EXHIBIT 6.4
STOCK PURCHASE AGREEMENT
Date: October 5, 1999
BETWEEN: Banakor Swisse S.A. ("Buyer")
Xxxx Xxx Xx.
X.X. Xxx X00000
Nassau, Bahamas
AND: Axion Spatial Imaging, Inc. ("Company")
0000 - 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
1.0 RECITALS
1.1 The Company is a Nevada corporation in the business of
providing geographic information systems and digital mapping
technologies.
1.2 Subject to specified conditions, the Company has agreed
to sell and Buyer agreed to purchase 1,200,000 shares ("Shares") of
the common stock of the Company, for the consideration and on the
terms set forth in this Agreement. It is the intention of the
parties that the Shares be deposited with Escrow Agent and released
in increments against installment payments until the obligation of
Buyer under this Agreement is satisfied and the purchase price
fully paid.
1.3 In consideration of the premises and the mutual
promises herein made, and in consideration of the representations,
warranties, and covenants herein contained, the Parties agree as
follows:
2.0 DEFINITIONS
2.1 "Agreement" means this Stock Purchase Agreement and all
attached Exhibits and Schedules, the terms of which are
incorporated by reference herein.
2.2 "Buyer" has the meaning set forth in the Recitals section
above.
2.3 "Closing" or "Closing Date" means the date and time as of
which the issuance of shares actually takes place and consideration
is paid, which shall occur immediately following the execution of
this Agreement, or at such other time or place as the Buyer and
Company may mutually agree upon.
2.4 "Company" has the meaning set forth in the Recitals
section above.
2.5 "Company Common Stock" means the common stock of Axion
Spatial Imaging, Inc., $.001 par value per share.
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2.6 "Effective Date" means the date of this Agreement.
2.7 "Escrow Agent" means the firm which holds the Shares in
escrow, in this Agreement the firm of Xxxxxxxxx Business Law P.C. ,
0000 Xxxxx Xxx., Xxx. 000, Xxxxxxx, Xxxxxxxxxx 00000; Tel 425-353-
8883; Fax 000-000-0000.
2.8 "Person" means any natural person, corporation, firm,
association, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
2.9 "Purchase Price" means the total consideration to be
paid for the Shares pursuant to Section 3.0 of this Agreement.
"Initial Purchase Price" and "Adjusted Purchase Price" have the
meanings set forth in Section 3.3 of this Agreement.
2.10 "Securities Act" means the U.S. Securities Act of
1933, as amended, together with applicable regulations promulgated
thereunder.
2.11 "Shares" means shares of Company Common Stock,
consisting of one million two hundred thousand (1,200,000) shares,
issued pursuant to this Agreement.
2.12 "Transfer Agent" means the transfer agent, CJB
Transfer Services, #200 000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxx, XX
00000, or any other entity designated to transfer Company
securities.
3.0 PURCHASE AND SALE OF SHARES
3.1 Subject to the terms and conditions of this Agreement,
Buyer agrees to buy and the Company shall issue and sell to Buyer
the Shares for the payment to the Company of an aggregate purchase
price of three hundred thousand ($300,000) dollars, payable in
lawful money of the United States, which purchase price is subject
to adjustment pursuant to section 3.3 below ("Purchase Price").
3.2 Payments. The Purchase Price shall be payable in
accordance with the following schedule, with payment in full due on
or before April 24, 2000, which payment schedule is subject to
adjustment pursuant to section 3.3 below:
3.2.1 $16,000 will be paid at Closing;
3.2.2 The balance of $284,000 shall be payable in monthly
installments, with payment in full due on or before April 24, 2000.
