EXHIBIT 7.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into as of the
10th day of July, 2001, by and between Financial Entrepreneurs, Incorporated
("Buyer") and Xxxxxx Xxxxxxxxxxx, acting individually and as attorney-in-fact
for those shareholders of Ponte Nossa Acquisition Corp., a Delaware corporation
(the "Company"), identified on the signature page hereof ("Sellers");
RECITALS
A. Sellers own 491,900 shares of the Common Stock of the Company (the
"Shares");
X. Xxxxxxx desire to sell 481,154 of the Shares (the "Purchased
Shares") to Buyer, or its designees, and Buyer desires to purchase the Purchased
Shares from Sellers, on the terms and conditions set forth herein;
In consideration of the promises, representations, warranties and
agreements contained herein, the parties agree as follows:
1. PURCHASE AND SALE OF SHARES
1.1 TRANSFER OF THE PURCHASED SHARES. At the First Closing (as that
term is defined herein), Sellers agree to sell, convey, assign, transfer and
deliver 47,000 of the Purchased Shares (the "First Tranche Shares") to Buyer,
and at the Second Closing (as that term is defined herein), Sellers agree to
sell, convey, assign, transfer and deliver 434,154 of the Purchased Shares (the
"Second Tranche Shares") to Buyer or its designees, and Buyer agrees to
purchase, acquire and accept the Purchased Shares from Sellers, on the terms and
conditions set forth herein.
1.2 PURCHASE PRICE. As full consideration for the sale of the First
Tranche Shares, at the First Closing Buyer shall deliver to Sellers $250,000,
and as full consideration for the sale of the Second Tranche Shares, at the
Second Closing Buyer shall deliver to Sellers $350,000, in each case in the form
of a bank cashier's check on a U.S. or Canadian bank or wire transfer,
reasonably acceptable to Sellers (the "Purchase Price").
2. CLOSINGS.
2.1 TIME AND PLACE. The consummation of the purchase and sale of the
First Tranche Shares (the "First Closing") shall take place concurrently with
the execution of this Agreement, and the consummation of the purchase and sale
of the Second Tranche Shares (the "Second Closing") shall take place no later
than August 17, 2001 (the "Second Closing Date"), in each case at the offices of
Seller, 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, or such other place,
date or time as the parties hereto agree upon. If the Second Tranche Closing
does not occur by the Second Closing Date, and such failure is not a result of
any breach of this Agreement by Sellers, then Sellers may retain, as liquidated
damages, the purchase price of the First Tranche Shares, in addition to whatever
other rights or remedies they may have.
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2.2 DELIVERIES AT THE CLOSINGS. At the First Closing and the Second
Closing, each of the parties hereto shall deliver the various certificates,
consents, instruments and documents provided for in this Agreement, and Sellers
shall deliver stock certificates representing the Shares purchased at such
Closing, duly endorsed for transfer or accompanied by executed stock powers
acceptable in good delivery by Thomson Kernaghan, 0000 Xxxx Xxxxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, Xxxxxx.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers, acting severally and not jointly, hereby make the following
representations and warranties to Buyer:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, has all requisite corporate power and authority to own, operate and
lease its properties and carry on its business as now conducted.
3.2 SUBSIDIARIES. The Company does not own, directly or indirectly, any
shares of capital stock, or any right to acquire any shares of capital stock,
of, or any participation in, any corporation, partnership, joint venture or
other entity.
3.3 CAPITALIZATION. The authorized capital stock of the Company
consists of 20,000,000 shares of Common Stock, par value $.001 per share, and
10,000,000 shares of Preferred Stock, par value $.001 per share. As of the date
hereof, there are 500,000 shares of Common Stock of the Company issued and
outstanding, and no shares of Preferred Stock issued or outstanding. The
outstanding shares of Common Stock are duly and validly authorized and issued,
and are fully paid and nonassessable.
As of the date hereof, there are no warrants, options, calls,
commitments, or other rights to subscribe for or to purchase from the Company
any capital stock of either or any securities convertible into or exchangeable
for any shares of either, or any other securities or agreements pursuant to
which the Company is or may become obligated to issue any shares of its capital
stock, nor is there outstanding any commitment, obligation or agreement on the
part of the Company to repurchase, redeem or otherwise acquire any of the
outstanding shares of its capital stock.
