Exhibit 99.1
STOCK PURCHASE AGREEMENT
by and between
ROSEHILL INVESTMENTS LIMITED,
XXXX XXXXX, XXXXXXXX X. XXXXXXX
and
NEW ENGLAND ACQUISITIONS, INC.
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into this 16th day
of December 2003, by and between ROSEHILL INVESTMENTS LIMITED, a Seychelles
corporation ("Rosehill"), XXXX XXXXX, 0 Xxxxx xxxx, Xxx Xxx, XX 00000 ("Xxxxx"),
Xxxxxxxx X. Xxxxxxx, 0000 XX 00xx Xxxxxxx, Xxxxxxxx, XX 00000 ("Xxxxxxx") and
NEW ENGLAND ACQUISITIONS, INC., a Florida corporation ("NEAI").
W I T N E S S E T H:
WHEREAS, Rosehill proposes to establish and cultivate a leading South
African-oriented New World premium wine venture through developing an extensive
European distribution network to provide a route-to-market for premium South
African-sourced New World wines (the "Wine Venture"); and
WHEREAS, Rosehill desires to purchase 11,937,200 shares of NEAI's capital
stock $.00001 par value which, upon issuance or transfer, as the case may be,
shall then be equal to approximately 95% of NEAI's outstanding capital stock and
Xxxxx, Xxxxxxx and NEAI ("collectively, the Sellers") desire to sell to Rosehill
such numbers of shares of NEAI's capital stock as set forth in Exhibit 1.1
hereto for the consideration and on the terms and conditions herein set forth;
and
WHEREAS, On the date of the Closing (as defined below) the Wine Venture
will be conducted through and become the property of a wholly owned subsidiary
of NEAI to be formed immediately after the Closing Date (the "NEAI Subsidiary");
and
WHEREAS, NEAI desires to satisfy all of its liabilities existing
immediately prior to the Closing (as defined below);
WHEREAS, NEAI desires to distribute all assets owned by it immediately
prior to the Closing (as defined below) to its shareholders of record
immediately prior to such Closing;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto covenant and agree
as follows:
ARTICLE 1
PLAN OF ACQUISITION
1.1 Shares to be Purchased. On the terms and subject to the conditions set forth
herein, effective on the date of the Closing (as defined below) the Sellers
shall sell, assign, convey and deliver to Rosehill and Rosehill such shall
purchase and acquire from the Sellers an aggregate of 11,937,200 shares of
NEAI's capital stock $.00001 par value (the "Rosehill Shares") from the parties
in the amounts set forth in Exhibit 1.1 hereof.
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1.2 Consideration. In full consideration of the sale of the Rosehill Shares and
the satisfaction by NEAI of all of its liabilities existing immediately prior to
the Closing (as defined below), Rosehill shall (a) pay $310,000 (the "Cash
Purchase Price") and (b) transfer and assign to the NEAI Subsidiary all right,
title and interest to the Wine Venture as more particularly set forth in Exhibit
1.2 hereto (the "Venture Rights").
1.3 Effective Date and Closing. The Effective Date of this Agreement shall be
the date this Agreement is executed by each of the parties. The closing of the
transactions contemplated by this Agreement (the "Closing") shall take place as
of the close of business, New York City time, at the offices of Xxxxx, Xxxxxx &
Ortoli LLP, 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 on the Effective Date.
1.4 Execution and Delivery of Closing Documents. At the Closing, the Sellers
will deliver to Rosehill (a) certificates representing the Rosehill Shares duly
endorsed in blank, (b) signed resignations of each of NEAI's officers and
directors and Rosehill will (x) remit the Cash Purchase Price in accordance with
wire transfer instructions furnished by NEAI and (y) execute any and all
documents necessary to transfer and assign the Venture Rights to the NEAI
Subsidiary. To the extent not theretofore delivered to Rosehill, at the Closing,
NEAI will deliver all books, records (including minutes, stock transfer records;
tax returns; accounting records and books of account; NEAI; documents prepared
or executed in connection with the termination of any agreements between NEAI or
any of its subsidiaries and any third party; correspondence to or from NEAI's
auditors; documents prepared, executed or filed in connection with the issuance
of any shares of stock of NEAI from the date of inception to Xxxxx, Xxxxxx &
Xxxxxx LLP with instructions to deliver such documents to the duly elected
successor to Xxxxx as the Chief Executive Officer of NEAI. At the Closing, each
party also will execute and deliver such other appropriate and customary
documents as any other party reasonably may request for the purpose of
consummating the transactions contemplated by this Agreement. All actions taken
at the Closing will be deemed to have been taken simultaneously at the time the
last of any such actions is taken or completed.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF XXXX
Xxxxx, Xxxxxxx and NEAI, jointly and severally, hereby represent and warrant to
Rosehill as follows:
