Exhibit 2.1
STOCK PURCHASE AGREEMENT
AMONG
STARLINER SYSTEMS, INC.
AS
BUYER
AND
SK TECHNOLOGIES CORPORATION
THE
COMPANY
AND
SIXTH AVENUE ASSOCIATES LLC
XXXXXX X. XXXXXXXXX
XXXXXX XXXXXXXXXX
XXXXXXX XXXXXX
XXXXX XXXXXXXXXX
THE
SELLING SHAREHOLDERS
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into as of
March 31, 2004, among Starliner Systems, Inc., a B.V.I. corporation ("Buyer"),
SK Technologies Corporation, a Delaware corporation (the "Company"), and the
shareholders of the Company listed on the signature pages hereto (the "Selling
Shareholders").
RECITALS
A. The Selling Shareholders own the "Shares" (as defined below) and desire
and intend to sell the Shares to Buyer, in a privately negotiated transaction,
at the price and on the terms and conditions set forth below.
B. Buyer desires and intends to purchase the Shares from the Selling
Shareholders at the price and on the terms and conditions set forth below.
AGREEMENT
In consideration of the terms hereof, the parties agree as follows:
ARTICLE I - DEFINITIONS
1.1. "Act": As defined in Section 4.6.
1.2. "Agreement": As defined in the opening paragraph hereof.
1.3. "Buyer": As defined in the opening paragraph hereof.
1.4. "Closing": As defined in Section 2.3.
1.5. "Closing Amount": As defined in Section 2.2.2.
1.6. "Closing Date": The date, time and place of Closing as specified
in Section 2.3.
1.7. "Company": As defined in the opening paragraph hereof.
1.8. "Common Stock": As defined in Section 3.3(a).
1.9. "Encumbrance": Any lien, mortgage, deed of trust, pledge,
security interest, charge or other adverse claim or interest of any kind.
1.10. "Escrow Agent": As defined in the Escrow Agreement.
1.11. "Escrow Agreement": As defined in Section 2.2.1.
1.12. "Financial Statements": As defined in Section 3.5(a).
1.13. "GAAP": Generally accepted accounting principles in the United
States.
1.14. "Initial Deposit": As defined in Section 2.2.1.
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1.15. "IRS": The United States Internal Revenue Service.
1.16. "Knowledge": Representations and warranties to a party's
knowledge mean that in acquiring such knowledge, the party representing and
warranting such knowledge has engaged in reasonable inquiry and
investigation.
1.17. "Person": Any person, corporation, partnership, joint venture,
association, organization, other entity or governmental or regulatory
authority.
1.18. "Personal Property": As defined in Section 3.9(b).
1.19. "Plans": As defined in Section 6.2.
1.20. "Preferred Stock": As defined in Section 3.3(a).
1.21. "Purchase Price": The aggregate purchase price for the Shares,
as defined in Section 2.2.
1.22. "SEC": As defined in Section 3.8.
1.23. "Selling Shareholders": As defined in the opening paragraph
hereof.
1.24. "Shares": The capital stock of the Company to be purchased by
Buyer, consisting of not less than: (i) 14,870,920 shares of the
outstanding Common Stock of the Company, (ii) 211,034 shares of the
outstanding Series B Preferred Stock of the Company, and (iii) 793 shares
of the outstanding Series D Preferred Stock of the Company.
1.25. "Tax Returns": As defined in Section 3.7(a).
1.26. "Transaction Documents": This Agreement and each of the
agreements, certificates, instruments and documents executed or delivered
pursuant to the terms of this Agreement, including, but not limited to the
Escrow Agreement.
1.27. "Transfer": As defined in Section 4.6.
ARTICLE II - PURCHASE AND SALE OF SHARES
2.1 Purchase and Sale of Shares
On the terms and subject to the conditions of this Agreement, Buyer agrees
to purchase the Shares from the Selling Shareholders and the Selling
Shareholders and agree to sell the Shares to Buyer.