The amount of the monthly installment shall be at least equal to
the amounts set forth below, not to exceed $50,000
during any month, with the exception of the month of April
2000 during which the entire outstanding balance is due and
payable. Installment payments shall be due on the 24th day of each
month, until the balance of the Purchase Price is paid,
as follows:
- October 24, 1999 $ 16,000
- November 24, 1999 $ 27,000
- December 24, 1999 $ 41,000
- January 24, 2000 $ 30,000
- February 24, 2000 $ 15,000
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- March 24, 2000 $ 34,000
- April 24, 2000 $121,000
3.3 Adjustments to Amount and Payment of Purchase Price.
3.3.1 The initial aggregate purchase price of $300,000 is
based on a per share consideration of $.25 ("Initial Purchase
Price"). The Initial Purchase Price is expressly conditioned upon
the timely payment to the Company of the entire Purchase Price on
or before April 24, 2000. In the event full payment for the Shares
is not received by the Company by April 24, 2000, the Purchase
Price will be immediately adjusted from $.25 per share to $.37 per
share, for an aggregate consideration of up to $444,000 ("Adjusted
Purchase Price"), which shall be immediately due and payable.
3.3.2 The amounts of the scheduled monthly installment
payments set forth above are based upon the cash flow forecasts of
the Company as of the date of this Agreement. The installment
amounts may be increased in the sole discretion of the Company to
make up additional projected cash flow deficits, as determined by
the Company from time to time, after ten (10) days written notice
to Buyer, but in an amount not to exceed $50,000 during any month
(with the exception of the month of April 2000 during which the
entire outstanding balance is due and payable).
3.4 Closing. The Closing of the sale and purchase of the
Shares shall take place at the offices of the Escrow Agent,
Xxxxxxxxx Business Law P.C., immediately following the execution of
this Agreement, or at such other time or place or on such other
date as the Company and the Buyer may agree to in writing.
3.4.1 At the Closing, subject to the provisions of this
Agreement, the Company shall surrender to Escrow Agent (1) an
outstanding certificate or certificates representing the Shares of
the Company, free and clear of all liens, pledges, encumbrances,
defect of title, charge or claim of any nature whatsoever. The
certificates representing the Shares shall carry the restrictive
legend set forth in Section 5.6 below, and shall be in negotiable
form, duly endorsed, in form acceptable to the Transfer Agent; and
(2) all documents, instruments and writings required to have been
delivered at or prior to Closing by the Company pursuant to this
Agreement.
3.4.2 At the Closing, Buyer shall deliver to the Escrow
Agent: (1) that portion of the Purchase Price payable upon Closing
($16,000) as determined pursuant to this Agreement in United States
dollars in immediately available funds by wire transfer to an
account designated in writing by the Escrow Agent prior to Closing;
and (ii) all documents, instruments and writings required to have
been delivered at or prior to Closing by the Buyer pursuant to this
Agreement.
3.5 Default by Buyer, Partial Payment. If the Buyer shall
fail or refuse to tender the complete Purchase Price, in accordance
with the terms of this Agreement; the Buyer shall be entitled to
purchase and retain that pro rata portion of the Shares for which
it has advanced funds to the Company prior to default under the
terms of this Agreement at the Adjusted Purchase Price. A purchase
of a portion of the Shares shall result in a proportional reduction
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of the Purchase Price. The Company at its option and without
prejudice to its rights against defaulting Buyer, may instruct the
Escrow Agent to refuse to release the balance of the Shares in
Escrow to the Buyer.
4.0 REPRESENTATIONS AND WARRANTIES OF THE COMPANY
4.1 The Company represents and warrants to Buyer as follows
that the statements contained in this Section 4.0 are correct and
complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement
throughout this Section), except as set forth in the disclosure
schedule accompanying this Agreement as Schedule A and initialed by
the Parties (the "Disclosure Schedule"). The Disclosure Schedule
will be arranged in paragraphs corresponding to the lettered and
numbered paragraphs contained in this Section 4.0.
4.2 The execution and delivery to Buyer by the Company of
this Agreement, constitutes the legal, valid, and binding
obligation of the Company, enforceable against the Company in
accordance with its respective terms. The Company has the absolute
and unrestricted right, power, authority, and capacity to execute
and deliver this Agreement and any of the Company's closing
documents, if required, and to perform its obligations under this
Agreement and the Company's closing documents.
