Stock Purchase and Sale Agreement
Stock Purchase and Sale Agreement
THIS STOCK PURCHASE AGREEMENT dated November ___ 2007 ("Agreement"), by and among Arte Invest Corporation, a corporation with offices located at c/o 000 Xxxxx Xxxxxx, in the City of Wyoming, County of Kent, Zip Code 19934 ("Buyer"); and
Arteinvet, SPA, an Italian corporation with offices located at Xxx Xx Xxxxxx, 00 Xxxx 00000 ("Arteinvest"); and Diamond Financial Corporation, Ltd, a UK corporation ("Diamond"); and
Co.Ge.S.Fin., Ltd., a UK corporation ("Co.Ge.S.Fin"); and Xxxxxx Xxxxxxx, an individual residing in Italy ("Xxxxxx").
Diamond, Co.Ge.S.Fin and Xxxxxx are collectively referred to hereinafter as "Shareholders" or "Sellers".
W I T N E S S E T H:
WHEREAS, the Shareholders own 100% of the issued and outstanding shares of capital stock of Arteinvest (the "Arteinvest Shares");
WHEREAS, Buyer wishes to buy and the Sellers wish to sell to Buyer, on the terms and for the consideration hereinafter provided, all of their shares of capital stock of Arteinvest, a Company organized and existing under the laws of Italy ("Company"), which will represent one hundred percent (100%) of the issued and outstanding capital stock of the Company.
NOW, THEREFORE, in consideration of the promises and the respective agreements hereinafter set forth, Buyer and Seller hereby agree as follows:
1.
PURCHASE OF COMPANY COMMON STOCK.
1.1
Sale of Common Stock. Upon the terms and subject to the provisions of this Agreement, the Sellers agrees that they will sell, convey, transfer, assign and deliver to Buyer at the Closing provided for in Article 2, free and clear of all claims, liens, pledges, encumbrances, mortgages, charges, security interests, options, preemptive rights or other interests or equities whatsoever, all of the shares of duly and validly issued, fully paid and nonassessable, common stock (collectively, "Purchased Stock") of the Company owned by the Sellers.
1.2
Consideration for Sale and Transfer of the Purchased Stock. Subject to the terms and conditions of this Agreement and in reliance upon the representations, warranties and covenants of Seller herein contained, and in full consideration of such sale, conveyance, transfer, assignment and delivery of the Purchased Stock to Buyer, Buyer agrees to pay and deliver to the Seller a total consideration of ten-dollars ($10.00). As additional consideration, Buyer shall issue and exchange with Sellers______shares of the authorized common stock of Buyer.
(the consideration in Section 1.2 is hereinafter referred to as the "Stock Purchase Price").
2.
THE CLOSING AND PAYMENT OF STOCK PURCHASE PRICE.
2.1
Closing. The closing ("Closing") with respect to the acquisition of the Purchased Stock under this Agreement and all other transactions contemplated hereby shall take place, for reference purposes at the offices of Buyer's attorney, Cilio & Partners, PC, 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 or as otherwise established by Buyer; provided that, Buyer and Sellers agree that the Closing shall be effected by exchange of signed documents via facsimile transmission followed by delivery of original signature by overnight delivery. The Closing shall occur no later than November 30, 2007, unless the parties mutually agree to extend such date. The time and date of the Closing is hereinafter called the "Closing Date."
2.2
Payment of Stock Purchase Price. At the Closing, the Buyer shall deliver the Stock Purchase Price in the form of one or more certificates representing 100% of the issued and outstanding common shares of Arteinvest, SPA. The shares shall be issued pursuant to a list of shareholders to be provided by Sellers prior to the Closing Date.
2.3
Transfer of Purchased Stock. At the Closing, the Sellers shall transfer to Buyer, the Purchased Stock, free and clear of all claims, liens, pledges, encumbrances, mortgages, charges, security interests, options, preemptive rights, restrictions or any other interests or imperfections of title whatsoever. Said transfer shall be effected by delivery to Buyer of the stock certificates, duly endorsed for transfer, or an assignment separate from certificate sufficient to transfer the Purchased Stock to Buyer. If Seller cannot deliver stock certificate(s) for any of the Purchased Stock because any certificate therefor cannot be located for any reason, then Seller shall deliver an affidavit of lost certificate and indemnity agreement (without bond) in favor of Buyer at the Closing with respect to such shares of Purchased Stock.
