STOCK PURCHASE AGREEMENT
Exhibit
10.9
(a) Organization; Authority. Seller is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with full right, power and authority to enter into this Agreement and to consummate the transactions contemplated herein. The execution, delivery and performance by Seller of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of such Seller. This Agreement has been duly and validly executed and delivered by Seller, and constitutes the valid and binding obligation of Seller, enforceable against it in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
(e) Title. The Shares, when issued by Seller to Purchaser pursuant to the terms hereof, will be fully paid, non-assessable and free and clear of all liens, claims, security interests or return encumbrances of any kind.
This
Stock Purchase Agreement (the “Agreement”)
dated
as of the 17th day of April, 2007, is made and entered into by and between
MASTODON
VENTURES, INC.,
a Texas
corporation with offices at 000 Xxxxxxxx Xxx., Xxxxx 0000, Xxxxxx, XX 00000
(“Purchaser”)
and
ALLMARINE
CONSULTANTS CORPORATION,
a Nevada
corporation with offices at 8601 XX 0000, Xxxx. 0, Xxxxx 000, Xxxxxx, Xxxxx
00000 (“Seller”).
W
I T N E S S E T H :
WHEREAS,
Seller
is desirous of selling certain of its authorized and unissued shares of common
stock to Purchaser in consideration for introducing Baxl Technologies, Inc.
to
Seller in connection with a reverse merger transaction, and Purchaser is willing
to purchase such shares of common stock from Seller, all on and subject to
the
terms and conditions hereinafter set forth.
NOW
THEREFORE,
in
consideration of the foregoing premises, and of the mutual covenants and
undertakings contained herein, and for such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged
by
the parties hereto, the parties to this Agreement hereby agree as
follows:
ARTICLE
1
CAPITALIZATION
1.01.
Capitalization.
As of
the date hereof, Seller is and will be authorized to issue 100,000,000 shares
of
common stock, $.001 par value per share (the “Common
Stock”)
and
10,000,000 shares of preferred stock, $.001 par value per share (the
“Preferred
Stock”).
As of
the date hereof, there are 995,000 shares of Common Stock issued and
outstanding, no shares of Preferred Stock outstanding and 12,500 shares of
Common Stock reserved for issuance pursuant to outstanding options, warrants,
convertible securities and other agreements or instruments pursuant to which
shares of Common Stock are reserved for issuance (the “Convertible
Securities”).
1.02.
Covenant
Not to Issue Additional Shares.
Seller
agrees that, without Purchasers prior approval, it will not issue any other
shares of its Common Stock, any shares of its Preferred Stock or any other
Convertible Securities during the period commencing on the date hereof and
expiring on the Closing Date (hereinafter defined), other than the Shares (as
defined herein) and any shares of Common Stock issued in connection with the
Reverse Merger on said date.
1.03.
Reverse
Merger.
Seller
intends to complete a reverse merger transaction with Baxl Technologies, Inc.
(and a private placement of securities simultaneously with the closing thereof)
(the “Reverse
Merger”).
The
consummation of the Reverse Merger is a condition to the Closing under this
Agreement. Seller will form a subsidiary entity (the “Subsidiary”)
for
purposes of the Reverse Merger.
ARTICLE
2
PURCHASE
OF SHARES
2.01.
Purchase
Terms.
(a)
Seller hereby sells to Purchaser free and clear of all liens, claims and
encumbrances, and Purchaser hereby agrees to purchase from Seller, free and
clear of all liens, claims and encumbrances, 1,005,000 shares of Common Stock
(the “Shares”)
for a
purchase price of One Thousand Fifty Dollars ($1,050) (the “Purchase
Price”).
Notwithstanding the foregoing, Purchaser hereby agrees to allow the Escrow
Agent
to hold such Shares in escrow until the Closing Date. On the Closing Date,
excluding any shares of Common Stock issued in connection with the Reverse
Merger, there will be a total of 2,000,000 shares of Common Stock issued and
outstanding immediately prior to the Closing Date. Any transfer or similar
taxes, if any, imposed upon the sale and transfer of the Shares to Purchaser
hereunder shall be borne by Seller.