3.4 TITLE TO SHARES; AUTHORIZATION. Sellers have good and marketable
title to the Purchased Shares, free and clear of any liens, restrictions,
marital rights, options or encumbrances, and upon consummation of the purchase
contemplated herein, Buyer will acquire from Sellers good and marketable title
to the Purchased Shares, free and clear of all liens, charges, options or other
encumbrances, excepting only such restrictions upon transfer, if any, as may be
imposed by Federal or state securities laws. Sellers have full legal right,
power and capacity to enter into, execute, deliver and perform this Agreement
and all attendant documents and instruments contemplated hereby, without the
consent of any person. This Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of Sellers and is
enforceable with respect to Sellers in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, priority or other laws or
court decisions relating to or affecting generally the enforcement of creditors'
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rights or affecting generally the availability of equitable remedies. The
execution and delivery of this Agreement by Sellers, and the consummation of the
transactions contemplated hereby by Sellers in accordance with the terms hereof
shall not: (i) conflict with or result in a breach of, violation of, or default
under, (or constitute an event that with notice, lapse of time, or both, would
constitute a breach or default under) any of the terms, conditions or provisions
of the Certificate of Incorporation or Bylaws of the Company, or any note, bond,
mortgage, indenture, license, lease, credit agreement or other agreement,
document, instrument or obligation to which Sellers or the Company is a party or
by which any of their respective assets or properties are bound, (ii) violate
any judgment, order, injunction, decree, statute, rule or regulation applicable
to the Company or Sellers, or any of their respective assets or properties,
(iii) permit any party to terminate any agreement or accelerate the maturity of
any debt or other obligation of the Company or Sellers, (iv) create any lien,
charge or encumbrance on any property of the Company or Sellers, or (iv) result
in a loss or adverse modification of any license, membership, franchise, permit
or other authorization granted to or otherwise held by the Company.
3.6 STATUS OF SHARES. The certificates representing the 47,000 First
Tranche Shares bear no legends or restrictions. Of the Second Tranche Shares,
certificates representing 20,000 shares bear no restrictive legends, and
certificates representing 414,154 shares bear a restrictive legend referring to
the Securities Act of 1933, as amended. Buyer has reviewed and approved the
certificates representing the Purchased Shares. Except as set forth in this
Section, Sellers make no representations or warranties concerning restrictions
on the transferability of the Shares, and Buyer warrants that it has conducted
its own investigation on this matter and has satisfied itself as to the status
of the Purchased Shares.
3.7 DISCLAIMER. Sellers make no representations or warranties
concerning the Shares or the Company except as specifically provided in this
Section 3.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers that:
4.1 AUTHORITY. Buyer has full legal right, power and capacity to enter
into, execute, deliver and perform this Agreement and all attendant documents
and instruments contemplated hereby. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation of Buyer and
is enforceable with respect to Buyer in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, priority or other laws or
court decisions relating to or affecting generally the enforcement of creditors'
rights or affecting generally the availability of equitable remedies.
4.2 NO VIOLATION OF AGREEMENTS. Neither the execution and delivery of
this Agreement nor the consummation of the transaction contemplated hereunder by
Buyer will violate or conflict with any judgment, order, decree, statute, rule
or regulation applicable to Buyer or its assets or properties.
4.3 BROKERAGE. Buyer has no obligation to any person or entity for
brokerage commissions in connection with the transaction contemplated by this
Agreement, and shall indemnify and hold Sellers harmless against any liability
or expense arising out of such a claim asserted against Sellers by any party.
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4.4 INVESTMENT INTENT. Buyer or its designees are purchasing the
414,154 Affiliates, shares included in the Second Tranche Shares for investment
and not with a view to distribution. Buyer has no agreement or understanding
with any person as to the disposition of the 414,154 Affiliates' shares included
in the Purchased Shares or any interest therein.
5. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer to consummate the transactions contemplated by
this Agreement shall be subject to the fulfillment at or prior to each Closing
of each of the conditions set forth below, any or all of which may be waived by
Buyer in whole or in part without prior notice.