2.1 Organization and Good Standing of NEAI. NEAI is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Florida.
2.2 Power and Authority. NEAI has the corporate power and authority to own its
wholly owned subsidiaries.
2.3 Authorization and Validity. NEAI has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement and the
other documents executed or required to be executed by it in connection
with this Agreement. This Agreement and the
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other documents executed or required to be executed by NEAI in connection
with this Agreement have been duly authorized by all necessary corporate
action. Xxxxx and Xxxxxxx have the power and authority to execute this
Agreement on their respective individual behalves.
2.4 Binding Effect. This Agreement and the other documents executed or
required to be executed by the Sellers in connection with this Agreement
have been or will have been duly executed and delivered by each of them
and are or will be, when executed and delivered, the legal, valid and
binding obligations of them enforceable against them in accordance with
their terms except to the extent that:
(a) enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights;
(b) the availability of equitable remedies may be limited by equitable
principles of general applicability; and
(c) rights to indemnification may be limited by considerations of public
policy.
2.5 No Violation. Neither the execution and performance of this Agreement or
the agreements described herein nor the consummation of the transactions
described herein or therein will:
(a) result in a violation or breach of (i) the Articles of Incorporation
or by-laws of NEAI; or (ii) any material agreement under which any
of the Sellers is bound or to which any of their assets or rights
are subject, or result in the creation or imposition of any lien,
charge or encumbrance upon any of such assets or rights or the
Rosehill Shares, or
(b) violate, in any material respect, any applicable law or regulation
or any judgment or order of any court or governmental agency.
NEAI has complied in all material respects with all applicable laws,
regulations and licensing requirements, and has filed with the
proper authorities any required statements, applications, notices
and reports.
2.6 Permits and Licenses; Compliance. NEAI possesses any required governmental
licenses, franchises, permits, approvals, authorizations, and rights,
whether federal, state, local or foreign. NEAI is in compliance with any
such governmental licenses, franchises, permits, approvals,
authorizations, or rights, and all federal, state or local laws or
regulations now applicable or reasonably expected to be applicable to it.
2.7 Assets. Upon Closing, NEAI shall have no assets, including, but not limed
to, securities issued by any subsidiary and no liabilities, except for
those disclosed to Rosehill in Exhibit 2.20 to this Agreement.
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2.8 Consents. Other than with respect to filings required to be made with the
Securities and Exchange Commission (the "SEC") in connection with this
Agreement and the transactions contemplated thereby, no authorization,
consent, approval, permit or license of, or filing with, any governmental
or public body or authority, any lender or lessor or any other person or
entity is required to authorize, or is required in connection with, the
execution, delivery and performance of this Agreement or the agreements or
transactions contemplated hereby on the part of NEAI.
2.9 Financial Statements. The financial statements of NEAI set forth in its
Quarterly Report on Form 10-QSB as filed with the Securities and Exchange
Commission for the quarterly period ended September 30, 2003 present
fairly in all material respects the consolidated financial position of
NEAI as of September 30, 2003 and the consolidated results of its
operations and its cash flows for the nine months then ended in conformity
with generally accepted accounting principles consistently applied.