2.4
Seller’s Delivery at Closing. At Closing, Sellers shall also deliver or cause to be delivered to the Buyer (a) the corporate records and seals of the Company including, without limiting the generality of the foregoing, the Company’s formation and operating documents and all minutes and resolutions of the Company’s directors and shareholders; (b) resignations of all of the directors and officers of the Company requested by the Buyer and releases by all such directors and officers of the Company of all claims they have against the Company (except to the extent they are expressly intended to survive the Closing hereunder), conditional on the completion of the sale of the Purchased Stock pursuant hereto; (c) copies of all documents (including, without limitation, records, correspondence and contracts) that have not been previously delivered before Closing and that the Buyer in its reasonable opinion considers to be necessary or desirable for the conduct by the Buyer of any activities related to the assets or business operations of the Company; (d) irrevocable assignment of patents and trademarks, patent and trademarks applications, and any other forms of intellectual property to the Company; (e) the certificates required from Seller pursuant to Sections 7.1 and 7.2 hereof; and (f) opinion of counsel regarding the Company in substantially the form of Exhibit B annexed hereto.
2.6
Loss or Damage Prior to Closing. From the date of this Agreement through Closing, the Sellers shall cause the Company to continue to operate in the ordinary course, and to satisfy and comply with its obligations and shall not make or initiate any actions that could result in the default of any of Company's obligations or adversely affect the business of the Company or the purchase and sale herein contemplated.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLERS.
Sellers hereby represents, warrant and agrees as follows:
3.1
Organization and Qualification of Company. The Company is duly organized, validly existing and in good standing under the laws of Italy. The Company has all requisite corporate power and authority to own or lease all of its properties and assets and to conduct its business in the manner and in the places where such properties are owned or leased or such business is now conducted by it. The Company is duly qualified, licensed and authorized to do business as a corporation and is in good standing in the jurisdictions in which it conducts business, and is not required to be so licensed, qualified or authorized to conduct its business or own its property in any other jurisdiction.
The minute books of the Company are current and contain correct and complete copies of the Articles of Incorporation and Bylaws of the Company, including all amendments thereto and restatements thereof, and of all minutes of meetings, resolutions and other actions and proceedings of its stockholders and board of directors and all committees thereof, duly signed by the authorized officers and directors or all the Shareholders. The stock record book of the Company is also current, correct and complete and reflects the issuance of all of the outstanding shares of the Company's capital stock since the date of its incorporation.
3.2
Authority of Company and the Sellers. This Agreement and each of the agreements and other documents and instruments delivered or to be delivered to Buyer pursuant to or in contemplation of this Agreement will constitute, when so delivered, the valid and binding obligations of such of Sellers as are parties thereto and shall be enforceable in accordance with their respective terms. The execution, delivery and performance of this Agreement and each of the agreements and other documents and instruments delivered or to be delivered to Buyer by Sellers or the Company have been duly authorized by all necessary action of Sellers and, with respect to Company, are within Company's corporate powers, and will not: (a) Result in a breach of or constitute a default or result in any right of termination or other effect adverse to the Company under any indenture or loan or credit agreement of any of the Sellers or the Company, or any other agreement, lease or instrument to which any of the Sellers or the Company is a party or by which any property of the Sellers or the Company is bound or affected; (b) result in, or require, the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance or claim of any nature whatsoever on the Purchased Stock or any property or assets now owned, leased or used by the Company; (c) result in a violation of or default under any law, rule, or regulation, or any order, writ, judgment, injunction, decree, determination, award, now in effect having applicability to Sellers or the Company; (d) violate any provisions of the Articles of Incorporation or Bylaws of the Company, or (e) require any approval, consent or waiver of, or filing with, any entity, private or governmental. Notwithstanding any of the foregoing or any other provision of this Agreement, (y) the Sellers' government security clearance is personal to Sellers, and cannot be transferred; and (z) certain government contracts may require the consent of the other party to an actual or deemed assignment.
3.3
Capitalization. The Purchased Stock has been duly and validly authorized, and is duly and validly issued, fully paid and nonassessable. The Purchased Stock is free and clear of any and all claims, liens, pledges, charges, encumbrances, mortgages, security interests, options, preemptive or other rights, restrictions on transfer, or other interests or equities or imperfections of title whatsoever. The Purchased Stock represents all of the outstanding equity securities of the Company, there are no other equity securities of Company outstanding on the date hereof and there are no existing warrants, preemptive or other rights, options, calls, commitments, conversion privileges, or other agreements (all of the foregoing being collectively called "Options") obligating the Company to issue any or all of its authorized and unissued capital stock, or any security convertible into and/or exchangeable for capital stock of the Company. The Purchased Stock represents one hundred percent (100%) of the issued and outstanding capital stock of the Company, and no person has any right to acquire the Purchased Stock or any interest therein except Buyer.
