STOCK PURCHASE AGREEMENT
AGREEMENT made as of this 15th day of June 1999 but effective as of the
Closing, by and between Xxx Xxxxxx, Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx
(collectively the "Sellers"), and Bio-Aqua Systems, Inc., a Florida corporation
("Purchaser").
W I T N E S S E T H:
WHEREAS, Sellers are the owners of all of the issued and outstanding
stock (the "Shares"), of Profeed, Inc. ("Profeed"), a Bahamian corporation; and
WHEREAS, Purchaser desires to purchase from Sellers and Sellers desire
to sell to Purchaser, the Shares upon the terms and conditions hereinafter set
forth.
NOW THEREFORE, in consideration of the mutual covenants and promises
herein contained and upon the terms and conditions hereinafter set forth, the
parties hereto, intending to be legally bound, agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
a. Purchase and Sale. Upon the terms and conditions herein
contained, at the Closing (as hereinafter defined), Sellers agree to sell the
Shares to Purchaser and Purchaser agrees to purchase the Shares from Sellers,
free and clear of all liens, claims, pledges, mortgages, restrictions,
obligations, security interests and encumbrances of any kind, nature and
description.
2. CONSIDERATION.
a. Purchase Price. The purchase price for the Shares (the
"Purchase Price") shall be an aggregate of One Million Three Hundred Thousand
Dollars ($1,300,000) to Sellers, of which $400,000 will be paid from the
proceeds of Purchaser's initial public offering and the balance will be paid,
under the discretion out of: (1) 5% of Purchaser's gross revenues per quarter,
but in no event greater than 20% of Purchaser's gross income per quarter, from
the sale of products sold under the Tepual(Trademark) and Inual(Trademark)
brands; (2) third party financing; or (3) working capital.
3. CLOSING.
a. Time and Place of Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place simultaneously
with the effective date of the Registration Statement on Form SB-2 as filed by
Purchaser with the Securities and Exchange Commission.
4. REPRESENTATIONS AND WARRANTIES OF SELLERS. Sellers hereby
represent and warrant to Purchaser as follows:
a. Status of Sellers and Shares. Sellers are the sole
beneficial owner of the respective Shares, and own the Shares, free and clear of
all mortgages, pledges, restrictions, liens, charges, encumbrances, security
interests, obligations or other claims.
b. Organization. To Sellers' knowledge, Profeed is a
corporation duly organized, validly existing and in good standing under the laws
of the Bahamas, has all necessary corporate powers to own its properties and to
carry on its business as now owned and operated by it, is duly qualified to do
business and is in good standing in any jurisdiction its business requires
qualification.
c. Inual(Trademark) and Tepual(Trademark) Brands, Trademarks and
Marks.
(i) All Inual(Trademark) and Tepual(Trademark) Brands,
Trademarks and Marks that have been registered with the appropriate authorities
are currently in compliance with all formal legal requirements (including the
timely post-registration filing of affidavits of use and incontestability and
renewal applications), are valid and enforceable, and are not subject to any
maintenance fees or taxes or actions falling due within ninety (90) days after
the Closing Date.
(ii) No Brands, Trademarks or Marks have been or are now
involved in any opposition, invalidation, or cancellation and, to Seller's
knowledge, no such action is threatened with the respect to any of the Brands,
Trademarks or Marks.
(iii) To Seller's knowledge, there is no potentially
interfering trademark or trademark application of any third party.
(iv) No Brands, Trademarks or Marks are infringed or, to
Seller's knowledge, have been challenged or threatened in any way. None of the
Brands, Trademarks or Marks used by Seller infringe or are alleged to infringe
any trade name, trademark, or service xxxx of any third party.
(v) All products and materials containing Brands,
Trademarks and Marks bear the proper registration notice where permitted by law.
(vii) The transfer of the shares will not result in the loss
of any brands, trademarks or marks held by the Purchaser.
d. Due Authorization. This Agreement has been duly authorized
by each Seller and is a validly binding and legally enforceable obligation of
each Seller enforceable in accordance with its terms.
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5. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS OF PURCHASER.
