EXHIBIT 2.5
STOCK PURCHASE AGREEMENT BETWEEN RUBY MINING COMPANY AND
NOVA MARINE EXPLORATION, INC.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of December 21, 2004,
by and between NOVA MARINE EXPLORATION, INC., a Washington corporation (the
"Company") and RUBY MINING COMPANY, a Colorado corporation ("Ruby").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Common Stock. Subject to the terms and conditions
of this Agreement, Ruby agrees to purchase at the Closing (as defined
below), and the Company agrees to sell and issue to Ruby at the
Closing the following:
As per the "Memorandum of Terms for the Sale of Non Voting Common Stock"
dated October 21, 2004:
1,050,000 shares of Ruby Stock and $1,500,000 (less brokerage fees up to
10%) for 350,000 shares of Nova Marine Exploration, Inc. non-voting common
stock representing 25% of the Company's Common Stock outstanding on the
date of the Closing (as defined below), assuming the issuance of the
Initial Shares and including only shares of the Company's Common Stock that
are actually issued and outstanding (excluding shares issuable upon
exercise of outstanding options, warrants and other convertible Nova
Shares), in multiple closings starting October 25, 2004 and ending April
30, 2005 unless extended by mutual consent by the Company and Ruby.
This stock sale agreement can commence with the exchange of stock from Ruby
(1,050,000 shares) for 10% of Nova Marine Common Stock (140,000 non-voting
shares). The remaining shares (210,000 non-voting common stock) of Nova
Marine will be exchanged for the cash ($1,500,000 less brokerage fees up to
10%) in multiple closings as listed above.
1.2 Closing. Subject to the terms and conditions of this Agreement, the
purchase and sale of the Nova Shares shall take place at a closing (the
"Closing") to be held at the offices of the Company at 00000 XX 000xx Xx Xxxxx X
Xxxxxxxx Xxxxxxxxxx 00000, on or before 10:00 A.M. Pacific time, on December 21,
2004, or at such other time and place as the Company and Ruby mutually agree
upon in writing. At the Closing, the Company shall deliver to Ruby: a
certificate representing the Nova Shares that Ruby is purchasing pursuant to the
terms hereof and the other documents listed in Section 4 of this Agreement. At
the Closing, Ruby shall deliver to the Company a certificate representing the
Ruby Shares and the other documents listed in Section 5 of this Agreement.
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2. Representations and Warranties of the Company. The Company hereby represents
and warrants to Ruby that, except as set forth on a Schedule of Exceptions (the
"Schedule of Exceptions") furnished to Ruby on or prior to entering into this
Agreement, which exceptions shall qualify the representation and warranty that
has the corresponding number as the numbered paragraph in the Schedule of
Exceptions, and which representations and warranties so qualified shall be
deemed to be representations and warranties as if made hereunder, as of the date
hereof and as of the date of Closing:
2.1 Organization and Qualification; Subsidiaries. (a) Each of the Company
and each subsidiary of the Company (each a "Subsidiary") is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the requisite corporate power and
authority and all necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted, except
where the failure to be so organized, existing or in good standing or to have
such power, authority and governmental approvals would not, individually or in
the aggregate, have a Material Adverse Effect (as defined below). Each of the
Company and each Subsidiary is duly qualified or licensed as a foreign
corporation to do business, and is in good standing, in each jurisdiction where
the character of the properties owned, leased or operated by it or the nature of
its business makes such qualification or licensing necessary, except for such
failures to be so qualified or licensed and in good standing that would not,
individually or in the aggregate, have a Material Adverse Effect. "Material
Adverse Effect" means any event, circumstance, change or effect that,
individually or in the aggregate with all other events, circumstances, changes
and effects, is or is reasonably likely to be materially adverse to the
business, condition (financial or otherwise), assets, liabilities or results of
operations of the Company and the Subsidiaries taken as a whole.