3.4
Financial Information; Material Adverse Change. The financial information provided to Buyer (the "Financial Information") and auditor selected by Buyer is true and correct in all material respects, and do not fail to disclose any material liability of the Company. Neither the execution nor delivery of this Agreement nor the completion of the transactions contemplated hereby will result in acceleration of any of the dates for payment of any of the liabilities of the Company. The Company has valid and legal title to all assets set forth on the Financial Information, and such assets constitute all of the assets necessary for the conduct of the business operations of Company in the ordinary course. Since the date of the Financial Information, there has been no material adverse change in the financial condition, results of operations, or business prospects of the Company.
3.5
Valid Title to Purchased Stock. The Sellers will deliver to Buyer, valid and marketable title to the Purchased Stock at the Closing, free and clear of any claims, liens, pledges, charges, encumbrances, mortgages, security, interests, options, preemptive or other rights, restrictions on transfer or other interest or equities or any other imperfections of title whatsoever.
3.6
Conduct of the Business. The Company is not a party to, or subject to or bound by nor are any of its assets subject to or bound by any agreement, oral or written, or any judgment, law, rule, regulation, order, writ, injunction or decree of any court or governmental or administrative body, which prohibits or adversely affects or upon the consummation of the transactions contemplated hereby would prohibit or adversely affect: (a) the use of any or all of the assets and property of Company necessary for operation in the ordinary and usual course of business; or (b) the conduct of its business and operations, in each case, in all material respects in the same manner as such business has been conducted by it. All governmental licenses, consents, permits and authorities required for the conduct in the ordinary course of the operations of the business of the Company and the owning of its assets, have been obtained, are validly issued and are in good standing and to the best of Seller’s knowledge, such conduct and uses by Company are not in breach or default of any statute, bylaw, regulation, covenant, restriction, plan, permit, license or authority.
3.7
Articles of Incorporation. The Articles of Incorporation of the Company and all amendments thereto to have been validly adopted by the stockholders and directors of the Company and the Articles of Incorporation, as amended, are in full force and effect and are legal, valid, binding and enforceable in accordance with its terms.
3.8
Bylaws. The Bylaws of the Company, and all amendments to the Bylaws, have been validly adopted, and the Bylaws, as amended, are in full force and effect and are legal, valid, binding and enforceable in accordance with their terms.
3.9
Share Redemptions and Distributions. The Company is not obligated to redeem any shares from any shareholder, and no dividends or other distributions in respect of any equity security have been made or authorized by the Company to the Seller or former shareholders of the Company.
3.10
Disclosure. To the best of Sellers' knowledge, (a) no representation, warranty or statement contained in this Agreement or other document furnished or to be furnished to Buyer pursuant hereto or in connection with the transactions contemplated under this Agreement contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading; and (b) there is no fact, which materially and adversely affects, or, in the future may materially and adversely affect, the condition of the Company which has not been fully disclosed by Seller to Buyer.
3.11
Material Contracts. Exhibit C hereto sets forth a complete listing of all material contracts of the Company (the “Open Contracts”). Other than the Open Contracts, each of which has been entered into by the Company in the ordinary course for the sale of inventory and the provision of services, there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Company of any of the assets.
3.12
Litigation. Neither the Sellers nor the Company is party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations, actual or, to the best of Sellers’ knowledge threatened, which could reasonably be expected to result in impairment or loss of the Sellers’ interests in the Purchased Stock or any Company assets. There are no claims, claims for damages, actions, causes of action, suits or proceedings by or against the Company, or affecting any of its assets, either to best of Sellers’ knowledge threatened or affecting the subject matter of this purchase and sale, nor any suits or proceedings at law or equity before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, which could reasonably be expected to adversely affect the business of the Company or the purchase and sale herein contemplated.
3.13
Subsidiaries. The Company owns any shares in those corporations or any beneficial interests in any other entities as set forth in Exhibit D.
3.14
Brokers. Neither Sellers nor Company has engaged or consulted with any advisor or broker to whom Buyer will or may become obligated to pay any consideration on or following the Closing.
