Exhibit 5
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of July 17, 2000 by and between
AMERICAN RISK MANAGEMENT GROUP, INC. a company incorporated under the laws of
Florida, having an office and address at 1900 Corporate Boulevard, Suite 400,
Boca Raton, Florida 33431 ("COMPANY"), RONALD WILHEIM ("RW")and STEVEN ROSEDALE
("SR")and the PURCHASERS set forth on Schedule I annexed hereto ("PURCHASERS") .
W I T N E S S E T H
WHEREAS, the Company desires to sell to Purchasers 5,000,000 shares of
the Company's common stock ("SHARES"), on the terms and conditions set forth in
this Stock Purchase Agreement ("AGREEMENT");
WHEREAS, RW is the Chief Executive Officer of the Company and SR is the
Chairman of the Board of the Company and RW and SR collectively control 200,000
shares of common stock of the Company and will derive significant benefit and
consideration from the transactions contemplated by this Agreement; and
WHEREAS, Purchasers desire to buy the Shares on the terms and
conditions set forth herein.
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows:
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1 SALE OF THE SHARES. Upon the execution of this Agreement, subject
to the terms and conditions herein set forth, and on the basis of the
representations, warranties and agreements herein contained, the Company shall
deliver the Shares to Purchasers, and Purchasers shall purchase the Shares from
the Company at a purchase price per share of $.83.
1.2 INSTRUMENTS OF CONVEYANCE AND TRANSFER. At the Closing, the Company
shall deliver a certificate or certificates representing the Shares to
Purchasers, in form and substance satisfactory to Purchaser ("CERTIFICATES"), as
shall be effective to vest in Purchasers all right, title and interest in and to
all of the Shares.
1.3 CONSIDERATION AND PAYMENT FOR THE SHARES. In consideration for the
Shares, Purchasers shall pay to the Company the aggregate purchase price of
$4,150,000 ("PURCHASE PRICE") which shall be wired into the trust account of
Purchasers' counsel. The Purchase Price shall be payable only upon Closing (as
set forth in Article 7 hereof) by the Purchasers and in the amounts and
denominations and on the dates set forth on SCHEDULE I annexed to this
Agreement. No Shares shall be delivered under the terms of this Agreement to any
Purchaser unless that portion of the entire Purchase Price as ascribed to such
Purchaser on Schedule I has been deposited with Purchaser's counsel. If the
entire amount of the Purchase Price for any purchaser
has not been deposited with any such Purchaser's account prior to the Closing,
as set forth on Schedule I, then any amount deposited shall be returned to such
Purchaser and neither the Purchaser nor the Company shall have any further
obligations each to the other under this Agreement.
ARTICLE 2
RESIGNATION OF THE OF DIRECTORS AND OFFICERS
2.1 Prior to the Closing, the Company will cause each person who is
a director or officer of the Company, as set forth in SCHEDULE 2.1, to submit
his or her written resignation as director or officer of the Company which will
be effective immediately and the Company will take all steps required to appoint
nominees of Purchaser as directors and officers of the Company.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser the following:
3.1 DUE ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of Florida (as evidenced by
the certificate of good standing attached hereto as SCHEDULE 3.1), with full
power and authority to own, lease, use and operate its properties and to carry
on its business as and where now owned, leased, used, operated and conducted.
Except as set forth on SCHEDULE 3.1.1, the Company has no Subsidiaries. The
Company is not qualified to conduct business as a foreign corporation in any
jurisdiction and does not believe that such qualification is necessary. All
actions taken by the incorporators, directors and shareholders of the Company
have been valid and in accordance with the laws of the State of Florida.
3.2 (a) COMPANY AUTHORITY. The Company has all requisite corporate
power and authority to enter into and perform this Agreement and to consummate
the transactions contemplated hereby and to effect the transfer of the Shares in
accordance with the terms hereof.
(b) DUE AUTHORIZATION. The execution, delivery and performance
by the Company of this Agreement has been duly and validly authorized and no
further consent or authorization of the Company, its Board of Directors or its
shareholders is required, as is evidenced by the resolutions of the Company's
Board of Directors annexed hereto as SCHEDULE 3.2(B).
(c) VALID EXECUTION. This Agreement has been duly executed and
delivered by the Company.
(d) BINDING AGREEMENT. This Agreement constitutes, and upon
execution and delivery thereof by the Company, will constitute, a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms.
(e) NO VIOLATION OF CORPORATE DOCUMENTS OR AGREEMENTS. The
execution and
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delivery of this Agreement by the Company and the performance by the Company of
its obligations hereunder will not cause, constitute, or conflict with or result
in (i) any breach or violation or any of the provisions of or constitute a
default under any license, indenture, mortgage, charter, instrument, articles of
incorporation, bylaw, or other agreement or instrument to which the Company or
its shareholders are a party, or by which they may be bound, nor will any
consents or authorizations of any party other than those hereto by required,
(ii) an event that would cause the Company to be liable to any party, or (iii)
an event that would result in the creation or imposition or any lien, charge or
encumbrance on any asset of the Company or on the securities of the Company to
be acquired by the Buyer.