(b) A true and complete list of all the Subsidiaries, together with
the jurisdiction of incorporation of each Subsidiary, is set forth in Section
2.1(b) of the Schedule of Exceptions. Each Subsidiary is a wholly-owned
subsidiary of the Company. Except as disclosed in Section 2.1(b) of the Schedule
of Exceptions, the Company does not directly or indirectly own any equity or
similar interest in, or any interest convertible into or exchangeable or
exercisable for any equity or similar interest in, any corporation, partnership,
joint venture or other business association or entity.
2.2 Certificate of Incorporation and By-laws. The Company has heretofore
made available to Ruby a complete and correct copy of the Certificate of
Incorporation and the By-laws, each as amended to date, of the Company. Such
Certificate of Incorporation and By-laws are in full force and effect. The
Company is not in violation of any of the provisions of its Certificate of
Incorporation or By-laws.
2.3 Capitalization. (a) The authorized capital stock of the Company
consists of (i) 2,000,000 shares of Voting Common Stock, no par value ("Voting
Common") (ii) 1,000,000 shares of Non-Voting Common Stock, no par value
("Non-Voting Common") and (iii) 0 shares of preferred stock, ("Preferred
Stock"). As of December 20, 2004, (i)1,050,000 shares of Voting Common are
issued and outstanding, all of which are validly issued, fully paid and
nonassessable, (ii) 0 shares of Non-Voting Common are issued and outstanding,
all of which are validly issued, fully paid and nonassessable, (iii) 0 shares of
Preferred Stock are issued and outstanding, all of which are validly issued,
fully paid and nonassessable, (iv) no shares of the Company's Common Stock are
held in the treasury of the Company, (v) no shares of the Company's Common Stock
are held by the Subsidiaries, and (vi) 0 shares of the Company's Common Stock
are reserved for future issuance pursuant to outstanding warrants, stock options
and convertible instruments. Except as set forth in this Section 2.3, there are
no options, warrants or other rights, agreements,
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arrangements or commitments of any character relating to the issued or un-issued
capital stock of the Company or any Subsidiary or obligating the Company or any
Subsidiary to issue or sell any shares of capital stock of, or other equity
interests in, the Company or any Subsidiary. All shares of the Company's Common
Stock subject to issuance as aforesaid, upon issuance on the terms and
conditions specified in the instruments pursuant to which they are issuable,
will be duly authorized, validly issued, fully paid and nonassessable. There are
no outstanding contractual obligations of the Company or any Subsidiary to
repurchase, redeem or otherwise acquire any shares of the Company's Common Stock
or any capital stock of any Subsidiary or to provide funds to, or make any
investment (in the form of a loan, capital contribution or otherwise) in, any
Subsidiary or any other person. All outstanding shares of the Company's Common
Stock, all outstanding stock options to purchase Common Stock, and all
outstanding shares of capital stock of each subsidiary of the Company have been
issued and granted in compliance with (i) all applicable U.S. securities laws,
(ii) all applicable non-U.S. securities laws, (iii) all other applicable Laws
(as defined below) and (iv) all requirements set forth in applicable contracts,
except in the case of clause (ii), (iii) or (iv) to the extent that any such
noncompliance would not result in a Material Adverse Effect.
(b) Each outstanding share of capital stock of each Subsidiary is duly
authorized, validly issued, fully paid and nonassessable, and each such share is
owned by the Company or another Subsidiary free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal, agreements,
limitations on the Company's or any Subsidiary's voting rights, charges and
other encumbrances of any nature whatsoever.
2.4 Authority Relative to This Agreement. The Company has all necessary
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the transactions
contemplated hereby or thereby. The execution and delivery of this Agreement by
the Company and the consummation by the Company of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action,
and no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by the Company
and, assuming the due authorization, execution and delivery by the Company,
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting creditors' rights generally and subject to the effect of general
principles of equity (regardless of whether considered in a proceeding at law or
in equity). The Company's Board of Directors (the "Company Board") has approved
this Agreement and shareholder approval by the Company either is not required or
has been obtained.
