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EXHIBIT 1
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (the "Agreement") made this 14th day of
March, 1997, between Marcella M. Egly Turner, as sole Trustee of the EGLY FAMILY
TRUST U/A DATED MAY 31, 1977, 7051 North 23rd Place, Phoenix, Arizona 85020
("Seller"), WESTERN INSULATED GLASS, CO., an Arizona corporation, 5621 South
25th Street, Phoenix, Arizona 85040 (the "Corporation"), BENNY J. ELLIS, 637
Leah Lane, Gilbert, Arizona 85234 ("Ellis"), and FORTE COMPUTER EASY, INC., a
Utah corporation, 100 South Broadway Avenue, Salem, Ohio 44460 ("Buyer").
RECITALS
A. The Corporation is in the business of designing, manufacturing and
selling insulated windows and doors (the "Business"), and Seller is the legal
owner of 90,000 shares of voting common stock of the Corporation, having its
principal place of business at 5621 South 25th Street, Phoenix, Arizona 85040;
B. There are 1,000,000 authorized shares of voting common stock of the
Corporation and 90,000 of these shares are issued and currently are outstanding.
Seller's shares (the "Shares") constitute one hundred percent (100%) of the
authorized, issued and outstanding shares of common stock of the Corporation;
C. There are 2,000,000 authorized shares of preferred stock and 1,620,000
shares of the preferred stock were redeemed by the Corporation from Seller on
July 8, 1984 (the "Redeemed Shares"), which shares are currently subject to the
terms and conditions of that certain Pledge and Security Agreement dated July 8,
1984 (wherein the Corporation is the named pledgor and the Seller the named
pledgee) which has been given to secure repayment of that certain Promissory
Note dated July 8, 1984 in the original principal amount of $1,519,000.00
wherein the Corporation is the named maker and the Seller is the named payee
("Redemption Note");
D. In addition to the Shares, there are 90,000 shares of common stock
redeemed by the Corporation from Seller on July 8, 1984 (the "Redeemed Shares"),
which shares are currently subject to the terms and conditions of that certain
Pledge and Security Agreement dated July 8, 1984 (wherein the Corporation is the
named pledgor and the Seller the named pledgee) which has been given to secure
repayment of the Redemption Note;
E. Seller desires to sell all of its Shares in the Corporation which
constitutes one hundred percent (100%) of the issued and currently outstanding
shares and Buyer desires to purchase these Shares;
F. Ellis is the currently elected and acting President of the Corporation;
G. Corporation desires to pay in full the unpaid principal balance of the
Redemption Note in exchange for Seller releasing any and all interest that it
may have in the Redeemed Shares pursuant to the terms of the Pledge and Security
Agreement dated July 8, 1984.
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NOW, THEREFORE, in consideration of the above, and of the mutual covenants
herein contained and other good and valuable consideration, it is agreed as
follows:
1. SALE OF SHARES. Subject to the provisions of this Agreement, Seller
hereby sells, assigns, transfers, and sets over to Buyer its 90,000 shares of
the voting common stock of the Corporation, and Buyer hereby purchases and
acquires such Shares and agrees to pay in consideration thereof:
A. For the purchase of the Shares, the sum of $634,400.00, payable
to Seller as follows:
a. the non-refundable sum of $100,000.00 paid by Buyer to
Seller, the receipt of which is hereby acknowledged;
b. the sum of $134,400.00 paid in cashiered funds at Closing;
c. Buyer, Frank J. Amedia and George S. Hofmeister shall sign
and deliver to Seller an Unsecured Promissory Note for the principal sum
of $400,000.00 [the "Seller's Note"]; and
d. any loan proceeds in excess of $1,515,000.00 and in excess
of the loan proceeds necessary for operating the business of the
Corporation shall be paid to Seller, which, in turn, will reduce the
principal sum of the Seller's Note; and
B. At Closing, Buyer shall cause sufficient monies to be deposited
into the account of the Corporation, so that immediately following Closing, the
Corporation shall (i) pay Seller the sum of $1,215,700.00 as payment in full of
the Redemption Note, (ii) pay to Benny J. Ellis the sum of $25,100.00 [and
deliver an Unsecured Promissory Note in the principal sum of $225,000.00 and
deliver an additional Unsecured Promissory Note in the principal sum of
$100,000.00], (iii) pay Tim Gay & Associates the sum of $62,046.86 as partial
payment for its finder's fee [the balance of the finder's fee, to-wit:
$53,753.14, will be evidenced by the Buyer and other's signing an Unsecured
Promissory Note (the "Fee Note")], and (iv) pay to IRA Account No. OPX-R38129
[for benefit of Vikki K. Beery] and IRA Account No. OPX-R26279 [for benefit of
Mel L. Beery] collectively the principal sum of $30,000.00 plus accrued interest
from November 1, 1996 through March 15, 1997, at 6% per annum, for payment in
full of those certain Promissory Notes dated November 1, 1994 between the
Corporation, as maker, and the aforementioned IRA Accounts, as payees.
