STOCK PURCHASE AGREEMENT
Stock
Purchase Agreement, dated December 22, 2005, between Yarraman Winery, Inc.,
a
Nevada corporation having its business address at 0000 X. Xxxxxxxxx Xxx.,
Xxxxx
000, Xxx Xxxxx, XX 00000 (the “Company”) and the investors listed on
Exhibit
A
attached
hereto (the “Purchasers”).
ARTICLE
I
DEFINITIONS
1.01. Certain
Defined Terms.
As used
in this Agreement, the following terms shall have the following meanings
(such
meanings to be equally applicable to both the singular and plural forms of
the
terms defined):
“Agreement”
means this Stock Purchase Agreement as from time to time amended and in effect
between the parties, including all Exhibits hereto.
“Board
of
Directors” or “Board” means the board of directors of the Company as constituted
from time to time.
“Claims
Period” shall have the meaning assigned to that term in Section
7.02.
“Closing”
shall have the meaning assigned to that term in Section 2.02.
“Commission”
shall mean the United States Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
“Common
Stock” includes (a) the Company’s Common Stock, $0.001 par value, as authorized
on the date of this Agreement, (b) any other capital stock of any class or
classes (however designated) of the Company authorized on or after the date
hereof, the holders of which shall have the right, without limitation as
to
amount, either to all or to a share of the balance of current dividends and
liquidating dividends after the payment of dividends and distributions on
any
shares entitled to a preference, and the holders of which shall ordinarily,
in
the absence of contingencies or in the absence of any provision to the contrary
in the Company’s Certificate of Incorporation, be entitled to vote for the
election of a majority of directors of the Company (even though the right
so to
vote has been suspended by the happening of such a contingency or provision),
and (c) any other securities into which or for which any of the securities
described in (a) or (b) may be converted or exchanged pursuant to a plan
of
recapitalization, reorganization, merger, sale of assets or
otherwise.
“Damages”
shall have the meaning assigned to that term in Section 7.02.
“Equity
Security” means any stock or similar security, including, without limitation,
securities containing equity features and securities containing profit
participation features, or any security convertible into or exchangeable
for,
with or without consideration, any stock or similar security, or any security
carrying any warrant, right or option to subscribe to or purchase any shares
of
capital stock, or any such warrant or right.
“Governmental
Authority” means any federal or national, state or provincial, municipal or
local government, governmental authority, regulatory or administrative agency,
governmental commission, department, board, bureau, agency or instrumentality,
political subdivision, commission, court, tribunal, official, arbitrator
or
arbitral body, in each case whether U.S. or non-U.S.
“Lien”
means any mortgage, pledge, security interest, encumbrance, lien or charge
of
any kind, including, without limitation, any conditional sale or other title
retention agreement, any lease in the nature thereof and the filing of or
agreement to give any financing statement under the Uniform Commercial Code
of
any jurisdiction and including any lien or charge arising by Law.
“Material
Adverse Effect” means, when used with respect to the Company or any Subsidiary,
as the case may be, any change, effect or circumstance which, individually
or in
the aggregate, would reasonably be expected to (a) have a material adverse
effect on the business, assets, financial condition or results of operations
of
the Company or its Subsidiaries, as the case may be, in each case taken as
a
whole or (b) materially impair the ability of the Company or its
Subsidiaries, as the case may be, to perform their obligations under this
Agreement, excluding any change, effect or circumstance resulting from (i)
the
announcement, pendency or consummation of the transactions contemplated by
this
Agreement, (ii) changes in the United States securities markets generally,
or
(iii) changes in general economic, currency exchange rate, political or
regulatory conditions in industries in which the Company or its Subsidiaries,
as
the case may be, operate.
“Organizational
Documents” means (a) the articles or certificate of incorporation and the
by-laws or code of regulations of a corporation; (b) the partnership agreement
and any statement of partnership of a general partnership; (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership; (d) the articles or certificate of formation and operating
agreement of a limited liability company; (e) any other document performing
a
similar function to the documents specified in clauses (a), (b), (c) and
(d)
adopted or filed in connection with the creation, formation or organization
of a
Person; and (f) any and all amendments to any of the foregoing.
“Person”
or “person” means an individual, corporation, partnership, joint venture, trust,
university, or unincorporated organization, or a government, or any agency
or
political subdivision thereof.
