STOCK PURCHASE AGREEMENT
EXHIBIT
10.25
THIS
STOCK PURCHASE AGREEMENT, dated as of the 24th day of January 2008 (the
“Agreement”), is by and among Fortune
Finance Overseas Ltd., a British Virgin Islands company
(the
“Seller”), and Medan, LLC, a limited liability company formed under the laws of
the State of Delaware (the “Purchaser”).
WITNESSETH:
WHEREAS,
the Seller desires to sell to the Purchaser, and the Purchaser desires to
purchase 9,700 shares of capital stock (the “Company Shares”) of PT Panganmas
Inti Nusantara, an Indonesian company (the “Company”), on the terms and
conditions set forth below; and
WHEREAS,
the Seller is in the process of completing the transfer of certain Company
shares from PT. Citra Jaya Makmur a limited liability company incorporated
under
Indonesian law ( “CJM”);
WHEREAS,
the Seller, upon completion of the transfer of Company shares from CJM is the
majority shareholder of the Company.
WHEREAS,
the Seller and the Purchaser have established an escrow account (the “Escrow
Account”) at U.S. Bank, N.A. in San Francisco, California, U.S.A. (the “Escrow
Agent”) for the purposes of effecting the payment of the sale contemplated
hereby.
WHEREAS,
the Purchaser has deposited into the Escrow Account a total of U.S. $10,675,000,
a portion of which represents the purchase price of the Company
Shares.
WHEREAS,
under the laws of Indonesia, before the sale of the Company Shares can be
effected, the Investment Coordinating Board of Indonesia (the Badan Koordinasi
Penanaman Modal) must approve the Company’s Foreign Investment Application (the
Izin atas Permohonan Penanaman Modal Asing), which approval is evidenced by
the
issuance of a Surat
Persetujuan Penanaman Modal Asing
(the
“Certificate”).
NOW,
THEREFORE, in consideration of the premises and of the mutual representations,
warranties and agreements set forth herein, the parties hereto agree as
follows:
ARTICLE
I
SALE
AND PURCHASE OF SHARES
1.1
Transfer
of Shares.
Subject
to the terms and conditions set forth in this Agreement and in reliance upon
the
representations and warranties of the Seller and the Purchaser herein set forth,
at the Closing, the Seller shall sell, transfer, convey, assign and deliver
to
the Purchaser, and the Purchaser shall purchase from the Seller, by appropriate
bills of sale, assignments and other instruments satisfactory the Purchaser
and
its counsel, good and marketable title in and to the Company
Shares.
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ARTICLE
II
PURCHASE
PRICE, PAYMENT AND RELATED MATTERS
2.1
Purchase
Price.
At the
Closing, the Purchasers shall, through release from Escrow Account, pay to
the
Seller for the Company Shares the aggregate sum of U.S. $8,175,000 (the
“Purchase Price”) by wire transfer from the Escrow Agent of immediately
available funds into a bank account designated in writing by the Seller on
or
prior to the Closing.
2.2
Transfer
Taxes.
The
Seller shall be solely responsible for the payment of any and all application
fees and costs payable in Indonesia incident to the sale and transfer of the
Company Shares contemplated herein.
ARTICLE
III
THE
CLOSING
3.1
Time
and Place of Closing.
The
closing of the transactions contemplated hereby shall take place as
follows:
(a) Upon
the
receipt of the Certificate, the Seller shall cause the Company to cancel and
replace the stock certificate representing the 13,750 shares currently owned
by
the Seller with two certificates, one representing the 9,700 Company Shares
registered in the Purchaser’s name (the “Stock Certificate”), and the second
registered in the Seller’s name representing the remaining 4,050
shares.
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(b) The
Seller shall deliver the original Stock Certificate and the original Certificate
to the Escrow Agent.
