STOCK
PURCHASE AGREEMENT
THIS
STOCK PURCHASE AGREEMENT (this “Agreement”),
dated
as of June 2, 2008, is made by and among Garisch Financial, Inc., an Illinois
corporation (the “Seller”)
and
Mr. Glenn L. Halpryn, individually and as agent for certain investors (the
“Purchaser”).
RECITALS
WHEREAS,
Seller is the sole record and beneficial owner of 5,500,000 shares (the
“Shares”)
of the
common stock, par value $0.0001 per share (the “Common
Stock”),
of
QuikByte Software, Inc., a Colorado corporation (the “Company”);
and
WHEREAS,
the Purchaser desires to acquire the Shares from the Seller, and the Seller
desire to sell the Shares to the Purchaser, in the manner and on the terms
and
conditions hereinafter set forth; and
WHEREAS,
in connection with the Purchaser’s purchase of the Shares, the Purchaser and the
Seller desire to establish certain rights and obligations between
themselves.
AGREEMENTS
NOW,
THEREFORE, in consideration of these premises, the mutual covenants and
agreements herein contained and for other good and valuable consideration,
the
sufficiency and receipt of which are hereby acknowledged, the Seller and
the
Purchaser hereby agree as follows:
SECTION
I DEFINITIONS.
The
following terms when used in this Agreement have the following respective
meanings:
“1933
Act”
means
the Securities Act of 1933, as amended.
“1934
Act”
means
the Securities Exchange Act of 1934, as amended.
“Affiliate”
means
with respect to any Person, any (i) officer, director, partner or holder
of more
than 10% of the outstanding shares or equity interests of such Person,
(ii) any
relative of such Person, or (iii) any other Person which directly or indirectly
controls, is controlled by, or is under common control with such Person.
A
Person will be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of the “Controlled”
Person,
whether through ownership of voting securities, by contract, or
otherwise.
“Acquisition
Proposal”
means
any offer or proposal for, or indication of interest in, any acquisition
of all
or a portion of the Shares or any other assets or securities of the Company,
whether by way of a purchase, merger, consolidation or other business
combination.
“Assignee
List”
has
the
meaning set forth in Section
3.3(b)
hereof.
“Business
Day”
means
a
day other than Saturday, Sunday or statutory holiday in the State of New
York
and in the event that any action to be taken hereunder falls on a day which
is
not a Business Day, then such action shall be taken on the next succeeding
Business Day.
“Closing
Date”
has
the
meaning set forth in Section 3.1
hereof.
“Closing”
has
the
meaning set forth in Section 3.1
hereof.
Execution
Copy
“Common
Stock”
has
the
meaning set forth in the recitals hereto.
“Company”
has
the
meaning set forth in the recitals hereto.
“Company
Release”
has
the
meaning set forth in Section 3.3(d) hereof.
“Encumbrances”
shall
have the meaning as used in Section 4.1(b)
hereof.
“End
Date”
has the
meaning set forth in Section 7.1(b)(i) hereof.
“Garisch
Release”
has
the
meaning set forth in Section 3.2(d) hereof.
“Governmental
Authority”
means
the United States, any state or municipality, the government of any foreign
country, any subdivision of any of the foregoing, or any authority, department,
commission, board, bureau, agency, court, or instrumentality of any of
the
foregoing.
“Knowledge”
means,
as to the Seller, the actual knowledge of the Seller or its Affiliates
after due
and diligent inquiry, and, as to the Purchaser, the actual knowledge of
the
Purchaser or its Affiliates after due and diligent inquiry.
“Lien”
means
any mortgage, lien, pledge, security interest, easement, conditional sale
or
other title retention agreement, or other encumbrance of any kind.
“Person”
means an
individual, corporation, limited liability company, partnership, joint
venture,
trust, unincorporated organization, or Governmental Authority.
“Purchase
Price”
means
Seventy-Three Thousand Seven Hundred Twenty-Six Dollars and Fifty-Four
Cents
($73,726.54).
“Registration
Rights Agreement”
has
the
meaning set forth in Section 5.5 hereof.
“SEC”
means
the Securities and Exchange Commission.
“Shares”
shall
have the meaning set forth in the recitals hereto.
