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EXHIBIT 2.4
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made on March 31, 1999, among Xxxxx X.
Xxxxxxxxxxxx ("Buyer"), and Halo Holdings of Nevada, a Nevada Corporation
(the "Seller").
Buyer desires to purchase from Seller, and the Seller desires to sell to Buyer,
all of the shares of its wholly owned subsidiary of Skydive USA (the "Company")
all upon the terms and conditions set forth below. In addition, Seller agrees
to lease to buyer two (2) airplanes on a year-to-year basis.
Now, therefore, in consideration of, and in reliance upon, the covenants,
representations and warranties contained in this Agreement, the parties agree
as follows:
1. PURCHASE AND SALE OF STOCK. Upon the terms and provisions of this
Agreement, Buyer agrees to purchase and accept delivery from each Seller of,
and each Seller agrees to sell, assign, transfer and deliver to Buyer, at the
Closing provided for in Section 4, all of the shares of Common Stock of the
Company, free and clear of all liens, claims, charges, restrictions, equities
or encumbrances of any kind.
2. CONSIDERATION. The total consideration to be paid by the Buyer for the
Common Stock shall be paid as a Stock Payout. Buyer shall deliver to the
Seller's Representative at Closing 400,000 shares of Halo Holding of Nevada,
Inc.'s Common Stock.
3. ASSUMPTION AND RETENTION OF LIABILITIES. Following the closing, Buyer shall
be responsible for all current and future liabilities.
4. CLOSING. The closing of the purchase and sale of the Stock (the "Closing")
shall take place at the offices of Xxxxx & Taubman, LLC., 00 Xxxxxxxx, Xxxxx
0000, Xxx Xxxx, Xxx Xxxx 00000, (or at such other place as the parties may
mutually agree) on March 31, 1999, (or on such other date upon which the
parties shall mutually agree), contemporaneously with the execution of this
Agreement. If the Closing is postponed, all references to the Closing Date in
this Agreement shall refer to the postponed date.
4.1 DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING. At the Closing, as a
representative of the Seller, the Seller's representative will:
(a) Deliver to Buyer a lease agreement ("the Lease Agreement") between the
Seller and the Buyer stating that the Buyer shall lease two airplanes from the
Seller on a year-to-year basis. Buyer will pay the costs to maintain the
airplanes and the insurance on the airplanes. The Lease Agreement shall be in
substantially the same form as annexed hereto.
(b) Deliver to Buyer a certified copy of the Company's Certificate of
Incorporation and all amendments thereto as in effect on the Closing Date and
of the Company's Bylaws as amended to the Closing Date, and all ancillary
documents;
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(c) Deliver to Buyer all consents, authorizations, waivers and similar
approvals of Governmental Bodies and other Persons, if any, which are required
to be obtained by the Company or the Seller in order to enable or permit the
Seller to transfer ownership of all of the common stock to Buyer; and
(d) Deliver to Buyer stock certificates for the shares of Common Stock of the
Company to be sold by the Seller, or cause the transfer to Buyer by electronic
book transfer of the shares of Common Stock to be sold by the Seller, in each
case free and clear of all liens, claims, charges, restrictions, equities or
encumbrances of any kind, and with any necessary stock transfer stamps, along
with duly executed stock powers in form satisfactory to Buyer.
4.2 DOCUMENTS AND FUNDS TO BE DELIVERED BY BUYER AT CLOSING. At the
closing, Buyer will:
(a) Deliver the Seller's representative the stock certificates
representing the 400,000 shares of Halo Holdings of Nevada, Inc. Common Stock
representing the total purchase price of all the shares of the Company's Common
Stock. Each case free and clear of all liens, claims, charges, restrictions,
equities or encumbrances of any kind, and with any necessary stock transfer
stamps, along with duly executed stock powers in form satisfactory to Seller.
(b) Deliver to Seller's representative a lease agreement ("the Lease
Agreement") between the Seller and the Buyer stating that the Buyer shall lease
two airplanes from the Seller on a year-to-year basis. Buyer will pay the costs
to maintain the airplanes and the insurance on the airplanes. The Lease
Agreement shall be in substantially the same form as annexed hereto.
4.3 FORM AND SUBSTANCE OF DOCUMENTS. The documents and instruments
referred to in Sections 4.1 and 4.2 shall be in form and substance satisfactory
to counsel for the party to whom they are delivered.
5. REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND THE SELLER. The
Company and the Seller jointly and severally represent and warrant to Buyer as
follows:
5.1 ORGANIZATION, EXISTENCE AND AUTHORITY. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada. The Company has all requisite corporate power and authority to
own or lease its properties and assets, to conduct its business as currently
conducted and to enter into and perform this Agreement and all other agreements
entered into in connection with the transactions contemplated hereby. Copies of
the Company's Articles of Incorporation, as amended to date, and Bylaws, as
amended to date, have been delivered to the Buyer and are complete and correct.
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5.2 STOCK OWNERSHIP. The Seller owns all of the outstanding shares of
capital stock of the Company, free and clear of all liens, claims, charges,
restrictions, equities and encumbrances of any kind. Seller has full power and
the legal right to sell, assign, transfer and deliver to Buyer the stock
described in this paragraph.
5.3 AUTHORIZATION OF AGREEMENT; NO VIOLATION. The Seller has all necessary
corporate or other power and authority to execute, deliver and perform this
Agreement and to consummate the sale of the shares of Common Stock and the
other transactions contemplated by this Agreement. This Agreement has been duly
executed by or on behalf of the Seller and constitutes the legal, valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms. Neither the execution, delivery or performance of this
Agreement nor the consummation of any of the transactions provided for in this
Agreement (i) will violate the Certificate of Incorporation or Bylaws, if any,
of the Company or any law, rule or regulation applicable to the Company or any
Seller, (ii) will result in any breach of or default under any provision of any
contract or agreement of any kind to which the Seller is a party or by which
the Seller is bound or to which any property or asset of the Seller is subject,
(iii) is prohibited by or requires the Seller obtain or make any consent,
authorization, approval, registration or filing under any statute, law,
ordinance, regulation, rule, judgment, decree or order of any court or
governmental agency, board, bureau, body, department or authority, or of any
other person, (iv) will cause any acceleration of maturity of any note,
instrument or other obligation to which the Seller is a party or by which the
Seller is bound or with respect to which any Seller is an obligor or guarantor
or (v) will result in the creation or imposition of any lien, claim, charge,
restriction, equity or encumbrance of any kind whatever upon or give to any
other person any interest or right (including any right of termination or
cancellation) in or with respect to any of the properties, assets, business,
agreements or contracts of the Seller.
5.4 LITIGATION. There are no actions, suits, proceedings or
investigations, either at law or in equity, or before any commission or other
administrative authority in any United States or foreign jurisdiction, of any
kind now pending or, to the best of the Seller's knowledge (i) threatened
against the Company or the Seller; (ii) that question the validity of this
Agreement; or (iii) seek to delay, prohibit or restrict in any manner any
action taken or to be taken by the Company or any Seller under this Agreement.
5.5 BROKERS. All negotiations relative to this Agreement and the
transactions contemplated by it have been carried on by the Seller directly
with the Buyer and without the intervention of any other person and in a manner
as not to give rise to any valid claim against any of the parties for any
finder's fee, brokerage commission or like payment.
5.6 NO UNTRUE STATEMENTS. No statement by the Seller contained in this
Agreement and no written statement contained in any certificate, schedule or
other document required to be furnished by the Seller to Buyer pursuant to this
Agreement contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary in order to make the
statements not misleading.
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6. REPRESENTATIONS AND WARRANTIES BY BUYER. Buyer represents and warrants
to each of the Seller as follows:
6.1 AUTHORIZATION OF AGREEMENT; NO VIOLATION. Buyer has all necessary
corporate power and authority to execute, deliver and perform this Agreement.
Buyer's Board of Directors has duly authorized the execution, delivery and
performance of this Agreement and the consummation of the purchase of the
shares of Common Stock to be purchased by it under this Agreement and the other
transactions contemplated by this Agreement. This Agreement has been duly
executed by or on behalf of Buyer and constitutes the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
Neither the execution, delivery or performance of this Agreement nor the
consummation of any of the transactions provided for in this Agreement (i) will
violate or conflict with any provision of Buyer' s Certificate of Incorporation
or Bylaws or any law, rule or regulation applicable to Buyer, (ii) will result
in any breach of or default under any provision of any contract or agreement of
any kind to which Buyer is a party or by which Buyer is bound or to which any
property or asset of Buyer is subject, (iii) is prohibited by or, except for
the filing of a Form 10-D with the SEC, requires Buyer to obtain or make any
consent, authorization, approval, registration or filing under any statute,
law, ordinance, regulation, rule, judgment, decree or order of any court or
governmental agency, board, bureau, body, department or authority, or of any
other person, (iv) will cause any acceleration of maturity of any note,
instrument or other obligation to which Buyer is a party or by which Buyer is
bound or with respect to which Buyer is an obligor or guarantor or (v) will
result in the creation or imposition of any lien, claim, charge, restriction,
equity or encumbrance of any kind whatever upon or give to any other person any
interest or right (including any right of termination or cancellation) in or
with respect to any of the properties, assets, business, agreements or
contracts of Buyer.
