STOCK PURCHASE AGREEMENT
BETWEEN
A21, INC.
AND
CERTAIN INVESTORS
(AS LISTED ON SECHEDULE A)
DATED
JANUARY 2, 2004
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made and entered into
as of 2nd day of January, 2004 by and among A21, INC., a corporation organized
and existing under the laws of the State of Texas ("A21" or the "COMPANY"), and
certain investors, (hereinafter referred to collectively as "INVESTOR" or
"INVESTORS") as listed on Schedule A herein (each agreement with an Investor
being deemed a separate and independent agreement between the Company and such
Investor).
PRELIMINARY STATEMENT:
WHEREAS, the Investors wish to purchase, upon the terms and subject to the
conditions of this Agreement, a minimum of Two Million Six Hundred Thousand
Dollars ($2,600,000) ("MINIMUM") and a maximum of Three Million Six Hundred
Thousand Dollars ($3,600,000) ("MAXIMUM") of the Common Stock of the Company
with the right if at the Minimum upon the purchase of each four (4) shares of
Common Stock, to receive one (1) non-callable common stock purchase warrant, two
(2) common stock purchase warrants that are callable for a period of one (1)
year from Closing and one and six-tenths (1.6) common stock purchase warrants
that are callable for a period of twenty-eight (28) months with the number of
purchase warrants across all warrant classes increasing above Two Million
Dollars ($2,000,000) as represented in Schedules ▇-▇, ▇-▇ ▇▇▇ ▇-▇ and
interpolated for amounts in between (each four shares of Common Stock and
corresponding stock purchase warrants are referred to herein as a "UNIT"); and
WHEREAS, the parties intend to memorialize the purchase and sale of such
Units;
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
INCORPORATION BY REFERENCE, SUPERSEDER AND DEFINITIONS
1.1 Incorporation by Reference. The foregoing recitals, Schedule A and the
Exhibits attached hereto and referred to herein, are hereby acknowledged to be
true and accurate, and are incorporated herein by this reference.
1.2 Superseder. This Agreement, to the extent that it is inconsistent with any
other instrument or understanding among the parties governing the affairs of the
Company, shall supersede such instrument or understanding to the fullest extent
permitted by law. A copy of this Agreement shall be filed at the Company's
principal office.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
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1.3 Certain Definitions. For purposes of this Agreement, the following
capitalized terms shall have the following meanings (all capitalized terms used
in this Agreement that are not defined in this Article 1 shall have the meanings
set forth elsewhere in this Agreement):
1.3.1 "1933 ACT" means the Securities Act of 1933, as amended.
1.3.2 "1934 ACT" means the Securities Exchange Act of 1934, as amended.
1.3.3 "AFFILIATE" means a Person or Persons directly or indirectly,
through one or more intermediaries, controlling, controlled by or under common
control with the Person(s) in question. The term "control," as used in the
immediately preceding sentence, means, with respect to a Person that is a
corporation, the right to the exercise, directly or indirectly, of more than 50
percent of the voting rights attributable to the shares of such controlled
corporation and, with respect to a Person that is not a corporation, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such controlled Person.
1.3.4 "ARTICLES". The Articles of Organization of the Company, as the same
may be amended from time to time.
1.3.5 "CLOSING DATE" means the earlier of January 2, 2004 or upon all of
the conditions of Article VIII and Article IX herein are satisfied, unless
extended by the Company in its sole discretion until January 31, 2004.
1.3.6 "COMMON STOCK" means the shares of common stock of a21, Inc., par
value $0.001 per share.
1.3.7 "EFFECTIVE DATE" shall mean the date the Registration Statement of
the Company covering the Shares being subscribed for hereby is declared
effective.
1.3.8 "MATERIAL ADVERSE EFFECT" shall mean any adverse effect on the
business, operations, properties or financial condition of the Company that is
material and adverse to the Company and its subsidiaries and affiliates, taken
as a whole and/or any condition, circumstance, or situation that would prohibit
or otherwise materially interfere with the ability of the Company to perform any
of its material obligations under this Agreement or the Registration Rights
Agreement or to perform its obligations under any other material agreement.
1.3.9 "TEXAS ACT" means the Texas revised Statutes, as amended.
1.3.10 "PERSON" means an individual, partnership, firm, limited liability
company, trust, joint venture, association, corporation, or any other legal
entity.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
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1.3.11 "PURCHASE PRICE" means the purchase price for the Units.
1.3.12 REGISTRATION RIGHTS AGREEMENT" shall mean the registration rights
agreement between the Investors and the Company attached hereto as Exhibit B.
1.3.13 "REGISTRATION STATEMENT" shall mean the registration statement
under the 1933 Act to be filed with the Securities and Exchange Commission for
the registration of the Shares pursuant to the Registration Rights Agreement
attached hereto as Exhibit B.
1.3.14 "SEC" means the Securities and Exchange Commission.
1.3.15 "SEC DOCUMENTS" shall mean the Company's latest Form 10-K or 10-KSB
as of the time in question, all Forms 10-Q or 10-QSB and 8-K filed thereafter,
and the Proxy Statement for its latest fiscal year as of the time in question
until such time as the Company no longer has an obligation to maintain the
effectiveness of a Registration Statement as set forth in the Registration
Rights Agreement.
1.3.16 "SHARES" shall mean, collectively, the shares of Common Stock of
the Company being subscribed for hereunder and those shares of Common Stock
issuable to the Investor upon exercise of the Warrants.
1.3.17 "UNITS" shall mean the Common Stock and the Warrants collectively.
1.3.18 "WARRANTS" shall mean the Common Stock purchase warrants in the
form attached hereto Exhibit A.
