STOCK PURCHASE AGREEMENT
Exhibit
10.1
THIS
STOCK PURCHASE AGREEMENT ("Agreement"),
dated
as of September 28, 2008, is by and between SBKF Investments, Ltd., a
corporation formed pursuant to the laws of England, having an office at Xxxx
000
Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxx, X0 0XX, Xxxxxxxxx, XX ("Purchaser"),
and
B&D FOOD CORP., a corporation formed pursuant to the laws of the State of
Delaware and having an office for business located at 000 Xxxxxxx Xxxxxx,
Xxxxx
0000, Xxx Xxxx, XX 00000-0000 Xxxxxx Xxxxxx ("Seller")
(collectively, the "Parties").
W
I T N E S S E T H
WHEREAS,
Seller has offered for sale to Purchaser 4,242,908 shares of BDFC BRASIL
ALIMENTOS LTDA., a company formed pursuant to the laws of Brazil and having
an
office for business located at Xxx Xxxx Xxxxxx 000, 0xx Xxxxx, Conjunto 81,
Xxxxxxxxx Xxxxx, Sao Paulo-S.P.-Brazil-CEP:01309-901 ("BDFC"),
being
100% of the presently issued and outstanding shares of BDFC (the "Shares")
at a
total purchase price of US$ 5,764,847.12.
WHEREAS,
Seller desires to sell to Purchaser and Purchaser desires to purchase from
Seller, the Shares upon the terms and conditions set forth herein.
NOW
THEREFORE, in consideration of the promises and respective mutual agreements
herein contained, it is agreed by and between the Parties hereto as follows:
ARTICLE
1
SALE
AND PURCHASE OF THE SHARES
1.1 Sale
of the Shares. Upon
execution of this Agreement (the "Closing"),
subject to the terms and conditions herein set forth, and on the basis of
the
representations, warranties and agreements herein contained, Seller shall
sell
to Purchaser, and Purchaser shall purchase from Seller, the Shares effective
July 1, 2008.
1.2 Instruments
of Conveyance and Transfer. As
soon as practicable after the Closing, Seller shall deliver a certificate
or
certificates representing the Shares of Seller to Purchaser sufficient to
transfer all right, title and interest in the Shares to Purchaser.
1.3 Consideration
and Payment for the Shares. In
consideration for the Shares, Purchaser shall pay a purchase price of a total
of
Five Million seven hundred sixty four thousand eight hundred and forty seven
United States Dollars (US$5,764,847.12) (US$1.36 per Share) ("Purchase
Price").
The
Purchase Price will be paid in accordance with the payment schedule attached
hereto as Annex
A (the:
"Payment
Schedule").
ARTICLE
2
REPRESENTATIONS
AND COVENANTS OF SELLER AND PURCHASER
2.1 Seller
hereby represents and warrants that:
(a)
Formation.
BDFC is
a company duly formed and validly subsisting under the laws of Brazil;
(b)
Carrying
on Business.
BDFC
carries on its business primarily in Brazil and does not carry on any material
business activity in any other jurisdiction. BDFC is duly authorized to carry
on
the business in Brazil. The nature of the its business does not require BDFC
to
register or otherwise be qualified to carry on business in any other
jurisdiction;
(c)
Legal
Capacity.
Seller
has the legal power, capacity and authority to own BDFC Shares and to enter
into
and complete this Agreement;
(d)
Ownership
of BDFC Shares.
The
issued and outstanding share capital of BDFC will on Closing consist of
4,242,908 common shares (being the BDFC Shares), which shares on Closing
shall
be validly issued and outstanding as fully paid and non-assessable shares.
The
BDFC Shares owned by Seller will on Closing be free and clear of any and
all
liens, charges, pledges, encumbrances, restrictions on transfer and adverse
claims whatsoever;
(e)
No
Option, Warrant or Other Right.
No
person, firm or corporation has any agreement, option, warrant, preemptive
right
or any other right capable of becoming an agreement, option, warrant or right
for the acquisition of BDFC Shares held by Seller or for the purchase,
subscription or issuance of any of the unissued shares in the capital of
BDFC;
(f)
No
Restrictions.
There
are no restrictions on the transfer, sale or other disposition of BDFC Shares
contained in the charter documents of BDFC or under any agreement.
