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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into this 11th
day of August, 2000, by and among XXXXXXXXXX.XXX a Delaware corporation
(hereinafter referred to as "Buyer"); and CALIENTE CONSULTING, INC., an Oklahoma
corporation (hereinafter referred to as "Seller"), being the sole shareholder of
INTERNET AVIATION SERVICES, LTD., a Nevada corporation (hereafter referred to as
"Company").
WHEREAS, Seller is the owner of record and beneficially owns Ten
Thousand (10,000) shares (the "Shares") of the issued and outstanding shares of
the Company's common stock par value $0.10 per share (the "Common Stock"); and
WHEREAS, Seller desires to sell the Shares to Buyer, and Buyer desires
to purchase the Shares, upon the terms and conditions set forth herein;
NOW, THEREFORE in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, and subject to the
accuracy of the representations and warranties of the parties, the parties
hereto agree as follows:
I.
SALE AND PURCHASE OF THE SHARES
1.1 SALE AND PURCHASE. Subject to the terms and conditions hereof,
at the Closing (as defined in paragraph 1.2 below), Seller agrees to sell,
assign, transfer, convey and deliver to Buyer, and Buyer agrees to purchase from
Seller, the Shares.
1.2 CLOSING. The purchase shall be consummated at a closing
("Closing") to take place at 9:00 o'clock a.m., at the offices of Buyer's
counsel on August 14, 2000 ("Closing Date"); provided, however, that Buyer may
extend the Closing Date to such date as Buyer and Seller may reasonably
determine is necessary in order to receive the approval of (to the extent
necessary) and otherwise comply with the rules and regulations of the American
Stock Exchange.
1.3 PURCHASE PRICE. The purchase price ("Purchase Price") for the
Shares shall be One Million Seven Hundred Fifty Thousand (1,750,000) shares of
Common Stock of the Buyer ("Buyer's Shares"). The purchase price shall be paid
at Closing, by issuance and delivery of Buyer's Shares to Seller against receipt
of certificates representing the Shares, duly endorsed for transfer to Buyer.
1.4 OTHER AGREEMENTS. At the Closing, the indicated parties shall
execute and deliver the following additional agreements in substantially the
form attached hereto:
(a) Employment Agreements Between the Company, Buyer,
Xxxx Xxxxxxx and Xxxxxxx X. Xxxxx attached hereto as Exhibits "B" and
"C".
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(b) Stock certificates representing all of the Shares,
duly endorsed to Buyer and in blank or assignments separate from the
certificates, transferring the Shares from Seller to Buyer.
(c) Investment Representation Letter to the Buyer from
Caliente Consulting, Inc.
1.5 BASIC AGREEMENTS AND TRANSACTION DEFINED. This Agreement and
other agreements listed in paragraph 1.4, are sometimes referred to as the
"Basic Agreement". The transactions contemplated by the Basic Agreement are
sometimes referred to as the "Transactions".
II.
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY.
Seller represent and warrant to Buyer as follows:
(a) TITLE TO THE SHARES. At Closing, Seller and the
Company shall own of record and beneficially the number of the Shares
listed on Exhibit "A", of the Company, free and clear of all liens,
encumbrances, pledges, claims, options, charges and assessments of any
nature whatsoever, with full right and lawful authority to transfer the
Shares to Buyer. No person has any preemptive rights or rights of first
refusal with respect to any of the Shares. There exists no voting
agreement, voting trust, or outstanding proxy with respect to any of
the Shares. There are no outstanding rights, options, warrants, calls,
commitments, or any other agreements of any character, whether oral or
written, with respect to the Shares.
(b) ORGANIZATION. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of
the state of Nevada. The Company has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business. The Company is duly qualified and in good standing as a
foreign corporation in each jurisdiction where its ownership of
property or operation of its business requires qualification.
