1
Exhibit 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is dated as of March __, 1999, by and among
Wheatear Corporation or its assigns and Xxxx Xxxxx or his assigns
(collectively, the "Buyer"), and the individuals listed on Schedule A attached
hereto (collectively, the "Seller").
WHEREAS, Seller owns approximately 1,450,000 shares of the $.001 par value
common stock of Automotive Technologies, Inc., a Colorado corporation (the
"Company"); and
WHEREAS, Buyer wishes to purchase, and the Seller is willing to sell
1,450,000 shares of such common stock (the "Company Shares") from Seller in
exchange for $225,000, subject to the terms and conditions contained in this
Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree that the foregoing recitals are true
and correct and further agree as follows:
1. PURCHASE AND SALE. On the Closing (as provided in Section 2 herein),
Seller shall sell, assign, transfer, convey and deliver the Company Shares to
Buyer, free and clear of any and all liens, claims and encumbrances, and Seller
shall evidence such transaction by delivering to Buyer certificates for the
Company Shares, duly endorsed to Buyer, with all applicable documentary stamp
and/or transfer taxes paid by Seller.
Upon the terms and subject to the conditions of this Agreement, the
parties agree that the purchase price for the Company Shares shall be $225,000
(the "Purchase Price"). The Purchase Price shall be paid as follows: $25,000
upon the execution of the Term Sheet, dated as of March 16, 1999 by cashier's
check or wire transfer; the balance of $200,000 shall be paid at the Closing by
cashier's check or wire transfer.
2. CLOSING AND CLOSING AGREEMENTS.
2.1 The Closing (the "Closing") of the purchase and sale of the
Company Shares shall occur within 7 days of the execution of this Agreement,
unless the parties mutually agree in writing to extend the date of Closing.
2.2 At the Closing, the Seller shall deliver to the Buyer the
certificate or certificates representing the Company Shares, along with a stock
power duly endorsed for transfer in order to sell, transfer, convey and assign
the Company Shares upon the payment of all cash sums specified in Section 1
above, and such other duly executed instruments or documents as may be
reasonably requested by Buyer in order to consummate the transactions
contemplated by this Agreement (the "Closing Documents").
2.3 The Buyer shall deliver to the Seller the Purchase Price in
accordance with Section 1 above, and such other duly executed instruments or
documents as may be reasonably requested by Seller in order to consummate the
transactions contemplated by this Agreement.
2
2.4 The Seller shall deliver the Closing Documents to the Buyer and
the Buyer shall remit the Purchase Price to the Seller. If the Seller fails to
deliver the Closing Documents or the Buyer fails to deliver the Purchase Price
at the Closing, this Agreement shall be void and of no effect.
2.5 At or subsequent to the Closing, the parties shall execute and
deliver any other instruments and take any actions, which may be reasonably
required for the implementation of this Agreement and the transactions
contemplated hereby.
3. SELLER'S REPRESENTATIONS AND WARRANTIES. In order to induce Buyer to
enter into this Agreement and purchase the Company Shares, Seller makes the
following representations and warranties to Buyer, which representations and
warranties shall be true and correct as of the Closing date as well as on the
date hereof:
3.1 Seller has full power and authority to enter into this Agreement
and to carry out the transactions contemplated hereby. This Agreement
constitutes this legal, valid and binding obligation of Seller, enforceable in
accordance with its terms. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby requires the
approval or consent of any third party, whether governmental or otherwise.
3.2 Seller is the only legal, record and beneficial owner of the
Company Shares. The Company Shares are free and clear of all liens, pledges,
security interests, irrevocable proxies, encumbrances or restrictions of any
kind. Upon the conveyance of the Company Shares, the Buyer will be vested with
legal and valid title to the Company Shares, free and clear of all liens,
pledges, security interests, irrevocable proxies, encumbrances or restrictions
of any kind.
3.3 There is no outstanding right, agreement, shareholder's
agreement, power of attorney, commitment or understanding of any nature
whatsoever, that (i) calls for the issuance, sale, pledge or other disposition
of any stock constituting the Company Shares, (ii) obligates the Seller to
enter into any of the foregoing or (iii) relates to the voting or control of
such Company Shares.
