Attached files
| file | filename |
|---|---|
| 8-K - Willing Holding, Inc. | v179818_8k.htm |
| EX-10.2 - Willing Holding, Inc. | v179818_ex10-2.htm |
PURCHASE
AGREEMENT
THIS PURCHASE AGREEMENT made
as of March ___, 2010, (the “Agreement”) between Willing Holding, Inc., a
Florida corporation and Thomas DiStefano, an individual (the “Sellers”) and 11i
Solutions, Inc., a Georgia corporation (the “Buyer”).
RECITALS
WHEREAS, Willing Holding, Inc.
has One Hundred Fifty Million (150,000,000) shares of authorized Class A common
stock of which Two Million Eight Hundred Two Thousand Three Hundred Forty-Four
(2,802,344) are currently issued and outstanding. Sellers desire to sell
Twenty-Five Million (25,000,000) shares of Class A Common stock (the “Shares”)
of Willing Holding,
Inc., a Florida corporation (the “Company” or “WHDX”), to
Buyer.
WHEREAS, Buyer desires to
purchase the Shares and Sellers desire to sell the Shares upon the terms and
subject to the conditions set forth herein.
IN CONSIDERATION of the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Purchase and Sale of
Stock.
(a)
Purchased
Shares. Subject to the terms and conditions provided below, Sellers shall
sell and transfer to Buyer and Buyer shall purchase from Sellers, on the Closing
Date (as defined in Section 2), all of the Shares. The Shares shall be issued
from the treasury shares of the Company.
(b) Purchase Price. The
purchase price (the “Purchase Price”) payable by the Buyer to the Sellers for
the Company shall be Two Hundred Twenty-Five Thousand Dollars
($225,000.00).
(c)
Payment of Purchase
Price. The Buyer shall pay the Purchase Price as follows:
(i) by
delivering to the Escrow Agent Seventy-Five Thousand Dollars ($75,000.00) paid
via fedwire, certified check, bank check, or attorney’s escrow check at Closing
to pay the creditors listed on Exhibit A;
_______ Thomas DiStefano ______ Domingo
Silvas
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(ii) by delivering to the
Escrow Agent an additional Seventy-Five Thousand Dollars ($75,000.00)
paid via fedwire, certified check, bank check, or attorney’s escrow check
within Sixty (60) days from Closing to pay the creditors listed on Exhibit A;
and
(iii) by
delivering to the Escrow Agent an additional Seventy-Five Thousand Dollars
($75,000.00) paid via fedwire, certified check, bank check or attorney’s escrow
check within Ninety (90) days from Closing to pay the creditors listed on
Exhibit
A.
(d)
Adjustment to Purchase
Price. The Purchase Price may be adjusted by the costs of paying any and
all unlisted outstanding debts of the Company and the taxes associated with the
2009 tax returns.
2. Closing.
(a)
Transfer of
Shares. At the Closing, Sellers shall deliver to Buyer certificates
representing the Shares, duly endorsed to Buyer or as directed by Buyer, which
delivery shall vest Buyer with good and marketable title to the Shares, free and
clear of all liens and encumbrances.
(b)
Delivery of
Shares. (i) The certificates representing the Shares will be deposited
into Escrow, (ii) Eight Million Three Hundred Thousand (8,300,000) shares will
be released to the Buyer at payment of the first Seventy-Five Thousand Dollars
($75,000.00), (iii) Eight Million Three Hundred Thousand (8,300,000) shares will
be released to Buyer at the payment of the second Seventy-Five Thousand Dollars
($75,000.00), and Eight Million Four Hundred Thousand (8,400,000) shares will be
released to Buyer at the payment of the final Seventy-Five Thousand Dollars
($75,000.00).
(c)
Preferred
Shares. At the Closing, the Company shall issue to Thomas DiStefano One
Million Five Hundred Thousand (1,500,000) shares of Class B Common Stock to be
held until final payment is made by the Buyer. Upon final payment, Thomas
DiStefano shall upon election of the Buyer either: (i) cancel such shares and
return the certificate to the Company or (ii) transfer such shares to the
Buyer.
(c)
Transfer of Corporate
Book. At the Closing, Sellers shall deliver to Buyer the corporate book
and financial records of the Company including all EDGAR access passcodes,
passwords and any other information to access EDGAR or any other filings of the
Company.
(d)
Closing. The
closing of the transactions contemplated in this Agreement (the “Closing”) shall
take place as soon as practicable following satisfaction or waiver of all
conditions precedent to Closing and the execution of this Agreement. The Closing
of this transaction shall take place on or before March 23, 2010 at 11:00 a.m,
EST or such earlier or later date as may be mutually acceptable to the parties
hereto (the “Closing Date”) at the office of the Buyers’ Attorney, New York, New
York, or at such other place as may be approved in writing by the parties. The
Closing may also occur by facsimile, electronic mail and certified mail, return
receipt requested. The parties shall provide each other with such documents as
may be necessary or appropriate and customary in transactions of this sort in
order to consummate the transactions contemplated hereby.
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(e)
Closing
Deliveries. At Closing, the Sellers
shall deliver the following, in addition to any other documents, agreements or
deliverables required or provided by this Agreement:
(i) Shares of the
Corporation;
(ii) Any Notes
Convertible into Shares;
(iii) Financial
statements through the last quarter of 2009; and
(iv) Written
consent of Shareholders to effectuate this transaction.