“Proceeding”
means any action, arbitration, audit, hearing, investigation, litigation,
or
suit (whether civil, criminal, administrative or investigative) commenced,
brought, conducted, or heard by or before, or otherwise involving, any
Governmental Authority.
“Securities
Act” means the Securities Act of 1933, as amended, or any similar federal
statute, and the rules and regulations of the Commission (or of any other
federal agency then administering the Securities Act) thereunder, all as
the
same shall be in effect at the time.
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“Survival
Period” shall have the meaning assigned to that term in Section
7.01.
“Transaction
Documents” means, collectively, this Agreement, the Notes and all agreements,
instruments and other documents to be executed and delivered in connection
with
the transactions contemplated by this Agreement.
“U.S.”
means the United States of America.
“U.S.
Person” has the meaning set forth in Regulation S.
ARTICLE
II
PURCHASE,
SALE AND TERMS OF SHARES
2.01. The
Shares.
On the
date hereof, the Purchasers agree to purchase shares of Common Stock of the
Company for the aggregate principal amount of $2,000,000 (the “Funds”). The
Company has authorized the issuance and sale of 5,253,500 shares of its Common
Stock (such shares being referred to as the “Shares”), subject to the terms and
conditions hereof.
2.02. Closing.
The
Company agrees to issue, and sell to the Purchasers and, in consideration
of and
in express reliance upon the representations, warranties, covenants, terms
and
conditions of this Agreement, the Purchasers agree to purchase the Shares
set
forth in Section 2.01. The closing of the purchase and sale of the Shares
shall
occur at such time and place specified by the Purchasers, simultaneous with
the
closing of that certain Share Exchange Agreement dated December 22, 2005
by and
among the Company, the shareholders of the Company, Delta Xxxx Pty Ltd.,
a
company incorporated in Australia (the “Trust”) and Yarraman Estate Pty Ltd., a
company incorporated in Australia (“Yarraman Australia”) (the “Exchange
Agreement”), or at such time and date thereafter as the Purchasers and the
Company may agree (the “Closing”). At the Closing, the Purchasers shall deliver
to the Company promissory notes in the aggregate principal amount of $2,000,000
(the “Notes”), against delivery of stock certificate(s) to the Purchasers
evidencing the Shares. The obligations, terms and conditions regarding payment
of the Funds shall be set forth in the Notes.
2.03. Representations
by the Purchasers.
The
Purchasers, severally and not jointly, make the following representations
and
warranties to the Company:
(i) The
Purchasers are corporations are duly incorporated and validly existing under
the
laws of their jurisdiction of incorporation and have all requisite corporate
power and authority to conduct their business in the manner in which it is
presently being conducted. The Purchasers have all requisite power and authority
to execute, deliver and perform this Agreement and the Transaction Documents
to
consummate the transactions contemplated hereby. The execution delivery and
performance of this Agreement and the Transaction Documents and the consummation
of the transactions contemplated hereby and thereby have been duly authorized
by
the respective Board of Directors of each Purchaser, if applicable, and no
other
corporate proceedings are necessary to authorize the execution, delivery
and
performance of this Agreement and the Transaction Documents or the consummation
of the transactions contemplated hereby and thereby. Assuming the due
authorization, execution and delivery of this Agreement and the Transaction
Documents by the Company, this Agreement and the Transaction Documents
constitute, the valid and legally binding obligations of the Purchasers,
enforceable against each Purchaser in accordance with their terms, subject
to
the effect of any applicable bankruptcy, moratorium, insolvency, reorganization
or other similar law affecting the enforceability of creditors’ rights generally
and to the effect of general principles of equity which may limit the
availability of remedies, whether in a proceeding at law or in equity (the
“Bankruptcy Exception”).
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(ii) Neither
the execution, nor delivery by each Purchaser of this Agreement or any
Transaction Document to which each Purchaser is a party, nor the consummation
or
performance by each Purchaser of the transactions contemplated hereby or
thereby
will, directly or indirectly, (a) contravene, conflict with, or result in
a
violation of any provision of the Organizational Documents of such Purchaser;
(b) contravene, conflict with, constitute a default (or an event or condition
which, with notice or lapse of time or both, would constitute a default)
under,
or result in the termination or acceleration of, any agreement or instrument
to
which such Purchaser is a party or by which the properties or assets of such
Purchaser are bound; or (c) contravene, conflict with, or result in a violation
of, any Law or Order to which such Purchaser, or any of the properties or
assets
of such Purchaser, may be subject.