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2.2 Consideration for Shares
The aggregate purchase price for the Shares is three hundred fifty thousand
dollars ($350,000.00) (the "Purchase Price"), payable as set forth in this
Section 2.2.
2.2.1 Initial Deposit
The sum of fifty thousand dollars ($50,000.00) (the "Initial Deposit")
shall be delivered to the Escrow Agent to be held and paid to the Selling
Shareholders or returned to Buyer in accordance with the terms of the
escrow agreement attached hereto as Exhibit A (the "Escrow Agreement").
2.2.2 Closing Payment
The balance of the Purchase Price, the sum of three hundred thousand
dollars ($300,000.00) (the "Closing Amount"), shall be paid by Buyer, via
wire transfer pursuant to the wire transfer instructions attached hereto as
Schedule 2.2.2, at the Closing.
2.3 Closing
The closing of the transactions contemplated herein (the "Closing") shall
be on or before March 31, 2004 and shall be held at the offices of Xxxxxxx Coie,
0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, or such other date, time, and
place as Buyer and the Selling Shareholders shall agree (the "Closing Date"). At
the Closing, each of Buyer, the Company, and the Selling Shareholders shall take
all such action and deliver all such funds, documents, instruments, certificates
and other items as may be required, under this Agreement or otherwise, in order
to perform or fulfill all covenants, conditions and agreements on its part to be
performed or fulfilled at or before the Closing Date and to cause all conditions
precedent to the parties' obligations under this Agreement to be satisfied in
full.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE SELLING SHAREHOLDERS
To induce Buyer to enter into and perform this Agreement, and except as is
otherwise set forth in the Disclosure Schedules, the Company and the Selling
Shareholders severally, but not jointly, represent and warrant to Buyer as of
the Closing as follows in this Article III.
3.1 Selling Shareholder Matters
3.1.1 Good Title
The Selling Shareholder own not less than: (i) 14,870,920 shares of
the outstanding Common Stock of the Company, (ii) 211,034 shares of the
outstanding Series B Preferred Stock of the Company, and (iii) 793 shares
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of the outstanding Series D Preferred Stock of the Company. Each Selling
Shareholder represents with respect to itself only (and not with respect to
any other Selling Shareholder) as follows in this Section 3.1: such Selling
Shareholder owns, beneficially and of record, the shares of Common Stock
and Preferred Stock listed opposite such Selling Shareholder's name on
Disclosure Schedule 3.1. Such Shares are owned free and clear of any lien,
encumbrance, adverse claim, restriction on sale, transfer or voting (other
than restrictions imposed by applicable securities laws or the Preferred
Stock designation pursuant to which such Preferred Stock was issued),
preemptive right, option or other right to purchase and upon the
consummation of the sale of such Shares as contemplated hereby, Buyer will
have good title to such Shares, free and clear of any lien, encumbrance,
adverse claim, restriction on sale, transfer or voting (other than
restrictions imposed by applicable securities laws or the Preferred Stock
designation pursuant to which such Preferred Stock was issued), preemptive
right, option or other right to purchaser.
3.1.2 Authority
The Selling Shareholders have all requisite power, right and authority
to enter into this Agreement and the other Transaction Documents to which
each is a party, to consummate the transactions contemplated hereby and
thereby, and to sell and transfer the Shares. The Selling Shareholders have
taken, or will take prior to the Closing, all actions necessary for the
authorization , execution, delivery and performance of this Agreement and
the other Transaction Documents (including obtaining of any consents or
approvals necessary to consummate the transactions contemplated by this
Agreement and the other Transaction Documents and transfer the Shares free
and clear of any lien, encumbrance, adverse claim, restriction on sale,
transfer or voting (other than restrictions imposed by applicable
securities laws or the Preferred Stock designation pursuant to which such
Preferred Stock was issued), preemptive right, option or other right to
purchaser).