“Tax”
or
“Taxes”
means
any and all federal, state, local and foreign taxes, including, without
limitation, gross receipts, income, profits, sales, use, occupation, value
added, ad valorem, transfer, franchise, withholding, payroll, recapture,
employment, excise and property taxes, assessments, governmental charges
and
duties together with all interest, penalties and additions imposed with
respect
to any such amounts and any obligations under any agreements or arrangements
with any other person with respect to any such amounts and including any
liability of a predecessor entity for any such amounts.
SECTION
II PURCHASE
AND SALE OF COMMON STOCK.
2.1
Purchase
of Common Stock.
At the
Closing, based upon the representations, warranties, covenants and agreements
of
the parties set forth in this Agreement, the Seller shall sell to the Purchaser,
and the Purchaser shall purchase from the Seller, the Shares.
2.2
Payment
for Common Stock.
At the
Closing Date, for all of the Shares, the Purchaser shall pay to the Seller
the
Purchase Price. The Purchaser will pay the Purchase Price by wire transfer
of
immediately available funds to an account designated in writing by the
Seller.
Execution
Copy
SECTION
III THE
CLOSING.
3.1
Closing.
The closing of the sale of the Shares pursuant to Section 2.1
hereof
and certain of the other transactions contemplated hereby (the “Closing”)
will
take place at the offices of the Purchaser located at 4400 Biscayne Boulevard,
Suite 950, Miami, Florida 33137 on the next business day (or such later
date as
the parties hereto may agree) following the satisfaction or waiver of the
conditions set forth in Section
VI
hereof
(the “Closing
Date”),
or at
such other time or place as the parties mutually agree.
3.2
Deliveries
by the Seller. At the Closing, the Seller shall deliver or cause to be
delivered to the Purchaser the following items (in addition to any other
items
required to be delivered to the Purchaser pursuant to any other provision
of
this Agreement):
(a) original
certificates representing the Shares being sold by the Seller to the Purchaser
pursuant to Section 2.1
hereof,
duly recorded on the books of the Company, along with stock powers for
such
certificates executed in blank;
(b) minutes
of a meeting of the Board of Directors of the Seller, or a written consent
in
lieu thereof, authorizing the Seller’s entrance into this Agreement and the
transfer of the Shares to the Purchaser as contemplated herein;
(c) a
certificate of the Secretary of State of the State of Illinois as to the
good
standing of the Seller dated within five days prior to the Closing
Date;
(d) a
full
and complete release by the Seller of the Company from any and all liabilities,
claims and obligations arising prior to the Closing that the Seller may
have
against the Company, in a form reasonably acceptable to the Purchaser (the
“Garisch
Release”);
(e) an
opinion of counsel to the Seller or the Company regarding the validity
of the
transfer of the Shares, in form and substance satisfactory to the Company’s
transfer agent, if such an opinion is required or requested by the transfer
agent; and
(f) a
full
and complete release, executed by both the Seller and KI Equity Partners
V, LLC,
a Delaware limited liability company (“KI
Equity”),
of
the Company’s obligations under that certain Agreement, dated as of March 26,
2007, by and between the Seller, KI Equity and the Company.
3.3
Deliveries
by the Purchaser. At the Closing, the Purchaser shall deliver or cause to be
delivered to the Seller the following items (in addition to any other items
required to be delivered to the Seller pursuant to any other provision
of this
Agreement):
(a) payment
by wire transfer of immediately available funds necessary to satisfy the
Purchaser’s obligations to the Seller under Section 2.2
hereof
and to result in payment to the Seller of the Purchase Price;
(b) a
list of
the names of any assignees of any of the Purchaser’s rights under this Agreement
(the “Assignee
List”);
(c) an
executed copy of each assignment agreement between the Purchaser and each
assignee thereto, substantially in the form of the assignment agreement
attached
hereto as Exhibit
A;
Execution
Copy
(d) a
release
by the Company of the Seller from any and all liabilities, claims and
obligations arising prior to the Closing that the Company may have against
the
Seller (the “Company
Release”),
provided,
however,
that
the Company shall not release the Seller from any liabilities, claims or
obligations arising from fraud committed by the Seller.
SECTION
IV REPRESENTATIONS
AND WARRANTIES.