(iii) The
Purchasers have been supplied with or have had sufficient access to all
information, including financial statements and other financial information
of
the Company, and have been afforded with an opportunity to ask questions
of and
receive answers concerning information to which a reasonable investor would
attach significance in making investment decisions, so that as reasonable
investors the Purchasers have been able to make the decision to purchase
the
Shares.
(iv) The
Purchasers, in making the decision to purchase the Shares, have relied upon
independent investigations of the Company made by them. The Purchasers have
such
knowledge and experience in financial, tax and business matters so as to
enable
the Purchasers to utilize the information made available to the Purchasers
in
connection with the offering of the Shares to evaluate the merits and risks
of
an investment in the Shares and to make an informed investment decision with
respect thereto.
(v) The
Purchasers understand that the Shares are being and will be sold in reliance
on
an exemption from the registration requirements of federal and state securities
laws, and that the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings
of
the Purchasers set forth herein in order to determine the applicability of
such
exemptions and the suitability of the Purchasers to purchase the Shares.
The
representations, warranties and agreements contained herein are true and
correct
as of the date hereof and may be relied upon by the Company, and the Purchasers
will notify the Company immediately of any adverse change in any such
representations and warranties which may occur prior to the
Closing.
(vi) All
offers and sales of the Shares prior to the registration of the Shares under
the
Securities Act or pursuant to an exemption from registration under the
Securities Act shall be made only pursuant to such a registration or such
exemption from registration.
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(vii) Each
Purchaser is acquiring the Shares for investment purposes.
(viii) The
Purchasers agree that the certificates representing the Shares shall contain
a
legend to the following effect.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS,
IN
WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY
AN
OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY
TO THE
COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR
OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. HEDGING TRANSACTIONS INVOLVING THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH
THE SECURITIES ACT.
(ix) Opinion.
The
Purchasers will not transfer any or all of the Shares absent an effective
registration statement under the Securities Act and applicable state securities
law covering the disposition of Purchasers’ Shares, without first providing the
Company with an opinion of counsel (which counsel and opinion are reasonably
satisfactory to the Company) to the effect that such transfer will be exempt
from the registration and the prospectus delivery requirements of the Securities
Act and the registration or qualification requirements of any applicable
U.S.
state securities laws.
(x) Brokers
or Finders.
No
Person has or will have, as a result of the transactions contemplated by
this
Agreement, any right, interest or valid claim against or upon the Company
for
any commission, fee or other compensation as a finder or broker because of
any
act or omission by such Purchaser or its respective agents.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Purchasers as follows:
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All
of
the representations and warranties of the Company set forth in Section V
of the
Exchange Agreement are true and correct and are, together with the Schedules
thereto, incorporated herein by reference in their entirety as if made
herein.
3.01. Authorization.
The
Company has all requisite authority and power (corporate and other),
governmental licenses, authorizations, consents and approvals to enter into
this
Agreement and each of the Transaction Documents to which the Company is a
party,
to consummate the transactions contemplated by this Agreement and each of
the
Transaction Documents to which the Company is a party and to perform its
obligations under this Agreement and each of the Transaction Documents to
which
the Company is a party. The execution, delivery and performance by the Company
of this Agreement and each of the Transaction Documents to which the Company
is
a party have been duly authorized by all necessary corporate action and do
not
require from the Company Board or the stockholders of the Company any consent
or
approval that has not been validly and lawfully obtained. The execution,
delivery and performance by the Company of this Agreement and each of the
Transaction Documents to which the Company is a party requires no authorization,
consent, approval, license, exemption of or filing or registration with any
Governmental Authority or other Person.
3.02. No
Violation.
Neither
the execution nor the delivery by the Company of this Agreement or any
Transaction Document to which the Company is a party, nor the consummation
or
performance by the Company of the transactions contemplated hereby or thereby
will, directly or indirectly, (a) contravene, conflict with, or result in
a
violation of any provision of the Organizational Documents of the Company;
(b)
contravene, conflict with, constitute a default (or an event or condition
which,
with notice or lapse of time or both, would constitute a default) under,
or
result in the termination or acceleration of, or result in the imposition
or
creation of any Lien under, any agreement or instrument to which the Company
is
a party or by which the properties or assets of the Company are bound;
(c) contravene, conflict with, or result in a violation of, any Law
or
Order to which the Company, or any of the properties or assets owned or used
by
the Company, may be subject; or (d) contravene, conflict with, or result
in a
violation of, the terms or requirements of, or give any Governmental Authority
the right to revoke, withdraw, suspend, cancel, terminate or modify, any
licenses, permits, authorizations, approvals, franchises or other rights
held by
the Company or that otherwise relate to the business of, or any of the
properties or assets owned or used by, the Company, except, in the case of
clause (b), (c), or (d) above, for any such contraventions, conflicts,
violations, or other occurrences as would not have a Material Adverse
Effect.