3.1.3 Enforceability
This Agreement has been, and the other Transaction Documents to which
the Selling Shareholders are a party on the Closing will be, duly executed
and delivered by the Selling Shareholders, and this Agreement is, and each
of the other Transaction Documents to which the Selling Shareholders are a
party on the Closing will be, the legal, valid and binding obligation of
such Selling Shareholder, enforceable against such Selling Shareholder
(severally, but not jointly) in accordance with its terms.
3.1.4 No Approvals or Notices Required; No Conflicts
The execution, delivery and performance of this Agreement and the
other Transaction Documents by the Selling Shareholders, and the
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consummation of the transactions contemplated hereby and thereby, will not
(a) require any consent, approval or authorization of, or declaration,
filing or registration with, any Person that has not been obtained or made
at or prior to the Closing, (b) result in a default (with or without the
giving of notice or lapse of time, or both) under, acceleration or
termination of, or the creation in any party of the right to accelerate,
terminate, modify or cancel, any agreement, lease, note or other
restriction, encumbrance, obligation or liability to which the Company is a
party or by which it is bound or to which any assets of the Company are
subject, or (c) result in the creation of any lien or encumbrance upon the
Shares or other securities of the Company.
3.2 Company Organization; Good Standing; Corporate Authority; Enforceability
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the state of Delaware. The Company is duly qualified
to do business, and is in good standing in the states required due to (a) the
ownership or lease of real or personal property for use in the operation of the
Company's business or (b) the nature of the business conducted by the Company,
except where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company. The Company has all requisite power,
right and authority to execute, deliver and perform its obligations under this
Agreement and the other Transaction Documents to which it is a party, and to
carry out the transactions contemplated hereby and thereby.
All actions on the part of the Company and its officers and directors
necessary for the authorization, execution, delivery and performance of this
Agreement and the other Transaction Documents, the consummation of the
transactions contemplated hereby and thereby, and the performance of all of the
Company's obligations under this Agreement and the other Transaction Documents
have been taken or will be taken prior to the Closing. This Agreement has been,
and the other Transaction Documents to which the Company is a party on the
Closing will be, duly executed and delivered by the Company, and this Agreement
is, and each of the other Transaction Documents to which it is a party on the
Closing will be, a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
3.3 Capitalization
(a) The authorized capital stock of the Company consists of 25,000,000
shares of common stock, $0.001 par value (the "Common Stock") and 5,000,000
shares of Preferred Stock, $0.001 par value (of which 1,000,000 shares are
designated Series B Preferred Stock, and 3,000 shares are designates Series D
Preferred Stock) (the "Preferred Stock").
(b) The issued and outstanding capital stock of the Company consists, and
as of the Closing will consist, solely of 19,644,490 shares of Common Stock,
396,066 Shares of Series B Preferred Stock, and 793 Shares of Series D Preferred
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Stock. All shares of Common Stock and Preferred Stock that are issued and
outstanding are, and as of the Closing Date will be, duly authorized and validly
issued, fully paid and nonassessable, and issued in compliance with all
applicable federal, state and foreign securities laws.
(c) At Closing, there will be no issued or outstanding warrants, options,
preemptive rights, rights of first refusal, or other similar rights to acquire
any capital stock of the Company, nor any other obligations of the Company to
issue, grant, extend or enter into any security, option, warrant, "call," right,
commitment, agreement, arrangement or undertaking with respect to any of the
Company's capital stock.
3.4 No Approvals or Notices Required; No Conflicts
The execution, delivery and performance of this Agreement and the other
Transaction Documents by the Company, and the consummation of the transactions
contemplated hereby and thereby, will not (a) require any consent, approval or
authorization of, or declaration, filing or registration with, any Person that
has not been obtained or made at or prior to the Closing, (b) result in a
default (with or without the giving of notice or lapse of time, or both) under,
acceleration or termination of, or the creation in any party of the right to
accelerate, terminate, modify or cancel, any agreement, lease, note or other
restriction, encumbrance, obligation or liability to which the Company is a
party or by which it is bound or to which any assets of the Company are subject,
(c) result in the creation of any lien or encumbrance upon the Shares or other
securities of the Company or (d) invalidate or adversely affect any permit,
license, authorization or status used in the conduct of the business of the
Company.
