STOCK PURCHASE AGREEMENT
AGREEMENT effective as of the 8th day of January, 2004 between Twin
Lakes, Inc., a Nevada corporation (the "Company"), Turquoise Partners, LLC, a
New York limited liability company ("Buyer"), Xxxxxx X. Xxxxxx ("JRT"), an
individual residing at 00 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000, Estancia LLC,
a Nevada limited liability corporation ("ELC"), Snow Xxxxxx Xxxxxx, P.C., a
professional corporation organized under the laws of New York ("SBK"), and SBK
Investment Partners, a partnership organized under the laws of New York ("SIP"),
(JRT, ELC, SBK, and SIP, collectively, the "Sellers")
W I T N E S S E T H
WHEREAS, Buyer desires to acquired all of the Company's outstanding
equity securities, except for an aggregate of 60,000 shares of the Company's
common stock, such 60,000 shares of the Company's common stock hereunder (the
"Retained Shares") and the Company desires that Buyer acquire all of the
Company's equity other than the Retained Shares; and
WHEREAS, Sellers are the holders of all of the Company's equity
securities, such securities consisting of an aggregate of 3,000,000 shares of
common stock, $0.001 par value, and Class A Warrants ("Warrants") to acquire in
the aggregate 1,000,000 shares of the Company's common stock; and
WHEREAS, Sellers desire to sell all of outstanding securities of the
Company, except for the Retained Shares; and
WHEREAS, the Buyer desires to acquire from the Sellers the Offered
Securities on the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the partners hereby agree as follows:
1. Purchase and Sale of Shares.
Upon the terms and conditions set forth in this Agreement at the
Closing on the Closing Date (as defined in paragraph 2 hereof), Buyer shall
purchase an aggregate of 2,940,000 shares of the Company's common stock, par
value $.001 per share (the "Shares") and 1,000,000 Class A warrants to acquire
Shares (the "Warrants") for an aggregate purchase price of $32,000, as follows:
(i) It shall purchase from ELC, and ELC shall sell to Buyer,
2,205,000 Shares and 986,667 Warrants for a purchase price of
$24,000;
(ii) It shall purchase from SBK and SBK shall sell to Buyer 39,200
Shares and 13,333 Warrants for a purchase price of $426.67; and
(iii) It shall purchase from SIP, and SIP shall sell to Buyer, 695,800
Shares for an aggregate purchase price of $7,573.33.
2. Closing.
The Closing of the purchase and sales of the Shares shall take place at
the offices of Snow Xxxxxx Xxxxxx P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, on January 8, 2004 (the "Closing Date"), or at such earlier time, date or
place as the parties hereto shall mutually agree. At the Closing, ELC, SBK and
SIP shall each deliver to Buyer certificates representing each of the Shares and
a single certificate for each of the Warrants to be sold by each of them as
specified in paragraph 1 above against delivery to each of them of a check
payable to their order in the amount of the purchase price specified in
immediately available New York City funds. Each of the certificates representing
the Shares and Warrants delivered shall each be duly endorsed to the order of
Buyer with the signatures guaranteed.
3. Representations and Warranties of the Company JRT and ELC.
Each of JRT, ELC and the Company, jointly and severally, represent and
warrant to Buyer that:
3.1 Incorporation, standing, etc. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws
of the State of Nevada and has all requisite corporate power and
authority to own and operate its properties, to carry on its
business as now conducted and to enter into this Agreement
3.2 Capitalization. The authorized capital stock of the Company
consists of 8,000,000 shares of Preferred Stock, par value $.001 per
share, none of which shares is outstanding, and 40,000,000 shares of
Common Stock, $.001 per share, of which 3,000,000 shares of Common
Stock are outstanding and 1,000,000 shares of Common Stock are
reserved for issuance upon exercise of the Warrants and no shares of
Preferred Stock are issued or reserved for issuance. The Company
does not hold any shares of Common Stock in its treasury. All such
presently outstanding shares have been duly and validly authorized,
and are validly issued and outstanding and fully paid and
non-assessable, free and clear of all claims, liens, encumbrances,
subscriptions, options, warrants, calls, contracts, demands,
commitments, convertible securities or other agreements or
arrangements of any character or nature whatsoever under which the
Company or any Seller is or may become obligated to issue, assign,
transfer or purchase any shares of the capital stock of the Company
or allocate the proceeds from the sale of the Shares to the Buyer to
any person other than the respective registered owner in direct
proportion to their record Share holdings. No shares of the capital
stock of the Company are or should be reserved for issuance.