3.03. Binding
Obligations.
Assuming this Agreement and the Transaction Documents have been duly and
validly
authorized, executed and delivered by the parties thereto other than the
Company, this Agreement and each of the Transaction Documents to which the
Company is a party are duly authorized, executed and delivered by the Company
and constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to the Bankruptcy Exception.
3.04. Securities
Laws.
Assuming the accuracy of the representations and warranties of the Purchasers
contained in Section 2.03, the issuance of the Shares pursuant to this Agreement
are (a) exempt from the registration and prospectus delivery requirements
of the
Securities Act, (b) have been registered or qualified (or are exempt from
registration and qualification) under the registration permit or qualification
requirements of all applicable state securities laws, and (c) accomplished
in conformity with all other applicable federal and state securities
laws.
6
3.05. Capitalization
and Related Matters.
(a) Capitalization.
The
authorized capital stock of the Company consists of 25,000,000 shares of
the
Company’s Common Stock, of which 3,496,500 shares are issued and outstanding.
All issued and outstanding shares of the Company’s Common Stock are duly
authorized, validly issued, fully paid and nonassessable, and have not been
issued in violation of any preemptive or similar rights. Except as disclosed
in
Schedule 3.05(a), there are no outstanding options, warrants, purchase
agreements, participation agreements, subscription rights, conversion rights,
exchange rights or other securities or contracts that could require the Company
to issue, sell or otherwise cause to become outstanding any of its authorized
but unissued shares of capital stock or any securities convertible into,
exchangeable for or carrying a right or option to purchase shares of capital
stock or to create, authorize, issue, sell or otherwise cause to become
outstanding any new class of capital stock. Except as provided for herein,
there
are no outstanding stockholders’ agreements, voting trusts or arrangements,
registration rights agreements, rights of first refusal or other contracts
pertaining to the capital stock of the Company. The issuance of all of the
shares of Company’s Common Stock described in this Section 3.05 have been in
compliance with U.S. federal and state securities laws.
(b) No
Redemption Requirements.
There
are no outstanding contractual obligations (contingent or otherwise) of the
Company to retire, repurchase, redeem or otherwise acquire any outstanding
shares of capital stock of, or other ownership interests in, the Company
or to
provide funds to or make any investment (in the form of a loan, capital
contribution or otherwise) in any other Person.
(c) Duly
Authorized.
The
issuance of the Shares has been duly authorized and, upon delivery to the
Purchasers of a certificate or certificates therefor in accordance with the
terms of this Agreement, the Shares will have been validly issued and fully
paid, and will be nonassessable, have the rights, preferences and privileges
specified, will be free of preemptive rights and will be free and clear of
all
Liens and restrictions, other than Liens created by the Purchasers and
restrictions on transfer imposed by this Agreement and the Securities
Act.
3.06. Certain
Proceedings.
There
is no pending Proceeding that has been commenced against the Company and
that
challenges, or may have the effect of preventing, delaying, making illegal,
or
otherwise interfering with, any of the transactions contemplated by this
Agreement. To the knowledge of the Company, no such Proceeding has been
threatened.
3.07. Disclosure.
Neither
the Transaction Documents nor any other agreement, document, certificate,
statement, whether oral or written, furnished to any of the Purchasers or
their
counsel by or on behalf of the Company in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits
to
state a material fact necessary in order to make the statements contained
herein
or therein, in light of the circumstances in which made, not misleading.
There
is no fact within the knowledge of the Company’s executive officers which has
not been disclosed herein or in writing by them to the Purchasers and which
materially adversely affects, or in the future in their opinion may, insofar
as
they can now foresee, materially adversely affect the business, operations,
properties, assets or condition, financial or other, of the Company. Without
limiting the foregoing, the Company has no knowledge that there exists, or
there
is pending or planned, any patent, invention, device, application or principle
or any statute, rule, law, regulation, standard or code which would materially
adversely affect the business, operations, affairs or financial condition
of the
Company.