ARTICLE II
SALE AND PURCHASE OF A21'S UNITS
AND PURCHASE PRICE
2.1 SALE OF UNITS Upon the terms and subject to the conditions set forth herein,
and in accordance with applicable law, the Company agrees to sell, and the
Investors, severally and not jointly, agree to purchase the following Units with
an aggregate principal amount of a minimum of Two Million Six Hundred Thousand
Dollars ($2,600,000) and a maximum of Three Million Six Hundred Thousand Dollars
($3,600,000) in accordance with the commitments set forth on Schedules ▇-▇, ▇-▇
and A-3 attached hereto, at the Purchase Price on the Closing Date, each Unit
consisting of:
2.1.1 COMMON STOCK Upon execution and delivery of this Agreement and
the Company's receipt of the Purchase Price (as described herein), each Investor
shall receive shares of Common Stock of the Company at a value of $ 0.20 per
share. The Company shall register those shares of Common Stock pursuant to the
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
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terms and conditions of a Registration Rights Agreement attached hereto as
Exhibit B. The Registration Rights Agreement shall include, but not be limited
to, such terms and conditions as the immediate registration of the shares of
Common Stock sold hereunder, one demand right if all the shares of Common Stock
sold hereunder are not registered or the Registration Statement is subsequently
not effective, unlimited "piggy back" registration rights, and liquidated
damages to the Investor of twelve percent (12%) of the Purchase Price per annum
payable per month if the shares of Common Stock are not registered pursuant to
an effective Registration Statement within six months of the Closing Date or if
the shares of Common Stock are registered pursuant to an effective Registration
Statement and such Registration Statement or other Registration Statement
including the shares of Common Stock is not effective in the period from six
months following the Closing Date through two years following the Closing Date,
except that the obligation of the Company terminates when the holder of shares
of Common Stock no longer holds more than twenty percent (20%) of their shares
of Common Stock as acquired herein.
2.1.2 WARRANTS Upon execution and delivery of this Agreement and the Company's
receipt of the Purchase Price (as described herein), each Investor shall
receive, upon the purchase of each four (4) shares of Common Stock, one (1)
non-callable common stock purchase warrant, two (2) common stock purchase
warrants that are callable for a period of one year from Closing and one and
six-tenths (1.6) common stock purchase warrants that are callable for a period
of twenty-eight (28) months with the number of purchase warrants across all
warrant classes increasing above Two Million Dollars ($2,000,000) as represented
in Schedules ▇-▇, ▇-▇ ▇▇▇ ▇-▇ and interpolated for amounts in between. The
Warrant, a form of which is attached hereto as Exhibit A shall include, but not
be limited to, such terms and conditions as an exercise price of $0.20 per share
for the non-callable Warrants, $.225 and $.45 per share for the Warrants that
are callable for one year, and $.85 and $1.35 per share for the Warrants that
are callable for a period of twenty-eight (28) months (as adjusted from time to
time as provided in the Warrant), an expiration date of five (5) years from the
date of issuance. The callable Warrants shall have a call provision if the
average closing price of the Common Stock as listed on a nationally public
securities market is $.50 for the $.225 Warrants, $1.00 for the $.45 Warrants,
$1.35 for the $.90 Warrants, and $2.00 for the $1.35 Warrants for a period of
twenty consecutive trading days and the Registration Statement is effective for
such twenty consecutive trading days, whereby the Company may call the Warrant
and pay to the holder of the Warrant $0.001 per warrant.
2.2 PURCHASE PRICE. The purchase price to be paid by each Investor on the
Closing Date shall be as defined in section 1.3.5 ($0.20) per share, as the case
may be, in accordance with on SCHEDULES ▇-▇, ▇-▇ ▇▇▇ ▇-▇ attached hereto, and
shall be payable in United States Dollars. Payment to the Company of the
Purchase Price shall be made at the Closing Date by certified check for
immediately available funds or wire transfer of immediately available funds to
the account specified by the Company and provided to the Investor.
Payment by check shall be as follows:
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
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LOEB & LOEB LLP TRUST ACCOUNT
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ re: a21, Inc.
Loeb & Loeb LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Direct Dial: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Payment by wire shall be as follows:
LOEB & LOEB LLP TRUST ACCOUNT
ACCOUNT # ▇▇▇▇▇▇▇▇
ABA # ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ re: a21, Inc.
CITIBANK, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
CONTACT NAME: ▇▇▇▇▇▇▇ ▇▇▇▇▇
PHONE # (▇▇▇) ▇▇▇-▇▇▇▇
2.3 ESCROW. The funds received by Loeb & Loeb LLP (the "Escrow Agent") in
accordance with Section 2.2 of this Agreement shall be held in escrow pursuant
to the terms and conditions of this Section 2.3 of the Agreement. The funds
shall be held in a non-interest bearing account. The Escrow Agent shall disburse
the funds to the Company, or as the Company shall in writing direct, upon the
closing of the purchase of a portion of the issued and outstanding shares of
capital stock of SuperStock, Inc. ("SSI") and its recapitalization all in
accordance with a Stock Purchase and Recapitalization Agreement dated November
10, 2003 among the Company, the selling stockholders of SSI and SSI, and receipt
of written confirmation from the Investors that each of them consents to the
distribution agreed to by the Company. If the closing of such transaction has
not taken place within ninety (90) days of the date of this Agreement, the
Escrow Agent shall return such funds to the Investors. The Investors and the
Company, jointly and severally, agree to indemnify Escrow Agent for, and to hold
it harmless against, any loss, liability, damage or expense incurred by Escrow
Agent arising out of, or in connection with, this Agreement, any litigation
arising in connection with this Agreement or any transaction related in any way
hereto, including but not limited to attorneys' fees incurred by Escrow Agent in
the event of any question as to the provisions hereof or its duties hereunder,
and other costs and expenses incurred by Escrow Agent in fulfilling its duties
and responsibilities hereunder, or incurred by Escrow Agent defending itself
against any claim of liability (other than, in all such cases, for Escrow
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
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Agent's willful misconduct or gross negligence). Escrow Agent shall have no
duties arising from this Agreement except those expressly set forth in this
Section 2.3 and it shall not be bound by any notice of claim or demand, or any
waiver, modification or amendment unless it shall have given its prior written
consent thereto.
2.4 ACCEPTANCE EACH POTENTIAL INVESTOR acknowledges that the Company shall, in
its sole discretion, have the right to accept or reject their subscription for
Units, in whole or in part, for any reason or for no reason within 72 hours of
receipt of cleared funds and properly executed documents, and shall promptly
return funds to such investor.
ARTICLE II
CLOSING DATE AND DELIVERIES AT CLOSING
3.1 CLOSING DATE The closing of the transactions contemplated by this Agreement
(the "CLOSING"), unless expressly determined herein, shall be held at the
offices of counsel to the Company at 5:00 P.M. local time, on the Closing Date
or on such other date and at such other place as may be mutually agreed by the
parties, including closing by facsimile with originals to follow.
