EXHIBIT 4.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into on April ____,
2005 by and between Arcadia Resources, Inc., a Nevada corporation ("Seller" or
"Company"), and ___________________ ("Purchaser").
RECITALS:
A. The Company desires to issue and sell to Purchaser shares of its
authorized common stock, $0.001 par value, (the "Common Stock"), subject to the
terms and conditions of this Agreement.
B. The Purchaser, which is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D promulgated by the U.S. Securities and
Exchange Commission (the "Commission"), desires to purchase from the Company
shares of the Common Stock, subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Purchaser and Seller agree as
follows:
1. SALE OF STOCK. Upon execution of this Agreement, Purchaser hereby
agrees to and does purchase from Seller, and Seller hereby agrees to and does
sell to Purchaser, One Million Two Hundred Twelve Thousand One Hundred
Twenty-One (1,212,121) shares of the Company's original issue Common Stock (the
"Acquired Stock"). No fractional shares of the Acquired Stock shall be issued to
Purchaser.
2. PURCHASE PRICE. The purchase price of the Acquired Stock is U.S. $1.65
per share for a total aggregate purchase price for all of the Acquired Stock of
Two Million ($2,000,000.00) and No/100 U.S. Dollars in total ("Purchase Price").
3. PAYMENT OF PURCHASE PRICE. Contemporaneously with the execution of this
Agreement, the Purchase Price shall be paid in full in U.S. Dollars by certified
check or wire transfer.
4. ISSUANCE OF COMMON STOCK CERTIFICATE. Upon Seller's receipt of payment
in full of the Purchase Price, Seller shall deliver to its transfer agent
irrevocable instructions to issue and deliver to Purchaser, at the address
designated on the signature page, one Common Stock certificate evidencing
Purchaser's ownership of the Acquired Shares, subject to the terms and
conditions of this Agreement.
5. ACKNOWLEDGMENTS, COVENANTS, REPRESENTATIONS AND WARRANTIES OF
PURCHASER. Purchaser acknowledges, covenants, represents and warrants to Seller
each of the following:
(a) ORGANIZATION; AUTHORITY; ENFORCEABILITY. Purchaser is an entity
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with full power and authority to
enter into and to consummate the transactions contemplated hereby and
otherwise to carry out its obligations hereunder.
The execution, delivery and performance by such Purchaser of the
transactions contemplated by this Agreement has been duly authorized by
all necessary corporate or similar action on the part of such Purchaser.
This Agreement and any related transaction documents have been duly
executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally
binding obligation of such Purchaser, enforceable against it in accordance
with its terms, subject to laws of general application relating to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and rules of law governing specific
performance, injunctive relief, or other equitable remedies.
(b) GENERAL SOLICITATION. Purchaser is not purchasing the Acquired
Stock as a result of any advertisement, article, notice or other
communication regarding the Acquired Stock published in any newspaper,
magazine or similar media or broadcast over television or radio or
presented at any seminar or any other general solicitation or general
advertisement.
(c) NO PUBLIC SALE OR DISTRIBUTION. Purchaser is acquiring the
Acquired Stock for its own account and not with a view towards, or for
resale in connection with, the public sale or distribution thereof.
Purchaser is acquiring the Acquired Stock in the ordinary course of its
business. Purchaser does not have any agreement or understanding, directly
or indirectly, with any Person to distribute any of the Acquired Stock.
(d) ACCREDITED INVESTOR STATUS. Purchaser is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D
promulgated by the Commission.
(e) RESIDENCY. Purchaser is a resident of the State designated on
the signature page.
(f) RELIANCE ON EXEMPTIONS. Purchaser acknowledges that the Acquired
Stock is being offered and sold to it in reliance on specific exemptions
from the registration requirements of United States federal and applicable
state securities laws and that the Company is relying in part upon the
truth and accuracy of, and such Purchaser's compliance with, the
representations, covenants, warranties, agreements, acknowledgments and
understandings of such Purchaser set forth herein in order to determine
the availability of such exemptions and the eligibility of such Purchaser
to acquire the Acquired Stock.
