STOCK PURCHASE AGREEMENT
This
Stock Purchase Agreement (this “Agreement”)
is entered into on August __, 2010 (the “Effective
Date”), by and among U.S. Aerospace, Inc., a Delaware corporation
formerly known as New Century Companies, Inc. (the “Seller”),
and Xxxxx Xxxxxxxx and Xxxxxx Czikmantori, individuals residing in Los Angeles,
California (each, a “Buyer”
and collectively, the “Buyers”).
RECITALS
A. Seller
owns all of the outstanding capital stock of New Century Remanufacturing, Inc.,
a California corporation (the “Company”).
B. Company
is operated by Buyers as the sole officers and directors of the Company, and is
engaged in the business of manufacturing and remanufacturing specialized
machining tools, vertical boring xxxxx, Vertical Turning Centers, lathes and
attachments under the trade name Century Turn, including acquiring,
re-manufacturing and selling pre-owned CNC machines and providing rebuilt,
retrofit and remanufacturing services for machine tools (collectively, the
“Business”), at 0000
Xxxxxxxx Xxxxxx, Xxxxx Xx Xxxxxxx, Xxxxxxxxxx 00000 (the “Premises”).
C. Subject
to the terms and conditions set forth herein, Seller desires to sell to Buyers,
jointly, and Buyers desire to acquire from Seller, the Company, and jointly and
severally to assume all of the liabilities in connection with the ownership of
the Company, the operation of the Business, and the occupation of the
Premises.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements set forth herein, the parties, intending to be legally bound, hereby
agree to the foregoing and as follows:
ARTICLE 1
SALE
AND PURCHASE
1.1 Stock
Purchase. As of the Effective Date, Buyers hereby purchase and
acquire, and Seller hereby quit claims, sells, transfers and assigns to Buyers,
jointly, all interests of Seller in all capital stock of the Company, and all
associated goodwill.
1.2 Files and Records.
Buyers shall retain possession of all files and other records of Company
(collectively, the “Records”), and at any time on
or after the Effective Date shall make all such Records available to Seller for
inspection and copying upon reasonable notice. For the sake of
clarity, such Records shall not include any and all corporate books and records
of the Seller, its minute book, records of directors’ and stockholders’ actions,
stock transfer records, governmental and regulatory filings, tax returns and
correspondence with any taxing agencies, corporate seal, accounting records,
bank statements, and all other records of Seller.
1.3 Liabilities. The
Company shall be sold and conveyed to Buyers inclusive of all liabilities
arising out of or relating to the ownership of the Company, the operation of the
Business, and the occupation of the Premises (collectively, the “Liabilities”) and of all
related liens, security interests, restrictions, prior assignments, claims and
encumbrances of any kind or type (collectively, the “Liens”). It is
expressly understood and agreed that the Liabilities shall include, without
limitation, and that the Buyers shall be solely and completely responsible,
jointly and severally, and the Seller shall not be liable, for any of the
obligations or liabilities of Company of any kind or nature, including, without
limitation, any of the following debts, duties, liabilities, or obligations,
that arose with regard to Seller prior to the Effective Date, or arose or will
arise out of or relating to the Company, the Business and/or the Premises at any
time before or after the Effective Date: (i) payroll expenses or
liabilities; (ii) any tax whatsoever, including, without limitation, any
withholding obligation, tax liability, fees or other assessments owed to the
U.S. Internal Revenue Service, the California Franchise Tax Board, the State of
California, or any other local, state, federal, or other government or
governmental agency; (iii) product liability; (iv) loans secured by
Company assets or any portion thereof; (v) any liability whatsoever to
current or former employees, including, without limitation, sick leave, vacation
benefits, health care benefits (including under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended), other accrued employee benefits, or
employee liability claims, all of which shall be included within the definition
of Liabilities; and/or (vi) rent, damages, attorney fees or any obligation
whatsoever to the landlord of the Premises.
1.4 Purchase Price. The
purchase price (the “Purchase
Price”) paid by Buyers for the Company shall be:
(a) the
sum of $1.00;
(b) the
assumption by the Buyers of all of Seller’s duties and obligations under or
associated with the Company, the Business and/or the Premises; and
(c) the
defense and indemnification of the Seller by the Buyers, jointly and severally,
from and against any and all of the Liabilities.