(c) AUTHORIZED CAPITALIZATION. The authorized
capitalization of the Company consists of One Hundred Thousand
(100,000) shares of Common Stock, $.10 par, of which Ten Thousand
(10,000) shares have been issued and are outstanding. The Shares have
been duly authorized, validly issued, are fully paid and nonassessable
with no personal liability attaching to the ownership thereof and were
offered, issued, sold and delivered by the Company in compliance with
all applicable state and federal laws. The Company does not have any
outstanding rights, options, warrants, calls, commitments, conversion
or any other agreements of any character, whether oral or written,
obligating it to issue any shares of its capital stock, whether
authorized or not. The Company is not a party to and is not bound by
any agreement, contract, arrangement or understanding, whether oral or
written, giving any person or entity any interest in, or
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any right to share, participate in or receive any portion of, the
Company's income, profits or assets, or obligating the Company to
distribute any portion of its income, profits or assets.
(d) AUTHORITY. Seller has full power and lawful authority
to execute and deliver the Basic Agreements and to consummate and
perform the Transactions contemplated thereby. The Basic Agreements
constitute (or shall, upon execution, constitute) valid and legally
binding obligations upon Seller, enforceable in accordance with their
terms. Neither the execution and delivery of the Basic Agreements by
Seller, nor tire consummation and performance of the transactions
contemplated thereby, conflict with, requires the consent, waiver or
approval of, results in a breach of or default under, or gives to
others any interest or right of termination, cancellation or
acceleration in or with respect to, any agreement by which Seller or
the Company is a party or by which Seller or the Company or any of
their respective properties or assets are bound or affected.
(e) COMPANY FINANCIAL STATEMENTS. The financial
statements of the Company delivered to Buyer (the "Company Financial
Statements") are complete, were prepared in accordance with generally
accepted accounting principles applied on a basis consistent with prior
periods and fairly present the financial position of the Company as of
July 31, 2000.
(f) NO UNDISCLOSED LIABILITIES. Except as set forth on
Exhibit "D", the Company is not aware of any liabilities for which the
Company currently is liable or will become liable in the future.
(g) COMPLIANCE WITH LAWS. The Company is not in violation
of any federal, state, local or other law, ordinance, rule or
regulation applicable to its business, and have not received any actual
or threatened complaint, citation or notice of violation or
investigation from any governmental authority.
(h) NO LITIGATION. There are no actions, suits, claims,
complaints or proceedings pending or threatened against the Company, at
law or in equity, or before or by any governmental department,
commission, court, board, bureau, agency or instrumentality; and there
are no facts which would provide a valid basis for any such action,
suit or proceeding. There are no orders, judgments or decrees of any
governmental authority outstanding which specifically apply to the
Company or any of its assets.
(i) DISCLOSURE. All statements of Seller contained in the
Basic Agreements and in any other written documents delivered by or on
behalf of the Company or Seller to Buyer are true, and correct in all
material respects and do not omit any material fact necessary to make
the statements contained therein not misleading in light of the
circumstances under which they were made. There are no facts known to
Seller which could have a materially adversely affect upon the
business, financial condition, results of operations, assets,
liabilities, or prospers of the Company, which have not been disclosed
to Buyer in the Basic Agreements.
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(j) MATERIAL CONTRACTS. The Company has a commitment from
SouthEast Airlines for the charter of one DC-9 30 series aircraft (the
"Aircraft") with a guarantee of 200 hours per month at the rate of
$1,800 per block hour on aircraft, crew, maintenance and insurance
basis. The Company also has a commitment from Vacation Express for the
charter of the Aircraft for one year commencing on 12/21/00 for routes
to Cancun, Mexico with a monthly usage of approximately 200 hours per
month at $4,000 per hour. Although each commitment is subject to the
execution of definitive agreements, the Company has not received any
notification, oral or written, from either SouthEast or Vacation
Express and is not aware of any facts that are inconsistent with the
commitments set forth in this paragraph.
2.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows:
(a) ORGANIZATION. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of
the state of Delaware. Buyer has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business. Buyer is duly qualified and in good standing as a foreign
corporation in each jurisdiction where its ownership of property or
operation of its business requires qualification.