7
ARTICLE
IV
COVENANTS
OF THE COMPANY
4.01. Operations.
From
and after the date hereof, the Company will operate only in the ordinary
course
of business and in addition thereto, and not in limitation thereof; will:
(i)
voluntarily incur any capital expenditures in excess of a $100,000 obligation;
(ii) declare, authorize or become obligated to make (or express any intention
to
make) any distribution or dividend to shareholders or to any other Person;
or
(iii) enter into a binding contract or arrangement that is outside the ordinary
course of the Company’s business.
ARTICLE
V
CONDITIONS
TO PURCHASERS’ OBLIGATIONS
The
obligation of each Purchaser to purchase and pay for the Shares to be purchased
by it at the Closing, is subject to the following conditions:
5.01. Representations
and Warranties.
Each of
the representations and warranties of the Company set forth in Article II
hereof
shall be true, accurate and correct on the date hereof.
5.02. Documentation
at Closing.
The
Purchasers shall have received, prior to or at the Closing, all of the following
materials, each in form and substance satisfactory to the Purchasers and
their
counsel, if any, and each of the following events shall have occurred, or
each
of the following documents shall have been delivered, prior to or simultaneous
with the Closing:
(a) Copies
of
(1) the Articles of Incorporation of the Company, as amended or restated
to
date, together with such evidence as may be available of the filing thereof;
(2)
the resolutions of the Board of Directors providing for the approval of this
Agreement, the issuance of the Shares, and all other agreements or matters
contemplated hereby or executed in connection herewith; and (3) the By-laws
of
the Company, all of which shall have been certified by the Secretary of the
Company, as of the date of the Closing, to be true, complete and correct;
and
certified copies of all documents evidencing other necessary corporate or
other
action and governmental approvals, if any, required to be obtained at or
prior
to the Closing with respect to this Agreement and the issuance of the
Shares.
(b) The
Exchange Agreement shall be consummated in accordance with its terms without
amendment or other change and all conditions thereto have been
waived.
8
(c) The
Company shall have delivered the other documents, instruments or certificates
to
be delivered pursuant to this Agreement by the Company or any of its officers,
the incumbency of such officers, and the true specimen signatures of such
officers.
(d) A
certificate of the President of the Company, dated the date of the Closing,
stating that the representations and warranties of the Company contained
in
Article II hereof and otherwise made by the Company in writing in connection
with the transactions contemplated hereby are true and correct as of the
time of
the Closing and that all obligations and covenants in this Agreement required
to
be performed prior to or on the date of the Closing have been performed as
of
the time of the Closing.
(e) The
Company shall have obtained any consents or waivers necessary to be obtained
at
or prior to the Closing to execute and deliver this Agreement and the agreements
and instruments executed and delivered by the Company in connection herewith,
to
issue the Shares and to carry out the transactions contemplated hereby and
thereby, and such consents and waivers shall be in full force and effect
at the
Closing. All corporate and other action and governmental filings necessary
to
effectuate the terms of this Agreement and the other agreements and instruments
executed and delivered by the Company in connection herewith and the issuance
of
the Shares shall have been made or taken.
ARTICLE
VI
RIGHT
OF FIRST REFUSAL
6.01. Right
of First Refusal.
Before
the Company shall issue, sell or exchange, agree or obligate itself to issue,
sell or exchange, or reserve or set aside for issuance, sale or exchange
(unless, in the case of an agreement, obligation, reservation or setting
aside,
the same is expressly subject to the rights of the Purchasers under the
provisions of this Article VI, and other than a reservation of shares pursuant
to a Company stock option plan), any (i) shares of Common Stock, (ii) any
other
equity security of the Company, including without limitation, shares of any
series of the Company’s class of preferred stock (iii) any convertible debt
security of the Company, including without limitation, any debt security
which
by its terms is convertible into or exchangeable for any equity security
of the
Company, (iv) any security of the Company that is a combination of debt and
equity, in connection with an offering of Offered Securities to be registered
on
a registration statement to be filed with the Commission (other than a
registration (i) on Form S-8 or any successor form; or (ii) solely in connection
with any employee welfare, benefit or compensation plan; or (iii) relating
to a
transaction pursuant to Rule 145 under the Securities Act, the
Company shall, in each case, first offer to sell such securities (the “Offered
Securities”) to the Purchasers at a price and on such other terms as shall have
been specified by the Company in writing delivered to the Purchasers (in
each
case, the “Offer”) (which price and terms shall, unless otherwise consented to
by the Purchasers in writing, be a price and on terms of a bona fide third
party
offer (the “Third Party Offer”) obtained by the Company), which Offer by its
terms shall remain open and irrevocable for a period of twenty (20) days
from
the transmission of the Offer by the Company.
