STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of April 2, 2001 (this "Agreement"),
among Xxxx Xxxxxxx, Pacific Growth Investments Ltd., First Pacific Capital Ltd.
and First Pacific Co., each having an address c/o Xxxx Xxxxxxx, 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Sellers"), and Xxxxxx X.X.
Xxx (the "Purchaser"), who has an address at 00 Xxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000.
BACKGROUND
The Sellers are the owners of 2,395,878 shares of common stock, $.001
par value per share ("Common Stock"), of Panagra International Corp., a New York
corporation (the "Company"). The Purchaser desires to purchase 2,195,878 of such
shares (the "Shares") from the Sellers, and the Sellers desires to sell the
Shares to the Purchaser, on the terms and conditions set forth below.
NOW, THEREFORE, the parties hereto for good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged hereby agree as
follows:
1. Sale of Shares; Purchase Price. Subject to the terms and conditions
set forth herein, the Purchaser shall purchase the Shares from the Sellers, and
the Sellers shall sell the Shares to the Purchaser, for a total price of One
Hundred Eighty Thousand Dollars ($180,000) (the "Purchase Price).
2. Closing.
(a) Closing. The closing (the "Closing") of the transactions
contemplated hereby is taking place simultaneously with the execution
and deliver of this Agreement.
(b) Deliveries. At the Closing, the parties shall make the
following deliveries to each other:
(i) The Sellers shall deliver to the Purchaser a
certificate or certificates representing the Shares with all
necessary stock transfer stamps, if any are required, affixed
thereto, accompanied by an executed stock transfer power duly
endorsed in blank with signature guaranteed and such other
documents as may be necessary to effect the transfer of the
Shares to the Purchaser free and clear of all liens, claims,
charges, security interests, and encumbrances of any kind
whatsoever.
(ii) The Purchaser shall deliver the Purchase Price
to the Sellers by delivery of a check in the amount of the
Purchase Price.
(iii) First Pacific Capital Ltd is executing and
delivering to the Company a consulting agreement in a form
satisfactory to the Purchaser.
(iv) The Company, in consideration of the consulting
agreement referred to in Section 2(b)(iii) above, is
delivering to First Pacific Capital Ltd a three year warrant
to purchase 500,000 shares of the Company's Common Stock at an
exercise price per share equal to $.20 and having a cashless
exercise provision. The warrant vests on a monthly basis over
one year and vesting is accelerated if the Company terminates
the consulting relationship for any reason.
(v) The Sellers are delivering to the Purchaser
evidence that the board of directors of the Company has been
set at 3 persons, that Xxxxx Xxxxxx has resigned from the
Board and that the Purchaser and a person designated by the
Purchaser have been elected to the Board of Directors of the
Company.
3. Representations and Warranties of Seller. Each Seller jointly and
severally represents and warrants to the Purchaser that:
(a) Shares. The Sellers own the Shares, of record and
beneficially, free and clear of all liens, claims, charges, security
interests, preemptive rights, restrictions on transfer (other than
restrictions under the Securities Act of 1933, as amended (the
"Securities Act")) and any other encumbrances of any kind whatsoever
("Liens"). The Sellers acquired the Shares in a transaction or
transactions exempt from the registration requirements of the
Securities Act three or more years ago. The Sellers have sole control
over the Shares or sole discretionary authority over any account in
which they are held. The Shares were duly and validly issued and are
fully-paid and non-assessable. Upon delivery of the Shares pursuant to
this Agreement, the Purchaser will acquire valid title thereto, free
and clear of any Lien. The Company has filed all reports, registration
statements, definitive proxy statements and other documents and all
amendments thereto and supplements thereof required to be filed by it
with the U.S. Securities and Exchange Commission since March 31, 2000
(the "SEC Reports"), all of which have complied in all material
respects with the applicable requirements of the Securities Act of
1933, as amended (the "Securities Act"), the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the rules and regulations
promulgated thereunder. As of the respective dates of filing in final
or definitive form (or, if amended or superseded by a subsequent
filing, then on the date of such subsequent filing), none of the
Company's SEC Reports 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 in which they were made, not misleading.