(b) AUTHORIZED CAPITALIZATION. The authorized
capitalization of the Buyer consists of One Hundred Million
(100,000,000) shares of Common Stock, of which Thirty-three Million One
Hundred Eighteen Thousand Six Hundred Fifty-four (33,118,654) shares
have been issued and are outstanding as of August 9, 2000. At Closing,
the Shares will have been duly authorized, validly issued, are fully
paid and nonassessable with no personal liability attaching to the
ownership thereof and were offered, issued, sold and delivered by the
Buyer in compliance with all applicable state and federal laws. In
addition, Buyer has entered into a broker services agreement with
RichMark Capital Corporation for the private placement of up to
6,600,000 shares of Common Stock at $0.375 per share on a best efforts
basis and Buyer has entered into a letter of intent for the acquisition
of DM Marketing, Inc. for 8,500,000 shares of Common Stock.
(c) AUTHORITY. Buyer has full power and lawful authority
to execute and deliver the Basic Agreements and to consummate and
perform the Transactions contemplated thereby. The Basic Agreements
constitute (or shall, upon execution, constitute) valid and legally
binding obligations upon Buyer, enforceable in accordance with their
terms. Neither the execution and delivery of the Basic Agreements by
Buyer, nor the consummation and performance of the Transactions
contemplated thereby, conflicts with, requires the consent, waiver or
approval of, results in a breach of or default under, or gives to
others any interest or right of termination, cancellation or
acceleration in or with respect to, any agreement by which Buyer is a
party or by which Buyer or any of its properties or assets are bound or
affected.
(d) NO UNDISCLOSED LIABILITIES. Except as set forth in
the Buyer Financial Statements previously delivered to Seller and as
set forth on Exhibit "D" or as otherwise
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disclosed in Buyer's filings with the Securities and Exchange
Commission, Seller is not aware of any material liabilities for which
the Buyer is liable or will become liable in the future.
(e) INVESTMENT INTENT. Buyer is acquiring the Shares of
its own account, for investment purposes only, and not with a view to
the sale or distribution of any part thereof and Buyer has no present
intention of selling, granting participation in, or otherwise
distributing the same. Buyer understands the specific risks related to
an investment in the Shares, especially as it relates to the financial
performance of the Company.
III.
COVENANTS
3.1 COVENANTS OF SELLER. Seller covenants and agrees that from the
date hereof to the Closing without the prior written consent of Buyer:
(a) ORDINARY COURSE OF BUSINESS. Seller will operate the
business of the Company only in the ordinary course and will use its
best efforts to preserve the Company's business, organization, goodwill
and relationships with persons having business dealings with them.
(b) COMPENSATION. Seller will not permit the Company to
(1) enter into or alter any employment agreements; (2) grant any
increase in compensation other than normal merit increases consistent
with the Company's general prevailing practices to any officer or
employee; or (3) enter into or alter any labor or collective bargaining
agreement or any bonus or other employee fringe benefit.
(c) NO INDEBTEDNESS. Seller will not permit the Company
to create, incur, assume, guarantee or otherwise become liable with
respect to any obligation for borrowed money, indebtedness, capitalized
lease or similar obligation, except in the ordinary course of business
consistent with past practices where the entire net proceeds thereof
are deposited with and used by and in connection with the business of
the Company.
(d) MAINTAIN BOOKS. Seller will cause the Company to
maintain its books, accounts and records in the usual, regular ordinary
and soured business manner and in accordance with generally accepted
accounting principles applied on a basis consistent with past
practices.
(e) NO AMENDMENTS. Seller will not permit the Company to
amend its corporate charter or bylaws (or similar documents) without
prior consent of Buyer and will cause the Company to maintain their
corporate existence, licenses, permits, powers and rights in full force
and effect.
