EXHIBIT 2.2
WORKING KNOWLEDGE, INC.,
STOCK PURCHASE AGREEMENT
The WORKING KNOWLEDGE, INC., STOCK PURCHASE AGREEMENT ("Agreement") is entered
into this 8 th day of April, 2000, by and between CYNTHIA CALVERT, as the sole
shareholder ("Selling Shareholder") of WORKING KNOWLEDGE, INC., a Kansas
corporation, as the acquired corporation ("WKI") and NMXS.com, Inc., a
Delaware corporation, as the acquiring corporation ("NMXS").
RECITALS
WHEREAS, WKI operates a website management business (the "Business") which
NMXS believes complements its current operations and would allow expansion
that would greatly enhance its overall revenue generating ability; and
WHEREAS, Selling Shareholder desires to sell, and NMXS desires to purchase all
of the issued and outstanding stock of WKI on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the above and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
do hereby agree as follows:
1 . Sale of Stock . Selling Shareholder agrees to sell to NMXS and NMXS agrees
to purchase from Selling Shareholder three thousand (3,000) shares of common
stock of WKI, constituting all of the issued and outstanding shares of stock
of WKI (hereinafter, "WKI Stock").
2. Purchase Price. The total Purchase Price for the WKI Stock is $150,000 cash
at Closing. This amount shall be reduced for certain sales tax payable owed to
the State of California that is not due and payable until July, 2000. The
amount of such sales tax liability will remain the debt of WKI, to be paid by
NMXS.
3. Closing Date. The purchase and sale of the WKI Stock shall be deemed
effective as of April 3, 2000 but shall be consummated at such time and at
such place as is agreed upon by Selling Shareholder and NMXS ("Closing" or
"Closing Date") as soon as possible, but not later than April 14, 2000.
4. Obligations at Closing .
a. Seller's Obligation at Closing. At Closing, Selling Shareholder shall
deliver to NMXS:
(i) Stock Certificates. A stock certificate or stock certificates, along
with a signed stock power, in the form attached hereto as Exhibit A for the
WKI Stock being purchased under this Agreement endorsed by the Selling
Shareholder for transfer to NMXS.
(ii) Resignations. Resignations of all directors, officers and registered
agents of WKI.
(iii) Corporate Documents. All corporate record books, minutes, seal and
stock transfer records of WKI.
(iv) Release of Liabilities. Certain debt reflected on the Financial
Statements as of January 31, 2000 reflected as:
Notes Payable - LG $ 153,427.14
Notes Payable - Phoenixcor $ 81,988.45
Accounts Payable - GUI $ 76,704.50
are all either owed to affiliated entities of the Selling Shareholder or are
portions of larger debt structures with financial institutions of which an
affiliated entity is the sole obligor, and the amount reflected is only WKI's
portion of the debt. With respect to the foregoing liabilities, in all three
instances, the affiliated entities to which WKI owes such debt shall grant
full releases to WKI for any such debt owing at Closing. These Debt Releases
will be provided to NMXS at Closing. As of the Closing Date, WKI shall make
satisfactory arrangements with NMXS for payment of any other liabilities of
WKI which may exist at that time.
(v) Other Documents. Such other instruments of conveyance or other
documents as NMXS or its counsel may reasonably require.
b. NMXS's Obligations at Closing.
(i) Cash Payment. Payment of cash by NMXS check, at Closing in the amount
as more fully described in Paragraph 2 above.
(ii) Other Documents. Such other documents as reasonably required by
Selling Shareholders or their counsel.
5. WKI Assets and Related Dispositions. Prior to Closing, Selling
Shareholder shall cause WKI to distribute all assets of WKI and will assume
all liabilities of WKI, except those contracts pertaining to website
management agreements as set forth on Exhibit C, including such other similar
agreements entered into with third party customers prior to Closing. Those
high-speed scanning contracts of WKI not listed on Exhibit C shall be
distributed to Selling Shareholder.
