EXHIBIT 4.2
PRIVATE STOCK PURCHASE AGREEMENT SICAV TWO
PRIVATE STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the effective date designated below (the "Effective Date"), between,
Arcadia Resources, Inc., a Nevada corporation (the "Seller" or the "Company"),
and Mercatus & Partners, LP (the "Purchaser").
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Seller desires to sell, and the Purchaser desires to purchase from the
Seller, One Million One Hundred Eleven Thousand Eight Hundred Thirty (1,111,111)
shares of the Company's common stock, U.S. $0.001 par value per share, for a
purchase price of U.S. $2.25 per share (the "Acquired Shares"). This Agreement
is binding under the conditions and timing set below, in particular the timing
of payment for the Acquired Shares is set forth in Appendix A. In particular,
the Company agrees to include the Acquired Shares by way of a pre-effective
amendment to a resale registration statement which the Company shall file with
the Securities and Exchange Commission. The Company shall do all acts to
complete the registration of the Acquired Shares in conformity with this
Agreement.
ARTICLE I
PURCHASE AND SALE
The Purchaser hereby agrees to purchase all of the Acquired Shares for a
purchase price of Two Million Four Hundred Ninety-Nine Thousand Nine Hundred
Ninety-Nine and 75/1000 (U.S. $2,499,999.75) U.S. Dollars in total (the
"Purchase Price"). The Purchase Price is to be paid in the manner set forth in
this Agreement and Appendix A attached hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 SELLER'S ACKNOWLEDGEMENT. This Agreement is made for purchase and
placement of the Acquired Shares into a European bank SICAV fund. This Agreement
is made with the express provision that the shares will be deposited in the fund
in a secured manner for asset valuation of the fund, and then the Seller will be
paid after that valuation by the Purchaser from the received monies from the
receipt of the SICAV shares which the Purchaser receives for the Acquired Shares
and shares of other companies which make the total asset base deposited into the
SICAV. This is not an immediate funding, and the Seller recognizes the time
lines set forth in this Agreement for deposit, valuation and payment of the
Purchase Price through the intermediary depository bank and intermediary
Purchaser, once the valuation and repurchase of the Acquired Shares is made.
This is not a fully escrowed exchange with no escrow agent, and is dependent
upon valuation and deposit before funding occurs; however, if the funding does
not occur within the time frames set forth in Section 3.14 of this Agreement,
Purchaser shall cause the depositing bank administrator to promptly return the
Acquired Shares to the Seller. The Seller shall have the ability to contact the
depositing bank administrator for verification of share status, location and
control at each step of the process. While the Purchaser expects the ability to
pay the Purchase Price within fifteen (15)
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to twenty (20) days from the date of this Agreement, the Purchaser reserves the
right to pay the Purchase Price within thirty (30) days of this Agreement. The
particular expected time line and transaction sequence is set forth in Appendix
A of this Agreement.
2.2 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLER. The Seller
hereby makes the following representations and warranties to the Purchaser as of
the Effective Date:
(a) VALIDITY AND STATUS OF THE ACQUIRED SHARES. Upon payment of the
Purchase Price, the Acquired Shares have been duly and validly issued.
(b) NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Seller will not (i) be subject to obtaining any consents
except, conflict with, 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 rights of termination, amendment, acceleration or cancellation
of, any agreement, indenture or instrument to which the Seller is a party,
or (ii) conflict with or violate any provision of the Seller's certificate
or articles of incorporation, bylaws or other organizational or charter
documents.
(c) LITIGATION; PROCEEDINGS. There is no action, suit, notice of
violation, proceeding or investigation pending or, to the best knowledge
of the Seller, threatened against or affecting the Seller before or by any
court, governmental or administrative agency or regulatory authority (US.
federal, state, county, or local) which (i) relates to or challenges the
legality, validity or enforceability of this Agreement, or the Acquired
Shares, (ii) or could, individually or in the aggregate, materially impair
the ability of the Seller to perform fully on a timely basis its
obligations under this Agreement.