(g) INFORMATION. Purchaser and its advisors, if any, have obtained
or have been furnished with all publicly available financial, operational,
business and other data, statements, information and materials relating to
the business, finances, prospects and operations of the Company and such
other publicly available materials relating to the offer and sale of the
Acquired Stock as have been requested by such Purchaser. Purchaser and its
advisors, if any, have been afforded the opportunity to ask questions of
the Company, and all such questions have been answered to its full
satisfaction. Neither such inquiries nor any other due diligence
investigations conducted by such Purchaser or its advisors, if any, or its
representatives shall modify, amend or affect the terms and conditions of
this Agreement or the acknowledgements, covenants, representations and
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warranties given by Purchaser hereunder. Purchaser understands that its
investment in the Acquired Stock involves a high degree of risk. No oral
representations have been made or oral information furnished to Purchaser
or its representatives, if any, in connection with the purchase of the
Acquired Stock.
(h) NO GOVERNMENTAL REVIEW. Purchaser understands that no United
States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the
Acquired Stock or the fairness or suitability of the investment in the
Acquired Stock, nor have such authorities passed upon or endorsed the
merits of the offering of the Acquired Stock.
(i) EXPERIENCE OF PURCHASER. Purchaser, either alone or together
with its representatives, has such knowledge, sophistication and
experience in business and financial matters, including investing in
companies engaged in the business in which the Company is engaged, so as
to be capable of evaluating the merits and risks of the prospective
investment in the Acquired Stock, and has so evaluated the merits and
risks of such investment. Purchaser is able to bear the economic risk of
an investment in the Acquired Stock and is able to afford a complete loss
of such investment. Purchaser has adequate means of providing for its
financial needs and contingencies and is able to bear the substantial
economic risk of an investment in the Acquired Stock for an indefinite
period.
(j) SALE AND ISSUANCE OF ADDITIONAL SHARES TO OTHERS. Purchaser
understands and agrees that additional shares of the Company's Common
Stock may be issued by the Company from time to time, whether as part of
the same offering by which Purchaser purchases the Acquired Shares or a
different offering or other event, which could result in the dilution of
the Purchaser's percentage interest and shareholding position in the
Company.
(k) UNREGISTERED STOCK; REGISTRATION OF STOCK. Purchaser understands
that the Acquired Stock has not been registered under the Securities Act
of 1933, as amended (the "Act"), or under any applicable state securities
law, in reliance upon available exemptions from registration. Accordingly,
Purchaser's right or ability to sell, transfer, pledge or otherwise
dispose of the Acquired Stock is severely limited by applicable federal
and state securities laws. Purchaser understands that the Acquired Stock
cannot be resold unless it is registered or unless an exemption from
registration is available thereunder, that the Company will prepare and
file with the Commission a registration statement under the Securities Act
of 1933 covering all of the Acquired Stock for a secondary or resale
offering to be made on a continuous basis pursuant to Rule 415, that the
registration statement shall be on Form S-1 or such other form as the
Company determines appropriate for such registration, and that the Company
shall use reasonable efforts to cause the registration statement to be
declared effective by the Commission not later than 90 days after the date
of this Agreement. The Acquired Stock may only be disposed of in
compliance with applicable state and federal securities laws. In
connection with any transfer of the Acquired Stock other than pursuant to
an effective registration statement or to the Company, the Company may
require the transferor thereof to provide to the Company an opinion of
counsel, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not
require
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registration of such transferred securities under the Securities Act.
Purchaser agrees that any removal of the restrictive legend from
certificates representing the Acquired Stock, which removal shall first be
authorized by the Company subject to the terms of this Agreement, is
predicated upon the Company's reliance on, and the Purchaser's agreement
that, and Purchaser hereby agrees that, the Purchaser will not sell any
Acquired Stock except pursuant to either the registration requirements of
the Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom.