2.5 No Conflict; Required Filings and Consents. (a) The execution and
delivery of this Agreement by the Company does not, and the performance of this
Agreement by the Company will not, (i) conflict with or violate the Certificate
of Incorporation or By-laws of the Company, (ii) conflict with or violate any
United States statute, law, ordinance, regulation, rule, code, executive order,
injunction, judgment, decree or other order ("Law") applicable to the Company or
any Subsidiary or by which any property or asset of the Company or any
Subsidiary is bound or affected, or (iii) result in any breach of or constitute
a default (or an event which, with notice or lapse of time or both, would become
a default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of the Company or any Subsidiary pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation, except, with respect to
clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults
or other occurrences which would not, individually or in the aggregate, have a
Material Adverse Effect.
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(b) The execution and delivery of this Agreement by the Company does
not, and the performance of this Agreement by the Company will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any United States federal, state, county or local or non-United States
government, governmental, regulatory or administrative authority, agency,
instrumentality or commission or any court, tribunal, or judicial or arbitral
body (a "Governmental Authority"), other than any filings necessary to comply
with state Nova Shares or "blue sky" laws.
2.6 Permits; Compliance. Each of the Company and the Subsidiaries is in
possession of all franchises, grants, authorizations, licenses, permits,
easements, variances, exceptions, consents, certificates, approvals and orders
of any Governmental Authority necessary for each of the Company or the
Subsidiaries to own, lease and operate its properties or to carry on its
business as it is now being conducted (the "Company Permits"), except where the
failure to have, or the suspension or cancellation of, any of the Company
Permits would not, individually or in the aggregate, have a Material Adverse
Effect. No suspension or cancellation of any of the Company Permits is pending
or, to the knowledge of the Company, threatened, except where the failure to
have, or the suspension or cancellation of, any of the Company Permits would
not, individually or in the aggregate, have a Material Adverse Effect. Neither
the Company nor any Subsidiary is in conflict with, or in default, breach or
violation of, (a) any Law applicable to the Company or any Subsidiary or by
which any property or asset of the Company or any Subsidiary is bound or
affected, or (b) any note, bond, mortgage, indenture, contract, agreement,
lease, license, Company Permit, franchise or other instrument or obligation to
which the Company or any Subsidiary is a party or by which the Company or any
Subsidiary or any property or asset of the Company or any Subsidiary is bound,
except for any such conflicts, defaults, breaches or violations that would not,
individually or in the aggregate, have a Material Adverse Effect.
2.7 Financial Statements. Attached hereto as EXHIBIT A and incorporated
herein by reference are the Company's consolidated financial statements for the
periods referenced therein (the "Company Financial Statements"). (a) The Company
Financial Statements were prepared in accordance with United States generally
accepted accounting principles("GAAP")applied on a consistent basis throughout
the periods indicated (except as may be indicated in the notes thereto) and each
fairly presents, in all material respects, the consolidated financial position,
results of operations and cash flows of the Company and its consolidated
Subsidiaries as at the respective dates thereof and for the respective periods
indicated therein , except as otherwise noted therein (subject, in the case of
un-audited statements, to normal and recurring year-end adjustments which would
not have had, and would not have, individually or in the aggregate, a Material
Adverse Effect) and for pro forma financial information disclosed therein.
(b) Except as and to the extent set forth on the consolidated balance
sheet of the Company and the consolidated Subsidiaries as of December 21, 2004,
including the notes thereto, neither the Company nor any Subsidiary has any
liability or obligation of any nature (whether accrued, absolute, contingent or
otherwise), except for liabilities and obligations, incurred in the ordinary
course of business consistent with past practice since that date.
2.8 Absence of Certain Changes or Events. Since September 30, 2004, except
as set forth in Section 2.8 of the Schedule of Exceptions, or as expressly
contemplated by this Agreement,(a) the Company and the Subsidiaries have
conducted their businesses only in the ordinary course and in a manner
consistent with past practice and (b) there has not been any Material Adverse
Effect.
