Subsidiary Stock Purchase Agreement between Barry Binder, Ian Binder, Robert Sautter, and BIB Holdings, Ltd.

Summary

This agreement, dated November 2004, is between Barry Binder, Ian Binder, Robert Sautter (the Purchasers), and BIB Holdings, Ltd. (the Company). The Company agrees to sell all shares of its subsidiary, BIB Ltd., to the Purchasers. In exchange, the Purchasers will transfer 250,000 shares of the Company's stock back to the Company and assume all liabilities of BIB Ltd., except for certain debt. The agreement also requires the Company to release collateral on a property and both parties to cooperate to complete the transaction.

EX-2.3 4 v09481_ex2-3.txt EXHIBIT 2.3 Subsidiary Stock PURCHASE AGREEMENT This SUBSIDIARY STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into as of November___, 2004, between Barry Binder, Ian Binder and Robert Sautter (`Purchaser") and BIB Holdings, Ltd., a Nevada corporation (the "Company"). WHEREAS, the Company has recently acquired Incode Corporation, a company formed under the laws of the State of Delaware ("Incode"), pursuant to an Agreement and Plan of Merger (the "Merger Agreement"); WHEREAS, prior to the acquisition of Incode, the Company's sole business consisted of its ownership of 100% of the issued and outstanding capital stock of BIB Ltd., a corporation formed pursuant to the laws of the State of Nevada ("BIB Ltd"); WHEREAS, the Company has been unsuccessful to date in developing the business of BIB Ltd and the Company believes it is in its best interest to dispose of BIB Ltd, and focus its resources on the business and operation of Incode; and WHEREAS, the Purchaser is willing to accept all of the outstanding capital stock of BIB Ltd, together with all of the liabilities and obligations of BIB Ltd, together with specified obligations of the Company; NOW, THEREFORE, in consideration of the foregoing and the terms and conditions hereof, the parties hereto agree as follows: ARTICLE I PURCHASE AND SALE OF STOCK AND SPECIFIED OBLIGATIONS 1.1 TRANSFER OF BIB LTD Subject to the terms and conditions hereof, on the Closing Date (as defined below), the Company shall sell, convey, transfer, assign and deliver to Purchaser and Purchaser shall purchase from the Company all of the issued and outstanding common shares of BIB Ltd, free of all liens, charges or other encumbrances (the "BIB Ltd Stock"). 1.2 PROVISION OF COLLATERAL The Company is currently party to convertible debentures issued to Cornell Capital Partners, L.P. ("Cornell") in February 2004. These debentures are currently secured by the real property of BIB Ltd located in Pennsylvania and used in connection with the business of BIB Ltd (the "PA Building"). On the Closing Date, the Company shall provide Cornell with sufficient collateral to obtain the release of the PA Building as collateral for Cornell. 1.3 THE CLOSING The closing of this Agreement (the "Closing") shall occur on November , 2004 (the "Closing Date") at 10:00 a.m. local time at the offices of Sichenzia Ross Friedman Ference LLP, New York, New York, or such other time or location as the parties hereto shall agree. 1.4 DELIVERIES AT THE CLOSING On the Closing Date in order to effectuate the transfer of the BIB Ltd Stock: (a) The Company shall deliver to Purchaser certificates representing all of the BIB Ltd Stock, free and clear of any claim, lien, pledge, option, charge, easement, security interest, right-of-way, encumbrance, restriction on sale or transfer, preemptive right or option or any other right of any third party of any nature whatsoever ("Encumbrance"), duly endorsed in blank for transfer or accompanied by stock powers duly executed in blank; (b) The Company shall deliver documents sufficient to evidence the release of lien on the PA Building; (c) Purchaser and the Company shall each deliver all documents, certificates, agreements and instruments required to be delivered pursuant to Articles IV and V; and (d) All instruments and documents executed and delivered to any party pursuant hereto shall be in a form and substance, and shall be executed in a manner, reasonably satisfactory to the receiving party. 1.5 PURCHASE PRICE Subject to the terms and conditions of this Agreement, the total purchase price for the BIB Ltd Stock (the "Purchase Price") shall be delivery by Purchaser to the Company of 250,000 shares of the Company's common stock, together with stock powers duly endorsed for transfer in blank, signature medallion or bank guaranteed (the "Purchaser Stock"), and the assumption of and indemnification against any and all liabilities of the Company and BIB Ltd, with the sole exception of debt payable to Cornell, prior to the Closing. The Purchaser agrees and acknowledges that the Purchaser Stock shall be cancelled upon delivery to the Company. In further consideration for the sale of BIB Ltd. Stock, the Purchaser agrees and acknowledges that BIB Ltd. has indemnified Incode and Incandent Capital, L.L.C. pursuant to sections 3.2 and 3.3 of the Merger Agreement and that such indemnification obligations are continuing obligations of BIB Ltd. 1.6 ASSISTANCE IN CONSUMMATION OF THIS AGREEMENT Purchaser and the Company shall provide all reasonable assistance to, and shall cooperate with, each other to bring about the consummation of the purchase and sale of the BIB Ltd Stock and the other transactions contemplated herein as soon as possible in accordance with the terms and conditions of this Agreement. ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company hereby represents and warrants to Purchaser, as of the date of this Agreement and as of the Closing (which representations and warranties shall survive the Closing Date to the extent provided in Section 7.5 hereof): 2.1 GOOD TITLE The BIB Ltd Stock is owned by the Company with good and marketable title thereto, free and clear of any Encumbrance. 2.2 ORGANIZATION, GOOD STANDING The Company is a corporation duly incorporated, validly existing and in good standing under the laws of Nevada, and has all requisite corporate power and authority to own, operate and lease its properties and assets and to carry on its business as now conducted. BIB Ltd., is a corporation duly incorporated, validly existing and in good standing under the laws of Nevada, and has all requisite corporate power and authority to own, operate and lease its properties and assets and to carry on its business as now conducted. 2.3 AUTHORIZATION The Company has the full corporate power and authority enter into this Agreement and each of the documents to which it is a party, and to carry out the transactions contemplated hereby and thereby. This Agreement has been duly executed and delivered by the Company, and this Agreement is, and will be, on the Closing Date, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with the terms of this Agreement. 2.4 NO APPROVALS OR NOTICES REQUIRED; NO CONFLICTS WITH INSTRUMENTS The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby will not (a) constitute a violation (with or without the giving of notice or lapse of time, or both) of any provision of law or any judgment, decree, order, regulation or rule of any court or other governmental authority applicable to the Company, or (b) require any consent, approval or authorization of, or declaration, filing or registration with, any person, corporation, partnership, joint venture, association, organization, other entity or governmental or regulatory authority (a "Person"). 2.5 AUTHORIZED CAPITALIZATION OF BIB LTD BIB Ltd's authorized capital stock consists solely of common shares of which 200 shares are issued and outstanding on the date of this Agreement and entirely held by the Company. All issued and outstanding shares of BIB Ltd Stock are validly issued, fully paid and nonassessable. The Company is the sole owner of all issued and outstanding shares of capital stock of BIB Ltd. There are no outstanding or authorized subscriptions, options, warrants, calls, rights, commitments or other agreements of any character which obligate or may obligate BIB Ltd to issue any additional shares of any of its capital stock or any securities convertible into or evidencing the right to subscribe for any shares of any such capital stock. There are no voting trusts or other agreements or understandings with respect to the capital stock of BIB Ltd to which the Company is a party or by which the Company is bound. 2.6 BROKERS AND FINDERS The Company has not retained any broker or finder in connection with the transactions contemplated by this Agreement. ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser represents and warrants to the Company, as of the date of this Agreement and as of the Closing (which representations and warranties shall survive the Closing to the extent provided in Section 7.5 hereto): 3.1 AUTHORITY Purchaser has full power and authority to execute, deliver and perform this Agreement and to carry out the transactions contemplated hereby. This Agreement has been duly executed and delivered by Purchaser, and this Agreement is, and will be, on the Closing Date, a legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms. 3.2 NO APPROVALS OR NOTICES REQUIRED; NO CONFLICTS WITH INSTRUMENTS The execution, delivery and performance of this Agreement by Purchaser and the consummation of the transactions contemplated hereby will not (a) constitute a violation (with or without the giving of notice or lapse of time, or both) of any provision of law or any judgment, decree, order, regulation or rule of any court or other governmental authority applicable to Purchaser, or (b) require any consent, approval or authorization of, or declaration, filing or registration with, any Person. 3.3 OWNERSHIP OF THE PURCHASER STOCK The Purchaser Stock is owned by the Purchaser with good and marketable title thereto, free and clear of any Encumbrance. 3.4 SATISFACTION OF COMPANY OBLIGATIONS Upon the sale of BIB Ltd to the Purchaser, the Company shall have no further material debts or liabilities other than amounts due to Cornell as set forth on Schedule A. 3.5 BROKERS AND FINDERS Purchaser has not retained any broker or finder in connection with the transactions contemplated by this Agreement. ARTICLE IV CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER The obligations of Purchaser to perform and observe the covenants, agreements and conditions hereof to be performed and observed by them at or prior to the Closing Date shall be subject to the satisfaction of the following conditions on or prior to the Closing Date, which condition may be expressly waived in writing by Purchaser. 4.