6.2 LITIGATION. There are no actions, suits, proceedings or
investigations, either at law or in equity, or before any commission or other
administrative authority in any United States or foreign jurisdiction, of any
kind now pending or, to the best of Buyer's knowledge, threatened against
Buyer, that (i) question the validity of this Agreement or (ii) seek to delay,
prohibit or restrict in any manner any action taken or to be taken by Buyer
under this Agreement.
6.3 BROKERS. All negotiations relative to this Agreement and the
transactions contemplated by it have been carried on by Buyer directly with
each Seller or Seller's representative and without the intervention of any
other person and in a manner as not to give rise to any valid claim against any
of the parties for any finder's fee, brokerage commission or like payment.
6.4 NO UNTRUE STATEMENTS. No statement by Buyer contained in this
Agreement and no written statement contained in any certificate, Schedule or
other document required to be furnished by Buyer to the Seller pursuant to this
Agreement contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary in order to make the
statements not misleading.
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7. CONDITIONS OF SALE; ABANDONMENT OF SALE
7.1. CONDITIONS TO OBLIGATIONS OF THE BUYER. The obligations of the Buyer
to purchase the Common Stock shall be subject to the following conditions:
(a) Representations and Warranties of Company and the Warranting Seller to
be True; Performance of Obligations; Compliance with Covenants and Conditions.
The representations and warranties of the Company and the Seller herein shall
be true in all material respects on the Closing Date with the same effect as
though made at such time, except to the extent waived hereunder. The Company
and the Seller shall have performed or caused to be performed all obligations
and complied with all covenants and conditions required by this Agreement to be
performed or complied with by it or them at or prior to the Closing Date.
(b) Statutory Requirements; Governmental Approvals. All statutory
requirements imposed on the Company and the Seller for the valid consummation
by the Company, the Seller and the Buyer of the transactions contemplated by
this Agreement shall have been fulfilled by the Company and the Seller. All
federal and state governmental agencies and authorities, the consent,
authorization or approval of which is necessary or desirable under any
applicable law, rule, order or regulation to permit consummation by Company,
the Seller and the Buyer of the transactions contemplated by this Agreement,
shall have consented to, authorized, or approved such transactions.
(c) Adverse Proceedings. No action or proceeding by or before any court or
other governmental body shall have been instituted or threatened by any
governmental body or other person or entity which seeks to restrain, prohibit
or invalidate the transactions contemplated by this Agreement or which might
materially adversely affect the right of the Buyer to own the Common Stock or
to own, operate or control the Company, or which might subject the Company to
any material liability after the Closing.
(d) Tender of Common Stock. The Seller shall have tendered all of the
Common Stock, in the manner contemplated by Section 4.1.
7.2. CONDITIONS TO OBLIGATIONS OF THE SELLER. The obligations of the Seller
to transfer the Common Stock pursuant to the terms of this Agreement shall be
subject to the following conditions:
(a) Representations and Warranties of the Buyer to be True. The
representations and warranties of the Buyer herein contained shall be true in
all material respects at the Closing Date with the same effect as though made
at such time, except to the extent waived under this Agreement. The Buyer shall
have performed all obligations and complied with all covenants and conditions
required by this Agreement to be performed or complied with by it prior to the
Closing Date.
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(b) Statutory Requirements. All statutory requirements imposed on the
Buyer for the valid consummation by the Company, the Seller and the Buyer of
the transactions contemplated by this Agreement shall have been fulfilled by
the Buyer, and all authorizations, consents and approvals of any governmental
agencies and authorities required to be obtained by the Buyer in order to
permit consummation by the Company, the Seller and the Buyer of the
transactions contemplated by this Agreement shall have been obtained.
(c) Delivery of Common Stock. Buyer has delivered to Seller's
representative the stock certificates for representing the 400,000 shares of
Halo Holdings of Nevada Inc.'s Common Stock, in each case free and clear of all
liens, claims, charges, restrictions, equities or encumbrances of any kind, and
with any necessary stock transfer stamps, along with duly executed stock powers
in form satisfactory to Seller.
7.3. TERMINATION OF AGREEMENT AND ABANDONMENT OF TRANSFER. Anything herein
to the contrary notwithstanding, this Agreement and the transfer of Common
Stock contemplated hereby may be terminated at any time before the Closing
Date, as follows, and in no other manner:
(a) Mutual Consent. By mutual written consent of the Seller, Company and
the Buyer.