(c) At
lease
three days prior to the Closing, the Seller shall deliver to each of Xxxxxxxxx
Genshlea and Chediak Law Corporation, the Purchaser’s U.S. counsel, and to
Hanafiah Ponggawa & Partners, the Purchaser’s counsel in Indonesia, (i) a
copy of both the Stock Certificate and the Certificate (ii) evidence of
announcement of the plan of acquisition of the Company in a daily newspaper
as
required under the Indonesian Company Law; (iii) a copy of the resolution of
the
shareholders of the Company approving the transfer of shares from the Seller
to
the Purchaser as required by the Articles of Association of the Company and
the
Indonesian Company Law;
(iv)
(v)
reasonable evidence of the announcement to the employees of the Company of
the
acquisition plan; and (vi) the
deed
of transfer of shares between CJM and Seller.
(d) In
accordance with the terms of the agreement governing the disbursement of funds
from the Escrow Account, upon the receipt by Escrow Agent of the Certificate
and
the original Stock Certificate, the Escrow Agent shall promptly release (but
in
no event later than by noon the first business day after the receipt by the
Escrow Agent of the foregoing Certificate and Stock Certificate) the Purchase
Price from the Escrow Account and transfer that Purchase Price payment to the
Seller in accordance with Section 2.2 above. The “Closing” shall be deemed to
have occurred on the date that Purchase Price payment is sent to the Seller
by
the Escrow Agent.
3.2
Expiration
of this Agreement.
In the
event that the Closing has not occurred by the close of business in San
Francisco, California, on April 30, 2008, this Agreement shall automatically
terminate and the Escrow Agent shall, as set forth in the escrow agreement,
return the funds held in the Escrow Account to the Purchaser.
3.3
Additional
Conditions to Close.
At
least three business days prior to Closing, Seller shall deliver to Purchaser
the following documents, with a copy of each delivered to Hanafiah, Ponggawa
& Partners, the Purchaser’s counsel in Indonesia:
(a) the
approval of the Board of Directors of the Company for the transfer of shares
from CJM to Seller;
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(b) the
resolution of the shareholders of the Company approving the transfer of 13,750
Company shares of CJM to Seller
as
required by the Articles of Association of the Company and the Indonesian
Company Law;
(c) the
Approval from the Investment Coordinating Board of Indonesia approving
Seller as a shareholder of the Company and therefore the change
of
status of the Company from domestic investment company to foreign investment
company;
(d) the
deed
of transfer of shares between CJM and Seller
that is already effective;
(e) the
evidence of the announcement to the employees of the Company of the acquisition
plan as required by the Indonesian Company Law;
(f) the
evidence of announcement of the plan of acquisition of the Company in daily
newspaper as required by the Articles of Association of the Company and the
Indonesian Company Law;
(g) the
Company Shareholders Registration Book (Daftar
Pemegang Saham)
stating
Seller as a shareholder of the Company; and
(h) the
Company’s shares certificate under the name of Seller.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE
SELLER
REGARDING THE COMPANY AND THE COMPANY SHARES
The
Seller hereby represents and warrants to the Purchaser that:
4.1
Title
to Company Shares.
Subject
only to the completion of the transfer from CJM (which Seller represents and
warrants will be promptly completed, and in all events completed prior to the
Closing), the Seller is the sole legal and beneficial owner of all of the
Company Shares, and upon consummation of the purchase contemplated herein,
the
Purchaser will acquire from the Seller good and marketable title to the Company
Shares, free and clear of all liens, claims, encumbrances or restrictions.
The
Company Shares have been duly authorized, are validly issued, fully paid and
nonassessable, and are not subject to, nor issued in violation of, any
preemptive rights or rights of first refusal. Upon completion of the
transactions contemplated herein and the stock purchase pursuant to Section
7.4,
the Purchaser will own 51% of the outstanding stock of the Company.
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4.2
Organization;
Authority to Execute and Perform Agreements.