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES The representations and warranties of the Company contained herein shall have been true in all material respects when made and shall be true as of the Closing Date as though made on that date, except as affected by transactions contemplated hereby and except to the extent that such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true in all material respects as of the specified date. 4.2 PERFORMANCE OF AGREEMENT The Company shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions contained in this Agreement to be performed and complied with by them at or prior to the Closing Date. 4.3 DELIVERY OF SHARES Purchaser shall have received certificates representing the BIB Ltd Stock, together with stock powers duly endorsed in blank. ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY The obligations of the Company to perform and observe the covenants, agreements and conditions hereof to be performed and observed by it at or prior to the Closing Date shall be subject to the satisfaction of the following conditions on or prior to the Closing Date, which conditions may be expressly waived in writing by the Company. 5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES The representations and warranties of Purchaser contained herein shall have been true in all material respects when made and shall be true in all material respects as of the Closing Date as though made on that date, except as affected by transactions contemplated hereby and except and to the extent that such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true as of the specified date. 5.2 PERFORMANCE OF AGREEMENT Purchaser shall have performed all obligations and agreements and complied with all covenants and conditions contained in this Agreement to be performed and complied with by them at or prior to the Closing Date. 5.3 DELIVERY OF SHARES The Company shall have received certificates representing the Purchaser Stock, together with stock powers duly endorsed in blank, signature guaranteed. ARTICLE VI TERMINATION 6.1 This Agreement may be terminated at any time prior to the Closing: (a) by the mutual consent of Purchaser and the Company; (b) by the Company (provided that the Company is not then in material breach of any representation, warranty, covenant or other agreement contained herein for which the Purchaser shall have previously notified the Company), if there has been a breach by the Purchaser of any of its representations, warranties, covenants or agreements contained in this Agreement, or any such representation and warranty shall have become untrue, and such breach or condition has not been promptly cured within 30 days following receipt by the Purchaser of written notice of such breach; and (c) by the Purchaser (provided that the Purchaser is not then in material breach of any representation, warranty, covenant or other agreement contained herein for which the Company shall have previously notified the Purchaser), if there has been a breach by the Company of any of its representations, warranties, covenants or agreements contained in this Agreement, or any such representation and warranty shall have become untrue, and such breach or condition has not been promptly cured within 30 days following receipt by the Company of written notice of such breach. 6.2 In the event of termination of this Agreement pursuant to this Article VI, written notice thereof shall be given as promptly as practicable to the other party to this Agreement and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned, without further action by any of the parties hereto. If this Agreement is terminated as provided herein (a) there shall be no liability or obligation on the part of the Seller, the Purchaser, or their respective officers, directors and Affiliates, and all obligations of the parties shall terminate, except for that a party that is in material breach of its representations, warranties, covenants, or agreements set forth in this Agreement shall be liable for damages occasioned by such breach, including without limitation any expenses, including the reasonable fees and expenses of attorneys, accountants and other agents, incurred by the other party in connection with this Agreement and the transactions contemplated hereby; provided, however, that the Purchaser shall not be deemed to be in material breach of this Agreement solely by reason of its inability to satisfy one or more of the conditions set forth in Section 7 if the Purchaser is attempting to satisfy such conditions in good faith. ARTICLE VII GENERAL 7.1 COOPERATION Each party hereto will fully cooperate with the other parties, their counsel and accountants in connection with any steps required to be taken as part of its obligations under this Agreement. Each party will use its reasonable best efforts to cause all conditions to this Agreement to be satisfied as promptly as possible and to obtain all consents and approvals necessary for the due and punctual performance of this Agreement and for the satisfaction of the conditions hereof. No party will undertake any course of action inconsistent with this Agreement or which would make any representations, warranties or agreements made by such party in this Agreement untrue or any conditions precedent to this Agreement unable to be satisfied at or prior to the Closing. 