3.2 DELIVERIES BY THE COMPANY. In addition to and without limiting any other
provision of this Agreement, the Company agrees to deliver, or cause to be
delivered, to the Investors, the following:
(a) Within seven (7) business days, Certificates representing a21
Shares, which certificates shall be duly endorsed to the
Investor;
(b) At or prior to Closing, an executed Agreement;
(c) At or prior to Closing, an executed Warrant in the name of the
Investor in the form attached hereto as Exhibit A;
(d) At or prior to Closing, an executed Registration Rights
Agreement between the Investor and the Company in the form
attached hereto as Exhibit B;
(e) At or prior to Closing, confirmation that the provisions of
Paragraph 6.6 herein have been satisfied or commenced, as
appropriate; and
(f) Such other documents or certificates as shall be reasonably
requested by the each Investor or its counsel.
3.3 DELIVERIES BY INVESTOR. In addition to and without limiting any other
provision of this Agreement, each Investor agrees to deliver, or cause to be
delivered, to the Company, as appropriate, the following:
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
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(a) At or prior to Closing, the Purchase Price; (b) At or prior to
Closing, an executed Agreement;
(c) At or prior to Closing, an executed Registration Rights
Agreement between the Investor and the Company in the form
attached hereto as Exhibit B; and
(d) Such other documents or certificates as shall be reasonably
requested by the Company or its counsel. In the event any
document provided to the other party in Paragraphs 3.2 and 3.3
herein are provided by facsimile, the party shall forward an
original document to the other party within seven (7) business
days.
3.4 FURTHER ASSURANCES. The Company and each Investor shall, upon request, on or
after the Closing Date, cooperate with each other (specifically, the Company
shall cooperate with each Investor, and each Investor shall cooperate with the
Company, and no Investor is required to cooperate with any other Investor) by
furnishing any additional information, executing and delivering any additional
documents and/or other instruments and doing any and all such things as may be
reasonably required by the parties or their counsel to consummate or otherwise
implement the transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF A21
a21 represents and warrants to the Investors (which warranties and
representations shall survive the Closing regardless of what examinations,
inspections, audits and other investigations the Purchaser has heretofore made
or may hereinafter make with respect to such warranties and representations) as
follows:
4.1 ORGANIZATION AND QUALIFICATION. a21 is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas, and has the
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as it is now being conducted and is duly qualified
to do business in any other jurisdiction by virtue of the nature of the
businesses conducted by it or the ownership or leasing of its properties, except
where the failure to be so qualified will not, when taken together with all
other such failures, have a Material Adverse Effect on the business, operations,
properties, assets, financial condition or results of operation of a21 and its
subsidiaries taken as a whole.
4.2 ARTICLES OF INCORPORATION AND BY-LAWS. The complete and correct copies of
a21's Articles of Incorporation and By-Laws, as amended or restated to date
which have been filed with the Securities and Exchange Commission are a complete
and correct copy of such document as in effect on the date hereof and as of the
Closing Date.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
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4.3 CAPITALIZATION.
4.3.1 The authorized and outstanding capital stock of
a21 is set forth in a21's Annual Report on Form 10-KSB, filed on June 2, 2003
with the Securities and Exchange Commission and updated on all subsequent SEC
Documents.. All shares of capital stock have been duly authorized and are
validly issued, and are fully paid and no assessable, and free of preemptive
rights.
4.3.2 Except pursuant to this Agreement, and as set
forth in a21's Annual Report on Form 10-KSB, filed on June 2, 2003 with the SEC,
and subsequent documents filed with the SEC or supplied to Investors, as of the
date hereof and as of the Closing Date, there are not now outstanding options,
warrants, rights to subscribe for, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into or exchangeable
for, shares of any class of capital stock of a21, or agreements, understandings
or arrangements to which a21 is a party, or by which a21 is or may be bound, to
issue additional shares of its capital stock or options, warrants, scrip or
rights to subscribe for, calls or commitment of any character whatsoever
relating to, or securities or rights convertible into or exchangeable for, any
shares of any class of its capital stock; except as per the Stock Purchase
Agreement for SuperStock including $4,250,000 in participating preferred issued
to the Sellers of SuperStock, Inc. in SuperStock, Inc. which is exchangeable
into 5,000,151 shares of Common Stock and up to 2,000,000 stock options to be
issued to employees and management of SuperStock, Inc. to be issued after
Closing and options to be issued to management of a21. The Company agrees to
inform the Investors in writing of any additional shares, options and warrants
issued or granted prior to the Closing Date.
4.3.3 The Company on the Closing Date (i) will have full
right, power, and authority to sell, assign, transfer, and deliver, by reason of
record and beneficial ownership, to each Investor, a21 Shares hereunder, free
and clear of all liens, charges, claims, options, pledges, restrictions, and
encumbrances whatsoever; and (ii) upon delivery of and payment by each Investor
of the Purchase Price to the Company, such Investor will acquire good and
marketable title to such Company Stock, free and clear of all liens, charges,
claims, options, pledges, restrictions, and encumbrances whatsoever.
4.4 AUTHORITY. a21 has all requisite corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by a21 and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action and no other
corporate proceedings on the part of a21 is necessary to authorize this
Agreement or to consummate the transactions contemplated hereby except as
disclosed in this Agreement. This Agreement has been duly executed and delivered
by a21 and constitutes the legal, valid and binding obligation of a21,
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 8 OF 28
enforceable against a21 in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting the enforcement of creditors' rights generally and general principles
of equity.
4.5 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. The execution and delivery of
this Agreement by a21 does not, and the performance by a21 of their respective
obligations hereunder will not: (i) conflict with or violate the Articles or
By-Laws of a21; (ii) conflict with, breach or violate any federal, state,
foreign or local law, statute, ordinance, rule, regulation, order, judgment or
decree (collectively, "LAWS") in effect as of the date of this Agreement and
applicable to a21; or (iii) result in any breach of, constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
give to any other entity any right of termination, amendment, acceleration or
cancellation of, require payment under, or result in the creation of a lien or
encumbrance on any of the properties or assets of a21 pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which a21 is a party or by a21 or
any of its properties or assets is bound. Excluded from the foregoing are such
violations, conflicts, breaches, defaults, terminations, accelerations,
creations of liens, or incumbency that would not, in the aggregate, have a
Material Adverse Effect.