3.15
Taxes. The Company has duly and timely filed all returns, elections, filings and reports in respect of income and other taxes required to be filed by it by law and all such returns, elections, filings and reports are true, complete and correct in all material respects; there are no tax arrears, including income tax, goods and services tax, employee withholdings or property tax nor any related interest or penalties owing to any foreign, federal, state, territorial or municipal tax authorities; the Sellers has no knowledge of any delinquent taxes or any actual or threatened assessment of deficiency or additional tax or other governmental charge; there has been no tax audit of the Company by any taxing or other authority within 24 months of the Closing Date, the Seller has no knowledge of any such audit currently pending or threatened and there are no tax liens on any of the assets or properties of the Company; there are no agreements, waivers, or other arrangements with any taxation authority providing for an extension of time with respect to the filing of any tax return, election or payment of any tax, governmental charges , penalty, interest or fine, by the Company; there are no actions, suits, proceedings, investigations or claims now threatened or pending (to the knowledge of the Sellers) against or affecting the Company in respect of taxes, governmental charges, penalties, interest or fines, or any matters under discussion with any governmental authority relating, to taxes, governmental charges, penalties, interest or fines asserted by any such authority.
4.
REPRESENTATIONS AND WARRANTIES BY BUYER.
As of the date hereof and as of the date of the Closing, Buyer represents and warrants as follows:
4.1
Organization and Qualification of Buyer. Buyer is duly organized, validly existing and in good standing under the laws of Delaware. Buyer has full corporate power and authority to own or lease all of its properties and assets and to conduct its business in the manner and in the places where such properties are owned and leased or such business is now conducted by it.
4.2
Authority of Buyer. This Agreement and each of the agreements and other documents and instruments delivered or to be delivered by Buyer pursuant to or in contemplation of this Agreement will constitute, when so delivered, the valid and binding obligation of Buyer and shall be enforceable in accordance with their respective terms. The execution, delivery and performance of this Agreement and each such agreement, document and instrument has been duly authorized by all necessary corporate action of Buyer and is within Buyer's corporate powers. The execution, delivery and performance of any such agreement, document or instrument by Buyer and the execution, delivery and performance of this Agreement or any other agreement, document or instrument by the Buyer does not and will not with the passage of time or the giving of notice or both:
(i)
result in a breach of or constitute a default under any indenture or loan or credit agreement or under any agreement of the Buyer, or any other material agreement, lease or instrument to which Buyer is a party or by which the property of Buyer is bound or affected;
(ii)
result in a violation of or default under any law, rule, or regulation, or any order, writ, judgment, injunction, decree, determination, award, indenture, material agreement, lease or instrument now in effect having applicability to Buyer;
(iii)
violate any provisions of the Articles of Incorporation or Bylaws of Buyer; or
(iv)
require any approval, consent or waiver of, or filing with, any entity, private or governmental, which has not been obtained.
4.3
Governmental Approvals. All requisite consents, authorizations, licenses, permits, orders, certificates and approvals of all third parties and/or governmental agencies, including without limitation any governmental agency or authority of the United States, or other jurisdiction whose approval is necessary for Buyer to consummate the transactions contemplated by this Agreement have been obtained.
4.4
Disclosure. No representation or warranty in this Article 4, and no statement contained elsewhere in this Agreement or in any schedule, exhibit, certificate or other document furnished or to be furnished by Buyer to Sellers pursuant hereto or in connection with the transactions contemplated under this Agreement contains any untrue statement of a material fact or omits or will omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading.
4.5
Purchase for Investment. Buyer hereby represents and warrants to each Seller that Buyer is acquiring the Purchased Stock for its own account, for investment, and not with a view to the distribution thereof in violation of the Securities Act of 1933 or of the State Laws. Buyer understands that the Purchased Stock have not been registered under the Securities Act of 1933 (the “Act”) or any state securities law, by reason of their sale to the Seller in transactions exempt from registration; and, that the Purchased Stock must be held by Buyer indefinitely unless a subsequent disposition thereof is registered under the Act and the state securities laws or is exempt from registration. Buyer represents and warrants to the Sellers that the sale of the Purchased Stock to it hereunder is exempt from registration under the provisions of Section 4(2) of the Act.
4.6
Capitalization. As of the Closing Date, Sellers hold a total of Fourteen Million Seven Hundred Eight Thousand One Hundred Fifty (14,708,150) shares of authorized common stock (Azioni Ordinarie) of Arteinvest, SpA and no shares authorized of preferred stock. At closing, a total of Fourty Million (40,000,000) shares of the issued and outstanding common shares will be validly issued, fully paid and non-assessable, as of the Closing Date.
