STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of August _____, 2002,
among Emerging Markets Corporation (hereinafter the "Seller" or the "Company"),
and the investors signatory hereto which represent the Xxxxxxxxx Acquisition
Corporation ( "Purchaser").
WHEREAS, subject to the terms and conditions set forth in this
Agreement in accordance with Section 4(2) of the Securities Act of 1933, as
amended (the "Securities Act"), the Seller desires to issue and sell to the
Purchaser and the Purchaser desires to purchase from the Seller (i) all of the
common stock of Emerging Markets Corporation (the "Common Stock"), as more fully
described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Seller and the Purchaser agree as
follows:
ARTICLE I
PURCHASE AND SALE
1.1 The Closing
(a) The Closing. Subject to the terms and conditions
set forth in this Agreement, the Seller shall issue and sell to the Purchaser
and the Purchaser shall purchase from the Seller the Common Stock for an
aggregate of eighty four percent (84%) of the common stock of the Purchaser paid
to the Seller, based on the amount of common stock of the Purchaser being
calculated as five million shares of common stock immediately preceding the
execution of this Agreement. The exchange of shares (the "Exchanged Shares") and
execution of this Agreement and all related documents (the "Closing") shall take
place at the offices of Feingold & Kam, Attorneys at Law, who act as legal
counsel to the Seller ("Feingold & Kam"). In the alternative, the Closing may
take place via faxed copies of each document being exchanged, with Feingold &
Kam receiving copies of each document and thereafter immediately notifying the
parties hereto that the transaction has closed as a result of the complete
execution of all necessary documents as determined by Feingold & Kam, who shall
hold all documents in escrow pending their complete execution. The date of the
Closing is hereinafter referred to as the "Closing Date."
(i) On the Closing Date, the parties shall
deliver or shall cause to be delivered the following:
(A) the Exchanged Shares (B) All certificates to be
executed by the parties (C) the exhibits to be
attached to each certificate (D) Initial of each page
of each document by each party (E) such other
documents as are reasonably necessary to complete this
transaction including but not limited to instructions
to be provided to the transfer agent, the securities
and exchange commission and any other third party to
effectuate this transaction. Feingold & Kam shall act
as escrow agent and upon its receipt of the necessary
stock and documents, it shall release complete copies
of the same to each party and the appropriate stock to
the appropriate party.
(ii) The Closing shall be conditioned on the
continued accuracy of the representations, warranties
and covenants contained in this Agreement and receipt
by all parties of all corporate, regulatory and other
third party approvals and authorizations necessary to
consummate the Agreement.
(b) Put Agreement
1. Out of the Five Million shares of the issued and outstanding shares
of the common stock of the Purchaser, Eight Hundred Thousand (800,000) shares
shall be retained by the holders of the Pre-Exchange shares of the
Purchaser("Pre-Exchange Shareholders"). Three Hundred Thousand of the retained
shares shall be classified as restricted shares pursuant to Rule 144 of the
Securities Act.
2. The Pre-Exchange Shareholders shall have the option to require the
Seller to buy back Four Hundred Thousand (400,000) shares of the Company at
$1.50 per share, which option shall be exercisable commencing 12 months after
the Exchange and commencement of public trading of the Company's shares and
expire 15 months after the Exchange and commencement of public trading of the
Company's shares.
3. The Pre-Exchange Shareholders shall have the option to require the
Seller to buy back Three Hundred Thousand (300,000) shares of the Company at
$1.50 per share, which option shall be exercisable commencing 24 months after
the Exchange and commencement of public trading of the Company's shares and
expire 27 months after the Exchange and commencement of public trading of the
Company's shares.
4. In the event either of the Put options are exercised as outlined
above in Paragraphs 2 and 3 and the Pre-Exchange shareholders are not paid
within 30 days after the put option is exercised then the Pre-Exchange
shareholders shall be entitled to receive free trading shares of the Company
based on 50% of the then per share market price of the Company equivalent to the
value of the put options.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Seller. The Seller
hereby makes the following representations and warranties to the Purchasers:
(a) Organization and Qualification. The Seller is an
individual or a corporation duly incorporated, validly existing and in good
standing under the laws of its state of incorporation with the requisite
corporate power and authority to own and use its properties and assets and to
carry on its business as currently conducted. The Seller is duly qualified to do
business and is in good standing as a foreign corporation or other entity in
each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be
so qualified or in good standing, as the case may be, could not, individually or
in the aggregate, (x) adversely affect the legality, validity or enforceability
of the securities to be issued under this Agreement or any document executed
related to this transaction (collectively, the "Transaction Documents"), (y)
have or result in a material adverse effect on the results of operations,
assets, prospects, or condition (financial or otherwise) of the company whose
stock is being purchased under this Agreement (the "Company"), or (z) adversely
impair the Seller's ability to perform fully on a timely basis its obligations
under any of the Transaction Documents (any of (x), (y) or (z), a "Material
Adverse Effect").
