STOCK PURCHASE AGREEMENT
Exhibit 99.2
THIS
STOCK PURCHASE AGREEMENT (this “Agreement”) is
entered into effective as of January 27, 2010, by and between St. Xxxxxx
Investments, LLC, an Illinois limited liability company, its successors and
assigns (the “Buyer”), and
Bluewater Partners, S.A., a Panamanian corporation (the “Seller”). Each of the
Buyer and the Seller are referred to herein individually as a “Party” and
collectively as the “Parties.”
A. The
Seller owns shares of Common Stock, $0.0001 par value per share (“Common Stock”), of
Helix Wind, Corp., a Nevada corporation (the “Company”).
B. Upon
the terms and subject to the conditions set forth herein, the Buyer desires to
purchase from the Seller and the Seller desires to sell to the Buyer 100,000
freely-tradable shares (the “Shares”) of Common
Stock (the “Purchase”).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, including the premises and the mutual promises
herein made, and the representations, warranties, and covenants herein
contained, the Parties agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF SHARES
1.1. Purchase of Shares; Stock
Purchase Price. On the terms and subject to the conditions of
this Agreement and the Note and Warrant Purchase Agreement of even date
herewith, entered into between the Buyer and the Company (the “Note and Warrant Purchase
Agreement”), the Buyer agrees to purchase from the Seller, and the Seller
agrees to sell to the Buyer, the Shares, free and clear of all claims, liens,
pledges, security interests, preemptive rights, rights of first refusal or other
encumbrances (each, an “Encumbrance”), in
exchange for cash in the amount of $500.00 (the “Stock Purchase
Price”).
1.2. Payment of the Stock
Purchase Price. At each Closing (as defined below), the Buyer shall pay
to the Seller one half (1/2) of the Stock Purchase Price via wire transfer, cash
or cash equivalents, or cashier’s check.
1.3. Closing. The closing of the sale and purchase of the Shares shall
take place as set forth in the Note and Warrant Purchase Agreement, which
contemplates an Initial Closing and a Second Closing (each as defined therein)
(each, a “Closing” and
together, the “Closings”). The date
on which the Initial Closing occurs shall be referred to herein as the “Initial Closing Date”
and the date on which the Second Closing shall take place is the “Second Closing Date”
(each, a “Closing
Date” and together, the “Closing
Dates”).
1.4.
Dliveries. At
the time of each Closing, (a) the sale and transfer of the Shares will be
effected by delivery by the Seller to the Buyer of an Assignment of Shares in
the form attached hereto as Exhibit A; and
(b) the Buyer will deliver to the Seller the payment for such Shares as
provided in the Note and Warrant Purchase Agreement.
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ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
As a
material inducement to the Buyer to enter into this Agreement, the Seller
represents and warrants to the Buyer as follows:
2.1.
Oganization. The
Seller has full power, authority and legal right and capacity to enter into and
perform the Seller’s obligations under this Agreement and each other document
contemplated hereby to which the Seller is or will be a party and to consummate
the transactions contemplated hereby and thereby. This Agreement and
the other documents contemplated hereby to which the Seller is a party have been
duly executed and delivered by the Seller and are legal, valid and binding
obligations of the Seller, enforceable against the Seller in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights in general.