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(f) TAXES AND ACCOUNTING MATTERS. Seller will cause the
Company to file when due all federal, state and local tax returns and
reports which shall be accurate and complete, including but not limited
to income, franchise, excise, ad valorem, and other taxes with respect
to its business and properties, and to pay as they become due all taxes
or assessments, except for taxes for which adequate reserves are
established and which are being contested in good faith by appropriate
proceedings. Seller will not permit the Company to change their
accounting methods or practices or any depreciation, amortization or
inventory valuation policies or practices.
(g) NO SECURITIES ISSUANCES. Seller will not permit the
Company to issue any shares of any class of capital stock, or enter
into any contract, option, warrant or right calling for the issuance of
any such shares of capital stock, or create or issue any securities
convertible into any securities of the Company except for the
transactions contemplated herein.
(h) DUE COMPLIANCE. Seller will cause the Company to
comply with all laws, regulations, rules and ordinances applicable to
it and to the conduct of its business.
(i) CONSENTS. Seller will use their, and will cause the
Company to use its, best good faith efforts to obtain the consent or
approval of each person or entity whose consent or approval is required
for the consummation of the Transactions contemplated hereby and to do
all things necessary to consummate the Transactions contemplated by the
Basic Agreements.
IV.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF BUYER TO CLOSE
The obligation of Buyer to close the Transactions contemplated hereby
is subject to the fulfillment by Seller prior to Closing of each of the
following conditions, which may be waived in whole or in part by Buyer:
4.1 COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of Seller contained in this Agreement shall have
been true and correct when made and shall be true and correct as of the Closing
with the same force and effort as if made at the Closing. Seller shall have
performed all agreements, covenants and conditions required to be performed by
Seller prior to the Closing.
4.2 NO ADVERSE CHANGE. There shall have been no event which has
had or may have a material adverse effect upon the business, financial
condition, results of operation, assets, liabilities or prospects of the
Company.
4.3 NO LEGAL PROCEEDINGS. No suit, action or other legal or
administrative proceeding before any court or other governmental agency shall be
pending or threatened seeking to enjoin the consummation of the Transactions
contemplated hereby.
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4.4 DOCUMENTS TO BE DELIVERED BY SELLER. Seller shall have
delivered the following documents:
(a) Stock certificates representing all of the Shares,
duly endorsed to Buyer and in blank or accompanied by duly executed
stock powers.
(b) A copy of (i) the Certificate of Incorporation of the
Company, and (ii) the Bylaws of the Company.
(c) All agreements referred to in paragraph 1.5 above,
executed by all parties thereto other than Buyer.
(d) Such other documents or certificates as shall be
reasonably required by Buyer or its counsel in order to close and
consummate this Agreement.
V.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF SELLER TO CLOSE
The obligation of Seller to close the Transactions is subject to the
fulfillment prior to Closing of each of the following conditions, any of which
may be waived in whole or in part by Seller:
5.1 COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties made by Buyer in this Agreement shall have been
true and correct when made and shall be true and correct in all material
respects at the Closing with the same force and effect as if made at the
Closing, and Buyer shall have performed all agreements, covenants and conditions
required to be performed by Buyer prior to the Closing.
5.2 NO LEGAL PROCEEDINGS. No suit, action or other legal or
administrative proceedings before any court or other governmental agency shall
be pending or threatened seeking to enjoin the consummation of the Transactions
contemplated hereby.
5.3 AMERICAN STOCK EXCHANGE. The Buyer's common stock shall be
listed and trading on the American Stock Exchange and shall not be subject to
any trading halt, suspension, or pending de-listing procedures.
5.4 OTHER AGREEMENTS. All parties other than Seller and the
Company shall have executed and delivered the Basic Agreements.
5.5 PAYMENTS. Seller shall have received from Buyer all Common
Stock to be issued at the Closing by Buyer pursuant to the Basic Agreements.
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VI.
MODIFICATION, WAIVERS, TERMINATION
AND EXPENSES
6.1 MODIFICATION. Buyer and Seller may amend, modify or supplement
this Agreement in any manner as they may mutually agree in writing,
6.2 WAIVERS. Buyer and Seller may in writing attend the time for
or waive compliance by the other with any of the covenants or conditions of the
other contained heroin.