ARTICLE 2
RESTRICTIONS
ON TRANSFER
Each of
the Buyers agrees as follows:
2.1 Restrictions. For
a period of one year from the Effective Date, each Buyer will not, and will
cause any affiliate not to, without the prior written consent of Seller, which
consent may be withheld in its sole discretion, directly or indirectly, sell,
transfer, offer to sell or transfer, contract or grant any option to sell
(including without limitation any short sale), pledge, transfer, establish an
open “put equivalent position” within the meaning of Rule 16a-1(h) under
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or otherwise dispose of any shares of common stock of Seller,
options or warrants to acquire shares of common stock of Seller, or securities
exchangeable or exercisable for or convertible from the shares of common stock
of Seller, currently or hereafter owned either of record or beneficially (as
defined in Rule 13d-3 under the Exchange Act), by Buyers or their
affiliates (collectively, “Shares”), or publicly announce
an intention to do any of the foregoing. Buyers also agree and
consent to the entry of stop transfer instructions with the Seller’s transfer
agent and registrar against the transfer of Shares except in compliance with the
foregoing restrictions.
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2.2 Sales. Notwithstanding
the foregoing paragraph, after December 31, 2010, Buyers may sell up to a total
of $10,000.00 in Shares each calendar month on a non-cumulative
basis.
ARTICLE 3
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
represents and warrants to Buyers as follows:
3.1 Status. Seller is a
corporation validly existing and in good standing under the laws of the State of
Delaware. Seller has the requisite power to enter into and complete
the transactions contemplated by this Agreement, except as may be limited by
principles of equity, applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws relating to or affecting
the rights and remedies of creditors generally.
3.2 Authority. All
corporate actions necessary to be taken by or on the part of Seller in
connection with the transactions contemplated by this Agreement have been duly
and validly taken, and this Agreement has been duly and validly authorized,
executed, and delivered by Seller and constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its
terms.
ARTICLE 4
REPRESENTATIONS
AND WARRANTIES OF BUYERS
Each
Buyer, jointly and severally, represents and warrants to Seller as
follows:
4.1 Status. The Buyers
are individuals with all requisite capacity, power and authority to execute and
deliver this Agreement, to perform their respective obligations hereunder and to
consummate the transactions contemplated hereby.
4.2 Enforceability. This
Agreement has been duly and validly executed and delivered by the
Buyers. This Agreement and all other agreements and obligations
entered into and undertaken in connection with the transactions contemplated
hereby to which the Buyers are a party constitute the valid and legally binding
obligations of the Buyers, enforceable against the Buyers in accordance with
their respective terms, except as may be limited by principles of equity,
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws relating to or affecting the rights and
remedies of creditors generally. The execution, delivery and
performance by the Buyers of this Agreement and the agreements provided for
herein, and the consummation by the Buyers of the transactions contemplated
hereby and thereby, will not, with or without the giving of notice or the
passage of time or both, violate the provisions of any law, rule or regulation
applicable to the Buyers; (b) violate any judgment, decree, order or award of
any court, governmental body or arbitrator; or (c) conflict with or result in
the breach or termination of any term or provision of, or constitute a default
under, or cause any acceleration under, or cause the creation of any lien,
charge or encumbrance upon the properties or assets of the Buyers or Seller
pursuant to, any indenture, mortgage, deed of trust or other instrument or
agreement to which the Buyers are a party or by which the Buyers may be bound,
or any indenture, mortgage, deed of trust or other instrument or agreement to
which Seller is a party on or before the Effective Date and by which Seller may
be bound after the Effective Date .
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4.3 Private
Placement. Buyers are purchasing the stock of Company for
their own account, and not with a view toward resale or distribution
thereof. At the time Buyers were offered the stock of Company they
were, and at the Effective Date the Buyers are “accredited investors” as defined
in Rule 501(a) under the Securities Act of 1933, as amended (the “Securities
Act”). Buyers have 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 Company, and has so
evaluated the merits and risks of such investment. Buyers are able to
bear the economic risk of an investment in the Company and, at the present time,
are able to afford a complete loss of such investment. No
registration under the Securities Act is required for the offer and sale of the
capital stock of the Company by Seller to Buyers as contemplated
hereby. Buyers are not purchasing the stock of Company as a result of
any advertisement, article, notice or other communication regarding the Company
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.