(d) PLACEMENT AGENT. The Seller acknowledges Purchaser's
representation that Artemis Capital Group, LLC ("Artemis") is acting for
the Purchaser and does not regard any person other than the Purchaser as
its customer in relation to this Agreement. Seller represents that Artemis
has not made any recommendation to the Seller, in relation to this
Agreement and is not advising the Seller, with regard to the suitability
or merits of the transaction and in particular Artemis has no duties or
responsibilities to the Seller for the best execution of the transaction
contemplated by this Agreement.
The Purchaser acknowledges and agrees that the Seller makes no
representation, warranty or covenant with respect to the transactions
contemplated hereby other than those specifically set forth in Section 2.1
hereof.
2.3 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser and
each transferee or other holder of the Acquired Shares hereby represent, warrant
and covenant to the Seller each of the following as of the Effective Date and
continuing thereafter:
(a) ORGANIZATION; AUTHORITY; ENFORCEABILITY. Purchaser is an entity
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with full power and authority to
enter into and to consummate the transactions contemplated hereby and
otherwise to carry out its obligations hereunder. The execution, delivery
and performance by Purchaser of the transactions contemplated by this
Agreement has been duly authorized by all necessary corporate or similar
action
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on the part of Purchaser. This Agreement and any related transaction
documents have been duly executed by Purchaser, and when delivered by
Purchaser in accordance with the terms hereof, will constitute the valid
and legally binding obligation of Purchaser, enforceable against it in
accordance with its terms, subject to laws of general application relating
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and rules of law governing
specific performance, injunctive relief, or other equitable remedies.
(b) NO CONFLICTS. The execution, delivery and performance of this
Agreement by Purchaser, and Purchaser's consummation of the transactions
contemplated hereby, will not result in a violation of the organizational
documents of Purchaser, or result in a violation of any statute, law,
rule, regulation, writ, injunction, order, judgment or decree applicable
to Purchaser. Purchaser is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any
court or governmental or regulatory or self-regulatory agency in order for
it to execute, deliver or perform any of its obligations under or
contemplated by this Agreement in accordance with the terms hereof.
(c) GENERAL SOLICITATION. Purchaser is not purchasing the Acquired
Shares as a result of any advertisement, article, notice or other
communication regarding the Acquired Shares published in any newspaper,
magazine or similar media or broadcast over television or radio or
presented at any seminar or any other general solicitation or general
advertisement. Purchaser did not receive or review any advertisement,
article, notice or other communication published in a newspaper or
magazine or similar media or broadcast over television or radio, whether
closed circuit or generally available, or attend any seminar meeting or
industry investor conference whose attendees were invited by any general
solicitation or general advertising.
(d) INVESTMENT; NO PUBLIC DISTRIBUTION. Except to the extant that
Purchaser is acquiring the Acquired Shares for placement in a European
SICAV fund (the "SICAV Fund"), the Acquired Shares are being purchased by
Purchaser for its own account, for investment purposes only, not for the
account of any other person, and not with a view to distribution,
assignment or resale to others in whole or in part. Except as to a SICAV
Fund, Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the Acquired Shares, and shall
not sell, transfer or otherwise distribute any of the Acquired Shares
except in compliance with federal and applicable state laws and
regulations promulgated thereunder. Except as to a SICAV Fund, Purchaser
does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer, pledge, hypothecate, grant any option to
purchase or otherwise dispose of any of the Acquired Shares. Nothing
herein shall prevent the distribution of any Acquired Shares to a SICAV
Fund or any subsidiary, member, partner, stockholder, affiliate or former
member, partner, stockholder or affiliate of Purchaser in compliance with
federal and applicable state laws and the terms and conditions of this
Agreement.