(b)
The
Purchase Price shall be paid by Purchaser to the Escrow Agent (hereinafter
defined) upon the execution of this Agreement.
2.02.
Release
or Return of Purchase Price.
The
Escrow Agent will retain the Shares in his attorneys trust account until and
subject to the Closing and will only release the same to Purchaser on and
subject to the Closing. In the event, however, that the Closing does not occur
by June 15, 2007 (unless extended by Purchaser as hereinafter provided or if
delayed by an action of Seller), the Escrow Agent will return the Share
Certificates (hereinafter defined) to Seller and the Purchaser shall retain
the
Purchase Price as a non-refundable payment and as liquidated damages with
respect to Purchaser’s obligations hereunder, and thereafter, the parties hereto
shall have no further rights or obligations under or in connection with this
Agreement. If, however, the Closing does not occur due to any breach of this
Agreement by Seller, or any breach or default by Seller of its obligations
under
the Merger Agreement relating to the Reverse Merger or any action of Seller,
the
Seller will refund, in full, the Purchase Price to Purchaser and thereafter,
the
parties hereto shall have no further rights or obligations under or in
connection with this Agreement.
ARTICLE
3
THE
CLOSING
3.01.
The
Closing.
The
Closing will take place at the offices of the Escrow Agent on the day of the
consummation of the Reverse Merger (the “Closing
Date”).
Purchaser’s obligation to close the transaction contemplated by this Agreement
is subject to and conditioned upon the consummation of the Reverse Merger as
hereinbefore provided, and Seller’s compliance with its representations,
warranties, covenants and obligations under this Agreement. In the event that
the Reverse Merger has not been consummated by June 15, 2007, but is still
pending, Purchaser may, upon notice to Seller and the Escrow Agent, extend
the
Closing Date to the closing date specified in the Merger Agreement relating
to
the Reverse Merger (but not beyond July 27, 2007). If the Closing Date does
not
occur by June 15, 2007 (or any such extended date), Purchaser or Seller, as
applicable, may terminate this Agreement upon three (3) days notice to Seller,
or Purchaser, as applicable, and the Escrow Agent.
3.02.
Closing
Deliveries
(a)
Upon
the
execution of this Agreement, Seller will deliver to the Escrow Agent stock
certificates for the Shares (the “Share
Certificates”)
in the
name of Purchaser and/or its designees.
(b)
If
the Closing occurs in accordance with the provisions of Section 3.01 hereof,
(i)
the Escrow Agent will deliver to Purchaser the Share Certificates in the name
of
Purchaser and/or its designees.
ARTICLE
4
ESCROW
4.01.
Seller and Purchaser hereby appoint Xxxxx X. Xxxx, Esq. as escrow agent
hereunder (the “Escrow
Agent”)
and the
Escrow Agent hereby accepts such appointment.
4.02.
The
Escrow Agent will hold the Share Certificates in escrow. Seller will deliver
the
Share Certificates to the Escrow Agent as provided in Section 3.02(a) hereof
and
the Escrow Agent shall notify Purchaser of its receipt of same and retain the
Share Certificates in escrow until the Closing. The Escrow Agent shall deliver
the Share Certificates to Purchaser at the Closing, however, in the event that
the Closing does not occur in accordance with the terms of this Agreement,
the
Escrow Agent will deliver the Share Certificates to Seller (or to Seller’s
transfer agent for reissuance to Seller).
4.03.
Purchaser
will deliver the Purchase Price to the Escrow Agent pursuant to the terms of
Section 2.01(b) hereof .
4.04.
In
the
event of any dispute or disagreement between Purchaser and Seller with respect
to the Purchase Price or the Share Certificates which cannot be resolved by
them, such dispute or disagreement shall be submitted exclusively by any party
hereto to binding arbitration before a single arbitrator of the American
Arbitration Association in Xxxxxx County, Texas, which will apply the then
prevailing commercial rules of arbitration of the American Arbitration
Association. The determination of any such arbitrator (the “Arbitrator’s
Award”)
shall
be binding and conclusive upon the parties hereto and may be enforced in any
court of competent jurisdiction. By their execution hereof, the parties hereto
consent and irrevocably submit to the in
personam
jurisdiction of the American Arbitration Association located in Xxxxxx County,
Texas and agree that any process in any such action or proceeding may be served
upon them personally or by certified or registered mail, return receipt
requested, or by a nationally recognized overnight courier service, with the
same force and effect as if personally served upon them in such County and
State. The parties hereto each waive any claim that any such venue is not a
convenient forum for any such action or proceeding and any defense of lack
of
in
personam
jurisdiction with respect thereto.
