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EXHIBIT 1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into this 5th day of August, 1996, by,
between and among Forte Computer Easy International, Inc. (hereinafter referred
to as "Seller"), James W. Schmidt and Beverly Schmidt, husband and wife
(hereinafter referred to as "Buyers"), and Arizona Disk Fulfillment, Inc.,
(hereinafter referred to as "Corporation");
W I T N E S S E T H :
WHEREAS, Seller owns one hundred percent (100%) of this issued and
outstanding stock of Corporation as evidenced by Certificate No. 20, a copy of
which Certificate is attached hereto, marked Exhibit "A", and made a part hereof
by reference; and
WHEREAS, James W. Schmidt is and has been the President of Corporation
from 1993 to the present, and is fully informed as to the business of
Corporation and its assets and liabilities, and Buyers are purchasing the stock
of Corporation, with Corporation in "where is", "as is", condition; and
WHEREAS, Seller and Corporation each may have claims against the other
arising out of intercompany transfers and questions of ownership of assets and
accounts; and
WHEREAS, in order to assist in the sale of the stock contemplated
herein, Seller and Corporation have agreed to resolve such claims as herein
provided;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Sale of Stock:
Seller does hereby sell to Buyers and Buyers do hereby
purchase from Seller one hundred percent (100%) of the issued and outstanding
stock of Corporation as evidenced by the aforesaid Certificate No. 20.
2. Purchase Price:
As full payment for the stock to be conveyed hereunder, Buyer
shall pay to Seller as the purchase price the sum of One and No/100 Dollars
($1.00) cash, and the undertaking and covenants provided for herein by the
parties.
3. Stock Transfer:
Seller shall immediately cause the stock to be transferred on
the books of Corporation of the Buyer and shall immediately deliver the new
certificate to Stanford E. Lerch,
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attorney at law, 2700 N. Central Avenue, Suite 1500, Phoenix, Arizona 85004,
with instructions for Stanford E. Lerch to deliver said new stock certificate to
Buyers upon Closing.
4. Operation of Business:
Following Closing and for a period of not less than six (6)
months thereafter Buyers agree to use their best efforts to cause Corporation to
continue to conduct its business in the ordinary course of business and agree
not to sell all or a major portion of the assets of Corporation or terminate the
business of Corporation; except that the fork lift may be sold, provided the
proceeds are put into Corporation for working capital purposes.
5. Balance of Account Owing to Semple and Cooper and Antol:
Buyers agree to cause Corporation to pay its account owing to
Semple and Cooper, CPA, for audit and consulting services for Corporation in the
amount of $19,082.60, and Steve Antol for accounting services on behalf of
Corporation in the amount of $17,246.00, by December 1, 1996, or otherwise to
compromise and settle in full said accounts owing to each of them on terms and
conditions which are agreeable to Semple and Cooper, CPA, and Steve Antol.
6. Ownership of Assets Located at Corporation:
The parties agree that all assets of Corporation are to be
included in this sale and that all tangible assets, fixtures, equipment and
goods held as inventory, accounts receivable, cash in bank accounts, leases on
contract rights, of whatever nature located at Corporation's facilities in Mesa,
Arizona and the trade name "Arizona Disk Fulfillment" shall belong to
Corporation free and clear of any claims of the Seller except for any network
boards or equipment which are necessary for Seller to implement its computer
network and which network boards or equipment, if any, are in the possession of
Corporation. As additional consideration for this Stock Purchase Agreement and
in consideration for the foregoing, Seller and Corporation do hereby release the
other from any and all claims whatsoever which either may have against the other
for intercompany transfers or money owing to the other. Upon Closing,
Corporation agrees to be responsible and to obtain in its own name all insurance
on behalf of Corporation, including, but not limited to, all workmans
compensation insurance policies and general liability insurance.
7. Salary:
Buyers agree that they will not increase any salary or other
compensation which they have a right to receive for services to be rendered by
them to the Corporation for a term of not less than six (6) months following
closing.
8. Riddle Settlement Agreement with Seller:
Buyers and Corporation agree to cause Corporation to comply
with Corporation's part of the Settlement Agreement which was entered into
between Seller and Jess Riddle and Susan
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Riddle (hereinafter "Riddle"), dated January 17, 1996, which Settlement
Agreement is incorporated herein by reference as to the part thereof to be
performed by Corporation, provided that Corporation can arrange for acceptable
payment terms by Riddle.
9. Warranties of Seller, Buyers and Corporation:
a. Warranties as to Property of Corporation:
Seller warrants that at the Close, Corporation will own the
trade name "Arizona Disk Fulfillment" and all of the facilities in
Mesa, Arizona, as provided in Paragraph 7 above, in "where is", "as is"
condition.
b. Warranties as to Corporation;
Seller and Corporation warrant that the stock of
Corporation shall be transferred to the Buyer at closing, free and
clear of any claim of any nature from any person, except as otherwise
provided herein.