(b) Enforceability; Organization of Company; No Subsidiaries.
The Sellers have full right, power and authority to execute, deliver
and perform this Agreement and to carry out the transactions
contemplated hereby. This Agreement has been duly and validly executed
and delivered by each of the Sellers and constitutes a valid, binding
obligation of each of the Sellers, enforceable against each Seller in
accordance with its terms. The Company is a corporation duly organized,
validly existing, and in good standing under the jurisdiction of its
incorporation. The Company is duly authorized to conduct business and
is in good standing under the laws of each jurisdiction where such
qualification is required. The Company has full corporate power and
authority and all licenses, permits, and authorizations necessary to
carry on its business. The Company has no subsidiaries and does not
control, directly or indirectly, or have any direct or indirect equity
participation in any entity. The Sellers have delivered to the
Purchasers true, correct and complete copies of the Certificate of
Incorporation and Bylaws of the Company, as amended through the date
hereof.
(c) No Broker. Each Seller has in connection with the
transactions contemplated hereby and all aspects thereof, dealt
directly with the Purchaser and has no arrangement or understanding
with or obligation to any broker or other intermediary.
(d) Capitalization; No Restrictive Agreements. The Company's
authorized capital stock, as of the date of this Agreement, consists of
40,000,000 shares of Common Stock, $.001 par value per share, of which
3,600,000 shares are issued and outstanding. The Company has not
reserved any shares of its Common Stock for issuance upon the exercise
of options, warrants or any other securities that are exercisable or
exchangeable for, or convertible into, Common Stock. All of the issued
and outstanding shares of Common Stock are validly issued, fully paid
and non-assessable and have been issued in compliance with applicable
laws, including, without limitation, applicable federal and state
securities laws. There are no outstanding options, warrants or other
rights of any kind to acquire any additional shares of capital stock of
the Company or securities exercisable or exchangeable for, or
convertible into, capital stock of the Company, nor is the Company
committed to issue any such option, warrant, right or security. There
are no agreements relating to the voting, purchase or sale of capital
stock (i) between or among the Company and any of its stockholders,
(ii) between or among the Sellers and any third party, or (iii) to the
best knowledge of the Sellers between or among any of the Company's
stockholders. The Company is not a party to any agreement granting any
stockholder of the Company the right to cause the Company to register
shares of the capital stock of the Company held by such stockholder
under the Securities Act.
(e) Financial Statements. The Sellers have provided to the
Purchaser the audited balance sheet and statements of income, changes
in stockholders' equity and cash flows as of and for the period
commencing upon inception and ended December 31, 2000 (the "Financial
Statements"). The Financial Statements have been prepared in accordance
with United States generally accepted accounting principles applied on
a consistent basis, fairly present the financial condition, results of
operations and cash flows of the Company as of the respective dates
thereof and for the periods referred to therein and are consistent with
the books and records of the Company. The Company does not have any
liability (whether known or unknown, whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due),
including any liability for taxes, except for liabilities expressly
specified in the Financial Statements (none of which results from,
arises out of, relates to, is in the nature of, or was caused by any
breach of contract, breach of warranty, tort, infringement, or
violation of law).
(f) Absence of Certain Changes. Since December 31, 2000, there
has not been any event or condition of any character which has
adversely affected, or may be expected to adversely affect, the
Company's business or prospects, including, but not limited to any
adverse change in the condition, assets, liabilities (existing or
contingent) or business of the Company from that shown in the Financial
Statements.
(g) Legal Proceedings. Except as disclosed in the SEC Reports,
as of the date of this Agreement, there is no legal, administrative,
investigatory, regulatory or similar action, suit, claim or proceeding
which is pending or, to the Sellers' knowledge, threatened against the
Company which, if determined adversely to the Company, could have,
individually or in the aggregate, a material adverse effect on the
business, assets, or prospects of the Company or which in any manner
challenges or seeks to prevent, enjoin, alter or delay the transactions
contemplated by this Agreement.
