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EXHIBIT 10.1
AGREEMENT FOR THE
PURCHASE OF CORPORATE STOCK
Agreement made this 18th day of May, 2000, between ISA Internationale, Inc. (the
"Seller"), whose address is 1601 Professional Plaza, Suite 100, Burnsville, MN
55337, and Ronald G. Wolfbauer ("Purchaser" or "Buyer"), whose principal office
is at 1750 Yankee Doodle Road, Suite 200, Eagan, MN 55121.
Whereas:
The Seller owns all of the issued and outstanding shares of International
Strategic Assets, Inc., whose address is 1750 Yankee Doodle Road, Suite 202,
Eagan, MN 55121 (the "Company").
Ronald G. Wolfbauer is an individual residing and doing business within the
State of Minnesota.
The Seller desires to sell and the Purchaser desires to buy such shares on the
terms herein stated.
NOW, therefore, the parties agree as follows:
ARTICLE I
PLAN OF SALE OF STOCK
SECTION 1.1 SALE OF SHARES. The Seller shall sell and transfer to the
Purchaser, and the Purchaser shall purchase and acquire from the Seller, 4,286
shares (42.86% of the outstanding shares of the Company, consisting of 10,000.00
of common shares, without par value), which shares the Seller now owns.
SECTION 1.2 PURCHASE PRICE. The purchase price for all of such shares
is Seventy-Five Thousand and Five Dollars ($75,005.00) which the Purchaser shall
pay to the Seller by certified or bank cashier's check at closing.
SECTION 1.3 CLOSING. The closing of the sale shall take place at the
offices of Winthrop and Weinstein, or such other place designated by the parties
in writing on May 19, 2000 (the closing date). At the closing, Seller shall
deliver to the Buyer:
(1) Certificates for the shares in negotiable form, with any
requisite transfer stamps attached, free and clear of all
encumbrances.
(2) Resignations, effective as of the Closing Date, of all
directors and officers of the Company requested by Buyer.
(3) The minutes of the Company (one set dated May 19, 2000).
(4) All keys to all locks on the rented premises.
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(5) The keys to the safety deposit box.
(6) A list of all bank accounts into which the Company's funds
have been deposited.
(7) Copies of all income tax returns filed by the Company since
its inception, and copies of all employment tax returns for
the years 1999-2000.
Upon such delivery, the Buyer shall deliver to Seller a certified or bank
cashier's check, payable to the order of such Seller, for the cash portion of
the purchase.
It is agreed that for all purposes under this agreement, time is of the
essence.
SECTION 1.4 REDEMPTION OF REMAINING STOCK. Immediately after closing,
the Seller and Purchaser shall both insure that the Company will redeem the
remaining 5,714 shares of Seller in the Company for the price of $17.50 per
share (totaling $99,995). The Company and the Purchaser shall provide reasonable
evidence of good funds available for such redemption. After the redemption,
Seller shall own no shares of stock in the Company, and Purchaser shall own all
of the issued and outstanding shares, which will then be 4,286 shares.
SECTION 1.5 FURTHER ASSURANCES. From time to time, on and after the
Closing Date, as and when requested by Purchaser or its successors or assigns,
the proper officers and directors of the Company immediately before the Closing
Date, or other proper officers or directors shall execute and deliver all such
deeds, bills of sale, assignments and other instruments and shall take or cause
to be taken such further or other reasonable actions as Purchaser or his
respective successors or assigns may deem necessary or desirable in order to
confirm or record or otherwise transfer to the Company title to and possession
of all the properties, rights, privileges, powers, franchises and immunities of
the Company and otherwise to reasonably carry out fully the provisions and
purposes of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to, and agrees with,
Purchaser as of the date hereof and, except only as otherwise specifically
provided herein, as of the Closing Date as if made and agreed on said date:
SECTION 2.1 ORGANIZATION. The Company is a corporation, duly organized,
validly existing, and in good standing under the laws of the State of Minnesota,
and has all requisite corporate power and authority to own its property and
conduct the business in which it is engaged. The copies of its Articles of
Incorporation delivered to Purchaser are true and correct. The Corporation has
not adopted any bylaws.