(b) Authorization; Enforcement. The Seller has the
requisite power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents and otherwise to carry out its
obligations thereunder. The execution and delivery of each of the Transaction
Documents by the Seller and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company. Each of
the Transaction Documents has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. Neither the Seller nor any related entity is in violation of any
of the provisions of its respective certificate or articles of incorporation,
by-laws or other organizational or charter documents.
(c) Capitalization. The number of authorized, issued and
outstanding capital stock of the Company is five million(5,000,000) shares of
common stock with no other equity securities outstanding. Except as disclosed
herein, the Company owns all of the capital stock of each or any subsidiary. No
shares of Common Stock are entitled to preemptive or similar rights, nor is any
holder of the securities of the Company or any subsidiary entitled to preemptive
or similar rights arising out of any agreement or understanding with the
Company, the Seller or any subsidiary by virtue of any of the Transaction
Documents.
(d) Issuance of this Agreement. The Seller will have (and
will, at all times while this Agreement is outstanding, maintain) an adequate
reserve of duly authorized shares of common stock, reserved for issuance to the
Purchaser, to enable it to perform its conversion, exercise and other
obligations under this Agreement.
(e) No Conflicts. The execution, delivery and performance
of the Transaction Documents by the Seller and the consummation by the Seller of
the
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of the Seller or Company's or any Subsidiary's certificate
or articles of incorporation, bylaws or other charter documents (each as amended
through the date hereof), or (ii) subject to obtaining the Required Approvals
(as defined below), conflict with, or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company or Subsidiary debt or otherwise)
or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or
affected, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and
state securities laws and regulations), or by which any property or asset of the
Company or a Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), as could not, individually or in the aggregate, have or
result in a Material Adverse Effect. The business of the Company is not being
conducted in violation of any law, ordinance or regulation of any governmental
authority, except for violations which, individually or in the aggregate, could
not have or result in a Material Adverse Effect.
(f) Filings, Consents and Approvals. Neither the Seller,
Company nor any Subsidiary is required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller or the Company of the Transaction
Documents, other than the filings required pursuant to Section 3.10, and in all
other cases where the failure to obtain such consent, waiver, authorization or
order, or to give such notice or make such filing or registration could not have
or result in, individually or in the aggregate, a Material Adverse Effect (the
items described in Section 3.10 are collectively, the "Required Approvals").
(g) Litigation; Proceedings. There is no action, suit,
inquiry, notice of violation, proceeding or investigation pending or, to the
knowledge of the Seller, threatened against or affecting the Seller or the
Company or any of its Subsidiaries or any of their respective properties before
or by any court, arbitrator, governmental or administrative agency or regulatory
authority (federal, state, county, local or foreign) (collectively, an "Action")
which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Securities or (ii)
could, if there were an unfavorable decision, individually or in the aggregate,
have or result in a Material Adverse Effect. Neither the Seller, Company nor any
Subsidiary, nor any director or officer thereof, is or has been the subject of
any Action involving a claim of violation of or liability under federal or state
securities laws or a claim of breach of fiduciary duty. The Seller or Company
does not have pending before the Commission any request for confidential
treatment of information and the Seller and Company has no knowledge of any
expected such request. There has not been, and to the best of the Seller and
Company's knowledge there is not pending or contemplated, any investigation by
the Commission involving the Seller or the Company or any current or former
director or officer of the Company.
(h) No Default or Violation. Neither the Seller, Company
nor any Subsidiary (i) is in default under or in violation of (and no event has
occurred which has not been waived which, with notice or lapse of time or both,
would result in a default by the Seller, Company or any Subsidiary under), nor
has the Seller, Company or any Subsidiary received notice of a claim that it is
in default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound, (ii) is in violation of any judgment
or order of any court, arbitrator or governmental body, or (iii) is in violation
of any statute, rule or regulation of any governmental authority, in each case
of clauses (i), (ii) or (iii) above, except as could not individually or in the
aggregate, have or result in a Material Adverse Effect.