4.1
Representations
and Warranties of the Seller. In order to induce the Purchaser to purchase
the
Shares that it is purchasing hereunder, the Seller represents and warrants
to
the Purchaser that:
(a) Capacity
of the Seller; Authorization; Execution of Agreements.
The
Seller has all requisite power, authority and capacity to enter into this
Agreement and to perform the transactions and obligations to be performed
by it
hereunder. The execution and delivery of this Agreement by the Seller,
and the
performance by the Seller of the transactions and obligations contemplated
hereby, including, without limitation, the sale of the Shares to the Purchaser
hereunder, have been duly authorized by all requisite action of the Seller.
This
Agreement has been duly executed and delivered by a duly authorized officer
of
the Seller and constitutes a valid and legally binding agreement of the
Seller,
enforceable in accordance with its terms, except as enforcement thereof
may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar
laws of the United States (both state and federal), affecting the enforcement
of
creditors’ rights or remedies in general from time to time in effect and the
exercise by courts of equity powers or their application of principles
of public
policy.
(b) Title
to Shares.
The
Seller is the sole record and beneficial owner of the Shares and has sole
managerial and dispositive authority with respect to the Shares. The Seller
has
not granted any person a proxy with respect to the Shares that has not
expired
or been validly withdrawn. The sale and delivery by the Seller of the Shares
to
the Purchaser pursuant to this Agreement will vest in the Purchaser legal
and
valid title to the Shares, free and clear of all Liens, security interests,
adverse claims or other encumbrances of any character whatsoever (“Encumbrances”)
(other
than Encumbrances created by the Purchaser and restrictions on the resale
of the
Shares under applicable securities laws).
(c) Brokers,
Finders, and Agents.
The
Seller is not, directly or indirectly, obligated to anyone acting as broker,
finder or in any other similar capacity in connection with this Agreement
or the
transactions contemplated hereby. No Person has or, immediately following
the
consummation of the transactions contemplated by this Agreement, will have,
any
right, interest or valid claim against the Company, the Seller or the Purchaser
for any commission, fee or other compensation as a finder or broker in
connection with the transactions contemplated by this Agreement, nor are
there
any brokers’ or finders’ fees or any payments or promises of payment of similar
nature, however characterized, that have been paid or that are or may become
payable in connection with the transactions contemplated by this Agreement,
as a
result of any agreement or arrangement made by the Seller.
(d) Disclosure.
All
Schedules to this Agreement, furnished by or on behalf of the Seller are
true
and correct in all material respects and as otherwise contemplated in this
Agreement and do not contain any untrue statement of a material fact or
omit to
state any material fact necessary in order to make the statements made
therein
not misleading. The Seller acknowledges and agrees that the Purchaser does
not
make or has not made (i) any representations or warranties with respect
to the
transactions contemplated hereby other than those specifically set forth
in
Section 4.2
or (ii)
any statement, commitment or promise to the Seller or any of its representatives
which is or was an inducement to the Seller to enter into this Agreement,
other
than as set forth in this Agreement.
Execution
Copy
4.2
Representations
and Warranties of the Purchaser.
The
Purchaser hereby represents and warrants to the Seller that:
(a) Investment
Intent.
The
Shares being purchased hereunder by the Purchaser and the investors for
whom the
Purchaser is acting as agent are being purchased for their own account
and are
not being purchased with the view to, or for resale in connection with,
any
distribution or public offering thereof within the meaning of the 1933
Act. The
Purchaser understands that such Shares have not been registered under the
1933
Act by reason of their issuance in a transaction exempt from the registration
and prospectus delivery requirements of the 1933 Act pursuant to Section
4(2)
thereof and/or the provisions of Rule 506 of Regulation D promulgated
thereunder, and under the securities laws of applicable states and agrees
to
deliver to the Seller, if requested by the Seller, an investment letter
in
customary form. The Purchaser further understands that the certificates
representing such Shares bear a legend substantially similar to the following
and agrees that it will hold such Shares subject thereto:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS.