4.05.
The
Escrow
Agent shall not be liable to Seller or Purchaser by reason of any error
of judgment or for any act done or step taken or omitted by him in good
faith or for any mistake of fact or law or for anything which it may do
or refrain
from doing in connection with this Agreement, except for any liability to Seller
or Purchaser caused by or arising out of the Escrow Agent’s gross negligence
or willful misconduct.
4.06.
The
Escrow Agent shall be entitled to rely on, and shall be protected in acting
in
reliance upon, any instructions or directions furnished to him in writing by
Seller or Purchaser pursuant to any provisions of this Agreement and shall
be
entitled to treat as genuine, any letter, paper, or other document furnished
to
him and believed by him to be genuine and to have been signed and presented
by
the proper party or parties.
4.07.
The
Escrow Agent will, in consideration of his services hereunder, be paid $500
by
Purchaser on the Closing Date.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF THE PARTIES
5.01. Representations
and Warranties of Purchaser.
To
induce Seller to enter into this Agreement and to consummate the transactions
contemplated hereby, Purchaser hereby makes the following representations and
warranties to Seller (which representations and warranties will be true and
correct as of the date hereof and as of the Closing Date):
(a) Organization;
Authority.
Purchaser is a corporation, duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization with full right,
power and authority to enter into this Agreement and to consummate the
transactions contemplated herein. The execution, delivery and performance by
Purchaser of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of such Purchaser.
This
Agreement has been duly and validly executed by Purchaser, and constitutes
the
valid and binding obligation of Purchaser, enforceable against it in accordance
with its terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of
general application affecting enforcement of creditors’ rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
(b) Investment
Representation.
Purchaser understands that the Shares are “restricted securities” and have not
been registered under the Securities Act of 1933, as amended, or any applicable
state securities law and is acquiring the Shares for its own account and not
with a view to or for distributing or reselling such Shares or any part thereof,
has no present intention of distributing any of such Shares and has no
arrangement or understanding with any other persons regarding the distribution
of such Shares (this representation and warranty shall not limit Purchaser’s
right to sell the Shares in compliance with applicable federal and state
securities laws).
5.02. Representations
and Warranties of Seller.
To
induce Purchaser to enter into this Agreement and to consummate the transactions
contemplated hereby, Seller hereby makes the following representations and
warranties to Purchaser (which representations and warranties will be true
and
correct as of the date hereof and as of the Closing Date):
(a) Organization; Authority. Seller is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with full right, power and authority to enter into this Agreement and to consummate the transactions contemplated herein. The execution, delivery and performance by Seller of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of such Seller. This Agreement has been duly and validly executed and delivered by Seller, and constitutes the valid and binding obligation of Seller, enforceable against it in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
(b) No
Conflict With Other Instruments.
The
consummation of the sale of the Shares to Purchaser in accordance with the
terms
of this Agreement will not be in conflict with, or result in a breach of, any
term, condition, or provision of, or constitute a default under, any agreement,
indenture, mortgage, deed of trust, or other instrument to which Seller is
a
party, and will not constitute an event that with the lapse of time or action
by
a third party, could result in a default under any of the foregoing, or result
in the creation of any lien, charge, or encumbrance upon the Shares purchased
hereby.
(c) No
Conflict With Judgments or Decrees.
The
consummation of the sale of the Shares in accordance with the terms of this
Agreement will not conflict with, or result in a breach of, any term, condition,
or provision of any judgment, order, injunction, decree, writ, or ruling of
any
court or tribunal, to which Seller is subject.
(d) No
Litigation.
