SHARE PURCHASE AGREEMENT
This share purchase agreement ("AGREEMENT"), dated as of May 10, 2000 among
Phillip G. Hinds, Z.S. Merrit and Michael R. Butler (collectively, "SELLERS"),
Phillips 44, Inc. ("PHILLIPS 44"), the other Phillips 44 shareholders ("OTHER
SHAREHOLDERS"), and John Rice and Joseph Ingrassia ("BUYERS").
W I T N E S S E T H:
A. WHEREAS, Phillips 44 is a corporation duly organized under the laws of the
State of Wyoming.
B. WHEREAS, Buyers wishes to purchase 420,000 of the outstanding common shares
of Phillips 44 free and clear of liens and encumbrances from sellers (the
"PURCHASE SHARES") and 360,000 shares from the Other Shareholders ("OTHER
SHAREHOLDERS") who join this Agreement by execution of the Acceptance and Sale
Addendum attached hereto.
C. WHEREAS, prior to the transaction Buyers is not an affiliate of Phillips 44.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
THE CONSIDERATION
1.1 Subject to the conditions set forth herein, Sellers shall sell and
Buyers shall purchase 420,000 shares of common stock of Phillips 44. The
transactions contemplated by this Agreement shall be completed simultaneously
herewith. The purchase price for the shares to be paid by Buyers to Sellers is
$.02 in cash (THE "CONSIDERATION") per share for which $8,400 is herewith paid
into escrow with M.A. Littman.
1.2 In addition, on or before three days after the closing of the purchase
set forth in 1.1 above. Buyers shall pay $.02 per share to each Other
Shareholder who joins this Agreement by execution of the Addendum hereto, for a
total of 360,000 shares for which $7,200 shall be deposited into escrow with
M.A. Littman for Other Shareholders within three days hereafter.
<PAGE>
ARTICLE II
CONVEYANCE OF SHARES
2.1 The Purchase Shares and the other shares shall be delivered and
conveyed by Sellers to Buyers simultaneously herewith, with duly executed stock
powers, upon receipt of the Consideration by Sellers and Other Shareholders.
2.2 After closing with Sellers, the Other Shareholders who join this
Agreement by execution of the Acceptance and Sale Addendum will convey their
shares to Buyers and receive $.02 per share of Phillips 44 sold.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS AS TO PHILLIPS 44
Sellers and Phillips 44 each hereby, jointly and severally, represent,
warrant and covenant to Buyers as follows:
3.1 Phillips 44 is a corporation duly organized, validly existing and in
good standing under the laws of the State of Wyoming, and has the corporate
power and authority to own or lease its properties and to carry on its business
as it is now being conducted. The Articles of Incorporation and Amendments and
Bylaws of Phillips 44, copies of which have been delivered to Buyers, are
complete and accurate, and the minute books of Phillips 44, copies of which have
also been delivered to Buyers, contain a record, which is complete and accurate
in all material respects, of all meetings, and all corporate actions of the
shareholders and Board of Directors of Phillips 44.
3.2 The authorized capital stock of Phillips 44 consists of 50,000,000
shares of common stock. There are 780,000 shares of Common Stock issued and
outstanding. All such shares of capital stock of Phillips 44 are validly issued,
fully paid and nonassessable. Phillips 44 has no outstanding options, warrants,
or other rights to purchase, or subscribe to, or other securities convertible
into or exchangeable for any shares of capital stock of Phillips 44, or
contracts or arrangements of any kind relating to the issuance, sale or transfer
of any capital stock or other equity securities of Phillips 44. All of the
outstanding shares of capital stock of Phillips 44 have been offered, issued,
sold and delivered in compliance with applicable federal and state securities
laws and none of such securities were, at the time of issuance, subject to
preemptive rights.
3.3 Phillips 44 does not own nor has it ever owned any outstanding shares
of capital stock or other equity interests of any partnership, joint venture,
trust, corporation, limited liability company or other entity and there are no
obligations of Phillips 44 to repurchase, redeem or otherwise acquire any
capital stock or equity interest of another entity.
3.4 This Agreement has been duly authorized, validly executed and delivered
on behalf of the Sellers and Phillips 44 and is a valid and binding agreement
and obligation of the Sellers and Phillips 44 enforceable against each Seller,
jointly and severally, and against Phillips 44 in accordance with its terms,
subject to limitations on enforcement by general principles of equity and by
bankruptcy or other laws affecting the enforcement of creditors' rights
generally, and the Sellers and Phillips 44 each have complete and unrestricted
power to enter into and, upon the appropriate approvals as required by law, to
consummate the transactions contemplated by this Agreement.
