STOCK PURCHASE AND SALE AGREEMENT
This STOCK PURCHASE AND SALE AGREEMENT is entered into as of the 22nd
day of August, 2000, by and between XXXXXX X. XXXXXXXX, (hereinafter "Seller")
and ALPINE AIR EXPRESS, INC. (hereinafter "Buyer").
A. Seller owns all of the issued and outstanding stock of C.L.B., a
Utah corporation (the "Stock").
B. Seller desires to sell to Buyer, and Buyer is willing to purchase
from the Seller, all of Seller's interest in the Stock.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF STOCK.
1.1 Option to Purchase. Seller hereby grants to Buyer, for a period of
two (2) years, an option to purchase the Stock on the terms and conditions set
forth below. This option may be exercised at any time within two (2) years of
the date hereof upon the provision of written notice by Buyer to Seller. The
closing (the "Closing") to occur within thirty (30) days of the date such
notice is transmitted to Seller via the United States Mail (the "Closing
Date").
1.2 Description of Stock. The Seller agrees to sell to the Buyer, and
the Buyer agrees to purchase from the Seller, on the terms, conditions, and
provisions herein contained, the Stock.
(a) All of Seller's interest in all of the issued and outstanding
stock of C.L.B., a Utah corporation.
1.3 Purchase Price. The total purchase price which the Buyer shall pay
for the Stock is Seventeen Million Dollars ($17,000,000.00), payable by the
issuance of 5,000,000 shares of the Buyer's common stock to be issued to the
Seller by Buyer, with an agreed value of $3.40 per share, which stock will be
"restricted" pursuant to Rule 144, as adopted by the Securities and Exchange
Commission, with the "holding period" to begin on the Closing Date.
The Purchase Price, in the form of shares of Buyer's common stock, shall
be paid as follows:
(a) A number of shares of Buyer's "restricted" common stock with a
value of Seventeen Million Dollars, calculated as set forth at paragraph 1.3,
above, to be transferred to Seller on the Closing Date of the sale
contemplated by this Agreement.
2. WARRANTIES.
2.1 Seller's Warranties. The Seller represents and warrants to the
Buyer as of the date hereof and as of the Closing Date as follows:
(a) The Seller has all requisite power and authority to enter into
this Agreement and to perform all of its obligations hereunder.
(b) The Seller owns all of the issued and outstanding stock of
C.L.B., a Utah corporation.
(c) The Stock is not encumbered and is not subject to any liens,
attachments or claims.
2.2 Buyer's Warranties.
(a) Buyer is a corporation.
(b) The Buyer has all requisite power and authority to enter into
this Agreement and to perform all of its obligations hereunder.
(c) The Buyer has duly authorized the execution, delivery, and
performance of this Agreement, and no other approval or authorization is
required by or on behalf of the Buyer.
(d) This Agreement has been duly executed by the Buyer, and upon
execution and delivery hereof by the Buyer, this Agreement will constitute a
legal, valid, and binding obligation of the Buyer enforceable against Buyer,
jointly and severally, in accordance with its terms.
(e) Execution and performance of this Agreement will not violate
any provisions of the Articles of Incorporation or By-Laws of Seller.
3. CLOSING.
3.1 Closing. The Closing of the subject transaction shall be held at
Salt Lake County, Utah, at the hour of 10:00 a.m. on a date within thirty (30)
days of the date on which Buyer provides notice of its intent to exercise this
option to purchase the Stock. The date on which the Closing actually takes
place is the "Closing Date". At the Closing, the following shall occur, and
all being considered as taking place simultaneously, and each party
covenanting to perform or cause to be performed each such action to be
performed on its part:
(a) The Seller shall execute and deliver to the Buyer a Xxxx of
Sale for the Stock which is the subject of this Agreement.
(b) The Seller will take all reasonable and necessary actions to
secure a transfer of the Stock on the books and records of C.L.B. to the
Buyer.
(c) Each party shall execute, acknowledge, and deliver such other
documents and instruments and take such other action as the other party or its
legal counsel may reasonably require in order to document and carry out the
transactions contemplated in this Agreement.
(d) The transfer of Seller's interest to Buyer in the Stock shall
be deemed effective at such time as Closing of the subject transaction is
complete.
4. DEFAULT AND REMEDIES.
4.1 Buyer's Remedies on Default. In the event of a default by the
Seller in the performance of its obligations hereunder, the Buyer shall give
written notice to the Seller designating such default. The Seller shall have
a period of ten (10) days following the effective date of said notice within
which to correct the default of which the Seller has received notice. In the
event that the Seller shall fail to correct such default within said ten (10)
day period, the Buyer shall have the right, at its option: (i) if such default
occurs prior to the Closing Date, to terminate this Agreement and all rights,
duties, and obligations of the parties hereunder, by giving written notice
thereof to the Seller; or (ii) if such default occurs before or after the
Closing Date, by legal action to compel performance by the Seller of his
obligations hereunder, or (iii) if such default occurs before or after
Closing, to recover damages from Seller resulting from said default.
4.2 Seller's Remedies on Default. In the event of a default by the
Buyer in the performance of its obligations hereunder, the Seller shall give
written notice to the Buyer designating such default. The Buyer shall have a
period of ten (10) days following the effective date of said notice within
which to correct the default of which the Buyer has received notice. In the
event that the Buyer shall fail to correct such default within said ten (10)
day period, the Seller shall have the right, at its option: (i) If such
default occurs prior to the Closing Date, to terminate this Agreement and all
rights, duties, and obligations of the parties hereunder, by giving written
notice thereof to the Buyer; or (ii) if such default occurs before or after
the Closing Date, by legal action to compel performance by the Buyer of its
obligations hereunder.