5.
COVENANTS OF THE SELLERS.
The Sellers covenants and agrees as follows throughout the period from the date hereof through and including the Closing:
5.1
Restrictions. Sellers agree that they shall not do any of the following (except with the prior written consent of the Buyer):
(a)
Redeem, purchase, repurchase or retire any of the capital stock of the Company, or declare or pay any dividends or make any other payments or distribution upon any of the capital stock of the Company;
(b)
Make or permit any material change in or cease in whole or in significant part its present business;
(c)
Sell, lease, transfer or otherwise dispose of all or any material portion of its assets including, without limitation, rights to patents, knowhow, intellectual property or other intangible assets or cancel any debts or claims, except sales of inventory in the ordinary course of business or immaterial amounts of other intangible personal property not required in the business;
(d)
Make any change in the Articles of Incorporation or Bylaws of the Company;
(e)
Make any change in the authorized or issued and outstanding capital stock of the Company including any changes involving treasury shares;
(f)
Grant any options or rights to purchase any securities of the Company; in addition, Seller agrees that all outstanding options and warrants to acquire shares of Company stock shall have been exercised or cancelled prior to Closing;
(g)
Effect any dissolution, winding up, liquidation or termination of the business of the Company.
(h)
Enter into any transaction or fail to perform any act required by Sellers, or cause the Company to enter into any transaction or fail to perform any act required of Company, which could reasonably be expected to cause any representation or warranty of Sellers set forth in Article 3 to be untrue as of Closing.
5.2
Notice of Breach. To the extent Sellers obtains actual knowledge that any of the representations or warranties contained in Article 3 hereof would be incorrect in any material respect were those representations or warranties made immediately after such knowledge was obtained, Sellers shall notify Buyer in writing promptly of such fact and exercise reasonable efforts to remedy same to the extent within Sellers' control.
5.3
Access. Sellers will permit Buyer, its counsel, its auditors and its appraisers to inspect and copy all records and documents relating to the business operations of the Company that are in the Company's and Sellers' custody, care or control and shall have access to all places of their business throughout all regular business hours, provided such inspections do not unduly disrupt the conduct of business, provided, further, that Buyer shall not contact the Company's customers or suppliers without the prior written consent of Sellers, which consent shall not be unreasonably withheld or delayed.
5.4
Authorization from Others. Sellers shall use reasonable efforts to obtain all authorizations, consents and approvals of third parties or governmental agencies that may be required to permit the consummation of the transactions contemplated by this Agreement.
5.5
Consummation of Agreement. Sellers shall use reasonable efforts to satisfy all conditions to the Closing that are within Sellers' control to the end that the transactions contemplated by this Agreement shall be fully carried out.
5.7
Business Intact; Relationships with Customers and Suppliers. Sellers shall use best efforts to keep intact the business of the Company, to keep available its key employees and to maintain the goodwill of its customers, distributors and suppliers and other persons having business dealings with it.
5.8
Restrictions on Resale. Sellers acknowledge that the shares of Buyer’s common stock issued pursuant to this Agreement are restricted securities under the Securities Act of 1933, as amended and are subject to restrictions upon transfer. Currently, under Rule 144 of the Securities Act, a non-affiliate (defined as someone who is not an officer, director or holder of 10% or more of a company’s common stock) is allowed to resell shares after one (1) year, if such a sale is conducted through a market transaction. Rule 144 is subject to revision by the Commission. The certificates representing the Shares will contain a restrictive legend which reads as substantially follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR THE LAWS OF ANY STATE, AND ARE BEING ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION PERTAINING TO SUCH SECURITIES AND PURSUANT TO A REPRESENTATION BY THE SECURITY HOLDER NAMED HEREIN THAT SAID SECURITIES HAVE BEEN ACQUIRED FOR PURPOSES OF INVESTMENT AND NOT FOR PURPOSES OF DISTRIBUTION. THESE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION, OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION. THE STOCK TRANSFER AGENT HAS BEEN ORDERED TO EFFECTUATE TRANSFERS ONLY IN ACCORDANCE WITH THE ABOVE INSTRUCTIONS.
6.
COVENANTS OF SELLER AND BUYER.
6.1
Regulatory Filings. Each of the parties hereto will furnish to the other party hereto such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions to any governmental agency. Buyer and Sellers each agree to timely file any information reports, applications or notices required to be filed in connection with the transactions contemplated by this Agreement .
