Exhibit 10.1
STOCK PURCHASE AGREEMENT, dated as of March 5, 2003, among
VENTURES-NATIONAL INCORPORATED, a Utah corporation with offices at 1855 Norman
Avenue, Santa Clara, California 95054-2029 ( Purchaser ), COESEN INC., a New
Hampshire corporation (the Corporation ), and HOWARD DOANE, an individual
residing at 56 Whitehall Road, Amesbury, Massachusetts, 01913 ( Seller ).
INTRODUCTION
Purchaser desires to acquire ten (10) shares (the Shares ) of common
stock, par value $0.0 per share, of the Corporation owned by Seller in exchange
for $5,000 (the Purchase Price ), and 30,000 shares of Purchaser s common stock,
par value $0.001 per share and a partial release from Eastern Bank of Seller s
financial liability under certain loan and security agreements and Seller
desires to effect such exchange as hereinafter provided. In a contemporaneous
transaction, Titan PCB East, Inc. a Delaware corporation and subsidiary of the
Purchaser has purchased substantially all of the assets of Eastern Manufacturing
Corporation, a company entirely owned by Seller, from Eastern Bank by secured
party sale.
NOW THEREFORE, in consideration of respective covenants, promises, and
obligations contained herein, the parties hereto hereby agree as follows:
I. REPRESENTATIONS AND WARRANTIES OF SELLER AND THE CORPORATION.
Seller and the Corporation hereby represent and warrant, jointly and
severally, as of the date hereof to Purchaser as follows:
Section 1.01 Organization and Qualification.
The Corporation has no subsidiary or affiliated corporation nor owns
any interest in any other enterprise (whether or not such enterprise is a
corporation). The Corporation is a corporation duly organized, validly existing,
and in good standing under the laws of its jurisdiction of incorporation, with
all requisite power and authority, and all necessary consents, authorizations,
approvals, orders, licenses, certificates, and permits of and from, and
declarations and filings with, all federal, state, local, and other governmental
authorities and all courts and other tribunals, to own, lease, license, and use
its respective properties and assets and to carry on the business in which it is
now engaged and the respective business in which it contemplates engaging. The
Corporation is duly qualified to transact the business in which it is engaged
and is in good standing as a foreign corporation in every jurisdiction in which
its ownership, leasing, licensing, or use of property or assets or the conduct
of its business makes such qualification necessary.
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Section 1.02 Capitalization.
The authorized capital stock of the Corporation consists of 30 shares
of common stock, par value $0.0 per share ( Corporation Common Stock ), of which
30 shares are outstanding. Each of such outstanding shares of the Corporation
Common Stock is validly authorized, validly issued, fully paid, and
nonassessable, has not been issued and is not owned or held in violation of any
preemptive or similar right of stockholders, and is owned of record and
beneficially solely by Seller, free and clear of all liens, security interests,
pledges, charges, encumbrances, stockholders agreements, and voting trusts.
There is no commitment, plan, or arrangement to issue, and no outstanding
option, warrant, or other right calling for the issuance of, any share of
capital stock of the Corporation or any security or other instrument convertible
into, exercisable for, or exchangeable for capital stock of the Corporation.
There is outstanding no security or other instrument convertible into or
exchangeable for capital stock of the Corporation.
Section 1.03 Financial Condition.
The fair market value of the assets of the Corporation exceed the
liabilities thereof. Since inception, the Company has operated profitably. The
Corporation has not authorized, declared, paid, or effected any dividend or
liquidating or other distribution in respect of its capital stock or any direct
or indirect redemption, purchase, or other acquisition of any stock of the
Corporation. The operations and business of the Corporation have been conducted
in all respects only in the ordinary course. There has been no accepted purchase
order or quotation, arrangement, or understanding for future sale of the
products or services of the Corporation which the Corporation or Seller expect
will not be profitable. The Corporation has not suffered an extraordinary loss
(whether or not covered by insurance) or waived any right of substantial value.
The Corporation has not paid or incurred any tax, other liability, or expense
resulting from the preparation of, or the transactions contemplated by, thi
Agreement, it being understood that Seller shall have paid or will pay all such
taxes (including any stock transfer taxes resulting from this Agreement or the
transactions contemplated hereby), liabilities, and expenses. There is no fact
known to the Corporation or Seller which materially adversely affects or in the
future (as far as the Corporation or Seller can foresee) may materially
adversely affect the financial condition, results of operations, business,
properties, assets, liabilities, or future prospects of the Corporation;
provided, however, that the Corporation and Seller express no opinion as to
political or economic matters of general applicability.
Section 1.04 Tax and Other Liabilities.