3.3. AUTHORIZED CAPITAL; NO PREEMPTIVE RIGHTS; NO LIENS; ANTI-DILUTION.
As of the date hereof, the authorized capital of the Company is 50,000,000
shares of common stock with a par value of $0.01 per share and 5,000,000 shares
of preferred stock with a par value of $.001 per share. The issued and
outstanding capital stock of the Company is 269,526 shares of common stock, no
shares of preferred stock and no other shares of capital stock of the Company
will be issued or outstanding as of the date of Closing. All of such outstanding
shares of capital stock are, or upon issuance will be, duly authorized, validly
issued, fully paid and non-assessable. No shares of capital stock of the Company
are subject to preemptive rights or similar rights of the stockholders of the
Company or any liens or encumbrances imposed through the actions or failure to
act of the Company, or otherwise. As of the date hereof and at Closing,(i) there
are no outstanding options, warrants, convertible securities, scrip, rights to
subscribe for, puts, calls, rights of first refusal, tag-along agreements, nor
any other agreements, understandings, claims or other commitments or rights of
any character whatsoever relating to, or securities or rights convertible into
or exchangeable for any shares of capital stock of the Company, or arrangements
by which the Company is or may become bound to issue additional shares of
capital stock of the Company except as set forth on SCHEDULE 3.3, and (ii) there
are no agreements or arrangements under which the Company is obligated to
register the sale of any of its securities under the Securities Act and (iii)
there are no anti-dilution or price adjustment provisions contained in any
security issued by the Company (or in the Company's articles of incorporation or
by-laws or in any agreement providing rights to security holders) that will be
triggered by the transactions contemplated by this Agreement. The Company has
furnished to Purchaser true and correct copies of the Company's articles of
incorporation and by-laws.
3.4 SELLER'S TITLE TO SHARES; NO LIENS OR PREEMPTIVE RIGHTS; VALID
ISSUANCE. The Company has and at the Closing will have full and valid title and
control of the Shares; there will be no existing impediment or encumbrance to
the sale and transfer of such Shares to the Purchasers; and on delivery to the
Purchasers of the Shares, all of the Shares will be free and clear of all taxes,
liens, encumbrances, charges or assessments of any kind and shall not be subject
to preemptive rights, tag-along rights, or similar rights of any of the
stockholders of the Company; such Shares will be legally and validly issued in
material compliance with all applicable U.S. federal and state securities laws,
and will be fully paid and non-assessable shares of the Company's common stock;
and the Shares have all been issued under duly authorized resolutions of the
Board of Directors of the Company. At the Closing, Seller shall deliver to the
Purchasers certificates representing the Shares subject to no liens, security
interests, pledges, encumbrances, charges, restrictions, demands or claims in
any other party whatsoever.
3.5 NO GOVERNMENTAL ACTION REQUIRED. The execution and delivery by the
Company of this Agreement does not and will not, the sale by the Company of the
Shares does not and will not, and the consummation of the transactions
contemplated hereby will not, require any action by or in respect of, or filing
with, any governmental body, agency or governmental official, including but not
limited to the Securities and
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Exchange Commission ("SEC") and the National Association of Securities Dealers
("NASD"), except such actions or filings that have been undertaken or made prior
to the date hereof and that will be in full force and effect (or as to which all
applicable waiting periods have expired) on and as of the date hereof or which
are not required to be filed on or prior to the Closing.
3.6 COMPLIANCE WITH APPLICABLE LAW AND CORPORATE DOCUMENTS. The
execution and delivery by the Company of this Agreement does not and will not
contravene or constitute a default under or violation of (i) any provision of
applicable law or regulation, (ii) the Company's articles of incorporation or
bylaws, (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any its assets, or result in the creation
or imposition of any lien on any asset of the Company. The Company is in
compliance with and conforms to all statutes, laws, ordinances, rules,
regulations, orders, restrictions and all other legal requirements of any
domestic or foreign government or any instrumentality thereof having
jurisdiction over the conduct of its businesses or the ownership of its
properties.