6.2
Consummation of Agreement. Buyer shall use its reasonable efforts to satisfy all conditions to the Closing that are within its control to the end that the transaction contemplated by this Agreement shall be fully carried out.
6.3
Authorization From Others. Buyer shall use its reasonable efforts to obtain all authorizations, consents and approvals of third parties or governmental agencies that may be required to permit the consummation of the transactions contemplated by this Agreement.
7.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER TO CLOSE.
The obligation of Buyer to acquire the Purchased Stock as contemplated hereby, and to perform its other obligations hereunder to be performed on or after the Closing, shall be subject to the fulfillment, on or prior to the Closing Date, unless otherwise waived in writing by Buyer, of the following conditions:
7.1
Representations and Warranties. The representations and warranties of Sellers set forth in Article 3 hereof shall be true and correct in all material respects on the Closing Date as if made on and as of such date, and Buyer shall have received a certificate to such effect, executed by Sellers and dated as of the Closing Date, in form satisfactory to Buyer.
7.2
Performance of Covenants. Sellers shall have performed all covenants and obligations contained in this Agreement to be performed on or prior to the Closing Date and Buyer shall have received a certificate to such effect, executed by the Sellers and dated as of the Closing Date, in form satisfactory to Buyer.
7.3
Threatened or Pending Proceedings. No proceedings shall have been initiated or threatened by any governmental department, commission, bureau, board, agency or instrumentality, foreign or domestic, or any other bona fide third party seeking to enjoin or otherwise restrain or to obtain an award for damages in connection with the consummation of the transactions contemplated hereby.
7.4
Material Adverse Change. There shall have been no material adverse change in the financial condition, results of operations, or business prospects of Company from July 1, 2007, through the Closing Date. Material adverse change shall mean any event, occurrence, condition or other change in effect which has resulted or could reasonably expected to be materially adverse to any of the following: the Company, its business, its prospects, its operations or results of operations, the condition (financial or otherwise) of the Company or any material asset.
8.
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS TO CLOSE.
The obligation of Sellers to sell the Purchased Stock as contemplated hereby, and to perform his other obligations hereunder to be performed on or after the Closing, shall be subject to the fulfillment, on or prior to the Closing Date, unless otherwise waived in writing by the Seller, of the following conditions:
8.1
Representations and Warranties. The representations and warranties of Buyer set forth in Article 4 hereof shall be true and correct in all material respects on the Closing Date as if made on and as of such date, and the Sellers shall have received a certificate to such effect, executed by the President or any Vice President of Buyer and dated as of the Closing Date, in form satisfactory to the Sellers.
8.2
Performance of Covenants. Buyer shall have performed all of its covenants and obligations contained in this Agreement to be performed on or prior to the Closing Date and the Seller shall have received a certificate to such effect, executed by the President or any Vice President of the Buyer and dated as of the Closing Date, in form satisfactory to Sellers.
8.3
Corporate Action. All corporate action necessary to authorize (i) the execution, delivery and performance by Buyer of this Agreement and any other agreements or instruments contemplated hereby to which Buyer is a party and (ii) the consummation of the transactions and performance of its other obligations contemplated hereby and thereby shall have been duly and validly taken by Buyer, and the Sellers shall have been furnished with copies of all applicable resolutions adopted by the Board of Directors of Buyer, certified by the Secretary or Assistant Secretary of Buyer.
8.4
Threatened or Pending Proceedings. No proceedings shall have been initiated or threatened by any governmental department, commission, board, bureau, agency or instrumentality, foreign or domestic, or any other bona fide third party seeking to enjoin or otherwise restrain or to obtain an award for damages in connection with the consummation of the transactions contemplated hereby.
8.5
Delivery of Certificates and Documents to Sellers. The Buyer shall have delivered, or cause to be delivered, to the Seller certificates as to the legal existence and good standing of Buyer issued by the State of Delaware and/or such other appropriate official thereof.
9.
TERMINATION OF AGREEMENT.
9.1
Termination. At any time prior to the Closing Date, this Agreement may be terminated (a) by the consent of the Buyer and Sellers, (b) by Sellers if there has been a material misrepresentation, breach of warranty or breach of covenant by Buyer in its representations, warranties and covenants set forth herein, (c) by Buyer if there has been a material misrepresentation, breach of warranty or breach of covenant by the Seller in their representations, warranties and covenants set forth herein, (d) by the Sellers if the conditions stated in Article 8 have not been satisfied at or prior to the Closing Date or (e) by Buyer if the conditions stated in Article 7 have not been satisfied at or prior to the Closing Date.
