Exh. 10-d
AMENDED STOCK PURCHASE AGREEMENT
dated as of January 24, 2006
by and between
XXXXXXX X. XXXXXX
an Individual, as the Seller
and
PALMERA HOLDINGS, INC.
a Florida corporation, as the Purchaser
This AMENDED STOCK PURCHASE AGREEMENT is made as of the 24th day of
January, 2006, by and between XXXXXXX X. XXXXXX, an individual residing in
Hawaii ("Seller") and PALMERA HOLDINGS, INC., a Florida corporation
("Palmera")
WHEREAS the Seller has agreed to sell, and Palmera has agreed to purchase,
certain capital stock of Maui General Store, Inc., a New York corporation
("MGS"); and
WHEREAS, simultaneously with the closing of the sale contemplated
hereunder, Palmera will merge with and into MGS Acquisition Corp. (the
"Merger Sub"), a wholly owned subsidiary of MGS pursuant to the terms of a
Merger Agreement dated January 24, 2006 between Palmera and the Merger Sub
(the "Merger Agreement");
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1 DEFINITIONS
In this Agreement, all capitalized terms used and not otherwise defined
herein have the meanings assigned in the Merger Agreement. In addition,
the following terms have the meanings assigned:
1.1 "Agreement" means this Amended Stock Purchase Agreement.;
1.2 "Closing" and "Closing Date" have the meanings ascribed thereto at
Section 2.3 hereof;
1.3 "Companies" means MGS and the Merger Sub;
1.4 "Escrow Agreement" means the Escrow and Interim Operations Agreement
dated January 24, 2006.
1.5 "Parties" means, collectively, Palmera and the Seller, and "Party"
means either of them;
1.6 "Palmera Merger" means the merger of Palmera into Merger Sub pursuant
to the Merger Agreement;
1.7 "Purchased Securities" means 50,000,000 MGS Shares: and
1.8 "Trinity Merger" means the merger of Trinity Biogenics, Inc. into MGS
Trinity Acquisition Corp. pursuant to the Agreement and Plan of Merger
to be dated January 24, 2006 among Trinity Biogenics, Inc., MGS and
MGS Trinity Acquisition Corp. (the "Trinity Merger Agreement").
2 PURCHASE AND SALE
2.1 Purchase and Sale. Upon and subject to the terms and conditions of
this Agreement, and in reliance upon the representations, warranties,
covenants and agreements herein contained, on the Closing Date (as
defined below) Palmera shall purchase from the Seller, and the Seller
shall sell, transfer and assign to Palmera, the Purchased Securities.
2.2 Purchase Price. The purchase price for the Purchased Securities
shall be Seven Hundred Fifty Thousand and 00/100 Dollars ($750,000.00).
The purchase price shall be payable as follows:
a) On the Closing Date Purchaser shall pay the Residual Cash Payment to
the Escrow Agent named in the Escrow Agreement.
b) On the Final Payment Date Purchaser shall pay to Seller the sum of
Seven Hundred Fifty Thousand Dollars ($750,000) plus interest at a
rate of 5% per annum less the aggregate amount paid pursuant to
Section 2.2(a) The "Final Payment Date" shall be the earlier of
(i) the Effective Date of the Trinity Merger or (ii) the Funding
Date, which is defined in Section 2(b) of the Escrow and Interim
Operations Agreement. In the event that the Trinity Merger
Agreement terminates prior to the completion of the Trinity Merger,
this Stock Purchase Agreement shall terminate at the same time and
no payment of principal or interest shall be due hereunder.
2.2.1 The "Residual Cash Payment" shall equal the sum of (a) twenty-five
percent (25%) of (i) the gross proceeds of the private offering
conducted by Palmera prior to January 18, 2006, less (ii) One
Hundred Thousand Dollars ($100,000); provided, however, that if any
investor subscribes to that offering and the Seller is entitled to a
finders fee by reason of the subscription, then the applicable
percentage with respect to proceeds received from that investor will
be twenty percent (20%), less (b) any amount paid by MGS or Palmera
pursuant to Section 5.03(h)(iii) of the Merger Agreement..