3.7 SEC REPRESENTATIONS. Since December 31, 1998 through the date
hereof, the Company has timely filed all forms, reports and documents with the
Commission required to be filed by it (all of the foregoing filed prior to the
date hereof, including but not limited to any filings required in connection
with or pursuant to Regulation D, Sections 504, 505, and 506, as applicable, and
all exhibits included therein and financial statements and schedules thereto and
documents (other than exhibits) incorporated by reference therein, being
referred to herein collectively as the "SEC Reports"). The Company has delivered
to Purchasers true and complete copies of the SEC Reports. Such SEC Reports, at
the time filed, complied in all material respects with the requirements of the
federal and state securities laws and the rules and regulations of the
Commission thereunder applicable to such SEC Reports. None of the SEC Reports,
including without limitation, any financial statements or schedules included
therein, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
3.8 FINANCIAL STATEMENTS. (a) The Purchasers have received a copy of
the audited financial statements of the Company as of June 30, 1998 and June 30,
1999, and the related statements of income and retained earnings for the period
then ended. ("AUDITED FINANCIAL STATEMENTS"). The Audited Financial Statements
were prepared in accordance with generally accepted accounting principles
consistently followed by the Company throughout the periods indicated. The
Purchasers have received a copy of the unaudited financial statements of the
Company for each quarter of the fiscal years 1998 and 1999 and the first quarter
of the year 2000, and the related statements of income and retained earnings for
the period then ended ("UNAUDITED FINANCIAL STATEMENTS"). The Unaudited
Financial Statements have been prepared by management, and fairly present the
financial position of the Company as of the date of the financial statements,
subject to changes required by the auditors which might be shown on the
Company's audited financial statements for the periods ended June 30, 1998 and
June 30, 1999. The Unaudited Financial Statements fairly present the financial
condition of the Company at the dates indicated and its results of their
operations and cash flows for the periods then ended and, except as indicated
therein, reflect all claims against, debts and liabilities of the Company, fixed
or contingent, and of whatever nature. The Company shall provide to Purchasers
audited financial statements for the period ended June 30, 2000, prepared by an
SEC recognized auditor, within 90 days of the Closing.
(b) Since June 30, 1999 ("BALANCE SHEET DATE"), there has been
(x) no material adverse change in the assets or liabilities, or in the business
or condition, financial or otherwise, or in the results of
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operations or prospects, of the Company, whether as a result of any legislative
or regulatory change, revocation of any license or rights to do business, fire,
explosion, accident, casualty, labor trouble, flood, drought, riot, storm,
condemnation, act of God, public force or otherwise and (y) no material adverse
change in the assets or liabilities, or in the business or condition, financial
or otherwise, or in the results of operations or prospects, of the Company,
except in the ordinary course of business or except as disclosed in the
Unaudited Financial Statements and the SEC Reports relating to such period; and
no fact or condition exists or is contemplated or threatened which might cause
such a change in the future.
(c) There have been no material adverse changes in the
Company's business, properties, results of operations, condition (financial or
otherwise) or prospects since the Balance Sheet Date except as disclosed in the
Unaudited Financial Statements and the SEC Reports relating to such period.
3.9 NO LITIGATION. The Company is not (and has not been) a party to
any claim, suit, action, arbitration, or legal, administrative, or other
proceeding, or pending governmental investigation. To the best knowledge of the
Company, there is no basis for any such action or proceeding and no such claim,
action or proceeding is threatened against the Company and the Company is not
subject to or in default with respect to any order, writ, injunction, or decree
of any federal, state, local, or foreign court, department, agency, or
instrumentality.
3.10 NO TAXES. The Company is not liable for any income, sales,
withholding, real or personal property taxes to any governmental agencies
whatsoever. All United States federal, state, county, municipality local or
foreign income tax returns and all other material tax returns (including foreign
tax returns) which are required to be filed by or on behalf of the Company have
been filed and all material taxes due pursuant to such returns or pursuant to
any assessment received by the Company have been paid by the Company. The
charges, accruals and reserves on the books of the Company in respect of taxes
or other governmental charges have been established in accordance with GAAP.
3.11 (a) The Company is not currently carrying on any business and is
not a party to any contract, agreement, lease or order which would subject it to
any performance or business obligations or restrictions in the future after the
closing of this Agreement.
(b) The Company has no employment contracts or agreements with
any of its officers, directors, or with any consultants, employees or other such
parties.
(c) The Company has no shareholder contracts or agreements.
(d) The Company has no insurance, stock option plans or
employee benefit plans whatsoever.
(e) The Company is not in default under any contract, or any
other document.
(f) The Company has no written or oral contracts with any
third party.
(g) The Company has no outstanding powers of attorney and no
obligations concerning the performance of the Company concerning this Agreement.
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(h) The Company does not have a direct or indirect Investment
("INVESTMENT") means any investment, whether by means of share purchase,
partnership interest, capital contribution, loan, time deposit or otherwise) in
any Person ("PERSON" means individual, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
government (or any agency or political subdivision thereof) or other entity of
any kind) and the Company is not a party to any partnership, management,
shareholders' or joint venture or similar agreement.
(i)(A) The Company has all material Permits ("Permits" means
all licenses, franchises, grants, authorizations, permits, easements, variances,
exemptions, consents, certificates, orders and approvals necessary to own, lease
and operate the properties of, and to carry on the business of the Company); (B)
all such Permits are in full force and effect, and the Company has fulfilled and
performed all material obligations with respect to such Permits; (C) no event
has occurred which allows, or after notice or lapse of time would allow,
revocation or termination by the issuer thereof or which results in any other
material impairment of the rights of the holder of any such Permit; and (D) the
Company has no reason to believe that any governmental body or agency is
considering limiting, suspending or revoking any such Permit.