4.4 SEC
Reports. The Seller has filed all reports required or
permitted to be filed with the U.S. Securities and Exchange Commission (“SEC”)
under the Securities Act or the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof, for the five years preceding the Effective Date,
(collectively, the “SEC
Reports”). As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations of the SEC promulgated
thereunder, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included or
consolidated in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with respect
thereto as in effect at the time of filing. The financial statements
of the Company were prepared in accordance with GAAP, except as may be otherwise
specified in such financial statements or the notes thereto and except that
unaudited financial statements may not contain all footnotes required by GAAP,
and fairly present in all material respects the financial position of the
Company as of and for the dates thereof and the results of operations and cash
flows for the periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments.
4.5 Material
Changes. Since the date of the latest audited financial
statements included within the SEC Reports, except as disclosed in writing to
Seller, (i) there has been no event, occurrence or development that has had, or
that could reasonably be expected to result in, a material adverse effect, (ii)
the Company has not incurred any liabilities (contingent or otherwise) other
than (A) trade payables and accrued expenses incurred in the ordinary course of
business consistent with past practice, and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or required to
be disclosed in filings made with the SEC, (iii) the Company has not altered its
method of accounting, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock and (v) the Company has not issued any equity securities to any officer,
director or affiliate, except as disclosed in the SEC
Reports.
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4.6 Litigation. Except
as disclosed in writing to Seller, there is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Seller, the Company, 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), which could, if there were an unfavorable decision, have or reasonably
be expected to result in a material adverse effect. Neither the
Company nor the Seller, nor to the knowledge of the Company 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. There has not been, and to the knowledge of
the Company, there is not pending or contemplated, any investigation by the SEC
involving the Company, the Seller or the Buyers.
4.7 Regulatory Approvals.
All consents, approvals, authorizations or other requirements prescribed by any
law, rule or regulation that must be obtained or satisfied by the Buyers and
that are necessary for the execution and delivery by the Buyers of this
Agreement or any documents to be executed and delivered by the Buyers in
connection therewith have been, or prior to the Effective Date will be, obtained
and satisfied.
4.8 No Brokers. No broker
or finder has acted for the Buyers in connection with this agreement or the
transactions contemplated hereby, and no broker or finder is entitled to any
brokerage or finder’s fee or other commissions in respect of such transactions
based upon agreements, arrangements, or understandings made by or on behalf of
the Buyers.
4.9 Compliance with the
Law. To the best of each Buyer’s knowledge, the operations of the Company
have been conducted in accordance with all applicable laws, regulations, and
other requirements of the United States of America and of all states,
municipalities, and other political subdivisions and agencies thereof, having
jurisdiction over the Company. No Buyer has any knowledge of any notice of any
asserted present or past violation of any applicable federal, state or local
statute, law, or regulation (including, without limitation, OSHA and
environmental laws, any applicable building, zoning or other law, ordinance or
regulation) with respect to the Business, the Company of the Premises prior to
the Effective Date.
4.10 No
Representation. Buyers have served as the sole officers and
directors of Company since August 2001, are intimately familiar with the
Company, its asset, liabilities, finances, business and operations, and are
relying solely on their own personal experience with the Company in making their
decision to enter into this Agreement. Buyers acknowledge and agree
that Seller does not make and has not made any representations or warranties
whatsoever with respect to the Company or the Business.
ARTICLE 5
CONDITIONS
TO SELLER’S OBLIGATIONS AT CLOSING
The
obligations of the Seller to consummate the transaction contemplated hereby on
the Effective Date is subject to the satisfaction on or before the Effective
Date of the following conditions by Buyers:
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5.1 Representations and
Warranties. All representations and warranties of Buyers made herein are
true and correct as of the Effective Date.