2.9 Absence of Litigation. Except as set forth in Section 2.9 of the
Schedule of Exceptions, there is no litigation, suit, claim, action, proceeding
or investigation (an "Action") pending or, to the knowledge of the Company,
threatened against the Company or any Subsidiary, or any
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property or asset of the Company or any Subsidiary, before any Governmental
Authority that, individually or in the aggregate, has had or would have a
Material Adverse Effect. Neither the Company nor any Subsidiary nor any material
property or asset of the Company or any Subsidiary is subject to any continuing
order of, consent decree, settlement agreement or other similar written
agreement with, or, to the knowledge of the Company, continuing investigation
by, any Governmental Authority, or any order, writ, judgment, injunction,
decree, determination or award of any Governmental Authority that would,
individually or in the aggregate, have a Material Adverse Effect.
2.10 Valid Issuance of Nova Shares. The Nova Shares that are being
purchased by Ruby hereunder, when issued, sold and delivered in accordance with
the terms of this Agreement for the consideration expressed herein, will be duly
authorized, validly issued, fully paid and nonassessable.
2.11 Intellectual Property Rights. Except as set forth in Section 2.11 of
the Schedule of Exceptions, each of the Company and its subsidiaries (i) owns or
possesses adequate licenses or other rights to use all patents, trademarks,
service marks, trade names, copyrights, technology, software, know-how and trade
secrets (collectively, "Intellectual Property") necessary to conduct the
business now conducted by the Company and its Subsidiaries. Except as disclosed
in said Schedule, neither the Company nor any of its Subsidiaries has received
any notice of infringement of or conflict with and knows of no such infringement
of or conflict with, asserted rights of others with respect to any Intellectual
Property that would have a Material Adverse Effect, and, to the Company's
knowledge, the discoveries, inventions, products, services or processes used in
the business of the Company and its Subsidiaries do not infringe or conflict
with any right or patent of any third party, or any discovery, invention,
product or process which is the subject of a patent application filed by any
third party in a manner that would have a Material Adverse Effect.
2.12 Brokerage. Except for commission schedules related to the Memorandum
of Terms for the Sale of Non Voting Common Stock Agreement dated October 21,
2004, there are no claims for brokerage commissions, finders' fees or similar
compensation in connection with the transactions contemplated by this Agreement
for which Ruby will have any liability or responsibility based on any
arrangement or agreement binding upon the Company or any of its subsidiaries.
2.13 Disclosure. (a) The Company is not aware of any facts pertaining to
the Company or its Subsidiaries which could have a Material Adverse Effect and
which have not been disclosed in this Agreement, the Schedule of Exceptions or
otherwise disclosed to Ruby by the Company in writing.
(b) No representation or warranty of the Company in this Agreement,
when taken in conjunction with all the information provided or made available by
the Company to Ruby in connection with the transactions contemplated by this
Agreement, taken as a whole, contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact necessary to make
the statements contained herein or therein not misleading.
2.14 Agreements, Contracts and Commitments. Except as identified in the
Schedule of Exceptions, during the past 12 months, neither the Company nor any
of its Subsidiaries has breached, violated or defaulted under, or received
notice that it has breached, violated or defaulted under, nor is a breach,
violation, or default continuing under, any Material Contract (as defined below)
to which the Company or any Subsidiary is a party or by which its is bound.
"Material Contract" means:
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(a) any agreement, contract or commitment containing any covenant
limiting the freedom of the Company or any of its Subsidiaries to engage in any
material line of business or compete with any person in any material line of
business; or
(b) any "material contract" (as such term is defined in Item
601(b)(10) of Regulation S-K of the Nova Shares and Exchange Commission) with
respect to the Company and its Subsidiaries.
2.15 Restricted Ruby Shares. The Company understands that the Ruby Share
will be "restricted securities" under the federal securities laws inasmuch as
they are being acquired from Ruby in a transaction not involving a public
offering and that under such laws and applicable regulations such Ruby Shares
may be resold without registration under the Securities Act, only in certain
limited circumstances. In this connection, the Company represents that it is
familiar with Rule 144 under the Securities Act, as presently in effect ("Rule
144"), and understands the resale limitations imposed thereby and by the
Securities Act.