SECTION 2.2 CAPITALIZATION. The Company is authorized to issue only
5,000,000 shares of Company Common Stock of no par value. No other shares of
stock, common, preferred, or otherwise, are authorized. As of the date hereof,
there are 10,000 shares of Company Common Stock issued and outstanding (the
"Outstanding Common Shares"). The
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Outstanding Common Shares are all owned by Seller. All of the Outstanding Common
Shares have been fully paid, have been validly issued, and are non-assessable.
Holders of the Outstanding Common Shares do not have preemptive rights.
The Company does not have outstanding any options or warrants to
purchase, or contracts to issue, or contracts or any other rights entitling
anyone to acquire shares of its capital stock of any class or kind, or
securities convertible into such shares.
The Company does not have in effect any stock purchase plan.
At the Closing, the Seller shall have good and marketable title to the
outstanding Common Stock, free and clear of all claims, liens and encumbrances.
SECTION 2.3 SUBSIDIARIES, ETC. The Company has no equity interest in
any corporation, partnership, joint venture or other entity.
SECTION 2.4 BUSINESS QUALIFICATION. The Company does not do business in
any state other than the State of Minnesota.
SECTION 2.5 FINANCIAL STATEMENTS.
2.5.1 The Seller has delivered to Purchaser copies of the unaudited
balance sheets of the Company as of December 31, 1998, and December 31, 1999 and
the unaudited statements of income and retained earnings of the Company for the
fiscal years ending on said dates (the "Annual Statements"), and the Balance
Sheet of the Company as of March 31, 2000, and the statements of income and
retained earnings of the Company for the fiscal period ending on said date
compiled by the Company (the "Interim Statements").
The Annual Statements are true, complete and correct and have been
prepared in accordance with generally accepted accounting principles
consistently followed throughout the periods indicated. The Annual Statements
fairly present the financial condition and assets and liabilities, whether
accrued, absolute, contingent or otherwise, as of the dates indicated and the
results of operation of the Company for the periods then ended.
The Interim Statements are true, complete and correct, have been
prepared in accordance with generally accepted accounting principles,
consistently followed (subject, however, to normal year-end adjustments, none of
which will be materially adverse, and to the absence of footnotes), and fairly
and accurately present the financial condition and assets and liabilities,
whether accrued, absolute, contingent or otherwise, of the Company as of the
dates indicated and the results of operations of the Company for the periods
then ended.
SECTION 2.6 LITIGATION. There are no legal, administrative, arbitration
or other proceedings or claims pending or, to the best knowledge of the Seller,
threatened against the Company, nor is the Company subject to any existing
judgments. The Company is not operating under or subject to, or in default with
respect to, any order, writ, injunction or decree of any court or federal,
state, municipal or other governmental department, commission, board, agency or
instrumentality, domestic or foreign.
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SECTION 2.7 INSURANCE. The Company has not received any notice of
cancellation with respect to any insurance policy of the Company. All premiums
due under each insurance policy of the Company have been paid in full. The
Company has timely filed all claims or timely notified insurance carriers of
events or circumstances giving rise to any claims under such policies.
SECTION 2.8 AUTHORITY RELATIVE TO AGREEMENT; ENFORCEABILITY. The
execution, delivery and performance of this Agreement are within the legal
capacity and power of the Seller, have been duly authorized by all requisite
corporate action on the part of the Seller; require the approval or consent of
no other persons, entities or agencies, and will neither violate nor constitute
a default under, nor create a lien or breach under, nor result in the
acceleration of performance or right to accelerate performance under (whether or
not after the giving of notice or lapse of time or both), the terms of the
articles of incorporation and by-laws of the Company or of any agreement,
obligation or commitment binding upon the Company.
This Agreement is a legal, valid and binding obligation of the Seller
enforceable against it in accordance with its terms, except insofar as the
enforcement thereof may be limited by bankruptcy, insolvency, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
subject to equitable principles limiting the availability of equitable remedies.
SECTION 2.9 TAXES. All tax and information returns required to have
been filed by the Company have been filed with the appropriate authority; and
all federal, state and local taxes (including without limitation income,
franchise, property, sales, use, value-added, withholding, excise, capital or
other tax liabilities), charges, assessments, penalties and interest of the
Company ("Tax Liabilities") required to be paid on or before the date hereof
have been paid. Such returns were correct as filed. No assessments or additional
Tax Liabilities have been proposed or threatened against the Company or any of
its assets, and the Company has not executed any waiver of the statute of
limitations on the assessment or collection of any Tax Liabilities.