3.5 Financial Statements; Obligations; No Liabilities
(a) The Company has provided to Buyer (i) audited balance sheets and
statements of operations, shareholders' equity and cash flows of the Company at
and for the fiscal years ended March 31, 2003, and accompanying notes; and (2)
unaudited balance sheet as of December 31, 2003. All the foregoing financial
statements (including the notes thereto) are referred to as the "Financial
Statements" and are available in the public record (see, xxxx://xxx.xxx.xxx).
The Financial Statements have been prepared in conformity with GAAP consistently
applied throughout the periods covered, except as may be indicated in the notes
thereto, and present fairly the financial position, results of operations and
changes in financial position of the Company at the dates and for the periods
indicated, subject, in the case of the unaudited financial statements, to normal
recurring period-end adjustments.
(b) IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE OF THE SHARES PURSUANT TO
THIS AGREEMENT AND THE TRANSACTION DOCUMENTS IS PREDICATED ON THE COMPANY HAVING
NO LIABILITIES AT CLOSING OTHER THAN THOSE OBLIGATIONS ACCEPTED BY BUYER. The
Company will not, as of Closing, have any debt, liability, or obligation of any
nature, whether accrued, absolute, contingent, or otherwise, and whether due or
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to become due, that is not reflected in the Company's Financial Statements and
listed on Schedule 3.5 hereto. As a condition of Closing, any and all debts and
liabilities listed on Schedule 3.5 to this Agreement (except as otherwise
explicitly indicated thereon) shall be satisfied, in full, either before closing
or at closing, unless such condition is waived by Buyer.
3.6 Absence of Certain Changes or Events
Except (a) as and to the extent reflected or reserved against in the
balance sheet and (b) for liabilities and obligations incurred in the ordinary
course of business since the Financial Statements, the Company has not entered
into or agreed to enter into any transaction, agreement or commitment, suffered
the occurrence of any event or events or experienced any change in financial
condition, business, results of operations or otherwise that, in the aggregate
resulted in a material adverse change in the business, assets, operations of the
Company.
3.7 Taxes
(a) The Company has filed on a timely basis all reports, returns,
declarations, claims for refund, information returns, statements or other
similar documents, including any schedules or attachments thereto, and including
any amendment thereof with respect to any Taxes ("Tax Returns") that the Company
was required to file through its fiscal year ended March 31, 2002. No such Tax
Returns are currently the subject of audit or examination nor has the Company
been notified in writing, or otherwise, of any request for an audit or
examination.
(c) There is no dispute, claim or proposed adjustment concerning any Tax
liability of the Company either (A) claimed or raised by any authority in
writing or (B) based upon personal contact with any agent of such authority. The
Company is not a party to nor has it been notified in writing or, otherwise,
that it is the subject of any pending, proposed or threatened action,
investigation, proceeding, audit, claim or assessment by or before the IRS or
any other governmental authority, and no claim for assessment, deficiency or
collection of Taxes, or proposed assessment, deficiency or collection from the
IRS or any other governmental authority which has not been satisfied, nor does
the Company have any reason to believe that any such notice will be received in
the future. The IRS has never audited any Tax Return of the Company. The Company
has not filed any requests for rulings with the IRS. There are no Tax liens of
any kind upon any property or assets of the Company, except for inchoate liens
for Taxes not yet due and payable. The Company has paid, or will pay by the
Closing, all taxes, assessments, and penalties due and payable.
3.8 Securities Filings
The Company has filed or will have filed by Closing, all required filings
with the Securities and Exchange Commission (the "SEC") and with any other
Government agency, including the state of Delaware that may be required.
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3.9 Contracts; Leases; Assets
Except as indicated on Schedule 3.9 hereto, the Company is not a party to
any contract, agreement or lease. At the Closing, the Company will have no
assets (other than its books and records and certain software assets which are
difficult to value) and no liabilities (except as otherwise specified on
Schedule 3.5).
