Exhibit 10.4
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT ("Agreement") made as of November 9,
2004
between Dennis Crowley, of Highland Beach, Florida ("Crowley"), PNC
Tool
Holdings LLC, a Nevada limited liability company (the "Seller), and
Spear &
Jackson, Inc. of Boca Raton, Florida (the "Buyer")
Recitals
WHEREAS, the Seller is the owner of 6,005,561 shares of Spear
&
Jackson, Inc common stock (the "Shares") representing 100% of its
stock
ownership interest in Buyer;
WHEREAS, Crowley is the beneficial owner of 100% of the equity
interest
of Seller; and
WHEREAS, the Seller has agreed to sell the Shares to the Buyer and
the
Buyer has agreed to purchase the Shares from the Seller; on the
terms and
conditions set forth in the Agreement;
NOW THEREFORE, in payment of $100 and such other good and
valuable
consideration hereby acknowledged by the parties, it is therefore
agreed:
1. SALE. The Seller shall sell and the Buyer shall purchase all of
the
Shares for the total sum of $100-00.
2. CONDITION PRECEDENT. The obligations of the Seller to sell and
of
the Buyer to buy the Shares are expressly conditioned upon:
(i) The resolution of the litigation between Crowley, the
Seller and the Securities and Exchange Commission ("SEC")
captioned, SEC v.
Dennis Crowley, Spear & Jackson, Inc., International Media
Solutions, LLC.,
Yolanda Velazquez, and Kermit Silva, United States District Court,
Southern
District of Florida Case No.: 04-80354-civ-Middlebrooks (the
"Litigation");
(ii) The approval of the Court overseeing the Litigation, if
necessary; and
(iii) The disgorgement and civil penalties required to be paid
by Crowley to paragraph 3 (e) and 3 (f) of the "Crowley Proposed
Consent"
attached as Exhibit "1" relating to allegations involving Buyer
shall be paid
into a "Disgorgement Fund" established pursuant to the provisions
of Section
.308 of the Satbanes-Oxley Act of 2002 for the purpose of
satisfying claims of
third parties arising from matters related to Crowley's involvement
with Buyer,
including, but not limited to, claims that have been or may
hereafter be
asserted in class actions.
3. CROWLEY AND SELLER'S REPRESENTATIONS AND WARRANTIES.
(i) The Shares are duly and validly issued, outstanding, fully
paid and non-assessable;
(ii) There are no outstanding options, pledges, warrants, or
agreements of any kind which encumber the Shares or provide rights
to the Shares
in any person not patty to this Agreement;
(iii) The Seller has complete and unrestricted power to sell,
convey, assign, transfer and deliver the Shares to Buyer, subject
to satisfying
the conditions in P. 12 above;
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(iv) The transfer of the Shares pursuant to this Agreement
will pass to Buyer good, valid and marketable title to the Shares,
free and
clear of all liens, pledges, options, charges, and adverse claims
of every
nature; and
(v) Upon delivery of the Shares to Buyer pursuant to this
Agreement, Buyer will have good, valid and marketable title to the
Shares.
4. CONDITIONS PRECEDENT FOR BUYER. All obligations of the Buyer
under
this Agreement are, at its option, subject to the fulfillment,
prior to or at
the closing, of each of the following conditions:
(i) Representations and warranties true at closing. The
Seller's and Crowley's representations and warranties contained in
this
Agreement shall be true at the time of closing as though such
representations
and warranties were made at closing.
(ii) Performance. The Seller and Crowley shall have performed
and complied with all agreements and conditions required by this
Agreement to be
performed or complied with by them prior to or at the closing.
(iii) Release. Seller and Crowley shall execute and deliver
the release set forth in Exhibit "2".
5. BUYER'S REPRESENTATIONS AND WARRANTIES. The Buyer has full
corporate
power and authority to purchase the Shares. This Agreement
(including exhibits)
has been duly authorized by Buyer and when executed and delivered
by Buyer, will
constitute the legal, valid and binding obligation of Buyer
enforceable against
the Buyer in accordance with its terms.
6. CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE. The obligations
of
Seller to sell and transfer the Shares are subject to the
.satisfaction, at or
before the Closing, of all the following conditions set forth below
in this
paragraph. Seller may waive any or all of these conditions in whole
or in part
without prior notice.
(i) Buyer shall have performed, satisfied and complied with
all the covenants, agreements and conditions required by this
Agreement to be
performed and complied with by Buyer on or before the Closing.
(ii) All corporate proceedings required by law or by the
provisions of this Agreement to be taken by Buyer on or before the
Closing in
connection with the execution and delivery of this Agreement have
been duly and
validly taken.
(iii) The conditions of P. 2 have been satisfied.
(iv) Buyer has paid the Seller the purchase price for the
Shares.
(v) Buyer shall have executed and delivered the release set
forth in Exhibit "3".
7. INDEMNIFICATION. The Seller and Crowley shall indemnify and
hold
harmless the Buyer, at all times after the date of this Agreement,
against and
in respect of any damage or deficiency resulting from any
misrepresentation or
breach of warranty under this Agreement, or from any
misrepresentation in or
omission from any certificate or other instrument furnished or to
be furnished
to the Buyer hereunder, which indemnity shall include all damages
resulting from
any actions, suits, proceedings, demands, assessments, judgments,
costs,
attorney's fees, and expenses incident to any of the foregoing.