2.10 Absence of Certain Changes. Since September 30, 2003, NEAI has not:
(a) suffered any material adverse change in its assets;
(b) mortgaged, pledged or subjected to any lien, lease, security
interest or other charge or encumbrance any of its assets;
(c) suffered any damage or destruction to or loss (whether or not
covered by insurance) that could reasonably be expected to or does
materially and adversely affect NEAI's business;
(d) written up or written down the carrying value of any of its assets
in any material amounts;
(e) waived any material rights or forgiven any material claims; or
(f) except as otherwise expressly set forth in this Agreement, entered
into any commitment or transaction or experienced any event that is
material to this Agreement or to any of the other documents executed
or to be executed pursuant to this Agreement or to the transactions
described herein or therein, or that could reasonably be expected to
have, or has had, a material adverse effect on its assets or rights.
2.11 Litigation. No legal or administrative or other adversary proceeding or
investigation is currently pending against NEAI and, to the best knowledge
of NEAI, none is threatened or contemplated by any governmental agency or
other third party. None of the Sellers is subject to any continuing court
or administrative order, writ, injunction or decree applicable
specifically to it or which would affect the rights of Rosehill hereunder.
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2.12 Capitalization. Upon the purchase of the Rosehill Shares by Rosehill, the
Rosehill Shares will represent 95% of the outstanding capital stock of
NEAI. Other than Rosehill, no person has, or at the Closing will have, the
right to acquire any equity security of NEAI.
2.13 SEC Reports. NEAI has filed all reports required to be filed by it with
the SEC pursuant to Section 13 of the Securities Exchange Act of 1934 (the
"SEC Reports"). None of the SEC Reports at the time of filing contained
any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein not misleading except to the
extent that such facts or statements may have been corrected in an SEC
Report subsequently filed by NEAI. The financial statements included in
the SEC Reports are complete and correct in all material respects, present
fairly the financial condition and results of operations of NEAI as at the
dates of such statements and have been prepared in accordance with
generally accepted accounting principles.
2.14 NEAI's Subsidiaries. Prior to the Closing NEAI shall have delivered the
certificates representing the entire equity interests of CJC Enterprises
of New York, Inc. and International Products, Inc. to its president to be
held for the benefit of the holders of record of NEAI's capital stock as
of the close of business on the business day immediately preceding the day
of the Closing. Such distribution shall serve to divest NEAI from any
right, title or interest in any subsidiary.
2.15 NEAI'S Employees. Other than The New England Acquisitions, Inc. 2003
Incentive Equity Plan (the "Plan"), NEAI has no employee benefit or
similar plans.. A copy of the Plan is included as an exhibit to NEAI's
Current Report on from 8-K dated May 19,2003. Such Current Report
describes all awards heretofore made under the Plan. There are no
outstanding options granted under the Plan. NEAI has no employment
agreements, labor or collective bargaining agreements or employee benefit
or welfare plans. All vacation pay, if any, due to employees of NEAI has
been fully paid by NEAI. No employees of NEAI are entitled to any sick pay
or days. NEAI has no retirement plans. There are no pending or, to the
knowledge of NEAI, threatened strikes, job actions or other labor disputes
affecting NEAI or its employees and there never have been any such
disputes. There are no employees or independent contractors of NEAI
employed in connection with any business of NEAI other than its wholly
owned subsidiaries.
2.16 Tax Returns. NEAI has correctly prepared and timely filed all Federal,
state and local tax returns, estimates and reports, and paid all such
taxes as and when due other than penalties to the state of Florida as set
forth in Exhibit 2.19 hereto. For purposes of this paragraph, taxes shall
mean all taxes, charges, fees, levies or other assessments of any kind
whatsoever (including, without limitation, income, franchise, sales, use
and withholding taxes). If any such returns are presently due, at closing
the Sellers shall use the proceeds of the purchase to pay off and satisfy
any tax liabilities which are then due and payable and provide Rosehill
with evidence thereof in form satisfactory to Rosehill and its counsel
within 30 days.
2.17 Beneficial Ownership. Xxxxx and Xxxxxxx are the beneficial owners of the
Shares being sold by them hereunder.
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2.18 Books and Records. The books of account and records of NEAI have been
maintained in accordance with good business practice and reflect fairly
all properties, assets, liabilities and transactions of NEAI.
2.19 Liabilities. Other than those referred to in Exhibit 2.19 hereto, NEAI has
no material liabilities or obligations of any kind (whether accrued,
absolute, direct, indirect, contingent or otherwise) which are not fully
disclosed, accrued or reserved against in NEAI's financial statements.
