STOCK PURCHASE AGREEMENT
This
Stock Purchase Agreement (this “Agreement”) is made and entered into as of April
4, 2008 by and among Xxxx Xxxxxx (“Seller”) and Kamick Assets Limited, a BVI
corporation (“Purchaser”).
WHEREAS,
Seller is the record and beneficial owner of One Hundred Fifty-three Thousand
Three Hundred Seventy (153,370) shares of $.0001 par value per share common
stock of Aamaxan Transport Group, Inc., a Delaware corporation (the “Company”)
and wishes to sell 65,428 of those shares (the “Stock”); and
WHEREAS,
Purchaser wishes to purchase Stock from Seller in a private sale that is not
part of a distribution or public offering; and
WHEREAS,
Purchaser wishes to appoint new officers of the Company and a new member of
the
Company’s Board of Directors and Seller is willing to assist in this
objective.
NOW,
THEREFORE, in the parties hereto agree as follows:
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1.
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(A)
Agreement
to Purchase and Sell the Stock.
Seller will sell to Purchaser and Purchaser agrees to purchase the
Stock
in a private sale exempt from registration under Section 4(1) of
the
Securities Act of 1933, as amended (the
"Act").
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(B)
Agreement
to Transfer Control.
Seller
agrees to resign as an officer of the Company and appoint Mr. Xxxx Xxxxx as
a
member of the Board of Directors and Chief Executive Officer of the Company
and
Xxxxxxxx Xxxx as Chief Financial Officer of the Company, all effective as of
the
closing of the sale of the Stock. Seller further agrees on the closing date
to
submit his resignation as a Director of the Company, effective 10 days after
a
Schedule 14f-1 relating to this transaction is filed with the SEC and
disseminated to the stockholders of the Company.
(C)
Purchase
Price.
Purchaser agrees to pay Five Hundred Eighty-five Thousand Dollars ($585,000),
including the amount of the Company’s $74,579.02 debt payable to Xxxxx
Xxxxxxxxx, assumed by Purchaser pursuant to Subsection 1 (D) hereof (the
“Purchase Price”), in consideration of Seller’s agreements in paragraphs (A) and
(B) of this section.
(D)
Purchaser agrees to assume and pay the following debt of the Company:
$74,579.02payable
to Xxxxx Xxxxxxxxx at the closing.
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2.
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Closing
And Payment.
Subject to the terms and conditions hereof, and in reliance upon
the
written representations and warranties of Purchaser, Seller will
sell and,
subject to the terms and conditions hereof, and in reliance upon
the
written representations and warranties of Seller, Purchaser will
purchase,
at a single closing, the Stock. The closing shall be held on April
4,
2008, or such other date as the Parties may agree, at the offices
of Guzov
Ofsink, LLC, 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Closing”). At the Closing, Seller
will deliver to the Purchaser original stock certificates evidencing
the
Stock to be purchased hereunder, along with stock powers executed
in
blank, and Seller’s resignation letter. Seller will certify the amount of
the Company liability which Purchaser will assume and Purchaser will
pay
it and the balance of the Purchase Price at the Closing by one wire
transfer of $585,000 in accordance with wire instructions provided
by
Seller.
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1
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3.
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Representations
and Warranties of Seller.
Seller hereby represents and warrants to Purchaser that the statements
in
the following paragraphs of this Section 3 are all true and complete
as of
the date hereof:
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3.1
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Authority;
Due Authorization.
This Agreement has been duly and validly executed and delivered by
Seller,
and upon the execution and delivery by Purchaser of this Agreement
and the
performance by Purchaser of its obligations herein, will constitute,
a
legal, valid and binding obligation of Seller enforceable against
Seller
in accordance with its terms, except as such enforcement may be limited
by
bankruptcy or insolvency laws or other laws affecting enforcement
of
creditors’ rights or by general principles of
equity.
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3.2
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No
Conflicts.
The execution and delivery by Seller of this Agreement does not,
and the
performance by Seller of their obligations under this Agreement and
the
consummation of the transactions contemplated hereby will not, conflict
with or result in a violation or breach of any of the terms, conditions
or
provisions of any other agreement to which Seller or the Company
is a
party.
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3.3
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Title
to Securities.