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6.02. Notice
of Acceptance.
Notice
of each Purchaser’s intention to accept, in whole or in part, any Offer made
pursuant to Section 6.01 shall be evidenced by a writing, signed by such
Purchaser and delivered to the Company prior to the end of the 20-day period
of
such Offer, setting forth the amount of such Securities that the Purchasers
elect to purchase (the “Notice of Acceptance”).
6.03. Conditions
to Acceptances and Purchase.
(a) Permitted
Sales of Refused Securities.
In the
event that a Notice of Acceptance is not given in respect of all the Offered
Securities, the Company shall have one hundred thirty five (135) days from
the
end of said 20-day period to sell any such Offered Securities as to which
a
Notice of Acceptance has not been given by the Purchasers (the “Refused
Securities”) to the Person or Persons specified in the Third Party Offer, but
only for an amount and kind (or the cash equivalent thereof) of consideration
and otherwise in all respects upon the terms and conditions, including, without
limitation, unit price and interest rates, which are no more favorable, in
the
aggregate, to such other Person or Persons or less favorable to the Company
(as
determined in good faith by the Board of Directors) than those set forth
in the
Third Party Offer.
(b) Reduction
in Amount of Offered Securities.
In the
event the Company shall propose to sell less than all of the Refused Securities
(any such sale to be in the manner and on the terms specified in Section
6.03(a)
above), then the Purchasers may reduce the number of shares or other shares
of
the Offered Securities specified in its Notices of Acceptance to an amount
which
shall be not less than the amount of the Offered Securities which the Purchasers
elected to purchase pursuant to Section 6.02 multiplied by a fraction, (i)
the
numerator of which shall be the amount of Offered Securities which the Company
actually proposes to sell, and (ii) the denominator of which shall be the
amount
of all Offered Securities. In the event that the Purchasers so elect to reduce
the number or amount of Offered Securities specified in its Notice of
Acceptance, the Company may not sell or otherwise dispose of more than the
reduced amount of the Offered Securities until such securities have again
been
offered to the Purchasers in accordance with Section 6.01.
(c) Closing.
At the
closing of the sale to such other Person or Persons of all or less than all
the
Refused Securities, which closing shall include payment of the purchase price
therefor as set forth in the Offer, the Purchasers shall purchase from the
Company, and the Company shall sell to the Purchasers, the number of Offered
Securities specified in the Notices of Acceptance, as reduced pursuant to
Section 6.03(b) if the Purchasers have so elected, upon the terms and conditions
specified in the Offer, including, without limitation, payment in full for
such
Offered Securities. The purchase by the Purchasers of any Offered Securities
is
subject in all cases to the preparation, execution and delivery by the Company
and the Purchasers of a purchase agreement relating to such Offered Securities
in form and substance as offered to the purchaser or proposed purchaser of
the
Offered Securities who are not the Purchasers.
6.04. Further
Sale.
In each
case, any Offered Securities not purchased by the Purchasers or other Person
or
Persons in accordance with Section 6.03 may not be sold or otherwise disposed
of
until they are again offered to the Purchasers under the procedures specified
in
Section 6.01, 6.02 and 6.03.
10
6.05. Exceptions.
The
rights of the Purchasers under this Article VI shall not apply to:
(1) |
Common
Stock issued as a stock dividend to holders of Common Stock or
upon any
subdivision or combination of shares of Common Stock;
or
|
(2) |
the
Shares or the shares of Common Stock to be issued pursuant to the
Exchange
Agreement.
|
ARTICLE
VII
INDEMNIFICATION;
REMEDIES
7.01. Survival.
All
representations, warranties, including those incorporated by reference, together
with the Schedules thereto, and covenants, and obligations in this Agreement
shall survive the Closing and expire one year from the date hereof (the
“Survival Period”).
7.02. Indemnification
by the Company.