(i) Private Offering. Assuming the accuracy of the
representations and warranties of the Purchaser set forth in Sections
2.2(b)-(g), the offer, issuance and sale of the Securities to the Purchaser as
contemplated hereby are exempt from the registration requirements of the
Securities Act. Neither the Seller, Company nor any Person acting on its behalf
has taken or is contemplating taking any action which could subject the
offering, issuance or sale of the Securities to the registration requirements of
the Securities Act including soliciting any offer to buy or sell the Securities
by means of any form of general solicitation or advertising.
(j) SEC Documents; Financial Statements. The Company is
not a public company and thereby not presently required to file financial
statements with the SEC. After the completion of this transaction, the Company
will be required to make such filings as for legal and accounting purposes this
transaction will be treated as a reverse merger with a change in control.
(k) Investment Company. The Company is not, and is not an
Affiliate (as defined in Rule 405 under the Securities Act) of, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(l) Certain Fees. No fees or commissions will be payable
by the Company 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. The Purchasers shall have no obligation with
respect to any fees or with respect to any claims made by or on behalf of other
Persons for fees of a type contemplated in this Section that may be due in
connection with the transactions contemplated by this Agreement. The Company
shall indemnify and hold harmless the Purchasers, their employees, officers,
directors, agents, and partners, and their respective Affiliates, from and
against all claims, losses, damages, costs (including the costs of preparation
and attorney's fees) and expenses suffered in respect of any such claimed or
existing fees, as such fees and expenses are incurred.
(m) Solicitation Materials. Neither the Company nor any
Person acting on the Company's behalf has solicited any offer to buy or sell the
Securities by means of any form of general solicitation or advertising.
(n) Exclusivity. The Seller shall not issue and sell
securities to any Person other than the Purchasers without the specific prior
written consent of the Purchasers.
(o) Seniority. No indebtedness of the Company is senior to
the Securities in right of payment, whether with respect to interest or upon
liquidation or dissolution, or otherwise.
(p) Listing and Maintenance Requirements. The Company will
attempt to maintain listing requirements to have the common stock of the Company
become publicly traded, however, there is no assurance this can be achieved.
(q) Patents and Trademarks. The Company and its
Subsidiaries do not have rights to use any patents or trademarks as of the date
of this Agreement.
(r) Rights of Participation. The transactions contemplated
by the Transaction Documents reflect all parties who have rights to participate
in this transaction and there are no undisclosed beneficiaries to this
Agreement.
(s) Regulatory Permits. The Company and its Subsidiaries
possess all certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses.
(t) Title. The Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them which is
material to the business of the Company and its Subsidiaries and good and
marketable title in all personal property owned by them which is material to the
business of the Company and its Subsidiaries, in each case free and clear of all
Liens, except for Liens as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such property
by the Company and its Subsidiaries. Any real property and facilities held under
lease by the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases of which the Company and its Subsidiaries are
in compliance and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its Subsidiaries.
(v) Labor Relations. No material labor problem exists or,
to the knowledge of the Company, is imminent with respect to any of the
employees of the Company.
(w) Disclosure. The Seller confirms that neither it nor
any other Person acting on its behalf has provided any of the Purchasers or its
agents or counsel with any information that constitutes or might constitute
material non-public information. The Seller understands and confirms that the
Purchasers shall be relying on the foregoing
representations in effecting transactions in securities of the Company. All
disclosure provided to the Purchasers regarding the Company, its business and
the transactions contemplated hereby, including the Schedules to this Agreement,
furnished by or on behalf of the Seller are true and correct and do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(x) Solvency. Based on the financial condition of the
Company as of the Closing Date, (i) the Company's fair saleable value of its
assets exceeds the amount that will be required to be paid on or in respect of
the Company's existing debts and other liabilities (including known contingent
liabilities) as they mature; (ii) the Company's assets do not constitute
unreasonably small capital to carry on its business for the current fiscal year
as now conducted and as proposed to be conducted including its capital needs
taking into account the particular capital requirements of the business
conducted by the Company, and project capital requirements and capital
availability thereof; and (iii) the current cash flow of the Company, together
with the proceeds the Company would receive, were it to liquidate all of its
assets, after taking into account all anticipated uses of the cash, would be
sufficient to pay all amounts on or in respect of its debt when such amounts are
required to be paid. The Company does not intend to incur debts beyond its
ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt).