3. Representations and
Warranties of Sellers. Sellers represent and warrant to Buyer as of the
date hereof as follows:
(a)
Corporate
Authorization; Enforceability. The execution, delivery and performance by
Sellers of this Agreement is within the corporate powers and has been, duly
authorized by all necessary corporate action on the part of Sellers. This
Agreement has been duly executed and delivered by Sellers and constitutes the
valid and binding agreement of Sellers, enforceable against Sellers in
accordance with its terms, except to the extent that its enforceability may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar Laws affecting the enforcement of creditors’ rights generally and by
general equitable principles. The execution, delivery and performance of this
Agreement has all required Director and Shareholder approvals. The execution,
delivery and performance of this Agreement by WHDX and the consummation of the
transactions contemplated hereby will not:
(i)
violate any provision of the Charter or By-Laws of WHDX;
(ii)
violate, conflict with or result in the breach of any of the terms of, result in
a material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both constitute)
a default under, any contract or other agreement to which WHDX is a party or by
or to which it or any of its assets or properties may be bound or
subject;
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(iii)
violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, WHDX, or
upon the properties or business of WHDX; or
(iv)
violate any statute, law or regulation of any jurisdiction applicable to the
transactions contemplated herein which could have a Material Adverse Effect on
the business or operations of WHDX.
(b)
Governmental
Authorization. The execution, delivery and performance by Sellers of this
Agreement requires no consent, approval, Order, authorization or action by or in
respect of, or filing with, any Governmental Authority.
(c)
Non-Contravention;
Consents. The execution, delivery and performance by Sellers of this
Agreement and the consummation of the transactions contemplated hereby do not
(i) violate the certificate of incorporation or bylaws of Sellers or (ii)
violate any applicable Law or Order. WHDX and New World have complied with all
federal, state, county and local laws, ordinances, regulations, inspections,
orders, judgments, injunctions, awards or decrees applicable to it or its
business which, if not complied with, would material and adversely affect the
business or financial condition of WHDX or New World or the trading market for
the shares of WHDX’s common stock.
(d)
Organization, Good
Standing and Qualification of the Company. The Company is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization. The Company has complied fully with all of the requirements of any
statute governing the use and registration of fictitious names and has the legal
right in every jurisdiction in which the Company operates under such names and
any other names under which it operates its businesses. The Company is duly
qualified or licensed to do business and is in good standing in each of the
jurisdictions in which it currently conducts its business or in which the nature
of its business or the properties owned or leased by it makes such qualification
or licensing necessary. WHDX is the record and beneficial owner of One Hundred
Percent (100%) of the issued and outstanding shares of New World Mortgage, Inc.
(“New World”), which shares are owned free and clear of all rights, claims,
liens and encumbrances, and have not been sold, pledged, assigned or otherwise
transferred. There are no outstanding subscriptions, rights, options, warrants
or other agreements obligating WHDX to sell or transfer to any third person any
of the shares of New World owned by WHDX, or any interest therein.
New World
is a corporation, duly organized, validly existing and in good standing under
the laws of California, and is entitled to own or lease its properties and to
carry on its business as and in the places where such properties are now owned,
leased or operated and such business is now conducted. New World is qualified to
do business as a foreign corporation in each jurisdiction, if any, in which its
property or business requires such qualification.
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(e)
Title to Shares,
Capitalization, etc.
(i)
Title. The
Company owns, beneficially and of record the Shares, free and clear of any Liens
and have been duly authorized by all necessary corporate and shareholder
actions. Upon the delivery of and payment for the Shares at the Closing as
provided for in this Agreement, the Buyer will acquire good and valid title to
the Shares being purchased by it, free and clear of any Lien other than any Lien
created by such Buyer. Shares are validly issued, fully paid and non assessable.
The Shares shall be issued from the Company’s treasury stock. Thomas DiStefano
will continue to own the One Hundred Twenty-Eight Thousand Six Hundred
Ninety-Three (128,693) shares of the Class A Common Stock of the Company he is
the record owner of as set forth in the March 15, 2010 shareholder list provided
by Sellers to Buyer’s counsel.
(ii)
No Equity
Rights. There are no preemptive or similar rights on the part of any
holders of any class of securities of the Company. Except for this Agreement, no
subscriptions, options, warrants, conversion or other rights, agreements,
commitments, arrangements or understandings of any kind obligating the Company,
Sellers or any other Person, contingently or otherwise, to issue or sell, or
cause to be issued or sold, any shares of capital stock of any class of the
Company, or any securities convertible into or exchangeable for any such shares,
are outstanding, and no authorization therefore has been given. There are no
outstanding contractual or other rights or obligations to or of the Company,
Sellers or any other Person to repurchase, redeem or otherwise acquire any
outstanding shares or other equity interests of the Company.
(iii)
Absence of Certain
Changes. As of the date of this Agreement, the Company has not issued or
sold any shares of any class of its capital stock, or any securities convertible
into or exchangeable for any such shares, or issued, sold, granted or entered
into any subscriptions, options, warrants, conversions or other rights,
agreements, commitments, arrangements or understandings of any kind,
contingently or otherwise, to purchase or otherwise acquire any such shares or
any securities convertible into or exchangeable for any such
shares;
(iv)
Capitalization.