2.2. No Violation to
Result. The
execution, delivery and performance by the Seller of this Agreement and the
other documents contemplated hereby and the consummation by the Seller of the
transactions contemplated hereby and thereby, do not and will not, directly or
indirectly (with or without notice or lapse of time): (i) violate,
breach, conflict with, constitute a default under, accelerate or permit the
acceleration of the performance required by (x) any of the terms of the articles
of incorporation, bylaws or other governing documents of the Company or any
resolution adopted by the board of directors of the Company, if applicable, (y)
any note, debt instrument, security agreement, mortgage or any other contract to
which the Seller is a party or by which he is bound or (z) any law, judgment,
decree, order, rule, regulation, permit, license or other legal requirement of
any nation, state or other instrumentality or political subdivision thereof
(including any county or city), or any entity exercising executive, legislative,
judicial, military, regulatory or administrative functions pertaining to any
government (each, a “Government
Authority”) which is applicable to the Seller; (ii) give any person,
limited liability company, partnership, trust, unincorporated organization,
corporation, association, joint stock company, business group, Government
Authority or other entity (each, a “Person”) the right to
challenge any of the transactions contemplated by this Agreement; or (iii)
result in the creation or imposition of any Encumbrance, possibility of
Encumbrance, or restriction in favor of any Person upon any of the Shares or any
of the properties or assets of the Company. No notice to, filing
with, or consent of, any Person is necessary in connection with, nor is any
“change of control” provision triggered by, the execution, delivery or
performance by the Seller of this Agreement and the other documents contemplated
hereby nor the consummation by the Seller of the transactions contemplated
hereby or thereby.
2.3. Ownership of
Shares;
Freely-Tradable. Immediately prior to the consummation of the
transactions contemplated hereby, the Seller holds of record and beneficially
the Shares, free and clear of any Encumbrance (other than restrictions imposed
by federal and state securities laws). There are no proxies, voting
rights, equityholders agreements or other agreements or understandings, to which
the Seller is a party or by which the Seller is bound, with respect to the
voting or transfer of the Shares. The Shares are freely-tradable and shall
remain freely-tradable in the hands of the Buyer.
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2.4. Brokers. No
Person has or will have, as a result of the transactions contemplated by this
Agreement, any right, interest or claim against or upon any of the Parties for
any commission, fee or other compensation payable as a finder or broker because
of any act or omission by the Seller.
2.5.
Disclosure. To the actual knowledge of the Seller (or
the knowledge that the Seller would obtain upon reasonable inquiry and
investigation), no representation or warranty by the Seller contained in this
Agreement contains any untrue statement of a material fact or omits to state any
material fact necessary to make any statement herein or therein not
misleading.
2.6. No Affiliate. The
Seller is not and has not at any time been an Affiliate, as that term is defined
in the Securities Act of 1933, as amended (the “Securities Act”), of
the Company.
2.7. Independent
Action. The Seller is selling the Shares for its own account
and purposes and in selling the Shares is not acting at the direction of the
Company or any affiliate thereof.
2.8. Chain of Title. Other
than as described herein, the Shares have not been sold, transferred, assigned,
exchanged, pledged, hypothecated or encumbered in any way, whether by the
Company, the Seller or by any other person. The Seller makes this
representation and warranty after due inquiry. The Seller has
complied in all respects with all securities and other applicable laws in
relation with the purchase, holding and transfer of the Shares.
2.9. Holding Period. The
Seller has held the Shares since December 12, 2008.
2.10.
Proceeds of the
Purchase. The Seller shall retain the proceeds he receives for the Shares
for his own use and such proceeds shall not be remitted to the Company, either
directly or indirectly, for any reason.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
The Buyer
represents and warrants to the Seller, as of each Closing, as
follows:
3.1.
Oganization. The
Buyer is a limited liability company, duly organized, validly existing and in
good standing under the laws of the State of Illinois, and is qualified to do
business and in good standing in each jurisdiction where the character or
location of its assets or properties owned, leased or operated by it or the
nature of its activities makes such qualification necessary.
3.2.
Authority for
Agreement. The
Buyer has full power, authority and legal right to enter into and perform its
obligations under this Agreement and the other documents contemplated hereby to
which the Buyer is or will be a party and to consummate the transactions
contemplated hereby and thereby. The Buyer has duly approved this
Agreement and the other documents contemplated hereby and the transactions
contemplated hereby and thereby and have authorized the execution, delivery and
performance of this Agreement and the other documents contemplated hereby and
the consummation of the transactions
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contemplated
hereby and thereby. No other proceedings on the part of the Buyer are
necessary to approve and authorize the execution, delivery and performance of
this Agreement and the other documents contemplated hereby and the consummation
of the transactions contemplated hereby and thereby. This Agreement
and the other documents contemplated hereby to which the Buyer is a party have
been duly executed and delivered by the Buyer and are legal, valid and binding
obligations of the Buyer, enforceable against the Buyer in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights in general.