The Balance Sheet included in the Interim Statement includes full and
adequate provision for (i) all Tax Liabilities incurred or accrued as of the
date of said Statement, and (ii) any and all Tax Liabilities which may hereafter
be assessed or imposed on the Company with respect to time periods ending on or
before the date of said Balance Sheet. Since the date of said Balance Sheet, and
through the Closing Date, the Company has not incurred and will not incur any
Tax Liabilities other than in the ordinary course of business and not in excess
of amounts incurred in the ordinary course in prior periods.
The federal tax returns and state tax returns of the Company have never
been audited or examined by the Internal Revenue Service. There are no pending
investigations of the Company or its tax returns by any federal, state or local
taxing authority, no federal, state or local tax liens upon any of the Company's
assets, and no presently effective extensions to the limitation periods for the
imposition of tax liabilities against the Company for any of its open taxable
years.
No consent under Section 341(f) of the Internal Revenue Code has been
filed with respect to any property or assets held, acquired or to be acquired by
the Company. There is no tax-
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sharing agreement which will require any payment by the Company after the date
of this Agreement. The Company has never been an "S" corporation.
SECTION 2.10 ASSET SALES. The Company has not, except for sales of
inventory in the ordinary course of business, sold, transferred or distributed
any significant portion of its assets during the two-year period preceding the
date hereof nor has the Company taken any other action which would preclude the
Purchaser from making an election under Section 338 of the Internal Revenue
Code.
SECTION 2.11 FULL DISCLOSURE. No representation or warranty made by the
Seller under or in connection with this Agreement, no certification furnished or
to be furnished to Purchaser pursuant to this Agreement, and no agreements,
instruments or documents delivered by the Company to Purchaser or its counsel
hereunder, 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. The Company has disclosed to
Purchaser all material facts relating to the Company, its business, assets and
prospects, including without limitation all facts which might result in an
adverse effect thereon.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to, and agrees with, the
Company as follows:
SECTION 3.1 STATUS. Purchaser is an individual domiciled and resident
of the United States, and is a citizen of the United States of America.
ARTICLE IV
COVENANTS OF THE SELLER
SECTION 4.1 REGULAR COURSE OF BUSINESS. Except as otherwise consented
to in writing by Purchaser during the period commencing on the date hereof and
ending at the Closing Date or as contemplated by this Agreement, the Company
will carry on its business diligently and in the ordinary course and use its
best efforts to preserve its present business organization intact, keep
available the services of its present employees and executive officers and
preserve its present relationships with persons having business dealings with
it. It will take no corporate action which would require either a meeting of
directors or shareholders.
SECTION 4.2 BEST EFFORTS. The Company shall use its best efforts (a) to
cause to be fulfilled and satisfied all of the conditions to the closing to be
fulfilled and satisfied by it, (b) to cause to be performed all of the matters
required of it at or prior to the Closing and (c) to achieve full compliance
with all applicable General Laws. The Company shall use its best efforts to make
all of its warranties and representations contained in this Agreement (except
those representations and warranties which are expressly limited to a state of
facts existing at a time prior to the Closing) true and correct on all material
respects as at the Closing, with the same effect as if the same had been made
and this Agreement had been dated as at the Closing.
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SECTION 4.3 SECTION 338 ELECTION. The Seller and the Company shall take
all reasonable steps necessary for the Purchaser to be able to make an election
under Section 338 of the Internal Revenue Code, should he so desire, and shall
omit from taking any action which will preclude such accounting and/or tax
treatment.