Seller is the authorized representative and agent of the sole record
and
beneficial owners of the Stock and has sole managerial and dispositive
authority with respect to the Stock. Neither Seller, nor any other
party,
has granted any person a proxy with respect to the Stock that has
not
expired or been validly withdrawn. The sale and delivery of the Stock
to
Purchaser pursuant to this Agreement will vest in Purchaser legal
and
valid title to the Stock, free and clear of all liens, security interests,
adverse claims or other encumbrances of any character whatsoever
(“Encumbrances”) (other than Encumbrances created by Purchaser and
restrictions on resales of the Shares under applicable securities
laws).
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3.4
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Valid
Issuance.
The Common Stock being purchased by the Purchaser hereunder is, and
shall
be at the Closing, duly and validly issued, fully paid, and non-assessable
and in each instance have been issued in accordance with the registration
requirements of applicable securities laws, including, without limitation,
the Securities Act of 1933, as amended (the “Act”), or valid exemptions
therefrom.
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2
| 3.5 |
Corporate
Documents.
The Company’s current certificate of incorporation and bylaws, as of the
date hereof and are in the form attached hereto as Exhibit
A.
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| 3.6 |
The
Company. The Company, and its subsidiaries, are corporations
duly incorporated, validly existing and in good standing under the
laws of
its jurisdiction of incorporation.
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| 3.7 |
Capitalization
of the Company. Immediately prior to the Closing, the authorized
capital stock of the Company shall consist of a total of Two Hundred
Million (200,000,000) shares of Common Stock, $.0001 par value (the
“Common Stock”), and Ten Million (10,000,000) shares of Preferred Stock,
$.001 par value. Immediately prior to the Closing there will be no
shares
of preferred stock outstanding and and no more than 244,000 shares
of
Common Stock. There are no commitments to issue, and there are no
outstanding warrants, options, convertible securities or debt, preferred
stock, or any other securities other than as set forth in the Company’s
filings with the Securities and Exchange Commission through its annual
report on Form 10KSB for the fiscal year ended January 31 2008 (the
“Filings”). In addition, other than as set forth in the Filings, there are
no conversion or exchange privileges, preemptive rights, or other
rights
or agreements to purchase or otherwise acquire or issue any securities
of
the Company, and there is no agreement or understanding between any
persons and/or entities, which affects or relates to the voting or
giving
of written consents with respect to any security of the Company or
any
instrument or security exercisable or exchangeable for, or convertible
into any security of the Company.
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| 3.8 |
Subsidiaries.
The Company does not own, directly or indirectly, any capital stock
or other equity securities of any other corporation, partnership,
limited
liability company, association or other business entity other than
as set
forth in the Filings. The Company is not a participant in any joint
venture, partnership or similar
arrangement.
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3.9
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Financial
Statements.
The Company’s financial statements contained in its Filings (the
“Financial Statements”) have been prepared in accordance with U.S. GAAP
applied on a consistent basis throughout the periods indicated and
with
each other, except that the unaudited Financial Statements do not
contain
all footnotes required by U.S. GAAP. The Financial Statements fairly
present the financial condition and operating results of the Company
as of
the dates, and for the periods, indicated therein, subject to normal
year-end audit adjustments. Except as set forth in the Financial
Statements, the Company has no material liabilities (contingent or
otherwise). Except as disclosed in the Financial Statements, the
Company
is not a guarantor or indemnitor of any indebtedness of any other
person,
firm or corporation. The Company maintains and will continue to maintain
a
standard system of accounting established and administered in accordance
with U.S. GAAP until Closing.
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3
| 3.10 |
No
Conflicts. Neither the Company, nor any subsidiary, is in
violation of, in conflict with, in breach of or in default under
any term
or provision of, and no right of any party to accelerate, terminate,
modify or cancel has come into existence under, (i) its Certificate
of
Incorporation or By-laws (each as may have been amended, supplemented
or
restated), (ii) any provision of any judgment, writ, injunction,
decree or
order to which the any of them is a party; or (iii) any law, statute,
rule
or regulation applicable to any of
them.
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| 3.11 |
Litigation.