The Corporation has no liability of any nature, accrued or contingent,
including without limitation liabilities for federal, state, local, or foreign
taxes and penalties, interest, and additions to tax ( Taxes ) and liabilities to
customers or suppliers. The execution, delivery, and performance of this
Agreement by the Corporation will not cause any Taxes to be payable (other than
by Seller) or cause any lien, charge, or encumbrance to secure any Taxes to be
created either immediately or upon the nonpayment of any Tax (other than on the
properties or assets of Seller). The Corporation has filed all federal, state,
local, and foreign tax returns required to be filed by it; has delivered to
Purchaser a true and correct copy of each such return which was filed in the
past six years; has paid (or has established on the last Corporation balance
sheet a reserve for) all Taxes, assessments, and other governmental charges
payable or remittable by it or levied upon it or its properties, assets, inco or
franchises which are due and payable; and has delivered to Purchaser a true and
correct copy of any report as to adjustments received by it from any taxing
authority during the past six years and a statement as to any litigation,
governmental or other proceeding (formal or informal), or investigation pending,
threatened, or in prospect with respect to any such report or the subject matter
of such report.
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Section 1.05 Litigation and Claims.
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending, threatened, or in
prospect (or any basis therefor known to the Corporation or Seller) with respect
to the Corporation, Seller, or any of its or his respective businesses,
properties or assets. The Corporation is not affected by any present or
threatened strike or other labor disturbance nor, to the knowledge of the
Corporation, or Seller, is any union attempting to represent any employee of the
Corporation as collective bargaining agent. The Corporation is not in violation
of, or in default with respect to, any law, rule, regulation, order, judgment,
or decree; nor is the Corporation or Seller required to take any action in order
to avoid such violation or default.
Section 1.06 Properties.
The Corporation owns no real property. The Corporation has good title
to all personal properties and assets used in its business or owned by it, free
and clear of all liens, mortgages, security interests, pledges, charges, and
encumbrances.
(a) Attached as Schedule 1.06 is a true and complete list of properties
and assets owned by the Corporation or leased or licensed by the Corporation
from or to a third party (including inventory but not including Intangibles, as
defined in Section 1.09). All real and other tangible properties and assets
owned, leased, or licensed by the Corporation or are in good and usable
condition (reasonable wear and tear which is not such as to affect adversely the
operation of the business of the Corporation excepted).
(b) No state of facts relating to the actions or inaction of another
person or entity or his or its ownership, leasing, licensing, or use of any real
or personal property exists or will exist which would prevent, the continued
effective ownership, leasing, licensing, or use of such real property in the
business in which the Corporation is now engaged or the business in which it
contemplates engaging.
(c) The properties and assets (including Intangibles) owned by the
Corporation or leased or licensed by the Corporation from a third party
constitute all such properties and assets which are necessary to the business of
the Corporation as presently conducted or as it contemplates conducting.
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Section 1.07 Contracts and Other Instruments.
Set forth in Schedule 1.07 hereto is a true and correct list of all
material contracts, agreements, instruments, leases, licenses, arrangements, or
understandings of, or with respect to, the Corporation. The Corporation has
furnished to Purchaser (i) its certificate of incorporation (or other charter
document) and bylaws and all amendments thereto presently in effect, certified
by the Secretary of the Corporation, and (ii) true and correct copies of all
contracts, agreements, and instruments referred to in Schedule 1.07 hereto.
Neither the Corporation, Seller, nor any other party to any such contract,
agreement, instrument, lease, or license is now or expects in the future to be
in violation or breach of, or in default with respect to complying with, any
material term thereof, and each such contract, agreement, instrument, lease, or
license is in full force and is the legal, valid, and binding obligation of the
parties thereto and (subject to applicable bankruptcy, insolvency, and other l
affecting the enforceability of creditors rights generally) is enforceable as to
them in accordance with its respective terms. Each such supply, distribution,
agency, financing, or other arrangement or understanding is a valid and
continuing arrangement or understanding; neither the Corporation, nor any other
party to any such arrangement or understanding has given notice of termination
or taken any action inconsistent with the continuance of such arrangement or
understanding; and the execution, delivery, and performance of this Agreement
will not prejudice any such arrangement or understanding in any way. The
Corporation enjoys peaceful and undisturbed possession under all leases and
licenses under which it is operating. The Corporation is not a party to or bound
by any contract, agreement, instrument, lease, license, arrangement, or
understanding, or subject to any charter or other restriction, which has had or
may in the future have a material adverse effect on the financial condition,
results of operations, business, properties, assets, liabilities, or future
prospects of the Corporation. The stock ledgers and stock transfer books and the
minute book records of the Corporation relating to all issuances and transfers
of stock by the Corporation and all proceedings of the stockholders and the
Board of Directors and committees thereof of the Corporation since their
respective incorporations made available to Purchaser are the original stock
ledgers and stock transfer books and minute book records of the Corporation or
exact copies thereof. The Corporation is not in violation or breach of, or in
default with respect to, any term of its certificate of incorporation (or other
charter document) or by-laws. The Corporation is not a member of a customer or
user organization or of a trade association.