The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the British Virgin Islands and is qualified to do business
in
every jurisdiction in which it is required to be qualified, with the requisite
power and authority to own and use its properties and assets and to carry on
its
business as currently conducted. The Seller has full power and authority and
all
licenses, permits, authorizations, agreements, consents and exemptions, and
has
satisfied all conditions and terms relating or attaching thereto, as necessary
to own and operate its properties and to carry on its business as now conducted,
and all such licenses, permits, authorizations, agreements, consents and
exemptions are in full force and effect and have been fully complied with.
There
are no circumstances, facts or matters which indicate that any of the licenses,
permits, authorizations, agreements, consents and exemptions will or are likely
to be revoked or not renewed, in whole or in part, in the ordinary course of
events (whether as a result of the purchase by the Purchaser of the Company
Shares or otherwise). Correct and complete copies of the Company’s charter
documents have been provided to Purchaser. The Company is not in default under
or in violation of any provision of its charter documents. The Seller has the
full right, power and authority to enter into, execute and deliver this
Agreement and, subject to the receipt of the Certificate, to transfer, convey
and sell to the Purchaser at the Closing the Company Shares.
4.3
Enforceability.
This
Agreement has been duly and validly executed by the Seller and (assuming the
due
authorization, execution and delivery by the Purchaser) constitutes the legal,
valid and binding obligation of the Seller, enforceable in accordance with
its
terms, except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally
or by general equitable principles affecting the enforcement of
contracts.
4.4
No
Violation.
The
execution or delivery by the Seller of this Agreement does not (i) violate
in
any material respect any applicable law or any judgment, order or decree of
any
court, and will not result in the creation or imposition of any lien, charge
or
other encumbrance upon the Company Shares, or (ii) conflict with, result in
a
breach of, constitute a default under, result in the acceleration of, create
in
any party the right to accelerate, terminate, modify, or cancel, or require
any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which the Company is a party or by which it is bound or to which
any of its assets is subject (or result in the imposition of any encumbrance
upon any of its assets). For purposes of this Section 4.4, “encumbrance”
means
any encumbrance, claim, lien, charge, mortgage, security interest, equity,
option, pledge, restriction on transferability (including, without limitation,
any voting agreement, voting trust, any restriction on voting rights or right
of
disposition), defect of title, attachments, preliminary attachments or adverse
claims (whether or not made, known or contingent) or other claims or third
party
rights of whatever nature on any property or property interest.
4.5
Compliance
with Laws.
The
Company has complied in all respects with, is not in violation in any material
respect of, and has not received any notices of violation with respect to all
laws, ordinances, regulations, interpretations, judgments, decrees, injunctions,
permits, licenses, certificates, governmental requirements, orders, guidelines
and other similar items of any court or other governmental entity. Without
in
any manner limiting the foregoing: (i) the Company Shares were issued in full
compliance with all applicable laws of Indonesia relating to the issuance or
sale of securities, (ii) there has been no storage, disposal, generation,
manufacture, refinement, transportation, handling, release or treatment of
waste
or hazardous substances by the Company at, upon, or from any of the property
now
or previously owned or leased by the Company in violation of any applicable
law,
ordinance, rule, regulation, order, judgment, decree or permit or which could
reasonably be expected to require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, and (iii) the
Company will at the Closing have no obligations with regard to current or past
employees or agents.
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4.6
No
Adverse Litigation.
The
Seller is not a party to any pending litigation which seeks to enjoin or
restrict the Seller’s ability to sell or transfer the Company Shares hereunder,
nor is any such litigation threatened against the Seller. Furthermore, there
is
no litigation pending or threatened against the Seller which, if decided
adversely to the Seller, could adversely affect the Seller’s ability to
consummate the transactions contemplated herein or the Purchaser’s ownership of
the Company shares.
4.7
Organization
and Qualification of the Company.
The
Company is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of Indonesia, with the requisite power
and
authority to own and use its properties and assets and to carry on its business
as currently conducted. The Company is not in violation or default of any of
the
provisions of its Articles of Association or other organizational or charter
documents.
4.8
Capitalization.
