STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Bio-Aqua Agreement") is entered
into by and among BIO-AQUA SYSTEMS, INC., a Florida corporation ("Bio-Aqua") and
FLAGSHIP IMPORT EXPORT CORPORATION, a Bahamian corporation, which is wholly
owned and controlled, directly or indirectly by Xxx Xxxxxx, an individual
currently residing in Santiago, Chile (collectively "Flagship") and which owns
8,573 shares of TEPUAL, S.A., a Chilean corporation ("Tepual"), as of the 15th
day of June, 1999, but which Bio-Aqua Agreement shall be effective as of the
effective date of the registration statement on Form SB-2 as filed by Bio-Aqua
with the Securities and Exchange Commission ("Effective Date"). (Bio-Aqua,
Flagship, and Tepual sometimes individually referred to as "Party" and
collectively as "Parties").
RECITALS
A. Bio-Aqua is a corporation duly organized and existing under the laws
of the State of Florida and located in Palm Beach County, Florida, having been
incorporated March 18, 1999 and having authorized capital stock consisting of
twenty-two million (22,000,000) shares of Common Stock par value $.0001, of
which Twenty Million (20,000,000) shares are designated as Class A Voting Common
Stock and Two Million (2,000,000) shares are designated as Class B Voting Common
Stock ("Class B Common Stock")
B. Flagship wishes to purchase 1,529,910 shares of Class B Common Stock
for $3,185,703, pursuant to the terms and conditions of this Bio-Aqua Agreement.
C. The laws of the State of Florida and the Country of Chile permit
Flagship to purchase the shares of Class B Common Stock for $3,185,703, subject
to the terms and conditions set forth in this Bio-Aqua Agreement.
D. Contemporaneously with the execution of this Bio-Aqua Agreement,
Bio- Aqua shall enter into a stock purchase agreement ("Flagship Agreement")
with Flagship whereby as of the Effective Date, Bio-Aqua shall purchase 8,558
shares of Tepual which are owned by Flagship (the "Tepual Shares") for
$3,185,703, which Flagship Agreement shall be in substantially the same form as
this Bio-Aqua Agreement, and which Flagship Agreement is attached hereto as
Exhibit A.
E. The Parties acknowledge and agree that the sole purpose for entering
into the Bio-Aqua Agreement and the Flagship Agreement in this manner is to
comply with the rules and regulations governing foreign investments in Chile, as
promulgated by the Central Bank of Chile and but for these requirements, the
Parties would have entered into a share exchange agreement whereby Bio-Aqua
would have exchanged 1,529,910 shares
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of Class B Common Stock for 8,558 Tepual Shares. It is the Parties' intention
that the Bio- Aqua Agreement and the Flagship Agreement be effective
contemporaneously as of the Effective Date.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants herein contained, as of the "Effective Date," as
hereinafter defined, it is agreed that Flagship shall purchase the shares of
Class B Common Stock for $3,185,703, subject to the terms and conditions set
forth and the mode of carrying it into effect are and shall be as follows:
1. Recitals. The above recitals are true, correct and are herein
incorporated by reference.
2. Purchase of Shares.
(a) Bio-Aqua hereby agrees to transfer to Flagship at the
closing referred to in Section 3 below the 1,529,910 shares of Class B Common
Stock for $3,185,703, and Bio-Aqua agrees to deliver to Flagship a certificate
representing the 1,529,910 shares of Class B Common Stock. All certificates to
be delivered at the closing by the parties hereto shall be in negotiable form,
subject to any lock-up agreements and other restrictions pursuant to Federal and
state securities laws and contractual agreements with certain persons and
Bio-Aqua's representative of the underwriters, including but not limited to,
Rule 144 of the Securities Act of 1933, as amended or as applicable.
(b) Notwithstanding anything else to the contrary contained
herein, contemporaneously with the closing contemplated herein, Bio-Aqua and
Flagship shall enter into the Flagship Agreement.
3. Closing Date. The "Closing Date" shall be the effective date of
Bio-Aqua's registration statement on Form SB-2 filed with the Securities and
Exchange Commission.
4. Representations of Bio-Aqua. Bio-Aqua hereby represents and
warrants that:
(a) Bio-Aqua is validly organized, existing and in good
standing under the laws of the State of Florida. Upon information and belief,
there are no outstanding options, contracts, calls, commitments or demands of
any character relating to the authorized but unissued stock of Bio-Aqua.
(b) The shares of Class B Common Stock to be sold at the
closing are validly issued, fully paid and non-assessable.