Section 1.08 Employees.
(a) The Corporation has no, and does not contribute to, any pension,
profit-sharing, option, other incentive plan, or any other type of Employee
Benefit Plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ( ERISA )), and has any obligation to or
customary arrangement with employees for bonuses, incentive compensation,
vacations, severance pay, insurance, or other benefits.
(b) The Corporation does not currently contribute to and since
September 16, 1980 has not effectuated either a complete or partial withdrawal
from any multiemployer Pension Plan within the meaning of Section 3(37) of
ERISA.
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Section 1.09 Patents, Trademarks, Etc.
The Corporation owns or possesses sufficient legal rights to all
intellectual property, including, without limitation, any patent, patent
application, trademark, trademark application, trade secret, trade name, service
mark, copyright, franchise, right to apply for any of the foregoing or other
intangible property or asset (all of the foregoing being herein called
Intangibles ) necessary for the conduct of its business as now conducted and as
proposed to be conducted without any conflict with, or infringement of, the
rights of others in any material respect. The Corporation does not own or have
pending, or is licensed under, any Intangibles, other than as described in
Schedule 1.09, all of which are in good standing and uncontested. Schedule 1.09
accurately sets forth all Intangibles owned by the Corporation, and all
Intangibles licensed by the Corporation from or to a third party, and a
description of such license. Except as set forth on Schedule 1.09, there are no
outstanding options, licenses, or agreements of any kind relating to the
Intangibles, nor is the Corporation bound by or a party to any options, licenses
or agreements of any kind with respect to the Intangibles of any other person or
entity other than such licenses or agreements arising from the purchase of off
the shelf or standard commercial products. Neither Seller, any director,
officer, or employee of the Corporation, any relative or affiliate of Seller or
of any such director, officer, or employee, nor any other corporation or
enterprise in which Seller, any such director, officer, or employee, or any such
relative or affiliate had or now has a 5% or greater equity or voting or other
substantial interest, possesses any Intangible which relates to the business of
the Corporation. There is no right under any Intangible necessary to the
business of the Corporation as presently conducted or as it contemplates
conducting, except such as are so designated in Schedule 1.09. The Corporation
has not infringed, is not infringing, or has not received notice of infringement
with asserted Intangibles of others. To the knowledge of the Corporation, or
Seller, there is no infringement by others of Intangibles of the Corporation.
There is no Intangible of others which may materially adversely affect the
financial condition, results of operations, business, properties, assets,
liabilities, or future prospects of the Corporation.
Section 1.10 Authority to Sell.
The Corporation and Seller have all requisite power and authority to
execute, deliver, and perform this Agreement. All necessary corporate
proceedings of the Corporation have been duly taken to authorize the execution,
delivery, and performance of this Agreement. This Agreement has been duly
authorized, executed, and delivered by the Corporation, has been duly executed
and delivered by Seller, constitutes the legal, valid, and binding obligation of
the Corporation and Seller, and is enforceable as to them in accordance with its
terms. No consent, authorization, approval, order, license, certificate, or
permit of or from, or declaration or filing with, any federal, state, local, or
other governmental authority or any court or other tribunal is required by the
Corporation, or Seller for the execution, delivery, or performance of this
Agreement by the Corporation or Seller. No consent of any party to any contract,
agreement, instrument, lease, license, arrangement, or understanding to which
Corporation, or Seller is a party, or to which it or he or any of its or his
respective businesses, properties, or assets are subject, is required for the
execution, delivery, or performance of this Agreement (except such consents
referred to in Schedule 1.10 hereto); and the execution, delivery, and
performance of this Agreement will not (if the consents referred to in Schedule
1.10 are obtained prior to the Closing) violate, result in a breach of, conflict
with, or (with or without the giving of notice or the passage of time or both)
entitle any party to terminate or call a default under, entitle any party to
rights and privileges that such party was not receiving or entitled to receive
immediately before this Agreement was executed under, or create any obligation
on the part of the Corporation that it was not paying or obligated to pay
immediately before this Agreement was executed under, any term of any such
contract, agreement, instrument, lease, license, arrangement, or understanding,
or violate or result in a breach of any term of the certificate of incorporation
(or other charter document) or by-laws of the Corporation, or, violate, result
in a breach of, or conflict with any law, rule, regulation, order, judgment, or
decree binding on the Corporation, or Seller or to which it or he or any of its
or his respective businesses, properties, or assets are subject. Upon the
Closing, Purchaser will have good title to all the capital stock of the
Corporation held by Seller, free and clear of all liens, security interests,
pledges, charges, encumbrances, stockholders agreements, and voting trusts.