3.4 The execution, delivery and performance of this Agreement and
the transactions contemplated by this Agreement will not conflict with, or
constitute or result in a breach, default or violation of (i) the Articles of
Incorporation or Bylaws of the Company; (ii) any law, ordinance, regulation or
rule applicable to Seller or the Company; (iii) any order, judgment, injunction
or other decree by which Seller or the Company is bound; or (iv) any written or
oral contract, agreement, or commitment to which Seller or the Company is a
party; nor will such execution, delivery and performance result in the creation
of any lien or encumbrance upon the Company Shares.
3.5 The representations and warranties contained in this Section do
not contain any untrue statement of a material fact or omit to state a material
fact required or necessary to be stated therein to make the statements made
therein, in light of the circumstances in which they were made, not misleading.
2
3
4. BUYER'S REPRESENTATIONS AND WARRANTIES. In order to induce Seller to
enter into this Agreement and sell the Company Shares, Buyer makes the
following representations and warranties to Seller, which representations and
warranties shall be true and correct as of the Closing date as well as the
date hereof:
4.1 Buyer has all requisite right, power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby requires the approval or consent of any third
party.
4.2 This Agreement constitutes the legal, valid and binding
obligation of Buyer enforceable in accordance with its terms.
5. CONDITIONS TO BUYER'S OBLIGATIONS. The obligations of Buyer to
consummate the transactions contemplated hereby shall be subject to the
satisfaction on or prior to the Closing Date of all of the following
conditions, except such conditions as Buyer may waive:
5.1 Seller shall have complied in all material respects with all of
its agreements and covenants contained herein required to be complied with at
or prior to the Closing Date, and all the representations and warranties of
Seller contained herein shall be true on and as of the Closing Date with the
same effect as though made on and as of the Closing Date.
5.2 All action (including notifications and filings) that shall be
required to be taken by Seller in order to consummate the transactions
contemplated hereby shall have been taken and all consents, approvals,
authorizations and exemptions from third parties (if any) that shall be
required in order to enable Seller to consummate the transactions contemplated
hereby shall have been duly obtained.
5.3 No order of any court or governmental or regulatory authority or
body which restrains or prohibits the transactions contemplated hereby shall be
in effect on the Closing Date and no suit or investigation by any government
agency to enjoin the transactions contemplated hereby or seek damages or other
relief as a result thereof shall be pending or threatened as of the Closing
Date.
5.4 Buyer shall have received from the Seller all of the documents
and items required to be delivered at Closing as provided in Section 2.2 herein.
6. CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of Seller to
consummate the transactions contemplated hereby shall be subject to the
satisfaction on or prior to the Closing Date of all of the following
conditions, except such conditions as Seller may waive:
6.1 Buyer shall have complied in all material respects with all of
its agreements contained herein required to be complied with at or prior to the
Closing Date, and all of the
3
4
representations and warranties of Buyer contained herein shall be true in all
material respects on and as of the Closing Date with the same effect as though
made on and as of the Closing Date.
6.2 All action (including notifications and filings) that shall be
required to be taken by Buyer in order to consummate the transactions
contemplated hereby shall have been taken, and all consents, approvals,
authorizations and exemptions from third parties that shall be required in
order to enable Seller to consummate the transactions contemplated hereby shall
have been duly obtained.
6.3 No order of any court or governmental or regulatory authority or
body which restrains or prohibits the transactions contemplated hereby shall be
in effect on the Closing Date and no suit or investigation by any government
agency to enjoin the transactions contemplated hereby or seek damages or other
relief as a result thereof shall be pending or threatened in writing as of the
Closing Date.
6.4 Seller shall have received from the Buyer all of the documents
and other items required to be delivered at Closing as provided in Section 2.3
herein.
7. SURVIVAL AND INDEMNIFICATION.
7.1 The representations, warranties, covenants and agreements
contained herein to be performed or complied with after the Closing shall
survive without limitation as to time, unless the covenant or agreement
specifies a term, in which case such covenant or agreement shall survive until
the expiration of such specified term.