NEITHER
THIS SECURITY NOR ANY PORTION HEREOF OR INTEREST HEREIN MAY BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED
UNDER SAID ACTS AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION
FROM
SUCH REGISTRATION IS AVAILABLE AND THE COMPANY SHALL HAVE RECEIVED, AT
THE
EXPENSE OF THE HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY
TO THE COMPANY (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY).
(b) Capacity
of the Purchaser; Execution of Agreement.
The
Purchaser has all requisite power, authority, and capacity to enter into
this
Agreement and to perform the transactions and obligations to be performed
by it
hereunder. The execution and delivery of this Agreement, and the performance
by
the Purchaser of the transactions and obligations contemplated hereby have
been
duly authorized by all requisite corporate or individual, as the case may
be,
action of the Purchaser . This Agreement has been duly executed and delivered
by
the Purchaser and constitutes a valid and legally binding agreement of
the
Purchaser, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or
other similar laws, both state and federal, affecting the enforcement of
creditors’ rights or remedies in general from time to time in effect and the
exercise by courts of equity powers or their application of principles
of public
policy.
(c) Accredited
Investor.
The
Purchaser and the investors for whom the Purchaser is acting as agent are
each
an “accredited
investor”
as
defined in Rule 501(a) of Regulation D promulgated under the 1933
Act.
(d) Suitability
and Sophistication.
The
Purchaser has (i) such knowledge and experience in financial and business
matters that it is capable of independently evaluating the risks and merits
of
purchasing the Shares it is purchasing; (ii) independently evaluated the
risks
and merits of purchasing such Shares and has independently determined that
the
Shares are a suitable investment for it; and (iii) sufficient financial
resources to bear the loss of its entire investment in such Shares. The
Purchaser has had an opportunity to review: the Company’s Annual Report on Form
10-K for the year ended December 31, 2007 and the Company’s quarterly report on
Form 10-Q for the period ended March 31, 2008 and other filings made by the
Company under Section 13 or Section 15(d) of the Exchange Act since July
14,
2006.
Execution
Copy
(e) Brokers,
Finders, and Agents.
The
Purchaser is not, directly or indirectly, obligated to anyone acting as
broker,
finder, or in any other similar capacity in connection with this Agreement
or
the transactions contemplated hereby. No Person has or, immediately following
the consummation of the transactions contemplated by this Agreement, will
have,
any right, interest or valid claim against the Company, the Seller or the
Purchaser for any commission, fee or other compensation as a finder or
broker in
connection with the transactions contemplated by this Agreement, nor are
there
any brokers’ or finders’ fees or any payments or promises of payment of similar
nature, however characterized, that have been paid or that are or may become
payable in connection with the transactions contemplated by this Agreement,
as a
result of any agreement or arrangement made by the Purchaser.
(f) Nationality;
Residence.
The
Purchaser is a citizen of the United States of America and a resident of,
or
organized within, the State of Florida.
4.3
Rule144.
The Purchaser acknowledges that the Shares it will be purchasing must be
held
indefinitely unless subsequently registered under the 1933 Act or unless
an
exemption from such registration is available. The Purchaser is aware of
the
provisions of Rule 144 promulgated under the 1933 Act which permit limited
resale of shares purchased in a private placement subject to the satisfaction
of
certain conditions, including, among other things, the satisfaction of
all the
requirements under Rule 144(i)(2), the availability of certain current
public
information about the Company, the resale occurring not less than six months
after a party has purchased and paid for the security to be sold, the sale
being
effected through a “broker’s
transaction”
or
in
transactions directly with a “market
maker”
and
the
number of shares being sold during any three-month period not exceeding
specified limitations.
SECTION
V COVENANTS
OF THE PARTIES.
