ACTIVE LINK COMMUNICATIONS, INC.
FORM 10-KSB
EXHIBIT 10 (m.1)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into by and between Active Link Communications, Inc. ("Seller") and Unisource
Cap LLC ("Purchaser").
The parties agree as follows:
1. PURCHASE OF SHARES. By execution and delivery of this Agreement and
subject to the terms and conditions of this Agreement, Purchaser hereby agrees
to purchase 16,000,000 fully paid and nonassessable shares of the restricted
common stock of Active Link Communications, Inc. ("ACVE") (the "Shares"), which
Shares represent approximately 43% of the current issued and outstanding common
stock of the Seller, subject to securities law restrictions but otherwise free
and clear of all liens, claims and encumbrances. In consideration for the sale
and transfer of the Shares, and in full payment for such Shares, the Purchaser
hereby agrees to pay to Seller in cash the aggregate principal amount of
$4,000,000 (the "Purchase Price") at $0.25 per share, subject to the conditions
of Closing set forth in Paragraph 3 below.
2. AUTHORIZATION AND SALE OF SHARES. Subject to the terms and
conditions of this Agreement, the Seller agrees to sell, issue and deliver to
the Purchaser the Shares in exchange for the consideration specified in
Paragraph 1 above and the Seller before the Closing will have authorized the
sale, transfer and delivery of the Shares to Purchaser at the Closing.
3. CLOSING. The Purchaser and the Seller agree that the sale and
purchase of the Shares shall be closed at the offices of Arizona Escrow &
Financial Corporation, 0000 X. 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
("Escrow Agent") upon inspection and approval by Purchaser of the following
"Closing Documents": (i) two stock certificates representing the Shares (one
certificate for 1,600,000 Shares and one certificate for 14,400,000 Shares)
being purchased by Purchaser bearing the name "Unisource Cap LLC"; (ii) a
Secretarial Certificate certifying the resolutions of the Board of Directors
authorizing the sale, issuance and delivery of the Shares to the Purchaser and
authorizing the execution and delivery of this Agreement; and, (iii) such other
Closing Documents as the Seller, Purchaser or Escrow Agent may reasonably
require to carry out the provisions of this Agreement.
Purchaser shall cause an escrow account to be opened promptly upon the
execution and delivery of this Agreement by the parties (the "Escrow Account").
Purchaser shall be solely responsible for the payment of all escrow fees. Within
two days of execution of this Agreement by the later to execute of the two
parties (the "Effective Date"), Seller will furnish the Purchaser the proposed
escrow agreement and/or escrow instructions of the Escrow Agent and a list of
other Closing Documents, if any, required by Purchaser. Seller and Purchaser
shall, within five days after the date of Purchaser's receipt of the documents
from the Escrow Agreement, attempt to jointly execute and deliver to the Escrow
Agent an escrow agreement and/or escrow instructions satisfactory to both Seller
and Purchaser to carry out the provisions of this Agreement, including the
opening of an Escrow Account with the Escrow Agent. The Seller shall, within
three days of signing of the agreement with the Escrow Agent, cause to be
deposited the Seller's Closing
Documents in the Escrow Account upon receipt of Seller's confirmations and the
Escrow Agent shall confirm in writing/fax the receipt thereof to both parties.
It is understood that because Seller is a Colorado corporation, the Seller will
initially deposit a "specimen" certificate with the Escrow Agent which will be
identical to the certificate to be issued to Purchaser at the closing of the
first 1,600,000 of the Shares except that the Purchaser's name will not appear
on the certificate.
Within 10 to 20 days of the date of such confirmation, Purchaser shall
cause to be conducted its "due diligence" of the Seller's Closing Documents,
including the verification and authentication of the Shares. Escrow Agent is
authorized to transfer the Shares and related Closing Documents to any
securities house of his choosing to validate and verify the authenticity of the
stock certificates and related documents so long as it has continuous control of
the certificates and documents until accepted and funds are transferred to the
Escrow Account for the payment to Seller.