(e) OFFSHORE TRANSACTION. Purchaser is a resident of or domiciled in
the United Kingdom. Neither Purchaser nor SICAV Fund are "U.S. Persons"
within the meaning of U.S. Securities and Exchange Commission Securities
Act Rule ("Rule")
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902(k). No offer or sale was made relative to the Acquired Shares in the
United States within the meaning of Rule 902(h)(i). At all relevant times,
Purchaser and SICAV Fund are outside the United States within the meaning
of Rule 902(h)(ii)(A). Within the meaning of Rule 903(b)(3):
(i) The offer or sale, if made prior to the expiration of a one-year
distribution compliance period, is not made to a U.S. person or for
the account or benefit of a U.S. person (other than a distributor);
and
(ii) The offer or sale, if made prior to the expiration of a
one-year distribution compliance period, is made pursuant to the
following conditions:
(aa) Purchaser hereby certifies that it is not acquiring the
Acquired Shares for the account or benefit of any U.S. person
or is a U.S. person who purchased securities in a transaction
that did not require registration under the U.S Securities Act
of 1933 (the "Act");
(bb) Purchaser agrees to resell the Acquired Shares only in
accordance with the provisions of this Regulation S (Rule 901
through Rule 905, and Preliminary Notes), pursuant to
registration under the Act, or pursuant to an available
exemption from registration; and agrees not to engage in
hedging transactions with regard to such securities unless in
compliance with the Act;
(cc) The common stock certificate evidencing the Acquired Shares
shall contain the legend required herein to the effect that
transfer is prohibited except in accordance with the
provisions of this Regulation S (Rule 901 through Rule 905,
and Preliminary Notes), pursuant to registration under the
Act, or pursuant to an available exemption from registration;
and that hedging transactions involving such securities may
not be conducted unless in compliance with the Act;
(dd) The Company is required by this Agreement to refuse to
register any transfer of the Acquired Shares not made in
accordance with the provisions of this Regulation S (Rule 901
through Rule 905, and Preliminary Notes), pursuant to
registration under the Act, or pursuant to an available
exemption from registration; provided, however, that if
foreign law prevents the Company from refusing to register
securities transfers, other reasonable procedures (such as a
legend described in paragraph (b)(3)(iii)(B)(3) of Rule 903)
shall be implemented to prevent any transfer of the securities
not made in accordance with the provisions of this Regulation
S; and
(ee) Each distributor selling the Acquired Securities to a
distributor, a dealer (as defined in section 2(a)(12) of the
Act), or a person receiving a selling concession, fee or other
remuneration, prior to the expiration of a one-year
distribution compliance period, sends a confirmation or other
notice to the
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purchaser stating that the purchaser is subject to the same
restrictions on offers and sales that apply to a distributor.
(f) RELIANCE ON EXEMPTIONS. Purchaser acknowledges that the Acquired
Shares are being offered and sold to it by Seller in reliance on specific
exemptions from the registration requirements of United States federal and
applicable state laws, including but not limited to the provisions of
Regulation S governing offers and sales made outside the United States
without registration under the U.S. Securities Act of 1933. The Company is
relying on the truth and accuracy of, and Purchaser's compliance with, the
representations, covenants, warranties, agreements, acknowledgments and
understandings of Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of Purchaser to
acquire the Acquired Shares. Purchaser shall indemnify and hold harmless
the Company, its directors, officers, agents and employees, from and
against all liability, damages and expenses of any kind, including
reasonable attorneys fees, arising out of or based upon any material
breach of any representation, warranty or covenant made by Purchaser in
this Agreement.
(g) INFORMATION. Purchaser and its advisors, if any, have obtained
all publicly available financial, operational, business and other data,
statements, information and materials relating to the business, finances,
prospects and operations of the Company. Purchaser and its advisors, if
any, have been afforded the opportunity to ask questions of the Company,
and all such questions have been answered to its full satisfaction.
Neither such inquiries nor any other due diligence investigations
conducted by Purchaser or its advisors, if any, or its representatives
shall modify, amend or affect the terms and conditions of this Agreement
or the acknowledgements, covenants, representations and warranties given
by Purchaser hereunder. Purchaser understands that its investment in the
Acquired Shares involves a high degree of risk. No oral representations,
warranties or guarantees of any kind have been made or oral information
furnished to Purchaser or its representatives, if any, in connection with
Purchaser's due diligence review or purchase of the Acquired Shares.
Purchaser acknowledges that: (i) the Company's common stock has been
quoted on an over-the-counter bulletin board for only a limited number of
years; (ii) its common stock has limited trading volume; (iii) there may
only be a limited market for the Acquired Shares; and (iv) that investment
in the Company involves substantial risks, including loss of the entire
amount of such investment and has taken full cognizance of and understands
all of the risk factors relating to the purchase of the Acquired Shares.
