Exhibit 2.2
STOCK SALE AGREEMENT
AGREEMENT, dated as of June 29, 2001, between GLENGARRY HOLDINGS
LIMITED, a Bermuda company ("Seller"), and Emmerson Development Trust, a Trust
established in Hong Kong ("Buyer").
W I T N E S S E T H
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, (i) an aggregate of 3,378,558 shares of common stock, par value
$.01 per share (including all paid and/or accrued dividends thereon), the
"Glengarry US Shares"), of Glengarry Holdings (US) Limited, a Nevada corporation
("Glengarry US"); and
WHEREAS, Seller and Buyer are entering into this Agreement to provide
for such purchase and sale of the Glengarry US Shares, upon the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF STOCK
Section 1.1. Purchase and Sale. On the basis of the representations,
warranties, covenants and agreements set forth herein, Seller hereby sells to
Buyer the Glengarry US Shares, for the purchase price (the "Purchase Price")
consisting of the following:
(a) the sum of US$1,000.00; and
(b) one half of the tax savings realized by Purchaser from the
utilization of U.S. tax loss carryforwards existing in
Glengarry US.
Section 1.2. Returns and Records.
(a) Buyer will provide Seller with a copy of its signed tax returns for
each of the following ten years or such shorter period as all of the U.S. tax
loss carryforwards of Glengarry US shall have been exhausted together with a
payment in accordance with Section 1.1.(b) above, no later than the due date of
such return.
(b) Buyer, upon reasonable notice and during normal business hours,
will permit Seller and its agents access to Buyer's and Glengarry US' records
for the purpose of verifying Buyer's payments in accordance with this Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that (i) Seller is duly
organized, validly existing and in good standing under the laws of Bermuda and
has all requisite power and authority, corporate and otherwise, to execute,
deliver and perform its obligations under this Agreement and to consummate
the-transactions contemplated hereby; (ii) this Agreement has been duly and
validly executed and delivered by Seller and constitutes the legal, valid and
binding obligation of Seller, enforceable in accordance with its terms; (iii)
Seller has good and valid title to the Glengarry US Shares, free and clear of
any and all claims, liens, pledges, charges, encumbrances and security
interests, and, upon delivery by Seller to Buyer of the certificates
representing the Glengarry US Shares as contemplated by Section 1.2 of this
Agreement, Seller shall have transferred to Buyer good and valid title to the
Glengarry US Shares, free and clear of any and all claims, liens, pledges,
charges, encumbrances and security interests; (iv) the-execution, delivery and
performance of this Agreement do not conflict with or violate the charter or
bylaws of Seller or-any law, rule, regulation, order, judgment, decree, contract
or agreement applicable to Seller, or by which any of its properties (including
the Glengarry US Shares) are bound or affected; and (v) no consent, approval,
waiver, license or authorization or other action of filing with any governmental
authority or third party is required in connection with the execution, delivery
and performance by Seller of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller that (i) Buyer is duly
organized, validly existing and in good standing under the laws of Hong Kong and
has all requisite power and authority, corporate and otherwise, to execute,
deliver and perform the obligations of Buyer under this Agreement and to
consummate the transactions contemplated hereby; (ii) this Agreement has been
duly and validly executed and delivered by Buyer and constitutes the legal,
valid and binding obligation of Buyer, enforceable in accordance with its terms;
(iii) the execution, delivery and performance of this Agreement shall not
conflict with or violate the charter or by-laws of Buyer or any law, rule,
regulation, order, judgment, decree, contract or agreement applicable to Buyer,
or by which any of its properties are bound or affected; and (iv) no consent,
approval, waiver, license or authorization or other action of filing with any
governmental authority or third party is required in connection with the
execution, delivery and performance by Buyer of this Agreement.
Buyer represents and warrants that it is acquiring the Glengarry US
Shares for investment and not with a view toward, or for the purpose of, the
resale or distribution thereof. Buyer acknowledges that the sale of the
Glengarry US Shares hereunder has not been registered under the Securities Act
of 1933, as amended (the "Securities Act"), and that the Glengarry US Shares may
not be sold, transferred, offered for sale or otherwise disposed of without
registration under the Securities Act, pursuant to an exemption therefrom or in
a transaction not subject thereto.