(g) Seller
shall transfer title, in and to the Shares to Purchaser free and clear of
all
liens, security interests, pledges, encumbrances, charges, restrictions,
demands
and claims, of any kind and nature whatsoever, whether direct or indirect
or
contingent.
(h) Purchaser
acknowledges and agrees that Seller makes no other representations or warranties
with respect to the Shares or BDFC and its
business.
2.2 Purchaser
represents and warrants to Seller as follows:
(a) Purchaser
has adequate means of providing for current needs and contingencies, has
no need
for liquidity in the investment, and is able to bear the economic risk of
an
investment in the Shares offered by Seller of the size contemplated. Purchaser
represents that Purchaser is able to bear the economic risk of the investment
and at the present time could afford a complete loss of such investment.
(b) Purchaser
has had a full opportunity to inspect the books and records of the BDFC and
to
make any and all inquiries with Seller's officers and directors regarding
BDFC
and its business as Purchaser has deemed appropriate, including BDFC's business,
assets, debt (including related parties' debt), equipment, financial statements,
goodwill, insurance policies, inventory, material contracts and intangible
assets.
(c) PURCHASE
acknowledges and agrees that it is acquiring the BDFC Shares and BDFC's business
and assets on "AS IS" basis and it disclaims and waives any further requirement
of disclosure on the part of the Seller.
(d) Purchaser
is an "Accredited Investor" as defined in Regulation D of the Securities
Act of 1933 (the "Act")
or
Purchaser, either alone or with Purchaser's professional advisers who are
unaffiliated with, have no equity interest in and are not compensated by
Seller
or any affiliate or selling agent of Seller, directly or indirectly, has
sufficient knowledge and experience in financial and business matters that
Purchaser is capable of evaluating the merits and risks of an investment
in the
Shares offered by Seller and of making an informed investment decision with
respect thereto and has the capacity to protect Purchaser's own interests
in
connection with Purchaser's proposed investment in the Shares.
(e) Purchaser
is acquiring the Shares solely for Purchaser's own account as principal,
for
investment purposes only and not with a view to the resale or distribution
thereof, in whole or in part, and no other person or entity has a direct
or
indirect beneficial interest in such Shares.
ARTICLE
3
MISCELLANEOUS
3.1 Entire
Agreement. This
Agreement sets forth the entire agreement and understanding of the parties
hereto with respect to the transactions contemplated hereby, and supersedes
all
prior agreements, arrangements and understandings related to the subject
matter
hereof. No understanding, promise, inducement, statement of intention,
representation, warranty, covenant or condition, written or oral, express
or
implied, whether by statute or otherwise, has been made by any party hereto
which is not embodied in this Agreement or the written statements, certificates,
or other documents delivered pursuant hereto or in connection with the
transactions contemplated hereby, and no party hereto shall be bound by or
liable for any alleged understanding, promise, inducement, statement,
representation, warranty, covenant or condition not so set forth.
3.2 Notices. Any
notice, request, instruction, or other document required by the terms of
this
Agreement, or deemed by any of the parties hereto to be desirable, to be
given
to any other party hereto shall be in writing and shall be given by facsimile,
personal delivery, overnight delivery, or mailed by registered or certified
mail, postage prepaid, with return receipt requested. If notice is given
by
facsimile, personal delivery, or overnight delivery in accordance with the
provisions of this Section, said notice shall be conclusively deemed given
at
the time of such delivery. If notice is given by mail in accordance with
the
provisions of this Section, such notice shall be conclusively deemed given
seven
days after deposit thereof in the United States mail.
3.3 Waiver
and Amendment. Any
term, provision, covenant, representation, warranty or condition of this
Agreement may be waived, but only by a written instrument signed by the party
entitled to the benefits thereof. The failure or delay of any party at any
time
or times to require performance of any provision hereof or to exercise its
rights with respect to any provision hereof shall in no manner operate as
a
waiver of or affect such party's right at a later time to enforce the same.
No
waiver by any party of any condition, or of the breach of any term, provision,
covenant, representation or warranty contained in this Agreement, in any
one or
more instances, shall be deemed to be or construed as a further or continuing
waiver of any such condition or breach or waiver of any other condition or
of
the breach of any other term, provision, covenant, representation or warranty.
