STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Flagship Agreement") is entered
into by and among BIO-AQUA SYSTEMS, INC., a Florida corporation ("Bio-Aqua") and
FLAGSHIP IMPORT EXPORT CORPORATION, a Bahamian corporation, which is controlled,
directly or indirectly by Xxx Xxxxxx, an individual currently residing in
Santiago, Chile (collectively "Flagship") and which owns 8,573 shares of TEPUAL,
S.A., a Chilean corporation ("Tepual"), as of the 15th day of June, 1999, but
which Flagship Agreement shall be effective as of the effective date of the
Registration Statement on Form SB-2 ("Registration Statement"), as filed by
Bio-Aqua with the Securities and Exchange Commission ("Effective Date").
(Bio-Aqua, Flagship, and Tepual sometimes individually referred to as "Party"
and collectively as "Parties").
RECITALS
A. Bio-Aqua is a corporation duly organized and existing under the laws
of the State of Florida and located in Palm Beach County, Florida, having been
incorporated March 18, 1999 and having authorized capital stock consisting of
twenty-two million (22,000,000) shares of Common Stock par value $.0001, of
which Twenty Million (20,000,000) shares are designated as Class A Voting Common
Stock and Two Million (2,000,000) shares are designated as Class B Voting Common
Stock ("Class B Common Stock").
B. Bio-Aqua wishes to purchase 8,558 shares of Tepual (the "Tepual
Shares"), out of 9,510 issued shares in Tepual.
C. The laws of the State of Florida and the Country of Chile permit
Bio-Aqua to purchase the 8,558 Shares for $3,185,703, subject to the terms and
conditions set forth in this Flagship Agreement.
D. Contemporaneously with the execution of this Flagship Agreement,
Bio-Aqua shall enter into a stock purchase agreement with Flagship whereby as of
the Effective Date, Flagship shall purchase 1,529,910 shares of Bio-Aqua Class B
Common Stock, par value $.0001 ("Class B Common Stock") for $3,185,703
("Bio-Aqua Agreement"), which Bio-Aqua Agreement shall be in substantially the
same form as this Flagship Agreement, and which Bio-Aqua Agreement is attached
hereto as Exhibit A.
E. The Parties acknowledge and agree that the sole purpose for entering
into the Flagship Agreement and the Bio-Aqua Agreement in this manner is to
comply with the rules and regulations governing foreign investments in Chile, as
promulgated by the Central Bank of Chile and but for these requirements, the
Parties would have entered into a share exchange agreement whereby Bio-Aqua
would have exchanged 1,529,910 shares
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of Class B Common Stock for 8,558 Tepual Shares. It is the Parties' intention
that the Flagship Agreement and the Bio-Aqua Agreement be effective
contemporaneously as of the Effective Date.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants herein contained, as of the "Effective Date," as
hereinafter defined, it is agreed that Bio-Aqua shall purchase the 8,558 Shares
for $3,185,703, subject to the terms and conditions set forth and the mode of
carrying it into effect are and shall be as follows:
1. Recitals. The above recitals are true, correct and are herein
incorporated by reference.
2. Purchase of Shares.
(a) Flagship hereby agrees to transfer to Bio-Aqua at the
closing referred to in Section 3 below the 8,558 Tepual Shares, which represents
an interest in Tepual, for $3,185,703, and Flagship agrees to deliver to
Bio-Aqua a certificate representing the 8,558 Tepual Shares. All certificates to
be delivered at the closing by the parties hereto shall be in negotiable form,
subject to any lock-up agreements and other restrictions pursuant to Federal and
state securities laws and contractual agreements with certain persons and
Bio-Aqua's representative of the underwriters, including but not limited to,
Rule 144 of the Securities Act of 1933, as amended or as applicable.
(b) Notwithstanding anything else to the contrary contained
herein, contemporaneously with the closing contemplated herein, Bio-Aqua and
Flagship shall enter into the Bio-Aqua Agreement.
3. Closing Date. The "Closing Date" shall be the effective date of
Bio-Aqua's registration statement on Form SB-2 filed with the Securities and
Exchange Commission.
4. Representations of Flagship. Flagship hereby represents and
warrants that:
(a) Tepual is validly organized, existing and in good standing
under the laws of the Country of Chile. Upon information and belief, there are
no outstanding options, contracts, calls, commitments or demands of any
character relating to the authorized but unissued stock of Tepual.