The business condition(financial or otherwise), results of operations, assets
and liabilities and properties of the Seller has not undergone any material
adverse changes since the date of the last regularly prepared financial
statements of the Seller.
2.2 Representations and Warranties of the Purchasers. Each
Purchaser hereby for itself and for no other Purchaser represents and warrants
to the Seller as follows:
(a) Organization; Authority. Such Purchaser is an entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite corporate or partnership
power and authority to enter into and to consummate the transactions
contemplated by the Transaction Documents and otherwise to carry out its
obligations thereunder. The purchase by such Purchaser of the Securities
hereunder has been duly authorized by all necessary action on the part of such
Purchaser. Each of this Agreement and the Registration Rights Agreement has 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.
(b) Intent. Such Purchaser is acquiring the Common Stock
as principal for its own account and not with a view to act as a statutory
underwriter, without prejudice, however, to such Purchaser's right, to sell or
otherwise dispose of all or any part of such Securities. Nothing contained
herein shall be deemed a representation or warranty by such Purchaser to hold
the Securities for any period of time. Such Purchaser is acquiring the
Securities hereunder in the ordinary course of its business.
Such Purchaser does not have any agreement or understanding, directly or
indirectly, with any Person to distribute the Securities.
(c) Purchaser Status. At the time such Purchaser was
offered the Securities, it was, and at the date hereof it is an "accredited
investor" as defined in Rule 501(a) under the Securities Act.
(d) Experience of such Purchaser. Such Purchaser, either
alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment.
(e) Ability of such Purchaser to Bear Risk of Investment.
Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such
investment.
(f) Access to Information. Such Purchaser acknowledges
that it has reviewed the Disclosure Materials and has been afforded (i) the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms and conditions
of the offering of the Securities and the merits and risks of investing in the
Securities; (ii) access to information about the Company and the Company's
financial condition, results of operations, business, properties, management and
prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information which the Company possesses or
can acquire without unreasonable effort or expense that is necessary to make an
informed investment decision with respect to the investment and to verify the
accuracy and completeness of the information contained in the Disclosure
Materials. Neither such inquiries nor any other investigation conducted by or on
behalf of such Purchaser or its representatives or counsel shall modify, amend
or affect such Purchaser's right to rely on the truth, accuracy and completeness
of the Disclosure Materials and the Company's representations and warranties
contained in the Transaction Documents. The business condition(financial or
otherwise), results of operations, assets and liabilities and properties of the
Purchaser has not undergone any material adverse changes since the date of the
last regularly prepared financial statements of the Seller.
(g) General Solicitation. Such Purchaser is not purchasing
the Securities as a result of or subsequent to any advertisement, article,
notice or other communication regarding the Securities 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.
(h) Reliance. Such Purchaser understands and acknowledges
that (i) the Securities are being offered and sold to it without registration
under the Securities Act
or any other jurisdiction in a private placement that is exempt from the
registration provisions of the Securities Act subject to any applicable
restrictions on transfer and resale and (ii) the availability of such exemption,
depends in part on, and the Company will rely upon the accuracy and truthfulness
of, the foregoing representations and such Purchaser hereby consents to such
reliance.
The Company acknowledges and agrees that no Purchaser makes or
has made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section 2.2.
ARTICLE III
OTHER AGREEMENTS OF THE PARTIES
3.0 Acquisitions. The parties acknowledge that the Seller
contemplates the acquisition of Millagro and Elangaz within 120 days of the
closing of this transaction. Seller acknowledges that Purchaser has entered into
this transaction with the expectation that such acquisitions will occur.
Accordingly, Seller agrees to convey to TS&B Holdings, a Pre-exchange
shareholder, Class B securities, which will be convertible into such securities
to allow the Pre-Exchange shareholder to assume control of Emerging Markets
Corporation. The Class B securities will be issued upon closing of this
transaction. The Class B securities shall be held in Escrow by Xxxxxxx Xxxxxxxxx
who will only release said shares upon the failure of the Seller to complete the
acquisitions within 120 days. In the event the acquisitions are completed as
outlined above, the class B securities will be returned to Seller.