ARTICLE V
PURCHASER SHARES AND REGISTRATIONS
SECTION 5.1 SHARES NOT REGISTERED; INVESTMENT INTENT. The Seller's
Common Shares to be sold at closing, have not been registered under the
Securities Act of 1933 (the "Securities Act") or any state securities laws. Such
Common Shares have not been registered under the Securities Act or any state
securities laws by reason of their contemplated issuance in transactions exempt
from the registration requirements of the Securities Act. The Common Shares may
not be transferred or resold without (i) registration under the Securities Act
or any applicable state securities laws, or (ii) an exemption from registration
requirements of the Securities Act and applicable state or securities laws.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser under this Agreement to consummate the
Purchase shall be subject to the satisfaction, or to the waiver by him on or
before the Closing Date, of the following conditions:
SECTION 6.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of the Company contained in this Agreement shall be in all
material respects true and accurate as of the date when made, and, except as to
representations and warranties which are expressly limited to a state of facts
existing at a time prior to the Closing Date, shall be in all material respects
true and accurate at and as of the Closing Date as if made on the Closing Date.
SECTION 6.2 PERFORMANCE OF COVENANTS. The Company shall have performed
and complied in all material respects with each and every covenant, agreement
and condition required by this Agreement to be performed or complied with by it
or them prior to or on the Closing Date.
SECTION 6.3 NO GOVERNMENTAL OR OTHER PROCEEDING OR LITIGATION. No order
of any court or administrative agency shall be in effect which restrains or
prohibits any transaction contemplated hereby or which would limit or affect
Purchaser's ownership of the Company; no suit, action, investigation, inquiry or
proceeding by any governmental body or other person or entity shall be pending
or threatened against Purchaser, or the Company, which challenges the validity
or legality, or seeks to restrain the consummation of the transactions
contemplated hereby or which seeks to limit or otherwise affect Purchaser's
ownership of the Company; and no written advice shall have been received by
Purchaser, the Company or their respective counsel from any governmental body,
and remain in effect, stating that an action or proceeding will, if the
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Sale is consummated or sought to be consummated, be filed seeking to invalidate
or restrain the Sale or limit or otherwise affect Purchaser's ownership of the
Company.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE SELLER
The obligations of the Company under this Agreement to consummate the
Sale shall be subject to the satisfaction, or to the waiver by it in the manner
contemplated by Section 12.2 hereof, on or before the Closing Date of the
following conditions:
SECTION 7.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of Purchaser contained in this Agreement shall be in all material
respects true and accurate as of the date when made, and, except as to
representations and warranties which are expressly limited to a state of facts
existing at a time prior to the Closing Date, shall be in all material respects
true and accurate at and as of the Closing Date as if made on the Closing Date.
SECTION 7.2 PERFORMANCE OF COVENANTS. Purchaser shall have performed
and complied in all material respects with each and every covenant, agreement
and condition required by this Agreement to be performed or complied with by
them prior to or on the Closing Date.
SECTION 7.3 NO GOVERNMENTAL OR OTHER PROCEEDINGS OR LITIGATION. No
order of any court or administrative agency shall be in effect which restrains
or prohibits any transaction contemplated hereby or which would limit or affect
Purchaser's ownership of the Company; no suit, action (other than the exercise
of dissenters' rights), investigation, inquiry or proceeding by any governmental
body or other person or entity shall be pending or threatened against Purchaser,
Company, which challenges the validity or legality, or seeks to restrain the
consummation, of the transactions contemplated hereby or which seeks to limit or
otherwise affect Purchaser's ownership of the Company and no written advice
shall have been received by Purchaser, the Company or their respective counsel
from any governmental body, and remain in effect, stating that an action or
proceeding will, if the Sale is consummated or sought to be consummated, be
filed seeking to invalidate or restrain the Sale or limit or otherwise affect
Purchaser's ownership of the Company.
SECTION 7.4 CLOSING DOCUMENTATION. The Seller shall have received such
additional documentation at the Closing as the Seller and its counsel may
reasonably require to evidence compliance by Purchaser with all of his
obligations under this Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 AMENDMENT AND MODIFICATION. To the fullest extent permitted
by applicable law, this Agreement may be amended, modified and supplemented with
respect to any of the terms contained herein by mutual consent of Purchaser and
the Board of Directors of the Seller, or by their respective officers duly
authorized by such Boards of Directors, by an appropriate written instrument
executed at any time prior to the Closing Date; provided,
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however, that the percentage the corporate Stock being redeemed may not be
increased, nor may the amount per share of the stock being redeemed be greater
than the amount per share being paid for the stock being purchased.