(h) NO GOVERNMENTAL REVIEW. Purchaser understands that no United
States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the
Acquired Shares or the fairness or suitability of the investment in the
Acquired Shares, nor have such authorities passed upon or endorsed the
merits of the offering of the Acquired Shares.
(i) EXPERIENCE OF PURCHASER. Purchaser, either alone or together
with its representatives, has such knowledge, sophistication and
experience in business and financial matters, including investing in
companies engaged in the business in which the Company is engaged, so as
to be capable of evaluating the merits and risks of the
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prospective investment in the Acquired Shares, and has so evaluated the
merits and risks of such investment and is an accredited investor within
the meaning of Securities Act Regulation D. Purchaser is able to bear the
financial risk of an investment in the Acquired Shares and complete loss
of such investment. Purchaser has adequate means of providing for its
financial needs and contingencies while holding the Acquired Shares, which
could be for an indefinite period. Purchaser has adequate means of
providing for its current financial needs and possible contingencies, has
no need for liquidity of investment in the Company, can afford to hold
unregistered Acquired Shares for an indefinite period of time and sustain
a complete loss of the entire amount of the Acquired Shares, and has not
made an overall commitment to investments which are not readily marketable
that is so disproportionate as to cause such overall commitment to become
excessive. Purchaser has not been formed for the specific purpose of
acquiring the Acquired Shares.
(j) SALE AND ISSUANCE OF ADDITIONAL SHARES TO OTHERS. Purchaser
understands and agrees that additional shares of the Company's Common
Stock may be issued by the Company from time to time, whether as part of
the same offering by which Purchaser purchases the Acquired Shares or a
different offering or other event, which could result in the dilution of
the Purchaser's percentage interest and shareholding position in the
Company.
(k) UNREGISTERED ACQUIRED SHARES; REGISTRATION RIGHTS. Except as
otherwise provided in Section 3.15, Purchaser agrees that the Acquired
Shares have not been, and shall not be, registered under the Securities
Act of 1933, as amended (the "Securities Act"), or under any applicable
state securities law. Purchaser's right or ability to sell, transfer,
pledge or otherwise dispose of the Acquired Shares within the United
States or to a U.S. Person as defined in Regulation S are severely limited
by applicable federal and state securities laws. Purchaser understands and
agrees that the Acquired Shares cannot be resold, transferred, other
otherwise disposed of within the United States or to a U.S. Person as
defined in Regulation S unless registered or unless an exemption from
registration is available under the Securities Act and applicable state
law. In connection with any sale, transfer or other disposition of the
Acquired Shares other than pursuant to an effective registration statement
or to the Company, the Company may require the transferor thereof to
provide to the Company, at the transferor's expense, a written opinion of
counsel, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not
require registration of such transferred Acquired Shares under the
Securities Act. Purchaser agrees that any removal of the restrictive
legend from certificates representing the Acquired Shares, which removal
shall first be authorized by the Company subject to the terms of this
Agreement, is predicated upon the Company's reliance on, and the
Purchaser's agreement that, and Purchaser hereby agrees that, the
Purchaser will not sell, transfer or otherwise dispose of any Acquired
Shares except pursuant to an exemption from the registration requirements
of the Securities Act and applicable state law. Purchaser represents that
it has the financial wherewithal to and hereby assumes the risk of
non-registration of the resale transaction of the Acquired Shares.
Purchaser and its transferees agrees to pay the Company's reasonable fees,
costs and expenses incurred in connection with any transfer of the
Acquired Securities.