3.10 Claims and Legal Proceedings
There are no claims, actions, suits, arbitrations, criminal or civil
investigations or proceedings pending or involving or, to the knowledge of the
Company and/or the Selling Shareholders, threatened against the Company before
or by any court or governmental or nongovernmental department, commission,
board, bureau, agency or instrumentality, or any other Person. To the knowledge
of the Company and/or the Selling Shareholders, there is no valid basis for any
claim, action, suit, arbitration, investigation or proceeding that could
reasonably be expected to be materially adverse to the business, assets,
operations, prospects or condition (financial or other) of the Company before or
by any Person. There are no outstanding or unsatisfied judgments, orders,
decrees or stipulations to which the Company is a party that involve the
transactions contemplated herein or that would have a material adverse effect on
the business, assets, operations, prospects or condition (financial or other) of
the Company.
3.11 Corporate Books and Records
The Company has furnished to Buyer, at or prior to closing (or at such time
and place as shall be designated by Buyer), true and complete copies of (a) the
Certificate of Incorporation of the Company as currently in effect, including
all amendments thereto, and (b) the minute books of the Company (including
copies of all director and shareholder consents). Such minutes reflect all
meetings of the Company's Shareholders, Board of Directors and any committees
thereof since the Company's inception, and such minutes accurately reflect the
events of and actions taken at such meetings. Interwest Transfer Co., Inc.
(Phone: 000-000-0000) is the transfer agent for the Company and possess stock
transfer books that accurately reflect all issuances and transfers of shares of
capital stock of the Company since its inception.
3.12 Limitation to Representations
Neither the Company nor the Selling Shareholders shall be deemed to have
made to Buyer any representation or warranty other than as expressly made by the
Company or severally by the Selling Shareholders in this Article III. Without
limiting the generality of the foregoing, and notwithstanding any otherwise
express representations and warranties made by the Company and the Selling
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Shareholders in this Article III, the Company and the Selling Shareholders make
no representation or warranty to Buyer with respect to (a) any projections,
estimates or budgets delivered to or made available to Buyer of future revenues,
expenses or expenditures or future results of operations or (b) except as
expressly covered by a representation and warranty contained in this Article
III, any other information or documents (financial or otherwise) made available
to Buyer or its counsel, accountants or advisers with respect to the Company and
the Selling Shareholders.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
OF BUYER
To induce the Company and the Selling Shareholders to enter into and
perform this Agreement, Buyer represents and warrants to the Company and the
Selling Shareholders as of the date of this Agreement and as of the Closing as
follows in this Article IV:
4.1 Organization
Buyer is a B.V.I. corporation whose address is c/o Mintmire & Associates,
000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000, Attn: Xxx Xxxxxxxx, Esq.
Buyer has all requisite power and authority to execute, deliver and perform its
obligations under this Agreement and the other Transaction Documents to which
Buyer is a party, and to carry out the transactions contemplated hereby and
thereby.
4.2 Enforceability
This Agreement has been, and the other Transaction Documents to which Buyer
is a party on the Closing will be, duly executed and delivered by Buyer, and
this Agreement is, and each of the other Transaction Documents to which Buyer is
a party on the Closing will be, a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
4.3 No Approvals or Notices Required; No Conflicts With Instruments
The execution, delivery and performance by Buyer of this Agreement and the
other Transaction Documents to which it is a party, and the consummation of the
transactions contemplated hereby and thereby, will not (a) constitute a
violation (with or without the giving of notice or lapse of time, or both) of
any provision of any law or any judgment, decree, order, regulation or rule of
any court, agency or other governmental authority applicable to Buyer, or (b)
require Buyer to obtain any consent, approval or authorization of, or
declaration, filing or registration with, any Person.