3.3. No Violation to
Result. The
execution, delivery and performance by the Buyer of this Agreement and the other
documents contemplated hereby and the consummation by the Buyer of the
transactions contemplated hereby and thereby, do not and will not, directly or
indirectly (with or without notice or lapse of time): (i) violate,
breach, conflict with, constitute a default under, accelerate or permit the
acceleration of the performance required by (x) any of the terms of the articles
of organization, operating agreement or other governing documents of the Buyer
or any resolution adopted by the members of the Buyer, (y) any note, debt
instrument, security agreement, mortgage or any other contract to which the
Buyer is a party or by which it is bound or (z) any law, judgment, decree,
order, rule, regulation, permit, license or other legal requirement of any
Government Authority applicable to the Buyer; (ii) give any Government Authority
or other Person the right to challenge any of the transactions contemplated by
this Agreement; or (iii) result in the creation or imposition of any
Encumbrance, possibility of Encumbrance, or restriction in favor of any Person
upon any of the properties or assets of the Buyer. No notice to,
filing with, or consent of, any Person is necessary in connection with the
execution, delivery or performance by the Buyer of this Agreement and the other
documents contemplated hereby nor the consummation by the Buyer of the
transactions contemplated hereby or thereby.
3.4.
Brokers. No
Person has or will have, as a result of the transactions contemplated by this
Agreement, any right, interest or claim against or upon any of the Parties for
any commission, fee or other compensation payable as a finder or broker because
of any act or omission by the Buyer.
3.5. Accredited
Investor. The
Buyer is an “accredited investor” within the meaning of Regulation D under the
Securities Act. The Buyer understands that the Shares will not be
registered at the time of purchase under the Securities Act.
ARTICLE
IV
CONDITIONS
PRECEDENT TO THE OBLIGATION OF THE BUYER TO CLOSE
The
obligation of the Buyer to purchase the Shares, to pay the Stock Purchase Price
therefore at the Closings and to perform any obligations hereunder shall be
subject to the satisfaction as determined by, or waiver by, the Buyer of the
following conditions on or before each Closing Date:
4.1.
Representations and
Warranties. The
representations, warranties and covenants of the Seller contained herein shall
be true and correct in all
material respects on the date hereof. The Seller shall have performed and
complied in all material respects with all covenants and agreements required
hereby to be performed or complied with by the Seller on or prior to the each
Closing Date.
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ARTICLE
V
ADDITIONAL
AGREEMENTS
5.1.
Transfer Taxes,
Etc
(a) . All
transfer taxes incurred in connection with the transactions contemplated by this
Agreement shall be paid by the Party incurring such taxes under applicable law
when due. The responsible Party shall, at its own expense, file all necessary
tax returns and other documentation with respect to all such transfer
taxes.
5.2. Section 3(a)(10)
Shares. In the event the Company, in violation of the
covenants contained in the Note and Warrant Purchase Agreement, ever ceases to
be a reporting company for purposes of the Exchange Act for any period of time,
then the Seller shall not ever, so long as Rule 144 of the Securities Act is not
available to the Buyer as an exemption from registration, sell any Common Stock
of the Company tradable under Section 3(a)(10) of the Securities
Act.
5.3. Further
Assurances. Each
Party will, either at or after the Closings, execute such further documents,
deeds, bills of sale, assignments and assurances and take such further actions
as may reasonably be required by the other Party to consummate the Purchase and
to effect the other purposes of this Agreement.