5.2 Release of
Claims. Each Buyer, and substantially all employees of Company
since April 1, 2010, shall execute and deliver a General Release, the form of
which is attached hereto as Exhibit A, that
releases Seller from any and all claims relating to the
Company. Notwithstanding the foregoing, the Buyers shall not waive
any statutory rights to which they are entitled as former officers or directors
of the Seller.
5.3 Shares. All
Shares shall be held in record name and certificated form, and no such Shares
shall be held in “street name” or electronic form other than at accounts with
BMA Securities, or another brokerage acceptable to Seller in its sole
discretion, pursuant to irrevocable instructions to comply with the restrictions
on transfer set forth in Article 2 of this Agreement. Buyers
understand and agree that Seller would be irreparably harmed by violation of
this provision, and entitled to immediate and permanent injunctive relief
without the necessity of posting any bond
5.4 Resignations. Each
Buyer shall resign from any and all capacities with Seller, including without
limitation as an officer or director thereof.
ARTICLE 6
INDEMNIFICATION
(a) any
breach of, or failure by any Buyer to perform, any of its representations,
warranties, covenants, or agreements set forth in this Agreement;
(b) any
liability or claim which may be asserted against Seller arising out of, relating
to, or in connection with Sellers’s ownership of the Company prior to the
Effective Date, or the Company’s activities, the operation of the Business, or
the occupation of the Premises prior to or after the Effective
Date;
(c) any
of the Liabilities and/or Liens;
(d) Any
taxes arising out of or relating to the transaction contemplated by this
Agreement; and/or
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(e) All
actions, suits, investigations, proceedings, demands, assessments, judgments,
reasonable attorneys’ fees, costs and expenses incident to the foregoing,
including, but not limited to, any audit or investigation by any governmental
entity.
6.2 Failure to
Defend. If Buyers fail to fulfill their indemnity obligations
hereunder in connection or to pay for the defense thereof, the Indemnified Party
may engage counsel of its choice, defend and/or settle such Claim, and shall be
entitled to be indemnified for the full amount of such claim and all costs and
expenses, including attorneys’ fees, incurred in connection
therewith.
6.3 Unlawful
Detainer. Notwithstanding the foregoing, Seller shall be
responsible for the costs of its own counsel to defend Seller only for a period
of up to 60 days with regard to the unlawful detainer action filed by the
landlord of the Premises; provided, however, that Buyers (a) shall use their
best efforts to cause Seller to be dismissed from such litigation as soon as
possible, and (b) shall be solely responsible for obtaining counsel to defend
Company and Buyers, for all defense costs relating to Company and Buyers, and
for all damages or any judgment against any party including Seller.
ARTICLE 7
SURVIVAL
7.1 Survival. The
representations, warranties, and indemnifications contained in this Agreement,
or in any certificate, agreement, or other document or instrument delivered
pursuant thereto, shall survive the Effective Date, any investigation conducted
by any party hereto, and any information which any party may
receive.
ARTICLE 8
MISCELLANEOUS
8.1 Non-Disparagement. Each
of the Buyers agrees that they shall not at any time, in any written or
communications with the press or other media, any customer, client, stockholder,
investor or supplier of Seller or any of its affiliates, or any other person,
criticize, ridicule, or make or encourage any other person to make any statement
which disparages, is derogatory of, or is negative toward the personal or
business reputation, conduct or practices of Seller, any of its affiliates, or
any of their then current or former officers, directors, employees,
representatives, agents or attorneys. Buyers understand and agree
that Seller would be irreparably harmed by violation of this provision, and
entitled to immediate and permanent injunctive relief without the necessity of
posting any bond.
8.2 Expenses. Each party
hereto shall bear all of his, her, or its expenses incurred in connection with
the transactions contemplated by this Agreement, including, without limitation,
accounting, and legal fees incurred in connection herewith.
8.3 Further Assurances.
From time to time prior to, on and after the date hereof, each party hereto will
execute all such instruments and take all such actions as any other party shall
reasonably request, without payment of further consideration, in connection with
carrying out and effectuating the intent and purpose hereof and all transactions
contemplated by this Agreement, including, without limitation, the execution and
delivery of any and all confirmatory and other instruments in addition to those
to be delivered on the date hereof, and any and all actions which may reasonably
be necessary to complete the transactions contemplated hereby. The parties
hereto shall cooperate fully with each other and with their respective counsel
and accountants in connection with any steps required to be taken as part of
their respective obligations under this Agreement.