There is no action, suit, proceeding or investigation pending or,
to
the best knowledge of Seller, currently threatened against the Company
or
any subsidiary that may affect the validity of this Agreement or
the right
of the Seller to enter into this Agreement or to consummate the
transactions contemplated hereby. There is no action, suit, proceeding
or
investigation pending or, to the best knowledge of Seller, currently
threatened against the Company or its subsidiaries, before any court
or by
or before any governmental body or any arbitration board or tribunal,
nor
is there any judgment, decree, injunction or order of any court,
governmental department, commission, agency, instrumentality or arbitrator
against the Company or any of its subsidiaries. The Company and its
subsidiaries are not a party or subject to the provisions of any
order,
writ, injunction, judgment or decree of any court or government agency
or
instrumentality. There is no action, suit, proceeding or investigation
by
the Company or any subsidiary currently pending or which the Company
intends to initiate. When any reference to the “knowledge” or “best
knowledge” of the Company or Seller is made in this Agreement, such terms
shall mean the knowledge that would be gained from due inquiry into
the
matters referenced.
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| 3.12 |
Brokers’
Fees and Commissions. Neither the Company nor any of its
officers, directors, employees, stockholders, agents or representatives,
nor Seller have employed any investment banker, broker, or finder
in
connection with the transactions contemplated by this Agreement and
no
such person or entity is entitled to a fee with respect to the
transactions contemplated by this
Agreement.
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| 3.13 |
Securities
Laws. The Company has complied in all respects with applicable
federal and state securities laws, rules and regulations, including
the
Sarbanes Oxley Act of 2002, as such laws, rules and regulations apply
to
the Company and its securities; and (b) all shares of capital stock
of the
Company have been issued in accordance with applicable federal and
state
securities laws, rules and regulations. There are no stop orders
in effect
with respect to any of the Company’s securities.
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3.14
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Books
and Financial Records.
All the accounts, books, registers, ledgers, Board minutes and financial
and other material records of whatsoever kind of each of the Company
and
its subsidiaries have been fully properly and accurately kept and
completed; there are no material inaccuracies or discrepancies of
any kind
contained or reflected therein; and they give and reflect a true
and fair
view of the financial, contractual and legal position of each
company.
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4
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3.15
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Employee
Benefit Plans.
The Company does not have any “Employee Benefit Plan” as defined in the
U.S. Employee Retirement Income Security Act of 1974 or similar plans
under applicable laws.
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| 3.16 |
Tax
Returns, Payments and Elections. Each of the Company and its
subsidiaries has timely filed all Tax (as defined below) returns,
statements, reports, declarations and other forms and documents
(including, without limitation, estimated Tax returns and reports
and
material information returns and reports) (“Tax Returns”) required
pursuant to applicable law to be filed with any Tax Authority (as
defined
below), all such Tax Returns are accurate, complete and correct in
all
material respects, and each Group Company has timely paid all Taxes
due.
Each of the Company and its subsidiaries has withheld or collected
from
each payment made to each of its employees, the amount of all Taxes
(including, but not limited to, United States income taxes and other
foreign taxes) required to be withheld or collected therefrom, and
has
paid the same to the proper Tax Authority. For purposes of this Agreement,
the following terms have the following meanings: “Tax” (and, with
correlative meaning, “Taxes” and “Taxable”) means any and all taxes
including, without limitation, (i) any net income, alternative or
add-on
minimum tax, gross income, gross receipts, sales, use, ad valorem,
transfer, franchise, profits, value added, net worth, license,
withholding, payroll, employment, excise, severance, stamp, occupation,
premium, property, environmental or windfall profit tax, custom,
duty or
other tax, governmental fee or other like assessment or charge of
any kind
whatsoever, together with any interest or any penalty, addition to
tax or
additional amount imposed by any United States, local or foreign
governmental authority or regulatory body responsible for the imposition
of any such tax (domestic or foreign) (a “Tax Authority”), (ii) any
liability for the payment of any amounts of the type described in
(i) as a
result of being a member of an affiliated, consolidated, combined
or
unitary group for any taxable period or as the result of being a
transferee or successor thereof and (iii) any liability for the payment
of
any amounts of the type described in (i) or (ii) as a result of any
express or implied obligation to indemnify any other person.
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3.17
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Minute
Books.
The minute books of each of the Company and its subsidiaries contain
a
complete summary of all meetings of directors and stockholders since
the
time of incorporation of such company and reflect all transactions
referred to in such minutes accurately in all material
respects.
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3.18
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Labor
Agreements and Actions; Employee Compensation.