NEAI has no bad debts as of the date of this Agreement. The Cash Purchase
Price will be utilized to satisfy all of the liabilities of NEAI prior to
any disbursement of all or any portion thereof for any other purpose. NEAI
understands and acknowledges that upon the satisfaction of all of its
liabilities (whether accrued, absolute, direct, indirect, contingent or
otherwise), NEAI shall not be entitled to all or any portion of the Cash
Purchase Price and hereby expressly waives any claim thereto.
2.20 Conduct of Business. Other than as set forth in the SEC Reports, since the
last day of NEAI's last fiscal year, NEAI has conducted its business only
in the ordinary and usual course and has not experienced any material
adverse changes in its business or the financial condition of NEAI.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF ROSEHILL
Rosehill represents and warrants to each of the Sellers as follows:
3.1 Organization and Good Standing. Rosehill is a corporation duly organized,
validly existing and in good standing under the laws of the Seychelles.
3.2 Power and Authority. Rosehill has the corporate power and authority to
own, lease and operate its respective properties and assets and to carry
on its respective business as currently being conducted.
3.3 Authority and Validity. Rosehill has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement and the
other documents executed or required to be executed by it in connection
with this Agreement, and this Agreement and the other documents executed
or required to be executed by Rosehill in connection with this Agreement
have been duly authorized by all necessary corporate action.
3.4 Binding Effect. This Agreement and the other documents executed or
required to be executed by Rosehill in connection with this Agreement have
been duly authorized, executed and delivered by Rosehill and are or will
be, when executed and delivered, the legal, valid and binding obligations
of Rosehill enforceable against it in accordance with their terms except
to the extent that:
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(a) enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights;
(b) the availability of equitable remedies may be limited by equitable
principles of general applicability; and
(c) rights to indemnification may be limited by considerations of public
policy.
3.5 No Violation. Neither the execution and performance of this Agreement or
the agreements described herein nor the consummation of the transactions
described herein or therein will:
(a) result in a violation or breach of (i) the articles of incorporation
or by-laws or other organizational documents of Rosehill or (ii) any
material agreement or other material instrument under which Rosehill
is bound or to which any of the assets of Rosehill are subject, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets or properties of Rosehill; or
(b) violate, in any material respect, any applicable law or regulation
or any judgment or order of any court or governmental agency.
Rosehill has complied in all material respects with all applicable
laws, regulations and licensing requirements, and has filed with the
proper authorities any necessary statements, applications, notices,
reports and any other filings with respect to Rosehill's business.
3.6 Consents. No authorization, consent, approval, permit or license of, or
filing with, any governmental or public body or authority, any lender or
lessor or any other person or entity is required to authorize, or is
required in connection with, the execution, delivery and performance of
this Agreement or the agreements or transactions contemplated hereby on
the part of Rosehill.
3.7 Business Plan. Except as otherwise set forth in Exhibit 3.7 hereto, the
business plan described on the website xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx
is the business plan which Rosehill anticipates will be followed by NEAI
in connection with the Wine Venture (the "Business Plan").
3.8 Financing. Rosehill reasonably believes that within six months subsequent
to the Closing NEAI will obtain financing in the minimum amount of
$1,500,000 or acquire assets having a fair value of at least that amount
which will be used to implement the Business Plan.
3.9 Documentation. None of the documentation furnished by or on behalf of
Rosehill to NEAI in connection with this Agreement and the transactions
contemplated hereby contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein not
misleading.
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3.10 Investment Representations.
(a) The Rosehill Shares will be acquired by Rosehill for its own account
and not with a view to or for sale or other disposition in
connection with any transaction or series of transactions that will
not be exempt from the registration requirements of the Securities
Act of 1933 (the "Securities Act") and any applicable state
securities laws.
(b) Rosehill, through its management, has such knowledge, experience and
skill in financial and business matters in order for it to evaluate
the merits and risks of the investment in Rosehill Shares and the
suitability of the Rosehill Shares as an investment and can bear the
economic risk of an investment therein for an indefinite period of
time.