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4.4 Investment Intent
Buyer represents and warrants to the Company and the Selling Shareholders
that Buyer is an "accredited investor," as such term is defined in Section 2(15)
of the Securities Act and Rule 501 of Regulation D promulgated thereunder, that
Buyer is purchasing the Shares for Buyer's own account, for investment purposes,
in Buyer's name and solely for Buyer's own beneficial interest and not as
nominee for, or on behalf of, or for the beneficial interest of, or with the
intention to transfer to, any other Person. Buyer understands and agrees that
the Shares being acquired pursuant to this Agreement have not been registered
under the Act of 1933, as amended (the "Act") or under any applicable state
securities laws and may not be sold, pledged, assigned, hypothecated or
otherwise transferred (a "Transfer") except pursuant to an effective
registration statement under the Act or pursuant to an exemption from
registration under the Act, the availability of which shall to be established to
the satisfaction of the Company at or prior to the time of Transfer. The
representations and warranties set forth in this Section 4.4 shall survive the
Closing.
4.5 Brokers
Buyer represents, warrants, and hereby covenants that Buyer shall pay and
be solely responsible for satisfying any and all broker, finder, consultant or
other claims for any finders' or brokers' fees or commissions arising out of or
in connection with this Agreement or the transactions contemplated hereby, and
Buyer shall defend, indemnify, and hold harmless the Company and the Selling
Shareholders for any damages, costs and expenses, including, but not limited to,
reasonable attorneys' fees, arising out of or in connection with any claims for
such consultants', finders' or brokers' fees or commissions. The
representations, warranties, and covenants set forth in this Section 4.5 shall
survive the Closing.
ARTICLE V - CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer to perform and observe the covenants, agreements
and conditions to be performed and observed by it at or before the Closing shall
be subject to the satisfaction of the following conditions, which may be
expressly waived only in writing signed by Buyer.
5.1 Accuracy of Representations and Warranties
Each of the representations and warranties of the Company and the Selling
Shareholders contained in this Agreement and the other Transaction Documents to
which each is a party (including applicable Exhibits or Disclosure Schedules)
shall be true and correct as of the Closing Date as though made on that date;
except to the extent such representations and warranties are made as of a
specified date, in which case such representations and warranties shall be true
and correct as of the specified date.
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5.2 Performance of Agreements
The Company and the Selling Shareholders shall have performed all
obligations and agreements and complied with all covenants and conditions
contained in this Agreement or any other Transaction Document to be performed
and complied with by them at or prior to the Closing.
5.3 Due Diligence
(a) The results of Buyer's due diligence investigation of the Company and
the Selling Shareholders (as it relates to the Shares) shall be satisfactory in
all reasonable respects to Buyer.
(b) The Financial Statements of the Company made available to Buyer shall
include the audited balance sheet for the fiscal year of the Company ended March
31, 2003, and statements of operations, stockholders' equity and cash flows for
the twelve month period then ended; along with unaudited balance sheets through
December 31, 2003.
(c) True and correct copies of all of the business and corporate records of
the Company shall have been delivered to Buyer (or shall be delivered to Buyer
at such time and place as Buyer directs), including but not limited to
correspondence files, bank statements, checkbooks, savings account books,
minutes of shareholder and directors meetings or consents, financial statements,
shareholder listings, stock transfer records.
5.4 Escrow Agreement
The Escrow Agent and the Company shall have executed and delivered the
Escrow Agreement.
5.5 Resignations
Buyer shall have received copies of resignations, in substantially the form
attached hereto as Schedule 5.5, effective as of the Closing Date of all the
officers and directors of the Company.
5.6 Resolutions Appointing Buyer's Designees to Board of Directors
Buyer shall have received copies of a board of directors resolution, in
substantially the form attached hereto as Schedule 5.6, appointing as directors
of the Company 1 persons designated by Buyer.
5.7 Resolutions Appointing Buyer's Designees to Board of Directors
Buyer shall have received original stock certificates representing the
Shares, together with Stock Powers, in substantially the form attached hereto as
Schedule 5.7, assigning such Shares to Buyer.