Neither the Company, nor any of its subsidiaries is bound by or subject
to
(and none of its assets or properties is bound by or subject to)
any
written or oral, express or implied, contract, commitment or arrangement
with any labor union, and no labor union has requested or has sought
to
represent any of the employees, representatives or agents of any
such
company.
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5
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3.19
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Investment
Company.
The Company is not an “investment company” or a company “controlled” by an
“investment company,” within the meaning of the Investment Company Act of
1940, as amended.
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3.20
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‘34
Act Reports.
To
the best knowledge of the Seller, none of the Company’s Flings, contains
any untrue statement of a material fact or omits to state a material
fact
necessary to make the statements therein not misleading, in light
of the
circumstances in which they were made.
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| 3.21 |
Market
Makers. The Company has at least four (4) active market makers
in its common stock.
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4.
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Representations
and Warranties of Purchaser.
Purchaser hereby represents and warrants to Seller that the statements
in
the following paragraphs of this Section 4 are all true and complete
as of
the date hereof:
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| 4.1 |
Exempt
Transaction. Purchaser understands that the offering and sale of
the Stock is intended to be exempt from registration under the Act
and
exempt from registration or qualification under any state
law.
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4.2
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Authorization.
Purchaser represents that it has full power and authority to enter
into
this Agreement. This Agreement has been duly and validly executed
and
delivered by Purchaser, and upon the execution and delivery by Seller
of
this Agreement and the performance by Seller of its obligations herein,
will constitute, a legal, valid and binding obligation of Purchaser
enforceable against Purchaser in accordance with its terms, except
as such
enforcement may be limited by bankruptcy or insolvency laws or other
laws
affecting enforcement of creditors’ rights or by general principles of
equity.
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| 4.3 |
Purchase
for Own Account. The Stock to be purchased by Purchaser hereunder
will be acquired for investment for Purchaser’s own account, not as a
nominee or agent, and not with a view to the public resale or distribution
thereof, and Purchaser has no present intention of selling, granting
any
participation in, or otherwise distributing the same.
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4.4
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Investment
Experience.
The Purchaser understands that the purchase of the Stock involves
substantial risk.
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6
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5.
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CONDITIONS
TO PURCHASER’S OBLIGATIONS AT THE
CLOSINGS.
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5.1
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Conditions
to Each Closing.
Subject to the terms hereof, the obligation of the Purchaser to purchase
the Stock at the Closing is subject to the fulfillment, prior to
the
Closing to the satisfaction of the Purchaser, of the following conditions,
the waiver of which shall not be effective against Purchaser without
written consent thereto:
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5.1.1
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Representations
and Warranties True and Correct.
The representations and warranties made by Seller in Section 3 hereof
shall be true and correct and complete as of the date hereof, and
shall be
true and correct and complete as of the date of the Closing with
the same
force and effect as if they had been made on and as of such
date.
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5.1.2
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Performance
of Obligations.
The Seller shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required
to be performed or complied with by it on or before the
Closing.
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5.1.3
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Securities
Laws.
The offer and sale of the Stock to the Purchaser pursuant to this
Agreement shall be exempt from the registration and/or qualification
requirements of all applicable securities
laws.
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6.
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Conditions
to Seller’s Obligations at the
Closings.
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6.1
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The
obligations of the Seller under this Agreement with respect to the
Purchaser are subject to the fulfillment at or before the Closing
of the
following conditions:
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6.1.1
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Representations
and Warranties.
The representations and warranties of the Purchaser contained in
Section 4
hereof shall be true and correct as of such
Closing.
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6.1.2
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Payment
of Purchase Price.
Purchaser shall have delivered to the Seller the Purchase
Price
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7.
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Indemnification.
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| 7.1 |
Seller’s
Indemnification. Seller agrees to indemnify, defend and hold
Purchaser and its officers, directors, employees, agents, consultants
and
assigns harmless from and against any claims, losses or expenses
(including reasonable attorney’s fees) resulting from or arising out of
breach by Seller of any of its representations, warranties, covenants
or
obligations under this Agreement.
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| 7.2 |
Purchaser’s
Indemnification. Purchaser agrees to indemnify, defend and hold
Seller and its officers, directors, employees, agents, consultants
and
assigns harmless from and against any claims, losses or expenses
(including reasonable attorney’s fees) resulting from or arising out of
breach by Purchaser of any of its representations, warranties, covenants
or obligations under this
Agreement.