(j) The Company does not have and will not have any assets at
the time of Closing other than cash. The Company does not own any real estate or
any interests in real estate. The Company does not own any patents, copyrights,
or trademarks. The Company does not license the intellectual property of others
nor owe fees or royalties on the same.
(k) Neither the Company nor, to the Company's knowledge, any
employee or agent of the Company has made any payments of funds of the Company,
or received or retained any funds, in each case (x) in violation of any law,
rule or regulation or (y) of a character required to be disclosed by the Company
in any of the SEC Reports.
(l) There are no outstanding judgments or UCC financing
instruments or UCC Securities Interests filed against the Company or any of its
properties.
(m) The Company has no debt, loan, or obligations of any kind,
to any of its directors officers, shareholders, or employees, which will not be
satisfied at or prior to the Closing.
3.12 NOT AN "INVESTMENT COMPANY", NOT A REPORTING COMPANY The Company
is not an "investment company" within the meaning of the Investment Company Act
of 1940, as amended. The Company is not subject to the reporting requirements of
section 13 or 15(d) of the Exchange Act.
3.13 NOT A "BLIND POOL" The Company is not a " blind pool" as that term
is generally interpreted, or a "blank check company" as that term is defined in
Rule 419 of the Securities and Exchange Act of 1933.
3.14 NOT A "CONTROL SHARE ACQUISITION" The acquisition of the Shares by
Purchaser from the Company is not and will not be a "control share acquisition"
as defined in Section 607.0902, Title XXXVI of the Florida Business Corporations
Act ("FBCA"), and none of the provisions of Chapter 607 of the Act apply to the
transactions contemplated herein.
3.15 NO SHAREHOLDER APPROVAL REQUIRED. The acquisition of the Shares by
Purchaser from the Company does not require the approval of the shareholders of
the Company under the FBCA, the Company's
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articles of incorporation or bylaws, or any other requirement of law or, if
shareholder approval is required it has or will, prior to the Closing, be
properly obtained in accordance with the requirements of the Company's articles
of incorporation and by-laws and the FBCA.
3.16 NO DISSENTERS' RIGHTS. The acquisition of the Shares by Purchaser
from the Company will not will not give rise to any dissenting shareholders'
rights under Sections 607.0902 or 607.1302 of the FBCA, the Company's articles
of incorporation or bylaws, or otherwise.
3.17 NO LIABILITIES. Except as set forth on SCHEDULE 3.17, there are no
liabilities of the Company of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise and, to the best knowledge of
the Company, there is no existing condition, situation or set of circumstances
which could reasonably be expected to result in such a liability.
3.18 NOT SUBJECT TO VOTING TRUST. None of the Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to such shares. The Company
is not a party to any agreement which offers or grants to any person the right
to purchase or acquire any of the securities to be issued pursuant to this
Agreement. There is no applicable local, state or federal law, rule, regulation,
or decree which would, as a result of the transfer of the Shares to Purchasers,
impair, restrict or delay any voting rights with respect to the Shares.
3.19 OTC LISTING. The Company is currently listed on the OTC Electronic
Bulletin Board with the following trading symbol: "ARMC". The Company is not in
default with respect to any listing requirements of the NASD.
3.20 PRIOR OFFERINGS. All issuances by the Company of shares of common
stock in past transactions have been legally and validly effected, and all of
such shares of common stock are fully paid and non-assessable. To the date of
this Agreement, the Company has offered its shares for sale only as shown on
SCHEDULE 3.20 annexed hereto. All of the offerings listed on Schedule 3.20 were
conducted in material compliance with the requirements of Regulation D, Rules
504 and 506, as
applicable, in full compliance with the requirements of the Securities Exchange
Acts of 1933 and 1934, as applicable, and in full compliance with and according
to the requirements of the FBCA and the Company's articles of incorporation and
bylaws. The Company has provided to Purchasers copies of all documents prepared
and filed in connection with any such offerings. All investors in all prior
offerings were "accredited" investors as that term is defined in Rule 501 of
Regulation D.
3.21 COMPLIANCE WITH LAW. To the best of its knowledge, the Company has
complied with, and is not in violation of any provision of laws or regulations
of federal, state or local government authorities and agencies. There are no
pending or threatened proceedings against the Company by any federal, state or
local government, or any department, board, agency or other body thereof.
3.22 CORPORATE DOCUMENTS EFFECTIVE. The articles of incorporation, as
amended, annexed hereto as SCHEDULE 3.22, are, or will at Closing be, in full
force and effect and all actions of the Board of Directors or shareholders
required to accomplish same have, or will at Closing have been, taken.
3.23 DUE DILIGENCE MATERIALS. The information heretofore furnished by
the Company to the Purchasers for purposes of or in connection with this
Agreement or any transaction contemplated hereby does
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not, and all such information hereafter furnished by the Company to the
Purchasers will not (in each case taken together and on the date as of which
such information is furnished), contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they are made,
not misleading.