4.6 REPORT AND FINANCIAL STATEMENTS. a21's Annual Report on Form 10-KSB, filed
on June 2, 2003, with the Securities and Exchange Commission contains the
audited financial statements of a21 as of December 31, 2002 (the "FINANCIAL
STATEMENTS"). Each of the balance sheets contained in or incorporated by
reference into any such Financial Statements (including the related notes and
schedules thereto) fairly presented the financial position of a21 as of its
date, and each of the statements of income and changes in stockholders' equity
and cash flows or equivalent statements in such Financial Statements (including
any related notes and schedules thereto) fairly presents and will fairly present
the results of operations, changes in stockholders' equity and changes in cash
flows, as the case may be, of a21 for the periods to which they relate, in each
case in accordance with United States generally accepted accounting principles
("U.S. GAAP") consistently applied during the periods involved, except in each
case as may be noted therein, subject to normal year-end audit adjustments in
the case of unaudited statements. The books and records of a21 have been, and
are being, maintained in all material respects in accordance with U.S. GAAP and
any other applicable legal and accounting requirements and reflect only actual
transactions.
4.7 COMPLIANCE WITH APPLICABLE LAWS. a21 is not in violation of, or, to the
knowledge of a21 is under investigation with respect to or has been given notice
or has been charged with the violation of any Law of a governmental agency,
except for violations which individually or in the aggregate do not have a
Material Adverse Effect.
4.8 BROKERS. Except for ▇.▇.▇▇▇▇▇▇▇▇▇▇ & Co., Inc., no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of a21.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
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4.9 SEC DOCUMENTS. a21 acknowledges that a21 is a publicly held company and has
made available to the Investors after demand true and complete copies of any
requested SEC Documents. The Company is required to file reports under Section
15(d) of the 1934 Act, and the Common Stock is listed and traded on the OTC
Bulletin Board Market of the National Association of Securities Dealers, Inc.
The Company has received no notice, either oral or written, with respect to the
continued eligibility of the Common Stock for such listing, and the Company has
maintained all requirements for the continuation of such listing. The Company
has not provided to the Investors any information that, according to applicable
law, rule or regulation, should have been disclosed publicly prior to the date
hereof by the Company, but which has not been so disclosed. As of their
respective dates, the SEC Documents complied in all material respects with the
requirements of the 1934 Act, and rules and regulations of the SEC promulgated
thereunder and the SEC Documents did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading that the Investor has received from
the Company reports with the Securities and Exchange Commission and with the
NASD.
4.10 LITIGATION. To the knowledge of a21, no litigation, claim, or other
proceeding before any court or governmental agency is pending or threatened
against a21 that is material other than litigation in the ordinary course of
business and as represented in the Company's filings with the SEC.
4.11 EXEMPTION FROM REGISTRATION. Subject to the accuracy of the Investors'
representations in Article V, except as required pursuant to the Registration
Rights Agreement, the sale of the Units will not require registration under the
1933 Act and/or any applicable state securities law. When validly converted in
accordance with the terms of the Warrants, the Shares underlying the Warrants
will be duly and validly issued, fully paid, and non-assessable. The Company is
issuing the Units in accordance with and in reliance upon the exemption from
securities registration afforded, inter alia, by Rule 506 under Regulation D as
promulgated by the SEC under the 1933, and/or Section 4(2) of the 1933 Act.
4.12 NO GENERAL SOLICITATION OR ADVERTISING IN REGARD TO THIS TRANSACTION.
Neither the Company nor any of its Affiliates nor, to the knowledge of the
Company, any Person acting on its or their behalf (i) has conducted or will
conduct any general solicitation (as that term is used in Rule 502(c) of
Regulation D as promulgated by the SEC under the ▇▇▇▇ ▇▇▇) or general
advertising with respect to the sale of the Units, or (ii) made any offers or
sales of any security or solicited any offers to buy any security under any
circumstances that would require registration of the Units, under the 1933 Act,
except as required herein.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
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4.13 NO MATERIAL ADVERSE CHANGE. Since December 31, 2002, no Material Adverse
Effect has occurred or exists with respect to the Company that has not been
disclosed in the SEC Documents. No material supplier has given notice, oral or
written, that it intends to cease or materially reduce the volume of its
business with the Company from historical levels. Since December 31, 2002, no
event or circumstance has occurred or exists with respect to the Company or its
businesses, properties, prospects, operations or financial condition, that,
under any applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company but which has not been so
publicly announced or disclosed in writing to the Investors.
4.14 MATERIAL NON-PUBLIC INFORMATION. The Company has not disclosed to the
Investors any material non-public information that (i) if disclosed, would
reasonably be expected to have a material effect on the price of the Common
Stock or (ii) according to applicable law, rule or regulation, should have been
disclosed publicly by the Company prior to the date hereof but which has not
been so disclosed.
4.15 INTERNAL CONTROLS AND PROCEDURES. The Company maintains books and records
and internal accounting controls which provide reasonable assurance that (i) all
transactions to which the Company or any subsidiary is a party or by which its
properties are bound are executed with management's authorization; (ii) the
recorded accounting of the Company's consolidated assets is compared with
existing assets at regular intervals; (iii) access to the Company's consolidated
assets is permitted only in accordance with management's authorization; and (iv)
all transactions to which the Company or any subsidiary is a party or by which
its properties are bound are recorded as necessary to permit preparation of the
financial statements of the Company in accordance with U.S. generally accepted
accounting principles.
4.16 FULL DISCLOSURE. No representation or warranty made by a21 in this
Agreement and no certificate or document furnished or to be furnished to the
Purchaser pursuant to this Agreement 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 contained herein or therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor, severally and not jointly, as to himself or itself and not as to
any other Investor, represents and warrants to the Company that:
5.1 ORGANIZATION AND STANDING OF THE INVESTOR. Where the Investor is a
corporation, such Investor is duly incorporated, validly existing and in good
standing under the laws of the state in which it was formed. The state in which
any offer to purchase shares hereunder was made or accepted by such Investor is
the state shown as such Investor's address. If an entity, the Investor was not
formed for the purpose of investing solely in the Units the subject of this
Agreement.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 11 OF 28
5.2 AUTHORIZATION AND POWER. The Investor has the requisite power and authority
to enter into and perform this Agreement and to purchase the Units being sold to
it hereunder. The execution, delivery and performance of this Agreement by the
Investor and the consummation by the Investor of the transactions contemplated
hereby have been duly authorized by all necessary corporate action where
appropriate. This Agreement and the Registration Rights Agreement have been duly
executed and delivered by the Investor and at the Closing shall constitute valid
and binding obligations of the Investor enforceable against the Investor in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, receivership or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or by other
equitable principles of general application.