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ARTICLE IV
ASSUMPTION AND INDEMNIFICATION
Section 4.1. Assumption and Indemnification by Seller. Seller hereby
assumes and agrees to pay and perform, when due, all obligations of Glengarry
(US) to HFC Credit pursuant solely to a credit facility of up to $1,000,000
dated November 4, 2000 and further agrees to indemnify and hold Buyer harmless
from any claim, cause of action or action related to such obligations including,
but not limited to, reasonable attorneys' fees and other costs or expenses
incurred by Glengarry (US) in investigating and defending any such claim, cause
of action or action. As between Seller and Glengarry (US), it is the intention
that with respect to the obligations and liabilities assumed by Seller, Seller
will be liable as if it, rather than Glengarry (US) were the original party,
notwithstanding the fact that Seller remains primarily liable to HFC Credit.
Section 4.2. Indemnification by Buyer. Buyer agrees to hold Seller
harmless from any claim, cause of action or action related to Glengarry (US)
(except as to obligations set forth in Section 4.1., above), including but not
limited to, reasonable attorney's fees and other costs and expenses incurred by
Seller in investigating and defending any such claim, cause of action or action.
ARTICLE V
MISCELLANEOUS
Section 5.1. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that no party hereto may assign its
rights or delegate its obligations under this Agreement without the express
prior written consent of the other party hereto.
Section 5.2. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party. Copies of executed
counterparts transmitted by telecopy, telefax or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Section, provided receipt of copies of such counterparts is confirmed.
Section 5.3. Headings. The headings of the sections of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the meaning or interpretation of this Agreement.
Section 5.4. Amendments and Waiver. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed-by the party against whom such
would apply. Any of the terms or conditions of this Agreement may be waived in
writing at any time by the party which is entitled to the benefits thereof. No
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waiver or any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of such provisions at any time in the future or a waiver of
any other provisions hereof.
Section 5.5. Expenses. All legal and other costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs and expenses. Seller shall be
responsible for and shall pay all sales, transfer, deed, duties, stamp, notary
public and other similar taxes, duties and transfer fees applicable to the
transactions contemplated by this Agreement, including fees to record
assignments.
Section 5.6. Company name and officials. Contemporaneously with the
sale the buyer undertakes to change the name of Glengarry US and to appoint new
directors and officials pursuant to its own activities.
Section 5.7. Notices. Any notice, request, instruction, consent or
other document to be given hereunder by either party hereto to the other party
shall be in writing and delivered personally, by telecopy or sent by registered
or certified mail, postage prepaid, as follows:
If to Seller:
Xxxxxxxxx Xxxxxxxx Xxxxxxx
X.X. Xxx XX 0000
00 Xxxxx Xxxxxx
Xxxxxxxx, XXXX, Xxxxxxx
Attn: Xxxxxxx Xxxxxxx, Vice President
with a copy to:
Xxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
If to Buyer:
Emmerson Development Trust
Hanover Trust Company
Xxxxxxxxx 00
0000 Xxxx,
Xxxxxxxxxxx
with a copy to:
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or at such other address for a party as shall be specified in writing by that
party.
Section 5.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Bermuda without reference to the choice
of laws principles thereof.
Section 5.9. Further Assurances. Each of the parties hereto shall use
its reasonable best efforts to satisfy the conditions to Closing hereunder and
to consummate the transactions contemplated hereby.
Section 5.10. Survival. The representations and warranties of the
parties contained in this Agreement and in any certificate delivered pursuant
hereto shall survive the execution and delivery of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties as of the day first above written.
GLENGARRY HOLDINGS LIMITED
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
Title: President
By: /s/ A.M. Xxxx
--------------------------
Name: A. M. Xxxx
Title: Trustee
Emmerson Dev. Trust
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