6. Representations and Warranties of Seller. Selling Shareholder and WKI
warrant and represent to NMXS that the following are true on the date of this
Agreement and will be true on the Closing Date:
a. Corporate Status/Authorization. WKI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Kansas
with the corporate power and authority to own its properties and to conduct
the Business which it presently conducts. The execution, delivery and
performance of this Agreement have been duly authorized by all necessary
corporate actions on the part of WKI and Selling Shareholder. The copies of
Articles of Incorporation and Bylaws of WKI as provided to NMXS are complete
and correct copies of such instruments as in effect as of the date of this
Agreement.
b. Authority of WKII and Selling Shareholders. WKI and Selling Shareholder
have full right, power and authority to enter into and perform this Agreement.
The execution, delivery and performance of this Agreement by WKI and Selling
Shareholder will not (1) violate any provisions of WKI's Articles of
Incorporation or Bylaws; (2) result in the breach or violation of any
provision of or constitute a default under any agreement or instrument to
which WKI is a party to or by which it operates the Business; or (3) violate
any law, rule, regulation or order to which it is subject.
c. Stock. The authorized capital stock of WKI consists of 6,000 shares of
$1.00 par value common stock, of which three thousand (3,000) shares are
issued and outstanding. The Selling Shareholder is the sole owner of the WKI
Stock, which is free and clear of all encumbrances, and Selling Shareholder
has a good right to sell and transfer all such WKI Stock to NMXS.
d. Financial Statements. The balance sheet and profit and loss statement
of WKI as of February 29, 2000 (the "Financial Statements") and related prior
periods which are attached hereto as Exhibit D, are complete and correct and
fairly present the financial condition of WKI and results of its operations as
of the dates and for the periods indicated. WKI will have a net operating loss
carryover as of March 31, 2000, as if March 31, 2000 were the end of the tax
year, of at least $70,000.
e. Adverse Changes. As of Closing there will be no material adverse change
in the financial condition of WKI or in the condition of its assets from that
reflected in the Financial Statements except as specifically set forth in this
Agreement.
f. Liabilities. Except as and to the extent reflected or reserved
against in the Financial Statements, WKI does not have any material
liabilities or obligations of any kind whether accrued, absolute, contingent
or otherwise.
g. Contracts. Except for those contracts which have not yet been executed
and are noted as "Pending" thereon, the contracts set forth on Exhibit C. all
arose from bona fide transactions of WKI, are valid written contracts with the
customers as set forth on Exhibit C. All signed, written contracts with
respect to said customers have been provided to NMXS. None of the contracts
are currently in default either by customer or by WKI.
h. Compliance with Law. WKI is not in violation of any applicable
law, ordinance, regulation, order or requirements relating to its operations.
i. Action from Suits. There are no actions, suits or proceedings pending
or threatened against or affecting WKI at law or in equity or before or by any
federal, state, municipal or other governmental or nongovernmental department,
commission, board, bureau, agency or instrumentality that can reasonably be
expected to result in any adverse change in the business, properties,
operations, prospects or assets of WKI or its business or in its condition,
financial or otherwise. There are no controversies pending or threatened
between WKI and any of its employees.
j. Obligations and Contracts. WKI is not in default in the payment of
any of its obligations and is not in breach of the performance of any contract
to which it is a party.
k. Employees. As of closing, WKI will have terminated all of its
employees.
l. Retirement Plan. WKI is not a party to any multi-employer pension plan
nor is it a sponsor of any qualified or nonqualified retirements plans
including, without limitation 401 k, profit sharing, money purchase,, defined
benefit or other defined contribution plans.
m. Lease Obligation. Prior to the Closing Date, WKI shall have made
arrangements for disposition of its office facility lease obligation which are
satisfactory to NMXS.
n. Labor Contracts. WKI does not have any collective bargaining contracts,
union or similar contract or agreements or any employment agreements with any
employee.