C. At Closing, Seller shall, pursuant to the terms of that certain
letter agreement dated November 5, 1996, and approved November 7, 1996, between
Seller and Benny J. Ellis, pay Benny J. Ellis the sum of $100,000.00.
D. The terms of the Seller's Note shall provide that interest will
accrue at the rate of ten percent (10%) per annum; that interest will be paid
monthly; that the unpaid principal balance and any accrued interest will be due
and owing on March 15, 1998 or upon Forte Computer Easy, Inc. completing its
secondary offering, whichever event shall first occur; that
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there will be no renewal of the Seller's Note; that as long as Seller's Note
remains unpaid, neither Buyer nor any other affiliate or related entity will
withdraw and/or declare any dividends, distributions or other profits from the
Corporation.
E. The Fee Note referred to herein will be understood to mean that
certain Unsecured Promissory Note executed by Buyer, Frank J. Amedia and George
S. Hofmeister, in favor of Tim Gay & Associates for the principal sum of
$53,753.14. The terms of the Fee Note will provide that interest will accrue at
the rate of ten percent (10%) per annum; that interest will be paid monthly;
that the unpaid principal balance and any accrued interest will be due and owing
on March 15, 1998 or upon Forte Computer Easy, Inc. completing its secondary
offering, whichever event shall first occur.
2. BUYER'S ACKNOWLEDGMENT. Buyer acknowledges that the Shares purchased
herein are not and will not be registered under the Securities Act of 1933 nor
under any applicable state securities law, and that the Corporation does not
file any periodic reports with the Security and Exchange Commission pursuant to
the requirements of the Securities Exchange Act of 1934, as amended.
3. REPRESENTATIONS AND WARRANTIES.
A. Seller represents and warrants to Buyer as follows:
a. The Egly Family Trust U/A dated May 31, 1977, is a duly
organized, validly existing Trust and Marcella M. Egly Turner is the duly
acting and lawful sole Trustee of Seller. Seller's execution of this Share
Purchase Agreement is duly authorized and does not and will not violate
any contractual or other legal obligations or restraints upon Seller. This
Share Purchase Agreement and all instruments delivered by Seller pursuant
to this Agreement will be legal, valid, and binding obligations of Seller
enforceable in accordance with the provisions of this Agreement.
b. There are no warrants, option rights, and debentures, or
accumulated or declared dividends presently outstanding as to Seller's
Shares.
c. The authorized, issued, and presently outstanding shares of
stock of the Corporation is 90,000 voting common shares; other than
Seller, there is no other shareholder of shares of stock of the
Corporation [except for the Redeemed Shares].
d. Seller is the sole owner of, free and clear of any liens,
claims, encumbrances, and charges, and has full power and authority to
sell and transfer to Buyer Seller's Shares of voting common stock of the
Corporation. None of the Shares are subject to any voting trust or voting
agreement, nor is there any proxy in existence with respect to any of such
Shares.
e. The sale of the Seller's Shares, pursuant to this Share
Purchase Agreement, is an isolated transaction by Seller, who does not
intend to make any other
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sale and who has not made any sale or purchase of such stock within the
past twenty-four (24) months.
f. No representation or warranty by Seller in this Share
Purchase Agreement 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 not materially misleading.
