Stock Purchase Agreement - Worldwide Publishers Inc., Profit Financial Corp., Curtis A. Taylor and Stanley J. Zenk
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") for the purchase of
the common stock of Worldwide Publishers, Inc., a Utah corporation (the
"Corporation") is made as of August 8, 1997, between Profit Financial
Corporation, a Utah corporation ("Buyer") and Curtis A. Taylor and Stanley J.
Zenk ("Sellers").
RECITALS
WHEREAS, Sellers own all of the issued and outstanding shares of
capital stock of the Corporation, a Utah corporation, which consists of forty
thousand (40,000) shares of common stock with no par value, (the "Common
Stock").
WHEREAS, Buyer desires to purchase from Sellers, and Sellers desire to
sell to Buyer, all of the Common Stock (the "Stock Purchase");
WHEREAS, the Stock Purchase will completely terminate Seller's
interest in the Corporation;
WHEREAS, the parties hereto desire to complete the Stock Purchase upon
the terms and conditions hereinafter stated;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, it is agreed as follows:
AGREEMENT
1. Sale of Stock. Sellers hereby agree to sell and deliver to Buyer, and
Buyer hereby agrees to purchase from Sellers, all of the issued and outstanding
shares of capital stock of the Corporation, comprised of forty thousand (40,000)
shares of common stock (the "Common Stock").
2. Purchase Price and Payment. The purchase price for the Common
Stock shall be One Dollar ($1.00).
3. Closing. Unless otherwise agreed by the parties, the closing
shall occur on or before September 25, 1997, at 11:00 a.m. (the "Closing"), at
the offices of Monahan & Biagi, P.L.L.C., or at such other time and place as the
parties may agree upon. At the Closing, Sellers shall deliver, or cause to be
delivered, to Buyer the certificates representing the Common Stock, duly
endorsed in blank and in good order for transfer, the corporate minute book,
seal, and the stock records of the Corporation. At Closing Buyer shall pay the
Purchase Price to Sellers. At or upon Closing, the parties shall execute all
other documents and take such other actions as are reasonably necessary to carry
out the terms of this Agreement and consummate the transactions contemplated
hereby.
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4. Representations and Warranties of Sellers. Sellers jointly and
severally represent and warrant to Buyer as follows:
a. Authority. Sellers have the authority to enter into this
Agreement and to carry out their obligations hereunder. Sellers represent that
this Agreement is a valid and binding obligation of Sellers. Neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby nor compliance by Sellers with any of the
provisions hereof will result in a default (or give rise to any right of
termination, cancellation, or acceleration) under any of the terms conditions or
provisions of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which either Seller is a party, or by which they or
any of their properties or assets may be bound.
b. Clear Title. Sellers are the owners, free and clear of any
encumbrances, of all the outstanding shares in the Corporation.
c. Financial Statements. Sellers have furnished Buyer a
Corporation balance sheet as of August 26, 1997 (the "Balance Sheet"), and the
related statements of income and changes in financial position for the periods
then ended. Such financial statements are in accordance with generally accepted
accounting principles and fairly present the financial position and the results
of operations, and changes in financial position of the Corporation for the
periods indicated.
d. Absence of Undisclosed Liabilities. There is no material
liability or other obligation of a type which would be included in a balance
sheet prepared in accordance with generally accepted accounting principles
except as and to the extent disclosed or reflected in the Balance Sheet. For
purposes of this Agreement, liabilities or other obligations in excess of Five
Thousand Dollars ($5,000.00) shall be deemed material. If any undisclosed
material liability arises, Sellers shall reimburse Buyer and/or the Corporation
up to an aggregate maximum of $275,000.
e. No Material Change. Since the date of the Balance Sheet, there
has been no material adverse change in the working capital, financial condition,
property assets, or results of operations of Corporation.