The
Company’s authorized capital currently consists of 21,950 shares of capital
stock, all of which have been issued and are outstanding. As of the date of
this
Agreement, CJM owns the 13,750 shares that will be transferred to the Seller
before the Closing, and Yayasan Bina Sejahtera Xxxxx BULOG (“BULOG”) owns 8,200
shares. The Company has not issued any other series or class of capital stock,
and except as set forth in Schedule 4.8, there are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into
or
exercisable or exchangeable for, or giving any person any right to subscribe
for
or acquire, any of the Company’s shares. All of the outstanding shares of
capital stock of the Company are validly issued, fully paid and nonassessable.
Except as set forth in Schedule 4.8, there are no shareholder agreements, voting
agreements or other similar agreements with respect to the Company’s capital
stock to which the Company or any of its shareholders is a party. The Company
is
not subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its capital stock. All Company option
plans or other incentive plans, have been terminated.
4.9
Title
to Assets; Permits.
The
Company has good and marketable title to that certain parcel of land located
at
Kuala Tanjung, Medan, North Sumatra, Indonesia and more specifically described
on Schedule 4.9 hereto (the “Land”) and good and marketable title to all
permits, licenses, approvals, and governmental authorizations (“Permits”)
required for the development and operation of the Land as a wheat mill, free
and
clear of any encumbrances. The Permits are sufficient to construct and operate
the wheat facility as currently contemplated by the parties. The Land is owned
by the Company free and clear of all liens and encumbrances. In addition to
the
Land, the Company owns real estate in Jakarta, Indonesia,which real estate
the
Company will transfer and dispose of following the Closing. As set forth in
Section 5.3, all proceeds from the sale of the Jakarta real estate shall belong
to the Seller.
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4.10 Company
Indebtedness.
All of
the indebtedness and obligations of the Company of any kind will be discharged
by no later than the Closing, and the Company shall have no outstanding
indebtedness or liabilities as of the Closing. The Company has promptly and
properly notified its insurance carriers of any and all claims known to it
with
respect to its operations or products for which it is insured. The Company
is
not a guarantor of, nor is it otherwise liable for, any liability or obligation
(including indebtedness) of any other person or entity.
4.11
Absence
of Litigation; No Dissolution.
There
is no action, suit, claim, proceeding, inquiry, or investigation before or
by
any court, public board, or government agency or body pending or, to the
knowledge of the Seller, threatened against or affecting the Shares, other
shares of the Company, the Company or the Land. There is no judgment, decree
or
order against the Company, or to the knowledge of the Seller, against its
commissioners, managers, officers or directors (in their capacities as such).
No
order has been made, petition presented or meeting convened for the purpose
of
considering a resolution for the winding up of the Company or for the
appointment of any provisional liquidator. No petition has been presented for
an
administration order to be made in relation to the Company, and no receiver
(including any administrative receiver) has been appointed in respect of the
whole or any part of any of the assets and/or undertaking of the
Company.
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4.12
Tax
Returns and Payments.
Except
for those taxes that are not yet due or required to be paid, the Company has
made or filed all federal, state, local income and other tax returns, reports
and declarations required by Indonesia and any jurisdiction to which it is
subject, and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns,
reports and declarations. As more specifically set forth in Section 7.5, the
Seller agrees that it shall be responsible for, and shall pay all unpaid taxes
of the Company relating to any period prior to the Closing, and, if any
additional taxes accrue to the Company as a result of the disposition of the
Jakarta building after the Closing, all of the taxes related to the Jakarta
building.
4.13
No
Broker.
No
broker, finder, agent or similar intermediary has acted for or on behalf of
Seller or is entitled to a fee or commission in connection with this Agreement
or the transactions contemplated hereby.
4.14 Disclosure.
The
representations and warranties contained in this Section 4 do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements and information contained in this
Section 4 not misleading.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
The
Purchaser represents and warrants to the Seller that:
5.1
Organization;
Authority; Due Authorization.