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3.3 Compliance with Other Instruments, etc. The execution and delivery
of this Agreement, compliance by the Company with all provisions
hereof, and the consummation of the transactions contemplated hereby
will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the Certificate of Incorporation
or By-Laws of the Company, or any agreement, indenture or other
instrument to which the Company is a party or by which the Company
is bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company or
to any of its property.
3.4 Governmental Consent, etc. No consent, approval, or authorization
of, or declaration or filing with, any governmental authority on the
part of the Company is required for the valid execution and delivery
of the Agreement or the valid offer, issue, sale and delivery of the
shares sold by the Company pursuant hereto except for such as have
already been obtained or made.
3.5 Authorization, etc. The Company has full legal right, power and
authority to enter into this Agreement and the execution and
delivery of this Agreement by the Company has been duly authorized.
This Agreement when executed and delivered, shall constitute a valid
and legally binding obligation of the Company enforceable in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally.
3.6 Shares and Warrants. Upon Closing, the Shares and Warrants
delivered by the Sellers to Buyer pursuant to this Agreement shall
have been duly authorized, validly issued, fully paid and
non-assessable.
3.7 SEC Reports. The Company has duly filed all reports required to be
filed by it with the Securities and Exchange Commission under the
Securities Exchange Act of 1934. All such reports are complete and
correct in all material respects and conform in all material
respects with the requirements of such Act and the rules and
regulations thereunder. None of such reports contains any untrue
statement of a material fact or fails to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3.8 Adverse Change. Since the filing of the Company's most recent
quarterly report on Form 10-QSB with the Securities and Exchange
Commission there has been no material adverse change in the
Company's financial position as reported in the financial statements
included therein.
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3.9 Litigation. The Company is not involved in any pending litigation
and the Company is not aware of any impending litigation in which it
would be involved.
3.10 Disclosures. The financial information and other reports and
documents supplied to Buyer by the Company do not contain any untrue
statement of a material fact or fail to state any material fact
necessary to make the statements.
3.11 No Subsidiaries. The Company does not own any shares or any other
interest, beneficially or of record, in any other corporation or in
any partnership, unincorporated association, trust or other entity.
The Company currently does not and never has operated any business.
3.12 Financial Statements. The Company and the Sellers have delivered
to the Buyer true and correct copies of the unaudited balance sheets
and notes thereto and related unaudited statements of income,
changes in stockholders' equity and changes in financial position of
the Company as of the three and nine months ended September 30,
2003. The balance sheets included in the unaudited financials
present fairly the financial position of the Company as of the
respective balance sheet dates thereof and the statements of income,
changes in stockholders' equity and changes in financial position of
the Company included in the unaudited financials present fairly the
results of operations and changes in financial position of the
Company for the respective periods covered thereby. The unaudited
financials (a) to the best knowledge of the Sellers, were prepared
in accordance with generally accepted accounting principles applied
on a consistent basis throughout the periods indicated and with
prior periods, (b) are true, complete and correct, and (c) were
prepared from the books and records of the Company, which books and
records are complete and correct and accurately reflect the
transactions of the Company.
3.13 No Additional Liabilities. At November 30, 2003, the Company had
no liability, absolute or contingent(1), which is not shown on or
reserved against on the September 30, 2003 balance sheet included in
the unaudited financials (the "September 30, 2003 Balance Sheet").
Since September 30, 2003, there has been no change in the condition,
financial or otherwise, of the Company or on the accompanying
statement of operations. Since September 30, 2003, the Company has
incurred no indebtedness or contingent liability other than in the
ordinary course of business as set forth on Schedule 3.13 attached
hereto. The Company shall have a cash balance of at least $1,422 in
its bank account at Closing. The Company has no employees.
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(1) The term "contingent liability" shall have the same meaning in this
Agreement as is prescribed in Financial Accounting Standards Board Release
No. 5.