3.24 NO SOLICITATION. No form of general solicitation or general
advertising was used by the Company or, to the best of its actual knowledge, any
other person acting on behalf of the Company, in connection with the offer and
sale of the Shares. Neither the Company, nor, to its knowledge, any person
acting on behalf of the Company, has, either directly or indirectly, sold or
offered for sale to any person (other than the Purchasers) any of the Shares,
and the Company represents that neither itself nor any person authorized to act
on its behalf (except that the Company makes no representation as to the
Purchasers) will sell or offer for sale any such security to, or solicit any
offers to buy any such security from, or otherwise approach or negotiate in
respect thereof with, any person or persons so as thereby to cause the issuance
or sale of any of the Shares to be in violation of any of the provisions of
Section 5 of the Securities Exchange Act of 1934 or any other provision of law.
3.25 TRUE REPRESENTATIONS. The information heretofore furnished by the
Company to the Purchasers for purposes of or in connection with this Agreement
or any transaction contemplated hereby does not, and all such information
hereafter furnished by the Company to the Purchaser will not (in each case taken
together and on the date as of which such information is furnished), contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they are made, not misleading.
3.26 S URVIVAL. The representations and warranties herein by the
Company will be true and correct in all material respects on and as of the
Closing with the same force and effect as though said representations and
warranties had been made on and as of the Closing Time and will, except, as
otherwise provided herein, survive the Closing for a period of one (1) year.
ARTICLE 4
COVENANTS
From the date of this Agreement to Closing, the Company covenants as
follows:
4.1 The Company will preserve intact the current status of the Company
and the trading capacity of the Company as a NASD Bulletin Board company.
4.2 The Company will furnish Purchasers with whatever corporate records
and documents are available, such as Articles of Incorporation and Bylaws.
4.3 The Company will not enter into any contract, written or oral, or
business transaction, merger or business combination, or incur any debts, loan,
or obligations without the express written consent of Purchasers or enter into
any agreements with its officers, directors, or shareholders.
4.4 The Company will not amend or change its Articles of Incorporation
or Bylaws, or issue any further shares in the common stock of the Company
without the express written consent of Purchasers.
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4.5 The Company will not issue any stock options, warrants or other
rights or interests in the Shares or to its shares of common stock.
4.6 The Company will not encumber or mortgage any right or interest in
the Shares, and will not transfer any rights to the Shares to any third party
whatsoever.
4.7 The Company will not declare any dividend in cash or stock, or any
other benefit to its shareholders.
4.8 The Company will not institute any bonus, benefit, profit sharing,
stock option, pension retirement plan or similar arrangement.
4.9 The Company will obtain and submit to the Purchaser resignations of
current officers and directors.
4.10 The Company will arrange for the Company's current bank account to
be closed, all funds transferred into trust, and the delivery of all bank
account statements and records pertaining to this account.
ARTICLE 5
INDEMNIFICATION
5.1 RW and SR hereby agree to, indemnify and hold harmless the
Purchasers and the Company (which includes, for purposes of this Article,
Purchasers' and the Company's officers and directors, and shareholders but not
including RW as an indemnitee so long as RW continues in office as the Chief
Executive Officer or a board member of the Company) against any Losses, joint or
several, to which Purchaser may become subject under the Exchange Act, any state
or federal law, statutory or common law, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise by reason of the inaccuracy of any
warranty or representation contained in this Agreement, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and RW and SR will
in addition reimburse Purchasers and the Company for any legal or any other
expenses reasonably incurred by Purchasers in connection with investigating or
defending any such loss, claim, liability, action or proceeding. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of Purchasers and shall survive the Closing for a period of two (2)
years. As used herein, "LOSSES" means any loss, claim, demand, damage, award,
liabilities, suits, penalties, forfeitures, cost or expense (including, without
limitation, reasonable attorneys', consultant and other professional fees and
disbursements of every kind, nature and description). The indemnification
obligations under this Section 5.1 shall be limited as follows: $250,000 in
cash, and any Losses above $250,000 shall be paid or satisfied either (i) in
cash or (ii) regardless of the amount of the indemnification sought over
$250,000, by surrendering all common and preferred shares of the Company held by
RW and SR to the Company, for the benefit of the Company and the Purchasers
pursuant to this Section 5.1
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ARTICLE 6
CLOSING AND DELIVERY OF DOCUMENTS
6.1 CLOSING. The initial closing shall be held on July 17, 2000 for
those Purchasers set forth on Schedule I having a July 17,2000 closing ("Initial
Closing"). Subsequent closings shall be held on August 17, 2000 and September
17, 2000 ("Subsequent Closings").
(a) The Initial Closing shall occur as a single integrated
transaction, as follows:
(i) DELIVERY BY THE COMPANY
(A) The Company shall deliver to the Initial Closing
Purchasers such instruments, documents and certificates as are required to be
delivered by the Company or its representatives pursuant to the provisions of
this Agreement.
(B) The Company shall deliver the Certificates made and
registered in the name of each Initial Closing Purchaser as set forth on
Schedule I.