4.3 To the best of the Company's knowledge, information and
belief, neither the execution and delivery of this Agreement nor
the compliance with and fulfillment of the terms and provisions of
this Agreement:
(a) will result in the breach of any term or provision
of, or constitute a default under or conflict with the charter
documents, Articles of Incorporation or Bylaws of the Company;
(b) is prohibited by or requires any notification,
consent, authorization, or any judgment, order, writ, injunction,
or decree which is binding upon the Company, except for such
approvals or other action or inaction as may be required under the
securities or corporate laws of the various states or other
jurisdictions.
4.4 The Company is not or will not be required to give any
notice to or obtain any consent from any Person in connection with
the execution and delivery of this Agreement or the consummation or
performance of any of its terms and provisions.
5.0 REPRESENTATIONS AND WARRANTIES OF BUYER
5.1 Buyer represents and warrants to the Company as follows
that the statements contained in this Section 5.0 are correct and
complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement
throughout this Section), except as set forth in the disclosure
schedule accompanying this Agreement as Schedule B and initialed by
the Parties (the "Disclosure Schedule"). The Disclosure Schedule
will be arranged in paragraphs corresponding to the lettered and
numbered paragraphs contained in this Section 5.0.
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5.2 Buyer is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its
incorporation.
5.3 This Agreement, together with the constitutes the legal,
valid, and binding obligation of Buyer, enforceable against Buyer
in accordance with its terms. Buyer has the full power and
authority (including full corporate power and authority) to execute
and deliver this Agreement and to perform its obligations hereunder
unless otherwise stated in this Agreement.
5.4 Neither the execution nor the delivery of this
Agreement, nor the compliance with and fulfillment of its terms and
provisions:
(a) will result in the breach of any term or provision
of, or constitute a default under or conflict with the Articles of
Incorporation or Bylaws of Buyer; and
(b) is prohibited by or requires any notification,
consent, authorization, or any judgment, order, writ, injunction,
or decree which is binding upon Buyer, except for such approvals or
other action or inaction as may be required under the securities or
corporate laws of the various states or other jurisdictions.
5.5 With respect to the purchase of the Shares, Buyer
warrants and represents the following:
(a) Buyer has been fully advised of the financial
condition of the Company, has been allowed to review all relevant
financial, business and legal documentation sufficient to enable it
to evaluate its investment in the Shares. No representation or
inducement has been made to Buyer which conflicts with this
information;
(b) Buyer has been provided with all materials and
information requested by Buyer or its representatives, including
any information requested to verify any information furnished, and
Buyer has been provided the opportunity for direct communication
with the Company and its representatives regarding the purchase
made by this Agreement, including the opportunity to ask questions
of and receive answers from the executive officers and directors of
the Company;
(c) Buyer has sufficient knowledge and experience in
financial and business matters and is capable of evaluating the
merits and risks of this investment and of making an informed
investment decision with respect to the investment;
(d) Buyer is able to bear the economic risk of an
investment in the Shares and, at the present time, is able to
afford a complete loss of such investment;
(e) Buyer was not solicited by any leaflet, public
promotional meeting, circular, newspaper or magazine article, radio
or television advertisement, or any other form of general
advertising or solicitation in connection with the offer, sale, or
purchase of Company securities;
(f) Buyer is investing in the securities for Buyer's
account and not with a view for resale and Buyer does not intend to
divide Buyer's participation with others;
(g) Buyer understands and acknowledges that the Shares
will be "restricted securities" as that term is defined in Rule 144
promulgated under the Securities Act, and that the certificate(s)
representing the Shares will bear a legend similar to the
following:
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The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act") and are "restricted securities" as that term is defined
in Rule 144 as promulgated under the Act. The securities may
not be sold or transferred for value without an effective
registration statement under the Act, pursuant to the
provisions of Rule 144 under the Act, or pursuant to an
exemption from registration under the Act, the availability of
which is to be established to the satisfaction of the Company;
(h) At the time Buyer was offered the Shares, it was,
and at the date of this Agreement is, and at the Closing Date it
will be, an "accredited investor" as that term is defined in Rule
501(a) under the Securities Act.