B. Buyer represents and warrants to Seller as follows:
a. Buyer is a corporation duly organized, existing and in good
standing in and authorized to transact business in the State of Utah, and
is fully authorized to enter into and execute this Share Purchase
Agreement and perform its obligations hereunder.
b. The entering into this Share Purchase Agreement by Buyer
constitutes a valid and binding obligation of Buyer enforceable in
accordance with the provisions of this Agreement and will not violate any
other instrument or agreement to which Buyer is bound.
c. Seller has permitted Buyer and Buyer's representatives full
access to the Corporation's books, contracts, accounts and records and
have furnished Buyer with all information that it has requested concerning
the Corporation's affairs.
d. Buyer has been provided the opportunity to review the
business affairs of the Corporation and Buyer represents and warrants that
it is buying the Shares of stock from Seller being aware of the financial
and business affairs of the Corporation and its current financial
condition and further agrees to indemnify and save Seller harmless from
any product warranties/liabilities of the Corporation.
C. Corporation represents and warrants to Buyer as follows:
a. The Corporation is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Arizona, and
is in good standing under the laws of each jurisdiction material to the
operation of the Corporation. The Corporation has all the requisite
corporate power and authority to own, lease, and operate its assets and to
carry on the business as it now is being conducted. The Corporation has
delivered to Buyer a true, correct and complete copy of its Articles of
Incorporation, Bylaws, and Certificate of Good Standing.
b. The authorized capital stock of the Corporation consists of
1,000,000 voting common shares and 2,000,000 preference shares, of which
90,000 voting common shares are issued and outstanding. On the date of
this Agreement, the 90,000 voting common shares are the only shares of
capital stock of the Corporation which are issued and outstanding. There
are no existing options, warrants, calls or commitments of any character
relating to the Corporation's authorized but unissued
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treasury or outstanding common shares, preferred shares, or any other
class of capital stock of the Corporation, nor are there outstanding
securities convertible into or exchangeable for common shares, preferred
shares or any other class of capital stock of the Corporation, nor are
there outstanding securities convertible into or exchangeable for common
shares, preferred shares or any other class of capital of the Corporation,
and there are no rights or privileges capable of becoming an option or
agreement for the purchase of the Shares or other assets of the
Corporation. All of the Shares were validly issued as fully paid, and
non-assessable. Seller is the recorded and beneficial owner of the Shares
and has good and marketable title thereto, free and clear of all liens,
claims, pledges, restrictions (including the provisions of any so-called
"buy-sell", "cross-purchase", or "stock redemption" agreement which may
previously have been applicable to any of the Shares), encumbrances,
rights of third parties, or other interest of any kind or character.
c. The execution and delivery of this Agreement by the
Corporation and the consummation of the transactions contemplated by this
Agreement and the other agreements and documents described in this
Agreement have been duly and validly authorized by all necessary corporate
action on the part of the Corporation.
d. All consents and approvals of third parties and
governmental authorities required in connection with the execution by the
Corporation of this Agreement have been obtained, and the execution and
delivery of this Agreement, and the consummation of the transaction
contemplated by this Agreement will not cause or give any person ground to
cause (with or without motive or the passage of time) the maturity of any
liability or obligation of the Corporation to be accelerated or increased.
e. The Financial Statements of the Corporation have been
prepared by the Corporation from the books and records of the Corporation
and, in the opinion of the management of the Corporation, fairly present
the financial position of the Corporation as of the respective dates
thereof, and fairly present the results of operations of the Corporation
for the accounting periods then ended. The Corporation has no material
liabilities or obligations, fixed, contingent, accrued, or otherwise,
which are not reflected in the financial statements (other than normal,
recurring year-end adjustments in accordance with past practices), except
for liabilities or obligations incurred since January 1, 1997, in the
ordinary and normal course of the Business operated by the Corporation
consistent with prior practices.
f. The Corporation has prepared and filed, or will prepare and
file, on time with all appropriate governmental authorities all tax
returns and other documents that are required to be filed in respect of
any Taxes (as defined below) for all fiscal periods ending on or prior to
the Closing, and all such returns or other documents are correct and
complete in all material aspects.
The Corporation will have paid in full or reserved for payment
all Taxes due on or before the Closing and, in the case of Taxes accruing
on or before the Closing
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that are not due on or before the closing date, the Corporation will have
made adequate provision in its books and records and financial statements
for such payment(s).