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Section 1.11 Completeness of Disclosure.
No representation or warranty by Seller or the Corporation in this
Agreement contains, or on the date of the Closing will contain, an untrue
statement of material fact or omits, or on the date of the Closing will omit, to
state a material fact required to be stated therein or necessary to make the
statements made therein not misleading.
Section 1.12 Validity of Shares; No Additional Equity Interest.
The Shares are validly authorized and issued, fully paid, and
nonassessable. Other than the Shares, Seller holds no beneficial ownership
equity interest, direct or indirect, derivative or non-derivative, in the
Corporation.
II. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
Section 2.01 Organization and Qualification.
Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of its respective jurisdiction of incorporation,
with all requisite power and authority, and all necessary consents,
authorizations, approvals, orders, licenses, certificates, and permits of and
from, and declarations and filings with, all federal, state, local, and other
governmental authorities and all courts and other tribunals, to own, lease,
license, and use its respective properties and assets and to carry on the
respective business in which it is now engaged and the respective business in
which it contemplates engaging. Purchaser is duly qualified to transact the
respective business in which it is engaged and is in good standing as a foreign
corporation in every jurisdiction in which its ownership, leasing, licensing, or
use of property or assets or the conduct of its business makes such
qualification necessary.
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Section 2.02 Authority to Buy.
Purchaser has all requisite corporate power and authority to execute,
deliver, and perform this Agreement. All necessary corporate proceedings of
Purchaser have been duly taken to authorize the execution, delivery, and
performance of this Agreement. This Agreement has been duly authorized,
executed, and delivered by Purchaser, is the legal, valid, and binding
obligation of Purchaser, and is enforceable as to Purchaser in accordance with
its terms.
III. PURCHASE AND SALE OF THE SHARES.
Section 3.01 Terms of the Sale.
On the basis of the representations, warranties, covenants, and
agreements contained in this Agreement and subject to the terms and conditions
of this Agreement:
(a) Seller shall sell, assign, transfer and convey to Purchaser at the
Closing, the Shares. Seller shall deliver at the Closing certificates
representing the Shares duly endorsed in blank or accompanied by stock powers
duly endorsed in blank, in each case in proper form for transfer, with all stock
transfer and any other required documentary stamps affixed thereto.
(b) In consideration for the Shares, Purchaser shall deliver the
Purchase Price to Seller, by check payable to the order of Purchaser or by wire
transfer of immediately available funds to an account designated by Purchaser to
Seller in writing.
Section 3.02 The Closing.
The closing of the transactions contemplated by this Agreement shall
take place at the offices of Reitler Brown LLC, 800 Third Avenue, 21st Floor,
New York, New York 10022, at 9:00 a.m., local time, on March 5, 2003. The
closing may occur at such different place, such different time, or such
different date or a combination thereof as Purchaser and Seller agree in
writing. The closing of the transactions contemplated by this Agreement is
herein called the Closing. If the Closing shall not take place by the close of
business on such date, then the parties not at fault shall, in addition to all
other rights and remedies available at law or in equity against the defaulting
parties, have the right to cancel and terminate this Agreement.
Section 3.03 Closing Conditions
The obligations of the Purchaser under Section 3.01 to be performed at
the Closing shall be subject to satisfaction of the following conditions:
(a) The resignation of the Seller as director of the Corporation; and
(b) The appointment of David M. Marks as a director of the Corporation.
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Section 3.04 Indemnity Against Liabilities.
Seller and the Corporation agree to indemnify and hold harmless
Purchaser and its respective officers, directors, employees, counsel, agents,
and stockholders, in each case past, present, or as they may exist at any time
after the date of this Agreement, and each person, if any, who controls,
controlled, or will control any of them within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as
amended (the Exchange Act ) (the Indemnities ), against any and all losses,
liabilities, damages, and expenses whatsoever (which shall include counsel fees
and any and all expenses whatsoever incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation) as and when incurred arising out of, based upon, or in connection
with (a) any breach of any representation, warranty, covenant, or agreement of
the Corporation or Seller contained in this Agreement, and (b), if the Closing
takes place, any act, alleged act, omission, or alleged omission occurring at or
prior to the Closing (including without limitation any which arise out of, are
based upon, or are in connection with any of the transactions contemplated
hereby).