(h) Noncontravention. Subject to compliance with the
applicable requirements of the Securities Act and any applicable state
securities laws and the Exchange Act, neither the execution and
delivery by the Sellers of this Agreement, nor the consummation by the
Sellers of the transactions contemplated hereby, will (a) in the case
of a Seller that is an entity, conflict with or violate any provision
of its charter or by-laws or similar constituent instruments, (b)
require on the part of any Seller any filing with, or permit,
authorization, consent or approval of, any governmental entity, (c)
conflict with, result in breach of, constitute (with or without due
notice or lapse of time or both) a default under, result in the
acceleration of obligations under, create in any party any right to
terminate, modify or cancel, or require any notice, consent or waiver
under, any contract or instrument to which any Seller is a party or by
which any Seller is bound or to which any of their assets are subject
or (d) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to any Seller or any of their properties or
assets.
(i) Legal Compliance. The Company has complied in all material
respects with all applicable laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings, and charges
thereunder) of all governmental authorities, and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand,
or notice has been filed or commenced against the Company alleging any
failure so to comply. To the Sellers' knowledge, neither the Company,
nor any officer, director, employee, consultant or agent of the Company
has made, directly or indirectly, any payment or promise to pay, or
gift or promise to give or authorized such a promise or gift, of any
money or anything of value, directly or indirectly, to any governmental
official, customer or supplier for the purpose of influencing any
official act or decision of such official, customer or supplier or
inducing him, her or it to use his, her or its influence to affect any
act or decision of a governmental authority or customer, under
circumstances which could subject the Company or any officers,
directors, employees or consultants of the Company to administrative or
criminal penalties or sanctions.
(j) Disclosure. No representation or warranty by the Sellers
contained in this Agreement, and no statement contained in the any
document, certificate or other instrument delivered or to be delivered
by or on behalf of the Sellers pursuant to this Agreement, contains or
will contain any untrue statement of a material fact or omit or will
omit to state any material fact necessary, in light of the
circumstances under which it was or will be made, in order to make the
statements herein or therein not misleading.
4. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Sellers that:
(a) The Purchaser has full right, power and authority to
execute, deliver and perform this Agreement and to carry out the
transactions contemplated hereby. This Agreement has been duly and
validly executed by the Purchaser, constitutes a valid obligation of
the Purchaser, is legally binding on him and is enforceable against him
in accordance with its terms.
(b) The Purchaser is acquiring the Shares for his own account
(and not for the account of others) for investment and not with a view
to the distribution or resale thereof.
(c) The Purchaser has access to the same kind of information
concerning the Company which would be available in a registration
statement filed under the Securities Act.
(d) The Purchaser may not sell, pledge, or otherwise dispose
of the Shares in the absence of either a registration statement under
the Securities Act or an exemption from the registration provisions of
the Securities Act. The Purchaser also agrees that the Sellers shall
not be obligated to secure the registration of the Shares under the
Securities Act.
5. Survival; Indemnification.
(a) Survival. The Sellers and the Purchaser covenant that
their respective representations and warranties contained herein shall
be true in all respects as of the Closing date of the sale of the
Shares pursuant to this Agreement. All representations and warranties
and other agreements made by the Seller and the Purchaser in this
Agreement or pursuant hereto shall survive the Closing until the third
anniversary of the date hereof, except that the representations and
warranties of the Sellers in Section 3(a), (b) and (d) shall survive
thereafter until the expiration of the longest applicable statute of
limitations.
(b) Indemnification.