5.3 NO CONFLICTS. The execution, delivery and performance of this Agreement and
the consummation by the Investor of the transactions contemplated hereby or
relating hereto do not and will not (i) result in a violation of such Investor's
charter documents or bylaws where appropriate or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of any agreement, indenture or
instrument to which the Investor is a party, or result in a violation of any
law, rule, or regulation, or any order, judgment or decree of any court or
governmental agency applicable to the Investor or its properties (except for
such conflicts, defaults and violations as would not, individually or in the
aggregate, have a Material Adverse Effect on such Investor). The Investor is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of such Investor's obligations under this Agreement or to
purchase the Units in accordance with the terms hereof, provided that for
purposes of the representation made in this sentence, the Investor is assuming
and relying upon the accuracy of the relevant representations and agreements of
the Company herein.
5.4 FINANCIAL RISKS. The Investor acknowledges that such Investor is able to
bear the financial risks associated with an investment in the Units and that it
has been given full access to such records of the Company and the subsidiaries
and to the officers of the Company and the subsidiaries as it has deemed
necessary or appropriate to conduct its due diligence investigation. The
Investor is capable of evaluating the risks and merits of an investment in the
Units by virtue of its experience as an investor and its knowledge, experience,
and sophistication in financial and business matters and the Investor is capable
of bearing the entire loss of its investment in the Units.
5.5 ACCREDITED INVESTOR. The Investor is (i) an "accredited investor" as that
term is defined in Rule 501 of Regulation D promulgated under the 1933 Act by
reason of Rule 501(a)(3) and (6), (ii) experienced in making investments of the
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 12 OF 28
kind described in this Agreement and the related documents, (iii) able, by
reason of the business and financial experience of its officers (if an entity)
and professional advisors (who are not affiliated with or compensated in any way
by the Company or any of its affiliates or selling agents), to protect its own
interests in connection with the transactions described in this Agreement, and
the related documents, and (iv) able to afford the entire loss of its investment
in the Units.
5.6 BROKERS. Except for ▇.▇.▇▇▇▇▇▇▇▇▇▇ & Co., Inc., who shall be paid by the
Company, no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Investors.
5.7 NO SHORT SALES. Prior to the Closing Date, neither the Investor nor any of
the Investor's Affiliates will be in a net short position with regard to the
Common Stock in any accounts directly or indirectly controlled by the Investor.
5.8 KNOWLEDGE OF COMPANY. Each Investor and such Investor's advisors, if any,
have been, upon request, furnished with all materials relating to the business,
finances and operations of the Company and materials relating to the offer and
sale of the Units. Each Investor and such Investor's advisors, if any, have been
afforded the opportunity to ask questions of the Company and have received
complete and satisfactory answers to any such inquiries.
5.9 RISK FACTORS Each Investor understands that such Investor's investment in
the Units involves a high degree of risk. Each Investor understands that no
United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Units.
Each Investor warrants that such Investor is able to bear the complete loss of
such Buyer's investment in the Units.
5.10 FULL DISCLOSURE. No representation or warranty made by the Investor in this
Agreement and no certificate or document furnished or to be furnished to a21
pursuant to this Agreement 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 contained herein or therein not misleading. Except as set forth
or referred to in this Agreement, Investor does not have any agreement or
understanding with any person relating to acquiring, holding, voting or
disposing of any equity securities of the Company.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 13 OF 28
ARTICLE VI
COVENANTS OF THE COMPANY
6.1. REGISTRATION RIGHTS. The Company shall cause the Registration Rights
Agreement to remain in full force and effect and the Company shall comply in all
material respects with the terms thereof.
6.2. RESERVATION OF COMMON STOCK. As of the date hereof, the Company has
reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, shares of Common Stock for the purpose of
enabling the Company to issue the shares of Common Stock underlying the
Warrants.
6.3. LISTING OF COMMON STOCK. The Company hereby agrees to maintain the listing
of the Common Stock on a publicly trading market. The Company will take all
actions to continue the listing and trading of its Common Stock on a publicly
traded market and will comply in all respects with the Company's reporting,
filing and other obligations under the bylaws or rules of the a publicly traded
market.
6.4. EXCHANGE ACT REPORTS. The Company will continue to file reports pursuant to
Section 15(d) of the 1934 Act, will use its best efforts to comply in all
respects with its reporting and filing obligations under the 1934 Act, and will
not take any action or file any document (whether or not permitted by the 1934
Act or the rules thereunder) to terminate or suspend its reporting and filing
obligations under the 1934 until the Investors have disposed of all of their
Shares or the shares of Common Stock underlying the Warrants.
6.5. CORPORATE EXISTENCE; CONFLICTING AGREEMENTS. The Company will take all
steps necessary to preserve and continue the corporate existence of the Company.
The Company shall not enter into any agreement, the terms of which agreement
would restrict or impair the right or ability of the Company to perform any of
its obligations under this Agreement or any of the other agreements attached as
exhibits hereto.
6.6. PREFERRED STOCK. The Company will not issue Preferred Stock of the Company
which is convertible into common stock at a value below the Purchase Price
without approval from Investors representing 51% of the principal investment
prior to an effective Registration Statement for at least 51% of the Shares.
6.7. USE OF PROCEEDS. The Company will use the proceeds from the sale of the
Units (excluding amounts paid by the Company for legal and administrative fees
in connection with the sale of the Units) along with other financing for the
purchase of the voting and non-voting stock of SuperStock, Inc. (and the
transaction costs associated therewith) with any remaining balance as additional
working capital.
6.8. EXCHANGE OF SUPERSTOCK PREFERRED STOCK. The Company shall not compel the
shareholders of SuperStock, Inc. to exchange any preferred stock issued by
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 14 OF 28
SuperStock, Inc. to its shareholders pursuant to the acquisition of the shares
of SuperStock by the undersigned at a price less than $0.85 per share until the
second (2nd) anniversary of the Closing and from and after the second (2nd)
anniversary and until the fourth (4th) anniversary of the Closing at a price
less than $0.50 per share, as appropriately adjusted in all such cases.
6.9. CERTAIN OUTSTANDING INDEBTEDNESS The Company shall, on or prior to the
Closing Date, cause LCA Capital Partners I, Inc., Whitney Holdings, Inc., Glossy
Finish LLC and ▇▇▇ ▇▇▇▇▇ to, in the aggregate, convert a minimum of Five Hundred
Thousand Dollars ($500,000) of the amounts owed to them by the Company into
Common Stock and Warrants in accordance with the provisions of Section 2.1.1 and
2.1.2 of the Agreement, respectively.