5.1
Commercially
Reasonable Efforts. Subject to the terms and conditions hereof, each party
will use commercially reasonable efforts to take, or cause to be taken,
all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate the transactions
contemplated by this Agreement as promptly as practicable after the date
hereof,
including (i) preparing and filing as promptly as practicable all documentation
to effect all necessary applications, notices, petitions, filings, tax
ruling
requests and other documents and to obtain as promptly as practicable all
consents, waivers, licenses, orders, registrations, approvals, permits,
tax
rulings and authorizations necessary or advisable to be obtained from any
Person
and/or any Governmental Authority in order to consummate any of the transactions
contemplated by this Agreement, (ii) executing and delivering such other
documents, instruments and agreements as any party hereto shall reasonably
request, and (iii) taking all reasonable steps as may be necessary to obtain
all
such material consents, waivers, licenses, registrations, permits,
authorizations, tax rulings, orders and approvals. Notwithstanding the
foregoing, in no event shall any party have any obligation, in order to
consummate the transactions contemplated hereby, to (a) take any action(s)
that
would result in a material adverse change in the benefits to the Seller
on the
one hand or to the Purchaser on the other of this Agreement, or (b) dispose
of
any material assets or make any material change in its business other than
as
contemplated by this Agreement, or (c) expend any material amount of funds
or
otherwise incur any material burden other than those contemplated by this
Agreement.
5.2
Certain
Filings; Cooperation in Receipt of Consents.
(a) The
Seller and the Purchaser shall reasonably cooperate with one another in
(i)
determining whether any other action by or in respect of, or filing with,
any
Governmental Authority is required, or any actions, consents, approvals
or
waivers are required to be obtained from parties to any material contracts,
in
connection with the consummation of the transactions contemplated hereby,
and
(ii) taking or seeking any such other actions, consents, approvals or waivers
or
making any such filings, furnishing information required in connection
therewith. Each party shall permit the other party to review any communication
given by it to, and shall consult with each other in advance of any meeting
or
conference with, any Governmental Authority or, in connection with any
proceeding by a private party, with any other Person, and to the extent
permitted by the applicable Governmental Authority or other Person, give
the
other party the opportunity to attend and participate in such meetings
and
conferences, in each case in connection with the transactions contemplated
hereby.
(b) Each
party shall timely file all reports required to be filed by it pursuant
to the
1933 Act or the 1934 Act that become due from the date of this Agreement
to the
Closing, as such reports relate to the Company.
5.3
Public
Announcements. The parties shall consult with each other before issuing, and
provide each other a reasonable opportunity to review and comment upon,
any
press release or public statement with respect to this Agreement and the
transactions contemplated hereby and, except as may be required by applicable
law, will not issue any such press release or make any such public statement
prior to such consultation. Unless otherwise required by law, the Seller
shall
hold the Assignee List in a confidential manner and shall not disclose
the
Assignee List to any Person without the prior written consent of the
Purchaser.
5.4
Notification
of Certain Matters.
Each
party hereto shall give notice to each other party hereto, as promptly
as
practicable after the event giving rise to the requirement of such notice,
of:
(a) any
communication received by such party from, or given by such party to, any
Governmental Authority in connection with any of the transactions contemplated
hereby;
(b) any
notice or other communication from any Person alleging that the consent
of such
Person is or may be required in connection with the transactions contemplated
by
this Agreement; and
(c) any
actions, suits, claims, investigations or proceedings commenced or, to
its
Knowledge, threatened against, relating to or involving or otherwise affecting
such party or any of its Affiliates that, if pending on the date of this
Agreement, would have been required to have been disclosed, or that relate
to
the consummation of the transactions contemplated by this Agreement;
provided,
however,
that
the delivery of any notice pursuant to this Section 5.4
shall
not limit or otherwise affect the remedies available hereunder to the party
receiving such notice.
5.5
Termination
of Agreements. Prior to the Closing, the Seller shall cause the termination
of that certain Registration Rights Agreement, dated March 26, 2007, by
and
among the Company and the Seller (the “Registration
Rights Agreement”),
without incurring any further liability to the Company.
5.6
Interim
Actions of the Parties.
(a) Until
the
earlier of the Closing Date or the termination of this Agreement pursuant
to
Article
VII
hereof,
neither the Seller nor any of its Affiliates shall, directly or indirectly
(i)
take any action to solicit or initiate any Acquisition Proposal, or (ii)
continue, initiate or engage in negotiations concerning any Acquisition
Proposal
with, or disclose any non-public information relating to the Company, or
afford
access to the properties, books or records of the Company to, any corporation,
partnership, person or other entity (except the Purchaser and its Affiliates)
that may be considering or has made an Acquisition Proposal.