5.4. Survival of Representations,
Warranties and Covenants. Each covenant and agreement
contained in this Agreement or in any agreement or other document delivered
pursuant hereto shall survive the Closings and be enforceable until such
covenant or agreement has been fully performed. All representations
and warranties of the Parties contained in this Agreement or in any other
agreement or document executed and delivered pursuant hereto shall survive the
Closings for the lesser of (x) indefinitely and (y) the expiration of
the applicable statute of limitations.
5.5.
Indemnification. The
Seller agrees to indemnify and hold harmless against and pay on behalf of or
reimburse as and when incurred the Buyer and its affiliates, shareholders,
partners, managers, officers, directors, employees, agents, representatives,
successors and permitted assigns (collectively, the “Buyer Parties”) for
any and all losses, liabilities, claims, damages, interest, costs and expenses
(including reasonable attorneys’ fees and costs of investigation and defense)
the Buyer Parties may suffer, sustain or incur as a result of, in connection
with, relating or incidental to or by virtue of: (i) any facts or circumstances
which constitute a breach of any representation or warranty of the Seller under
this Agreement; or (ii) any non-fulfillment or breach of any covenant, agreement
or other provision of this Agreement by the Seller.
ARTICLE
VI
MISCELLANEOUS
6.1. Successors and
Assigns. This
Agreement shall inure to the benefit of and be binding upon the Seller and its
respective heirs, executors, administrators, legal representatives, successors
and assigns. This Agreement or any of the severable rights and
obligations inuring to the benefit of or to be performed by the Buyer hereunder
may be assigned by the Buyer to a third party, including its financing sources,
in whole or in part; provided,
however, that any such assignment shall not relieve the Buyer of its
obligations under this Agreement.
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6.2. Governing
Law. All
issues and questions concerning the construction, validity, enforcement and
interpretation of this Agreement and the Exhibits hereto shall be governed by,
and construed in accordance with, the laws of the State of Illinois without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois. In furtherance of the foregoing, the internal law of the
State of Illinois shall control the interpretation and construction of this
Agreement (and all Exhibits hereto), even though under that jurisdiction’s
choice of law or conflict of law analysis, the substantive law of some other
jurisdiction would ordinarily apply.
6.3. Severability. If
any part of this Agreement is construed to be in violation of any law, such part
shall be modified to achieve the objective of the parties to the fullest extent
permitted and the balance of this Agreement shall remain in full force and
effect.
6.4. Amendment. This
Agreement may be amended, supplemented or modified only by execution of an
instrument in writing signed by the Buyer and the Seller.
6.5. Waiver. Any
Party hereto may to the extent permitted by applicable law (i) extend the time
for the performance of any of the obligations or other acts of the other Parties
hereto, (ii) waive any inaccuracies in the representations and warranties of the
other Parties hereto contained herein or in any document delivered pursuant
hereto or (iii) waive compliance with any of the agreements of the other Parties
hereto contained herein. No such extension or waiver shall be
effective unless set forth in a written instrument duly executed by or on behalf
of the Party extending the time of performance or waiving any such inaccuracy or
non-compliance. No waiver by any Party of any term of this Agreement,
in any one or more instances, shall be deemed to be or construed as a waiver of
the same or any other term of this Agreement on any future
occasion.
6.6. Notices. All
notices, requests, consents, waivers, and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given (a) if personally delivered, upon delivery or refusal of
delivery; (b) if mailed by registered or certified United States mail, return
receipt requested, postage prepaid, upon delivery or refusal of delivery; or (c)
if sent by a nationally recognized overnight delivery service, upon delivery or
refusal of delivery. All notices, consents, waivers, or other
communications required or permitted to be given hereunder shall be addressed as
follows:
(a) If to the
Buyer:
St.
Xxxxxx Investments, LLC
000 Xxxx
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxx 00000
Attn: Xxxx
X. Xxxx
6
With a
copy to (which shall not constitute notice):
Xxxxxxx
Xxxxxxx Xxxxxxx & Deere, P.C.