No modification or amendment of this Agreement shall be valid and binding
unless
it be in writing and signed by all parties hereto.
3.4 Choice
of Law. This
Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of New York including
all
matters of construction, validity, performance, and enforcement and without
giving effect to the principles of conflict of laws.
3.5 Arbitration. The
parties hereto shall attempt to resolve any dispute, controversy, difference
or
claim arising out of or relating to this Agreement by negotiation in good
faith.
If such good negotiation fails to resolve such dispute, controversy, difference
or claim within fifteen (15) days after any party delivers to any other party
a
notice of its intent to submit such matter to arbitration, then any party
to
such dispute, controversy, difference or claim may submit such matter to
arbitration in the City of New York, New York.
3.6 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which shall together constitute one and the
same
instrument.
3.7 Attorneys'
Fees. Except
as otherwise provided herein, if a dispute should arise between the parties
including, but not limited to arbitration, the prevailing party shall be
reimbursed by the non-prevailing party for all reasonable expenses incurred
in
resolving such dispute, including reasonable attorneys' fees exclusive of
such
amount of attorneys' fees as shall be a premium for result or for risk of
loss
under a contingency fee arrangement.
3.8 Taxes. Any
income taxes required to be paid in connection with the payments due hereunder,
shall be borne by the party required to make such payment. Any withholding
taxes
in the nature of a tax on income shall be deducted from payments due, and
the
party required to withhold such tax shall furnish to the party receiving
such
payment all documentation necessary to prove the proper amount to withhold
of
such taxes and to prove payment to the tax authority of such required
withholding.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
date
first written hereinabove.
|
Seller
|
|
Purchaser
|
|
B&D
FOOD CORP.,
a
Delaware corporation
By:
Its:
|
|
SBKF
Investments, Ltd.,
a
UK company
By:
Its:
|
Annex
A
Payment
schedule
| Note |
Payment
schedule is based on an 18 year recievable with first payment
to be
received a year from execution of the
contract
|
|
|
Interest
|
Payment
|
Date
|
Remaining Balance
|
|||||||||
|
Purchase Price
|
10
|
%
|
5,764,847.12
|
||||||||||
|
1
|
576,484.71
|
702,909.09
|
9/28/2009
|
5,638,422.74
|
|||||||||
|
2
|
563,842.27
|
702,909.09
|
9/28/2010
|
5,499,355.93
|
|||||||||
|
3
|
549,935.59
|
702,909.09
|
9/28/2011
|
5,346,382.43
|
|||||||||
|
4
|
534,638.24
|
702,909.09
|
9/28/2012
|
5,178,111.58
|
|||||||||
|
5
|
517,811.16
|
702,909.09
|
9/28/2013
|
4,993,013.65
|
|||||||||
|
6
|
499,301.36
|
702,909.09
|
9/28/2014
|
4,789,405.92
|
|||||||||
|
7
|
478,940.59
|
702,909.09
|
9/28/2015
|
4,565,437.43
|
|||||||||
|
8
|
456,543.74
|
702,909.09
|
9/28/2016
|
4,319,072.08
|
|||||||||
|
9
|
431,907.21
|
702,909.09
|
9/28/2017
|
4,048,070.20
|
|||||||||
|
10
|
404,807.02
|
702,909.09
|
9/28/2018
|
3,749,968.13
|
|||||||||
|
11
|
374,996.81
|
702,909.09
|
9/28/2019
|
3,422,055.85
|
|||||||||
|
12
|
342,205.59
|
702,909.09
|
9/28/2020
|
3,061,352.35
|
|||||||||
|
13
|
306,135.23
|
702,909.09
|
9/28/2021
|
2,664,578.49
|
|||||||||
|
14
|
266,457.85
|
702,909.09
|
9/28/2022
|
2,228,127.25
|
|||||||||
|
15
|
222,812.72
|
702,909.09
|
9/28/2023
|
1,748,030.88
|
|||||||||
|
16
|
174,803.09
|
702,909.09
|
9/28/2024
|
1,219,924.88
|
|||||||||
|
17
|
121,992.49
|
702,909.09
|
9/28/2025
|
639,008.28
|
|||||||||
|
18
|
63,900.83
|
702,909.09
|
9/28/2026
|
0.02
|
|||||||||