Execution
Copy
(b) Until
the
earlier of the Closing Date or the termination of this Agreement pursuant
to
Article
VII
hereof,
neither the Seller, the Purchaser, nor any of their respective Affiliates
shall
engage directly or indirectly in any transaction involving any of the securities
of the Company other than as contemplated by this Agreement. This Section
5.6(b)
shall
not restrict the right of the Purchaser to purchase additional shares of
Common
Stock from the Company immediately after the Closing.
6.1
Conditions
to the Obligations of Each Party. The obligations of the Seller and the
Purchaser to consummate the transactions contemplated by this Agreement
are
subject to the satisfaction of the following conditions:
(a) No
Governmental Authority of competent authority or jurisdiction shall have
issued
any order, injunction or decree, or taken any other action, that is in
effect
and restrains, enjoins or otherwise prohibits the consummation of the
transactions contemplated hereby; and
(b) The
parties shall have obtained or made all consents, approvals, actions, orders,
authorizations, registrations, declarations, announcements and filings
contemplated by this Agreement.
6.2
Conditions
to the Obligations of the Seller. The obligations of the Seller to
consummate the transactions contemplated by this Agreement are subject
to the
satisfaction of the following further conditions:
(a) The
Purchaser shall have performed in all material respects all of its obligations
hereunder required to be performed by it at or prior to the
Closing;
(b) The
representations and warranties of the Purchaser contained in this Agreement
shall have been true and correct when made and at and as of the time of
the
Closing as if made at and as of such time (except to the extent any such
representation or warranty expressly speaks as of an earlier date, in which
case
it shall be true and correct as of such date);
and
(c) The
Seller shall have received a certificate signed by the Purchaser to the
foregoing effect.
6.3
Conditions
to the Obligations of the Purchaser. The obligations of the Purchaser to
consummate the transactions contemplated by this Agreement are subject
to the
satisfaction of the following further conditions:
(a) The
Seller shall have performed in all material respects all of their obligations
hereunder required to be performed by them at or prior to the
Closing;
(b) The
representations and warranties of the Seller contained in this Agreement
shall
have been true and correct when made and at and as of the time of the Closing
as
if made at and as of such time (except to the extent any such representation
or
warranty expressly speaks as of an earlier date, in which case it shall
be true
and correct as of such date);
(c) The
Purchaser shall have received a certificate signed by the Seller to the
foregoing effect;
Execution
Copy
(d) The
Seller shall have delivered to the Purchaser written instruments, in forms
reasonably satisfactory to the Purchaser, evidencing the termination of
the
Registration Rights Agreement and the execution of the Garisch Release;
and
(e) The
concurrent satisfaction of the closing conditions in that certain Stock
Purchase
Agreement, dated June __, 2008, by and among the Purchaser and KI Equity
Partners V, LLC, a Delaware limited liability company, and Mr. Kevin R.
Keating
for the purchase of 69,100,000 shares of Common Stock.
SECTION
VII TERMINATION.
7.1
Termination.
This Agreement may be terminated at any time prior to the Closing by written
notice by the terminating party to the other party (except if such termination
is pursuant to Section 7.1(a)):
(a) by
mutual
written agreement of the Purchaser and the Seller;
(b) by
either
the Purchaser or the Seller, if
(i) the
transactions contemplated by this Agreement shall not have been consummated
by
June 13, 2008 (the “End
Date”);
provided,
however,
that
the right to terminate this Agreement under this Section 7.1(b)(i)
shall
not be available to any party whose breach of any provision of or whose
failure
to perform any obligation under this Agreement has been the cause of, or
has
resulted in, the failure of the transactions to occur on or before the
End
Date;
or
(ii) a
judgment, injunction, order or decree of any Governmental Authority having
competent jurisdiction enjoining either the Seller or the Purchaser from
consummating the transactions contemplated by this Agreement is entered
and such
judgment, injunction, judgment or order shall have become final and
nonappealable and, prior to such termination, the parties shall have used
their
respective commercially reasonable efforts to resist, resolve or lift,
as
applicable, such judgment, injunction, order or decree; provided, however,
that
the right to terminate this Agreement under this Section 7.1(b)(ii)
shall
not be available to any party whose breach of any provision of or whose
failure
to perform any obligation under this Agreement has been the cause of such
judgment, injunction, order or decree.