(b) Termination by Buyer. Buyer may, without liability to Company or the
Seller, terminate this Agreement by notice to the Company at any time prior to
the Closing if default shall be made by Company or the Seller in the observance
or in the due and timely performance of any of the terms hereof to be performed
by the Company or the Seller that cannot be cured at or prior to the Closing.
(c) Termination by the Seller. The Seller may, without liability to the
Buyer, terminate this Agreement by notice to the Buyer at any time prior to the
Closing if default shall be made by the Buyer in the observance or in the due
and timely performance of any of the terms hereof to be performed by Buyer that
cannot be cured at or prior to the Closing.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained in this Agreement, any Schedule and any certificate
delivered at the Closing of the Company, the Seller, or the Buyer shall be
deemed to have been relied upon in spite of any investigation that has been or
will be made or omitted by any party to this Agreement and shall survive the
Closing to the extent provided in this Section 8.
8.2 SELLER'S INDEMNIFICATION THE OBLIGATIONS. Subject to the terms and
conditions of this Section 8, the Seller jointly and severally agrees to
indemnify and hold Buyer harmless against and in respect of:
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(a) any and all losses, liabilities, damages or expenses (including legal
fees and expenses) relating to or arising out of any misrepresentation or
breach of warranty of the Company or the Seller contained in this Agreement or
in any statement or certificate delivered by the Company or the Seller or
Seller's representatives; and
(b) any and all losses, liabilities, damages or expenses (including legal
fees and expenses) relating to or arising out of any breach of any covenant of
the Company or the Seller contained in this Agreement.
8.3 BUYER'S INDEMNIFICATION OBLIGATIONS. Subject to the terms and
conditions of this Section 8, Buyer agrees to indemnify and hold the Seller
harmless against and in respect of:
(a) any and all losses, liabilities, damages or expenses (including legal
fees and expenses) relating to or arising out of any misrepresentation or breach
of warranty of the Buyer contained in this Agreement or in any statement or
certificate delivered by the Buyer;
(b) any and all losses, liabilities, damages or expenses (including legal
fees and expenses) relating to or arising out of any breach of any covenant of
the Buyer contained in this Agreement; and
(c) any and all losses, liabilities, damages or expenses (including legal
fees and expenses) relating to or arising out of the purchase by the Buyer from
the Seller of the shares of the Company's Common Stock (it being understood
that in no event shall Buyer indemnify any Seller for any losses suffered or
taxes payable in respect of profits realized upon the sale by the Seller's
shares of Common Stock).
8.4 PROCEDURE FOR INDEMNIFICATION CLAIMS. The respective indemnification
obligations of each of the Seller and the Buyer pursuant to Sections 8.2 and
8.3 shall be conditioned upon compliance by the Seller and the Buyer with the
following procedures for indemnification claims based upon or arising out of
any claim, action or proceeding by any person not a party to this Agreement:
(a) If at any time a claim shall be made, or an action or proceeding shall
be commenced, against a party to this Agreement (the "Aggrieved Party") which
could result in liability of the other party (the "Indemnifying Party") under
its indemnification obligations under this Agreement, the Aggrieved Party shall
give to the Indemnifying Party notice of that claim, action or proceeding
within 15 days following its commencement (except that failure to give that
notice shall not excuse the Indemnifying Party except to the extent that it is
materially prejudiced by that failure). The notice shall state the basis for
the claim, action or proceeding and the amount claimed, (to the extent that
amount is determinable at the time when the notice is given) and shall permit
the Indemnifying Party to assume the defense of any such claim, action or
proceeding (including any action or proceeding resulting from any such claim)
with counsel which is reasonably acceptable to the Aggrieved Party. Failure by
the Indemnifying Party to
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notify the Aggrieved Party of his, her, or its election to defend the claim,
action or proceeding within a reasonable time, but in no event more than 15
days after the notice shall have been given to the Indemnifying Party, shall be
deemed a waiver by the Indemnifying Party of his, her, or its right to defend
the claim, action or proceeding; provided, however, that the Indemnifying Party
shall not be deemed to have waived the right to contest and defend against any
claim of the Aggrieved Party for indemnification under this Agreement based
upon or arising out of that claim, action or proceeding;
(b) If the Indemnifying Party assumes the defense of any such claim,
action or proceeding, the obligation of the Indemnifying Party as to that
claim, action or proceeding shall be limited to taking all steps necessary in
the defense or settlement of it and, provided the Indemnifying Party is held to
be liable for indemnification under this Agreement, to holding the Aggrieved
Party harmless from and against any and all losses, damages and liabilities
caused by or arising out of any settlement approved by the Indemnifying Party
or any judgment or award rendered in connection with that claim, action or
proceeding. The Aggrieved Party may participate, at his, her, or its expense,
in the defense of that claim, action or proceeding provided that the
Indemnifying Party shall direct and control the defense of that claim, action
or proceeding. The Aggrieved Party agrees to cooperate and make available to
the Indemnifying Party all books and records and such officers, employees and
agents as are reasonably necessary and useful in connection with the defense.