The
Purchaser is duly organized, validly existing and in good standing under the
laws of Delaware, and has all requisite power, authority and approvals required
to enter into, execute and deliver this Agreement and to perform fully its
obligations hereunder. The Purchaser has taken all actions necessary to
authorize it to enter into and perform fully its obligations under this
Agreement and to consummate the transactions contemplated herein. This Agreement
is the legal, valid and binding obligation of Purchaser, enforceable in
accordance with its terms.
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5.2
No
Violation.
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein will not (a) violate, conflict with, or
constitute a default under any contract or other instrument to which the
Purchaser is a party or by which it or its property is bound, (b) require the
consent of any party to any material contract or other agreement to which
Purchaser is a party or by which it or its property is bound, or
(c) violate any laws or orders to which Purchaser is subject.
5.3
Reorganization
of the Company.
The
Purchaser is aware that, prior to the date of this Agreement, the Company was
engaged in certain other business activities (including the distribution of
wheat flour) (“Prior Activities”) and that the Company owned other assets that
are not related to the Land or to the wheat flour mill that the Company proposes
to develop on the Land (all such assets other than the Land and rights, permits
and interest that are not directly related to the proposed wheat mill are herein
collectively referred to as the “Unrelated Assets”). The Unrelated Assets
include a building in Jakarta, Indonesia, and several automobiles kept in
Jakarta. The Purchaser hereby agrees and acknowledges that the Company shall
dispose of, or has disposed of, the Unrelated Assets prior to and, with respect
to the building in Jakarta, after the Closing, and that the Unrelated Assets
and
all proceeds received from the disposal of such Unrelated Assets shall be the
property of the Seller and not of the Company. The Purchaser further
acknowledges that the Unrelated Assets may be transferred to affiliates of
the
Seller. In addition to the Unrelated Assets, the Company may use any cash that
it may have in its bank accounts prior to the Closing (i) for the payment by
the
Company of its outstanding debts and liabilities, and (ii) to make distributions
to its shareholders (including the Seller). The Purchaser acknowledges that,
after the reorganization and the disposal of the Unrelated Assets, the Company
shall, therefore, own the Land and various Permits, licenses and other
intangible assets related to the proposed development of a wheat mill facility
on the Land, but that it will not otherwise own any real or personal assets.
5.4
No
Broker.
No
broker, finder, agent or similar intermediary has acted for or on behalf of
the
Purchaser or is entitled to a fee or commission in connection with this
Agreement or the transactions contemplated hereby.
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ARTICLE
VI
INDEMNIFICATION
6.1
Indemnity
of the Seller.
In
addition to its obligations under Section 6.4 below, the Seller agrees to
indemnify, defend and hold harmless and reimburse the Purchaser and Purchaser’s
member, and the officers, directors, agents and employees of Purchaser’s member
(“Purchaser Indemnitees”) from and against, and to reimburse the Purchaser with
respect to, all liabilities, losses, costs and expenses, including, without
limitation, reasonable attorneys’ fees and disbursements, asserted against or
incurred by any Purchaser Party by reason of, arising out of, or in connection
with (i) any material breach of any representation, warranty or covenant
contained in this Agreement or made by the Seller or in any document or
certificate delivered by the Seller pursuant to the provisions of this Agreement
or in connection with the transactions contemplated thereby (ii) the Company’s
operations prior to the Closing, including without limitation any acts or
omissions by the Company or Seller, or any affiliate or agent of either,
occurring prior to the Closing, or any obligations of the Company arising prior
to the Closing, or (iii) the Unrelated Assets and/or Prior
Activities..
6.2
Indemnity
of the Purchaser.
The
Purchaser agrees to indemnify, defend and hold harmless the Seller from and
against, and to reimburse the Seller with respect to, all liabilities, losses,
costs and expenses, including, without limitation, reasonable attorneys’ fees
and disbursements, asserted against or incurred by the Seller by reason of,
arising out of, or in connection with any material breach of any representation,
warranty or covenant contained in this Agreement or made by the Purchaser or
in
any document or certificate delivered by the Purchaser pursuant to the
provisions of this Agreement or in connection with the transactions contemplated
thereby.