The Corporation has withheld from each payment made to any of
its present or former employees, officers, and directors all amounts
required by law and/or applicable rules and regulations to be withheld or
remitted and will continue to do so until the Closing and, furthermore,
has remitted such amounts within the applicable periods to the appropriate
governmental authorities. The Corporation has remitted all pension plan
contributions, unemployment insurance premiums, employer health taxes and
other Taxes due and payable by it in respect of its employees, and has or
will have remitted such amounts to the appropriate governmental
authorities within the time required under the applicable rules and
regulations. The Corporation has charged, collected, and remitted on a
timely basis all Taxes as required under applicable legislation on any
sale, supply, or delivery whatsoever made by the Corporation.
There are no assessments or reassessments of the Corporation's
Taxes that have been issued and are outstanding. No governmental authority
has challenged or disputed the Taxes paid or payable by the Corporation or
any returns, filings, or other reports filed by the Corporation under any
statute providing for Taxes. The Corporation has not received any
indication from any governmental authority that an assessment or
reassessment for additional amounts of Taxes in respect of the Corporation
is proposed. The Corporation has not executed or filed any agreement
extending the period for assessment, reassessment, or collection of any
Taxes.
For the purposes of this paragraph, "Tax" or "Taxes" means all
taxes, charges, levies, and other assessments including, but not limited
to, all income, sales, goods and services, value added, capital, capital
gains, alternative, transfer, profits, withholding, payroll, employer
health, excise, and real property taxes, and any other nature of a tax
including pension plan contributions, unemployment insurance payments and
workers' compensation premiums, together with any installments with
respect thereto, and any interest, fines, and penalties imposed by any
governmental authority (including Federal, state, and municipal
governmental authorities), and whether disputed or not.
g. Since February 28, 1997, the Business has been conducted
only in the ordinary course and the Corporation has not:
i. Incurred any obligation or liability, absolute,
accrued, contingent, or otherwise, whether due or to become due, except
liabilities incurred in the ordinary course of the Business.
ii. Other than any bonus to Benny J. Ellis,
discharged or satisfied any material lien, charge, or encumbrance, or paid
any obligation or liability, absolute, accrued, contingent, or otherwise,
whether due or to become due, other than current obligations or
liabilities incurred in the ordinary course of the Business or which are
not material to the Corporation or the Business, taken as a whole.
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iii. Mortgaged, pledged, or subjected to lien,
charge, security interest, or any other encumbrance or restriction any of
its assets.
iv. Sold, transferred, leased to others, or
otherwise disposed of its assets, except for inventory sold in the
ordinary course of the Business.
v. Canceled or compromised any material debt or
claim, or waived or released any right of substantial value.
vi. Received any written notice of termination of
any contract, lease, or other agreement (excluding purchase orders) or
suffered any damage, destruction, or loss (whether or not covered by
insurance) which, in the aggregate, has had a material adverse effect on
the Corporation or the Business, taken as a whole.
vii. Had any actual or overtly threatened employee
strikes, work stoppages, slow downs or lock outs, or had any material
adverse change in its relationship with any of its employees, salesmen,
distributors, or independent contractors.
viii. Transferred or granted any rights under, or
entered into any settlement regarding the breach or infringement of, any
United States or foreign license, patent, copyright, trademark, service
mark, trade name, or invention, or modified any existing rights with
respect thereto.
ix. Made any material change in the rate of
compensation, commission, bonus or other remuneration payable, or paid or
agreed to pay any bonus, extra compensation, pension, severance or
vacation pay, to any shareholder, director, officer, employee, salesman,
or distributor other than regularly scheduled increases about which Buyer
had received prior notice and no such increases or changed have been
authorized but not implemented.
x. Changed its accounting methods or practices
(including, but not limited to, changes in depreciation or amortization
policies or rates).
xi. Instituted, settled, or agreed to settle any
litigation, action, proceeding, or arbitration except for settlements of,
or agreements to settle, labor grievances pursuant to which no material
obligation or liability was incurred.
xii. Failed to replenish its inventories or
supplies in a normal and customary manner or made any purchase commitment
other than in the ordinary course of the Business.
xiii. Entered into any material transaction,
contract, or commitment other than in the ordinary course of the Business.