(l) RESTRICTIVE LEGEND. Purchaser agrees to the imprinting, so long
as is required under applicable federal and state securities laws, of a
legend on the stock certificate evidencing the Acquired Stock in
substantially the following form:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THESE SHARES
UNDER THE SECURITIES ACT OF 1933 OR AN OPINION OF THE COMPANY'S COUNSEL
THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT.
(m) INDEMNIFICATION. Purchaser agrees to indemnify, hold harmless
and defend the Company, its affiliates, directors, officers and employees
from and against all damages, losses, cost and expenses (including
reasonable attorney fees) that they may incur by reason of any breach of
the acknowledgements, covenants, representations or warranties made by
Purchaser in this Agreement. Purchaser understands and acknowledges that
the representations, acknowledgements, warranties, covenants, agreements
and statements provided by Purchaser herein may and shall be relied upon
by the Company, its affiliates, directors, officers and employees in the
execution and performance of this Agreement.
(n) NON-PUBLIC INFORMATION. Purchaser has not requested nor been
furnished with any information known or believed to constitute material
non-public information of the Company, unless prior thereto Purchaser
shall have executed a written agreement acceptable to the Company
regarding the confidentiality and use of such information.
(o) BROKERS/FINDERS. Except for fees payable by the Company to
Sandgrain Securities, Inc. in connection with the sale and purchase of the
Acquired Shares by Purchaser, Purchaser represents and agrees that no
brokerage or finder's fees, commissions or other amounts are or will be
payable by the Company, on account of any agreement, understanding or
undertaking by Purchaser, to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with
respect to the transactions contemplated by this Agreement.
(p) REGULATORY DISCLOSURES. Purchaser understands that the Company
shall, within four business days following the execution of this
Agreement, file a Current Report on Form 8-K with the Commission,
disclosing the transactions
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contemplated hereby and may make such other filings and notices in the
manner and time required by the Commission, including the filing of this
Agreement if required, as well as any filings that may be required by
state regulators.
(q) REPLACEMENT OF CERTIFICATES. Purchaser agrees that if any
certificate or instrument evidencing any Acquired Stock is mutilated,
lost, stolen or destroyed, the Company shall issue or cause to be issued
in exchange and substitution for and upon cancellation thereof, or in lieu
of and substitution therefor, a new certificate or instrument, but only
upon receipt of evidence reasonably satisfactory to the Company of such
loss, theft or destruction and customary and reasonable indemnity or other
form of security, if required by the Company.
6. ACKNOWLEDGMENTS, COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
COMPANY. The Company acknowledges, covenants, represents and warrants to
Purchaser each of the following:
(a) ORGANIZATION; AUTHORITY; ENFORCEABILITY. The Company is an
entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization with full power and authority
to enter into and to consummate the transactions contemplated hereby and
otherwise to carry out its obligations hereunder. The execution, delivery
and performance by the Company of the transactions contemplated by this
Agreement has been duly authorized by all necessary corporate or similar
action on the part of the Company. This Agreement and any related
transaction documents to which it is a party have been duly executed by
the Company, and when delivered by the Company in accordance with the
terms hereof, will constitute the valid and legally binding obligation of
the Company, enforceable against it in accordance with its terms, subject
to laws of general application relating to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and rules of law governing specific performance,
injunctive relief, or other equitable remedies.
(b) CAPITALIZATION. The authorized and outstanding capitalization of
the Company is as described in the Company's most recent periodic, current
or other report or documents filed with the Commission or otherwise
disclosed to purchaser upon its request. The Company has not issued any
capital stock since such filing, other than pursuant to the exercise of
employee stock options under the Company's stock option plans and pursuant
to the conversion or exercise of Common Stock options, warrants or other
rights, excluding any issuances of Common Stock not required to be
reported on Form 8-K. All shares of the Company's issued and outstanding
capital stock have been duly authorized, are validly issued and
outstanding, and are fully paid and nonassessable. There are no dividends
which have accrued or been declared but are unpaid on the capital stock of
the Company.