As of the date hereof, the authorized capital stock of WHDX consists of One
hundred Fifty Million (150,000,000) shares of Class A Common stock with a par
value of $.0001, of which Two Million Eight Hundred Two Thousand Three Hundred
Forty-Four (2,802,344) shares are presently issued and outstanding, and Five
Million (5,000,000) shares of Class B Common Stock of which upon conclusion of
this transaction, One Million Five Hundred Thousand (1,500,000) shares of Class
B Common Stock will be issued and outstanding, and Ten Million (10,000,000)
shares of preferred stock, no shares of which have been issued, although Five
Million (5,000,000) shares have been designated as Series A Preferred Stock.
WHDX has not granted, issued or agreed to grant, issue or make available any
warrants, options, subscription rights or any other commitments of any character
relating to the unissued shares of capital stock of WHDX. All of the WHDX Shares
are duly authorized and validly issued, fully paid and non-assessable. There are
no anti-dilution or preemptive rights issued and outstanding.
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(f)
Liabilities.
(i)
The Company has no liabilities or obligations of any nature, whether known,
unknown, absolute, accrued, contingent or otherwise and whether due or to become
due, except as set forth on Exhibit A. Sellers agree that any liability,
including taxes, not included on the certified lists attached hereto as Exhibit
A and Exhibit B is deemed a material breech.
(ii)
Notwithstanding the foregoing the Company does not have any liabilities or
obligations relating to unpaid annual bonuses, unpaid legal or other
professional fees or in respect of trade payables that are not
current.
(iii)
Following the Closing, Sellers will have no debts, liabilities or obligations
relating to the Company or its business or activities, whether before or after
the Closing, other than the liabilities listed on Exhibit A, which are to be
paid in full with the funds of the Purchase Price. There are no outstanding
guaranties, performance or payment bonds, letters of credit or other contingent
contractual obligations that have been undertaken by Sellers directly or
indirectly in relation to the Company or its business and that may survive the
Closing.
(iv)
New World has executed an Indemnification Agreement holding harmless Willing and
Buyer from future litigation, claims, judgments or causes of action. This
Indemnification Agreement is attached hereto as Exhibit D.
(g)
Taxes.
(i)
All federal, state and local tax returns and payments that have become due from
the Company to the date of this Agreement have been timely filed and timely paid
by it including any returns or taxes due for (1) state or federal income or
franchise tax, (2) personal or real property tax levied on any of the assets,
(3) sales tax, or (4) other tax. All tax returns and payments for the above
taxes that become due between the date of this Agreement to the Closing Date
shall be timely filed and paid by Sellers. The Sellers will attach Three (3)
years of the Company’s federal tax returns for years 2007, 2008 and 2009 showing
the gross receipts, cost of goods sold, other expenses, and taxable income as
reported to the Internal Revenue Service as Exhibit C or in the alternative,
Sellers agree to indemnify Buyer for any and all tax liability resulting from
such years. Company shall obtain at Sellers’ sole cost and expense any and all
federal, state or local income tax and/or sales tax clearance as required by any
bulk transfer requirements of any taxing authority. These tax clearance
documents shall be obtained prior to closing. The existence of an encumbrance in
the nature of a tax lien, removable by payment of monies, may be paid from the
Purchase Price. Neither WHDX nor New World have been audited by any local, state
or federal tax authority.
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(ii) Any
sales tax, use tax, excise tax, transfer tax, recordation tax, or other tax
imposed upon the transfer of the Company shall be paid by Buyer and Buyer shall
not be liable for any income tax imposed on the Sellers as a result of this
transfer from the Sellers to the Buyer.
(h)
Litigation.
Except as set forth and described on Exhibit B, the contents of which have been
provided by the Sellers, there is not, and has not been during the Five (5)
years preceding the date of this Agreement, any litigation or other proceeding
or governmental investigation pending, or, to the knowledge of the Sellers,
threatened, against or affecting the Company or in connection with the Company’s
business or the transactions contemplated by this Agreement. None of the
litigations, proceedings or investigations listed on Exhibit B would have, or
have had, if resolved adversely to the Company, individually or in the
aggregate, (a “Material Adverse Effect”). Except as set forth on Exhibit B,
there is no lawsuit or claim by the Company presently pending, or which the
Company intends to initiate, against any other Person.
(i)
Brokerage or Finder’s
Fees. Neither the Company nor Sellers have incurred any liability to any
broker, finder or agent for any fees or commissions or similar compensation with
respect to the transactions contemplated by this Agreement.
(j)
No Other Interest –
Sellers. Sellers represent and warrant that except for the Shares
conveyed hereby, they have no interest, right, option, or other claim whatsoever
with regard to any other shares of the Company.
(k)
No Claims.
Sellers represent and warrant that they have no claim of any kind against the
Company, its officers, directors, or agents, and Sellers further release any
past, present or future claims against any and or all of the aforementioned
parties.
(l)
Compliance.
Sellers represent and warrant that:
(i)
The Company has not within the last Five (5) years, filed a registration
statement which is the subject of a currently effective registration stop order
entered by the United States Securities and Exchange Commission (“SEC”) or any
state securities administrator;
(ii)
Neither the Company nor any of the Sellers, collectively or individually, has
within the last Five (5) years, been convicted of any felony in connection with
the offer, purchase or sale of any security or any felony involving fraud or
deceit;
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(iii)
Neither the Company nor any of the Sellers, collectively or individually, are
subject to any state or federal enforcement order, entered within the last Five
(5) years, finding fraud or deceit in connection with the purchase or sale of
any security; and
(iv)
Neither the Company nor any of the Sellers, collectively or individually, is
currently subject to any order, judgment or decree of any court of competent
jurisdiction, permanently restraining or enjoining such party from engaging in
or continuing to engage in any conduct or practice involving fraud or deceit in
connection with the purchase or sale of any security.