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xiv. Suffered any material adverse change in its
financial condition, its assets (including its account balances of cash
and cash equivalents), the Business, or any of its known potential new
business opportunities.
xv. Entered into any agreement, made any
commitment, or otherwise modified in any material respect its historical
policy or practices for the payment of its accounts payable.
h. The Corporation further represents:
i. It is not in default or violation in any
material respect under (i) any contract, agreement, lease, consent order,
or other commitment of the Corporation or by which it or its assets or
properties is bound, or (ii) any law, including securities laws, rules,
regulations, writs, injunctions, orders, or decrees of any court or any
Federal, state, local, foreign or other governmental department,
commission, board, bureau, agency or instrumentality.
ii. It has no actual notice that any other party to
any contract, agreement, lease, consent order, or other commitment of the
Corporation is in default thereunder.
iii. All contracts, agreements, leases, consent
orders, or other commitments of the Corporation were lawfully granted by
the Corporation and are in full force and effect.
iv. There are no actions, suits, claims,
investigations, legal, arbitration, or administrative proceedings in
progress, pending, or, to the best knowledge of the Corporation,
threatened against the Corporation, its officers and/or directors, except
that on or about January 14, 1997, Benny J. Ellis, as President of the
Corporation, was served with a copy of a Summons and First Amended
Complaint in Case No. BC-142865 in West District Superior Court, State of
California, captioned Jonathan Elias v. Navy Street Partnership et al.,
and was served with a copy of a Summons and First Amended Complaint in
Case No. BC-036823 in West District Superior Court, State of California,
captioned Arturo Sneider, et ux. v. Navy Street Partnership et al., and
related documents, all of which have been provided to Buyer.
v. It has not received any actual notice of any
legal action, suit, or legal proceeding which has been instituted or, to
the best knowledge of the Corporation, is threatened (i) to restrain or
prohibit or otherwise challenge the legality or validity of the
transactions contemplated by this Agreement, or (ii) which may require the
expenditure of money to carry on the Business as currently conducted.
i. All accounts receivable and notes receivable as of the date
of this Agreement constitute, and as of the Closing Date will constitute,
valid claims which arose in the ordinary course of the Business and are
good and collectible in accordance with their terms.
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j. The Corporation possesses all material franchises,
licenses, permits certificates, approvals, and other authorizations (the
"Permits") and has made all registrations necessary to own or lease and
operate its assets and to conduct the Business as presently conducted. The
Corporation has fulfilled and performed its obligations under each of the
Permits in all material respects, and no event has occurred which
constitutes or, after notice or lapse of time or both, would constitute a
breach or default under any of the Permits or would permit revocation or
termination of any of the Permits. No notice of cancellation, of default,
or of any dispute concerning any of the Permits, or of any event,
condition, or state of facts described in the preceding sentence, has been
received by the Corporation. Each of the Permits is valid, subsisting, and
in full force and effect and, upon completion of the transactions
contemplated by this Agreement, each of the Permits will continue in full
force and effect in each case without (i) the occurrence of any breach,
default, or forfeiture of rights thereunder, or (ii) the consent,
approval, or act of, or the making of any filing with, any governmental
body, regulatory commission, or other person or entity (other than
notification).
k. The Corporation has not received any notice that there is
any litigation, suit, proceeding, action, claim or investigation, at law
or in equity, pending or, to the best knowledge of the Corporation,
threatened against the Corporation or affecting its assets or the Business
by any person or before any tribunal or governmental authority, and there
are no facts known to the Corporation that might reasonably be expected to
result in any such litigation, suit, proceeding, actions, claim or
investigation. Neither the Corporation nor the Business is subject to or
in default with respect to any presently existing notice, order, writ,
injunction, or decree of any tribunal or governmental authority. There has
not been any product liability claims made against the Corporation or in
respect of any products sold by the Corporation during the four (4) years
prior to the date of this Agreement.
l. The Corporation has not declared, set aside, paid
dividends, or made or agreed to make any other distributions to its
shareholders, or effected or agreed to effect any direct or indirect
reduction of capital, redemption, purchase, or other acquisition by it of
its issued shares.
m. The Corporation does not maintain any other businesses or
operations other than the Business.