(c) Rosehill hereby acknowledges that no representations have been made
or can be made with respect to the future value, if any, of the
Rosehill Shares or the profitability or success of the business of
Rosehill.
(d) Rosehill understands that the Rosehill Shares will not have been
registered under the Securities Act or any applicable state
securities laws, that the Rosehill Shares will be characterized as
"restricted securities" under federal securities laws, and that
under such laws and applicable regulations the Rosehill Shares
cannot be sold or otherwise disposed of without registration under
the Securities Act or an exemption therefrom. Rosehill is aware that
NEAI will issue "stop transfer" instructions to Florida Atlantic
Stock Transfer, Inc., 0000 Xxx Xxxx Xxxx, Xxxxxxx, XX 00000, NEAI's
transfer agent for the Rosehill Shares in connection with the
Rosehill Shares to the extent customary for securities which are
"restricted securities.
(e) Rosehill understands that NEAI is the only person that can register
the Rosehill Shares under the Securities Act and NEAI has no
obligation or present intension to do so.
(f) Rosehill consents to the placement of a legend on the certificate
evidencing the Rosehill Shares stating that they have not been
registered under the Securities Act or under any other applicable
securities laws, setting forth or referring to the restrictions on
transferability and sale thereof and including placement of any
additional language as may be required by applicable state
securities laws.
(g) Rosehill has downloaded, printed and had the opportunity to
carefully review all of NEAI's filings made with the SEC.
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(h) There have never been any oral or written contracts, understandings,
agreements or arrangements pursuant to which the Rosehill may at any
date sell or otherwise dispose of the Rosehill Shares or cause the
title in the Rosehill Shares to vest in any other person or entity.
(i) There have never been any oral or written contracts, understandings,
agreements or arrangements between Rosehill and any other person or
entity by which any such person or entity will benefit in such
manner as to be deemed equivalent to an owner of any of the Rosehill
Shares, including, but not limited to, the application of income or
proceeds received from a sale thereof
(j) Neither Rosehill nor any of its beneficial owners has been publicly
solicited by NEAI or any person acting on its behalf in connection
with the purchase of the Rosehill Shares
(k) Neither Rosehill any person acting on its behalf nor any of its
beneficial owners has publicly solicited any person in connection
with the offer and sale of securities by Rosehill Shares.
ARTICLE 4
COVENANTS OF NEAI AND ROSEHILL
4.1 Filing of SEC Reports. Subsequent to the Closing, NEAI shall timely file
all reports required to be filed with the SEC as well as any other reports
required to maintain NEAI's registration statement on From S-8 current.
Such reports shall include, but not be limited to a Current Report on Form
8-K to be filed with the SEC within one business day subsequent to the
Closing which shall disclose the consummation of this Agreement and the
transactions contemplated hereby.
4.2 Financing. Subsequent to the Closing, Rosehill and NEAI will use their
best efforts to obtain financing for NEAI in the minimum amount of
$1,500,000 or acquire assets having a fair value of at least that amount
which will be used to implement the Business Plan.
4.3 Rescission. Prior to the termination of the Rescission Period, as defined
below, (a) all operations of NEAI will be conducted through one or more
wholly owned subsidiaries of NEAI, (b) NEAI will not guarantee or
otherwise be obligated to pay any amounts arising from such operations or
indebtedness incurred by such subsidiaries, and (c) NEAI will not incur
any liabilities or obligations other than reasonable and necessary
professional fees.
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ARTICLE 5
CONDITIONS TO CLOSING
5.1 Conditions to Obligations of the Sellers. The obligations of the Sellers
to consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to the Closing of each of the
following conditions in all material respects:
(a) Representations, Warranties and Covenants. The representations and
warranties of Rosehill contained in this Agreement shall have been
true and correct as of the date they were made or deemed to have
been made and shall be true and correct as of the Closing Date, with
the same force and effect as if made as of the Closing Date, except
for such changes as are expressly permitted or contemplated by this
Agreement, and other than such representations and warranties as are
made as of another date.