(b) The Tepual Shares to be sold at the closing are validly
issued, fully paid and non-assessable.
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(c) Except as otherwise previously disclosed to Bio-Aqua by
Flagship, there has been no material adverse change in the condition of Tepual
since the date of the financial statements previously provided to Bio-Aqua. To
the best of Flagship's knowledge, the only changes in the financial condition of
Tepual since said date are those arising from the normal and regular conduct of
the business of Tepual.
(d) Except as otherwise previously disclosed to Bio-Aqua by
Flagship, to the best of Flagship's knowledge, there is no litigation,
governmental proceeding or investigation threatened or in prospect against
Tepual or relating to any of the interest to be transferred hereunder which
could materially affect Bio-Aqua.
(e) Except as otherwise previously disclosed to Bio-Aqua by
Flagship, to the best of Flagship's knowledge, Tepual has no bonus, deferred
compensation, profit-sharing, pension or retirement arrangements, whether or not
legally binding, nor is it presently paying any pension, deferred compensation
or retirement allowance which has not otherwise been disclosed to Bio-Aqua.
(f) The statements made and information given to Bio-Aqua
concerning Tepual and the transactions covered by this Agreement are true and
accurate and no material fact has been withheld from Bio-Aqua.
(g) Flagship has no knowledge of any developments or
threatened developments of a nature that would be materially adverse to the
business of Tepual.
(h) The Tepual Shares to be transferred by Flagship to
Bio-Aqua hereunder are free and clear of all voting trusts, agreements,
arrangements, encumbrances, liens, claims, equities and liabilities of every
nature and Flagship is conveying clear and unencumbered title thereto to
Bio-Aqua.
(i) There are no agreements to which Tepual is a party nor
does Flagship know of any other agreements that in any way materially restrict
or impinge upon the business of Tepual or the benefit of which Tepual requires
or presently has in its business.
5. Representations of Bio-Aqua. Bio-Aqua hereby makes the following
representations and warranties to Flagship, each of which is true as of the date
hereof and will be true as of the Closing Date with the same effect as though
such representations and warranties had been made on the Closing Date:
(a) Bio-Aqua is a corporation duly organized and existing
under and by virtue of the laws of the State of Florida, and is in good standing
under the laws thereof.
(b) The execution and delivery of this Agreement by Bio-Aqua
and the performance by Bio-Aqua of its covenants and undertakings hereunder have
been duly
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authorized by all requisite corporate action, and Bio-Aqua has the corporate
power and authority to enter into this Agreement and to perform the covenants
and undertakings to be performed by it hereunder.
(c) Neither the execution nor the delivery of this Agreement,
nor the consummation of the transaction herein contemplated, nor compliance with
the terms hereof, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Articles of Incorporation or the Bylaws of
Bio-Aqua as amended, or any agreement or instrument to which Bio-Aqua is now a
party.
(d) Bio-Aqua is acquiring Flagship's stock for its own account
and for investment and not with the view to the distribution or resale of any
thereof.
6. Investment Purpose. Bio-Aqua represents that it is acquiring the
Tepual Shares to be delivered at the closing solely for investment and not for
distribution or resale.
7. Notices. Any notice or communication necessary or desirable
hereunder shall be considered sufficient and delivery thereof shall be deemed
complete if delivered in person or mailed by registered mail on the part of:
Bio-Aqua to:
Bio-Aqua Systems, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
and to Flagship and Xxx Xxxxxx, as follows:
Flagship Import Export Corporation
General Xxxxxx 000
Xxxxxxxx, Xxxxx
Attn: Xxx Xxxxxx
and to Tepual as follows:
Tepual S.A.
General Xxxxxx 000
Xxxxxxxx, Xxxxx
Attn: Xxx Xxxxxx
or to such other address as either party may hereafter specify in writing as his
or its own address to the other party.
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8. Entire Agreement. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings of the parties in
connection herewith.
9. Severability. Flagship and Bio-Aqua hereby agree and affirm that
none of the above provisions is dependent on the validity of any other provision
and invalidity as to any provision or any part thereof shall not affect any
other provision.
10. Governing Law. This Agreement shall be governed by the laws of the
State of Florida. Venue shall be Broward County, Florida.
11. Counterpart. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
BIO-AQUA SYSTEMS, INC.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
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Its: CEO
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FLAGSHIP IMPORT EXPORT CORPORATION
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
-----------------------------
Its: CEO
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