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8.
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General
Provisions.
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8.1
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Successors
and Assigns.
The terms and conditions of this Agreement shall inure to the benefit
of
and be binding upon the respective successors and assigns of the
parties.
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| 8.2 |
Governing
Law; Jurisdiction. Any dispute, disagreement, conflict of
interpretation or claim arising out of or relating to this Agreement,
or
its enforcement, shall be governed by the laws of the State of New
York.
Sellers and Purchaser hereby irrevocably and unconditionally submit,
for
themselves and their property, to the nonexclusive jurisdiction of
the
Supreme Court of the State of New York sitting in New York County
and of
the United States District Court of the Southern District of New
York, and
any appellate court from any thereof, in any action or proceeding
arising
out of or relating to this Agreement, or for recognition or enforcement
of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action
or
proceeding may be heard and determined in such New York State or,
to the
extent permitted by law, in such Federal court. Each of the parties
hereto
agrees that a final judgment in any such action or proceeding shall
be
conclusive and may be enforced in other jurisdictions by suit on
the
judgment or in any other manner provided by law. Each party hereby
irrevocably and unconditionally waives, to the fullest extent it
may
legally and effectively do so, any objection which it may now or
hereafter
have to the laying of venue of any suit, action or proceeding arising
out
of or relating to this Agreement in any court referred to above.
Each of
the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court. Each party to this
Agreement irrevocably consents to service of process in the manner
provided for notices below. Nothing in this Agreement will affect
the
right of any party to this Agreement to serve process in any other
manner
permitted by law. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED
ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN
THIS SECTION.
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8
| 8.3 |
Counterparts. This
Agreement may be executed in two or more counterparts, each of which
shall
be deemed an original, but all of which together shall constitute
one and
the same agreement. A telefaxed copy of this Agreement shall be deemed
an
original.
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8.4
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Headings.
The headings and captions used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this
Agreement. All references in this Agreement to sections, paragraphs,
exhibits and schedules shall, unless otherwise provided, refer to
sections
and paragraphs hereof and exhibits and schedules attached hereto,
all of
which exhibits and schedules are incorporated herein by this
reference.
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8.5
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Costs,
Expenses.
Each party hereto shall bear its own costs in connection with the
preparation, execution and delivery of this
Agreement.
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8.6
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Amendments
and Waivers.
Any term of this Agreement may be amended and the observance of any
term
of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the
written
consent of Sellers and the Purchaser. No delay or omission to exercise
any
right, power, or remedy accruing to Purchaser, upon any breach, default
or
noncompliance of Sellers under this Agreement shall impair any such
right,
power, or remedy, nor shall it be construed to be a waiver of any
such
breach, default or noncompliance, or any acquiescence therein, or
of any
similar breach, default or noncompliance thereafter occurring. All
remedies, either under this Agreement, by law, or otherwise afforded
to
Purchaser, shall be cumulative and not
alternative.
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8.7
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Severability.
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision(s) shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as
if such
provision(s) were so excluded and shall be enforceable in accordance
with
its terms.
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8.8
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Entire
Agreement.
This Agreement, together with all exhibits and schedules hereto,
constitutes the entire agreement and understanding of the parties
with
respect to the subject matter hereof and supersedes any and all prior
negotiations, correspondence, agreements, understandings duties or
obligations between the parties with respect to the subject matter
hereof.
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9
| 8.9 |
Further
Assurances.
From and after the date of this Agreement, upon the request of the
Purchaser or Sellers, Purchaser and Sellers shall execute and deliver
such
instruments, documents or other writings as may be reasonably necessary
or
desirable to confirm and carry out and to effectuate fully the intent
and
purposes of this Agreement.
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In
Witness Whereof,
the
parties hereto have executed this Agreement as of the date first written
above.
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/s/
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Name:
Xxxx Xxxxxx
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THE
COMPANY
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By:
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Name:
Xxxx Xxxxxx
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Title:
Chief Executive Officer
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PURCHASER
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KAMICK
ASSETS LIMITED
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By:
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Name:
Xxxx Xxxxx
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10
EXHIBIT
A
[Certificate
of Incorporation and By-Laws]
11