7.2 CONFIDENTIALITY In connection with the transactions contemplated herein, the Company and Purchaser are furnishing each other with certain information which is either nonpublic, confidential or proprietary in nature. All such information furnished by one party to the other or its representatives is hereinafter referred to as the "Confidential Information." As used in this Agreement, the "representatives" of any party shall mean such party's officers, employees, agents or other representatives, including, without limitation, attorneys, accountants, consultants and financial advisors. In consideration of each party's being furnished with the Confidential Information of the other, each party agrees that: (a) The Confidential Information will be kept confidential and except as required by law will not, without the prior written consent of the party supplying the information, be disclosed by the receiving party or its representatives during such three-year period in any manner whatsoever, in whole or in part, and will not be used by the receiving party or its representatives directly or indirectly for any purpose other than evaluating and facilitating the transactions contemplated herein; provided, however, that upon the execution of this Agreement by the parties, the Company and its representatives will be free to use the Confidential Information to the extent required by law in any subsequent filings with federal or state authorities relating to the transactions contemplated herein. Each party agrees to transmit the Confidential Information only to those of its representatives who need to know the Confidential Information for the purpose of advising it regarding any of the purposes for which it is permitted to use the Confidential Information under the terms of this Agreement, who are informed by the party supplying such information of the confidential nature of the Confidential Information and who are directed by such party to comply with the terms of this Agreement. Each party will be responsible for any material breach of this Agreement by its representatives. (b) Without the prior written consent of the other parties to this Agreement, no party or any of its representatives will disclose to any other Person the fact that the Confidential Information has been made available, or any of the terms, conditions or other facts with respect to the transactions contemplated herein, including the status thereof, except as required by law or permitted under the terms of this Agreement. (c) In the event the parties do not proceed with the transactions contemplated herein, the Confidential Information and all copies thereof will be destroyed or returned promptly without retaining any copies thereof. (d) This Section 7.2 shall be inoperative as to such portions of the Confidential Information which (i) are or become generally available to the public other than as a result of a disclosure by the receiving party or its representatives which is not required by law; (ii) become available to the receiving party from a source with no obligation of confidentiality to the other party; (iii) describe technology independently developed by the receiving party; or (iv) were known to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the supplying party or one of its representatives. (e) In the event that a receiving party or any of its representatives is requested or becomes legally compelled (by written or oral interrogatories, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information for purposes not permitted by this Agreement, the receiving party will provide the supplying party with prompt written notice so that the supplying party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the supplying party waives compliance with the provisions of this Agreement, the receiving party will furnish only that portion of the Confidential Information which is legally required, and will exercise good-faith efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information. (f) Each party agrees that the other parties shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of clause (a), (b), (c) or (e) of this Section 7.2. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 7.2 by any party or its representatives but shall be in addition to all other remedies available at law or equity. (g) It is further understood and agreed that no failure or delay by any party in exercising any right, power or privilege under this Section 7.2 shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. 7.3 FURTHER ACTS After the Closing Date, each party hereto, at the request of and without any further cost or expense to the other parties, will take any further actions necessary or desirable to carry out the purposes of this Agreement. 7.4 AMENDMENT The parties may amend, modify or supplement this Agreement at any time, but only in writing duly executed on behalf of each of the parties to be bound thereby. 7.5 SURVIVAL OF WARRANTIES The representations and warranties contained in this Agreement shall survive the Closing for a period of three (3) years from the Closing. 7.6 EXPENSES Each of the parties hereto shall pay its own fees and expenses (including the fees of any attorneys, accountants, or others engaged by such party) in connection with this Agreement and the transactions contemplated hereby whether or not the transactions contemplated hereby are consummated. 