(C) The Company shall deliver the resignations of the officers
of the Company and the members of the Board of Directors required by Section
2.1.
(D) The Company shall deliver an opinion of counsel
substantially in the form annexed hereto as EXHIBIT A.
(ii) DELIVERY BY INITIAL CLOSING PURCHASERS
(A) The Initial Closing Purchasers shall pay the Purchase
Price to the Company as provided in this Agreement.
(B) The Initial Closing Purchasers shall deliver, or cause to
be delivered, to the Company such instruments, documents and certificates as are
required to be delivered by the Initial Closing Purchasers or their
representatives pursuant to the provisions of this Agreement.
(b) At each Subsequent Closing the following will occur:
(i) DELIVERY BY THE COMPANY
(A) The Company shall deliver to the Subsequent Closing
Purchasers such instruments, documents and certificates as are required to be
delivered by the Company or its representatives pursuant to the provisions of
this Agreement.
(B) The Company shall deliver the Certificates made and
registered in the name of each Subsequent Closing Purchaser as set forth on
Schedule I.
(ii) DELIVERY BY THE SUBSEQUENT CLOSING PURCHASERS
(A) The Subsequent Closing Purchasers shall pay the Purchase
Price to the Company
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as provided in this Agreement.
(B) The Subsequent Closing Purchasers shall deliver, or cause
to be delivered, to Seller such instruments, documents and certificates as are
required to be delivered by the Purchaser or their representatives pursuant to
the provisions of this Agreement.
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
7.1 MUTUAL CONSENT. Notwithstanding anything to the contrary contained
in this Agreement, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to delivery of the
Initial Purchase Price solely by the mutual consent of all of the parties.
7.2 WAIVER. Any term, provision, covenant, representation, warranty or
condition of this Agreement may be waived, but only by a written instrument
signed by the party entitled to the benefits thereof. The failure or delay of
any party at any time or times to require performance of any provision hereof or
to exercise its rights with respect to any provision hereof shall in no manner
operate as a waiver of or affect such party's right at a later time to enforce
the same. No waiver by any party of any condition, or of the breach of any term,
provision, covenant, representation or warranty contained in this Agreement, in
any one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach or waiver of any other
condition or of the breach of any other term, provision, covenant,
representation or warranty. No modification or amendment of this Agreement shall
be valid and binding unless it be in writing and signed by all parties hereto.
7.3 TERMINATION BY PURCHASERS. Notwithstanding anything to the contrary
herein, Purchasers shall have the right, in their sole and absolute discretion,
at any time prior to its payment of the Initial Purchase Price, to terminate
this Agreement, in which event, this Agreement shall be terminated and no party
shall have any further obligation to any other party.
ARTICLE 8
RESTRICTIVE LEGENDS
8.1 RESTRICTIONS ON TRANSFER. From and after their respective dates of
issuance, none of the Shares shall be transferable except upon the conditions
specified in this Article 9, which conditions are intended to ensure compliance
with the provisions of the Securities Act in respect of the Transfer of any of
such Shares or any interest therein. The Purchaser will use its best efforts to
cause any proposed transferee of any Shares held by it to agree to take and hold
such Shares subject to the provisions and upon the conditions specified in this
Article 8.
8.2. RESTRICTIVE LEGENDS. Each certificate for Shares issued to a
Purchaser or to a subsequent transferee shall include a legend in substantially
the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
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"SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES,
AGREES FOR THE BENEFIT OF THE CORPORATION THAT SUCH SECURITIES MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B)
PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT,
OR (C) IF REGISTERED UNDER THE SECURITIES ACT.
8.3. NOTICE OF PROPOSED TRANSFERS. Prior to any proposed transfer or
sale of the Shares (other than a transfer or sale (i) registered or exempt from
registration under the Securities Act, (ii) to an affiliate of a Purchaser which
is an "accredited investor" within the meaning of Rule 501(a) under the
Securities Act, provided that any such transferee shall agree to be bound by the
terms of this Agreement, or (iii) to be made in reliance on Rule 144 under the
Securities Act), the holder thereof shall give written notice to the Company of
such holder's intention to effect such transferor sale, setting forth the manner
and circumstances of the proposed transfer or sale, which shall be accompanied
by (A) an opinion of counsel reasonably acceptable to the Company, confirming
that such transfer or sale does not give rise to a violation of the Securities
Act, (B) representation letters in form and substance reasonably satisfactory to
the Company to ensure compliance with the provisions of the Securities Act and
(C) letters in form and substance reasonably satisfactory to the Company from
each such transferee stating such transferee's agreement to be bound by the
terms of this Agreement. Such proposed transfer or sale may be effected only if
the Company shall have received such notice of transfer, opinion of counsel,
representation letters and other letters referred to in the immediately
preceding sentence, whereupon the holder of such Securities shall be entitled to
transfer or sale such Securities in accordance with the terms of the notice
delivered by the holder to the Company.
ARTICLE 9
MISCELLANEOUS
9.1 ENTIRE AGREEMENT This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statements, certificates, or other documents delivered pursuant hereto
or in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not set forth.