The Indemnifying Party shall not, in the defense of the claim, action or
proceeding, enter into any settlement without the prior written consent of the
Aggrieved Party, which consent shall not be unreasonably withheld;
(c) If the Indemnifying Party does not assume or proceed with the vigorous
defense of any such claim, action or proceeding, the Aggrieved Party may, at
the risk, cost and expense of the Indemnifying Party, defend against the claim,
action or proceeding in a manner as he, she, or it may deem appropriate. The
Indemnifying Party agrees to cooperate and make available to the Aggrieved
Party all books and records and such officers, employees and agents as are
reasonably necessary and useful in connection with the defense. The Aggrieved
Party shall not, in the defense of any such claim, action or proceeding, enter
into any settlement without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld.
9. MISCELLANEOUS.
9.1 ASSURANCE OF FURTHER ACTION. From time to time after the Closing and
without further consideration, each of the parties to this Agreement shall
execute and deliver, or cause to be executed and delivered, such further
instruments and agreements, and shall take such other actions, as any other
party may reasonably request in order to more effectively effectuate the
transactions contemplated by this Agreement.
9.2 EXPENSES. Whether or not the Closing is consummated, each of the
parties will pay all of his, her, or its own legal and accounting fees and
other expenses incurred in the preparation of this Agreement and the
performance of the terms and provisions of this Agreement.
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9.3 WAIVER. The parties to this Agreement may by written agreement (i)
extend the time for or waive or modify the performance of any of the
obligations or other acts of the parties to this Agreement or (ii) waive any
inaccuracies in the representations and warranties contained in this Agreement
or in any document delivered pursuant to this Agreement.
9.4 NOTICES. All notices, requests or other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed by overnight courier or by first class certified
mail, postage prepaid, addressed as follows: if to Buyer, to Xxxxx Xxxxxxxxxxxx,
Attention: President (with a copy to 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx
00000; if to any of the Seller or the Seller's representative at 0000 Xxxxxx
Xxxx Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 Attention: Xxxxxxx Xxxxxxxx or to some
other address as may have been furnished in writing to the party giving the
notice by the party to whom notice is to be given.
9.5 ENTIRE AGREEMENT. This Agreement embodies the entire agreement among
the parties and there have been and are no agreements, representations or
warranties, oral or written, among the parties other than those set forth or
provided for in this Agreement. This Agreement may not be modified or changed,
in whole or in part, except by a supplemental agreement signed by each of the
parties.
9.6 RIGHTS UNDER THIS AGREEMENT; NONASSIGNABILITY. This Agreement shall
bind and inure to the benefit of the parties to this Agreement and their
respective heirs, legal representatives, successors and permitted assigns, but
shall not be assignable by any party without the prior written consent of the
other parties. Nothing contained in this Agreement is intended to confer upon
any person, other than the parties to this Agreement and their respective
heirs, legal representatives, successors and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
9.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to the
conflicts of laws principles of that State.
9.8 ARBITRATION. Any dispute arising under or involving any provision
under this Agreement or any issue regarding the Buyer's purchase of Seller's
stock, as listed on the attached Schedule A, the issue shall be submitted to
the American Arbitration Association and resolved by final and binding
arbitration under its rules.
9.9 HEADINGS; REFERENCES TO SECTIONS AND SCHEDULES. The headings of the
Sections, paragraphs and subparagraphs of this Agreement are solely for
convenience of reference and shall not limit or otherwise affect the meaning of
any of the terms or provisions of this Agreement. The references in this
Agreement to Sections and Schedules, unless otherwise indicated, are references
to sections of and schedules to this Agreement.
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9.10 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original, but which together constitute one and the same
instrument. In Witness, the parties have duly executed this Agreement as of the
date first above written.
By: /s/ XXXXXXXX XXXXXXXXXXX Date: 5/7/99
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Xxxxxxxx Xxxxxxxxxxx
Halo Holdings of Nevada, Inc.
By: /s/ XXXXXXX XXXXXXXX Date: 5/7/99
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Xxxxxxx Xxxxxxxx
President
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