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(c) Except as otherwise previously disclosed to Flagship by
Bio-Aqua, there has been no material adverse change in the condition of Bio-Aqua
since the date of the financial statements previously provided to Flagship. To
the best of Bio-Aqua's knowledge, the only changes in the financial condition of
Bio-Aqua since said date are those arising from the normal and regular conduct
of the business of Bio-Aqua.
(d) Except as otherwise previously disclosed to Flagship by
Bio-Aqua, to the best of Bio-Aqua's knowledge, there is no litigation,
governmental proceeding or investigation threatened or in prospect against
Bio-Aqua or relating to any of the interest to be transferred hereunder which
could materially affect Bio-Aqua.
(e) Except as otherwise previously disclosed to Flagship by
Bio-Aqua, to the best of Bio-Aqua's knowledge, Bio-Aqua has no bonus, deferred
compensation, profit-sharing, pension or retirement arrangements, whether or not
legally binding, nor is it presently paying any pension, deferred compensation
or retirement allowance which has not otherwise been disclosed to Flagship.
(f) The statements made and information given to Flagship
concerning Bio-Aqua and the transactions covered by this Agreement are true and
accurate and no material fact has been withheld from Flagship.
(g) Bio-Aqua has no knowledge of any developments or
threatened developments of a nature that would be materially adverse to the
business of Bio-Aqua.
(h) Subject to the lock-up requirements previously discussed
to Flagship and as set forth in the Registration Statement, the shares of Class
B Common Stock to be transferred by Bio-Aqua to Flagship hereunder are free and
clear of all voting trusts, agreements, arrangements, encumbrances, liens,
claims, equities and liabilities of every nature and Bio-Aqua is conveying clear
and unencumbered title thereto to Flagship.
(i) There are no agreements to which Bio-Aqua is a party nor
does Bio- Aqua know of any other agreements that in any way materially restrict
or impinge upon the business of Bio-Aqua or the benefit of which Bio-Aqua
requires or presently has in its business.
5. Representations of Flagship. Flagship hereby makes the following
representations and warranties to Bio-Aqua, each of which is true as of the date
hereof and will be true as of the Closing Date with the same effect as though
such representations and warranties had been made on the Closing Date:
(a) Flagship is a corporation duly organized and existing
under and by virtue of the laws of the Country of Bahamas, and is in good
standing under the laws thereof.
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(b) The execution and delivery of this Agreement by Flagship
and the performance by Flagship of its covenants and undertakings hereunder have
been duly authorized by all requisite corporate action, and Flagship has the
corporate power and authority to enter into this Agreement and to perform the
covenants and undertakings to be performed by it hereunder.
(c) Neither the execution nor the delivery of this Agreement,
nor the consummation of the transaction herein contemplated, nor compliance with
the terms hereof, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Articles of Incorporation or the Bylaws of
Bio-Aqua as amended, or any agreement or instrument to which Flagship is now a
party.
(d) Flagship is acquiring Bio-Aqua's stock for its own account
and for investment and not with the view to the distribution or resale of any
thereof.
6. Investment Purpose. Flagship represents that it is acquiring the
shares of Bio-Aqua Common Stock to be delivered at the closing solely for
investment and not for distribution or resale.
7. Notices. Any notice or communication necessary or desirable
hereunder shall be considered sufficient and delivery thereof shall be deemed
complete if delivered in person or mailed by registered mail on the part of
Bio-Aqua to:
Bio-Aqua Systems, Inc.
c/o Andean Development Corporation
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
and to Xxx Xxxxxx, as follows:
Bio-Aqua Systems, Inc.
General Xxxxxx 000
Xxxxxxxx, Xxxxx
Attn: Xxx Xxxxxx
and to Flagship as follows:
Flagship Import Export Corporation
General Xxxxxx 000
Xxxxxxxx, Xxxxx
Attn: Xxx Xxxxxx
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or to such other address as either party may hereafter specify in writing as his
or its own address to the other party.
8. Entire Agreement. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings of the parties in
connection herewith.
9. Severability. Flagship and Bio-Aqua hereby agree and affirm that
none of the above provisions is dependent on the validity of any other provision
and invalidity as to any provision or any part thereof shall not affect any
other provision.
10. Governing Law. This Agreement shall be governed by the laws of the
State of Florida. Venue shall be Broward County, Florida.
11. Counterpart. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
BIO-AQUA SYSTEMS, INC.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
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Its: CEO
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FLAGSHIP IMPORT EXPORT CORPORATION
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
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Its: CEO and Sole Shareholder
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