(b) No Proceeding or Litigation. No legal or regulatory action shall
have been commenced or threatened by or before any court or any
federal, state or local governmental authority (collectively,
"Governmental Authority") against NEAI, either of the Sellers or
Rosehill seeking to restrain or adversely alter the transactions
contemplated by this Agreement or which is likely to render it
impossible or unlawful to consummate such transactions or which
could reasonably be expected to have a material adverse effect on
the condition of Rosehill (financial or otherwise) or on its
respective assets, properties or prospects.
5.2 Conditions to Obligations of Rosehill. The obligations of Rosehill to
consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to the Closing, of each of the
following conditions in all material respects:
(a) Representations, Warranties and Covenants. The representations and
warranties of the Sellers contained in this Agreement shall have
been true and correct as of the date as of which they were made or
deemed to have been made and shall be true and correct as of the
Closing Date, with the same force and effect as if made as of the
Closing Date except for such changes as are expressly permitted or
contemplated by this Agreement and other than such representations
and warranties as are made as of another date.
(b) No Proceeding or Litigation. No legal or regulatory action shall
have been commenced or threatened by or before any Governmental
Authority against NEAI, either of the Sellers or Rosehill seeking to
restrain or adversely alter the transactions contemplated hereby or
which is likely to render it impossible or unlawful to consummate
the transactions contemplated by this Agreement or which could have
a material adverse effect on the Assets or rights.
(c) Legal Opinion. Rosehill shall have received an opinion from counsel
to NEAI in substantially the form set forth in Exhibit 5.2(c) hereto
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ARTICLE 6
INDEMNIFICATION
6.1 Indemnification of the Sellers.
(a) Subject to the terms and conditions of this Article, Rosehill hereby
agrees to indemnify, defend and hold each of NEAI and its officers,
directors, agents, attorneys and affiliates and each of the Sellers,
their past and present heirs, executors, and assigns harmless from
and against all losses, obligations, assessments, penalties,
liabilities, costs, damages, reasonable attorneys' fees and expenses
(collectively, "Damages") asserted against or incurred by NEAI, the
Sellers or such identified persons by reason of or resulting from
(i) a representation or warranty made by Rosehill herein being
incorrect or untrue, (ii) a breach by Rosehill of any covenant
contained herein or in any of the agreements executed pursuant
hereto or (iii) a breach by NEAI of any covenant contained herein to
be performed after the Closing.
(b) The Sellers agree to cooperate with Rosehill in the event of any
settlement negotiated by Rosehill with regard to the indemnification
provided herein.
6.2 Indemnification of Rosehill.
(a) Subject to the terms and conditions of this Article, the Sellers
hereby agree to indemnify, defend and hold Rosehill and its
officers, directors, agents, attorneys and affiliates harmless from
and against all Damages asserted against or incurred by Rosehill or
such indemnified persons by reason of or resulting from a
representation or warranty made by NEAI or the Sellers herein being
incorrect or untrue.
(b) Rosehill agrees to cooperate with the Sellers in the event of any
settlement negotiated by any of the Sellers with regard to the
indemnification provided herein.
(c) Assertion and Resolution of Indemnification Claim Any permitted
indemnitee under Sections 6.1 and 6.2 hereof (an "Indemnified
Party") shall give notice to the person responsible for
indemnification (an "Indemnifying Party") of any claim as to which
indemnification may be sought as soon as possible after the
Indemnified Party has actual knowledge thereof and the amount
thereof, if known. The Indemnified Party shall supply to the
Indemnifying Party any other information in the possession of the
Indemnified Party regarding such claim, and will permit the
Indemnifying Party (at its expense) to assume the defense of any
third party claim and any litigation resulting therefrom, provided
that counsel for the Indemnifying Party who shall conduct the
defense of such claim or litigation shall be reasonably satisfactory
to the Indemnified Party, and provided further that the failure by
the Indemnified Party to give notice as provided herein will not
relieve the Indemnifying Party of its indemnification obligations
hereunder except to the extent that the Indemnifying Party is
damaged as
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a result of the failure to give notice. If the Indemnifying Party
has assumed the defense of a third party claim, the Indemnifying
Party shall not be entitled to settle such third party claim without
the prior written consent of the Indemnified Party, which consent
shall not be unreasonably withheld, provided that such consent shall
not be required if such settlement involves only the payment of
money and the claimant provides to the Indemnified Party, in form
and substance reasonably satisfactory to such Indemnified Party, a
release from all liability in respect of such third party claim. The
Indemnified Party shall have the right at all times to participate
in the defense, settlement, negotiations or litigation relating to
any third party claim or demand at its own expense. If the
Indemnifying Party does not assume the defense of any matter as
above provided, then the Indemnified Party shall have the right to
defend any such third party claim or demand, and will be entitled to
settle any such claim or demand in its discretion for the account or
benefit of the Indemnified Party. In any event, the Indemnified
Party will cooperate in the defense of any such action at the
expense of the Indemnifying Party and the records of each party
shall be available to the other with respect to such defense.