2.3 Closing. The closing of the purchase and sale of the Purchased
Securities (the "Closing") shall take place on the Effective Date of the
Palmera Merger. (the "Closing Date"). The Closing shall take place
simultaneously with the closing of the Palmera Merger. The Closing shall
take place at the offices of Palmera's counsel or at such other location
as the Parties agree.
2.4 Closing Documents. At the Closing, the Parties will deliver the
following documents:
2.4.1 Documents delivered by Seller. The Seller shall deliver to Palmera
(i) Stock Certificates for the Purchased Securities, duly endorsed
for transfer or accompanied by a duly executed stock power, and
(ii) Any other documents and instruments reasonably requested by
Palmera to consummate the transactions contemplated herein.
2.4.2 Documents delivered by Palmera. Palmera shall deliver to the Seller
(i) Documents showing the gross proceeds of the private placement
referred to in Section 2.2.1;
(ii) The Residual Cash Payment, if any;
(iii) A certified copy of the resolutions of Palmera authorizing it to
enter into and to perform this Agreement and the Palmera
Documents; and
(iv) Any other documents and instruments reasonably requested by
Seller to consummate the transactions contemplated herein.
2.5 Surrender of Shares. Simultaneous with the Closing, the Seller will
surrender to MGS that number of shares as will cause the number of
outstanding common shares of MGS to be 140,000,000, and will cause MGS to
classify the surrendered shares as treasury shares.
3 REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants that, as the Chief Executive
Officer of MGS, he has sufficient knowledge to make the representations
and warranties set forth herein with respect to the Companies and that the
following representations and warranties are true and accurate; and Seller
acknowledges and confirms that Palmera is relying upon such
representations and warranties in connection herewith and would not have
entered into this Agreement without same:
3.1 Capacity and Authority. Seller has the necessary capacity, authority
and right to execute this Agreement and to transfer the legal and
beneficial title and ownership of the Purchased Securities to Palmera,
free and clear of all liens, charges, encumbrances and any other
rights of others;
3.2 No Conflict. Neither the execution and delivery of this Agreement by
Seller nor the performance by him of the transactions contemplated
hereby will, with or without the giving of notice or the passage of
time, or both (i) conflict with or constitute a default under any
Applicable Law or under any agreement or other instrument by which the
Seller or his assets may be bound, or (iii) result in the loss of
any benefit or otherwise cause a Material Adverse Effect on the
Companies;
3.3 Governmental Or Third Party Consent. No consent, waiver, approval,
order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other federal,
state, county, local or other foreign governmental authority,
instrumentality, agency or commission or any third party, including a
party to any agreement with Seller, is required by or with respect to
Seller in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby, except
for such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings as may be required under
applicable securities laws;
3.4 Binding Obligation. This Agreement constitutes a valid and binding
obligation of Seller, enforceable against him in accordance with its
terms, except as enforcement of remedies may be limited by Applicable
Law relating to bankruptcy, insolvency and other laws affecting the
enforcement of creditors rights generally and subject to general
equitable principles;
3.5 Title to Purchased Securities. He is the legal and beneficial owner
of, and has good title to and possesses the Purchased Securities, free
and clear of any encumbrances. Liens, charges or any other rights of
others;
3.6 Share Certificates. The share certificates representing the Purchased
Securities held by him are true, genuine and subsisting, and nothing
affects the validity of same; and
3.7 No Broker. The Seller is not subject to any claim of any broker,
finder, consultant or other intermediary in connection with any of the
transactions contemplated by this Agreement;
3.8 Representations in Merger Agreement. The representations of the
Seller with respect to the Companies set forth in Sections 2.01 -
2.02, 2.04 - 2.05 and 2.07 - 2.13 of the Merger Agreement are deemed
to be made to Palmera as if stated in full herein.