2.16 Legends. It is understood that the certificates evidencing the Ruby
Shares may bear the following legend or one similar in substance:
"These securities have not been registered under the Securities Act of
1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with respect
to these securities under such Act or an opinion of counsel satisfactory to the
Company that such registration is not required or unless sold pursuant to Rule
144 of such Act."
3. Representations and Warranties of Ruby. Ruby hereby represents and warrants
that:
3.1 Organization and Qualification. Ruby is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization.
3.2 Authority Relative to This Agreement. Ruby has all necessary corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Ruby and the consummation by
Ruby of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action, and no other corporate proceedings
on the part of Ruby are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement and has been duly and
validly executed and delivered by Ruby and, assuming the due authorization,
execution and delivery by Ruby, constitutes a legal, valid and binding
obligation of Ruby, enforceable against Ruby in accordance with its terms
subject to the effect of any applicable bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting creditors' rights generally and subject to
the effect of general principles of equity (regardless of whether considered in
a proceeding at law or in equity). Ruby's Board of Directors has approved this
Agreement and the transactions contemplated hereby.
3.3 No Conflict; Required Filings and Consents. (a) The execution and
delivery of this Agreement and by Ruby does not, and the performance of this
Agreement and by Ruby will not, (i) conflict with or violate the organizational
documents of Ruby or (ii) conflict with or violate any Law applicable to Ruby.
(b) The execution and delivery of this Agreement by Ruby does not, and
the performance of this Agreement by Ruby will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental Authority other than filings with the SEC, which Ruby hereby
undertakes to timely make.
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3.4 Brokerage. There are no claims for brokerage commissions, finders' fees
or similar compensation in connection with the transactions contemplated by this
Agreement for which Ruby will have any liability or responsibility based on any
arrangement or agreement binding upon Ruby or any of its subsidiaries.
3.5 Purchase Entirely for Own Account. This Agreement is made with the
Company in reliance upon Ruby's representation to the Company, which, by Ruby's
execution of this Agreement, Ruby hereby confirms, that Ruby is a sophisticated
investor within the meaning of Section 4(2) of the Securities Act of 1933, as
amended (the "Securities Act") and accompanying regulations and interpretations,
that the Nova Shares are being acquired for investment for Ruby's own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof, and that Ruby has no present intention of selling, granting
any participation in, or otherwise distributing the same other than in a
transaction registered under the Nova Shares Act or exempt from, or not subject
to, such registration. By executing this Agreement, Ruby further represents that
Ruby does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any third
person, with respect to any of the Nova Shares.
3.6 Disclosure of Information. Ruby has been afforded access to such
information as it has requested regarding the Company and its Subsidiaries and
their respective financial condition, operating results, properties,
liabilities, operations and management.
3.7 Restricted Nova Shares. Ruby understands that the Nova Shares it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act, only in certain limited circumstances. In this connection,
Ruby represents that it is familiar with Rule 144 under the Securities Act, as
presently in effect ("Rule 144"), and understands the resale limitations imposed
thereby and by the Securities Act.
3.8 Legends. It is understood that the certificates evidencing the Nova
Shares may bear one or all of the following legend(s):
"These securities have not been registered under the Securities Act of
1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with respect
to these securities under such Act or an opinion of counsel satisfactory to the
Company that such registration is not required or unless sold pursuant to Rule
144 of such Act."
4. Conditions of Ruby to Affect the Closing. The obligations of Ruby to
consummate the transactions contemplated hereby are subject to the fulfillment
or waiver (where permissible) on or before the Closing of each of the following
conditions:
4.1 Representations and Warranties. All of the representations and
warranties of the Company contained in Section 2 shall be true and correct as of
the date hereof and as of the date of the Closing with the same effect as though
such representations and warranties had been made on and as of the date of such
Closing.