3.1 Transfer Restrictions. (a) Securities which have been
transferred pursuant to this Agreement and which contain a restrictive legend
may only be disposed of pursuant to an effective registration statement under
the Securities Act, to the Company or pursuant to an available exemption from or
in a transaction not subject to the registration requirements of the Securities
Act, and in compliance with any applicable federal and state securities laws. In
connection with any transfer of Securities other than pursuant to an effective
registration statement or to the Company, except as otherwise set forth herein,
the Company may require the transferor thereof to provide to the Company an
opinion of counsel selected by the transferor, the form and substance of which
opinion shall be reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred securities under the
Securities Act. Notwithstanding the foregoing, the Company, without requiring a
legal opinion as described in the immediately preceding sentence, hereby
consents to and agrees to register on the books of the Company and with any
transfer agent for the securities of the Company any transfer of Securities by a
Purchaser to an Affiliate of such Purchaser or to one or more funds or managed
accounts under common management with such Purchaser, and any transfer among any
such Affiliates or one or more funds or managed accounts, provided that the
transferee certifies to the Company that it is an "accredited investor" as
defined in Rule 501(a) under the Securities Act and that it is acquiring the
Securities solely for investment purposes (subject to the qualifications
hereof). Any such transferee shall agree in writing to be bound by the terms of
this Agreement and shall have the rights of a Purchaser under this Agreement.
(b) The Purchasers agree to the imprinting on any non-free
trading stock that has been purchased, so long as is required by this Section
3.1(b), of the following legend on the Securities:
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE
SECURITIES ARE [CONVERTIBLE] [EXERCISABLE] HAVE BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF
ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS, AS EVIDENCED BY A LEGAL OPINION OF
COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL
BE REASONABLY ACCEPTABLE TO THE COMPANY.
The Shares shall not contain the legend set forth above nor
any other legend if the issuance of the Shares occurs at any time while, the
Shares received are free trading, a Shares Registration Statement is effective
under the Securities Act or the holder of any such security is relying on Rule
144 promulgated under the Securities Act ("Rule 144") in connection with the
resale of such Shares or in the event there is not an effective Shares
Registration Statement at such time and Rule 144 is not then available if, in
the opinion of counsel to the Company, such legend is not required under
applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the staff of the Commission). The
Company shall permit Purchasers Counsel to issue the legal opinion included in
the Transfer Agent Instructions to the Company's transfer agent on the day that
the Shares Registration Statement is declared effective by the Commission (the
"Effective Date"). The Company agrees that in the event any Shares are issued
with a legend in accordance with this Section 3.1(b), it will, within three (3)
Trading Days after request therefor by a Purchaser, provide such Purchaser with
a certificate or certificates representing such Shares, free from such legend at
such time as such legend would not have been required under this Section 3.1(b)
had such issuance occurred on the date of such request. The Company may not make
any notation on its records or give instructions to any transfer agent of the
Company which enlarge the restrictions of transfer set forth in this Section.
3.2 Acknowledgment of Dilution. The parties acknowledge that this
transaction may have a dilutive effect on the shares of either the Purchaser or
the Seller.
3.3 Furnishing of Information. As long as the shareholders of the
Purchaser own Securities, the shareholders of the Purchaser agree to help the
Company to timely file (or obtain extensions in respect thereof and file within
the applicable grace period) all reports required to be filed by the Company
after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange Act, to
the extent the shareholder's assistance is needed.
3.4 Integration. The Seller shall not, and shall use its best
efforts to ensure that, no Affiliate of the Company shall, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security (as
defined in Section 2 of the Securities Act) that would be integrated with the
offer or sale of the Securities in a manner that would require the registration
under the Securities Act of the sale of the Securities to the Purchasers.
3.5 Increase in Authorized Shares. The Purchaser represents that
it has the ability to increase the authorized shares of the Xxxxxxxxx
Acquisition Corporation if necessary to comply with the terms of this
transaction.
3.6 Reservation and Listing of Underlying Shares. The Purchaser
acknowledges and represents that it is a currently a reporting company as
defined by any Securities and Exchange Rules and Regulations and states that the
shares of the Purchaser have been registered under Section 15(d) of the Exchange
Act and are eligible for trading on the OTC Bulletin Board upon the filing of a
15c2-11. The Purchaser has complied with all applicable laws, rules and
regulations including without limitation the requirements of the Securities and
Exchange Act through the closing of this transaction.