3.9 Accuracy of Information. All information which has been provided to
Palmera by or on behalf of the Companies or the Seller is true and
complete and no material fact has been omitted therefrom which would
make such information misleading. None of the aforesaid
representations or warranties contains any untrue statement of a
material fact or omits to state a material fact necessary to make such
representation or warranty not misleading.
4 REPRESENTATIONS AND WARRANTIES OF PALMERA
Palmera hereby represents and warrants that the following representations
and warranties are true and accurate and acknowledges and confirms that
the Seller is relying upon such representations and warranties in connection
herewith and would not have entered into this Agreement without same:
4.1 No Conflict. Neither the execution and delivery of this Agreement
by Palmera nor the performance by it of the transactions contemplated
hereby will, with or without the giving of notice or the passage of time,
or both, (i) conflict with or constitute a default under any Applicable
Law, (ii) result in the termination, cancellation, modification, amendment,
variation or renegotiation of, the loss of any right under, conflict with,
or constitute a default under, or accelerate the date of performance of,
any obligation under any contract or other instrument to which Palmera
may be a party or by which its assets may be bound, which, as a consequence,
would have a Material Adverse Effect on Palmera, (iii) give rise to any lien,
charge, or other encumbrance upon any of its assets, (iv) conflict
with or constitute a default under, the Articles of Incorporation or
by-laws of Palmera, or (iv) result in the loss, of any benefit which
would otherwise accrue to Palmera;
4.2 Governmental Or Third Party Consent. No consent, waiver, approval,
order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other federal,
state, county, local or other foreign governmental authority,
instrumentality, agency or commission or any third party, including a
party to any agreement with Palmera, is required by or with respect to
Palmera in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby;
except for such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings as may be required under
applicable securities laws;
4.3 Binding Obligation. This Agreement constitutes a valid and binding
obligation of Palmera, enforceable against it in accordance with its
terms, except as enforcement of remedies may be limited by Applicable
Law relating to bankruptcy, insolvency and other laws affecting the
enforcement of creditors rights generally and subject to general
equitable principles;
4.4 No Broker. Palmera is not subject to any claim of any broker,
finder, consultant or other intermediary in connection with any of the
transactions contemplated by this Agreement; or any transaction
contemplated hereby.
5 CONDITIONS TO THE CLOSING
5.1 Conditions to Obligations to Effect the Closing. The respective
obligations of each Party, to consummate and effect the transactions
contemplated hereby shall be subject to the satisfaction at or prior
to the Closing of each of the following conditions, any of which may
be waived in writing by the Party benefited thereby (to the extent
permitted by Applicable Law):
5.1.1 Conditions Precedent to the Obligations of the Parties
(i) Absence of Certain Litigation. No action or proceeding shall be
threatened or pending before any governmental entity or authority
which, in the reasonable opinion of counsel for the Parties, is
likely to result in a restraint, prohibition or the obtaining of
damages or other relief in connection with this Agreement or the
consummation of the purchase and sale of the Purchased Securities;
and
(ii) Merger of Palmera into Merger Sub. MGS shall have entered into
the Merger Agreement and all conditions precedent to the Parties
obligations set forth in Section 5.01 thereof (except for Section
5.01(d)) shall have been satisfied.
5.1.2 Conditions Precedent to the Obligations of the Seller.
(i) Consents, Approvals. Palmera and Trinity shall have obtained all
necessary consents and approvals of their respective boards of
directors, and all consents, approvals and authorizations
required under their respective governing documents, and all
material consents, including any material consents and waivers by
the Parties' respective lenders and other third-parties, if
necessary, to the consummation of the transactions contemplated
by this Agreement.
(ii) Representations and Warranties. The representations and
warranties by Palmera set forth in Section 4 herein shall be true
and accurate in all material respects on and as of the Closing
Date with the same force and effect as though such representations
and warranties had been made at and as of the Closing Date, except
to the extent that any changes therein are specifically contemplated
by this Agreement.