(m)
Real Estate.
Except as set forth in the SEC Reports (as defined in Section (p) hereof), WHDX
neither owns real property nor is a party to any leasehold
agreement.
(n)
Assets. WHDX
owns all rights, title and interest in and to its assets, free and clear of all
liens, pledges, mortgages, security interests, conditional sales contracts or
any other encumbrances.
(o)
Internal Accounting
Controls. WHDX maintains a system of internal accounting controls
sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(p)
SEC Reports.
WHDX has filed all reports required to be filed by it under the Exchange Act,
including pursuant to Section 13(a) or 15(d) thereof (the foregoing materials,
including the exhibits thereto, (being collectively referred to herein as the
“SEC Reports”)). The SEC Reports comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder, and none of the SEC Reports, when filed, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
financial statements of WHDX included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing. There are no
outstanding comments received by the SEC.
(q)
Quotation on the OTC
Bulletin Board. The shares of Class A Common Stock of WHDX have been
approved by FINRA for trading and are traded on the over-the-counter bulletin
board (“OTC”) under the symbol WHDX. There are no outstanding comments received
by FINRA.
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(r)
Full
Disclosure. No representation or warranty by WHDX in this Agreement or in
any document or schedule to be delivered by them pursuant hereto, and no written
statement, certificate or instrument furnished or to be furnished to Buyer
pursuant hereto or in connection with the negotiation, execution or performance
of this Agreement contains, or will contain, any untrue statement of a material
fact or omits, or will omit, to state any fact necessary to make any statement
herein or therein not materially misleading or necessary to a complete and
correct presentation of all material aspects of the businesses of
WHDX.
(s)
Intellectual
Property. (i) Except as may be disclosed in its public filings with the
SEC and to the extent that any inaccuracy of any of the following (or the
circumstances giving rise to such inaccuracy), in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on WHDX: (A) WHDX owns,
or is licensed or otherwise has the legally enforceable right to use (in each
case, clear of any liens or encumbrances of any kind), all Intellectual Property
(as hereinafter defined) used in or necessary for the conduct of its business as
currently conducted; (B) no claims are pending or threatened that WHDX is
infringing on or otherwise violating the rights of any person with regard to any
Intellectual Property used by, owned by, and/or licensed to WHDX or any of its
subsidiaries; (C) as of the date of this Agreement, to the knowledge of WHDX, no
person is infringing on or otherwise violating any right of WHDX with respect to
any Intellectual Property owned by and/or licensed to WHDX; and (D) as of the
date of this Agreement, neither WHDX nor any of its subsidiaries have received
any notice of any claim challenging the ownership or validity of any
Intellectual Property owned by WHDX or challenging WHDX’s license or legally
enforceable right to use any Intellectual Property licensed by it.
(ii) For
purposes of this Agreement, “Intellectual Property” means trademarks (registered
or unregistered), service marks, brand names, certification marks, trade dress,
assumed names, trade names, and other indications of origin, the goodwill
associated with the foregoing and registrations in any jurisdiction of, and
applications in any jurisdiction to register, the foregoing, including any
extension, modification or renewal of any such registration or application;
inventions, discoveries and ideas, whether patented, patentable, or not in any
jurisdiction; trade secrets and confidential information and rights in any
jurisdiction to limit the use or disclosure thereof by any person; writings and
other works of authorship, whether copyrighted, copyrightable, or not in any
jurisdiction; registration or applications for registration of copyrights in any
jurisdiction, and any renewals or extensions thereof; any similar intellectual
property or proprietary rights and computer programs and software (including
source code, object code, and data); licenses, immunities, covenants not to sue,
and the like relating to the foregoing; and any claims or causes of action
arising out of or related to any infringement or misappropriation of any of the
foregoing.
(t)
Labor and Employment
Matters. (i) WHDX is and has been in compliance in all respects with all
applicable laws respecting employment and employment practices, terms, and
conditions of employment and wages and hours, including, such laws respecting
employment discrimination, equal opportunity, affirmative action, worker’s
compensation, occupational safety, and health requirements and unemployment
insurance and related matters, and are not engaged in and have not engaged in
any unfair labor practice; (ii) no investigation or review by or before any
governmental entity concerning any violations of any such applicable laws is
pending nor, to the knowledge of WHDX, is any such investigation threatened or
has any such investigation occurred during the last Three (3) years, and no
governmental entity has provided any notice to WHDX or otherwise asserted an
intention to conduct any such investigation; (iii) there is no labor strike,
dispute, slowdown, or stoppage actually pending or threatened against WHDX; (iv)
no union representation question or union organizational activity exists
respecting the employees of WHDX; (v) no collective bargaining agreement exists
which is binding on WHDX; (vi) WHDX has experienced no work stoppage or other
labor difficulty; and (vii) in the event of termination of the employment of any
of the current officers, directors, employees, or agents of WHDX or New World,
WHDX shall not, pursuant to any agreement or by reason of anything done prior to
the closing by WHDX be liable to any of said officers, directors, employees, or
agents for so-called “severance pay” or any other similar payments or benefits,
including, without limitation, post-employment healthcare (other than pursuant
to COBRA) or insurance benefits, except to the extent that any matter in Items
(i), (ii), (vi) and (vii) could reasonably be expected individually or in the
aggregate to have a Material Adverse Effect on WHDX.