7. Representation and Warranties of NMXS.
NMXS warrants and represents to WKI and the Selling Shareholder that:
a. Investment Intent. NMXS is purchasing the WKI Stock for investment and
not with a view to distribution.
b. Securities Registration. NMXS understands that the WKI Stock being
purchased has not been registered under the Securities Act of 1933 in reliance
upon an exemption from registration. NMXS also understands that the WKI Stock
must be held indefinitely unless it is later registered under the Securities
Act of 1933 or unless an exemption from registration is otherwise available,
and that WKI has no obligation to register its stock. NMXS agrees that the share
s of WKI stock purchased under this agreement will not be offered, sold,
transferred, pledged or otherwise disposed of without registration or in
satisfaction of applicable state or federal securities law.
8. Selling Shareholder's Obligation to Indemnif
a. Obligations to Indemnify. The Selling Shareholder, Cynthia Calvert,
agrees to indemnify NMXS and shall hold NMXS harmless only from all loss,
costs, damage or expenses, including attorney fees arising from the following:
i. Any accounts payable of WKI of any nature whether accrued, contingent,
or otherwise. The duty of indemnification on any accounts payable will be only
through the date of Closing. NMXS shall be responsible for all accounts
payable incurred from the date of Closing forward.
ii. Any and all federal, state or local income taxes due up through the
end of calendar year 1999. Selling Shareholder shall be responsible for
preparing the return for 1999, and shall pay all taxes, if any, due for
calendar year 1999. NMXS shall assume all liability for any income taxes for
WKI accruing after 1/1/2000. Selling Shareholder shall also indemnify NMXS
from any and all federal and state employee withholding taxes up to the date
of closing. After the date of closing, NMXS shall be responsible for any and
all employee with holding taxes on the state, federal and local level. Selling
Shareholder represents and warrants that WKI will have a net operating loss
carryover as of March 31, 2000, as if March 31, 2000 were the end of the tax
year, of at least $70,000.
iii. There shall be no other duty to indemnify NMXS by Selling Shareholder
either express or implied.
b. Payment. If a liability that NMXS is entitled to be indemnified and
held harmless against under the provisions of this Section 8 arises, NMXS may,
but shall have no obligation to, pay or otherwise satisfy such liability. If
NMXS pays or satisfies a liability, NMXS may collect the amount of or value of
any such payment and the amount of all reasonable expenses incurred in
resolving or settling such liability, together with interest thereon at the
rate of 10% per annum from the date of payment of such amount, or the date of
the incurring of such expense, from Selling Shareholder.
9. Operations of Business Prior to Closing.
During the period from the date of execution of this Agreement to the date of
Closing, Selling Shareholder shall cause WKI to continue to conduct its
business in the usual and customary manner in which WKI has heretofore
conducted such business.
10. Default. In the event of default on this Agreement by either party,
the non-defaulting party shall have all remedies provided at law and equity
against the defaulting party including, but not limited to, a right to
specific performance. Further, in the event either party is required to
enforce the provisions of this Agreement through judicial proceedings, the
prevailing party shall be entitled to reasonable attorneys fees and court
costs from the non-prevailing party.
11. Miscellaneous.
a. Name Usage. it is agreed by the parties hereto following Closing, and
at all times thereafter, that NMXS and its successors and assigns shall have
the exclusive right to use the tradename "Working Knowledge" and Selling
Shareholder hereby agrees to sign documents necessary to vest such name in
NMXS and to further refrain from using such name or from transferring such
name or confusingly similar names to any third party, inconsistent with NMXS's
rights hereunder.
b. Survival of Obliciations. The terms and provisions of this Agreement
and the obligations, warranties, representations, and covenants of the parties
contained in this Agreement shall survive Closing and shall continue in full
force and effect and shall not be merged or extinguished by the act of Closing
or the execution and/or delivery of any conveyance documents hereunder or any
other instruments, documents, transfers or assignments.