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5.8 Release Agreement
Buyer shall have received a full executed Release Agreement, in
substantially the form attached hereto as Schedule 5.8, forgiving and releasing
certain loans made to the Company in the approximate aggregate amount of
$1,859,078.
5.9 Assignment of Xxxxxxx Note
Buyer shall have received a full executed Assignment of Note, in
substantially the form attached hereto as Schedule 5.9, assigning to Buyer all
right, title, and interest in and to that certain promissory note, with a
current principal balance outstanding of $364,000, issued for the benefit of
Xxxxx Xxxxxxx, dated March 9, 1993.
ARTICLE VI - CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE COMPANY AND THE SELLING SHAREHOLDERS
The obligations of the Company and the Selling Shareholders to perform and
observe the covenants, agreements and conditions to be performed and observed by
each of them at or before the Closing shall be subject to the satisfaction of
the following conditions, which may be expressly waived only in writing signed
by the Company and the Selling Shareholders.
6.1 Accuracy of Representations and Warranties
Each of the representations and warranties of Buyer contained in this
Agreement and the other Transaction Documents to which it is a party shall be
true and correct as of the Closing Date as though made on that date, except to
the extent such representations and warranties are made as of a specified date,
in which case such representations and warranties shall be true and correct as
of the specified date.
6.2 Performance of Agreements
Buyer shall have performed all obligations and agreements and complied with
all covenants and conditions contained in this Agreement or any other
Transaction Document to be performed and complied with by it at or prior to the
Closing.
6.3 Approvals and Consents
All consents, approvals, transfers of permits or licenses, and all
applications, and notices whether to public agencies, federal, state, local or
foreign, or otherwise, required to be obtained by Buyer for the consummation of
the transactions contemplated hereby shall have been obtained, and all waiting
periods specified by law shall have passed.
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6.4 Escrow Agreement
The Escrow Agent and Buyer shall have executed and delivered the Escrow
Agreement and the Buyer shall have delivered the Initial Deposit.
ARTICLE VII - TERMINATION, AMENDMENT AND WAIVER
7.1 Termination
This Agreement may be terminated at any time prior to the Closing:
(a) by mutual written consent of the Company, the Selling
Shareholders, and Buyer;
(b) by the Company, if Buyer shall have breached any of its
representations, warranties or agreements;
(c) by Buyer, if the Company and/or the Selling Shareholders shall
have breached any of its or their representations, warranties or
agreements; or
(d) by either the Company or Buyer if the Closing has not occurred by
March 31, 2004; provided, however, that the right to terminate this
Agreement under this subsection (d) shall not be available to any party
whose failure to fulfill any obligation under this Agreement has been the
cause of, or resulted in, the failure of the Closing to occur on or before
such date;
7.2 Effect of Termination
In the event of the termination of this Agreement pursuant to Section 7.1,
there shall be no further obligation on the part of any party, except that
Sections 4.5, 7.2, 9.1, 9.2 and 9.5 shall survive any such termination and
nothing shall relieve any party from liability for any breach of this Agreement.
7.3 Amendment
Buyer, the Company and the Selling Shareholders may amend, modify or
supplement this Agreement at any time, but only in writing duly executed on
behalf of each of the parties to be bound thereby.
7.4 Waiver
At any time prior to the Closing, any party may (a) extend the time for the
performance of any obligation or other act of any other party, (b) waive any
inaccuracy in the representations and warranties contained in any Transaction
Document, or (c) waive compliance with any agreement or condition in any
Transaction Document. Any such extension or waiver shall be valid only if set
forth in an instrument in writing signed by the party or parties to be bound.
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The failure of any party at any time or times to require performance of any
provisions shall in no manner affect its right at a later time to enforce the
same. No waiver by any party of any condition or of any breach of any terms,
covenants, representations, warranties or agreements contained in this Agreement
shall be deemed to be a further or continuing waiver of any such condition or
breach in other instances or a waiver of any other condition or any breach of
any other terms, covenants, representations, warranties or agreements.