<PAGE>
3.5 Neither the making of nor the compliance with the terms and provisions
of this Agreement and consummation of the transactions contemplated herein by
Phillips 44 will conflict with or result in a breach or violation of the
Articles of Incorporation or Bylaws of Phillips 44, or of any material
provisions of any indenture, mortgage, deed of trust or other material agreement
or instrument to which Phillips 44 is a party or by which it or any of its
material properties or assets are bound, or of any material provision of any
law, statute, rule, regulation, or any existing applicable decree, judgment or
order by any court, federal or state regulatory body, administrative agency, or
other governmental body having jurisdiction over Phillips 44, or any of its
material properties or assets, or will result in the creation or imposition of
any material lien, charge or encumbrance upon any material property or assets of
Phillips 44 pursuant to the terms of any agreement or instrument to which
Phillips 44 is a party or by which Phillips 44 may be bound or to which any of
Phillips 44 property is subject and no event has occurred with which lapse of
time or action by a third party could result in a material breach or violation
of or default by Phillips 44.
3.6 Except as disclosed herein, and based upon the representations and
warranties of the Buyers set forth herein, no authorization, consent, approval,
exemption or other action by or notice to any government entity or filing with
or consent of any governmental body is required for the sale of the Purchase
Shares to Buyers pursuant to this Agreement.
3.7 There is no claim, legal action, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order, decree
or judgment in progress, pending or in effect, or to the best knowledge of the
Sellers threatened against or relating to Phillips 44 or affecting any of its
assets, properties, business or capital stock. There is no continuing order,
injunction or decree of any court, arbitrator or governmental authority to which
Phillips 44 is a party or by which Phillips 44 or its assets, properties,
business or capital stock are bound.
3.8 Phillips 44 has accurately prepared and filed all Federal, state and
other tax returns required by law, domestic and foreign, to be filed by it, has
paid or made provisions for the payment of all taxes shown to be due and all
additional assessments, and adequate provisions have been and are reflected in
the financial statements of Phillips 44 for all current taxes and other charges
to which Phillips 44 is subject and which are not currently due and payable.
None of the Federal income tax returns of Phillips 44 have been audited by the
Internal Revenue Service or other foreign governmental tax agency. Phillips 44
has no knowledge of any additional assessments, adjustments or contingent tax
liability (whether federal or state) pending or threatened against Phillips 44
for any period, nor of any basis for any such assessment, adjustment or
contingency.
3.9 Sellers are the legal, beneficial and registered owners of the Purchase
Shares, free and clear of any liens, charges, encumbrances, voting trusts,
shareholder agreements or rights of any kind granted to any person or entity, or
any interest in or the right to purchase or otherwise acquire any of the
Purchase Shares from the Sellers at any time upon the happening of any stated
event and may transfer such shares without the consent of any third party. Upon
closing of the transactions contemplated hereby, the Buyers will acquire all
right, title and interest in the Purchase Shares, free and clear of all liens,
charges or encumbrances and will have all of Seller's entire right, title and
interest in and to the Purchase Shares. All Purchase Shares owned by Sellers is
set forth hereto on Schedule 3.9.
<PAGE>
3.10 Other Shareholders who join this Agreement by Addendum shall warrant
and represent that the shares sold by such shareholders are free and clear of
any liens and encumbrances and may be transferred without consent of any third
party.
3.11 Phillips 44 has delivered to Buyers audited financial statements dated
December 31, 1999. All such statements, herein sometimes called "PHILLIPS 44
FINANCIAL STATEMENTS" are complete and correct in all material respects and,
together with the notes to these financial statements, present fairly the
financial position and results of operations of Phillips 44 for the periods
indicated. All financial statements of Phillips 44 have been prepared in
accordance with generally accepted accounting principles.
3.12 As of the date hereof, there is no indebtedness. Phillips 44 and the
Sellers hereby, jointly and severally, represent and warrant that all
outstanding indebtedness of Phillips 44 shall have been paid and released prior
to the closing of the transactions hereby and that there are no outstanding
liens, charges or encumbrances on the assets of Phillips 44.