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8. COVENANT OF BUYER. Buyer will use its best effort and upon
consultation with counsel for former or present officers and
directors who are
named as parties in any currently filed class actions or in any
subsequent class
actions and only to the extent Buyer believes it to be in the
Buyer's self
interest, to settle the claims on behalf of itself and all of its
former or
present officers and directors who are named as parties in the
currently filed
class actions, or in any subsequent class action in which the Buyer
is named as
a party, that relates to or alleges causes of action that arise out
of the same
subject matter as the Litigation,.
9. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations,
warranties, and covenants made by the Seller; Crowley and Buyer in
this
Agreement shall survive the closing and any investigation at any
time made by or
on behalf of the Seller, Crowley and Buyer.
10. CLOSING. This transaction shall close within three business
days of
the satisfaction of the conditions expressed in P. 2.
11. NOTICE. All notices pursuant to this Agreement shall be in
writing
and shall be sufficient if delivered, sent or mailed registered or
certified
mail, postage prepaid, by facsimile or by personal delivery as
follows:
If to Seller:
Dennis Crowley
c/o William Nortman, Esq.
Akerman Senterfitt
350 E. Las Olas Boulevard
Suite 1600
Fort Lauderdale, Florida 33131
If to Purchaser: Jack
Harrington
Harrington Capital Management
401 S. LaSalle Street
#201
Chicago, Illinois 60605
Copy to:
Allan M. Lerner, Esq.
2888 E. Oakland Park Boulevard
Fort Lauderdale, Florida 33306-1814
Copy to:
Soneet Kapila, Esq.
Court-Appointed Corporate Monitor
for Spear & Jackson
c/o Scott L. Baena, Esq.
Bilzin Sumberg Baena Price & Axelrod, LLP
200 S. Biscayne Boulevard
Suite 2500
Miami, Florida 33131
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12. MISCELLANEOUS.
(i) No Commission or Brokerage. The Seller and Crowley
represent and warrant that all negotiations relative to this
Agreement have been
carried on by them directly with the Buyer, without the
intervention of any
person, and the Seller and Crowley shall indemnify the Buyer and
hold it
harmless against and in respect of any claim for brokerage or other
commissions
relative to this Agreement, or to the transactions contemplated
hereby, and also
in respect of all expenses of any character incurred by the Seller
in connection
with this agreement or such transactions.
(ii) Each party pays own costs. Each of the parties shall pay
all costs and expenses incurred or to be incurred by it in
negotiating and
preparing this Agreement and in closing and carrying out the
transactions
contemplated by this Agreement..
(iii) Headings. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for the purposes of
convenience
only and shall not affect the construction or interpretation of any
of its
provisions.
(iv) Entire Agreement. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter
contained in it
and supersedes all prior and contemporaneous agreements,
representations and
understandings of the parties. No supplement, modification or
amendment of this
Agreement shall be binding unless executed in writing by all of the
parties. No
waiver of any of the provisions of this Agreement shall be deemed
or shall
constitute a waiver of any other provisions, whether or not
similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be
binding unless
executed in writing by the party making the waiver.
(v) Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be
deemed an
original, but all of which together shall constitute one and the
same
instrument..
(vi) No third party beneficiaries. Nothing in this Agreement,
whether express or implied, is intended to confer any rights or
remedies under
or by reason of this Agreement on any persons other than the
parties to it and
their respective successors and assigns. Nothing in this Agreement
is intended
to relieve or discharge the obligation or liability of any third
persons to any
party to this Agreement, nor shall any provision give any third
persons any
right of subrogation or action over against any party to this
Agreement.
(vii) Successors and assigns. This Agreement shall be binding
on, and shall inure to the benefit of, the parties to it and their
respective
heirs, legal representatives, successors and assigns. Buyer may
assign all its
right, title and interest under this Agreement to a wholly-owned
subsidiary
corporation of Buyer. No such assignment by Buyer to its
wholly-owned subsidiary
shall relieve Buyer of any of its obligations or duties under this
Agreement.
(viii) Legal expenses. If any legal action is brought for the
enforcement of this Agreement, or because of an alleged dispute,
breach, default
or misrepresentation in connection with any of the provisions of
this Agreement,
the successful or prevailing party shall be entitled to recover
reasonable
attorneys' fees and other costs incurred in that action or
proceeding or any
appeal therefrom, in addition to any other relief to which it may
be entitled.
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(ix) Benefit. This agreement shall be binding upon and shall
inure to the benefit of the parties, their legal representatives,
successors and
assigns.
IN WITNESS WHEREOF the parties have signed this agreement.
SELLER: PNC TOOL
HOLDINGS LLC
/s/ Dennis Crowley
By: /s/ Dennis Crowley, President
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Dennis Crowley
Dennis Crowley
BUYER: SPEAR AND JACKSON, INC.
By: /s/ John R. (Jack) Harrington, Jr.
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