SECTION 8.2 WAIVER OF COMPLIANCE. To the fullest extent permitted by
law, Purchaser and Seller (by action of its Board of Directors, or its
respective officers duly authorized by its Board of Directors), by an instrument
in writing extend the time for or waive the performance of any of the
obligations of the other or waive compliance by the other with any of the
covenants, or waive any of the conditions of its obligations, contained herein.
No such extension of time or waiver shall operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
SECTION 8.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
representations and warranties of each party hereto contained herein shall not
be deemed to be waived or otherwise affected by any investigation made by the
other parties hereto. The representations and warranties of Purchaser and Seller
contained herein or in any document furnished pursuant hereto shall survive the
Sale.
SECTION 8.4 NO THIRD PARTY RIGHTS. Except as otherwise provided in this
Agreement, nothing herein expressed or implied is intended, nor shall be
construed, to confer upon or give any person, firm or corporation, other than
Purchaser, and Seller, any rights or remedies under or by reason of this
Agreement.
SECTION 8.5 CONFIDENTIALITY. Purchaser and the Seller shall honor the
confidentiality agreements previously delivered by each such party to the other
with respect to matters pertaining to the Sale.
SECTION 8.6 NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand or when mailed by
registered or certified mail, postage prepaid, or when given by telex or
facsimile transmission (promptly confirmed in writing), as follows:
(a) If to the Seller:
Mr. Gerald Durand, CEO, ISA International, Inc., 1601
Professional Plaza, Suite 100, Burnsville, MN 55337.
with a copy to:
____________________________
____________________________
____________________________
or to such other person as to the Company shall designate in writing,
such writing to be delivered to Purchaser in the manner provided in
this Section 12.6; and
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(b) If to Purchaser:
Mr. Ronald G. Wolfbauer, 1750 Yankee Doodle Road, Suite 200, Eagan, MN
55121.
with a copy to:
Kenneth E. Keate, Esq., Keate Law Office, P.A., 1102 Grand Avenue,
Saint Paul, MN 55105.
or to such other person as Purchaser shall designate in writing, such
writing to be delivered to the Company in the manner provided in this
Section 12.6.
SECTION 8.7 ASSIGNMENT. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties;
provided, however, that Purchaser may assign this Agreement to a corporation to
be formed by him.
SECTION 8.8 GOVERNING LAWS. This Agreement and the legal relations
between the parties hereto shall be governed by and construed in accordance with
the laws of the State of Minnesota.
SECTION 8.9 COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 8.10 HEADINGS AND REFERENCES. The headings of the Sections and
Articles of this Agreement are inserted for convenience of reference only and
shall not constitute a part hereof. All references herein to Sections and
Articles are to sections and articles of this Agreement, unless otherwise
indicated.
SECTION 8.11 ENTIRE AGREEMENT. This Agreement (including the Exhibits
hereto and the Purchaser Disclosure Letter and the documents referred to herein,
all of which form a part hereof) and the confidentiality agreements delivered by
Purchaser and the Company to each other contain the entire understanding of the
parties hereto in respect of the subject matter contained herein and supersede
all prior agreements and understandings between the parties with respect to such
subject matter.
SECTION 8.12 EXPENSES. Whether or not the transactions contemplated
hereby are consummated, each of the parties hereto shall pay its own expenses
incurred in connection with the authorization, preparation, execution or
performance of this Agreement and all transactions contemplated hereby,
including without limitation all fees and expenses of agents, representatives,
counsel and accountants. It is understood and agreed that if the Sale is
consummated as contemplated hereby, the expenses incurred by the Company and its
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shareholders shall be the responsibility of the Seller, and shall not be borne
by the Surviving Corporation.
SECTION 8.13 PUBLICITY. Except as otherwise required by law or the
rules of the National Association of Securities Dealers, Inc., or the Securities
and Exchange Commission, so long as this Agreement is in effect, neither
Purchaser nor the Company shall issue or cause the publication of any press
release with respect to the transactions contemplated by this Agreement without
the consent of the other party, which consent shall not be unreasonably withheld
or delayed.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of this 19th day of May, 2000.
PURCHASER
/s/ Ronald G. Wolfbauer
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Ronald G. Wolfbauer
SELLER: ISA International, Inc.
By: /s/ Gerald Durand
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Gerard Durand, its CEO
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