Should the Purchaser find the Closing Documents to be satisfactory, the
transaction shall close as follows:
(a) Within the 10-20 day "due diligence" period, Purchaser
shall wire-transfer to the Escrow Agreement 10% of the Purchase Price (i.e.,
$400,000) and Escrow Agent shall notify Purchaser of receipt of funds. Within
two business days of such notification, Seller shall deliver a certificate to
the Escrow Agent for 1,600,000 of the Shares which shall be identical to the
specimen previously delivered except that it shall be issued in the name of the
Purchaser and it shall be dated no more than two business days after the date of
transmission to the Escrow Agent; and
(b) Within 90 days of the date of confirmation of receipt of
the Seller's Closing documents in the Escrow Account, Purchaser shall
wire-transfer to the Escrow Account 90% of the Purchase Price (i.e., $3,600,000)
and Escrow Agent shall notify Purchaser of receipt of funds. Within two business
days of such notification, Seller shall deliver a certificate to the Escrow
Agent for 14,400,000 of the Shares which shall be identical to the specimen
previously delivered except that it shall be issued in the name of the Purchaser
and it shall be dated no more than two business days after the date of
transmission to the Escrow Agent.
In each of the above cases, the Escrow Agent shall immediately upon
receipt of such funds from Purchaser and the duly issued certificate from Seller
wire-transfer such portion of the Purchase Price funds to the Seller, less any
amount thereof due Bathgate Capital Partners LLC ("BCP") that Seller is
obligated to pay out of the Purchase Price funds (the pertinent information
necessary to make any such payments to BCP shall be furnished to Escrow Agent
prior to Closing by both Seller and Purchaser as appropriate). At the same time,
Escrow Agent shall also deliver to Purchaser the stock certificate representing
the Shares purchased by Purchaser with each such installment payment. Escrow
Agent shall confirm in writing/fax such payments and stock deliveries to both
Seller and Purchaser.
In the event that Purchaser chooses not to complete the purchase of the
stock after its 10 to 20 day "due diligence", the Escrow Agent shall return to
the Seller the stock certificate(s) and Seller's Closing Documents and deliver
to Purchaser any deposits made by it and thereafter the Escrow shall be closed
with no further liability on either party's part.
2
Purchaser shall cause its agents and representatives to conduct its
"due diligence" in a timely and prompt manner and should it have a question or
problem with any of the Seller's Closing Documents it shall bring such concerns
to the attention of the Seller which shall have 3 business days to cure any such
concern. In the event any of the foregoing steps are not taken within the time
limits provided or are not cured within the time limits, Purchaser may choose to
have the Escrow Agent return the stock certificate and Seller's Closing
Documents to the Seller in a prompt manner. In such event, this agreement and
any escrow instructions to the Escrow Agent shall be deemed rescinded and each
document shall become null and void without further legal effect.
4. REPRESENTATIONS, WARRANTIES AND FURTHER COVENANTS.
(a) The Seller represents and warrants to the Purchaser that
(i) this Agreement has been duly authorized, executed and delivered on behalf of
the Seller, and constitutes the valid and binding agreement of the Seller, and
is fully enforceable in accordance with its terms; and, (ii) the Shares when
transferred to the Escrow Account in accordance with this Agreement will be
validly issued, fully paid and nonassessable will be free and clear of any lien,
claim or encumbrance, subject to Rule 144 restrictions.
(b) The Purchaser represents and warrants to the Seller than
(i) this Agreement has been duly authorized, executed and delivered on behalf of
the Purchaser, and constitutes the valid and binding agreement of the Purchaser,
and is fully enforceable in accordance with its terms; (ii) it is an accredited
investor under SEC rules and is purchasing the Shares for its own account for
the purpose of investment and shall only subsequently distribute or sell such
Shares in accordance with pertinent securities laws; (iii) it has been furnished
access to the business records of Seller, and to such additional documents and
information, including the Closing Documents, as it may have requested; and (iv)
it understands that the funds used to purchase the Shares are expected to be
used by Seller for working capital, including payments of accounts payable, and
(v) it understands that the purchase of the Shares must be considered extremely
speculative and subject to a high degree of risk due to Seller's small size and
current financial condition as well as other risks as disclosed in Seller's
filings with the SEC.
(c) Both the Seller and the Purchaser expressly warrant to one
another and to Escrow Agent as follows:
(i) Each of Seller and Purchaser acknowledges that
none of the Shares has been registered under the Securities Act of 1933, the
Arizona or Colorado securities laws, or any other state or Federal law relating
to the sale or offering for sale of securities, it being the intention of the
parties that this transaction qualify as an exempt transaction under such laws
as applicable hereto. Each of Seller and Purchaser further acknowledges and
represents that it has, to the extent desired, consulted its own attorney,
accountant and investment advisor in connection with the proposed transfer, and
that it is not relying on any warranty, representation or assurance on the part
of the Escrow Agent in choosing to enter into this transaction without requiring
registration under applicable state and Federal law.