f. Tax Matters. Sellers have caused the Corporation to file all
federal, state and local tax returns required to be filed or have received
extension to file such returns. All taxes shown by such returns to be due and
payable have been paid or are being contested in good faith. Any taxes due in
excess of those listed on the financial statements shall be treated as an
undisclosed liability pursuant to Section 4.d of this Agreement.
g. Legal Proceedings and Compliance with Law. Except as set
forth in Corporation's financial statements, there is no legal or administrative
proceeding or governmental investigation pending or threatened which might
result in the aggregate in
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money damages payable by Corporation in excess of insurance coverage, or which
might result in a permanent injunction against Sellers. Corporation has
substantially complied with any laws, ordinances, requirements, regulations, or
orders applicable to its business, the violation of which might adversely affect
its business.
h. Accuracy of Statements. Neither this Agreement nor any
statement or other information furnished or to be furnished by Sellers to Buyers
in connection with this Agreement or any of the transactions contemplated hereby
contains or will contain an untrue statement of material fact, or omits or will
omit to state a material fact necessary to make the statements contained herein
or therein not misleading.
5. Representations and Warranties of Buyer. Buyer represents and
warrants to Sellers as Follows:
a. Authority. Buyer has the authority to enter into this
Agreement and to carry out its obligations hereunder. Buyer represents that
this Agreement is a valid and binding obligation of Buyer.
b. Accuracy of Statements. Neither this Agreement nor any
statement or other information furnished by Buyer to Sellers in connection with
this Agreement or any of the transactions contemplated hereby contains or will
contain an 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.
6. Covenants of Sellers. Sellers agree that, unless Buyer otherwise
agrees in writing, from the date of this Agreement until Closing;
a. Preservation of Business. Sellers shall use their best
efforts to preserve intact the Corporation's present business organization;
preserve and protect the goodwill and advantageous relationships of the
Corporation with its customers and other persons having business dealings with
the Corporation; preserve and maintain in force all licenses, permits,
registrations, trade names, service marks, copyrights, bonds and other similar
rights of the Corporation; and cause the Corporation to comply with all laws
applicable to the conduct of its business.
b. Ordinary Course. Sellers shall cause the Corporation to conduct
its business only in the usual, regular and ordinary course, in substantially
the same manner as previously, and shall not make any substantial change to
their methods of management or operation in respect of the Corporation.
c. Books and Records. Sellers shall cause the Corporation to
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maintain its books, accounts and records in the usual and regular manner, in
accordance with generally accepted accounting principles consistently applied
and in compliance with all applicable laws.
d. Investigation. Sellers shall at all reasonable times permit Buyer
access to the Corporation's property, books and records for the purpose of
permitting a complete and detailed examination by Buyer, and Sellers shall
furnish Buyer, upon request, any information reasonably requested with respect
to the Corporation's property, assets, business and affairs.
7. Covenants of Buyer. Buyer agrees, unless Sellers otherwise agree
in
writing, that Buyer shall obtain prior to Closing all necessary consents and
approvals of all necessary persons to the performance by Buyer of the Stock
Purchase contemplated by this Agreement. Buyer shall make all filings
applications, statements and reports to all federal and state government
agencies or entities which are required to be made prior to Closing by or on
behalf of Buyer pursuant to any statute, rule or regulation in connection with
the transactions contemplated by this Agreement.
8. Seller's Negative Covenants. Sellers hereby covenant and warrant
that, from the date of this Agreement until Closing, they will not, without the
prior written consent of the Buyer, cause the Corporation to declare or pay and
dividend; redeem or otherwise acquire any shares of its capital stock now or
hereafter outstanding; issue any new or additional shares, or cancel, sell,
transfer or otherwise dispose of the Stock purchased hereunder. Sellers further
covenant that they will not cause the Corporation to create any additional
obligations to employees that will survive Closing, including, but not limited
to, employee benefit plans, bonuses, and other compensation.
