EXHIBIT 10.9
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of March 23, 2005, by and between Pacific Ethanol, Inc., a Delaware
corporation (the "SELLER,") and Xxxxx Xxxxxx, an individual ("Purchaser").
RECITALS
A. Seller is the record and beneficial owner of one hundred (100)
shares of the common stock, no par value per share ("COMMON STOCK") of Sentaur
Corp., a Florida corporation (the "COMPANY").
B. Seller desires to sell, transfer and assign to Purchaser one hundred
(100) shares of the Company's Common Stock and Purchaser desires to purchase and
receive such shares from Seller on the terms and subject to the conditions set
forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and of the
mutual covenants and subject to the conditions hereinafter set forth, the
parties agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
--------------------------------
1.1 PURCHASE AND SALE OF THE SHARES. Seller does hereby sell, transfer,
assign and deliver to Purchaser, and Purchaser does hereby purchase and acquire
from Seller on the terms and for the consideration specified herein, one hundred
(100) shares of the Company's Common Stock (the "SHARES").
1.2 PURCHASE PRICE AND PAYMENT FOR THE SHARES. The aggregate purchase
price for the Shares shall be Five Thousand Dollars ($5,000). Concurrently with
the delivery by Seller to the Company of stock certificates representing, at
least in part, the Shares (the "SELLER'S CERTIFICATE"), Purchaser shall deliver
to Seller Five Thousand Dollars ($5,000) (the "PURCHASE PRICE") in cash,
certified check or by wire transfer to an account designated by Seller.
1.3 DELIVERY OF STOCK CERTIFICATES. Concurrently with the delivery of
the Purchase Price to Seller, Seller shall deliver to the Company Seller's
Certificate representing shares of Common Stock of the Company held in Seller's
name, accompanied by a duly endorsed share assignment separate from certificate
and irrevocable instructions to cancel Seller's Certificate and issue and
deliver to (a) Seller a stock certificate in Seller's name for a number of
shares of the Company's Common Stock equal to the total amount of shares of the
Company's Common Stock represented by Seller's Certificate less the Shares
transferred pursuant to this Agreement, and (b) a stock certificate in
Purchaser's name representing the Shares.
2. REPRESENTATIONS AND WARRANTIES OF SELLER.
-----------------------------------------
Seller represents and warrants as follows:
2.1 CAPACITY AND AUTHORITY. Seller has full legal power, capacity and
authority to sell the Shares and to make, execute, deliver and perform this
Agreement.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
--------------------------------------------
Purchaser represents and warrants as follows:
3.1 CAPACITY AND AUTHORITY. Purchaser has full legal power, capacity
and authority to purchase the Shares and to make, execute, deliver and perform
this Agreement.
3.2 INVESTMENT INTENT. The Shares to be received by Purchaser are being
acquired for investment for Purchaser's own account, and not with a view to the
resale or distribution of any part thereof, and Purchaser has no present
intention of selling, granting any right of participation in, or otherwise
distributing or disposing of the Shares.
3.3 NO REGISTRATION. Purchaser understands that the Shares have not
been registered or qualified under the Securities Act of 1933 (the "SECURITIES
ACT") or any state securities laws.
3.4 TRANSFERABILITY RESTRICTIONS. Purchaser understands that the
transferability of the Shares will be restricted by federal and state securities
laws. Purchaser further understands that he will make no disposition of the
Shares unless a registration statement under the Securities Act is in effect
with respect to such Shares or, in the alternative, an exemption from
registration under the Securities Act is found to be available to the reasonable
satisfaction of the Company. Purchaser further understands and agrees that the
following legend will be placed on the certificates and instruments representing
the Shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THEY HAVE BEEN ACQUIRED BY THE HOLDER FOR INVESTMENT
AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT AS MAY BE AUTHORIZED UNDER THE
ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
The certificate representing the Shares will also bear any legend
required by the laws of any state that has jurisdiction over the offering
represented by the terms of this Agreement.
4. MISCELLANEOUS.
--------------
4.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties pertaining to its subject matter, and supersedes all prior
or contemporaneous written or oral agreements and understandings of the parties,
either expressed or implied. The parties hereto may, by mutual agreement in
writing executed by all parties, amend this Agreement in any respect.
-2-
4.2 GOVERNING LAW. This Agreement shall in all respects be governed by
the laws of the State of California, as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
4.3 COUNTERPARTS. This Agreement may be executed in two or more
facsimile counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4.4 ATTORNEYS' FEES. If any party shall bring an action at law or
equity against the other to enforce or interpret any of the covenants and
provisions of this Agreement, the prevailing party in such action shall be
entitled to reasonable attorneys' fees.
4.5 INUREMENT. This Agreement shall be binding upon and inure to the
benefit of the successors, assigns, personal representatives, heirs and legatees
of the respective parties.
4.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the parties made herein shall survive the consummation of the
transactions contemplated hereby.
4.7 REPRESENTATION BY COUNSEL. Purchaser and Seller have each been
advised to seek his own counsel and has done so to the extent he deems
appropriate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
PACIFIC ETHANOL, INC. XXXXX XXXXXX
By: /S/ XXXX XXXXXXX By: /S/ XXXXX XXXXXX
------------------------ --------------------------
-3-
ASSIGNMENT AND
ASSUMPTION OF CONTRACTS
This Assignment and Assumption of Contracts (the "Agreement") is made
and entered into effective as of March 23, 2005 (the "Effective Date") by and
between Accessity, a New York corporation (the "Assignor"), and Sentaur Corp., a
Florida corporation (the "Assignee").
WITNESSETH:
-----------
WHEREAS, Assignor and Assignee are parties to that certain Stock
Purchase Agreement, dated March 23, 2005, 2005 (the "Purchase Agreement");
WHEREAS, Assignor is a party to, or has obligations with respect to,
certain contracts, as set forth on Exhibit A hereto (the "Assumed Contracts");
and
WHEREAS, Assignor has agreed to assign the Assumed Contracts to
Assignee and Assignee has agreed to assume the obligations of Assignor under the
Assumed Contracts, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties agree as follows:
1. On the Effective Date, Assignor hereby assigns and delivers to
Assignee, its successors and permitted assigns: (a) all of Assignor's right,
title and interest in, to and under the Assumed Contracts; (b) any and all
rights of Assignor to extend or renew the Assumed Contracts; and (c) any and all
other rights, options and privileges granted to Assignor, as the contracting
party thereunder, from and after the Effective Date, subject to the covenants,
terms and conditions contained in each of the respective Assumed Contracts.
2. Assignee hereby accepts the assignment of the Assumed Contracts from
Assignor and hereby assumes the obligation to observe and perform all of the
terms, covenants and conditions thereof to be observed or performed by Assignor
thereunder after the Effective Date, with the same force and effect as if
Assignee had executed the Assumed Contracts originally as the contracting party
named therein.
3. This Agreement shall be construed in accordance with the laws of the
State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ACCESSITY CORP.
By: /S/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Chairman and Ceo
-----------------------------------
SENTAUR CORP.
By: /S/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Chairman and Ceo
-----------------------------------