3.7 Certain Securities Laws Disclosures; Publicity. The Seller
shall make sure that, if legally required, the Company shall: (i) on the Closing
Date, issue a press release acceptable to the Purchasers disclosing the
transactions contemplated hereby, (ii) file with the Commission a Report on Form
8-K disclosing the transactions contemplated hereby within ten Business Days
after the Closing Date, and (iii) timely file with the Commission a Form D
promulgated under the Securities Act. The Seller shall make sure that the
Company shall, no less than two Business Days prior to the filing of any
disclosure required by clauses (ii) and (iii) above, provide a copy thereof to
the Purchasers for their review. The Seller shall make sure that the Company
shall consult with Purchaser in issuing any other press releases or otherwise
making public statements or filings and other communications with the Commission
or any regulatory agency or stock market or trading facility with respect to the
transactions contemplated hereby and neither party shall issue any such press
release or otherwise make any such public statement, filings or other
communications without the prior written consent of the other, except that if
such disclosure is required by law or stock market regulations, in which such
case the disclosing party shall promptly provide the other party with prior
notice of such public statement, filing or other communication. Notwithstanding
the foregoing, the Seller shall not publicly disclose the names of the
Purchasers, or include the names of the Purchasers in any filing with the
Commission, or any regulatory agency, trading facility
or stock market without the prior written consent of the Purchasers, except to
the extent such disclosure (but not any disclosure as to the controlling Persons
thereof) is required by law or stock market regulations, in which case the
Company shall provide the Purchasers with prior notice of such disclosure.
3.8 Non-Disclosure of Non-Public Information
(a) The Seller shall make sure that the Company shall not disclose
non-public information to the Purchasers or their advisors or representatives
unless prior to disclosure of such information the Company identifies such
information as being non-public information and the Purchasers enter into a
non-disclosure agreement in form mutually acceptable to the Company and the
Purchasers.
(b) The Seller represents that it does not disseminate non-public
information to any investors who purchase stock in the Company in a public
offering, to money managers or to securities analysts.
3.9 Transfer of Intellectual Property Rights. Except in connection
with the sale of all or substantially all of the assets of the Company or
licensing arrangements in the ordinary course of the Company's business, the
Seller shall make sure that the Company shall not transfer, sell or otherwise
dispose of any Intellectual Property Rights, or allow any of the Intellectual
Property Rights to become subject to any liens, or fail to renew such
Intellectual Property Rights (if renewable and it would otherwise lapse if not
renewed), without the prior written consent of the Purchasers.
3.7 Use of Proceeds. The Seller shall not use the net proceeds
from the sale of the Securities hereunder for any unlawful purpose.
ARTICLE IV
MISCELLANEOUS
4.1 Fees and Expenses. At the Closing, each party shall be
responsible for their own fees and expenses.
4.2 Entire Agreement; Amendments. The Transaction Documents,
together with the Exhibits and Schedules thereto and Transfer Agent
Instructions, contain the entire understanding of the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge
have been merged into such documents, exhibits and schedules.
4.3 Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 6:30 p.m. (Florida
time) on a Business Day, (ii) the Business Day
after the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Agreement later
than 6:30 p.m. (Florida time) on any date and earlier than 11:59 p.m. (Florida
time) on such date, (iii) the Business Day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service, or (iv) upon
actual receipt by the party to whom such notice is required to be given.
4.4 Amendments; Waivers. No provision of this Agreement may be
waived or amended except in a written instrument signed, in the case of an
amendment, by the Seller and each of the Purchasers or, in the case of a waiver,
by the party against whom enforcement of any such waiver is sought. No waiver of
any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
4.5 Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
4.6 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and permitted
assigns. The Seller may not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Purchasers. Except as set
forth in Section 3.1(a), the Purchasers may not assign this Agreement or any of
the rights or obligations hereunder without the consent of the Seller.
4.7 No Third-Party Beneficiaries. 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.
4.8 Governing Law and Exclusive Remedy. All questions concerning
the construction, validity, enforcement and interpretation of this Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the State of Florida, without regard to the principles of conflicts of
law thereof. The parties agree to submit to binding arbitration any and all
claims, disputes and controversies between them relating to this agreement,
including the issues of fraud, misrepresentation, recission, revocation,
administration, modification or extension. Such arbitration shall take place in
Orlando, Florida, and conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The successful or prevailing
party shall be entitled to recover all costs and fess incurred in the
arbitration and enforcement thereof, including reasonable attorney's fees and
expert witness fees.
4.9 Survival. The representations, warranties, agreements and
covenants contained herein shall survive the Closing.
4.10 Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
4.11 Severability. In case any one or more of the provisions of
this Agreement shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
XXXXXXXXX ACQUISITION CORPORATION
By:_____________________________________
Signature
----------------------------------
Title
EMERGING MARKETS CORPORATION
By:_____________________________________
Signature
---------------------------------
Title