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(l) RESTRICTIVE LEGEND. Purchaser agrees to the imprinting, so long
as the Company determines is required under applicable federal and state
securities laws, of a legend on each certificate evidencing the Acquired
Shares in substantially the following form and to comply with such
restrictions:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN OFFERED AND SOLD IN
AN "OFFSHORE TRANSACTION" IN RELIANCE ON REGULATION S PROMULGATED BY THE
U.S. SECURITIES AND EXCHANGE COMMISSION. THE SHARES HAVE NOT BEEN, AND
SHALL NOT BE, REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR UNDER ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, OTHER
THAN TO DISTRIBUTORS (AS DEFINED IN REGULATION S) IN THE ABSENCE OF SUCH
REGISTRATION UNLESS IN THE OPINION OF THE COMPANY'S COUNSEL SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE
SECURITIES ACT, AND EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S UNDER
THE ACT AND (2) AGREES THAT IT WILL NOT PRIOR TO TWO YEARS AFTER THE LATER
TO OCCUR OF (I) THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY OR
(II) ACQUISITION THEREOF FROM AN AFFILIATE OF THE COMPANY (THE
"RESTRICTION TERMINATION DATE") OFFER, RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S OR (B) PURSUANT TO RULE 144 OR (C)
PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE ACT (IF
AVAILABLE), SUBJECT TO COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY
PRIOR TO THE RESTRICTION TERMINATION DATE, THE HOLDER MUST MAKE CERTAIN
CERTIFICATIONS TO THE COMPANY TO CONFIRM THAT SUCH TRANSFERS ARE BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE ACT. IN ADDITION, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AT HOLDER'S EXPENSE SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY SHALL
REQUIRE. IN ALL SITUATIONS HOLDER SHALL NOT, DIRECTLY OR INDIRECTLY,
ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THE SECURITIES EXCEPT AS
PERMITTED BY THE SECURITIES ACT.
Purchaser additionally agrees to the imprinting of such additional legends
as the Company may determine are necessary to comply with the laws of any
other jurisdiction, as well as any legends which the Company is required
or permitted to affix per the terms of applicable voting or other
contractual agreements.
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(m) NON-PUBLIC INFORMATION. Purchaser has not requested nor been
furnished with any information known or believed to constitute material
non-public information of the Company, unless prior thereto Purchaser
shall have executed a written agreement acceptable to the Company
regarding the confidentiality and use of such information, the terms of
which agreement are hereby incorporated by this reference. Purchaser
agrees to maintain the confidentiality of the terms of this Agreement and
the transactions contemplated hereunder, except to the extent that this
Agreement and the transactions contemplated hereunder are publicly
disclosed by the Company.
(n) BROKERS/FINDERS. Purchaser represents and agrees that no
brokerage, finder's or other fees, commissions or other amounts of any
kind are or will be payable by the Company, on account of any agreement,
understanding or undertaking by Purchaser, to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or
other person with respect to the transactions contemplated by this
Agreement.
(o) REGULATORY DISCLOSURES. Purchaser understands and agrees that
the Company shall and may make such public and regulatory filings and
notices, disclosing the transactions contemplated hereby, in the manner
and time required by the Commission and by state regulators, including the
filing of this Agreement.
(p) REPLACEMENT OF CERTIFICATES. Purchaser agrees that if any
certificate or instrument evidencing the Acquired Shares is mutilated,
lost, stolen or destroyed, the Company, at the cost of Purchaser or such
other holder, shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and
substitution therefor, a new certificate or instrument, but only upon
receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable indemnity or other form
of security, if required by the Company.
(q) USE OF PROCEEDS. Purchaser understand and agrees that the net
proceeds from the sale of the Acquired Shares may be used by the Company
for general corporate purposes.
(r) LEGAL, TAXATION AND ACCOUNTING MATTERS. With respect to legal,
taxation, accounting and other financial considerations involved in an
investment in the Acquired Shares, Purchaser is not relying on the
Company. Purchaser has carefully considered and has, to the extent
Purchaser believes such discussion necessary, discussed with, and sought
advice from, its professional legal, tax, accounting and financial
advisors the suitability of an investment in the Acquired Shares, for its
particular taxation, accounting, legal and financial situation and has
determined that the Acquired Shares are suitable investment for Purchaser.
Each transferee or other holder of the Acquired Shares, by its
acceptance of the Acquired Shares, hereby agrees to be bound by all of
Purchaser's representations and warranties contained herein and shall be
deemed to make such representations and warranties as if it were the
initial purchaser under this Agreement.
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ARTICLE III
MISCELLANEOUS
3.1 FEES AND EXPENSES. Except as set forth in this Agreement, each party
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Purchaser shall pay the Placement Agent.