(i) In the event any of the Sellers breaches (or in
the event any third party alleges facts that, if true, would
mean any of the Sellers has breached) any of their
representations, warranties, and covenants contained herein,
and, if there is an applicable survival period pursuant to
5(a) above, provided that the Purchaser makes a written claim
for indemnification against any of the Sellers within such
survival period, then each of the Sellers shall indemnify the
Purchaser from and against the entirety of any Adverse
Consequences (as defined below) the Purchaser may suffer
through and after the date of the claim for indemnification
(including any Adverse Consequences the Purchaser may suffer
after the end of any applicable survival period) resulting
from, arising out of, relating to, in the nature of, or caused
by the breach (or the alleged breach). "Adverse Consequences"
means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages,
dues, penalties, fines, costs, amounts paid in settlement,
liabilities, obligations, taxes, liens, losses, lost value,
expenses, and fees, including court costs and attorneys' fees
and expenses.
(ii) Each of the Sellers shall indemnify the
Purchaser from and against the entirety of any Adverse
Consequences the Purchaser may suffer resulting from, arising
out of, relating to, in the nature of, or caused by (A) any
liabilities arising out of the ownership of the capital stock
of, or the use or operation of the business of, the Company
prior to the Closing, and (B) any indebtedness of the Company
for borrowed money existing as of the Closing Date.
6. Additional Action; Purchaser Undertaking.
(a) Additional Action. Each party shall, upon the request of
the other, from time to time, execute and deliver promptly to such
other party all instruments and documents of further assurances or
otherwise and will do any and all such acts and things as may be
reasonably required to carry out the obligations of such party
hereunder and to consummate the transactions contemplated hereby.
(b) Purchaser Undertaking. Subsequent to the Closing, the
Purchaser intends to cause the Company to raise up to $500,000 through
the private placement of the Company's Common Stock (the "Private
Placement"). Thereafter, the Purchaser intends to cause the Company to
be combined with an operating company (the "Business Combination").
Subject to obtaining all necessary consents and approvals, the
Purchaser will use commercially reasonable efforts to consummate the
Private Placement within 60 days after the Closing and the Business
Combination within 120 days after the Private Placement. There can be
no assurance that the Private Placement or the Business Combination
will occur.
7. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective estates, heirs,
executors and, if applicable, successors and assigns.
8. Governing Law. This Agreement shall in all respects be governed by
the laws of the State of Connecticut without giving effect to the principles of
conflicts of law thereof.
9. Entire Agreement. This Agreement constitutes the entire arrangement
between the parties with respect to the Shares and cannot be changed, modified,
discharged or terminated except by a writing signed by the party against whom
enforcement of any change, modification, discharge or termination is sought.
10. Waiver. No waiver shall be deemed to be made by any party of any of
its rights hereunder unless the same shall be in writing, and each waiver, if
any, shall be a waiver only with respect to the specific instance involved and
shall in no way impair the rights of the waiving party or the obligations of the
other party in any other respect at any other time.
11. Assignment. Neither party may assign their rights or delegate their
duties hereunder without the prior written consent of the other party.
12. Notices. Any notice, demand or other communication to be given
hereunder by either party to the other shall be in writing and shall be mailed
by certified mail, return receipt requested, or delivered against receipt to the
party to whom it is to be given to the address of such party set forth in the
preamble to this Agreement (or to such other address as the party shall have
furnished in accordance with the provisions of this Section 12). Any notice or
other communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address which
shall be deemed given at the time of receipt thereof.
13. Captions. The captions used in this Agreement are for convenience
only and shall not be deemed as, or construed as, a part of this Agreement.
14. Counterparts; Facsimile Execution. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, and all
of which shall constitute one and the same instrument. Facsimile execution and
delivery of this Agreement is legal, valid and binding execution and delivery
for all purposes.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement as of the date first above written.
SELLERS:
/s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
PACIFIC GROWTH INVESTMENTS LTD
By:/s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Director
FIRST PACIFIC CO.
By:/s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Director
FIRST PACIFIC CAPITAL LTD
By: /s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Director
PURCHASER:
By: /s/ Xxxxxx X.X.Xxx
-------------------
Name: Xxxxxx X. X. Xxx