(iii) Performance. Palmera shall have performed and complied in all
material respects with all agreements to be performed or complied
with by it pursuant to this Agreement at or prior to the Closing.
(iv) Proceedings and Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by
this Agreement and all documents and instruments incident to such
transactions shall be reasonably satisfactory in substance and
form to Seller and his counsel, and Seller and his counsel shall
have received all such counterpart originals (or certified or
other copies) of such documents as they may reasonably request.
(v) Satisfaction of Conditions to Merger. All conditions precedent
to MGS's and the Principal Stockholder's obligations set forth in
Section 5.02 of the Merger Agreement shall have been satisfied.
5.1.3 Conditions Precedent to the Obligations of Palmera
(i) Consents, Approvals. The Seller shall have obtained all
necessary consents and approvals, including waivers by the
Seller's lenders and other third-parties, if necessary, to the
consummation of the transactions contemplated by this Agreement.
(ii) Representations And Warranties. The representations and
warranties by the Seller set forth in Section 3 herein shall be
true and accurate in all material respects on and as of the
Closing Date with the same force and effect as though such
representations and warranties had been made at and as of the
Closing Date, except to the extent that any changes therein are
specifically contemplated by this Agreement.
(iii) Performance. The Seller shall have performed and complied in all
material respects with all agreements to be performed or complied
with by him pursuant to this Agreement prior to or at the Closing.
(iv) Proceedings And Documents. All documents and instruments
incident to the transactions contemplated by this Agreement
shall be reasonably satisfactory in substance and form to Palmera
and its counsel, and Palmera and its counsel shall have received
all such counterpart originals (or certified or other copies) of
such documents as they may reasonably request.
(v) Satisfaction of Conditions to Merger. All conditions precedent
to Palmera's obligations set forth in Section 5.03 of the Merger
Agreement (except for Section 5.03 (i)) shall have been satisfied.
6 GENERAL PROVISIONS.
6.1 Governing Law. This Agreement shall be governed by the laws of the
State of Florida, without giving effect to the principles of conflicts
of laws thereof, as applied to agreements entered into and to be
performed in such state.
6.2 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given or
made if delivered to the address and in the manner provided in the
Merger Agreement.
6.3 Assignment. Neither this Agreement nor any of the rights, interests
or obligations under this Agreement shall be assigned by any of the
Parties (whether by operation of law or otherwise) without the prior
written consent of the other Party. This Agreement will be binding
upon, inure to the benefit of and be enforceable by, the Parties and
their respective heirs, legal representatives, successors and assigns.
6.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all
of which shall be considered one and the same agreement.
6.5 No Third Party Beneficiaries. Except as expressly provided by this
Agreement, nothing herein is intended to confer upon any person or
entity not a Party to this Agreement any rights or remedies under or
by reason of this Agreement.
6.6 Rules of Construction. The Parties agree that they have been
represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities
in an agreement or other document will be construed against the party
drafting such agreement or document.
6.7 Amendments. No amendment of this Agreement shall be binding unless
set forth in a writing duly executed by each of the Parties.
6.8 Waiver. Any waiver of, or consent to depart from, the requirements
of any provision of this Agreement shall be effective only if it is in
writing and signed by the Person giving it, and only in the specific
instance and for the specific purpose for which it has been given. No
failure on the part of any Person to exercise, and no delay in exercising,
any right under this Agreement shall operate as a waiver of such right. No
single or partial exercise of any such right shall preclude any other or
further exercise of such right or the exercise of any other right.
IN WITNESS WHEREOF, the Parties, Trinity and MGS have signed as of the
date first hereinabove written.
SELLER
/s/ Xxxxxxx X. Xxxxxx
---------------------
XXXXXXX X. XXXXXX
PURCHASER
PALMERA HOLDINGS, INC.
By: /s/ Xx. Xxxxxxxx Xxxxx
--------------------------
Xx. Xxxxxxxx Xxxxx
Chairman