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(u)
Employee Benefit
Plans. WHDX is not a party to any written or formal employee benefit plan
(including, without limitation, any “employee benefit plan” as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”)) policy or agreement that is maintained (all of the foregoing, the
“Benefit Plans”), or is or was contributed to by WHDX or pursuant to which WHDX
or any trade or business, whether or not incorporated (an “ERISA Affiliate”),
which together with WHDX would be deemed a “single employer” within the meaning
of Section 4001 of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), is still potentially liable for payments, benefits, or
claims.
(v)
State Anti-Takeover
Statutes. The WHDX Board of Directors and shareholders have approved this
Agreement and the transactions contemplated hereby, and thereby such approval
constitutes approval of the Agreement and other transactions contemplated hereby
and thereby by the WHDX Board of Directors as required under Florida law. To the
knowledge of WHDX, no state anti-takeover statute is applicable to these
transactions.
(w)
Absence of Certain
Business Practices. Neither WHDX nor any director, officer, employer, or
agent of the foregoing, nor any person acting on its behalf, directly or
indirectly has to WHDX’s knowledge given or agree to give any gift or similar
benefit to any customer, supplier, governmental employee or other person which
(i) might subject WHDX to any damage or penalty in any civil, criminal, or
governmental litigation or proceeding, (ii) if not given in the past, might have
had a Material Adverse Effect on WHDX, or (iii) if not continued in the future,
might have a Material Adverse Effect on WHDX or which might subject WHDX to suit
or penalty in any private or governmental litigation or proceeding.
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(x)
Contracts.
Other than set forth on Schedule 3(x), WHDX has no contracts, instruments,
mortgages, notes, security agreements, leases, agreements, or understandings,
whether written or oral, to which WHDX is a party that relates to or affects the
assets or operations of WHDX or to which WHDX’s assets or operations may be
bound or subject (collectively, the “Contracts”). Each of the Contracts is a
valid and binding obligation of WHDX and in full force and effect, except for
where the failure to be in full force and effect would not, individually or in
the aggregate, have a Material Adverse Effect. There are no existing defaults by
WHDX thereunder or, to the knowledge of WHDX, by any other party thereto, which
defaults, individually or in the aggregate, would have a Material Adverse
Effect.
4. Representations and
Warranties of Buyers.
Buyers
represent and warrant to Sellers as of the date hereof as follows:
(a)
Organization and
Standing. Buyer is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Georgia, and is entitled to own or
lease its properties and to carry on its business as and in the places where
such properties are now owned, leased or operated and such business is now
conducted. Buyer is qualified to do business as a foreign corporation in each
jurisdiction, if any, in which its property or business requires such
qualification.
(b)
Enforceability.
Buyer has all necessary corporate power and authority to execute this Agreement
and perform its obligations hereunder. The execution, delivery and performance
by Buyers of this Agreement is within Buyers’ powers. This Agreement has been
duly executed and delivered by Buyers and constitutes the valid and binding
agreement of Buyers, enforceable against Buyers in accordance with its terms,
except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors’ rights generally and by general equitable
principles.
(c)
Governmental
Authorization. The execution, delivery and performance by Buyers of this
Agreement require no consent, approval, Order, authorization or action by or in
respect of, or filing with, any Governmental Authority.
(d)
Non-Contravention;
Consents. The execution, delivery and performance by Buyers of this
Agreement, and the consummation of the transactions contemplated hereby do not
violate any applicable Law or Order. Buyer has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business.
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(e)
Litigation.
There is no action, suit or proceeding pending or threatened, or any
investigation, at law or in equity, before any arbitrator, court or other
governmental authority, pending or threatened, nor any judgment, decree,
injunction, award, or order outstanding, against or in any manner involving
Buyer or any of Buyer’s properties or rights, which (i) could reasonable be
expected to have a material adverse effect on Buyer taken as a whole, or (ii)
could reasonably be expected to materially and adversely affect consummation of
any of the transactions contemplated by this Agreement collectively, a Material
Adverse Effect except those of New World Mortgage, Inc., listed on Exhibit
B.
(f)
Brokers or
Finders. No broker’s or finder’s fee will be payable by Buyer in
connection with the transaction contemplated by this Agreement, nor will any
such fee be incurred as a result of any actions by Buyer.
5. Covenants.
(a)
Examinations and
Investigations. Prior to the Closing, the parties acknowledge that they
have been entitled, through their employees and representatives, to make such
investigation and verification of the assets, properties, business and
operations, books, records and financial condition of the other, including
communications with suppliers, vendors and customers, as they each may
reasonably require. No investigation by a party hereto shall, however, diminish
or waive in any way any of the representations, warranties, covenants or
agreements of the other party under this Agreement. Consummation of this
Agreement shall be subject to the fulfillment of due diligence procedures to the
reasonable satisfaction of each of the parties hereto and their respective
counsel.
(b)
Expenses. Each
party hereto agrees to pay its own costs and expenses incurred in negotiating
this Agreement and consummating the transactions described herein.