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3.14 Tax Returns. The Company has filed with the appropriate
governmental agencies, and furnished copies to Buyer of, all federal
tax returns and reports, all state and local tax returns and reports
with respect to income and sales taxes and all other tax returns and
reports the filing of which is necessary for the conduct of the
business of the Company in those jurisdictions where such business
is conducted (the "Tax Returns"). All Tax Returns properly reflect
the taxes of the Company for the periods covered thereby. All
federal, state and local taxes, assessments, interest, penalties or
deficiencies, fees and other governmental charges or impositions
called for by the Tax Returns, or claimed to be due by an taxing
authority upon the Company or upon or measured by its properties or
assets or income (the "Taxes"), have been properly accrued or paid.
The Company has not received any notice of deficiency or assessment
or proposed deficiency or assessment by the Internal Revenue Service
or any other taxing authority in connection with any Tax Returns.
All federal income tax returns included in the Tax Returns have been
examined and reported on by the relevant taxing authorities or
closed by applicable statutes and satisfied for all fiscal years
prior to and including the fiscal year ended December 31, 2002. The
Company has not waived any law or regulation fixing, or consented to
the extension of, any period of time for assessment of any Tax.
The accrued liability for current and deferred income taxes shown on
the September 30, 2003 Balance Sheet is adequate to cover the tax
liabilities of the Company as of that date and nothing has occurred
subsequent to that date to make said amount inadequate. The Company
is not a consenting corporation within the meaning of Section 341(f)
of the Internal Revenue Code of 1954, as amended.
4. Representations and Warranties of Sellers. The Sellers each, jointly and
severally, represent and warrant to Buyer that:
4.1 Authorization, etc. It has the full legal right, power and
authority to enter into this Agreement and the execution and
delivery of the Agreement by it has been duly authorized. This
Agreement, when executed and delivered, shall constitute its valid
and legally binding obligations respectively, enforceable in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally.
4.2 Ownership of Shares and Warrants. It owns the Shares and Warrants
it is selling to Buyer under this Agreement, free and clear of All
claims, liens, encumbrances, subscriptions, options, warrants,
calls, contracts, demands, commitments, convertible securities or
other agreements or arrangements of any character or nature
whatsoever under which the Company or any Seller is or may become
obligated to issue, assign, transfer or purchase any shares of the
capital stock of the Company or allocate the proceeds from the sale
of the Shares to the Buyer to any person other than the respective
registered owner in direct proportion to their record Share
holdings. No shares of the capital stock of the Company are or
should be reserved for issuance.
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4.3 Satisfaction of Liabilities and Obligations. The Sellers shall have
reduced all outstanding indebtedness and ongoing obligations of the
Company as of the Closing Date to an aggregate amount not to exceed
$10,000 and the loan payable to Shareholders reflected on the books
and records of the Company in the principal amount of $30,100 shall
be satisfied in full prior to the Closing.
5. Representations and Warranties of Buyer. Buyer represents and warrants to
the Sellers that:
5.1 Authorization, etc. Buyer has full legal right, power and authority
to enter into this Agreement and the execution and delivery of this
Agreement by it has been duly authorized. This Agreement, when
executed and delivered, shall constitute a valid and legally binding
obligation of Buyer enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization
or other laws affecting the enforcement of creditors' rights
generally.
5.2 Compliance with Other Instruments, etc. The execution and delivery
of this Agreement, compliance by Buyer with all provisions hereof,
and the consummation of the transactions contemplated hereby will
not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, its Certificate of Incorporation
or By-Laws, or any agreement, indenture or other instrument to which
it is a party or by which it is bound, or violate or conflict with
any laws, administrative regulations or rulings or court decrees
applicable to it or to any of its property.
5.3 Governmental Consent, etc. No consent, approval or authorization
of, or declaration or filing with, any governmental authority on the
part of Buyer is required for the valid execution and delivery of
this Agreement or the valid purchase and receipt of the Shares and
warrants pursuant hereto except for such as have already been
obtained or made.
5.4 Piggyback Registration Rights. Unless the Retained Shares become
eligible for resale under Rule 144 of the Securities Act of 1933, as
amended, for which they are not currently eligible, the Company
shall register the Retained Shares on the first registration
statement for which such shares can be registered. In the event that
the Retained Shares cannot then be registered, because of an
underwriter's cutback or for any other reason, the Company shall
register the Retained Shares on the first available registration
statement.
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6. Buyer's Conditions to Closing. Buyer's obligation to purchase the Shares
and Warrants to be sold to it is subject to the fulfillment to its
reasonable satisfaction prior to or at the Closing of the following
conditions:
6.1 Simultaneous Transactions. All four sales set forth in paragraph 1
shall be simultaneously consummated.