3.2 ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes all
contemporaneous or prior agreements, representations, discussions and
understandings, oral or written, with respect to such matters. This Agreement
shall be deemed to have been drafted and negotiated by both parties hereto and
no presumptions as to interpretation, construction or enforceability shall be
made by or against either party in such regard.
3.3 NOTICES. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
upon facsimile transmission (with written transmission confirmation report) at
the number designated below (if delivered on a Business Day during normal
business hours where such notice is to be received), or the first Business Day
following such delivery (if delivered other than on a Business Day during normal
business hours where such notice is to be received) whichever shall first occur.
The addresses for such communications shall be:
If to the Seller: Attn: Xxxx Xxxxxxx
Chairman and CEO
Arcadia Resources, Inc.
00000 Xxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Tel. No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With copies to: Xxxxxxx X. Xxxxxx, Esq.
Xxxx, Xxxxxxx and Xxxxx, PLC
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Tel. No. (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Purchaser: Mercatus & Partners, LP
Attn: Xxxx Xxxx
0000 XXXX XXXXXXXXX XXXXX
XXXXXXXXXX, XXXXXXX 00000
Tel: (000) 000-0000
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With copies to: Holland & Knight, LLP
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
3.4 AMENDMENTS; WAIVERS. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
both the Seller and the Purchaser, or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of any default
with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise
of any such right accruing to it thereafter.
3.5 HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
3.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and permitted
assigns, including any holders of any of the Acquired Shares other than
Purchaser. The assignment by a party of this Agreement or any rights hereunder
shall not affect the obligations of such party under this Agreement. The
representations of the Purchaser contained in this Agreement shall be binding
upon each transferee and other holder of the Acquired Shares and such transferee
and holder shall be deemed to make those representations and warranties of the
Purchaser as if it were the initial purchaser under this Agreement. In addition
to the legend set forth in Section 2.2(l), each certificate representing the
Acquired Shares shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN OFFERED AND SOLD
PURSUANT TO A PURCHASE AGREEMENT (THE "PURCHASE AGREEMENT") DATED NOVEMBER
___, 2005 BY AND BETWEEN ARCADIA RESOURCES, INC., AS SELLER, MERCATUS &
PARTNERS, LP, AS PURCHASER. ANY TRANSFEREE OR OTHER HOLDER OF THE SHARES
REPRESENTED BY THIS CERTIFICATE HEREBY AGREES TO BE BOUND BY THE TERMS AND
PROVISIONS OF THE PURCHASE AGREEMENT INCLUDING, BUT NOT LIMITED TO, THE
REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN.
3.7 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
3.8 GOVERNING LAW; VENUE; SERVICE OF PROCESS. Notwithstanding the location
or residence of any party, the parties hereto acknowledge that the transactions
contemplated by this
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Agreement and the exhibits hereto bear a reasonable relation to the State of New
York. The parties hereto agree that the internal laws of the State of New York
shall govern this Agreement. Any dispute, controversy or claim arising out of or
relating to this Agreement, whether arising in contract, tort or otherwise shall
be resolved in accordance with the rules of the American Arbitration
Association, except for any equitable or injunctive relief sought under this
Agreement. The arbitration shall be held at a location within Oakland County,
Michigan. The Parties agree that any arbitration award rendered on any claim
submitted to arbitration shall be final and binding upon the Parties and not
subject to appeal and that judgment may be entered upon any arbitration award by
any circuit court located in Michigan.
3.9 SURVIVAL. The respective representations, warranties and covenants of
the Seller and the Purchaser contained in this Agreement shall survive the
payment of the Purchase Price by Purchaser and delivery of the common stock
certificate by Seller.
3.10 COUNTERPART SIGNATURES. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
3.11 SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affected or impaired thereby and the parties will attempt to agree
upon a valid and enforceable provision which shall be a reasonable substitute
therefore, and upon so agreeing, shall incorporate such substitute provision in
this Agreement.