6.0 OTHER COVENANTS OF THE PARTIES
6.1 The Parties agree as follows with respect to the period
from and after the execution of this Agreement, that each of the
Parties will use its reasonable best efforts to take all action and
to do all things all things necessary in order to consummate and
make effective the transactions contemplated by this Agreement.
6.2 Escrow. The Parties agree to enter into the escrow
agreement attached and made part of this Agreement as Addendum B.
The Company agrees to issue the Shares into escrow certificates to
be held by Escrow Agent registered in the names of Buyer pursuant
to the terms of the Escrow Agreement. These certificates shall be
in denominations of 135,135 shares.
6.3 Attorney-in-Fact. To effectuate the terms and provisions
of this Agreement, and the Escrow Agreement, the Company hereby
designates and appoints the Escrow Agent and each of its designees
or agents as attorney-in-fact of the Company, irrevocably and with
power of substitution, with authority to carry out any acts and
things necessary or advisable in the sole discretion of the Escrow
Agent to carry out and enforce this Agreement, and the Escrow
Agreement. All acts done under the foregoing authorization are
hereby ratified and approved and neither the Escrow Agent nor any
designee or agent shall be liable for any act of commission or
omission for any error of judgment or for any mistake of fact or
law. This power of attorney being coupled with an interest is
irrevocable while any any portion of the Shares remain unreleased
from escrow or the Escrow Agreement remains unsatisfied.
7.0 ESCROW SHARES, DIVIDENDS, VOTING
7.1 The stock certificate(s) representing the Shares shall
be held in trust by Escrow Agent.
7.2 As the installment payments of the Purchase Price are
made in accordance with Section 3.2 of this Agreement, the Shares
shall be released to Buyer, except, however, the Shares shall be
released in blocks of not less than 135,135 shares based on the
Adjusted Purchase Price of $.37 per share, so that 135,135 Shares
will be released to Buyer for each $50,000 received by the Company
in payment of the Purchase Price. In the event full payment for
the Shares is received by the Company by April 24, 2000, the
balance of the Shares will be released to Buyer in accordance with
the Initial Purchase Price. In the event full payment for the
Shares is not received by the Company by April 24, 2000, any and
all Shares released to Buyer will be sold only at the Adjusted
Purchase Price.
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7.3 If Buyer shall become entitled to receive or shall
receive, in connection with any of the Shares, any:
(a) Stock certificate, including without limitation, any
certificate representing a stock dividend or in connection with any
increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split,
spin-off or split-off;
(b) Option, warrant, or right, whether as an addition to
or in substitution or in exchange for any of the Shares or
otherwise;
(c) Dividend or distribution payable in property,
including securities issued by other than the issuer of any of the
Shares; then the Company shall accept the same in trust for Buyer,
and shall deliver them forthwith to the Escrow Agent in the exact
form received.
7.4 Unless an event of default shall have occurred and be
continuing, Buyer shall be entitled to receive for its own use cash
dividends on the Shares paid out of earned surplus. Upon the
occurrence of an event of default, the Company may require any such
cash dividends to be delivered to the Company as additional
security or applied toward the satisfaction of Buyer's obligation.
7.5 The Shares shall not be voted by either party so long as
they remain in escrow. As each block of shares is released from
escrow based on the Adjusted Purchase Price, Buyer shall have the
right to vote these shares immediately upon release from escrow.
Should, however, Buyer fail to make full payment for the Shares by
April 24, 2000 as provided in Section 3.2 of this Agreement, Buyer
thereafter shall only vote those shares previously released from
escrow under the provisions of this Agreement.