From
and after the Closing until (1) the expiration of the Survival Period, or
(2)
with respect to a specific claim made by the Purchasers against the Company
prior to the expiration of the Survival Period, until a court of competent
jurisdiction renders a final unappealable decision (or appeals of a decision
are
not taken within the time period permitted for filing same) (the “Claims
Period”), the Company shall indemnify and hold harmless the Purchasers from and
against any liabilities, loss, claims, damages (excluding consequential,
punitive and other similar damages), fines, penalties, expenses (including
costs
of investigation and defense and reasonable attorneys’ fees) or diminution of
value (collectively, “Damages”) arising, directly or indirectly, from or in
connection with:
(i) any
breach of any representation or warranty made by the Company in this Agreement
or in any certificate delivered by the Company pursuant to this Agreement;
or
(ii) any
breach by the Company of any covenant or obligation of the Company in this
Agreement required to be performed by the Company on or prior to the
Closing.
7.03. Limitations
on Amount.
Notwithstanding anything to the contrary contained herein, the maximum amount
which the Purchasers may recover from the Company for a breach of any
representation, warranty, covenant or obligation under this Agreement required
to be performed by the Company on or prior to Closing shall not exceed $500,000
in the aggregate; provided, further, however that no Purchaser shall be entitled
to indemnification pursuant to this Article VII unless and until the aggregate
amount of Damages to all Purchasers exceeds $50,000, at which time, subject
to
the foregoing cap on the maximum amount payable, the Purchasers shall be
entitled to indemnification for the total amount of such Damages in excess
of
$50,000.
7.04. Determining
Damages.
Materiality qualifications to the representations and warranties of the Company
shall be taken into account in determining the amount of Damages occasioned
by a
breach of any such representation or warranty for purposes of determining
the
whether the baskets set forth in 7.03 have been met.
11
ARTICLE
VIII
MISCELLANEOUS
8.01. No
Waiver: Cumulative Remedies.
No
failure or delay on the part of any party to this Agreement in exercising
any
right, power or remedy hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right, power or remedy preclude
any
other or further exercise thereof or the exercise of any other right, power
or
remedy hereunder. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
8.02. Amendments.
Waivers and Consents.
Any
provision in the Agreement to the contrary notwithstanding, and except as
hereinafter provided, changes in, termination or amendments of or additions
to
this Agreement may be made, and compliance with any covenant or provision
set
forth herein may be omitted or waived, if the Company (i) shall obtain consent
thereto in writing from the holder or holders of at least a majority in interest
of the Shares and (ii) shall deliver copies of such consent in writing to
any
holders who did not execute such consent; provided that no consents shall
be
effective to reduce the percentage in interest of the Shares the consent
of the
holders of which is required under this Section 8.02. Any waiver or consent
may
be given subject to satisfaction of conditions stated therein and any waiver
or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
8.03. Notices.
All
notices, consents, waivers, and other communications under this Agreement
must
be in writing and will be deemed to have been duly given when (a) delivered
by
hand (with written confirmation of receipt), (b) sent by telecopier (with
written confirmation of receipt), or (c) when received by the addressee,
if sent
by a nationally recognized overnight delivery service (receipt requested),
in
each case to the appropriate addresses and telecopier numbers set forth below
(or to such other addresses and telecopier numbers as a party may designate
by
written notice to the other parties):
If
to the Company:
0000
X. Xxxxxxxxx Xxx.
Xxxxx
000
Xxx
Xxxxx, XX 00000
|
with
a copy to:
Loeb
& Loeb LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
|
Attention:
Xxxx Xxxx, Chief Executive Officer
|
Attention:
Xxxxxxxx X. Xxxxxxxx, Esq.
Telephone
No.: 000-000-0000
Facsimile
No.: 000-000-0000
|
8.04. Expenses.
Each
party to this Agreement will bear its respective expenses incurred in connection
with the preparation, execution and performance of this Agreement and the
transactions contemplated by this Agreement, including all fees and expenses
of
agents, representatives, counsel and accountants.
12
8.05. Effectiveness:
Binding Effect: Assignment.
This
Agreement shall be binding upon and inure to the benefit of the Company,
the
Purchasers and the respective successors and assigns; provided, that, the
Company may not assign any of its rights or obligations under this Agreement
without the prior written consent of the Purchasers. The Purchasers may assign
all or any part of its rights and obligations hereunder to any person who
acquires any Shares owned by the Purchasers. Any such assignment shall operate
to release the Purchasers from its liabilities and obligations under this
Agreement with respect to the Shares, as applicable, so sold or assigned.