(c)
Satisfaction of WHDX
Indebtedness. WHDX agrees and will pay to DiStefano and other creditors
of WHDX the aggregate of Two Hundred Twenty-Five Thousand Dollars ($225,000.00)
to satisfy and discharge all debts, liabilities and obligations of WHDX, the
intention and commitment being that when payment to all WHDX creditors has been
paid by Buyer, there shall be no material debts, claims, indebtedness,
obligations or liabilities owing to DiStefano or any third parties other than
those described on the most current financial statements that are the
liabilities of New World and are the responsibility of New World and are not
part of those disclosed on Exhibit B.
(d)
Auditor and Audit
Fees. Buyer and Sellers agree to retain the services of Gruber & Co
to audit the December 31, 2009 year end financial statements of WHDX (“2009
Audit”) Sellers will pay for the audit fees upon receipt of the invoice of the
auditor for such audit.
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(e)
Further
Assurances. The parties shall execute such documents and other papers and
take such further action as may be reasonably required or desirable to carry out
the provisions hereof and the transactions contemplated hereby. Each such party
shall use its best efforts to fulfill or obtain in the fulfillment of the
conditions to the Closing, including, without limitation, the execution and
delivery of any documents or other papers, the execution and delivery of which
are necessary or appropriate to the Closing.
(f)
Confidentiality. In
the event the transactions contemplated by this Agreement are not consummated,
each of the parties hereto agree to keep confidential any information disclosed
to each other in connection therewith; provided, however, such obligation shall
not apply to information which:
(i) at
the time of disclosure was public knowledge;
(ii)
after the time of disclosure becomes public knowledge (except due to the action
of the receiving party); or
(iii) the
receiving party had within its possession at the time of
disclosure.
(g) Management of
WHDX.
(i) On
the Closing date, Melissa K. Conner shall resign as a director and all other
positions of WHDX.
(ii)
Wendy Smith will resign as comptroller.
(iii)
Domingo Silvas shall be appointed as Chief Executive Officer, a director of WHDX
and Co-Chairman.
(iv)
Thomas L. DiStefano III will remain Chief Financial Officer through the annual
report filing date, at which time Buyer shall have the right to appoint a new
Chief Financial Officer.
(v)
Thomas L. DiStefano will be Co-Chairman of WHDX through the time at which a
consolidated financial statement has been prepared and delivered to the SEC in a
Form 8k.
(vi) Upon
full satisfaction of the Promissory Note by Buyer and the release of the WHDX
Shares to the Buyer, Buyer and 11i Solutions, Inc. will be the majority
shareholder of WHDX and shall have the right to designate one additional
director to the Board of Directors of WHDX. Buyer shall have the right to
appoint a comptroller immediately following the Closing.
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(h)
Name Change.
Immediately following the satisfaction of the Promissory Note, WHDX shall change
its name as determined by Buyer.
(i) New World Mortgage,
Inc. WHDX has one wholly subsidiary, New World Mortgage, Inc., a
California corporation. As reflected in the Form 10-Q for the period ended
September 30, 2009 of WHDX (“Form 10-Q”), New World has outstanding liabilities
in of approximately Two Million Two Hundred Twenty-Seven Thousand One Hundred
Thirty-Five Dollars ($2,227,135.00) (not including any interest or fees accrued
or assessed since the date of submission of the Form 10-Q ended September 30,
2009) and has been named in other lawsuits including a class action lawsuit
(collectively, “Liabilities”).
6. Investigation. Buyer shall conduct his
own investigation, due diligence, and review of the Company. Sellers have
supplied materials regarding Willing Holding, Inc., its predecessors, Perfect
Web Technologies, Inc., and its subsidiary, New World Mortgage, Inc. Buyer has
the responsibility and obligation to conduct his own investigation concerning
the Company, as well as to the materials provided by Sellers.
7. Conditions Precedent to
Closing.
(a)
Conditions Precedent
to the Obligation of WHDX to Issue the WHDX Shares. The obligation of
WHDX to issue the WHDX Shares to the Buyer and to otherwise consummate the
transactions contemplated hereby is subject to the satisfaction, at or before
the Closing, of each of the conditions set forth below.
(i)
Performance by
Buyer. Buyer shall have performed all agreements and satisfied all
conditions required to be performed or satisfied by them at or prior to the
Closing.
(ii)
No Injunction.
No statute, rule, regulation, executive order, decree, ruling or injunction
shall have been enacted, entered, promulgated or endorsed by any court or
governmental authority of competent jurisdiction which prohibits the
consummation of any of the transactions contemplated by this
Agreement.
(iii)
Accuracy of WHDX’s and
DiStefano’s Representations and Warranties. The representations and
warranties of the WHDX and DiStefano will be true and correct in all material
respects as of the date when made and as of the Closing, as though made at that
time.
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(iv)
Performance by WHDX
and DiStefano. WHDX and DiStefano shall have performed all agreements and
satisfied all conditions required to be performed or satisfied by them at or
prior to the Closing.
(v)
No Material Adverse
Changes. WHDX shall have no material changes and suffered no Material
Adverse Effect.
(vi)
WHDX Shares.
WHDX shall have delivered to the Escrow Agent pursuant to the terms of the
Escrow Agreement the Shares.
(vii)
Resignation.
WHDX shall have delivered to 11i the resignations of Melissa K. Conner, and
Wendy Smith.
(b)
Escrow
Agreement. Buyer, the Escrow Agent and WHDX shall have delivered to all
parties the Escrow Agreement, duly executed by Buyer, WHDX and Escrow
Agent.