5.1 CONVEYANCE AND ASSIGNMENT. Sellers shall have duly executed and
delivered to Buyer the certificates for the Shares duly endorsed for transfer
and such other instruments of transfer and conveyance as shall be necessary to
transfer ownership of the Shares to Buyer.
5.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Sellers contained in this Agreement shall be accurate and complete
on and as of each Closing Date with the same effect as though such
representations and warranties had been made on and as of such date.
5.3 ACTIONS OR PROCEEDINGS. No action, suit or other proceeding before
a court, tribunal or other governmental agency or body shall have been
instituted or threatened by any person unrelated to Buyer to restrain or
prohibit the consummation of the transactions contemplated by this Agreement.
5.4 COURT ORDERS. No preliminary or permanent injunction or other
order, decree or ruling issued by a court of competent jurisdiction or by a
government, regulatory or administrative agency or commission nor any statute,
rule, regulation or executive order promulgated or enacted by any governmental
authority shall be in effect which would prevent the consummation of the
transactions contemplated hereby.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS
The obligations of Sellers to consummate the transactions contemplated
by this Agreement shall be subject to the satisfaction of each of the conditions
set forth below, any or all of which may be waived by Sellers in whole or in
part without prior notice:
6.1 PURCHASE PRICE. Buyer shall deliver the Purchase Price at the
respective Closings as provided in Section 1.2.
6.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer contained in this Agreement shall be accurate and complete
on and as of the Closing Date with the same effect as through such
representations and warranties had been made on or as of such date.
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6.3 ACTIONS OR PROCEEDINGS. No action, suit or other proceeding before
a court, tribunal or other governmental agency or body shall have been
instituted or threatened by any person to restrain or prohibit the consummation
of the transactions contemplated by this Agreement.
6.4 COURT ORDERS. No preliminary or permanent injunction or other
order, decree or ruling issued by a court of competent jurisdiction or by a
government, regulatory or administrative agency or commission nor any statute,
rule, regulation or executive order promulgated or enacted by any governmental
authority shall be in effect which would prevent the consummation of the
transactions contemplated hereby.
7. TRANSACTIONS PENDING SECOND CLOSING; ADDITIONAL AGREEMENTS
7.1 RESIGNATION. At the First Closing, Xxxxxx Xxxxxxxxxxx shall deliver
to the Company a letter of resignation in which he resigns from the Board of
Directors of the Company and from all other positions held with the Company.
7.2 COOPERATION. Each party will take all reasonable actions necessary
to comply promptly with all legal requirements which may be imposed on it with
respect to the consummation of the transactions contemplated by this Agreement
and will promptly cooperate with and furnish information to any other party in
connection with any such requirements imposed upon any of them in connection
with the consummation of the transactions contemplated by this Agreement. Each
party will take all reasonable actions necessary to obtain (and will cooperate
with any other party in obtaining) any consent, approval, order or authorization
of, or any registration, declaration or filing with, any governmental entity,
domestic or foreign, or other person, required to be obtained or made by such
party (or by any other party) in connection with the taking of any action
contemplated by this Agreement.
7.3 PROXY. Effective as of the First Closing, Sellers hereby grant to
Buyer an irrevocable proxy to vote, or deliver consents on behalf of, all of the
Second Tranche Shares, on all matters subject to vote or consent by the
shareholders, including election of directors; provided, however, that Buyer
shall not exercise this proxy in such a way that results in the issuance of
additional shares of capital stock of the Company, except for fair value
received. The proxy given in this Section shall expire and be of no further
force or effect on the earlier to occur of (i) the Second Closing, or (ii)
thirty days from the date of this Agreement.
8. MISCELLANEOUS
8.1 EXPENSES AND TAXES. Each party shall bear and pay his, her or its
own expenses, including legal, accounting and other professional fees, and taxes
incurred in connection with the transactions referred to in this Agreement.
Buyer shall bear and pay in their entirety all other taxes and registration and
transfer fees, if any, payable by reason of the sale and conveyance of the
Purchased Shares.