A
person to whom all or a part of the Purchasers’ rights are so assigned, whether
by the Purchasers or by a subsequent person, may, if so agreed to by the
Purchasers, become a party to this Agreement, entitled to those rights and
benefits set forth herein applicable to the Purchasers or such Shares and
shall
acquire the Shares subject to the representations and warranties of the
Purchasers set forth in Section 2.04, and subject to any restrictions on
transfer of Shares under applicable federal and state securities laws. The
foregoing is in addition to, and not in limitation of; all other rights,
powers
and privileges of the Purchasers.
8.06. Prior
Agreements.
The
Transaction Documents executed and delivered in connection herewith constitute
the entire agreement between the parties and supersede any prior understandings
or agreements concerning the subject matter hereof.
8.07. Severability.
The
provisions of the Transaction Documents are severable and, in the event that
any
court of competent jurisdiction shall determine that any one or more of the
provisions or part of a provision contained therein shall, for any reason,
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision or part
of a
provision of such Transaction Document and the terms of the Shares shall
be
reformed and construed as if such invalid or illegal or unenforceable provision,
or part of a provision, had never been contained herein, and such provisions
or
part reformed so that it would be valid, legal and enforceable to the maximum
extent possible.
8.08. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York, and without giving effect to choice of laws
provisions.
8.09. JURISDICTION;
SERVICE; WAIVERS.
ANY
ACTION OR
PROCEEDING IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT IN A COURT OF
RECORD
OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK. THE PARTIES TO THIS
AGREEMENT HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS OF
THE
STATE OF NEW YORK, AND SERVICE OF PROCESS MAY BE MADE UPON THE PARTIES TO
THIS
AGREEMENT BY MAILING A COPY OF THE SUMMONS AND ANY COMPLAINT TO SUCH PERSON,
BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS TO
BE
USED FOR THE GIVING OF NOTICES UNDER THIS AGREEMENT. BY ACCEPTANCE HEREOF,
THE
PARTIES HERETO EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON
THE GROUNDS OF FORUM
NON CONVENIENS,
WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OR MAINTAINING OF ANY SUCH ACTION
OR PROCEEDING IN SUCH JURISDICTION.
13
8.10. Headings.
Article, section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
8.11. Counterparts.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
8.12. Further
Assurances.
From
and after the date of this Agreement, upon the request of the Purchasers
or the
Company, the Company and each of the Purchasers shall execute and deliver
such
instruments, documents and other writings as may be reasonably necessary
or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of the Transaction Documents and the Shares.
14
IN
WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement
to
be executed as of the date first above written.
Yarraman Winery, Inc. | ||
|
|
|
By: | ||
Name: |
||
Title: |
Sunvalley Limited | ||
|
|
|
By: | ||
Name: |
||
Title: |
Oriental Holdings Ltd. | ||
|
|
|
By: | ||
Name: |
||
Title: |
Glenealy International Limited | ||
|
|
|
By: | ||
Name: |
||
Title: |
Dragon Enterprises Limited | ||
|
|
|
By: | ||
Name: |
||
Title: |
15
|
||
Leeds Holdings Limited | ||
|
|
|
By: | ||
Name: |
||
Title: |
16
EXHIBIT
A
NAME
/ ADDRESS
|
NUMBER
OF SHARES
|
|||
Sunvalley
Limited
Xxxxxx
Xxxxx Xxxxxx - 0xx Xxxxx,
Xxxxxxxx,
Mahe, Seychelles
|
1,150,000
|
|||
Oriental
Holdings Limited
00
Xxxxxx Xxxxxx, Xxxxxxxx, Xx. Lucia
|
955,000
|
|||
Glenealy
International Limited
00
Xxxxxx Xxxxxx, Xxxxxxxx, Xx. Xxxxx
|
1,053,500
|
|||
Dragon
Enterprises Limited
00
Xxxxxx Xxxxxx, Xxxxxxxx, Xx. Lucia
|
1,100,000
|
|||
Leeds
Holdings Limited
00
Xxxxxx Xxxxxx, XX Xxx 000,
Xxxxxx
Xxxx, Xxxxxx
|
995,000
|
17