4.2 Performance. The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
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4.3 Compliance Certificate. The President of the Company shall have
delivered to Ruby at the Closing a certificate stating that the conditions
specified in Sections 4.1 and 4.2 have been fulfilled. In addition, the
Compliance Certificate shall state the number of shares of the outstanding
Common Stock of the Company immediately prior to the Closing.
4.4 Incumbency Certificate. The certificate of the Secretary of the Company
certifying the names and signatures of the officers of the Company authorized to
sign this Agreement and the other Transaction Agreements and all other documents
to be delivered hereunder and thereunder.
4.5 Qualifications. All authorizations, approvals, or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Nova Shares to Ruby pursuant to this Agreement shall have been duly obtained and
effective as of the Closing.
4.6 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents incident
to the Closing shall be reasonably satisfactory in form and substance to Ruby's
counsel, and they shall have received all such counterpart original and
certified or other copies of such documents as they may reasonably request.
4.7 No Material Adverse Effect. No event or events shall have occurred, or
be reasonably likely to occur, which individually or in the aggregate, have or
could have, a Material Adverse Effect.
5. Conditions of the Company to Affect the Closing. The obligations of the
Company to consummate the transactions contemplated hereby are subject to the
fulfillment or waiver (where permissible) on or before the Closing of each of
the following conditions:
5.1 Representations and Warranties. All of the representations and
warranties of Ruby contained in Section 3 shall be true and correct as of the
date hereof and as of the date of Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
5.2 Performance. Ruby shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.3 Compliance Certificate. An authorized officer of Ruby shall have
delivered to the Company at the Closing a certificate stating that the
conditions specified in Sections 5.1 and 5.2 have been fulfilled.
5.4 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the hereby and all documents
incident to the Closing shall be reasonably satisfactory in form and substance
to the Company's counsel, and they shall have received all such counterpart
original and certified or other copies of such documents as they may reasonably
request.
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6. Miscellaneous.
6.1 Survival of Representations, Warranties and Other Agreements. The
representations, warranties and other agreements of each of the Company and
Ruby, respectively, included shall survive the execution and delivery of this
Agreement and the Closing and shall in no way be affected by any investigation
of the subject matter thereof made by or on behalf of the Company or Ruby.
6.2 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including transferees
of any Nova Shares). Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
6.3 Governing Law; Venue. This Agreement shall be governed by and construed
under the laws of the State of Washington as applied to agreements executed in
and to be performed entirely within Washington.
6.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
6.6 Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties given in
accordance with this Section 6.6.
6.7 Expenses. Irrespective of whether the Closing is effected, each party
shall pay all of the costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, that it incurs
with respect to the negotiation, execution, delivery and performance of this
Agreement.
6.8 Amendments and Waivers. Any term of this Agreement may be amended only
in writing signed by, or on behalf of, the Company and Ruby. At any time prior
to the Closing, any party hereto may (a) extend the time for the performance of
any obligation or other act of any other party hereto, (b) waive any inaccuracy
in the representations and warranties of any other party contained herein or in
any document delivered pursuant hereto and (c) waive compliance with any
agreement of any other party or any condition to its own obligations contained
herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby. Any
waiver of any term or condition shall not be construed as a waiver of any
subsequent breach or a subsequent waiver of the same term or condition, or a
waiver of any other term or condition of this Agreement. The failure of any
party to assert any of its rights shall not constitute a waiver of any of such
rights.
6.9 Severability. If any term or provision of this Agreement is held to be
unenforceable under applicable Law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the
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transactions contemplate hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the fullest extent possible.
6.10 Publicity. No party hereto shall issue any press release or otherwise
make any statements to any third party with respect to this Agreement or the
transactions contemplated hereby without the prior written consent of the other
party, which consent shall not be unreasonably withheld, and the parties shall
cooperate as to the timing and contents of any such press release or public
announcement.
6.11 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the date first above written.
NOVA MARINE EXPLORATION, INC.
By: /s/ Xxxx Xxxxxxx
Title: President
RUBY MINING COMPANY
By: /s/ G. Xxxxxx Xxxxxxxxxxx
Title: CEO
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