6.3 Indemnification of Negligence of Indemnitee. The indemnification provided
in this Article shall be applicable whether or not negligence of the
Indemnified Party is alleged or proven.
ARTICLE 7
TERMINATION
7.1 Termination by the Sellers. Any of the Sellers shall have the right to
terminate this Agreement if the conditions in Section 5.1 have not been
satisfied or waived by NEAI on or before December 12, 2003.
7.2 Termination by Rosehill. Rosehill shall have the right to terminate this
Agreement if the conditions in Section 5.2 hereof have not been satisfied
or waived by Rosehill on or before December 12, 2003.
7.3 Termination by Agreement of the Sellers and Rosehill. The Sellers and
Rosehill may terminate this Agreement at any time by their mutual written
consent.
7.4 Damages. If this Agreement is terminated pursuant to Article, the parties
shall retain any rights they may have against each other for any breach of
any of the terms and conditions of this Agreement.
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ARTICLE 8
RESCISSION
8.1 Right to Rescind. In the event that NEAI does not obtain financing of at
least $1,500,000 or acquire assets having a fair value of at least that
amount (collectively, the "Financing Event") to be used to implement the
Business Plan within six months of the Closing (the "Rescission Period"),
Xxxxx and Xxxxxxx (the "Majority Holders") shall have the right to rescind
his purchase of the Rosehill Shares as set forth herein. The amount to be
paid to Rosehill (or its designee) upon such rescission shall be $232,500
less the amount of any liabilities or obligations of any kind of NEAI
(whether accrued, absolute, direct, indirect, contingent or otherwise)
("the NEAI Liabilities") at the time of such rescission. At the time of
such rescission, any assets of NEAI shall be transferred to Rosehill.
Notwithstanding anythiong herein to the contrary, in the event that the
Financing Event occurs during the Recission Period, the right of the
Majority Holders to rescind pursuant to this Section 8.1 shall thereupon
terminate and be of no force and effect.
8.2 Procedure for Rescission. In the event that the Majority Holders are
entitled to rescind pursuant to the provisions of this Article and desire
to do so, they must give notice to that effect to Rosehill not later than
twenty days subsequent to the end of the Rescission Period (the
"Rescission Notice"). The Rescission Notice must also state the time,
during normal business hours, at a designated location in New York City,
New York that NEAI shall deliver to the Majority Holders the Rosehill
Shares duly endorsed in blank for transfer or any securities into which
such securities may have become converted and all securities and any other
property distributed in connection therewith.
8.3 Inspection of Books and Records and Officers' Certificates. Upon the
giving of the Recession Notice, the Majority Holders and their designees
shall have the right to inspect and make copies of the books and records
of NEAI solely to determine the amount and nature of the NEAI Liabilities.
NEAI hereby agrees to assist the Majority Holders in making such
determination and to provide to the Majority Holders certificates of its
officer certifying the amount of the NEAI Liabilities.
ARTICLE 9
MISCELLANEOUS
9.1 Survival of Representations and Warranties. The representations and
warranties contained herein shall survive the Closing.
9.2 Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
14
9.3 Entire Agreement. This Agreement and the schedules and exhibits hereto
contain the complete agreement among the parties with respect to the
transactions contemplated hereby and supersede all prior agreements and
understandings among the parties with respect to such transactions. 9.4
Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed
an original, and such counterparts together shall constitute only one
original.