The foregoing agreement to indemnify shall be in addition to any
liability the Corporation or Seller may otherwise have, including liabilities
arising under this Agreement.
IV. MISCELLANEOUS
Section 4.01 Further Actions.
At any time and from time to time, each party agrees, at its or his
expense, to take such actions and to execute and deliver such documents as may
be reasonably necessary to effectuate the purposes of this Agreement.
Section 4.02 Availability of Equitable Remedies.
Since a breach of the provisions of this Agreement could not adequately
be compensated by money damages, any party shall be entitled, either before or
after the Closing, in addition to any other right or remedy available to it, to
an injunction restraining such breach or a threatened breach and to specific
performance of any such provision of this Agreement, and in either case no bond
or other security shall be required in connection therewith, and the parties
hereby consent to the issuance of such an injunction and to the ordering of
specific performance.
Section 4.03 Survival.
The covenants, agreements, representations, and warranties contained in
or made pursuant to this Agreement shall survive the Closing irrespective of any
investigation made by or on behalf of any party. The statements contained in any
document executed by the Corporation or Seller relating hereto or delivered to
Purchaser in connection with the transactions contemplated hereby or thereby, or
in any statement, certificate, or other instrument delivered by or on behalf of
the Corporation or Seller pursuant hereto or thereto or delivered to Purchaser
in connection with the transactions contemplated hereby or thereby shall be
deemed representations and warranties, covenants and agreements, or conditions,
as the case may be, of Seller hereunder for all purposes of this Agreement
(including all statements, certificates, or other instruments delivered pursuant
hereto or thereto or delivered in connection with the transactions contemplated
hereby or thereby).
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Section 4.04 Modification.
This Agreement and the Schedules hereto set forth the entire
understanding of the parties with respect to the subject matter hereof (except
as provided in Section 4.03), supersede all existing agreements among them
concerning such subject matter, and may be modified only by a written instrument
duly executed by each party with the approval of the Board of Directors of each
corporate party.
Section 4.05 Notices.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested (or by the most nearly comparable method if mailed from or to
a location outside of the United States) or by Federal Express, Express Mail, or
similar overnight delivery or courier service or delivered (in person or by
telecopy, telex, or similar telecommunications equipment) against receipt to the
party to whom it is to be given at the address of such party set forth in the
preamble to this Agreement (or to such other address as the party shall have
furnished in writing in accordance with the provisions of this Section 4.05)
with a copy to each of the other parties hereto. Any notice given to any
corporate party shall be addressed to the attention of the Corporate Secretary.
Notice to the estate of any party shall be sufficient if addressed to the party
as provided in this Section 4.05. Any notice or other communication given by
certified mail (or by such comparable method) shall be deemed given at the time
of certification thereof (or comparable act), except for a notice changing a
party s address which will be deemed given at the time of receipt thereof. Any
notice given by other means permitted by this Section 4.05 shall be deemed given
at the time of receipt thereof. A copy of any and all notices to Purchaser shall
be delivered in accordance with this section to Reitler Brown LLC, 800 Third
Avenue, 21st Floor, New York, New York 10022, Attention: Robert Steven Brown,
Esq.
Section 4.06 Waiver.
Any waiver by any party of a breach of any term of this Agreement shall
not operate as or be construed to be a waiver of any other breach of that term
or of any breach of any other term of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on one or more
occasions will not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement. Any waiver must be in writing.
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Section 4.07 Binding Effect.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the Corporation and Seller and their respective successors and
assigns and Purchaser and its assigns, heirs, and personal representatives, and
shall inure to the benefit of each Indemnitee and its successors and assigns (if
not a natural person) and his assigns, heirs, and personal representatives (if a
natural person).
Section 4.08 No Third Party Beneficiaries.
This Agreement does not create, and shall not be construed as creating,
any rights enforceable by any person not a party to this Agreement (except as
provided in Sections 3.04 and 4.08 hereof).
Section 4.09 Separability.
If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
Section 4.10 Headings.
The headings in this Agreement are solely for convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
Section 4.11 Counterparts; Governing Law.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by and construed in accordance
with the laws of New York, without giving effect to conflict of laws.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
VENTURES-NATIONAL INCORPORATED
By: /s/ David M. Marks
-------------------------------------
Name: David Marks
Title: Chairman
HOWARD DOANE
/s/ Howard Doane
-------------------------------------
COESEN INCORPORATED
By: /s/ Joseph Thoman
-------------------------------------
Name: Joseph Thoman
Title: Vice President
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