6.2 Representations and Warranties Correct. The representations and
warranties of the Company, the Sellers contained in this Agreement
shall be true and correct in all material respects when made and at
the time of the Closing.
6.3 Performance: No Default. The Company and the Sellers shall have
performed and complied with all agreements and conditions contained
in this Agreement required to be performed or complied with by them
prior to or at the Closing.
6.4 [Intentionally left blank].
6.5 Opinion of Counsel for the Company and for the Sellers. Buyer shall
have received opinions, dated the Closing Date of Snow Xxxxxx Xxxxxx
PC, counsel to the Company and the Sellers in form and substance
satisfactory to Buyer to the effect that: (i) the Company is a
corporation duly incorporated, validly existing and in good standing
under the laws of the State of Nevada and has the corporate power to
enter into and perform the terms and provisions of this Agreement;
(ii) the execution, delivery and performance of this Agreement have
been duly authorized by the Company and the Sellers; (iii) all
corporate acts and other proceedings required to be taken to
authorize the delivery of the Shares and Warrants of the Company by
the Sellers to this Agreement have been duly and properly taken;
(iv) the Shares and Warrants to be sold to Buyer pursuant to this
Agreement, upon delivery to the Company of certificates therefore in
accordance with the terms of this Agreement will be validly issued,
fully paid and non-assessable; (v) the Sellers have the power to
sell and transfer the Shares and Warrants to be sold by it under
this Agreement; (vi) no provision of the Certificate of
Incorporation, By-Laws or Partnership Agreement of the Company or
the Sellers, or of any mortgage, indenture, agreement, contract or
other instrument known to such counsel to which the Company and the
Sellers are a party, will be violated or breached by the performance
by the Company and the Sellers of this Agreement and the
transactions contemplated hereby; and (vii) no consent or approval
by any governmental authority is required in connection with the
consummation by the Company and the Sellers of the transactions
contemplated hereby, except for such as have already been obtained.
In rendering such opinions, such counsel may rely to the extent
specified therein upon certificates as to matters of fact of
officers of the Company and the Sellers, provided that such counsel
shall state that they believe that both Buyer and they are justified
in relying upon such certificates.
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6.6 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated hereby and all
documents and instruments incident to such transactions shall be
satisfactory in all respects to Buyer, and Buyer shall have received
all such counterpart originals or certified or other copies of such
documents as they may reasonably request. In addition, Exhibit
6.6(a) hereto is a full and correct copy of the Company's current
Certificate of Incorporation and as Exhibit 6.6(b) a list of all
accounts payable outstanding as of November 30, 2003.
6.7 Satisfaction of Liabilities and Obligations. The Company and the
Sellers shall provide evidence satisfactory to Buyer, in its sole
discretion, that the aggregate amount of obligations and liabilities
of the Company outstanding at the Closing shall not exceed $10,000,
the Company shall have at least $1,400 in cash, and the Company
shall deliver to the Buyer evidence to the satisfaction of Buyer, in
its sole discretion, that all such liabilities and obligations
outstanding in excess of such amounts has been satisfied in full and
shall provide Buyer a list of all outstanding Liabilities and
Obligations as of the Closing Date.
6.8 Resignation of Current Officers and Directors. All Officers and
Directors of the Company shall have delivered to the Buyer their
respective resignations from all such positions effective as of the
Closing.
7. Conditions of the Sellers to Closing. The obligations of the Sellers to
sell the Shares and Warrants to Buyer are subject to the fulfillment to the
reasonable satisfaction at or prior to the Closing of each of the following
conditions
7.1 Simultaneous Transactions. All four sales set forth in paragraph 1
shall be simultaneously consummated.
7.2 Purchase Price. Buyer shall tender to the Seller the purchase price
as set forth in paragraphs 1 and 2 above.
8. Survival of Representations and Warrants. All representations, warranties,
and agreements of the parties hereto shall survive the closing.
9. Indemnification and Resolution of Disputes.
9.1 Indemnification of Buyer. Each of Sellers, jointly and severally,
hereby indemnifies Buyer and shall hold it harmless at all times
after the date of this Agreement in respect of each and all of the
following:
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9.1.1 Misrepresentations. Any and all damage or deficiency resulting
from any misrepresentation, breach of warranty or covenant, or
nonfulfillment of any obligation on the part of any of the Sellers
contained in this Agreement or from any misrepresentation in or
omission from any certificate, schedule or other instrument
furnished to Buyer in connection herewith.
