreement unable to be satisfied at or prior to the Closing.
7.2 CONFIDENTIALITY
In connection with the transactions contemplated herein, the Company and
Purchaser are furnishing each other with certain information which is either
nonpublic, confidential or proprietary in nature. All such information furnished
by one party to the other or its representatives is hereinafter referred to as
the "Confidential Information." As used in this Agreement, the "representatives"
of any party shall mean such party's officers, employees, agents or other
representatives, including, without limitation, attorneys, accountants,
consultants and financial advisors. In consideration of each party's being
furnished with the Confidential Information of the other, each party agrees
that:
(a) The Confidential Information will be kept confidential and except
as required by law will not, without the prior written consent of
the party supplying the information, be disclosed by the
receiving party or its representatives during such three-year
period in any manner whatsoever, in whole or in part, and will
not be used by the receiving party or its representatives
directly or indirectly for any purpose other than evaluating and
facilitating the transactions contemplated herein; provided,
however, that upon the execution of this Agreement by the
parties, the Company and its representatives will be free to use
the Confidential Information to the extent required by law in any
subsequent filings with federal or state authorities relating to
the transactions contemplated herein. Each party agrees to
transmit the Confidential Information only to those of its
representatives who need to know the Confidential Information for
the purpose of advising it regarding any of the purposes for
which it is permitted to use the Confidential Information under
the terms of this Agreement, who are informed by the party
supplying such information of the confidential nature of the
Confidential Information and who are directed by such party to
comply with the terms of this Agreement. Each party will be
responsible for any material breach of this Agreement by its
representatives.
(b) Without the prior written consent of the other parties to this
Agreement, no party or any of its representatives will disclose
to any other Person the fact that the Confidential Information
has been made available, or any of the terms, conditions or other
facts with respect to the transactions contemplated herein,
including the status thereof, except as required by law or
permitted under the terms of this Agreement.
(c) In the event the parties do not proceed with the transactions
contemplated herein, the Confidential Information and all copies
thereof will be destroyed or returned promptly without retaining
any copies thereof.
(d) This Section 7.2 shall be inoperative as to such portions of the
Confidential Information which (i) are or become generally
available to the public other than as a result of a disclosure by
the receiving party or its representatives which is not required
by law; (ii) become available to the receiving party from a
source with no obligation of confidentiality to the other party;
(iii) describe technology independently developed by the
receiving party; or (iv) were known to the receiving party on a
non-confidential basis prior to its disclosure to the receiving
party by the supplying party or one of its representatives.
(e) In the event that a receiving party or any of its representatives
is requested or becomes legally compelled (by written or oral
interrogatories, subpoena, civil investigative demand or similar
process) to disclose any of the Confidential Information for
purposes not permitted by this Agreement, the receiving party
will provide the supplying party with prompt written notice so
that the supplying party may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of
this Agreement. In the event that such protective order or other
remedy is not obtained, or that the supplying party waives
compliance with the provisions of this Agreement, the receiving
party will furnish only that portion of the Confidential
Information which is legally required, and will exercise
good-faith efforts to obtain reliable assurance that confidential
treatment will be accorded the Confidential Information.
(f) Each party agrees that the other parties shall be entitled to
equitable relief, including injunction and specific performance,
in the event of any breach of the provisions of clause (a), (b),
(c) or (e) of this Section 7.2. Such remedies shall not be deemed
to be the exclusive remedies for a breach of this Section 7.2 by
any party or its representatives but shall be in addition to all
other remedies available at law or equity.
(g) It is further understood and agreed that no failure or delay by
any party in exercising any right, power or privilege under this
Section 7.2 shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege hereunder.
7.3 FURTHER ACTS
After the Closing Date, each party hereto, at the request of and without any
further cost or expense to the other parties, will take any further actions
necessary or desirable to carry out the purposes of this Agreement.
7.4 AMENDMENT
The parties may amend, modify or supplement this Agreement at any time, but only
in writing duly executed on behalf of each of the parties to be bound thereby.
7.5 SURVIVAL OF WARRANTIES
The representations and warranties contained in this Agreement shall survive the
Closing for a period of three (3) years from the Closing.
7.6 EXPENSES
Each of the parties hereto shall pay its own fees and expenses (including the
fees of any attorneys, accountants, or others engaged by such party) in
connection with this Agreement and the transactions contemplated hereby whether
or not the transactions contemplated hereby are consummated.
7.7 COUNTERPARTS
This Agreement may be executed simultaneously in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.8 HEADINGS
The headings preceding the text of Articles and Sections of this Agreement are
for convenience only and shall not be deemed parts thereof.
7.9 APPLICABLE LAW
Company and Purchaser hereby submit and consent to the exclusive venue and
jurisdiction of the Supreme Court of the State of New York in respect of the
interpretation and enforcement of the provisions of this Agreement, and hereby
waive and agree not to assert as a defense in any action, suit or proceeding for
the interpretation or enforcement of this Agreement, that it is not subject
thereto or that such action, suit or proceeding may not be brought or is not
maintainable in said courts or that this Agreement may not be enforced in or by
said courts or that its property is exempt or immune from execution, that the
suit, action or proceeding is brought in an inconvenient forum, or that the
venue of the suit, action or proceeding is improper. Company and Purchaser agree
that service of process may be made in any manner permitted by the laws of the
State of New York or the federal laws of the United States in any such action,
suit or proceeding against Company or Purchaser with respect to this Agreement.
Service of process upon such authorized agent shall be deemed, in every respect,
effective service of process upon Company or Purchaser and shall remain
effective until Company or Purchaser shall appoint another agent for service or
process acceptable to the other Party. Company and Purchaser agree that final
judgment (with all right of appeal having expired or been waived) against it in
any such action, suit or proceeding shall be conclusive and that the other Party
is entitled to enforce such judgment in any other jurisdiction by suit on the
judgment, a certified copy of which shall be conclusive evidence of the fact and
amount of indebtedness arising from such judgment.
7.10 PARTIES IN INTEREST
All the terms and provisions of this Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and permitted
assigns of the parties hereto, whether herein so expressed or not, but neither
this Agreement nor any of the rights, interests or obligations hereunder of any
party hereto shall be assigned without the prior written consent of the other
parties. This Agreement is not intended, nor shall it be construed, to confer
any enforceable rights on any Person not a party hereto.
7.11 FORCE MAJEURE.
Neither Party hereto shall be liable for failure to perform any obligation under
this Agreement if such failure to perform is caused by the occurrence of any
contingency beyond the reasonable control of such party, including, without
limitation, fire, flood, strike or other industrial disturbance, failure of
transport, accident, war, riot, insurrection, act of God or order of
governmental agency or act of terrorism. Performance shall be resumed as soon as
is possible after cessation of such cause. However, if such inability to perform
continues for more than ninety (90) days, the other party may terminate this
Agreement without penalty and without further notice.
IN WITNESS WHEREOF, the parties hereto have entered into and signed this
Agreement as of the date and year first above written.
DIRECTVIEW HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Print: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
DIRECTVIEW, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President