6.3
Indemnification
Procedure.
A party
(an “Indemnified Party”) seeking indemnification shall give prompt notice to the
other party (the “Indemnifying Party”) of any claim for indemnification arising
under this Article VI. The Indemnifying Party shall have the right to assume
and
to control the defense of any such claim with counsel reasonably acceptable
to
such Indemnified Party, at the Indemnifying Party’s own cost and expense,
including the cost and expense of attorneys’ fees and disbursements in
connection with such defense, in which event the Indemnifying Party shall not
be
obligated to pay the fees and disbursements of separate counsel for such in
such
action. In the event, however, that such Indemnified Party’s legal counsel shall
determine that defenses may be available to such Indemnified Party that are
different from or in addition to those available to the Indemnifying Party,
in
that there could reasonably be expected to be a conflict of interest if such
Indemnifying Party and the Indemnified Party have common counsel in any such
proceeding, or if the Indemnified Party has not assumed the defense of the
action or proceedings, then such Indemnifying Party may employ separate counsel
to represent or defend such Indemnified Party, and the Indemnifying Party shall
pay the reasonable fees and disbursements of counsel for such Indemnified Party.
No settlement of any such claim or payment in connection with any such
settlement shall be made without the prior consent of the Indemnifying Party
which consent shall not be unreasonably withheld.
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6.4
Company
Reimbursement.
In the
event of a breach of any representation or warranty made by the Seller under
Sections 4.10 through 4.13, the Seller hereby agrees to reimburse and compensate
the Company for any debts, costs, expenses or payments that it incurs that
are
in excess of the obligations and liabilities disclosed in such Sections 4.10
through 4.13. For example, in the event that all indebtedness of the Company
is
not discharged before the Closing and, as a result, the Company is obligated
to
pay any pre-closing indebtedness of the Company after the Closing, the Seller
shall promptly reimburse the Company for any such payments made by the
Company.
ARTICLE
VII
COVENANTS
7.1
Shareholders/Voting
Agreement.
The
Seller and Purchaser acknowledge that, following the Closing, they will not
own
and equal number of the Company’s shares. Nevertheless, the parties hereto agree
that it is their intention at all times to exercise their rights as
shareholders, and to vote their shares, in a manner as if each of them owned
50%
of the issued and outstanding shares to the Company. Accordingly, promptly
following the execution of this Agreement, the parties hereto shall commence
negotiating and preparing a shareholders/voting agreement pursuant to which
the
Seller and the Purchaser shall agree (i) to vote all of their Company shares
in
a manner that the Company’s Board of Directors and Board of Commissioners shall
consist of an even number of persons, one half of which shall be designated
by
each of the Seller and the Purchaser, and (ii) that they will not vote in favor
of a Fundamental Change unless they jointly agree to the Fundamental Change.
A
“Fundamental Change” means the occurrence of a transaction or series of related
transactions the results in (i) the sale, lease or other disposition of all
or
substantially all of the Company’s assets, (ii) the liquidation or dissolution
of the Company, (iii) the merger or consolidation of the Company with a third
party, (iv) a reclassification of the Company’s capital, or (v) the initiation
of bankruptcy proceedings by the Company.
7.2 Purchase
of BULOG Shares.
The
Seller agrees to complete its purchase of the 8,200 shares of the Company’s
stock from BULOG by no later than the Closing.
7.3 Post-Closing
Proceedings.