9.1.2 Actions, etc. All demands, assessments, judgments, costs and
legal and other expenses, including, without limitation, reasonable
attorneys' fees, arising from, or in connection with, any action,
suit, proceeding, settlement or claim incident to any of the
foregoing.
9.1.3 Tax Liabilities. Any federal, state, city, and foreign income,
profits, franchise, sales, occupation, property, excise, or other
taxes due in connection with the business or the property of the
Company for any period prior to the Closing Date, which have not
been fully paid.
9.1.4 Reimbursement of Buyer. Should any claim be made by a person not
a party to this Agreement with respect to any matter to which the
foregoing indemnity relates.
9.1.5 Claims Against Buyer. Should any claim be made by a person not a
party to this Agreement with respect to any matter to which the
foregoing indemnity relates, Buyer shall within a reasonable period
of time give written notice of any such claim to Sellers and Sellers
shall thereafter defend or settle any such claim, at its sole
expense, with counsel of its selection. Any payment resulting from
such defense or settlement, together with the total expense thereof,
shall be binding on Sellers and Buyer for the purposes of this
Section. Failure to give timely notice shall not constitute a
defense, in whole or in part, to any claim by Buyer.
10. Payment and Expenses. Each of the parties to the Agreement will pay its
owns expenses, incident to preparing for, entering into and performing this
Agreement and to the consummations of the transactions contemplated
thereby.
11. Governing Law. The Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Cooperation, etc. Each of the parties hereto shall cooperate with the
others in every way in carrying out the transactions contemplated herein,
and delivering instruments to perfect the conveyances, assignments and
transfers contemplated herein, and in delivering all documents and
instruments deemed reasonably necessary or useful by counsel for any party
hereto. The parties shall coordinate all publicity relating to the
transactions contemplated hereby, and no party shall issue any press
release, publicity statement or other public notice relating to this
Agreement or the transactions contemplated hereby without obtaining the
prior consent of the other parties.
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13. Brokers, etc. Each party represents and warrants that no broker or finder
is entitled to any brokerage or finder's fee or other commission from it
based upon agreements, arrangements or undertakings made by it in
connection with the transactions contemplated hereby.
14. Assignability. This Agreement shall be assignable by Buyer only.
15. Notice. All notices and other communications provided for herein shall be
validly given if in writing and delivered personally and (i) if sent by
telecopy or other facsimile, and (ii) if sent within the United States, by
prepaid first class certified mail, (a) if to the Company addressed to 0000
Xxxxxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxx, 00000, Att: Xxxxxx X. Xxxxxx,
Chairman, telecopy: (000) 000-0000, (or to such other address as the party
shall have furnished in writing in accordance with the provisions of this
paragraph 15 with a copy to each of the parties hereto.); (b) if to Buyer,
addressed to Turquoise Partners, LLC, 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Att: Xxxxxx Xxxxx, telecopy (000) 000-0000; (c) if to
JRT or ELC, addressed to c/o Xxxxxx X. Xxxxxx, 00 Xxxxxxxx Xxxxx Xxxxx,
Xxxxxxxxx, Xxxxxx 00000, telecopy (000) 000-0000; and (d) if to SBK or SIP,
addressed to Snow Xxxxxx Xxxxxx PC, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Att: Xxxxxx Xxxxxxx, telecopy (000) 000-0000.
16. Entire Agreement. Prior to the Closing any provision of this Agreement may
be amended or modified in whole or in part at any time and the observance
of any term hereof may be waived only by an agreement in writing among all
of the parties hereto approved and executed in the same manner as this
Agreement. This Agreement contains the entire agreement between the parties
hereto with respect to the transactions contemplated herein and supersedes
all previous written or oral negotiations, commitments, representations and
agreements.
17. Execution in Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered in the State of New York as of the day and year first
above written.
TWIN LAKES, INC. TURQUOISE PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxx
---------------------------- ------------------------------
Xxxxxx X. Xxxxxx, President Xxxxxx Xxxxx, Managing Member
/s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
XXXX XXXXXX XXXXXX PC SBK INVESTMENT PARTNERS
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------- --------------------------
Xxxxxx Xxxxxxx, Vice President Xxxxxx Xxxxxxx, Partner
ESTANCIA LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, Manager
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