(c) by
the
Seller:
(i) if
a
breach of or failure to perform any representation, warranty, covenant
or
agreement on the part of the Purchaser set forth in this Agreement shall
have
occurred which would cause the conditions set forth in Sections
6.2(a),
6.2(b) or
6.2(c)
not to
be satisfied, and any such condition shall be incapable of being satisfied
by
the End Date or such breach or failure to perform has not been cured within
ten
days after notice of such breach or failure to perform has been given by
the
Seller to the Purchaser.
(d) by
the
Purchaser:
(i) if
a
breach of or failure to perform any representation, warranty, covenant
or
agreement on the part of the Seller set forth in this Agreement shall have
occurred which would cause the conditions set forth in Section
6.3
not to
be satisfied, and any such condition is incapable of being satisfied by
the End
Date or such breach or failure to perform has not been cured within ten
days
after notice of such breach or failure to perform has been given by the
Purchaser to the Seller.
Execution
Copy
7.2
Effect
of Termination.
If this Agreement is terminated pursuant to Section 7.1,
except
as set forth in Section 7.3
below,
there shall be no liability or obligation on the part of the Purchaser
or the
Seller, or any of their respective officers, directors, shareholders, agents
or
Affiliates, except that the provisions of this Section 7.2,
Section 7.3
and
Section
VIII
of this
Agreement shall remain in full force and effect and survive any termination
of
this Agreement and except that, notwithstanding anything to the contrary
contained in this Agreement, neither the Seller nor the Purchaser shall
be
relieved of or released from any liabilities or damages arising out of
its
material breach of or material failure to perform its obligations under
this
Agreement.
7.3
Expenses.
Whether
or not the transactions contemplated by this Agreement are consummated,
all fees
and expenses of any party hereto incurred in connection with this Agreement
and
the transactions contemplated hereby shall be paid by the party incurring
such
fees and expenses.
SECTION
VIII MISCELLANEOUS.
8.1
Waivers
and Amendments.
This Agreement may be amended or modified in whole or in part only by a
writing
which makes reference to this Agreement executed by the Purchaser and the
Seller. The obligations of any party hereunder may be waived (either generally
or in a particular instance and either retroactively or prospectively)
only with
the written consent of the party claimed to have given the waiver; provided,
however, that any waiver by any party of any violation of, breach of, or
default
under any provision of this Agreement or any other agreement provided for
herein
shall not be construed as, or constitute, a continuing waiver of such provision,
or waiver of any other violation of, breach of or default under any other
provision of this Agreement or any other agreement provided for
herein.
8.2
Entire
Agreement. This Agreement (together with any Schedules and/or any Exhibits
hereto), the letter agreement dated May 13, 2008 between the Seller and
the
Purchaser, and the other agreements and instruments expressly provided
for
herein, together set forth the entire understanding of the parties hereto
and
supersede in their entirety all prior contracts, agreements, arrangements,
communications, discussions, representations, and warranties, whether oral
or
written, among the parties with respect to the subject matter
hereof.
8.3
Governing
Law and Submission to Jurisdiction. This Agreement shall in all respects be
governed by and construed in accordance with the internal substantive laws
of
the State of Florida without giving effect to the principles of conflicts
of law
thereof. Each of the parties irrevocably agrees that any legal action or
proceeding arising out of or relating to this Agreement brought by any
other
party or its successors or assigns shall be brought and determined in any
Florida State or federal court sitting in Miami-Dade County, Florida (or,
if
such court lacks subject matter jurisdiction, in any appropriate Florida
State
or federal court), and each of the parties hereby irrevocably submits to
the
exclusive jurisdiction of the aforesaid courts for itself and with respect
to
its property, generally and unconditionally, with regard to any such action
or
proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby. Each of the parties agrees not to commence any action,
suit
or proceeding relating thereto except in the courts described above in
Florida,
other than actions in any court of competent jurisdiction to enforce any
judgment, decree or award rendered by any such court in Florida as described
herein. Each of the parties hereby irrevocably and unconditionally waives,
and
agrees not to assert, by way of motion or as a defense, counterclaim or
otherwise, in any action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby, (a) any claim that it
is not
personally subject to the jurisdiction of the courts in Florida as described
herein for any reason, (b) that it or its property is exempt or immune
from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
and (c) that (i) the suit, action or proceeding in any such court is brought
in
an inconvenient forum, (ii) the venue of such suit, action or proceeding
is
improper or (iii) this Agreement, or the subject matter hereof, may not
be
enforced in or by such courts.