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8.2 PUBLIC ANNOUNCEMENTS. Until the Second Closing, neither party may
make any public statements or issue any press releases with respect to this
Agreement, except as may be required by applicable law.
8.3 ENTIRE AGREEMENT; MODIFICATIONS; WAIVER. This Agreement, together
with the related agreements described herein, constitutes the final, exclusive
and complete understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior agreements, understandings and
discussions with respect thereto. No variation or modification of this Agreement
and no waiver of any provision or condition hereof, or granting of any consent
contemplated hereby, shall be valid unless in writing and signed by the party
against whom enforcement of any such variation, modification, waiver or consent
is sought.
8.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by any party to this Agreement or pursuant hereto shall survive
the closing of the transactions hereunder. The representations and warranties
hereunder shall not be affected or diminished by any investigation at any time
by or on behalf of the party for whose benefit such representations and
warranties were made.
8.5 FURTHER ASSURANCES. The parties hereto shall use their best
efforts, and shall cooperate with one another, to secure all necessary consents,
approvals, authorizations, exemptions and waivers from third parties as shall be
required in order to consummate the transactions contemplated hereby, and shall
otherwise use their best efforts to cause such transactions to be consummated in
accordance with the terms and conditions hereof. At any time or from time to
time after the respective Closing Dates, each party hereto shall execute and
deliver any further instruments or documents and take all such further action as
such requesting party may reasonably request in order to consummate and document
the transactions contemplated hereby.
8.6 CAPTIONS. The captions in this Agreement are for convenience only
and shall not be considered a part of or affect the constructing or
interpretation of any provision of this Agreement.
8.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall constitute an original copy
hereof, but all of which together shall constitute one agreement.
8.8 SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
either party without the prior written consent of the other party, except as
specifically provided herein. Subject to the foregoing sentence, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
8.9 PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over against any party to this Agreement.
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8.10 LAW GOVERNING;. This Agreement shall be governed by, and construed
and enforced in accordance with the laws of the State of California, without
regard to its choice-of-laws or conflicts-of-law rules.
8.1 ATTORNEYS' FEES. If an action is brought to enforce this Agreement,
the party prevailing in such action shall be entitled to recover attorneys' fees
and costs of suit.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of date first above written.
Financial Entrepreneurs, Incorporated
By /s/ Norton Xxxxxx
---------------------------------------------------
Norton Xxxxxx - President
("Buyer")
Certain Shareholders of Ponte Nossa Acquisition Corp.,
as specified on Schedule I
By /s/ Xxxxxx Xxxxxxxxxxx
---------------------------------------------------
Xxxxxx Xxxxxxxxxxx, attorney-in-fact
("Sellers")
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Schedule I
Certain Shareholders of Ponte Nossa Acquisition Corp.
Name Number of Shares
---- ----------------
Xxxxxx Xxxxxxxxxxx 205,154
Xxxx Xxxxxx 209,000
Xxxxx Xxxxx 1,400
Xxxxxxx Xxxxx 1,400
Xxxxxxx Xxxxx, Xx. 1,400
Xxxxxx Xxxxx 1,400
Xxxxx Xxxxx 1,400
Xxxxx Xxxxx 1,400
Xxxxxxx Xxxxx 1,400
Xxxxxxxx Xxxxx 1,400
Xxxx Xxxxx 1,400
Xxxxxxxx Xxxxx 1,400
Xxxxxx Xxxxxxx 2,800
Xxxx Xxxxx Xxxxxxxx 700
Xxxxx Xxxx 700
Xxxxxx Xxxxxxxxxxx 3,500
Xxxxxx Xxxxx 700
Romana Casati 27,100
Siobhan Camerford 1,400
Xxxxxxxxx Xxxxxx 1,400
Mariantonietta Denti 2,800
Xxxxxxxx Xxxxxxxxx 700
Xxxxx Pia Falcoz 1,400
Xxxxxxx Xxxxxx 700
Tiziano Gamba 700
Patrizia Genti 700
Xxxxxx Xxxxx 1,400
Xxxxxxx Xxxxxxx 1,400
Xxxxxxx Xxxxxxx 2,800
Xxxxx X'Xxxxxxxx 1,400
Xxxxx Xxxxxxxxx 700