7.7 COUNTERPARTS This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 7.8 HEADINGS The headings preceding the text of Articles and Sections of this Agreement are for convenience only and shall not be deemed parts thereof 7.9 APPLICABLE LAW The Company and Purchaser hereby submit and consent to the exclusive venue and jurisdiction of the Superior Court of the State of New Jersey, County of Bergen, in respect of the interpretation and enforcement of the provisions of this Agreement, and hereby waive and agree not to assert as a defense in any action, suit or proceeding for the interpretation or enforcement of this Agreement, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that this Agreement may not be enforced in or by said courts or that its property is exempt or immune from execution, that the suit, action or proceeding is brought in an inconvenient forum, or that the venue of the suit, action or proceeding is improper. The Company and Purchaser agree that service of process may be made in any manner permitted by the laws of the State of New Jersey or the federal laws of the United States in any such action, suit or proceeding against the Company or Purchaser with respect to this Agreement, and the Company and Purchaser hereby irrevocably designate and appoint Richard Lambert, Esq. and Sichenzia Ross Friedman Ference LLP, as their respective authorized agents upon which process may be served in any such action, suit or proceeding, it being understood that such appointment and designation shall become effective without any further action on the part of the Company or Purchaser. Service of process upon such authorized agent shall be deemed, in every respect, effective service of process upon the Company or Purchaser and shall remain effective until Seller or Purchaser shall appoint another agent for service or process acceptable to the other Party. The Company and Purchaser agree that final judgment (with all right of appeal having expired or been waived) against it in any such action, suit or proceeding shall be conclusive and that the other Party is entitled to enforce such judgment in any other jurisdiction by suit on the judgment, a certified copy of which shall be conclusive evidence of the fact and amount of indebtedness arising from such judgment. 7.10 PARTIES IN INTEREST All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto, whether herein so expressed or not, but neither this Agreement nor any of the rights, interests or obligations hereunder of any party hereto shall be assigned without the prior written consent of the other parties. This Agreement is not intended, nor shall it be construed, to confer any enforceable rights on any Person not a party hereto. 7.11 NOTICES Any notice or demand desired or required to be given hereunder shall be in writing given by personal delivery or certified or registered mail, reputable overnight courier service, telegram or confirmed facsimile transmission, addressed as respectively set forth below or to such other address as any party shall have previously designated by such a notice, The effective date of any notice or request shall be three days from the date it is mailed by the addressor, upon delivery of the courier package if it is sent by courier, upon delivery to a telegraph company properly addressed with charges prepaid, upon confirmation of a successful facsimile transmission, or in any event upon personal delivery. Notices to Purchaser and the Company shall be sent as follows: To Company: BIB Ltd Holdings, Ltd. 111 Howard Street, Suite 108 Mount Arlington, New Jersey 07856 Attn: Jim Grainer Phone: (973) 398-8183 Telecopier: (973) 398-8037 Copy to: Richard Lambert, Esq. Dunn & Lambert, L.L.C. 80 East State Route 4 Paramus, New Jersey 07652 Phone: (201) 291-0700 Telecopier: (201) 291-0140 To Purchaser: Mark and Gail Binder 7409 Oak Grove Avenue Las Vegas, Nevada 89117 Phone: (702) 243-8809 Telecopier: (845) 365-0855 Copy to: Sichenzia Ross Friedman Ference LLP 1065 Avenue of the Americas, 21st Floor New York, New York 10018 Attn: Thomas A. Rose, Esq. Phone: (212) 930-9700 Telecopier: (212) 930-9725 7.12 FORCE MAJEURE. Neither Party hereto shall be liable for failure to perform any obligation under this Agreement if such failure to perform is caused by the occurrence of any contingency beyond the reasonable control of such party, including, without limitation, fire, flood, strike or other industrial disturbance, failure of transport, accident, war, riot, insurrection, act of God or order of governmental agency or act of terrorism. Performance shall be resumed as soon as is possible after cessation of such cause. However, if such inability to perform continues for more than ninety (90) days, the other party may terminate this Agreement without penalty and without further notice. IN WITNESS WHEREOF, the parties hereto have entered into and signed this Agreement as of the date and year first above written. /S/ Barry Binder ---------------------------------- Barry Binder /S/ Ian Binder ---------------------------------- Ian Binder /S/ Robert Sautter ---------------------------------- Robert Sautter BIB HOLDINGS, LTD. By: /S/ Jim Grainer ------------------------------ Jim Grainer, President and CFO