There
are, to
the
best of Seller’s knowledge,
no
actions, suits, proceedings or claims pending or threatened against Seller,
at
law or in equity or before or by any foreign, federal, state, municipal, or
other governmental court, department, commission, board, bureau, agency,
instrumentality, by any other person or entity with respect to, or any way
relating to, the transactions contemplated by this Agreement
(e) Title. The Shares, when issued by Seller to Purchaser pursuant to the terms hereof, will be fully paid, non-assessable and free and clear of all liens, claims, security interests or return encumbrances of any kind.
(f)
Liabilities.
As of
March 31, 2007, Seller’s liabilities do not exceed $10,750 and, on the Closing
Date, Seller’s liabilities will not exceed $25,000, which liabilities will be
assumed by BAXL Technologies, Inc. (“BAXL”)
on the
date of closing of the Reverse Merger and will be paid on such date by BAXL.
Except for estimated auditing, accounting, transfer agent fees and expenses
and
the costs of formation of the Subsidiary $9,000 and legal fees of $12,500
(inclusive of preparing Seller’s Form 10-KSB for the year ended December 31,
2006 if requested by Purchaser) that Seller will incur on or before the Closing
Date, Seller does not anticipate any other material liabilities being incurred
by it on or prior to the Closing Date, other than as requested or consented
to
by Purchaser.
(g)
No
Business.
On the
Closing Date, Seller will not be engaged in any ongoing business activities
and
Purchaser will not, notwithstanding any provision of this Agreement to the
contrary, be responsible for any costs or expenses incurred by Seller in
complying with this representation.
5.03.
Survival. Notwithstanding
any provision of this Agreement to the contrary, the representations and
warranties of Purchaser and Seller set forth in this Article shall survive
the
Closing of the transactions contemplated hereby.
ARTICLE
6
MISCELLANEOUS
6.01. Miscellaneous.
(a) This
Agreement constitutes the sole and entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements,
representations, warranties, statements, promises, arrangements and
understandings, whether oral or written, express or implied, between the parties
hereto with respect to the subject matter hereof and may not be changed or
modified except by an instrument in writing signed by the party or parties
to be
bound thereby. This Agreement has been subject to the mutual consultation,
negotiation and agreement of the parties hereto and shall not be construed
for
or against either party hereto on the basis of such party having drafted this
Agreement.
(b) All
notices, consents, requests, and other communications required or permitted
to
be given under this Agreement (the “Notices”),
shall
be in writing and delivered personally or by a nationally recognized overnight
courier service, receipt acknowledged, or mailed by registered or certified
mail, postage prepaid, return receipt requested, addressed to the parties hereto
as follows (or to such other address as either of the parties hereto shall
specify by notice given in accordance with this provision):
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If
to Seller:
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Allmarine
Consultants Corporation
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8601
XX 0000, Xxxx. 0, Xxxxx 000
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Xxxxxx,
Xxxxx 00000
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If
to Purchaser:
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Mastodon
Ventures, Inc.
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000
Xxxxxxxx Xxx, Xxxxx 0000
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Xxxxxx,
Xxxxx 00000
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Attention:
Xxxxxx Xxxxxx, President
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With
a copy to:
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Xxxxxx
X. Xxxxxxx, Esq.
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00
Xxxx Xxxxx Xxxx
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Xxxxxxx,
XX 00000
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All
such
Notices shall be deemed given when personally delivered as aforesaid, or, if
mailed as aforesaid, on the third business day after the mailing thereof or
on
the day actually received, if earlier, except for a notice of a change of
address which shall be effective and deemed to have been given only upon
receipt.
(c)
Neither
Seller nor Purchaser may assign this Agreement or their respective rights,
benefits or obligations hereunder without the written consent of the
non-assigning party, except that Purchaser may assign, in whole or in part,
its
rights to purchase the Shares to any third party(ies) designated by
it.
(d) This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Nothing contained in
this
Agreement is intended to confer upon any person or entity, other than the
parties hereto, or their respective successors or permitted assigns, any rights,
benefits, obligations, remedies or liabilities under or in connection with
this
Agreement.