The
Seller agrees to cause the Company to promptly and efficiently take any and
all
action after the Closing that may be required to be completed in connection
with
the sale by the Seller of the Company Shares to the Purchaser, including without
limitation the notarization of documents, the filing of all instruments and
deeds with the appropriate Indonesian governmental agencies, and the recordation
of the transfer of the Company Shares in the Company’s corporate records. The
Purchaser is hereby authorized by the Seller, following the Closing, to give
notification of the transfer of the Company Shares to the Board of Directors
of
the Company, and to cause the registration of the Company Shares in the Share
Register of the Company in the name of the Purchaser. For the purpose hereof,
the Sellers irrevocably authorize the Purchaser- with right of substitution,
after the Closing to act on behalf of and in the name of the Seller to appear
whenever and wherever necessary, to sign any and all instruments, deeds and
documents required and to perform all matters considered proper and beneficial
for the registration of the Company Shares in the Purchaser's name, without
exception. This power of attorney as stated above constitute an important and
inseparable part of this Agreement, without which this Agreement would not
have
been consummated, and accordingly this power of attorney shall not be held
void
or cancelled for any reason whatsoever, including but not limited to the reasons
set forth in Articles 1813, 1814 and 1816 of the Indonesian Civil
Code.
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7.4 Sale
of 3,050 Shares to the Purchaser.
The
Seller hereby agrees to take all action necessary or appropriate on its part,
and as reasonably requested by Purchaser’s counsel, and agrees to cooperate with
the Company and its counsel, in order to complete as promptly as possible after
the Closing the subscription by the Purchaser of 3,050 shares of the Company’s
shares from the Company at the value of U.S. $2,500,000. The Seller hereby
agrees to use its best efforts to cause the Company to prepare and file all
applications with the BKPM, and the Indonesian Ministry of Law & Human
Rights, and to take all such other action as may be necessary to complete the
subscription by the Purchaser of such additional 3,050 shares of the
Company.
7.5
Payment
of the Company’s Pre-Closing Taxes.
The
parties hereto acknowledge that the Company may owe taxes to one or more
governmental agencies in Indonesia relating to its activities prior to the
Closing, which unpaid taxes may be payable before or after the Closing (all
unpaid taxes and governmental levies assessed for all periods prior to the
Closing, including any penalties related thereto, are herein referred to as
the
“Pre-Closing Taxes”). The Seller hereby agrees that it shall reimburse the
Company for all Pre-Closing Taxes assessed against the Company that the Company
is required to pay, and does pay. The Seller agrees that it will reimburse
the
Company in full for all Pre-Closing taxes that it pays within 30 calendar days
after its receipt of documents evidencing the assessment and payment of an
Pre-Closing Taxes.
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ARTICLE
VIII
MISCELLANEOUS
8.1
Survival
of Representations, Warranties and Agreements.
All
representations and warranties made by a party to this Agreement or in any
document or certificate delivered pursuant hereto shall survive the Closing
for
two years; provided, that the provisions of Sections 4.8, 4.10, and 4,12 shall
survive until the expiration of all applicable statutes of limitation with
regard to matters arising thereunder . Each of the parties hereto is executing
and carrying out the provisions of this Agreement in reliance upon the
representations, warranties and covenants and agreements contained in this
Agreement or at the closing of the transactions herein provided for and not
upon
any investigation which it might have made or any representations, warranty,
agreement, promise or information, written or oral, made by the other party
or
any other person other than as specifically set forth herein. All covenants
and
obligations contained in this Agreement shall survive the Closing until all
obligations with respect thereto have been performed or until they have expired
in accordance with their respective terms.
8.2
Further
Assurances.
If, at
any time after the Closing, the parties shall consider or be advised that any
further deeds, assignments or assurances in law or any other things are
necessary, desirable or proper to complete the transactions contemplated herein
or to vest, perfect or confirm, of record or otherwise, the title to any
property or rights of the parties hereto, the parties agree that their proper
officers and directors shall execute and deliver all such proper deeds,
assignments and assurances in law and do all things necessary, desirable or
proper to vest, perfect or confirm title to such property or rights and
otherwise to carry out the purpose of this Agreement, and that the proper
officers and directors of the parties are fully authorized to take any and
all
such action.