9. Conditions Precedent to Obligations of Sellers. The obligations
of Sellers under this Agreement are subject to the satisfaction of the following
conditions on or before Closing unless waived in writing by Sellers;
a. Accuracy of Representations and Warranties. The
representations and warranties of buyer set forth in Section 5 hereof shall be
true and correct in all material respects as of the date of this Agreement and
as of closing as though made on and as of Closing, except as otherwise specified
by this Agreement.
b. Performance of Obligations of Buyer. Buyer shall have in all
material respects performed all obligations and agreements and complied with all
covenants and conditions contained in this Agreement to be performed and
complied with by them.
c. Corporate Action. The Corporation and its shareholders and
Board of Directors shall have passed all necessary resolutions and performed all
other actions necessary authorizing the transactions contemplated by this
Agreement.
10. Conditions Precedent to Obligations of Buyer. The obligations of
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Buyer to perform under this Agreement are subject to the satisfaction of the
following conditions on or before Closing unless waived in writing by Buyer:
a. Accuracy of Representation and Warranties. The
representations and warranties of Sellers set forth in Section 5 hereof shall be
true and correct in all material respects as of the date of this Agreement and
as of the closing date as though made on and as of Closing, except as otherwise
specified by this Agreement.
b. Performance of Obligations of Sellers. Sellers shall have
in all material respects performed all obligations and agreements and complied
with all covenants and conditions contained in this Agreement required to be
performed and complied with by them.
c. No Adverse Change. Between the date of this Agreement and
Closing, there shall have been no material adverse change in the Corporation's
business, assets or results or operation.
d. Corporate Action. The Corporation and its shareholders and
Board of Directors shall have passed all necessary resolutions and performed all
other actions necessary authorizing the transactions contemplated by this
Agreement.
11. Cancellation of Notes and Pledge. Sellers currently hold unpaid
promissory notes from the Corporation totaling approximately $44,236.85 (the
"Notes"). By executing this Agreement, the Sellers hereby waive and
relinquish all powers and rights with respect to the Notes or collection
thereof. On August 8, 1997, Curtis A. Taylor signed a Pledge of Shares of
Stock as security for two Notes held by Buyer. By executing this Agreement,
Buyer hereby cancels and terminates the Pledge of Shares of Stock signed by
Curtis A. Taylor.
12. Survival of Representations and Warranties. Each party hereto
covenants and agrees that its representations and warranties contained in this
Agreement, and in any document delivered or to be delivered pursuant to this
Agreement in connection with Closing hereunder, shall survive Closing.
13. Successors. This Agreement shall inure to the benefit of and be binding
upon the parties hereto, their successors, heirs, personal representatives, and
assigns.
14. Notices. All notices, requests, demands, and other communications
which are required or may be given under this Agreement shall be in writing,
unless otherwise specified in this Agreement, and shall be deemed to have been
duly given if delivered personally or sent by certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Sellers: Stanley J. Zenk
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5421 Buck Mountain Road
Placerville, CA 95667
With a copy to: David J. Crapo
Wood Crapo LLC
60 East South Temple, #500
Salt lake City, UT 84111
If to the Buyer: Kiman Lucas, Esq.
General Counsel
Profit Financial Corporation
14675 Interurban Avenue South
Seattle, WA 98168-4664
With a copy to: Tracy M. Shier
Monahan & Biagi, P.L.L.C.
57th Floor, Suite 5701
701 Fifth Avenue
Seattle, WA 98104-7010
or to such other addresses any party shall have specified by notice in writing
to the other.
15. Applicable Law. This Agreement and the legal relations between the
parties hereto shall be governed by and in accordance with the law of the State
of Utah.
16. Attorney's Fees. In any action or proceeding brought by any party
against the other, the substantially prevailing party shall, in addition to
other allowable costs, by entitled to an award of reasonable attorney's fees.
17. Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not affect the meaning and
interpretation of this Agreement.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
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Sellers:
__________________________________________
Curtis Taylor
__________________________________________
Stanley J. Zenk
Buyer:
PROFIT FINANCIAL CORPORATION
__________________________________________
Wade B. Cook
Its Chairman and Chief Executive Officer
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