7.6 Should Buyer fail to make full payment for the Shares by
April 24, 2000 as provided in Section 3.2 of this Agreement, at the
sole discretion of the Company those shares not released from
escrow may be retired and restored to the status of authorized and
un-issued shares, or may be disposed of for such consideration as
the board of directors may determine.
8.0 TERMINATION
8.1 This Agreement may, by written notice given prior to or
at the Closing, be terminated as follows:
(a) by either Buyer or the Company if a material breach
of any provision of this Agreement has been committed by the other
party and such breach has not been waived; or
(b) by mutual written consent of Buyer and the Company.
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8.2 Each Party's right of termination is in addition to any
other rights it may have under this Agreement or otherwise, and the
exercise of a right of termination will not be an election of
remedies; provided, however, that if this Agreement is terminated
by a party because of a breach of the Agreement by the other party
or because one or more of the conditions to the terminating party's
obligations under this Agreement is not satisfied as a result of
the other party's failure to comply with its obligations under this
Agreement, the terminating party's right to pursue all legal
remedies will survive such termination unimpaired.
9.0 INDEMNIFICATION
9.1 All representations, warranties, covenants, and
obligations in this Agreement, and any other certificate or
document delivered pursuant to this Agreement will survive the
Closing. The right to indemnification, payment of damages or other
remedy based on such representations, warranties, covenants, and
obligations will not be affected by any investigation conducted
with respect to, or any knowledge acquired (or capable of being
acquired) at any time, whether before or after the execution and
delivery of this Agreement or the Closing Date, with respect to the
accuracy or inaccuracy of or compliance with, any such
representation, warranty, covenant, or obligation. The waiver of
any condition based on the accuracy of any representation or
warranty, or on the performance of or compliance with any covenant
or obligation, will not affect the right to indemnification,
payment of damages, or other remedy based on such representations,
warranties, covenants, and obligations.
9.2 The Company, jointly and severally, and Buyer mutually
agree to indemnify and hold each other harmless along with their
respective representatives, stockholders, controlling persons, and
affiliates (collectively, the "Indemnified Persons") for, and will
pay to the Indemnified Persons the amount of, any loss, liability,
claim, damage (including incidental and consequential damages),
expense (including costs of investigation and defense and
reasonable attorneys' fees) or diminution of value, whether or not
involving a third-party claim, arising, directly or indirectly,
from or in connection with any breach of any representation,
warrant, covenant or obligation made by the other Party in this
Agreement.
9.3 Buyer understands and acknowledges that the Shares are
being sold without registration under the Securities Act in a
private placement that is exempt from the registration provisions
of the Securities Act, and the availability of that exemption,
depends in part, on the accuracy and truthfulness of the
representations made by Buyer in this Agreement. Buyer agrees to
indemnify the Company, and any person participating in the offering
and to hold them harmless from and against any and all liability,
damage, cost, or expense (including, but not limited to, reasonable
attorneys' fees) incurred on account of or arising out of:
(a) Any inaccuracy in the declarations, representations,
and warranties set forth above in Section 5.0 made by Buyer to the
Company in connection with its subscription;
(b) The disposition of any of the securities which Buyer
will receive, contrary to Buyer's declarations, representations,
and warranties set forth in this Agreement; and
(c) Any action, suit, or proceeding based on (i) the
claim that Buyer's declarations, representations, or warranties
were inaccurate or misleading or otherwise cause for obtaining
damages or redress from the Company, or (ii) the disposition of any
or any part of the securities.
-8-
10.0 NOTICES
10.1 Any notice, request, demand, claim, instruction, or
other document to be given to any party pursuant to this Agreement
shall be in writing delivered personally or sent by mail,
registered or certified, postage fully prepaid, as follows:
If to the Company, to the address set forth on the first page of
this Agreement, with a copy to:
Xxxxxxxxx Business Law P.C.