9.2
Effect of Termination. If this Agreement shall be terminated as above provided, this Agreement shall become null and void and have no effect all obligations of the parties hereunder shall terminate without liability of any party to the other; provided however, that nothing in this Section 9.2 shall prevent any party from seeking or obtaining damages or appropriate equitable relief for the breach of any representation, warranty or covenant made by any other party hereto.
9.3
Right to Proceed. Anything in this Agreement to the contrary notwithstanding, if any of the conditions specified in Article 7 hereof have not been satisfied at or prior to the Closing, Buyer, having otherwise satisfied its obligations or met conditions to Closing hereunder, shall have the right to proceed with the transactions contemplated hereby without waiving any of its rights hereunder, and if any of the conditions specified in Article 8 hereof have not been satisfied at or prior to the Closing, the Sellers, having otherwise satisfied their obligations or met conditions to Closing hereunder, shall have the right to proceed with the transactions contemplated hereby without waiving any of their rights hereunder.
9.4
Notice of Breach. To the extent Buyer obtains knowledge before the Closing Date that any of the representations or warranties contained in Article 4 hereof would be incorrect in any material respect were those representations or warranties made immediately after such knowledge was obtained, the Buyer shall notify Sellers in writing promptly of such fact and exercise its reasonable efforts to remedy same to the extent within Buyer's control. To the extent Seller obtains knowledge before the Closing Date that any of the representations or warranties contained in Article 3 hereof would be incorrect in any material respect were those representations or warranties made immediately after such knowledge was obtained, the Sellers shall notify Buyer in writing promptly of such fact and exercise its reasonable efforts to remedy same to the extent within Seller's control.
10.
RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING.
10.1
Survival of Representations and Warranties. All representations, warranties, covenants and obligations herein shall be deemed to have been relied upon by the other party, and shall survive the execution and delivery of this Agreement for a period of one (1) year from the date of Closing, except for any covenant or obligation that, by its terms, is to be performed subsequent to such date.
10.2
Further Assurances. From time to time after the Closing and without further consideration, the parties will execute and deliver, or arrange for the execution and delivery of such other instruments of conveyance and transfer and take such other action or arrange for such other actions as may reasonably be requested to more effectively complete any of the transactions provided for in this Agreement or any document annexed hereto.
11.
INDEMNIFICATION.
11.1
Indemnification by the Sellers. The Sellers hereby agrees to defend, indemnify and hold Buyer, the Company and their respective officers, directors, shareholders, employees, agents, attorneys and representatives, harmless from and against any damages, liabilities, losses and expenses (including, without limitation, reasonable attorneys' fees) which may be sustained or suffered by Buyer or Company arising out of, based upon, or by reason of a material breach of any representation or warranty, or a failure to perform any agreement or covenant made by the Seller in this Agreement.
11.2
Indemnification by the Buyer. The Buyer hereby agrees to defend, indemnify and hold the Sellers and his employees, agents, attorneys, and representatives, harmless from and against any damages, liabilities, losses and expenses (including, without limitation, reasonable attorneys' fees) which may be sustained or suffered by the Sellers arising out of, based upon, or by reason of a material breach of any representation or warranty, or a failure to perform any agreement or covenant, made by the Buyer in this Agreement or in any exhibit, schedule, certificate or financial statement delivered hereunder, or arising out of, based upon, or by reason of any claim, action or proceeding asserted or instituted growing out of any such materially breached representations, warranties or covenants.
11.3 Notice; Defense of Claims. Each party to this Agreement shall give prompt written notice to the other party or parties to this Agreement under each claim for indemnification hereunder specifying the amount and nature of the claim, and of any matter which is likely to give rise to an indemnification claim. Each party to this Agreement has the right to participate at its own expense in the defense of any such matter or its settlement, or the indemnified party may direct the indemnifying party to take over the defense of such matter so long as such defense is expeditious. Failure to give timely notice of a matter which may give rise to an indemnification claim shall not affect the rights of the indemnified party to collect such claims from the indemnifying party so long as such failure to so notify does not materially adversely affect the indemnifying party's ability to defend such claim against a third party. No indemnifying party, in the defense of any claim or litigation shall, except with the consent of an indemnified party, which consent shall not be unreasonably withheld or delayed, consent to entry of any judgment or enter into any settlement by which such indemnified party is to be bound and which judgment or settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
12.
NONDISCLOSURE COVENANTS.