3.13 Since the dates of the Phillips 44 Financial Statements, there have
not been any material adverse changes in the business or condition, financial or
otherwise, of Phillips 44. Phillips 44 does not have any liabilities,
commitments or obligations, secured or unsecured except as shown on updated
financials (whether accrued, absolute, contingent or otherwise).
3.14 Phillips 44 is not a party to any contract performable in the future.
3.15 The representations and warranties of the Sellers and Phillips 44
shall be true and correct as of the date hereof.
3.16 Phillips 44 has delivered to Buyers, all of its corporate books and
records for review.
3.17 Phillips 44 has no employee benefit plan in effect at this time.
3.18 No representation or warranty by Phillips 44 or the Sellers in this
Agreement, or any certificate delivered pursuant hereto contains any untrue
statement of a material fact or omits to state any material fact necessary to
make such representation or warranty not misleading.
3.19 Sellers or Phillips 44 have delivered, to Buyers true and correct
copies of a Form 10SB declared effective by the Securities and Exchange
Commission ("SEC") and each of its other reports to shareholders filed with the
SEC for the year ended December 31, 1999. Phillips 44 is a registered company
under the Securities Exchange Act of 1934, as amended.
<PAGE>
3.20 Phillips 44 has duly filed all reports required to be filed by it
under the Securities Act of 1933, as amended, and the Securities Exchange Act of
1934, as amended (the "Federal Securities Laws"). No such reports, or any
reports sent to the shareholders of Phillips 44 generally contained any untrue
statement of material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements in such report, in light of
the circumstances under which they were made, not misleading.
3.21 The Sellers have not received any general solicitation or general
advertising regarding the shares of Buyers's common stock comprising the
Consideration.
3.22 Phillips 44 has conducted no business to date, has incurred no
liabilities and has no contract or open account affiliations whatsoever.
ARTICLE IV
TERMINATION OF REPRESENTATION AND
WARRANTIES AND CERTAIN AGREEMENTS; INDEMNIFICATION
4.1 The respective representations and warranties of the parties hereto
shall survive this Agreement for three years and the covenants shall survive
hereafter.
4.2 The right to indemnification, payment of Damages (as defined in section
4.5) or other remedy based on any representation, warranty, covenant or
obligation of a party hereunder shall not be affected by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
acquired) at any time, whether before or after the execution and delivery of
this Agreement, with respect to the accuracy or inaccuracy of or compliance
with, any such representation, warranty, covenant or obligation.
4.3 The waiver of any condition to a party's obligation to consummate the
transactions contemplated hereunder, where such condition is based on the
accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or obligation, will not affect the right to
indemnification, payment of Damages, or other remedy based on such
representation, warranty, covenant or obligation.
4.4 Phillips 44 and each of the Sellers, jointly and severally, shall
indemnify and hold harmless the buyers (the "BUYERS INDEMNIFIED PERSONS") for,
and will pay to the Buyers Indemnified Persons, the amount of, any loss,
liability, claim, damage (including, without limitation, incidental and
consequential damages), cost, expense (including, without limitation, interest,
penalties, costs of investigation and defense and the reasonable fees and
expenses of attorneys and other professional experts) or diminution of value,
whether or not involving a third-party claim (collectively, "DAMAGES"), directly
or indirectly arising from, attributable to or in connection with:
(a) any representation or warranty made by the Sellers and Phillips 44 in
this agreement or any of the Sellers' and Phillips 44 closing
deliveries, that is, or was at the time made, false or inaccurate, or
any breach of, or misrepresentation with respect to, any such
representation or warranty; and
<PAGE>
(b) any breach by any of the Sellers or Phillips 44 of any covenant,
agreement or obligation of the Sellers contained in this agreement.
(c) any claims or litigation relating to Phillips 44 now pending or
threatened or which may hereafter be brought against Buyers and/or
Phillips 44 based upon events occurring prior to the date hereof and
not attributable to the acts of the Buyers.
(d) any and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs, losses, liabilities and reasonable legal and other
expenses incident to any of the foregoing.
4.5 The Sellers and Phillips 44 shall have no liability for indemnification
with respect to any representation or warranty, unless, on or before the [third]
anniversary of the date hereof, the Buyers notifies the Sellers of a claim
specifying the basis thereof in reasonable detail to the extent then known by
the Buyers. A claim with respect to any covenant, agreement or obligation
contained in this agreement, may be made at any time without any time
limitation.