4. INDEMNIFICATION AND REMEDIES FOR BREACH OF WARRANTY.
A. Subject to the above provisions, Seller agrees to indemnify,
defend and hold and save Buyer free and harmless from any and all claims,
demands, suits, causes of action, lawsuits, liability, costs of any kind or
description (including reasonable attorney's fees) for or in connection with,
resulting from or on account of the breach of any representations and warranties
of Seller set forth herein which produce:
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a. Liability of the Corporation or Buyer of any nature
whatsoever, whether accrued, absolute, contingent or otherwise, existing
at Closing to the extent not reflected or reserved against herein.
b. Any loss, damage, diminution in value or deficiency
resulting from any misrepresentation, breach of warranty or
non-fulfillment of any agreement on the part of the Seller under this
Share Purchase Agreement.
c. All actions, suits, proceedings, demands, assessments,
judgments, costs, and reasonable expenses with respect to any of the
foregoing.
d. Buyer and other parties to this Agreement agree that Benny
J. Ellis shall not be liable pursuant to this Agreement or otherwise for
any obligation to any party which he has not specifically assumed in this
Agreement including, but not limited to, any obligation of the Corporation
on whose behalf he has executed this Agreement or arising from the breach
of any representation or warranty contained herein.
B. Benny J. Ellis hereby expressly releases and forever discharges
the Seller and the Corporation, their respective agents, employees, successors
and assigns of and from any and all actions, causes of action, suits,
agreements, promises, damages, costs, expenses, attorneys' fees, obligations,
claims and demands whatsoever, that his heirs, executors, administrators,
successors or assigns ever had, now have or hereafter can, shall or may have,
for whatever reason or as a result of, by reason of, or in connection with any
matter, cause, event, occasion, transaction, relationship, or thing whatsoever
(whether known or unknown and whether presently asserted) which has arisen or
which may hereafter arise, including, but without limitation, in connection with
paragraphs 9 and 10(c) of that certain Employment Agreement between the
Corporation and Benny J. Ellis dated November 1, 1994, and paragraph 18 of that
certain Lease Agreement between the Corporation and Benny J. Ellis and Linda M.
Ellis, husband and wife, dated November 16, 1994. The Corporation hereby
expressly releases and forever discharges Benny J. Ellis and Linda M. Ellis from
any obligation, action, claim or demands in connection with paragraph 18 of that
certain Lease Agreement between the Corporation and Benny J. Ellis and Linda M.
Ellis, husband and wife, dated November 16, 1994.
5. EXAMINATION OF BOOKS AND RECORDS. The assets, liabilities and
shareholders' equity of the Corporation are shown on the financial statements
thereof, and Buyer warrants that it has inspected the financial statements of
the Corporation for the period ending January 31, 1997, and has been given an
opportunity to inspect the books and records of the Corporation.
6. CLOSING. The consummation of the sale of the Shares of stock (herein
called the "Closing") shall occur at the offices of Tim Gay & Associates, 3200
North Central Avenue, Suite 700, Phoenix, Arizona 85012, on the 14th day of
March, 1997, or at such other place and time mutually agreeable to the parties.
At the Closing, Seller will cause to be delivered to Buyer the certificate of
stock representing Seller's one hundred percent (100%) ownership of the
Corporation.
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7. SURVIVAL OF WARRANTIES. All of the representations, warranties,
covenants, and agreements contained in this Agreement, and in any documents,
certificates, or other instruments delivered by or on behalf of the Seller,
pursuant hereto or in connection with the transaction contemplated hereto, are
true now, will be true at the Closing, and will survive the Closing regardless
of any investigation made by or on behalf of Buyer.
8. MODIFICATION OR WAIVER. No modification of this Agreement shall be
deemed effective unless in writing and signed by the parties hereto, and any
waiver granted shall not be deemed effective unless in writing, executed by the
parties against whom enforcement of the waiver is sought.