12.1
Disclosure of Information. It is understood that the business of Company is of a confidential nature. Prior to the date hereof the Company may have revealed and on or after the date hereof the Company may reveal to the Seller confidential information concerning Company or any of Company's affiliates or subsidiaries which, if known to competitors thereof, would damage Company or its said affiliates or subsidiaries. The Sellers agree that they will not knowingly divulge or appropriate to his own use, or to the use of any third party, any secret or confidential information or knowledge obtained by them concerning Company or its subsidiaries or affiliates, including, but not limited to, information pertaining to methods, processes, designs, equipment, catalogs, customer lists and operating procedures. The restrictions contained in this paragraph against disclosing or using confidential information shall not apply to information which is in the public domain other than by reason of Seller's breach of this Agreement or to information previously disclosed by Sellers or the Company to prospective purchasers of the Company, which prospective purchasers have executed and delivered nondisclosure agreements to the Company. Sellers represents that such confidentiality agreements are contracts between the Company and such prospective buyers and that they provide in pertinent part for inter alia: a prohibition on the prospective Buyer's use or disclosure of such confidential information, a return (except for one certain prospective buyer) of the confidential material at the Company's request, and a prohibition on solicitation of the Company's employees for a period of two (2) years after the date of execution of the confidentiality agreement.
13.
MISCELLANEOUS.
13.1
Taxes. Any taxes in the nature of sales or transfer tax and any stock transfer tax, payable on the sale or transfer of all or any portion of the Purchased Stock or the consummation of any other transaction contemplated hereby shall be paid by Sellers.
13.2
Assignability. Neither this Agreement nor any rights or obligations hereunder, are assignable by Sellers or the Company. The rights of Buyer under this Agreement are assignable in part or wholly to any company controlled by, controlling or under common control with Buyer, and any assignee of Buyer shall succeed to and be possessed of the rights of Buyer hereunder to the extent of the assignment made; provided, however, that and such assignment by Buyer shall not relieve Buyer of its obligations hereunder.
13.4
Section Headings. The Section and paragraph headings in this Agreement are for convenience of reference only and shall not be deemed to alter or affect provisions thereof. All Exhibits and/or Schedules hereto shall be initialed for identification or may be physically annexed hereto, but in either event such Exhibits or Schedules shall be deemed to be a part hereof.
13.5
Waiver. Neither the failure nor any delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, or of any other right, power or remedy or preclude any further or other exercise thereof, or the exercise of any other right, power or remedy.
13.6
Expenses. Buyer and Sellers shall pay the fees and expenses of their respective accountants and legal counsel incurred in connection with the transactions contemplated by this Agreement. Buyer acknowledges that it has paid certain expenses for the financial statements and for corporate legal work during the period of the negotiations for this Agreement. Sellers acknowledges that legal fees incurred by the Sellers in connection with this Purchase and Sale Agreement are the personal expenses of individual Sellers.
13.7
Notices. Any notices required or permitted to be given hereunder shall be given in writing and delivered in person or sent certified mail, postage prepaid, return receipt requested, to the respective parties at their addresses set forth above or at such other addresses as may hereinafter be designated by such party in writing to other parties.
13.8
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed in that state, without regard to any of its principles of conflicts of laws or other laws that would result in the application of the laws of another jurisdiction. This Agreement shall be construed and interpreted without regard to any presumption against the party causing this Agreement to be drafted. Each of the parties unconditionally and irrevocably consents to the exclusive jurisdiction of the courts of the State of Delaware and the Federal district court for the Delaware with respect to any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and each of the parties hereby unconditionally and irrevocably waives any objection to venue in any such court.
13.9
Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the transaction contemplated herein and shall not be modified or amended except by an instrument in writing signed by the parties hereto.
13.10 Validity. The invalidity or unenforceability of any particular provision of this Agreement shall not affect any other provisions hereof, and this Agreement shall be construed in all other respects as if such invalid and unenforceable provisions were omitted.
13.11 Intentionally Omitted.
13.12 Counterparts. This Agreement may be signed in any number of counterparts each of which shall be deemed to be an original and all of which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, we have set our hands and seals as of the date first above written.
BUYER:
Arte Invest Corporation
By: _______________________________
SELLERS:
Diamond Financial Corporation, Ltd
By:_______________________
______________________
Xxxxxx Xxxxxxx
Co.Ge.S.Fin., Ltd.
Arteinvet, SPA
By:__________________
By:___________________
ARTE INVEST STOCK PURCHASE AGREEMENT - 1