(c)
Approval of the Board
of Directors and Shareholders. The execution, delivery and performance of
this Agreement has all required Director and Shareholder approvals. WHDX shall
have delivered to Buyer the written consent of the Board of Directors and
Shareholders of WHDX approving this Agreement and the transactions contemplated
hereby.
(d)
Miscellaneous.
Buyer and WHDX have delivered to each other such other documents relating to the
transactions contemplated by this Agreement as either party may reasonably
request.
8. Survival of Representations
and Warranties of WHDX and DiStefano.
Notwithstanding
any right of Buyer to fully investigate the affairs of WHDX, Buyer shall have
the right to rely fully upon the representations, warranties, covenants and
agreements of WHDX and DiStefano contained in this Agreement or in any document
delivered by WHDX or any of its representatives, in connection with the
transactions contemplated by this Agreement. All such representations,
warranties, covenants and agreements shall survive the execution and delivery
hereof and the Closing hereunder for Two (2) years following the
Closing.
9. Indemnification and
Release.
THIS
SECTION INTENTIONALLY DELETED
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10. Default.
(a)
If Buyer defaults in the performance of any obligation contained in this
Agreement, or any other Agreement entered into contemporaneously by the parties
hereto, or the Exhibits referenced herein, then, upon Ten (10) days written
notice to Buyer, and its failure to cure, all payments due under this Agreement
and Exhibits referenced herein shall be accelerated and due upon demand by
Sellers. Upon default by the Buyer and failure to cure within a reasonable time,
Buyer shall immediately provide the controlling interest in the Company to the
Sellers and all shares of stock it holds in the Company. Buyer agrees to execute
all documents necessary to effectuate the transfer of the controlling interest
and all of his shares in the Company or its Successor and to provide all of its
financial records during the time Buyer owned shares and/or controlled it in the
event of a default.
(b)
If Sellers defaults in the performance of any obligation contained in this
Agreement, or any other Agreement entered into contemporaneously by the parties
hereto, Buyer shall so notify Sellers in writing of such default. If the default
remains uncured by Sellers for a period of Ten (10) days from the date of the
written notice, then Buyer may have recourse against Sellers as provided for in
this Agreement. In the event of such default, Buyer may pay any proceeds owed
into a trust account of the Buyer’s choosing, until resolution of the
dispute.
(c)
“Default” as used herein means:
(i)
Failure to make payments as provided for in this Agreement and the Exhibits
hereto;
(ii)
Any other material breach or violation by Sellers or Buyer of any
representation, warranty, term, condition or covenant contained in this
Agreement and any other agreement or document entered into by the parties and
any modification or amendment thereof or hereof, which is not waived in writing
by the other party or remedied within the Ten (10) day cure period described
above;
(d)
Buyer
Default.
(i) If
Buyer fails to make a payment under this Agreement, or at the election of the
Buyer upon Seller default, then Seller has Ninety (90) days to return all
payments made hereunder and unwind this transaction. If Seller has not returned
all payments made by Buyer by the close of 5:00 pm Eastern time on the Ninetieth
(90th) day,
then all funds not returned to Buyer shall automatically convert into Class A
Common shares at a conversion price of Twenty Five Cents ($0.25) per share and
issued in the name of 11i Solutions, Inc., deliverable to the address set forth
in Section 12(j).
(ii) In
the event of a Buyer default, Domingo Silvas will resign as Chief Executive
Officer after Sellers either (A) return all monies to 11i Solutions or (B) all
certificates of stock are transferred pursuant to this Section 10
(d)(i).
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11. Definitions. As used
in this Agreement:
(a)
“Affiliate” means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with the first
Person. For the purposes of this definition, “ Control,” when used with respect
to any Person, means the possession, directly or indirectly, of the power to (i)
vote Ten Percent (10%) or more of the securities having ordinary voting power
for the election of directors (or comparable positions) of such Person or (ii)
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms “Controlling” and “Controlled” have meanings correlative to the
foregoing;
(b)
“Governmental Authority “ means any domestic or foreign governmental or
regulatory authority;
(c)
“Law” means any federal, state or local statute, law, rule, regulation,
ordinance, code, Permit, license, policy or rule of common law;
(d)
“Lien” means, with respect to any property or asset, any mortgage, lien, pledge,
charge, security interest, encumbrance or other adverse claim of any kind in
respect of such property or asset. For purposes of this Agreement, a Person will
be deemed to own, subject to a Lien, any property or asset which it has acquired
or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement relating to
such property or asset;
(e)
“Order” means any judgment, injunction, judicial or administrative order or
decree;
(f)
“Permit” means any government or regulatory license, authorization, permit,
franchise, consent or approval;
(g)
“Person” means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof;
and
(h)
“Taxing Authority” means the Internal Revenue Service or a State or local level
equivalent.
12. General.
(a)
Counterparts.
This Agreement may be signed in any number of counterparts, each of which will
be deemed an original but all of which together shall constitute one and the
same instrument.
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(b)
Amendments and
Waivers.
(i)
Any provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement, or in the case of a waiver, by the party against
whom the waiver is to be effective.
(ii)
No failure or delay by any party in exercising any right, power or privilege
hereunder will operate as a waiver thereof nor will any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
will be cumulative and not exclusive of any rights or remedies provided by
Law.
(c)
Successors and
Assigns. The provisions of this Agreement will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns; provided that no party may assign, delegate or otherwise transfer
(including by operation of Law) any of its rights or obligations under this
Agreement without the consent of each other party hereto.