9. OPINIONS OF COUNSEL. At the Closing, the respective counsel of each
party shall deliver an opinion to the other party, as follows:
A. Counsel for Seller and the Corporation shall deliver to Buyer an
opinion to the following effect:
a. Seller is a duly organized, validly existing Trust and duly
authorized and empowered to execute, deliver and perform the terms of this
Agreement and the related agreements and documents referred to or
contemplated herein.
b. Corporation is an Arizona corporation in good standing is
duly authorized, validly existing and empowered to execute, deliver and
perform the terms of this Agreement as required by the Corporation and the
related agreements and documents referred to or contemplated herein.
c. The execution, delivery and performance of this Agreement
by the Trust and/or the Corporation and the related agreements and
documents referred to or contemplated herein will not result in the breach
or default under any decree, agreement or indenture, lease or other
instrument binding upon Seller and/or the Corporation, and no consent,
approval or authorization of, or notification or filing with any
governmental authority is required in connection with the execution,
delivery and performance of this Agreement and related agreements and
documents referred to or contemplated herein.
B. Counsel for Buyer shall deliver to Seller an opinion to the
following effect:
a. Buyer is a Delaware corporation in good standing and Buyer
is duly authorized, validly existing and empowered to execute, deliver and
perform the terms of this Agreement and the related agreements and
documents referred to or contemplated herein. Buyer's directors have
properly authorized the Share Purchase Agreement and the purchase of
Seller's Shares.
b. The execution, delivery and performance of this Agreement
and the related agreements and documents referred to or contemplated
herein will not result in the breach or default under any decree,
agreement or indenture, lease or other instrument binding upon Buyer, and
no consent, approval or authorization of, or notification or
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filing with any governmental authority is required in connection with the
execution, delivery and performance of this Agreement and related
agreements and documents referred to or contemplated herein, nor as a
condition of its acquisition of the Shares pursuant hereto.
10. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE. The obligations
of Seller hereunder are, at the option of Seller, subject to compliance with
each of the following conditions, at or prior to the Closing:
A. All representations and warranties of Buyer shall be true and
correct in all material respects on and as of the Closing as though made on and
as of the Closing.
B. All of the terms, covenants and conditions to be complied with
and performed by Buyer on or before the Closing shall have been duly complied
with and performed in all material respects.
C. Buyer shall deliver to Seller all funds required to be paid to
Seller under this Agreement and shall have deposited into an account in the
Corporation's name all funds required to be deposited under this Agreement.
D. Buyer shall sign and deliver to Seller the original of the
Seller's Note.
E. Buyer shall sign and deliver to Tim Gay & Associates the original
of the Fee Note.
F. Buyer shall have delivered to Seller certified copies of
resolutions of its Board of Directors duly authorizing the execution, delivery
and performance of this Agreement and shall have delivered all the documents to
be delivered by Buyer at the Closing, as reasonably requested by Seller.
G. Buyer shall have delivered to Seller an opinion of Buyer's
counsel in form reasonably satisfactory to Seller, in compliance with the
provisions of paragraphs 9.B.a. and 9.B.b. hereof.
11. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE. The obligations
of Buyer hereunder are, at the option of Buyer, subject to compliance with each
of the following conditions, at or prior to the Closing:
A. All representations and warranties of Seller shall be true and
correct in all material respects on and as of the Closing as though made on and
as of the Closing.
B. All of the terms, covenants and conditions to be complied with
and performed by Seller and the Corporation on or before the Closing shall have
been duly complied with and performed in all material respects.
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C. Seller shall have delivered to Buyer the corporate record book
and all stock certificates evidencing the Shares as required to be delivered to
Buyer under this Agreement, duly endorsed for transfer, and all other documents
reasonably requested by Buyer from Seller and the Corporation.
D. Seller and the Corporation shall have delivered to Buyer an
opinion of counsel of Seller and the Corporation in form reasonably satisfactory
to Buyer, in compliance with the provisions of paragraphs 9.A.a., 9.A.b. and
9.A.c. hereof.
E. Seller shall execute a Non-Competition Agreement in form and
substance satisfactory to Buyer.
12. ARBITRATION. In the event any controversy or dispute arises out of or
relating to this Agreement or the breach hereof, each party shall name an
arbitrator within ten (10) days after either party notifies the other in writing
that there is such a dispute or controversy existing and the two (2) arbitrators
shall name a third arbitrator. If either party fails to select an arbitrator
within ten (10) days as required herein, or if the two (2) arbitrators fail to
select a third arbitrator within ten (10) days after both have been appointed,
then the Presiding Judge of the Superior Court of Maricopa County, Arizona,
shall appoint such other arbitrator or arbitrators. The arbitrators shall
conduct all proceedings pursuant to Arizona Revised Statutes, Section 12-1501
through Section 12-1517, and under the auspices of the Rules of the American
Arbitration Association governing commercial transactions then existing, to the
extent that such Rules are not inconsistent with said Statutes and this
Agreement. Judgment upon the award rendered under arbitration may be entered in
any court having jurisdiction. The cost of the arbitration procedure shall be
borne as determined by such arbitration proceeding. The parties agree that the
arbitration procedure provided herein shall be the sole and exclusive remedy to
resolve any controversy or dispute arising hereunder, and that the proper venue
for such arbitration proceeding shall be Maricopa County, Arizona.