Execution
Copy
8.4
Public
Announcements. The parties shall consult with each other before issuing, and
provide each other a reasonable opportunity to review and comment upon,
any
press release or public statement with respect to this Agreement and the
transactions contemplated hereby and, except as may be required by applicable
law, will not issue any such press release or make any such public statement
prior to such consultation.
8.5
Notices.
Any notice, request or other communication required or permitted hereunder
shall
be in writing and be deemed to have been duly given (a) when personally
delivered or sent by facsimile transmission (the receipt of which is confirmed
in writing), (b) one Business Day after being sent by a nationally recognized
overnight courier service or (c) five Business Days after being sent by
registered or certified mail, return receipt requested, postage prepaid,
to the
parties at their respective addresses set forth below.
|
If
to the Seller:
|
Garisch
Financial, Inc.
2395
Woodglen Drive
Aurora,
Illinois 60502
Facsimile:
(630) 692-0647
Attn:
Mr. Frederic M. Schweiger, President
|
|
if
to the Purchaser
|
Mr.
Glenn L. Halpryn
4400
Biscayne Boulevard
Suite
950
Miami,
Florida 33137
Facsimile:
(305) 573-4115
|
|
with
a copy to:
|
Robert
L. Grossman, Esq.
Greenberg
Traurig, P.A.
1221
Brickell Avenue
Miami,
Florida 33131
Facsimile:
(305) 961-5756
|
| |
|
| |
And
|
| |
|
| |
Any
party by written notice to the other may change the address or
the persons
to whom notices or copies thereof shall be
directed.
|
8.6
Counterparts;
Facsimile Signatures. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all
of which
together will constitute one and the same instrument. Any facsimile copy
of this
Agreement will be deemed an original for all purposes.
8.7
Successors
and Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, except that the Seller may not assign or transfer its rights hereunder
without the prior written consent of the Purchaser. The Purchaser may assign
or
transfer its rights under this Agreement without the consent of the Seller;
provided, however, that the Purchaser shall not, to its Knowledge, assign
or
transfer any of its rights under this Agreement to any Person that (i)
has been
convicted of a felony or equivalent crime in the United States or any other
jurisdiction, (ii) is “insolvent” as such term is defined in Title 11, Section
101, of the United States Code, (iii) does not have the requisite power,
authority, and capacity to acquire such Person’s respective assigned portion of
the Shares, or (iv) would not be able to represent and warrant to those
matters
contained in Sections 4.2(a) through 4.2(d) of this Agreement.
Execution
Copy
8.8
Third
Parties. Nothing expressed or implied in this Agreement is intended, or
shall be construed, to confer upon or give any Person other than the parties
hereto and their successors and assigns any rights or remedies under or
by
reason of this Agreement.
8.9
Schedules.
The Schedules and Exhibits attached to this Agreement are incorporated
herein
and shall be part of this Agreement for all purposes.
8.10
Headings.
The headings in this Agreement are solely for convenience of reference
and shall
not be given any effect in the construction or interpretation of this
Agreement.
8.11
Interpretation.
Whenever the context may require, any pronoun used herein shall include
the
corresponding masculine, feminine or neuter forms, and the singular form
of
nouns, pronouns and verbs shall include the plural and vice versa.
[Signature
Page Follows]
Execution Copy
SIGNATURE
PAGE TO
STOCK
PURCHASE AGREEMENT
BY
AND AMONG
THE
SELLER AND THE PURCHASER
IN
WITNESS WHEREOF, each of the Seller and the Purchaser have executed this
Agreement as of the date first above written.
THE
SELLER:
Garisch
Financial, Inc., an Illinois corporation
By:
/s/Frederic
M. Schweiger
Name:
Frederic
M. Schweiger
Title:
President
THE
PURCHASER:
/s/Glenn
L. Halpryn
Glenn
L.
Halpryn, individually and as agent for certain investors