6.10. INDEBTEDNESS TO SUPERSTOCK, INC. SHAREHOLDERS. The Company covenants and
agrees that until after the first (1st) anniversary of the Closing, any
promissory notes or other evidence of indebtedness issued to the shareholders of
SuperStock, Inc. in connection with the closing on the purchase of the voting
and non-voting stock of SuperStock, Inc. shall not be secured by the assets of
the Company. Such promissory notes or other evidences of indebtedness may
provide that beginning on the day after the first anniversary of the Closing,
they shall automatically be secured by the assets of the Company.
ARTICLE VII
COVENANTS OF THE INVESTORS
7.1 COMPLIANCE WITH LAW. The Investor's trading activities with respect to
shares of the Company's Common Stock will be in compliance with all applicable
state and federal securities laws, rules and regulations and rules and
regulations of any public market on which the Company's Common Stock is listed.
7.2 TRANSFER RESTRICTIONS. The Investor's acknowledge that (1) the Shares,
Warrants and shares underlying the Warrants have not been registered under the
provisions of the 1933 Act, and may not be transferred unless (A) subsequently
registered thereunder or (B) the Investors shall have delivered to the Company
an opinion of counsel, reasonably satisfactory in form, scope and substance to
the Company, to the effect that the Shares, Warrants and shares underlying the
Warrants to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration; and (2) any sale of the Shares, Warrants and
shares underlying the Warrants made in reliance on Rule 144 promulgated under
the 1933 Act may be made only in accordance with the terms of said Rule and
further, if said Rule is not applicable, any resale of such Securities under
circumstances in which the seller, or the person through whom the sale is made,
may be deemed to be an underwriter, as that term is used in the 1933 Act, may
require compliance with some other exemption under the 1933 Act or the rules and
regulations of the SEC thereunder.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 15 OF 28
7.3 RESTRICTIVE LEGEND. The Investor's acknowledge and agree that the Shares,
and, until such time as the Shares have been registered under the 1933 Act and
sold in accordance with an effective Registration Statement, certificates and
other instruments representing any of the Shares shall bear a restrictive legend
in substantially the following form (and a stop-transfer order may be placed
against transfer of any such Securities):
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS
AND NEITHER SUCH SHARES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED
UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR (2) IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S, OR (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT."
7.4 Until the first anniversary of the Closing, or until the earlier sale by
Investor of the shares of Common Stock referred to in the remainder of this
sentence, Investor shall vote 28% of the shares of Common Stock included, or
issued upon exercise of Warrants included, in the Units as the board of the
directors of the Company may from time to time direct.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS
The obligation of the Company to consummate the transactions
contemplated hereby shall be subject to the fulfillment, on or prior to Closing
Date, of the following conditions:
8.1 NO TERMINATION. This Agreement shall not have been terminated pursuant to
Article X hereof.
8.2 REPRESENTATIONS TRUE AND CORRECT. The representations and warranties of the
Investors contained in this Agreement shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as if made
on as of the Closing Date.
8.3 COMPLIANCE WITH COVENANTS. The Investors shall have performed and complied
in all material respects with all covenants, agreements, and conditions required
by this Agreement to be performed or complied by it prior to or at the Closing
Date.
8.4 NO ADVERSE PROCEEDINGS. On the Closing Date, no action or proceeding shall
be pending by any public authority or individual or entity before any court or
administrative body to restrain, enjoin, or otherwise prevent the consummation
of this Agreement or the transactions contemplated hereby or to recover any
damages or obtain other relief as a result of the transactions proposed hereby.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 16 OF 28
ARTICLE IX
CONDITIONS PRECEDENT TO INVESTOR'S OBLIGATIONS
The obligation of the Investors to consummate the transactions
contemplated hereby shall be subject to the fulfillment, on or prior to Closing
Date unless specified otherwise, of the following conditions:
9.1 NO TERMINATION. This Agreement shall not have been terminated pursuant to
Article X hereof.
9.2 REPRESENTATIONS TRUE AND CORRECT. The representations and warranties of a21
contained in this Agreement shall be true and correct in all material respects
on and as of the Closing Date with the same force and effect as if made on as of
the Closing Date.
9.3 COMPLIANCE WITH COVENANTS. a21 shall have performed and complied in all
material respects with all covenants, agreements, and conditions required by
this Agreement to be performed or complied by it prior to or at the Closing
Date.
9.4 NO ADVERSE PROCEEDINGS. On the Closing Date, no action or proceeding shall
be pending by any public authority or individual or entity before any court or
administrative body to restrain, enjoin, or otherwise prevent the consummation
of this Agreement or the transactions contemplated hereby or to recover any
damages or obtain other relief as a result of the transactions proposed hereby.
9.5 CLOSING OF SUPERSTOCK, INC. TRANSACTION. On the Closing Date, a21 shall have
closed on or simultaneously be closing on the purchase of the voting and
non-voting stock of SuperStock, Inc. as per the agreement attached as Exhibit C
and any subsequent amendments that do not change the substance of the
transaction. A21 shall deliver to the Investors a statement signed by the
shareholders of SuperStock Inc. ("SSI") substantially to the effect that SSI's
financial statements through October 31, 2003 were derived from SSI's books and
records maintained in the ordinary course of its business, and fairly present in
all material respects the financial position of SSI as of the date thereof and
for the period then ended, in accordance with GAAP (except as may be indicated
in the notes thereto) and subject to year-end adjustments and with SSI's
internal accounting policies.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 17 OF 28
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1 TERMINATION. This Agreement may be terminated at any time prior to the
Effective Time:
10.1.1 by mutual written consent of the Investors and the
Company;
10.1.2 by the Company upon a material breach of any
representation, warranty, covenant or agreement on the part of the Investor set
forth in this Agreement, or the Investor upon a material breach of any
representation, warranty, covenant or agreement on the part of a21 set forth in
this Agreement, or if any representation or warranty of a21 or the Investor,
respectively, shall have become untrue, in either case such that any of the
conditions set forth in Article VIII or Article IX hereof would not be satisfied
(a "TERMINATING BREACH"), and such breach shall, if capable of cure, not have
been cured within five (5) days after receipt by the party in breach of a notice
from the non-breaching party setting forth in detail the nature of such breach;
10.1.3 by either party, if the Closing Date is after January
31, 2004.