ARTICLE VIII - SURVIVAL AND INDEMNIFICATION
8.1 Survival
Except as otherwise explicitly set forth herein or in the other Transaction
Documents, the representations and warranties contained in this Agreement or the
other Transaction Documents shall terminate upon, and shall not survive, the
Closing.
ARTICLE IX - GENERAL
9.1 Expenses
Whether or not the transactions contemplated by this Agreement are
consummated, except as set forth in Section 4.5, each party shall each pay its
own fees and expenses for the negotiation, preparation and carrying out of this
Agreement and the other Transaction Documents (including legal and accounting
fees and expenses); provided, however, that, should any action be brought
hereunder, the attorneys' fees and expenses of the prevailing party shall be
paid by the other party to such action.
9.2 Consequential Damages
No party shall be liable to the other parties for any special, indirect,
incidental or consequential damages resulting from any breach of this Agreement.
9.3 Assignment
This Agreement shall not be assigned by operation of law or otherwise,
except that Buyer may assign all or any of its rights and obligations to any of
its affiliates. In the event of any such permitted assignment, Buyer shall
guarantee the performance of such obligations by such assignee.
9.4 Notices
Unless otherwise provided, any notice under this Agreement shall be given
in writing and shall be deemed effectively given (a) upon personal delivery to
the party to be notified, (b) upon confirmation of receipt by fax by the party
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to be notified, (c) one (1) business day after deposit with a reputable
overnight courier, prepaid for overnight delivery and addressed as set forth
below, or (d) three (3) days after deposit with the U.S. Post Office, postage
prepaid, registered or certified with return receipt requested and addressed to
the party to be notified at the address indicated for such party below, or at
such other address as such party may designate by advance written notice to the
other parties given in the foregoing manner.
TO BUYER:
Starliner Systems, Inc.
c/o Mintmire & Associates
000 Xxxxxxx Xxx., Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxx Xxxxxxxx, Esq.
TO THE COMPANY:
SK Technologies Corporation
000 Xxxxxxx Xxx., Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212-489-2002
Attention: Xxxxxx Xxxxxxx
with a copy to:
Xxxxxxx Coie LLP
0000 Xxxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
TO THE SELLING SHAREHOLDERS:
SK Technologies Corporation
000 Xxxxxxx Xxx., Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212-489-2002
Attention: Xxxxxx Xxxxxxx
with a copy to:
Xxxxxxx Coie LLP
0000 Xxxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
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9.5 Governing Law
This Agreement shall be governed by and construed under the laws of the
state of New York, without regard to principles of conflict of laws.
9.6 Successors and Assigns
The terms and conditions of this Agreement shall inure to the benefit of
and be binding on the respective successors and assigns of the parties.
9.7 Severability
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
9.8 Entire Agreement; Counterparts
This Agreement and the Transaction Documents constitutes the entire
agreement among the parties with respect to this subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties with respect to this subject matter. This Agreement may be executed
in two or more counterparts, which taken together shall constitute one
instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have entered into and signed this
Agreement as of the date and year first above written.
BUYER
STARLINER SYSTEMS, INC.
By:/s/F. Xxxxx Xxxxxx
-----------------------------------------------
Name: F. Xxxxx Xxxxxx
-----------------------------------------------
Title: President
-----------------------------------------------
COMPANY
SK TECHNOLOGIES CORPORATION
By: /s/Xxxxxx X. Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------------------------------
Title: President & CEO
-----------------------------------------------
SELLING SHAREHOLDERS
By: /s/Xxxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxxxx
By:/s/Xxxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxxxx Xxxxxxxxxx
By:/s/Xxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx
By:/s/Xxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxxxx
Sixth Avenue Associates LLC
By:/s/Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
-----------------------------------------------
Title: Manager
-----------------------------------------------
By:/s/Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------------------
Title: Manager
-----------------------------------------------
17