7.2 From and after the Closing Date, the Seller and the Company, and
the Buyer, as the case may be, shall indemnify and hold harmless the other (the
party seeking indemnification being referred to as the "Indemnified Party")
from and against any and all claims, losses, liabilities and damages,
including, without limitation, amounts paid in settlement, reasonable costs of
investigation and reasonable fees and disbursements of counsel, arising out of
or resulting from the inaccuracy of any representation or warranty, or the
breach of any covenant or agreement, contained herein or in any instrument or
certificate delivered pursuant hereto, or in the case of the Seller or the
Company, any claim arising from any action prior to the Closing Date, by the
party against whom indemnification is sought (the "Indemnifying Party").
7.3 The Indemnified Party shall promptly notify the Indemnifying
Party in writing of any claim for indemnification, specifying in detail the
basis of such claim, the facts pertaining thereto and, if known, the amount, or
an estimate of the amount, of the liability arising therefrom. The Indemnified
Party shall provide to the Indemnifying Party as promptly as practicable
thereafter all information and documentation necessary to support and verify
the claim asserted and the Indemnifying Party shall be given reasonable access
to all books and records in the possession or control of the Indemnified Party
or any of its affiliates which the Indemnifying Party reasonably determines to
be related to such claim.
4
5
8. NOTICES. Any notices, requests, demands and other communications
required or permitted to be given hereunder must be in writing and, except as
otherwise specified in writing, will be deemed to have been duly given when
personally delivered or facsimile transmitted, or three days after deposit in
the United States mail, by certified mail, postage prepaid, return receipt
requested, as follows:
If to Buyer:
Xxxx Xxxxx
c/o First Capital, Inc.
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Wheater Corporation
000 X.X. 0xx Xxxxxx
#0000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
- with a copy to -
Xxxxxx & Zeder, P.A.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
If to Seller:
At the address set forth in Exhibit A attached hereto.
- with a copy to -
A. Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx
Facsimile: (000) 000-0000
or to such other addresses or facsimile numbers as either party hereto may from
time to time give notice of (complying as to delivery with the terms of this
Section 8) to the other.
5
6
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, understandings,
negotiations and discussions, both written and oral, between the parties hereto
with respect to the subject matter hereof.
10. BENEFITS: BINDING EFFECT: ASSIGNMENT. This Agreement is for the
benefit of and binding upon the parties hereto, their respective successors and,
where applicable, assigns. Neither party may assign this Agreement or any of
its rights, interests or obligations hereunder without the prior approval of
the other party.
11. WAIVER. No waiver of any of the provisions of this Agreement will be
deemed to constitute or will constitute a waiver of any other provision hereof
(whether or not similar), nor shall any such waiver constitute a continuing
waiver unless otherwise expressly so provided.
12. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or will be construed, to confer upon or give any person
or entity other than the parties hereto and their respective successors and
assigns any rights or remedies under or by reason of this Agreement.
13. SECTION HEADINGS. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of any provisions of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
will be deemed to be one and the same instrument.
15. DISPUTES. All claims, disputes and other matters in question between
the parties to this Agreement, arising out of or relating to this Agreement or
the breach thereof, shall be filed and heard only in the state courts of
Florida sitting in Miami-Dade County. In the event of such litigation, the
prevailing party shall be entitled to an award of attorneys' fees and costs
(including pre-trial, trial or appellate level costs).
16. REMEDIES CUMULATIVE. No remedy made available by any of the
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy is cumulative and is in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity.
17. EQUITABLE REMEDIES. Seller acknowledges and agrees that Buyer will
not have an adequate remedy at law in the event of any breach by Seller of this
Agreement and that, therefore, Buyer shall be entitled, in addition to any
other remedies which may be available to it, to injunctive
6
7
and/or other equitable relief to prevent or remedy a breach, with the posting
of any bond in connection therewith being hereby waived.
18. GOVERNING LAW. This Agreement will be governed by and construed and
enforced in accordance with the internal laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Agreement as of the day and year first above written.
BUYER
Wheatear Corporation
---------------------------------
By:
------------------------------
Title:
---------------------------
---------------------------------
Xxxxxxx Xxxxx
SELLER
/s/ ILLEGIBLE
---------------------------------
---------------------------------
---------------------------------
7