10.2 EFFECT OF TERMINATION. In the event of the termination of this Agreement
pursuant to Paragraph 10.1 hereof, there shall be no liability on the party of
a21 or the Investors or any of their respective officers, directors, agents or
other representatives and all rights and obligations of any party hereto shall
cease, except as expressed herein.
10.3 AMENDMENT. This Agreement may be amended by the parties hereto any time
prior to the Closing Date by an instrument in writing signed by the parties
hereto.
10.3 WAIVER. At any time prior to the Closing Date, a21 or the Investors, as
appropriate, may: (a) extend the time for the performance of any of the
obligations or other acts of other party or; (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto which have been made to it or them; or (c) waive compliance with
any of the agreements or conditions contained herein for its or their benefit.
Any such extension or waiver shall be valid only if set forth in an instrument
in writing signed by the party or parties to be bound hereby.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 18 OF 28
ARTICLE XI
GENERAL PROVISIONS
11.1 TRANSACTION COSTS. Except as otherwise provided herein, each of the parties
shall pay all of his or its costs and expenses (including attorney fees and
other legal costs and expenses and accountants' fees and other accounting costs
and expenses) incurred by that party in connection with this Agreement.
11.2 INDEMNIFICATION. Each Investor, severally and not jointly agrees to defend
and hold the Company (following the Closing Date) and its officers and directors
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities or damages, including interest, penalties and
reasonable attorney's fees, that it shall incur or suffer, which arise out of,
result from or relate to any breach of this Agreement by such Investor or
failure by such Investors to perform with respect to any of its representations,
warranties or covenants contained in this Agreement or in any exhibit or other
instrument furnished or to be furnished under this Agreement. The Company agrees
to defend and hold the Investor harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities or damages,
including interest, penalties and reasonable attorney's fees, that it shall
incur or suffer, which arise out of, result from or relate to any breach of this
Agreement or failure by the Company to perform with respect to any of its
representations, warranties or covenants contained in this Agreement or in any
exhibit or other instrument furnished or to be furnished under this Agreement.
11.3 HEADINGS. The table of contents and headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.4 ENTIRE AGREEMENT. This Agreement (together with the Schedule, Exhibits,
Warrants and documents referred to herein) constitute the entire agreement of
the parties and supersede all prior agreements and undertakings, both written
and oral, between the parties, or any of them, with respect to the subject
matter hereof.
11.5 NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed to have been given (i) on the date they are delivered if
delivered in person; (ii) on the date initially received if delivered by
facsimile transmission followed by registered or certified mail confirmation;
(iii) on the date delivered by an overnight courier service; or (iv) on the
third business day after it is mailed by registered or certified mail, return
receipt requested with postage and other fees prepaid as follows:
If to a21:
a21, Inc.
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Loeb & Loeb LLP
345 Park Avenue
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE ▇▇ ▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Direct Dial: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
With a copy to:
--------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Loeb & Loeb LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Direct Dial: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
If to the Investors:
To the address listed on Schedule A herein or to the
address provided to the Company by an Investor.
11.6 SEVERABILITY. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions 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 such 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 to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
11.7 BINDING EFFECT. All the terms and provisions of this Agreement whether so
expressed or not, shall be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective administrators, executors, legal
representatives, heirs, successors and assignees.
11.8 PREPARATION OF AGREEMENT. This Agreement shall not be construed more
strongly against any party regardless of who is responsible for its preparation.
The parties acknowledge each contributed and is equally responsible for its
preparation.
11.9 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
applicable principles of conflicts of law.
11.10 JURISDICTION. This Agreement shall be exclusively governed by and
construed in accordance with the laws of the State of New York. If any action is
brought among the parties with respect to this Agreement or otherwise, by way of
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 20 OF 28
a claim or counterclaim, the parties agree that in any such action, and on all
issues, the parties irrevocably waive their right to a trial by jury. Exclusive
jurisdiction and venue for any such action shall be the State Courts of New
York. In the event suit or action is brought by any party under this Agreement
to enforce any of its terms, or in any appeal therefrom, it is agreed that the
prevailing party shall be entitled to reasonable attorneys fees to be fixed by
the arbitrator, trial court, and/or appellate court.
11.11 PREPARATION AND FILING OF SECURITIES AND EXCHANGE COMMISSION FILINGS. Each
Investor shall reasonably assist and cooperate with the Company in the
preparation of all filings with the SEC after the Closing Date due after the
Closing Date.
11.12 FURTHER ASSURANCES, COOPERATION. Each party shall, upon reasonable request
by the other party, execute and deliver any additional documents necessary or
desirable to complete the transactions herein pursuant to and in the manner
contemplated by this Agreement. The parties hereto agree to cooperate and use
their respective best efforts to consummate the transactions contemplated by
this Agreement.
11.13 SURVIVAL The representations, warranties, covenants and agreements made
herein shall survive the Closing of the transaction contemplated hereby.
11.14 THIRD PARTIES Except as disclosed in this Agreement, nothing in this
Agreement, whether express or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
parties hereto and their respective administrators, executors, legal
representatives, heirs, successors and assignees. Nothing in this Agreement is
intended to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any party to this
Agreement.
11.15 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay
on the part of any party hereto in the exercise of any right hereunder shall
impair such right or be construed to be a waiver of, or acquiescence in, any
breach of any representation, warranty, covenant or agreement herein, nor shall
nay single or partial exercise of any such right preclude other or further
exercise thereof or of any other right. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
11.16 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement. A facsimile transmission of this
signed Agreement shall be legal and binding on all parties hereto.
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 21 OF 28
IN WITNESS WHEREOF, the Investors and the Company have as of the date
first written above executed this Agreement.
A21
A21, INC.