13. NOTICES. All notices or other communications required or provided to
be sent by any party hereto shall be in writing and shall be deemed to have been
given upon personal delivery or upon receipt after having been mailed first
class, registered, or certified mail, return receipt requested, postage prepaid,
addressed as follows, or to such other addresses as the parties may specify in
writing from time to time:
If to Corporation: Western Insulated Glass Co.
Attn: Benny J. Ellis, President
5621 S. 25th Street
Phoenix, AZ 85040
with duplicate copies to: Marcella M. Egly Turner, Trustee
7051 N. 23rd Place
Phoenix, AZ 85020
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If to Seller: Marcella M. Egly Turner, Trustee
7051 N. 23rd Place
Phoenix, AZ 85020
with duplicate copies to: William F. Bennett
Bennett, Burke & Carmichael, L.L.P.
6991 E. Camelback Rd., Suite B-111
Scottsdale, AZ 85251
If to Buyer: Forte Computer Easy, Inc.
Attn: George S. Hofmeister, Chairman
100 S. Broadway Ave.
Salem, OH 44460
with duplicate copies to: James E. Phillips
Forte Computer Easy, Inc.
812 Huron Road, Suite 880
Cleveland, OH 44115
If to Ellis: Benny J. Ellis
637 Leah Lane
Gilbert, AZ 85234
14. ENTIRE AGREEMENT. This Agreement and the related documents referred to
herein constitutes the entire agreement between the parties. All terms and
conditions contained in any other writings previously executed by the parties
(except those executed contemporaneously herewith and signed by all parties) and
the sale of the Shares purchased herein shall be deemed to be merged herein and
superseded hereby.
15. MODIFICATION. Any modification of this Agreement or additional
obligation assumed by either party in connection with this Agreement shall be
binding only if evidenced in writing signed by each party or an authorized
representative of each party.
16. NO WAIVER. The failure of either party to this Agreement to insist
upon the performance of any of the terms and conditions of this Agreement, or
the waiver of any breach of any of the terms and conditions of this Agreement,
shall not be construed as thereafter waiving any such terms and conditions, but
the same shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred.
17. ATTORNEY FEES. In the event that any action is filed in relation to
this Agreement, the unsuccessful party in the action shall pay to the successful
party, in addition to all the sums that either party may be called on to pay, a
reasonable sum for the successful party's attorney's fees.
18. EFFECT OF PARTIAL INVALIDITY. The invalidity of any portion of this
Agreement will not and shall not be deemed to affect the validity of any other
provision. In the
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event that any provision of this Agreement is held to be invalid, the parties
agree that the remaining provisions shall be deemed to be in full force and
effect as if they had been executed by both parties subsequent to the
expungement of the invalid provision.
19. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the heirs, personal representatives, successors, and assigns of the
respective parties hereto.
20. APPLICABLE LAW. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Arizona.
21. DESCRIPTIVE HEADINGS. The descriptive headings of the paragraphs of
this Agreement are inserted for convenience only and shall not be used to
explain, control, modify, simplify, or aid in the interpretation of the
provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Share Purchase
Agreement as of the date first above written.
EGLY FAMILY TRUST U/A MAY 31, 1977
"Seller"
By:_______________________________________________
Marcella M. Egly Turner,
Sole Trustee
FORTE COMPUTER EASY, INC.
a Utah corporation
"Buyer"
By:_______________________________________________
Frank J. Amedia, President
WESTERN INSULATED GLASS, CO.,
an Arizona corporation
"Corporation"
By:_______________________________________________
Benny J. Ellis, President
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_______________________________________________
BENNY J. ELLIS, Individually
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