(ii) Purchaser warrants and represents that the
Shares are being acquired for its own account and for purposes of investment and
not with a view to the resale or other distribution as to all or any part
thereof. Purchaser is aware that the Shares cannot be resold without
registration under applicable securities laws, or exemption therefrom, and that
it may be required to
3
hold the shares indefinitely, and is further aware that if the transfer is
permitted, there are certain legally prescribed waiting period before the Shares
can be transferred to another person. Purchaser warrants and represents that
because the Shares are being acquired by it for investment purposes and in a
private offering, the certificates for the shares will have a restrictive legend
placed on them.
(iii) Purchaser and Seller warrant and represent that
the Escrow Agent has made no warranties or representations, and has rendered no
advice of counsel regarding the transfer of Shares. Purchaser and Seller hereby
jointly and severally agree to indemnify and hold Escrow Agent harmless from and
against any and all liability, cost and expenses, including without limitation
reasonable attorney's fees and costs of litigation, relating to or arising by
virtue of the transfer of the Shares or any claim, demand or cause of action
relating thereto.
5. GENERAL PROVISIONS.
(a) This Agreement and all instruments or documents delivered
pursuant hereto contain the entire and final understanding and agreement of the
parties hereto with respect to he subject matter hereof and may not be altered
or amended except by the mutual written agreement of the parties hereto.
(b) This Agreement shall remain in full force and effect until
the Purchaser no longer owns or controls the Shares and each of the provisions
hereof shall inure to the benefit of and bind, as the case may be, the parties
hereto and their respective successors and assigns.
(c) Should any one or more provisions of this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement shall nevertheless remain in full force and effect.
(d) Each party shall initially deliver all notices, demands
and requests of any kind which either party may be required or may desire to
serve upon the other party hereto in connection with this Agreement by Telefax
and shall thereafter cause the original writings to be delivered to the other
party by overnight courier service, or sent by registered or certified mail
return receipt requested, postage prepaid, and addressed as follows:
To Purchaser: Unisource Cap LLC
c/o Xxxxxxxx Xxxx Group, Inc.
Attn: X.X. Xxxxxx, President
0000 X. Xxxxxxx Xxx., Xxx. 000
Xxxxxxx, XX 00000
Tel. No. 602/000-0000
Fax No. 602/000-0000
To Seller: Active Link Communications, Inc.
Attn: Xxxxx Xxxxxxxxxx
Chairman of the Board of Directors
0000 X. Xxxxxx Xxxxxxx, Xxx. 0000
Xxxxxxxxx, XX 00000
Tel. No. 303/000-0000
Fax No. 303/000-0000
To Escrow Agent: Arizona Escrow & Financial Corporation
Attn: Xxxxxx Xxxxxx, President
0000 X. 00xx Xxxxxx, Xxx. 000
Xxxxxxx, XX 00000
Tel. No. 602/000-0000
Fax No. 602/224/9393
4
(e) This Agreement shall be governed and construed in
accordance with the laws of the State of Colorado.
(f) Faxed copies shall serve as originals for this Agreement.
(g) Seller and Purchaser shall be individually and separately
liable and responsible for the following: (i) the payment of its own taxes,
duties, etc., local, state or national, which may be levied against either of
them arising out of the transactions contemplated herein; (ii) the payment of
its own expenses incurred in connection with its performance hereunder, except
that Purchaser shall be solely liable for the costs of the Escrow Agent; and
(iii) the payment of any broker or other fees payable to third parties arising
out of the transactions contemplated hereunder and, if Seller owes any broker
fees due at Closing from the Purchase Price funds, all pertinent documents and
information necessary to make such payments shall be provided to the Escrow
Agent, including copies of driver licenses, passports, addresses, banking
coordinates, social security nos. and/or Federal and state tax I.D. nos., as
appropriate, to make such payments.
5
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year written below their respective signatures to be effective upon the
Effective Date.
SELLER: PURCHASER:
ACTIVE LINK COMMUNICATIONS, INC. UNISOURCE CAP LLC
By: By:
----------------------------------- -----------------------------------
Xxxxxxx Xxxx Xxxxx Xxxxx
Its: CEO Its: Managing Member
Date: June ___, 2002 Date: June ___, 2002
Fed. I.D. No. Fed. I.D. No.
-------------------------- ---------------------------
6