(c) ISSUANCE OF THE ACQUIRED STOCK. The Acquired Stock is duly
authorized and, when issued and paid for in accordance with the terms
hereof, will be duly and validly issued, fully paid and nonassessable,
free and clear of all rights of third parties, other than any rights
created by or imposed on the holders thereof through no action of the
Company.
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(d) NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not conflict with or
violate any provision of the Company's certificate or articles of
incorporation, bylaws or other organizational or charter documents.
(e) LITIGATION. The Company has no knowledge of any action, suit,
inquiry, notice of violation, proceeding or investigation pending or
threatened against the Company, before or by any court, arbitrator,
governmental or administrative agency or regulatory authority (federal,
state, county, local or foreign) which adversely affects or challenges the
legality, validity or enforceability of this Agreement or the Acquired
Stock.
(f) LICENSES; COMPLIANCE WITH REGULATORY REQUIREMENTS. The Company
holds all material authorizations, consents, approvals, franchises,
licenses and permits required under applicable law or regulation for the
operation of the business of the Company as presently operated
(g) PRIVATE PLACEMENT. Assuming the accuracy of the Purchaser's
acknowledgements, representations and warranties set forth in Section 5,
no registration under the Securities Act is required for the offer and
sale of the Acquired Stock by the Company to the Purchaser as contemplated
hereby.
7. GOVERNING LAW AND ARBITRATION. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan, notwithstanding
the fact that either party is or may hereafter become domiciled or located in a
different state or country. Any dispute, controversy or claim arising out of or
relating to this Agreement, whether arising in contract, tort or otherwise shall
be resolved in accordance with the rules of the American Arbitration
Association, except for any equitable or injunctive relief sought under this
Agreement. The arbitration shall be held at a location within Oakland County,
Michigan. The parties agree that any arbitration award rendered on any claim
submitted to arbitration shall be final and binding upon the parties and not
subject to appeal and that judgment may be entered upon any arbitration award by
any circuit court located in Michigan.
8. SUCCESSORS BOUND BY AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted assigns.
Purchaser may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Company, which may be withheld. This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
9. WAIVER. The waiver of a breach of any provision of this Agreement by
any party shall not operate or be construed as a waiver of any subsequent
breach. Each and every right, remedy and power granted herein to any party or
allowed by law or equity shall be cumulative and not exclusive of any other.
10. AMENDMENT OF AGREEMENT. This Agreement may be altered or amended in
any of its provisions only by the written agreement of the parties hereto.
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11. INTERPRETATION OF AGREEMENT. This Agreement constitutes the entire
Agreement between the parties with respect to the subject matter hereof and
supersedes any and all other prior or contemporaneous agreements, either oral or
written, between the parties with respect to the subject matter hereof. This
Agreement, or any facsimile hereof, may be executed by any number of
counterparts, each of which shall constitute an original Agreement, and all of
which shall constitute one and the same instrument. Headings herein are for
convenience only and shall not be deemed to limit or affect any of the
provisions hereof.
12. SURVIVAL OF COVENANTS, REPRESENTATIONS, WARRANTIES AND INDEMNITIES.
All covenants, acknowledgements, representations, warranties and indemnities
contained herein shall survive the execution and delivery of this Agreement.
The parties hereto have executed and delivered this Stock Purchase
Agreement the date first written above.
SELLER:
ARCADIA RESOURCES, INC.,
a Nevada corporation
By:________________________________________
Its:_______________________________________
PURCHASER:
SSN:_______________________________________
State of Residence:________________________
Mailing Address for Share Certificate:
___________________________________________
___________________________________________
___________________________________________
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