------------------------------------
By: ___________________
Title:__________________
INVESTORS
------------------------------------ -------------------------------------
Print Name: Print Name:
Entity (if appropriate): Entity (if appropriate):_____________
------------------------------------ -------------------------------------
Title: (if appropriate): Title: (if appropriate):_____________
------------------------------------ -------------------------------------
Print Name: Print Name:
Entity (if appropriate):____________ Entity (if appropriate):_____________
------------------------------------ -------------------------------------
Title: (if appropriate):____________ Title: (if appropriate):_____________
------------------------------------ -------------------------------------
Print Name: Print Name:
Entity (if appropriate):____________ Entity (if appropriate):_____________
------------------------------------ -------------------------------------
Title: (if appropriate):____________ Title: (if appropriate):_____________
Solely with regard to Section 2.3 of the Stock Purchase Agreement:
--------------------------
Loeb & Loeb LLP
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Partner
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 22 OF 28
SCHEDULE A-1
Number of
Name and Address Amount of Shares of Warrant Number of Strike
of Investor Investment Common Stock Coverage Warrants Price
----------- ------------ ------------ -------- -------- --------
▇▇▇▇▇▇ Partners LP $ 2,000,000 10,000,000 27.10% 2,710,000 $ 0.200
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 27.10% 2,710,000 $ 0.225
Managing Partner 27.10% 2,710,000 $ 0.450
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ 21.68% 2,168,000 $ 0.900
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 21.68% 2,168,000 $ 1.350
--------
tel ▇▇▇-▇▇▇-▇▇▇▇ 124.66%
fax ▇▇▇-▇▇▇-▇▇▇▇
LCA Capital Partners I, Inc. $ 450,000 2,250,000 27.10% 609,750 $ 0.200
c/o ▇▇▇▇ ▇▇▇▇▇ 27.10% 609,750 $ 0.225
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 27.10% 609,750 $ 0.450
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 21.68% 487,800 $ 0.900
21.68% 487,800 $ 1.350
Whitney Holdings, Inc. $ 90,000 450,000 27.10% 121,950 $ 0.200
c/o Loeb & Loeb LLP 27.10% 121,950 $ 0.225
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 27.10% 121,950 $ 0.450
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 21.68% 97,560 $ 0.900
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 21.68% 97,560 $ 1.350
Glossy Finish LLC $ 35,000 175,000 27.10% 47,425 $ 0.200
c/o Loeb & Loeb LLP 27.10% 47,425 $ 0.225
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 27.10% 47,425 $ 0.450
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 21.68% 37,940 $ 0.900
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 21.68% 37,940 $ 1.350
▇▇▇ ▇▇▇▇▇ $ 25,000 125,000 27.10% 33,875 $ 0.200
c/o Loeb & Loeb LLP 27.10% 33,875 $ 0.225
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 27.10% 33,875 $ 0.450
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 21.68% 27,100 $ 0.900
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 21.68% 27,100 $ 1.350
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 23 OF 28
SCHEDULE A-2
Number of
Name and Address Amount of Shares of Warrant Number of Strike
of Investor Investment Common Stock Coverage Warrants Price
----------- ------------ ------------ -------- -------- --------
▇▇▇▇▇▇ Partners LP $ 2,500,000 12,500,000 28.85% 3,606,250 $ 0.200
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 28.85% 3,606,250 $ 0.225
Managing Partner 28.85% 3,606,250 $ 0.450
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ 23.08% 2,885,000 $ 0.900
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 23.08% 2,885,000 $ 1.350
------
tel ▇▇▇-▇▇▇-▇▇▇▇ 132.71%
fax ▇▇▇-▇▇▇-▇▇▇▇
LCA Capital Partners I, Inc. $ 450,000 2,250,000 28.85% 649,125 $ 0.200
c/o ▇▇▇▇ ▇▇▇▇▇ 28.85% 649,125 $ 0.225
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 28.85% 649,125 $ 0.450
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 23.08% 519,300 $ 0.900
23.08% 519,300 $ 1.350
Whitney Holdings, Inc. $ 90,000 450,000 28.85% 129,825 $ 0.200
c/o Loeb & Loeb LLP 28.85% 129,825 $ 0.225
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 28.85% 129,825 $ 0.450
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 23.08% 103,860 $ 0.900
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 23.08% 103,860 $ 1.350
Glossy Finish LLC $ 35,000 175,000 28.85% 50,488 $ 0.200
c/o Loeb & Loeb LLP 28.85% 50,488 $ 0.225
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 28.85% 50,488 $ 0.450
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 23.08% 40,390 $ 0.900
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 23.08% 40,390 $ 1.350
▇▇▇ ▇▇▇▇▇ $ 25,000 125,000 28.85% 36,063 $ 0.200
c/o Loeb & Loeb LLP 28.85% 36,063 $ 0.225
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 28.85% 36,063 $ 0.450
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 23.08% 28,850 $ 0.900
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 23.08% 28,850 $ 1.350
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 24 OF 28
SCHEDULE A-3
Number of
Name and Address Amount of Shares of Warrant Number of Strike
of Investor Investment Common Stock Coverage Warrants Price
----------- ------------ ------------ -------- -------- --------
▇▇▇▇▇▇ Partners LP $ 3,000,000 15,000,000 30.60% 4,590,000 $ 0.200
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 30.60% 4,590,000 $ 0.225
Managing Partner 30.60% 4,590,000 $ 0.450
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ 24.48% 3,672,000 $ 0.900
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 24.48% 3,672,000 $ 1.350
------
tel ▇▇▇-▇▇▇-▇▇▇▇ 140.76%
fax ▇▇▇-▇▇▇-▇▇▇▇
LCA Capital Partners I, Inc. $ 450,000 2,250,000 30.60% 688,500 $ 0.200
c/o ▇▇▇▇ ▇▇▇▇▇ 30.60% 688,500 $ 0.225
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 30.60% 688,500 $ 0.450
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 24.48% 550,800 $ 0.900
24.48% 550,800 $ 1.350
Whitney Holdings, Inc. $ 90,000 450,000 30.60% 137,700 $ 0.200
c/o Loeb & Loeb LLP 30.60% 137,700 $ 0.225
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 30.60% 137,700 $ 0.450
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 24.48% 110,160 $ 0.900
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 24.48% 110,160 $ 1.350
Glossy Finish LLC $ 35,000 175,000 30.60% 53,550 $ 0.200
c/o Loeb & Loeb LLP 30.60% 53,550 $ 0.225
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 30.60% 53,550 $ 0.450
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 24.48% 42,840 $ 0.900
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 24.48% 42,840 $ 1.350
▇▇▇ ▇▇▇▇▇ $ 25,000 125,000 30.60% 38,250 $ 0.200
c/o Loeb & Loeb LLP 30.60% 38,250 $ 0.225
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 30.60% 38,250 $ 0.450
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 24.48% 30,600 $ 0.900
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 24.48% 30,600 $ 1.350
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 25 OF 28
EXHIBIT A
FORM OF WARRANT
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 26 OF 28
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 27 OF 28
EXHIBIT C
SUPERSTOCK, INC. STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT BETWEEN
A21, INC. AND CERTAIN INVESTORS
PAGE 28 OF 28