9.5 Notices. All notices, demands, requests, or other communications that may
be or are required to be given, served or sent by any party to any other
party pursuant to this Agreement shall be in writing and shall be
addressed as follows:
If to NEAI:
New England Acquisitions, Inc.
0 Xxxxx Xxxx
Xxx Xxx, XX 00000
Fax: 000-000-0000
Email: xxxxx@xxxxxxxxx.xxx
If to Rosehill:
Rosehill Investments Limited
c/o Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Email: xxxxxxxxxxx@xxxxxx.xxx
If to Xxxxx:
Xxxx Xxxxx.
0 Xxxxx Xxxx
Xxx Xxx, XX 00000
Fax: 000-000-0000
Email: xxxxx@xxxxxxxxx.xxx
15
If to Xxxxxxx:
Xxxxxxxx X. Xxxxxxx
0000 XX 00xx Xxxxxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Email: xxxxxxx@xx.xxx
Any party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
Each notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above shall be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee, with the return receipt, the delivery receipt, the affidavit of
messenger, or (with respect to a telecopy or other electronic transmission) the
confirmation of receipt being deemed conclusive evidence of such delivery, or at
such time as delivery is refused by the addressee upon presentation.
9.6 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the
term hereof, the provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or
unenforceable provision were never a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as part of
this Agreement a provision as similar in its terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid
and enforceable.
9.7 Successors and Assigns. This Agreement and the rights, interests and
obligations hereunder shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted
assigns.
9.8 Governing Law. This Agreement and the rights and obligations of the
parties hereto shall be governed, construed and enforced in accordance
with the laws of the State of New York and exclusive venue shall lie in
the state and federal courts in the State of New York.
9.9 Amendment, Waiver and Other Action. This Agreement may be amended,
modified or supplemented only by a written instrument executed by the
parties against which enforcement of the amendment, modification or
supplement is sought.
9.10 Legal Representation. The parties to this Agreement acknowledge that they
have been advised that they should seek and have had the opportunity to
seek counsel to review this Agreement and to obtain the advice of such
counsel relating thereto.
16
9.11 Assignment. Neither this Agreement nor any right created hereby shall be
assignable by any party hereto without the written consent of the other
parties.
9.12 Captions. The captions in this Agreement are for convenience of reference
only and shall not limit or otherwise affect any of the terms or
provisions hereof.
9.13 Number and Gender. Whenever the context requires, references in this
Agreement to the singular number shall include the plural; the plural
number shall include the singular; and words denoting gender shall include
the masculine, feminine, and neuter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year set forth above.
NEW ENGLAND ACQUISITIONS, INC. ROSEHILL INVESTMENTS LIMITED
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------------- ----------------------------------------
Its: President Its: Its Attorney-in-Fact
XXXX XXXXX
/s/ Xxxx Xxxxx
-----------------------------------
XXXXXXXX X. XXXXXXX
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
EXHIBIT 1.1
----------------------------------------------------------------------------
NAME NUMBER OF
SHARES TO
BE SOLD
----------------------------------------------------------------------------
Xxxx Xxxxx 1,323,100
----------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxxx 1,379,600
----------------------------------------------------------------------------
New England Acquisitions, Inc. 9,234,520
----------------------------------------------------------------------------
Total 11,937,220
----------------------------------------------------------------------------
17
EXHIBIT 2.20
LIABILITIES OF NEAQ
-----------------------------------------------------------------------------
PAYEE AMOUNT
-----------------------------------------------------------------------------
Xxxx Xxxxx $17,817.00
-----------------------------------------------------------------------------
Xxxxxxx & Associates, P.A. $35,000.00*
-----------------------------------------------------------------------------
Meyler & Company, LLC $ 2,050.00
-----------------------------------------------------------------------------
Yes International $ 508.25
-----------------------------------------------------------------------------
State of Florida $ 600.00
-----------------------------------------------------------------------------
Florida Atlantic Stock Transfer $ 200.00
-----------------------------------------------------------------------------
--------
* Does not include amounts relating to transactions with Rosehill
Investments Limited which have not yet been billed. Xxxxxxx & Associates,
P.A. has agreed to accept payment for such unbilled amounts solely from
the proceeds of the Cash Purchase Price and will not seek any payment from
NEAI
18