9.2 NOTICES All notices provided for in this Agreement shall be in
writing signed by the party giving such notice, and delivered personally or sent
by overnight courier or messenger or sent by registered or certified mail (air
mail if overseas), return receipt requested, or by telex, facsimile
transmission, telegram or similar means of communication. Notices shall be
deemed to have been received on the date of personal delivery, telex, facsimile
transmission, telegram or similar means of communication, or if sent by
overnight courier or messenger, shall be deemed to have been received on the
next delivery day after deposit with the courier or messenger, or if sent by
certified or registered mail, return receipt requested, shall be deemed to have
been received on the third business day after the date of mailing. Notices shall
be sent to the addresses set forth below:
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IF TO THE COMPANY: American Risk Management Group, Inc.
4700 Ashwood Drive
Suite 300
Cincinnati, Ohio 45241
Facsimile: (513)
IF TO RW AND SR: Mr. Ronald Wilheim
Mr. Steven Rosedale
4700 Ashwood Drive
Suite 300
Cincinnati, Ohio 45241
Facsimile: (513)
WITH A COPY TO: Michael D. Karsch, Esq.
902 Clint Moore Road, Suite 114
Boca Raton, Florida 33487
Facsimile: (561) 864-6022
IF TO PURCHASERS: To the addresses set forth on Schedule I
WITH A COPY TO: Edward H. Burnbaum, Esq.
Novack Burnbaum Crystal LLP
300 East 42nd Street
New York, New York 10017
Facsimile: (212) 986-2907
9.3 GOVERNING LAW. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of New York (without regard to principles of conflicts of law). Each of
the parties hereto agrees to submit to the exclusive jurisdiction of any federal
or state court within the County of New York, with respect to any claim or cause
of action arising under or relating to this Agreement. The parties agree that
any service of process to be made hereunder may be made by certified mail,
return receipt requested, addressed to the party at the address appearing in
Section 9.3, together with a copy to be delivered to such party's attorneys via
telecopier (if provided in Section 9.3). Such service shall be deemed to be
completed when mailed and sent and received by telecopier. The parties hereto
each waive any objection based on FORUM NON CONVENIENS. Nothing in this
paragraph shall affect the right of the parties to serve legal process in any
other manner permitted by law.
9.4 COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.5 TAXES Any income taxes required to be paid in connection with the
payments due hereunder, shall be borne by the party required to make such
payment. Any withholding taxes in the nature of a tax on income shall be
deducted from payments due, and the party required to withhold such tax shall
furnish to the
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party receiving such payment all documentation necessary to prove the proper
amount to withhold of such taxes and to prove payment to the tax authority of
such required withholding.
9.6 WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES; PRESERVATION OF
REMEDIES. This Agreement may be amended, superseded, cancelled, renewed, or
extended, and the terms hereof may be waived, only by a written instrument
signed by authorized representatives of the parties or, in the case of a waiver,
by an authorized representative of the party waiving compliance. No such written
instrument shall be effective unless it expressly recites that it is intended to
amend, supersede, cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege shall hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party of
any such right, power or privilege, or any single or partial exercise of any
such right, power of privilege, preclude any further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity. The rights and remedies of any
party based upon, arising out of or otherwise in respect of any inaccuracy in or
breach of any representation, warranty, covenant or agreement contained in this
Agreement shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such inaccuracy
or breach is based may also be the subject matter of any other representation,
warranty, covenant or agreement contained in this Agreement (or in any other
agreement between the parties) as to which there is no inaccuracy or breach.
9.7 BINDING EFFECT; NO ASSIGNMENT, NO THIRD-PARTY RIGHTS. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement is not
assignable without the prior written consent of each of the parties hereto or by
operation of law.
9.8 FURTHER ASSURANCES. Each party shall, at the request of the other
party, at any time and from time to time following the Closing promptly execute
and deliver, or cause to be executed and delivered, to such requesting party all
such further instruments and take all such further action as may be reasonably
necessary or appropriate to carry out the provisions and intents of this
Agreement and of the instruments delivered pursuant to this Agreement.
9.9 SEVERABILITY OF PROVISIONS. If any provision or any portion of any
provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of this Agreement, or the application of such provision or portion of
such provision is held invalid or unenforceable to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and such provision or portion of any provision as shall have
been held invalid or unenforceable shall be deemed limited or modified to the
extent necessary to make it valid and enforceable; in no event shall this
Agreement be rendered void or unenforceable.
9.10 EXHIBITS AND SCHEDULES. All exhibits annexed hereto, and all
schedules referred to herein, are hereby incorporated in and made a part of this
Agreement as if set forth herein. Any matter disclosed on any schedule referred
to herein shall be deemed also to have been disclosed on any other applicable
schedule referred to herein.