4.3 Exclusive Remedies. The rights and remedies of any of the parties
hereto shall be exclusive, and no other remedies shall be available at law.
Further, each of the parties confirms that damages at law may be an
inadequate remedy for a breach of any provision hereof. The respective rights
and obligations of the parties hereunder shall be enforceable by specific
performance, injunction, or other equitable remedy. It is the intention by
this provision to make clear the agreement of the parties that the respective
rights and obligations of the parties are limited by this Agreement and shall
be enforceable in equity as well as at law or otherwise.
5. GENERAL PROVISIONS.
5.1 Commissions. The Seller represents and warrants to the Buyer, and
the Buyer represents and warrants to the Seller, that no broker or finder has
been engaged by the respective party in connection with this Agreement or any
of the transactions contemplated by this Agreement, is in any way connected
with this Agreement or any of such transactions, or is entitled to any fee or
commission as a result of this Agreement or any of the transactions
contemplated hereby. In the event of a claim for a broker's or finder's fee
or commission in connection with this Agreement or any of the transactions
contemplated hereby: The Buyer shall indemnify, save harmless and defend the
Seller from and against such claims if it is based upon any statement,
representation or agreement alleged to have been made by the Buyer; and the
Seller shall indemnify, save harmless and defend the Buyer from and against
such claim if it is based upon any statement, representation or agreement
alleged to have been made by the Seller.
5.2 Notices. All notices and other communications provided for in this
Agreement shall be in writing and shall be sufficient for all purposes if
personally delivered or if sent by certified or registered U.S. mail, return
receipt requested, postage prepaid, and addressed to the respective party at
the address set forth below or at such other address as such party may
hereafter designate by written notice to the other party as herein provided.
To Seller: C.L.B. Corporation
0000 Xxxx Xxxxx Xxxxxxx
Xxxxx, XX 00000
To Buyer: Alpine Air Express, Inc.
0000 Xxxx Xxxxx Xxxxxxx
Xxxxx, XX 00000
If personally delivered, notices and other communications under this
Agreement shall be deemed to have been given and received and shall be
effective when personally delivered. If sent by mail in the form specified in
this section, notices and other communications under this Agreement shall be
deemed to have been given and received and shall be effective when deposited
in the U.S. mail.
5.3 Costs. The Seller and the Buyer each shall pay their own costs and
expenses incurred in preparation and execution of and performance under this
Agreement, except as otherwise expressly provided herein.
5.4 Entire Agreement. This Agreement, including the exhibits attached
hereto, constitutes the entire agreement between the parties hereto, relative
to the subject matter hereof. Any prior negotiations, correspondence, or
understandings relative to the subject matter hereof shall be deemed to be
merged in this Agreement and shall be of no further force or effect. This
Agreement may not be amended or modified except in writing executed by both of
the parties hereto.
5.5 Interpretation. Whenever the context requires, the singular shall
include the plural, the plural shall include the singular, the whole shall
include any part thereof, any gender shall include both other genders, and the
term "person" shall include an individual, partnership (general or limited),
corporation, trust, limited liability company or other entity or association,
or any combination thereof. The section headings contained in this Agreement
are for purposes of reference only and shall not limit, expand, or otherwise
affect the construction of any provision of this Agreement. This Agreement
shall bind and inure to the benefit of the parties hereto and their respective
successors and assigns. Time is of the essence. The provisions of this
Agreement shall be construed both as covenants and conditions in the same
manner as though the words importing such covenants and conditions were used
in each separate provision hereof.
5.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be
an original, and all of which shall together constitute one and the same
instrument.
5.7 No Waiver. Acceptance by either party of any performance less than
required hereby shall not be deemed to be a waiver of the rights of such party
to enforce all of the terms and conditions hereof. No waiver of any such
right hereunder shall be binding unless reduced to writing and signed by the
party to be charged therewith.
5.8 Invalidity of Provision. If any provisions of this Agreement as
applied to any party or to any circumstance shall be adjudged to be void or
unenforceable for any reason, the same shall in no way affect (to the maximum
extent permitted by applicable law) any other provision of this Agreement, the
application of any such provision under circumstances different from those
adjudicated or the validity or enforceability of the Agreement as a whole.
5.9 Survival. All representations, warranties, covenants, and
agreements contained in this Agreement shall survive the Closing Date for a
period of one (1) year, after which date they shall be of no further force of
effect; provided, however, that this provision shall not affect the covenants
and agreements contained in documents executed and delivered at the Closing.
5.10 Attorneys' Fees. If any action is brought because of any breach of
or to enforce or interpret any of the provisions of this Agreement, the party
prevailing in such action shall be entitled to recover from the other party
reasonable attorneys' fees and court costs incurred in connection with such
action, the amount of which shall be fixed by the court and made a part of any
judgment rendered.
5.11 Advise of Independent Counsel. The parties hereto acknowledge that
each of them have independently consulted with legal counsel concerning the
rights and liabilities created by this Agreement and have been fully appraised
concerning the same and enter into this Agreement with full knowledge of the
legal consequences thereof. The parties hereto agree that this contract or
any provision herein shall not be construed against either of the parties, for
any reason whatsoever, including but not limited to on account of either party
being the draftsman of any particular provision hereof.
IN WITNESS WHEREOF, the Seller and the Buyer, have executed this
Agreement as of the day and year first above written.
SELLER:
/s/ Xxxxxx X. Xxxxxxxx
BUYER:
ALPINE AIR EXPRESS, INC.
By /s/ Xxxxxx X. Xxxxxxxx, President