Purchaser hereby represents, warrants and acknowledges to Sellers as follows:
a. Due Incorporation. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida.
b. Corporate Power of Purchaser. Purchaser has the full legal
right and power and all authority and approval required to enter into, execute
and deliver this Agreement and to perform fully its obligations hereunder.
c. Due Authority. Purchaser has all power and authority
necessary to enable it to carry out the transactions contemplated by this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated by it have been authorized by all necessary
corporate action on the part of Purchaser, including shareholder approval, if
required. This Agreement is a valid and binding agreement of Purchaser,
enforceable against Purchaser in accordance with its terms. Neither the
execution and delivery of this Agreement by Purchaser nor the consummation of
the transactions contemplated by this Agreement will violate, result in a breach
of, or constitute a default under, any agreement or instrument to which
Purchaser is a party or by which Purchaser is bound, or any order, rule or
regulation of any court or governmental agency having jurisdiction over
Purchaser.
d. No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
(i) violate any provision of the Articles of Incorporation or By-Laws of
Purchaser; (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) a default under any contract or other agreement to which
Purchaser is a party; (iii) violate any order, judgment, injunction, award or
decree of any court, arbitrator or governmental or regulatory body against, or
binding upon Purchaser, or upon the properties or business of Purchaser; or (iv)
violate any statute, law or regulation of any jurisdiction applicable to
Purchaser.
6. CLOSING ITEMS.
a. Purchaser's Deliveries. At Effective Date, Purchaser shall
deliver to Sellers the following monies and documents:
(i) a certified copy of a resolution of Purchaser's Board
of Directors authorizing the execution and delivery of this Agreement and the
purchase of the Shares.
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(ii) other purchase documents: all such documents and
instruments as Sellers and their counsel may reasonably request in connection
with the consummation of the transaction contemplated by this Agreement.
x. Xxxxxxx' Deliveries. At Effective Date, Sellers shall
deliver to Purchaser the following rights and documents for the following:
(i) all the rights to the brands, trademarks and patents
"Inual(Trademark);"
(ii) all the rights to the brands, trademarks and patents
"Tepual(Trademark);"
(iii) assignment and assumption of all future rights to the
brands, trademarks and patents "Inual(Trademark)" and "Tepual(Trademark)
executed by Xxx Xxxxxx;"
(iv) agreements and assignments of trade names and
trademarks between Xxx Xxxxxx and Profeed, Inc.;
(v) assignment and assumption agreements; and
(vi) certificates representing the shares issued in the
names of the Purchaser, free and clear of any legends or restrictions.
7. MISCELLANEOUS.
a. Binding Effect; Benefits. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties hereto and their respective
successors and permitted assigns. Except as otherwise set forth herein, this
Agreement may not be assigned by any party hereto without the prior written
consent of the other party hereto. Except as otherwise set forth herein, nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
b. Notices. All notices, requests, demands and other
communications which are required to be or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
in person, or transmitted by telecopy or telex, or upon receipt after dispatch
by certified or registered first class mail, postage prepaid, return receipt
requested, to the party to whom the same is so given or made, at the following
addresses (or such others as shall be provided in writing hereinafter):
(i) If to Sellers, to:
Tepual S.A.
000 Xxxxxxx Xxxxxx 000
Xxxxxxxx, Xxxxx
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(ii) If to the Purchaser, to:
Atlas, Xxxxxxxx, Trop & Borkson, P.A.
000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
c. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof.
d. Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not be deemed to be a part
of this Agreement or to affect the meaning or interpretation of this Agreement.
e. Counterparts. This Agreement may be executed in any number
of counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
f. Governing Law. This Agreement shall be construed as to both
validity and performance and enforced in accordance with and governed by the
laws of the State of Florida, without giving effect to the conflicts of law
principles thereof.
g. Severability. If any term or provision of this Agreement
shall to any extent be invalid or unenforceable, the remainder of this Agreement
shall not be affected thereby, and each term and provision of the Agreement
shall be valid and enforced to the fullest extent permitted by law.
h. Arbitration. Any controversy or dispute arising out of or
in connection with this Agreement, its interpretation, performance or
termination, which the parties hereto are unable to resolve within a reasonable
time after written notice from one (1) party to the other of the existence of
such controversy or dispute shall be determined by arbitration. Such arbitration
shall be in accordance with the rules and procedures then in effect of the
American Arbitration Association. The costs and expenses of such arbitration,
including attorney's fees and expenses, shall be awarded as determined by the
arbitrators.
i. Amendments. This Agreement may not be modified or changed
except by an instrument or instruments in writing executed by the parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SELLERS:
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
PURCHASER:
BIO-AQUA SYSTEMS, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Director, Assistant Secretary
By: /s/ Xxxxxxxxx Xxxxxx
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Xxxxxxxxx Xxxxxx
Director, Chief Financial Officer
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