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ARTICLE 9
GENERAL
PROVISIONS
9.1 Successors and
Assigns. Except as otherwise expressly provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties hereto, and their
respective representatives, successors and permitted assigns. Neither party may
assign any of its rights or delegate any of its obligations hereunder without
the prior written consent of the other party hereto. In the event of any such
assignment by either party, such assignee shall assume in writing, in form and
substance reasonably acceptable to the other party hereto, all of the
obligations of such assigning party hereunder. For purposes of this Agreement,
“Buyers” or “Seller,” as the case may be, shall be deemed to include such
assignee and in furtherance thereof, such assignee shall be deemed to have made
all of such assigning party’s representations, warranties, covenants, and
agreements in this Agreement. Nothing in this Agreement is intended to confer on
any person or entity not a party hereto any rights or remedies by reason of this
Agreement.
9.2 Amendments; Waivers.
The terms, covenants, representations, warranties, and conditions of this
Agreement may be changed, amended, modified, waived, or terminated only by a
written instrument executed by the party waiving compliance. The failure of any
party at any time or times to require performance of any provision of this
Agreement shall in no manner affect the right of such party at a later date to
enforce the same. No waiver by any party of any condition or the breach of any
provision, term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be or construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
9.3 Notices. All notices,
requests, demands and other communications required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly made and
received (i) when personally served, (ii) when received by facsimile
transmission, or (iii) when delivered by Federal Express or a similar overnight
courier service, expenses prepaid. Any party may alter the address to
which communications are to be sent by giving notice of such change of address
in conformity with the provisions of this Section providing for the giving of
notice.
9.4 Captions; Number and
Gender. The captions of Articles and Sections of this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any of the provisions of this Agreement. In this Agreement, words importing the
singular number only shall include the plural and vice versa and words importing
gender shall include all genders.
9.5 Governing Law. This
Agreement and all questions relating to its validity, interpretation,
performance and enforcement shall be governed by and construed in accordance
with the laws of the State of California, without giving effect to principles of
conflicts of laws.
9.6 Arbitration. Any
disputes, controversies or claims arising out of or relating to this Agreement,
or otherwise involving Buyer and Seller, shall be resolved by binding
arbitration before a retired judge at JAMS (xxx.xxxxxxx.xxx) or its successor in
Los Angeles, California pursuant to its streamlined arbitration rules and
procedures. The prevailing party shall be awarded its arbitration,
attorney and expert fees, costs and expenses. Judgment on any interim
or final award may be entered in any court of competent
jurisdiction.
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9.7 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original as against any party whose signature appears thereon,
and all of which shall together constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
9.8 Severability. If any
provision of this Agreement is determined by a court of competent jurisdiction
to be invalid, illegal or unenforceable in any respect, such determination shall
not impair or affect the validity, legality or enforceability of the remaining
provisions hereof, and each provision is hereby declared to be separate,
severable and distinct.
[Remainder of page
intentionally left blank]
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9.9 Entire Agreement.
This Agreement constitutes the full and entire understanding and agreement
between the parties, and supersedes all prior agreements, understandings,
inducements or conditions, express or implied, oral or written, which the
parties acknowledge have been merged into this Agreement. The express
terms hereof control and supersede any course of performance and/or usage of
trade inconsistent with any of the terms hereof. This Agreement has
been prepared by all of the parties hereto, and no inference of ambiguity
against the drafter of a document therefore applies against any party hereto. No party, representative,
attorney or agent has relied upon any collateral contract, agreement, assurance,
promise, understanding or representation not expressly set forth
herein. The parties hereby expressly waive all rights and remedies,
at law and in equity, directly or indirectly arising out of or relating to, or
which may arise as a result of, any person’s reliance on any such
assurance.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
Buyers:
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Xxxxx
Xxxxxxxx
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Xxxxxx
Czikmantori
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Seller:
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By:
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Its:
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