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9.11 CAPTIONS. All section titles or captions contained in this
Agreement or in any schedule or exhibit annexed hereto or referred to herein,
and the table of contents to this Agreement, are for convenience only, shall not
be deemed a part of this Agreement and shall not affect the meaning or
interpretation of this Agreement. All references herein to sections shall be
deemed references to such parts of this Agreement, unless the context shall
otherwise require.
9.12 EXPENSES. Except as otherwise expressly provided in this
Agreement, whether or not the Closing occurs, each party hereto shall pay its
own expenses incidental to the preparation of this Agreement, the carrying out
of the provisions hereof and the consummation of the transactions contemplated.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, as of the date first written herein above.
AMERICAN RISK MANAGEMENT
GROUP, INC.
By:
-----------------------------------------
- ------------------------------------------- -----------------------------
RONALD WILHEIM STEVEN ROSEDALE
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PURCHASERS
AVEZE DEVELOPMENT, INC. BARGE INVESTMENTS LTD.
By: By:
-------------------------------- --------------------------------
BALCKSHAW LTD. E & D FOUNDERS LLC
By: By:
-------------------------------- --------------------------------
- ----------------------------------- LAMTTON HOLDINGS
E. ERANI
By:
--------------------------------
- -----------------------------------
J. KHEZREI
SUPER RELIABLE
- ----------------------------------- MANAGEMENT CORP
HARVE SMADJA
By:
LOKE HOLDINGS, LLC --------------------------------
YMT, INC.
By: By:
--------------------------------- --------------------------------
UNITED SYSTEMS LTD. YMSS BROWN LTD.
By: By:
---------------------------------- --------------------------------
AKIVA KLEIN
-----------------------
ISRAEL ORZEL
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SCHEDULE 2.1 Directors and Officers of American Risk Management Group, Inc. and
Certificates of Resignation
-18-
SCHEDULE 3.1
The Company's Certificate of Good Standing
-19-
SCHEDULE 3.1.1
The Company's Subsidiaries
1. PeopleFirst LLC, an Ohio limited liability company, wholly owned by
the Company.
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SCHEDULE 3.2.(b)
Resolutions of the Company's Board of Directors
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SCHEDULE 3.3
Options, Warrants, Puts, Calls, etc.
1. D.L. Cromwell (Ira Goldberg) warrants issued pursuant to $1,000,000
private placement of units consisting of stock and warrants.
-22-
SCHEDULE 3.17
The Company's Liabilities
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SCHEDULE 3.20
The Company's Past Offerings
(2 years)
1. $1,000,000 private placement of units to D.L. Cromwell
consisting of warrants and common stock.
2. 1,250 shares of the Company's 5% Convertible Preferred Stock
issued to ProFutures Special Equities Funds, L.P. on January
20, 1998.
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SCHEDULE 3.22
The Company's Articles of Incorporation and Amendments
-25-
EXHIBIT A
Form of the Company's Opinion of Counsel
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SCHEDULE I
PURCHASERS
AGGREGATE
NAME/ADDRESS NUMBER OF SHARES PURCHASE PRICE DATE OF PURCHASE
PURCHASED CLOSING AND
ISSUANCE OF NOTE
Balckshaw Ltd. 250,000 $217,650 7-17-00
c/o B. Muller, Bellaria Strasse 69,
8038 Zurich, Switzerland
Israel Orzel 250,000 $217,650 7-17-00
8 Underwood Road
Monsey, New York 10952
J. Kherzrei 50,000 $43,505 7-17-00
43 Hall Street
7th Floor
Brooklyn, NY
E. Erani 12,500 $10,382 7-17-00
4 East 34th Street, 5th Floor
New York, New York 10016
E&D Founders LLC 375,000 $326,475 7-17-00
1712 48th Street
Brooklyn, New York
YMT, Inc. 50,000 $43,505 7-17-00
4103 16th Avenue
Brooklyn, New York 11204
Lamtton Holdings 150,000 $130,590 7-17-00
P.O. Box 35411
Jerusalem, Israel
Aveze Development, Inc. 300,000 $261,180 7-17-00
c/o Krauze
140 Buirmensdorfer Straus
Zurich 8W3, Switzerland
Akiva Klein 200,000 $174,120 7-17-00
c/o Film Exchange
162 Wallabout Street
Brooklyn, NY
United Systems Ltd. 400,000 $348,240 7-17-00
788-790 Finchly Road
London, N.W. 117 U.K.
YMSS Brown Ltd. 412,750 $359,343 7-17-00
Rechov Zecharia 3,
Jerusalem, Israel
Super Reliable Management Corp. 240,000 $208,944 7-17-00
620 Coney Island Avenue
Brooklyn, New York 11218
Harve Smadja 12,500 $10,383 7-17-00
261McCloud Drive
Fort Lee, NJ 07024
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Loke Holdings, LLC 1,148,625 $1,000,004 8-17-00
600 Third Avenue
New York, New York
Barge Investments Ltd. 1,148,625 $1,000,004 9-17-00
Rechov Harebbe M'lubavitch
12 Betar Elite, Israel
TOTAL 5.000,000 $4,350,000 -
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