4.6 Promptly after receipt by an indemnified party of written notice (the
"NOTICE OF CLAIM") of the commencement of any action, suit or proceeding against
it, or written threat thereof, such indemnified party will, if a claim is to be
made against an indemnifying party under either of said sections, as applicable,
give notice to the indemnifying party of the commencement of such action, suit
or proceeding. The indemnified party shall furnish to the indemnifying party in
reasonable detail such information as the indemnified party may have with
respect to such indemnification claims (including copies of any summons,
complaint or other pleading which may have been served on it and any written
claim, demand, invoice, billing or other document evidencing or assenting the
same). Subject to the limitations set forth in this section, no failure or delay
by the indemnified party in the performance of the foregoing shall reduce or
otherwise affect the obligation of the indemnifying party to indemnify and hold
the indemnified party harmless except to the extent that such failure or delay
shall have materially and adversely affected the indemnifying party's ability to
defend against, settle or satisfy any action, suit or proceeding the claim for
which the indemnified party is entitled to indemnification hereunder. The
foregoing shall not apply to the extent inconsistent with the provisions of
section 4.8 relating to Proceedings.
4.7 If the claim or demand set forth in the Notice of Claim given by the
indemnified party is a claim or demand asserted by a third party, the
indemnifying party shall have 30 days after the Date of Notice of Claim to
notify the indemnified party in writing of its election to defend such third
party claim or demand on behalf of the indemnified party (the "NOTICE PERIOD");
provided, however, that the indemnified party is authorized to file any motion,
answer or other pleading which it deems necessary or appropriate to protect its
interests during the Notice Period. If the indemnifying party elects to defend
such third party claim or demand, the indemnified party shall make available to
the indemnifying party and its agents and representatives all records and other
materials which are reasonably required in the defense of such third party claim
or demand and shall otherwise cooperate (at the sole cost and expense of the
indemnifying party) with, and assist (at the sole cost and expense of the
indemnifying party) the indemnifying party in the defense of, such third party
claim or demand, and so long as the indemnifying party is diligently defending
such third party claim in good faith, the indemnified party shall not pay,
settle or compromise such third party claim or demand. If the indemnifying party
elects to defend such third party claim or demand, the indemnified party shall
<PAGE>
have the right to control the defense of such third party claim or demand, at
the indemnified party's own expense. If the indemnifying party does not elect to
defend such third party claim or demand or does not defend such third party
claim or demand in good faith, the indemnified party shall have the right, in
addition to any other right or remedy it may have hereunder at the indemnifying
party's expense, to defend such third party claim or demand.
4.8 The term "Date of Notice of Claim" shall mean the date the Notice of
Claim is effective pursuant to section 5.5 of this Agreement.
4.9 A claim for indemnification for any matter not involving a third-party
claim may be asserted by notice to the party from whom indemnification is
sought.
4.10 Any legal action or proceeding with respect to this Agreement or any
matters arising out of or in connection with this Agreement or the transactions
contemplated hereby or the documents executed and delivered in connection
herewith, and any action for enforcement of any judgment in respect thereof may
be brought in the courts of the State of Wyoming or of the United States of
America for the District of Wyoming, and, by execution and delivery of this
Agreement, the parties each hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts and appellate courts thereof. The parties irrevocably consent to service
of process out of any of the aforementioned courts in any such action or
proceeding in accordance with the notice provisions set forth in Section 5.5.
The parties each hereby irrevocably waive any objection that it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or the
transactions contemplated hereby or the documents execute and delivered in
connection herewith brought in the courts referred to above and hereby further
irrevocably waive and agree, to the extent permitted by applicable law, not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of any party hereto to serve process in any other manner
permitted by law.
ARTICLE V
PROCEDURE FOR CLOSING
5.1 At the Closing Date, the purchase and sale shall be effective with
common stock certificates of Phillips 44 being delivered duly executed for
420,000 shares of common stock to Buyers and the delivery of $.02 per share to
Sellers from Buyers (from the Escrow with M.A. Littman), together with deliver
of all other agreements, schedules, warranties, and representations set forth in
this Agreement.
5.2 The purchase and sale of 360,000 shares of Phillips 44 common stock
from the Other Shareholders shall occur upon tender of the Acceptance and Sale
Addendum executed by such Other Shareholders at $.02 per share.