3.12 LIMITATION OF REMEDIES. With respect to claims by the Seller or any
person acting by or through the Seller, or by the Purchaser or any person acting
through the Purchaser, for remedies at law or at equity relating to or arising
out of a breach of this Agreement, liability, if any, shall, in no event,
include loss of profits or incidental, indirect, exemplary, punitive, special or
consequential damages of any kind.
3.13 DELIVERY OF ACQUIRED SHARES. The Seller shall, within five (5) days
of the execution of this Agreement, deliver to Xxxxx Brothers Xxxxxxxx & Co.,
the receiving bank, at the directions provided, pursuant to an instruction
letter substantially in substantially the form attached hereto as Appendix B.
3.14 DELIVERY OF PURCHASE PRICE. The Purchaser shall, within the earlier
of (a) thirty (30) days of the date of this Agreement, or within fifteen (15)
days of receipt by the receiving bank of all shares being accumulated for the
receiving bank, shall issue the Purchase Price to the Company as so designated,
via wire transfer. If within thirty (30) days of the date of this Agreement, the
Company does not receive the Purchase Price, the Company has the right to demand
recall of the Acquired Shares and the Acquired shall be transmitted back to the
Company within five (5) days from that period.
Page 11 of 16
3.15 REGISTRATION OF ACQUIRED SECURITIES. The Company agrees to include
the Acquired Shares by way of a pre-effective amendment to a resale registration
statement which the Company shall file with the Securities and Exchange
Commission. The Company shall do all acts to complete the registration of the
Acquired Shares in conformity with this Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
Page 12 of 16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first indicated above.
Effective Date of Agreement: November 28, 2005
Shareholder for stock certificate:
MERCATUS & PARTNERS, LIMITED
Xxx X. Xxxxxxx Xxxxxxxxxx #0
00000 Xxxx, Xxxxx
CORPORATE INFORMATION (FOR TRANSFER AGENT):
Company Number: 04500047, Incorporated on: 31/07/2002
Company Name: MERCATUS & Partners limited
Registered Office: 00 Xxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx XX0 0XX
Company Type: Private Limited Company
Country of Origin: United Kingdom
MAILING / DELIVERY ADDRESSES FOR PHYSICAL SECURITIES:
Xxxxx Brothers Xxxxxxxx & Co.
Attention: Physical Receives Section - Trade Processing Department
000 Xxxxxxxx, Xxx Xxxx, XX 00000-0000, X.X.X.
SELLER:
ARCADIA RESOURCES, INC.
By: /S/ Xxxx X. Xxxxxxx, XX
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
PURCHASER:
MERCATUS & PARTNERS, LIMITED
Xxxx Xxxx on behalf of Purchaser
By: /S/ Xxxx Xxxx
----------------------------------------
Name: Xxxx Xxxx
Title: RA
Page 13 of 16
APPENDIX A
DELIVERY AND DESCRIPTION OF CONTRACT, SHARE INTAKE, DEPOSIT, VALUATION,
SAFEKEEPING AND MOVEMENT OF SHARES:
STEP ONE: Delivery of Contract shall be made by the company to the following
address:
MERCATUS
c/o Xxxx Xxxx
0000 Xxxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
Phone 000-000-0000
STEP TWO: The Stocks are delivered to Xxxxx Brothers Xxxxxxxx & Co. ("BBH") in
certificate form, to the following address, in the name of Mercatus & Partners,
Limited, as Regulation S shares. Such shares shall be issued and sent in the
following form:
SHAREHOLDER FOR STOCK CERTIFICATE: MERCATUS & PARTNERS, LIMITED
XXX X. XXXXXXX XXXXXXXXXX #0
00000 XXXX, XXXXX
CORPORATE INFORMATION (FOR TRANSFER AGENT):
Company Number: 04500047 Incorporated on: 31/07/2002
Company Name: MERCATUS & Partners limited
Registered Office: 00 Xxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx XX0 0XX
Company Type: Private Limited Company
Country of Origin: United Kingdom
Shares shall be sent to the following address and account into the following
Banca MB account at BBH:
Please find below the instruction for:
MAILING / DELIVERY ADDRESSES FOR PHYSICAL SECURITIES:
Via Mail: Xxxxx Brothers Xxxxxxxx & Co.