0000 Xxxxx Xxx., Xxx. 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
If to Buyer, to the address set forth on the first page of this
Agreement.
10.2 Any party may give any notice, request, demand, claim,
instruction, or other document under this section using any other
means (including expedited courier, messenger service, telecopy,
facsimile, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, instruction, or other document
shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended.
Any party may change its address for purposes of this section by
giving notice of the change of address to the other party in the
manner provided in this section.
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11.0 GENERAL PROVISIONS
11.1 Except for the fees and expenses of the Company's
counsel, Buyer will bear its own expenses incurred in connection with
the execution, and performance of this Agreement and its terms and
conditions, including all fees and expenses of agents, representatives,
counsel, and accountants.
11.2 The Parties agree to furnish upon request to each other
such further information, and to execute and deliver to each other
such other documents, and to do such other acts and things, all as
the other party may reasonably request for the purpose of carrying
out the intent of this Agreement and the documents referred to in
this Agreement.
11.3 The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any
delay by any party in exercising any right, power, or privilege
under this Agreement or the documents referred to in this Agreement
will operate as a waiver of such right, power, or privilege, and no
single or partial exercise of any such right, power, or privilege
will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a)
no claim or right arising out of this Agreement or the documents
referred to in this Agreement can be discharged by one party, in
whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may
be given by a party will be applicable except in the specific
instance for which it is given; and (c) no notice to or demand on
one party will be deemed to be a waiver of any obligation of such
party or of the right of the party giving such notice or demand to
take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
11.4 This Agreement supersedes all prior agreements between
the parties with respect to its subject matter and constitutes
(along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may not
be amended except by a written agreement executed by the party to
be charged with the amendment.
11.5 Neither party may assign any of its rights under this
Agree-ment without the prior consent of the other parties, except
that Buyer may assign any of its rights under this Agreement to any
subsidiary or affiliate of Buyer. This Agreement will apply to, be
binding in all respects upon, and inure to the benefit of the suc-
cessors and permitted assigns of the parties. Nothing expressed or
referred to in this Agreement will be construed to give any Person
other than the parties to this Agreement any legal or equitable
right, remedy, or claim under or with respect to this Agreement or
any provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and assigns.
11.6 If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect.
Any provision of this Agreement held invalid or unenforceable only
in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
11.7 The headings in this Agreement are provided for
convenience only and will not affect its construction or
interpretation.
11.8 With regard to all dates and time periods set forth or
referred to in this Agreement, time is of the essence.
11.9 This Agreement will be construed in accordance with its
terms and the laws of the State of Washington.
11.10 This Agreement may be signed in as many counterparts is
as necessary and all signatures so executed shall constitute one
Agreement, binding on all Parties as if each was a signatory on the
original. 11.11 In the event an arbitration, suit or action is
brought by any party under this Agreement to enforce any of its
terms, or in any appeal therefrom, it is agreed that the prevailing
party shall be awarded and receive from the non-prevailing party
all costs and expenses, including all reasonable attorneys fees to
be fixed by the arbitrator, trial court, and/or appellate court, in
the action and on appeal.
11.12 The addenda, exhibits and schedules identified in this
Agreement are incorporated herein by reference and made a part
hereof.
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12.0 SIGNATURES
12.1 IN WITNESS WHEREOF, the parties have executed and
delivered this Agreement as of the date first written above.
Buyer:
BANAKOR SWISSE S.A.
/s/ Xxxxxx Xxxxxxxxxxx
__________________________________________
By: Xxxxxx Xxxxxxxxxxx, Director
The Company:
AXION SPATIAL IMAGING, INC.
/s/ Xxx Xxxxxxx
_________________________________________
By: Xxx Xxxxxxx, President
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SCHEDULE A
DISCLOSURE SCHEDULE
(pursuant to Section 4.0)
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SCHEDULE B
DISCLOSURE SCHEDULE
(pursuant to Section 5.0)
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