<PAGE>
ARTICLE VI
CONDITIONS PRECEDENT TO THE
CONSUMMATION OF THE PURCHASE
The following are conditions precedent to the consummation of the Agreement
on or before the Closing Date:
6.1 SELLERS shall have performed and complied with all of their respective
obligations hereunder which are to be complied with or performed on or before
the Closing Date and SELLERS and Phillips 44 and BUYER shall provide one another
at the Closing with a certificate to the effect that such party has performed
each of the acts and undertakings required to be performed by it on or before
the Closing Date pursuant to the terms of this Agreement.
6.2 No action, suit or proceeding shall have been instituted or shall have
been threatened before any court or other governmental body or by any public
authority to restrain, enjoin or prohibit the transactions contemplated herein,
or which might subject any of the parties hereto or their directors or officers
to any material liability, fine, forfeiture or penalty on the grounds that the
transactions contemplated hereby, the parties hereto or their directors or
officers, have violated any applicable law or regulation or have otherwise acted
improperly in connection with the transactions contemplated hereby, and the
parties hereto have been advised by counsel that, in the opinion of such
counsel, such action, suit or proceeding raises substantial questions of law or
fact which could reasonably be decided adversely to any party hereto or its
directors or officers.
6.3 All actions, proceedings, instruments and documents required to carry
out this Agreement and the transactions contemplated hereby and the form and
substance of all legal proceedings and related matters shall have been approved
by counsel for BUYER.
6.4 The representations and warranties made by BUYER and SELLERS in this
Agreement shall be true as though such representations and warranties had been
made or given on and as of the Closing Date, except to the extent that such
representations and warranties may be untrue on and as of the Closing Date
because of (1) changes caused by transactions suggested or approved in writing
by BUYER or (2) events or changes (which shall not, in the aggregate, have
materially and adversely affected the business, assets, or financial condition
of Phillips 44 during or arising after the date of this Agreement.)
6.5 All outstanding liabilities of Phillips 44 shall have been paid and
released prior to closing.
6.6 No change in the management or directors nor exercise of control of
Phillips 44 may occur until 1.1 and 2.2 and 5.2 have been completed with deliver
of all shares of outstanding Phillips 44 to Buyers and delivery of purchase
price to the Other Shareholders.
<PAGE>
ARTICLE VII
MISCELLANEOUS
7.1 This Agreement embodies the entire agreement between the parties, and
there have been and are no agreements, representations or warranties among the
parties other than those set forth herein or those provided for herein.
7.2 To facilitate the execution of this Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument.
7.3 All parties to this Agreement agree that if it becomes necessary or
desirable to execute further instruments or to make such other assurances as are
deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
7.4 This Agreement may not be amended except by written consent of both
parties.
7.5 Any notices, requests, or other communications required or permitted
hereunder shall be delivered personally or sent by overnight courier service,
prepaid, addressed as follows:
To Sellers: c/o M.A. Littman
10200 W. 44TH Avenue, Suite 400
Wheat Ridge, CO 80033
To: John Rice
Joseph Ingrassia
Copy to:
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
7.6 No press release or public statement will be issued relating to the
transactions contemplated by this Agreement without prior approval of Buyers and
Sellers. However, Phillips 44 may issue at any time any press release or other
public statement it believes on the advice of its counsel it is obligated to
issue to avoid liability under the law relating to disclosures, but the party
issuing such press release or public statement shall make a reasonable effort to
give the other party prior notice of and opportunity to participate in such
release or statement.
7.7 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall be considered one and
the same agreement. This Agreement may be executed by facsimile signatures.
<PAGE>
7.8 This Agreement shall be governed by and construed in accordance with
and enforced under the laws of the state of Wyoming applicable to agreements
made and to be performed entirely in that state.
IN WITNESS WHEREOF, the parties have executed this Agreement this 10th day
of May.
SELLERS:
/s/Phillips G. Hinds
__________________________
Phillips G. Hinds
/s/Z.S. Merrit
__________________________
Z.S. Merrit
/s/Michael R. Butler
__________________________
Michael R. Butler
PHILLIPS 44, INC.
By:/s/John R. Rice, III
__________________________
BUYERS:
/s/John Rice
__________________________
John Rice
/s/Joseph Ingrassia
__________________________
Joseph Ingrassia
<PAGE>
SCHEDULE 3.9
SELLERS PURCHASE SHARES OWNED
Phillips G. Hinds 140,000
Z.S. Merrit 140,000
Michael R. Butler 140,000