(d)
No Third Party
Beneficiaries. This Agreement is for the sole benefit of the parties
hereto and their permitted successors and assigns and nothing herein expressed
or implied will give or be construed to give to any Person, other than the
parties hereto, and such permitted successors and assigns, any legal or
equitable rights hereunder.
(e)
Applicable Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Florida. Any actions commenced under this Agreement shall be venued
in either the United States District Court in Florida, or in the Supreme Court
of the State of Florida sitting in the County of Palm Beach.
(f)
Choice of
Jurisdiction. The parties agree that any action or proceeding arising
directly, indirectly or otherwise, in connection with, out of, or from this
Agreement, any breach hereof, or any transaction covered hereby shall be
resolved, whether by arbitration or otherwise, within Palm Beach County,
Florida. Accordingly, the parties consent and submit to the jurisdiction of the
state courts located within Palm Beach, Florida and to the United States Federal
Courts sitting in the Middle District of Florida.
(g)
Headings. The
division of this Agreement into paragraphs and subparagraphs and the insertion
of headings are for convenience of reference only and shall not affect the
construction or interpretation hereof.
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(h)
Entire
Agreement. This Agreement constitutes the entire agreement among the
parties and except as herein stated and in the instruments and documents to be
executed and delivered pursuant hereto, contains all of the representations and
warranties of the respective parties. There are no oral representations or
warranties amount the parties of any kind.
(i)
Severability.
If any provision of this Agreement or the application of any such provision to
any Person or circumstance is held invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, the remainder of the provisions of
this Agreement (or the application of such provision in other jurisdictions or
to Persons or circumstances other than those to which it was held invalid,
illegal or unenforceable) will in no way be affected, impaired or invalidated,
and to the extent permitted by applicable Law, any such provision will be
restricted in applicability or reformed to the minimum extent required for such
provision to be enforceable. This provision will be interpreted and enforced to
give effect to the original written intent of the parties prior to the
determination of such invalidity or unenforceability.
(j) Notices. Any notice
required or permitted to be given hereunder shall be in writing and shall be
effectively given if (i) delivered personally, (ii) sent by prepaid courier
service or mail, or (iii) sent by facsimile, telex or other similar means of
electronic communication (confirmed on the same or following day by prepaid
mail) addressed to the recipient at the address of the recipient noted below and
copies to all listed parties:
For the
Buyer:
11i
Solutions, Inc.
1690
Roberts Boulevard, Suite 117
Kennesaw,
Georgia 30144
Phone:
(561) 972-2118
Phone:
(770) 421-0590
Fax:
(561) 491-6537
Domingo
Silvas
702
Registry Run Northwest
Kennesaw,
Georgia 30152
Phone:
(561) 729-6907
Fax:
(561) 833-6006
Joshua
D. Brinen, Esq.
Brinen
& Associates, LLC
7
Dey Street, Suite 1503
New
York, New York 10007
Telephone
(212) 330-8151
Facsimile
(212) 202-5330
jbrinen@brinenlaw.com
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For the
Sellers:
Willing
Holding, Inc.
2910
NW 26th
Avenue
Boca
Raton, Florida 33434
Phone:
(561) 705-4386
Fax:
(561) 488-2569
Attention:
Thomas DiStefano III
Roxanne
Beilly, Esq.
Schneider
Weinberger & Beilly LLP
220
Corporate Boulevard NW Suite 210
Boca
Raton, Florida 33431
Any
notice so given shall be deemed conclusively to have been received when so
personally delivered or sent by telex, facsimile or other electronic
communication or on the second day following the sending thereof by private
courier or mail. Any party hereto or others mentioned above may change any
particulars of its address for notice by notice to the others in the manner
aforesaid.
SIGNATURE
PAGE TO FOLLOW
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IN WITNESS WHEREOF the parties
hereto have executed this Agreement as of the date first above
mentioned.
|
BUYER
11i
Solutions, Inc.
/s/ Domingo M.
Silvas
By:
Domingo M. Silvas, CEO
ADDRESS:
702 Registry Run
NW
Kennesaw, GA
30152
|
SELLER
Willing
Holding, Inc.
/s/ Thomas
DiStefano
Thomas
DiStefano
ADDRESS:
290 NW 26th
Ave.
Boca Raton, Fl. 33434 /s/ Thomas
DiStefano,
Thomas
DiStefano, Individually
ADDRESS:
290 NW 26th Ave.
Boca Raton, Fl. 33434 |
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EXHIBIT
A
SCHEDULE
OF CREDITORS
Legal
Fees - $ 60,721.00
Loans
Owed to Thomas L. DiStefano III/8K - $54,000.00
Accounting
Fees $ 20,000.00 - Owned to Auditor & Perfect Web Technologies,
Inc.
Rental
Fees $ 10,000.00 - NC lease.
Transfer
Agent /EDGAR fees -$ 8,910.00
Credit
Card $ 24,212.00 – Utilized to pay EDGAR and accounting.
Interest
Expense $ 4,240.00 - Owed to former CEO who continues to pay credit card
interest expense.
Transaction
Costs $ 42,917.00 - Pay all outstanding expenses current management
costs.
TOTAL
$ 225,000.00
EXHIBIT
B
LAWSUITS,
JUDGMENTS, CLAIMS, CAUSES OF ACTION
EXHIBIT
C
TAX
RETURNS
EXHIBIT
D
INDEMNIFICATION
AGREEMENT