(e)
No
waiver
of any provision of this Agreement or of any breach hereof shall be effective
unless in writing and signed by the party to be bound thereby. The waiver by
either party hereto of a breach of any provision of this Agreement, or of any
representation, warranty, obligation or covenant in this Agreement by the other
party hereto, shall not be construed as a waiver of any subsequent breach of
the
same or of any other provision, representation, warranty, obligation or covenant
of such other party under this Agreement, unless the instrument of waiver
expressly provides otherwise.
(f) This
Agreement shall be governed by and construed in accordance with the laws of
Texas with respect to contracts made and to be fully performed therein without
regard to the conflicts of laws principles thereof. The parties hereto hereby
agree that any suit or proceeding arising under or as a result of this Agreement
or the consummation of the transactions contemplated hereby, shall be brought
solely in a Federal or State court located in Xxxxxx County, Texas except as
otherwise provided below. By their execution hereof, the parties hereto
irrevocably consent and submit to the in personam jurisdiction of the Federal
and State courts located in Xxxxxx County, Texas and agree that any process
in
any suit or proceeding commenced in such courts under this Agreement may be
served upon them personally or by certified or registered mail, return receipt
requested, or
by a
nationally recognized overnight courier service which provides evidence of
delivery, with the same force and effect as if personally served upon them
in
such county and State. The parties hereto each waive any claim that any such
jurisdiction is not a convenient forum for any such suit or proceeding and
any
defense of lack of in personam jurisdiction with respect thereto.
(g)
The
parties hereto hereby agree that, at any time and from time to time after the
date hereof upon the reasonable request of any of the parties hereto and at
no
cost to the party to which any such request is made, they shall do, execute,
acknowledge and deliver, or cause
to
be done, executed, acknowledged and delivered, such further acts, deeds,
assignments, transfers, conveyances, and
assurances as may be reasonably required to more effectively consummate this
Agreement and the transactions contemplated thereby or to confirm or otherwise
effectuate the provisions of this Agreement.
(h)
Each
party hereto represents and warrants to the other that it has been represented
by independent counsel of its own choosing in connection with the negotiation,
execution, delivery and consummation of this Agreement.
(i)
Except
as
set forth below, each of the parties hereto shall bear all of their respective
costs and expenses incurred in connection with the negotiation, preparation,
execution, consummation, performance and/or enforcement of this Agreement.
Notwithstanding the foregoing, (A) in the event of any action or proceeding
instituted by any party hereto to enforce the provisions of this Agreement,
the
party prevailing therein shall be entitled to reimbursement by the other
breaching party of the legal costs and expenses incurred by the prevailing
party
in connection therewith and (B) Purchaser will reimburse Seller for legal
expenses incurred by it in connection with the transactions contemplated
by this
Agreement, not to exceed $7,500 per month (or $12,500 in the aggregate for
each
full month prior to the Closing Date). Purchaser will pay such amounts to
Seller
within five (5) days after the end of each full month (beginning with the
month
of April) against receipt of bills or invoices for such fees as actually
incurred during each such month. Any such legal expenses incurred in any
partial
month in which the Closing occurs will be paid by BAXL on the date of closing
of
the Reverse Merger.
(j)
This
Agreement may be executed in one or more counterparts, each of which, when
executed and delivered, shall be deemed an original, but all of which when
taken
together, shall constitute one and the same instrument and this Agreement
may be
completed by facsimile transmission, which transmission will be deemed to
be an
original and considered fully legal and binding on the parties
hereto.
(k)
The
Article and Section headings used in this Agreement have been used for
convenience of reference only and are not to be considered in construing
or
interpreting this Agreement.
(l)
If
one or
more provisions of this Agreement are held to be unenforceable under applicable
law, such provision(s) shall be excluded from this Agreement and the balance
of
this Agreement shall remain in full force and effect
[SIGNATURES
FOLLOW ON NEXT PAGE]
IN
WITNESS
WHEREOF,
the
undersigned have set their hands effective as of the date hereof.
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SELLER:
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ALLMARINE
CONSULTANTS
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CORPORATION
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By:
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx Chief Executive Officer
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Print
Name and Title
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PURCHASER:
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MASTODON
VENTURES, INC.
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By:
/s/ Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx, President
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