6.3 TERMINATION AND ABANDONMENT. This Agreement may be terminated
and the purchase of the Shares may be abandoned before the Closing:
(a) By the mutual consent of Seller and Buyer;
(b) By Buyer, if the representations and warranties of
Seller set forth herein shall not be accurate, or the conditions
precedent set forth in Article IV shall have not have been satisfied,
in all material respects on or before the Closing Date (as the same may
be extended from time to time;
(c) By Seller, if the representations and warranties of
Buyer set forth herein shall not be accurate, or the conditions
precedent set forth in Article V shall not have been satisfied in all
material respects on or before the Closing Date (as the same may be
extended from time to time).
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefor.
VII.
MISCELLANEOUS
7.1 REPRESENTATIONS AND WARRANTIES TO SURVIVE. Unless otherwise
provided, all of the representations and warranties contained in this Agreement
and in any certificate, exhibit or other document delivered pursuant to this
Agreement shall survive the Closing for a period of two (2) years. No
investigation made by any xxxxx hereto or their representatives shall constitute
a waiver of any representation or warranty, and no such representation or
warranty shall be merged into the Closing.
7.2 BINDING EFFECT OF THE BASIC AGREEMENTS. The Basic Agreements
and the certificates and other instruments delivered by or on behalf of the
parties pursuant thereto, constitute the entire agreement between the parties.
The terms and conditions of the Basic Agreements shall inure to the benefit of
and be binding upon the respective heirs, legal representatives, successor and
assigns of the parties hereto. Nothing in the Basic Agreements, expressed or
implied, confers any rights or remedies upon any party other than the parties
hereto and their respective heirs, legal representatives and assigns.
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7.3 APPLICABLE LAW. The Basic Agreements are made pursuant to, and
will be construed under, the laws of the State of Georgia.
7.4 NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and will be deemed to have been
duly given when delivered or mailed, first class postage prepaid:
(a) If to Seller, to:
Internet Aviation Services, Ltd
c/o G. Xxxxx Xxxxxx & Associates, P.C.
0000 Xxxx 00xx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-00000
(b) If to Buyer, to:
Xxxx Xxxxxxxx, President
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
These addresses may be changed from time to time by written notice to
the other parties.
7.5 HEADINGS. The headings contained in this Agreement are for
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
7.6 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be deemed an original and all of which together will
constitute one instrument.
7.7 SEVERABILITY. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
under applicable law this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. The
remaining provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
7.8 FORBEARANCE; WAIVER. Failure to pursue any legal or equitable
remedy or right available to a party shall not constitute a waiver of such
right, nor shall any such forbearance, failure a actual waiver imply or
constitute waiver of subsequent default or breach.
7.9 ATTORNEYS' FEES AND EXPENSES. The prevailing party in any
legal proceeding based upon this Agreement shall be entitled to reasonable
attorneys' fees and expenses and court costs.
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7.10 EXPENSES. Each party shall pay all fees and expenses incurred
by it incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
7.11 INTEGRATION. This Agreement and all documents and instruments
executed pursuant hereto merge and integrate all prior agreements and
representations respecting the Transactions, whether written or oral, and
constitute the sole agreement of the parties in connection therewith. This
Agreement has been negotiated by and submitted to the scrutiny of both Seller
and Buyer and their counsel and shall be given a fair and reasonable
interpretation in accordance with the words hereof, without consideration or
weight being given to its having been drafted by either party hereto or its
counsel.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Agreement on the date first written above.
"BUYER"
XXXXXXXXXX.XXX
BY:
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XXXX XXXXXXX, PRESIDENT
"COMPANY"
INTERNET AVIATION SERVICES, LTD.
BY:
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XXXX XXXXXXX, PRESIDENT
"SELLER"
CALIENTE CONSULTING, INC.
BY:
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XXXXX XXXX, VICE-PRESIDENT
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