Attention: Physical Receives Section - Trade Processing Department
000 Xxxxxxxx, Xxx Xxxx, XX 00000-0000, X.X.X.
Account Name: Banca MB-Milano
Account Number: 0000000
Page 14 of 16
DTC DELIVERY INSTRUCTIONS:
Xxxxx Brothers Xxxxxxxx & Co.,
Account Name: Banca MB-Milano
Account Number: 0000000
DTC # 010
Each share certificate, since it is being issued under Regulation S, must bear a
legend, as per the agreement which is substantially in form as that set below:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN OFFERED AND SOLD IN
AN "OFFSHORE TRANSACTION" IN RELIANCE ON REGULATION S PROMULGATED BY THE
U.S. SECURITIES AND EXCHANGE COMMISSION. THE SHARES HAVE NOT BEEN, AND
SHALL NOT BE, REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR UNDER ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, OTHER
THAN TO DISTRIBUTORS (AS DEFINED IN REGULATION S) IN THE ABSENCE OF SUCH
REGISTRATION UNLESS IN THE OPINION OF THE COMPANY'S COUNSEL SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE
SECURITIES ACT, AND EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S UNDER
THE ACT AND (2) AGREES THAT IT WILL NOT PRIOR TO TWO YEARS AFTER THE LATER
TO OCCUR OF (I) THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY OR
(II) ACQUISITION THEREOF FROM AN AFFILIATE OF THE COMPANY (THE
"RESTRICTION TERMINATION DATE") OFFER, RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S OR (B) PURSUANT TO RULE 144 OR (C)
PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE ACT (IF
AVAILABLE), SUBJECT TO COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY
PRIOR TO THE RESTRICTION TERMINATION DATE, THE HOLDER MUST MAKE CERTAIN
CERTIFICATIONS TO THE COMPANY TO CONFIRM THAT SUCH TRANSFERS ARE BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE ACT. IN ADDITION, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AT HOLDER'S EXPENSE SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY SHALL
REQUIRE. IN ALL SITUATIONS HOLDER SHALL NOT, DIRECTLY OR INDIRECTLY,
ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THE SECURITIES EXCEPT AS
PERMITTED BY THE SECURITIES ACT.
Page 15 of 16
STEP THREE: Banca MB is only the asset manager of Mercatus, and the shares are
deposited into a safekeeping account for Banca MB in BBH. The shares are
deposited into the account where they are verified and deposited for viewing and
verification by the SICAV bank. NOTE: the shares are not allowed, under the
agreement with BBH and Banca MB to in any way be hypothecated or leveraged in
any fashion during this holding period. The restricted shares stay at BBH in the
safekeeping account during this period, and at all times until the purchase is
complete. Xxxxxx Xxxxxxxx, is the Attorney-In-Fact over the BBH account of Banca
MB for this account. Any and all questions regarding the status of shares during
this process may be conducted to your Placement Agent.
STEP FOUR: Is starting during Step Three, and includes the transfer of the stock
to the SICAV through the stock verification process, so that the SICAV bank
receives confirmation of the Shares and portfolio, if any, for valuation, and
due diligence. This period of time is expected to be four (4) to five (5) days
after which the value is assigned and a corresponding amount of SICAV shares are
issued to Mercatus & Partners, Limited, electronically, for their use and
ownership. NOTE: this process will not start until the called for amount of
shares and assets are received as a package for the whole SICAV portfolio from
Mercatus's Banca MB account in BBH.
STEP FIVE: Mercatus will then simultaneously transfer the SICAV shares into the
lending or purchasing banks and the lending banks will issue the purchase price
or credit line to Mercatus. This period is expected to take four (4) to five (5)
days.
STEP SIX: Mercatus transmits payment through Banca MB/BBH to the Companies
through the Placement Agent's counsel, Holland & Knight 000 Xxxxxxxx, Xxx Xxxx,
XX 00000.
The Stock Purchase Agreement is to be authorized and executed by the Company.
There are no allowed changes under the agreement for purchase by Mercatus &
Partners, Limited. The document is for the purchase of the restricted shares
only. The document will be locked in and cannot be edited by the Company.
Page 16 of 16