8.3 Notice.
All
communications, notices, requests, consents or demands given or required under
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered to, or received by prepaid registered or certified mail or
recognized overnight courier addressed to, or upon receipt of a facsimile sent
to, the party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by such party by notice in the manner
provided herein:
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If
to the
Purchaser:
c/o
NutraCea
0000
Xxxxx 00xx
Xxxxxx,
Xxxxx 000
Xxxxxxx,
XX 00000
Attn:
Xxxx Xxxxx
With
a
copy to:
Xxxxxxxxx
Genshlea Chediak Law Corporation
000
Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxxxx
If
to
Licensee:
Fortune
Finance Overseas Ltd.
00
Xxxxxxxxx Xxxx,
Xxxxxxxxx
Xxxxx #00-00,
Xxxxxxxxx
000000
Attn:_____________
With
copy
to:
Xxxx
& Xxxxx
0000
Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxx Xxxxx
8.4
Successors
and Assigns.
This
Agreement shall be binding upon, enforceable against and inure to the benefit
of, the parties hereto and their respective heirs, administrators, executors,
personal representatives, successors and assigns, and nothing herein is intended
to confer any right, remedy or benefit upon any other person. This Agreement
may
not be assigned by any party hereto except with the prior written consent of
the
other parties, which consent shall not be unreasonably withheld.
8.5
Governing
Law.
This
Agreement shall in all respects be governed by and construed in accordance
with
the laws of the State of California applicable to agreements made and fully
to
be performed in the state, without giving effect to any conflicts of law
principles thereof
8.6
Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
8.7
Construction.
Headings contained in this Agreement are for convenience only and shall not
be
used in the interpretation of this Agreement. References herein to Articles,
Sections and Exhibits are to the articles, sections and exhibits, respectively,
of this Agreement. As used herein, the singular includes the plural, and the
masculine, feminine and neuter gender each includes the others where the context
so indicates.
14
8.8
Severability.
If any
provision of this Agreement is held to be invalid or unenforceable by a court
of
competent jurisdiction, this Agreement shall be interpreted and enforceable
as
if such provision were severed or limited, but only to the extent necessary
to
render such provision and this Agreement enforceable.
8.9 Attorneys’
Fees .
If the
services of an attorney are required by any party to secure the performance
of
this Agreement or otherwise upon the breach or default of another party to
this
Agreement, or if any judicial remedy or arbitration is necessary to enforce
or
interpret any provision of this Agreement or the rights and duties of any person
in relation thereto, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs and other expenses, in addition to any other relief to
which such party may be entitled.
15
IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement as
of
the date first set forth above.
SELLER: | ||
FORTUNE FINANCE OVERSEAS LTD. | ||
|
|
|
By: | ||
|
PURCHASER: | ||
NUTRACEA | ||
|
|
|
By: | ||
|
16
Schedules
The
following are the schedules to the representations and warranties of
Fortune
Finance Overseas Ltd.
(the
"Seller") set forth in Article IV of the Stock Purchase Agreement dated as
of
January 28, 2008 (the "Agreement") to which this Schedule is attached. All
capitalized terms used and not otherwise defined herein shall have the meanings
given them in the Agreement. Nothing in this Schedule of Exceptions constitutes
an admission of any liability or obligation of the Seller or the Company to
any
party, nor an admission against the Seller’s or the Company's
interests.
4.8 Capitalization.
A. The
Purchaser has agreed to purchase 3,050 shares from the Company for US $2,500,000
following the Closing as soon as the Company’s Articles of Association are
amended to increase the Company’s authorized capitalization and the requisite
approval of the Ministry of Justice is received.
B. The
Seller has agreed to purchase from BULOG all 8,200 shares currently by BULOG,
which transaction is expected to be completed shortly after the
Closing.
C. The
Purchaser and the Seller intend to enter into a shareholder/voting agreement
following the Closing.
4.9 Title
to Assets.
17