C. Further Assurances. The parties agree to execute such further
assurances, documents or instruments and take such further action as may be
reasonably necessary to confirm their understanding with respect to the terms
and provisions set forth in this Agreement so as to be in a position to
implement the same.
d. Expenses. Each party shall pay its own expenses incident to this
Agreement and all action taken in preparation for carrying this Agreement into
effect.
e. Entire Agreement. This Agreement contains the complete and entire
agreement between the parties with respect to the subject matter addressed
herein. Any prior oral representations or agreements inconsistent with the
provisions of this Agreement are expressly repealed and replaced by the
representations and agreements contained herein
f. Amendment. No amendment, supplement, modification or waiver of -this
Agreement shall be binding unless executed in writing by the party to be bound
thereby.
9. Dispute Resolution. The purpose and intent of the parties is to resolve
their disputes expeditiously, and in a financially-reasonable manner; and
further that the parties will meet personally, and directly and in good faith
to discuss how to proceed with dispute resolution and with that purpose and
intent in mind. Any dispute between the parties to this Agreement or any other
controversy or claim arising out of or relating to this Agreement or the
breach thereof shall be submitted to and resolved by binding arbitration in
Albuquerque, New Mexico. Such arbitration shall be conducted upon the request
of any party, before a single arbitrator, selected by the parties or, failing
agreement on a choice of an arbitrator within thirty (30) days of service of
written demand for arbitration, by an arbitrator designated pursuant to the
Uniform Arbitration Act, NMSA 44-7-1 et set. (11978). Once the arbitrator is
selected, but as a condition precedent to proceeding with arbitration, the
parties shall engage on a good-faith best efforts basis (i) in direct
face-to-face negotiations; and failing resolution by negotiation, then (ii)
mediation and, failing mediation then, (iii) arbitration. Such arbitration
shall be in accordance with the laws of the State of New Mexico and pursuant
to the Uniform Arbitration Act, and subject to the Federal Rules of Civil
Procedure as the arbitrator may determine. The arbitration shall be conducted
within sixty (60) days of the selection of the arbitrator and the arbitrator
shall render his or her decision within twenty (20) days after conclusion of
the arbitration. The prevailing party in the arbitration shall be entitled as
a part of the arbitration award to the costs and expenses (including
reasonable attorney fees) of investigating, preparing and pursuing or
defending the arbitration claim as such costs and expenses are awarded by the
arbitrator. The duty to pursue the foregoing dispute resolution provisions,
shall survive the termination or cancellation of this Agreement. Arbitration
pursuant to the foregoing, shall be specifically enforceable under prevailing
arbitration law of the State of New Mexico. The decision of the arbitrator
shall be final and binding upon the parties and enforceable in a court of
competent jurisdiction.
h. No Waiver. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision hereof (whether
or not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
i. Successors. This Agreement shall be binding upon and inure to the
benefit of the successors and assignees of the parties hereto.
j. Cooperation. Each party will fully cooperate with the other and their
or its respective counsel and accountant in connection with any steps required
to be taken under this Agreement, including the taking of whatever action and
the obtaining of whatever additional corporate or other authority may be
necessary in order to comply with the spirit and intent of this Agreement.
k. Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New Mexico.
l. Enforceability, If any provision of this Agreement is held invalid,
such provisions shall be modified to the least extent possible, so as to be
enforceable, and if such modifications are not possible, the unenforceable
provision shall be severed, and the remaining provisions hereof shall remain
valid and enforceable.
M. Notice. Any notice or other communication or permitted to be given
under this agreement shall be in writing and shall be mailed by first class
mail, faxed or e-mailed to the parties at the following address:
NMXS:
Richard Govatski, President
5041 Indian School Road, NE
Albuquerque, New Mexico 87110
[email protected]
Cynthia Calvert
12437 East 60th Street
Tulsa, OK 74146
[email protected]
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the
date first above written.
NMXS.co
By /s/ Richard Govatski
Its President
WORKING KNOWLEDGE, INC.
By /s/ Cynthia Calvert
its CEO
SELLING SHAREHOLDER
By /s/ Cynthia Calvert
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