Attn:
Xxxxxxxx X. Xxxxxx
0000 Xxxx
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx
Xxxx, Xxxx 00000
(b) If to the
Seller:
Bluewater
Partners, SA
XX Xxx
00000 XXX
Xxxxx
Xxxxxx, Xxxxxx Xxxxxxx
or at
such other address or addresses as the Party addressed may from time to time
designate in writing pursuant to notice given in accordance with this
section.
6.7. Expenses. Unless
otherwise expressly provided herein, all costs and expenses incident to the
process leading to the execution of this Agreement, the negotiations and
preparations of this Agreement and the performance of its obligations hereunder,
including the fees and disbursements of counsel, accountants, advisors, experts
and consultants employed by the respective Parties in connection with the
transactions contemplated hereby, shall be borne and paid by the Party incurring
such costs and expenses.
6.8. Complete
Agreement. This
Agreement, including those documents expressly referred to herein and all
Exhibits hereto, embody the complete agreement and understanding between the
Parties and supersede and preempt any prior understandings, agreements or
representation by or between the Parties, written or oral, which may have
related to the subject matter herein.
6.9. Absence of Third Party
Beneficiary Rights. No
provision of this Agreement is intended, nor will be interpreted, to provide or
create any third party beneficiary rights or any other rights of any kind in any
client, customer, affiliate, equityholder, employee or partner of any Party
hereto or any other Person.
6.10.
Mutual
Drafting. This
Agreement is the mutual product of the Parties, and each provision hereof has
been subject to the mutual consultation, negotiation and agreement of each of
the Parties, and shall not be construed for or against any Party
hereto.
6.11.
Further
Representations. Each
Party to this Agreement acknowledges and represents that it has been represented
by its own legal counsel in connection with the transaction contemplated by this
Agreement, with the opportunity to seek advice as to its legal rights from such
counsel.
6.12.
Headings. The
headings in this Agreement are intended solely for convenience of reference and
shall be given no effect in the construction or interpretation of this
Agreement.
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6.13.
Counterparts. This
Agreement may be executed in two or more counterparts, each of which when
executed and delivered shall be deemed an original and all of which, taken
together, shall constitute the same agreement. This Agreement and any
document required hereby may be executed by facsimile or email signature
which shall be considered legally binding for all purposes.
6.14.
Jurisdiction. Each
of the Parties submits to the jurisdiction of any state or federal court sitting
in Xxxx County, Illinois in any proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the proceeding may be heard
and determined in any such court and hereby expressly submits to the personal
jurisdiction and venue of such court for the purposes hereof and expressly
waives any claim of improper venue and any claim that such courts are an
inconvenient forum. Each of the Parties hereby irrevocably consent to
the service of process of any of the aforementioned courts in any such
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to its address as set forth in Section 6.6, such service to
become effective ten (10) days after such mailing.
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IN
WITNESS WHEREOF, each Party hereto has caused this Stock Purchase Agreement to
be duly executed effective as of the date first above written.
“BUYER”
ST.
XXXXXX INVESTMENTS, LLC
By: /s/ Xxxx X
Xxxxx
Xxxx X. Xxxx, Manager
“SELLER”
BLUEWATER
PARTNERS, SA
By: /s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Its: Director
SIGNATURE
PAGE TO STOCK PURCHASE AGREEMENT
EXHIBIT
A
ASSIGNMENT
OF SHARES
ASSIGNMENT
OF COMMON STOCK SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, Bluewater
Partners, SA, does hereby sell, assign and transfer unto St. Xxxxxx Investments,
LLC, an Illinois limited liability company, 50,000 shares of the Common Stock of
Helix Wind, Corp., a Nevada corporation (the “Company”), standing
in the undersigned’s name on the books of the Company, and does hereby
irrevocably constitute and appoint the Company’s attorney to transfer said
shares on the books of the Company with full power of substitution in the
premises.
Effective
as of the ____ day of ______________, 2010
By: _____________________________
Name: ___________________________
Its: _____________________________
SIGNATURE
PAGE TO ASSIGNMENT