10. Representations of Seller, Buyers and Corporation:
a. To the best knowledge and belief of Corporation,
Corporation's officers and directors, Seller and Buyers, neither the
execution or delivery of this Agreement nor the consummation of the
contemplated transaction will conflict with, or result in a breach of,
any of the terms, conditions, or provisions of any law or regulation,
order, right, injunction or decree of any court or governmental
instrumentality;
b. Buyers are acquiring all of the stock of Corporation for
the purpose of investment and not for the purpose of resale, and
represent that Buyers will use their best efforts to cause Corporation
to continue its business in the normal course of business for a minimum
term of six (6) months from the date of closing, with the exception
that should it become necessary during such time, Buyers and
Corporation shall be entitled to the benefits of all laws pertaining to
debtor and creditor relations and each party to this Agreement
acknowledge and understand that Buyers are acquiring all of the stock
of Corporation, with Corporation in a "where is", "as is" condition.
11. Closing.
Closing shall take place upon adoption by the Board of
Directors of Seller of a Resolution approving this Stock Purchase Agreement.
Should Closing not occur within thirty (30) days from the date of this
Agreement, then this Agreement shall be null and void.
a. Seller:
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Prior to the Closing, and as a condition to the
Closing, Seller shall deliver the new certificate of stock to Stanford
E. Lerch and shall cause Buyers to be appointed to Corporation's Board
of Directors and shall obtain the resignation of all other directors of
Corporation;
b. Buyers:
Prior to the Closing, Buyers shall deliver the sum of
One Dollar ($1.00) to Stanford E. Lerch, with written instructions to
Stanford E. Lerch to deliver said sum to Seller at time of Closing.
12. Covenant Not to Compete:
Seller hereby covenants that it will, neither separately,
jointly or in association with others, directly or indirectly, engage or
participate in, or be affiliated or connected with, as an owner, partner, joint
venturer, shareholder or otherwise, the fulfillment business, within the State
of Arizona for a period of three (3) years from the date hereof.
13. Waiver of Conflict:
The parties hereto acknowledge and agree that the law firm of
Lerch, McDaniel, DePrima & Kaup, P.L.C. and its members have represented in some
capacity all of the parties to this Agreement and are presently representing
Corporation and Seller. The parties further acknowledge that they have been
consulted relative to the advisability of obtaining other counsel for the
purpose of this Agreement and that all parties have agreed that it is in their
best interests to have Lerch, McDaniel, DePrima & Kaup, P.L.C. prepare this
Agreement, and all parties waive any rights that may be derived from such
conflict.
14. Expenses:
Corporation shall pay all costs, expenses and attorneys' fees
incurred or to be incurred by it in negotiating and preparing this Agreement and
in closing and carrying out the transactions contemplated by this Agreement.
15. Broker's Fees or Commissions:
Each party represents and warrants that they have not agreed
to pay any broker's or finder's fees pertaining to this Agreement, and agree to
indemnify and hold each other party harmless against any loss, cost or expense
incurred by reason of broker's fee, finder's fee or commission.
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16. Effective Headings.
The subject headings of the paragraphs and subparagraphs of
this Agreement are included for purposes of convenience only and shall not
affect the construction or interpretation of any of the provisions of this
Agreement.
17. Modification of Agreement.
No modification or amendment of this Agreement shall be
binding unless executed in writing by all parties. No waiver of any other
provision of this Agreement shall be deemed a waiver of any other provision, nor
shall any waiver constitute a continuing waiver.
18. Counterparts.
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. Benefits under this Agreement.
Nothing in this Agreement is intended to confer any rights for
any person other than the parties to it and their respective successors and
assigns. This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective heirs, legal representatives, successors and
assigns.
20. Litigation Costs.
If any legal action or any arbitration or other proceeding is
brought in the enforcement of this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party shall be entitled to
recover reasonable attorneys' fees and other costs incurred in that action or
proceeding in addition to any other relief to which he may be entitled.
21. Survival of Representations and Warranties.
The representations and warranties of the parties hereto shall
survive the making of this Agreement, any examination on behalf of such parties,
and the closing hereunder.
22. Notice.
All communications hereunder shall be in writing and delivered
or mailed by certified mail to the parties at such address as each party may
specify in writing.
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23. Governing Law.
This Agreement is made pursuant to and shall be construed
under the laws of the State of Arizona.
24. Incorporation by Reference.
All schedules and exhibits attached hereto shall be deemed for
all purposes to be incorporated herein as if fully set forth.
25. Other Documents.
The parties hereto agree to promptly execute any and all
additional documents which may reasonably be necessary in order to effectuate
the intent of this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
ARIZONA DISK FULFILLMENT, INC. FORTE COMPUTER EASY
INTERNATIONAL, INC.
By: /s/ James W. Schmidt By: /s/ Frank Amedia
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Title: President Title: President
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BUYERS:
/s/ James W. Schmidt
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James W. Schmidt
/s/ Beverly Schmidt
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Beverly Schmidt