STOCK PURCHASE AGREEMENT
Exhibit
10.10
This
Stock Purchase Agreement (the “Agreement”)
dated
as of the 17th day of April, 2007, is made and entered into by and between
MV
EQUITY PARTNERS, INC.,
a Texas
corporation with offices at 000 Xxxxxxxx Xxx., Xxxxx 0000, Xxxxxx, XX 00000
(“Purchaser”)
and the
individuals identified on Schedule A hereto (each a “Seller”
and
collectively, the “Sellers”).
W
I T N E S S E T H :
WHEREAS,
Sellers
desire to sell to Purchaser the shares of common stock of Allmarine Consultants
Corporation (“AMCC”)
owned
by them in the respective amounts set forth opposite their names on Schedule
A
hereto, 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
AMCC
TRANSACTIONS
1.01.
Reverse
Stock Split.
Sellers
acknowledge that AMCC has 995,000 shares of Common Stock issued and outstanding
$.001 par value per share (the “Common
Stock”),
including the Shares, hereinafter defined.
1.02.
Reverse
Merger.
AMCC
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
per share offering price of the securities in such private placement (the
“PIPE
Share Price”)
will
not be less than $1.50 and the aggregate gross proceeds thereof will not be
less
than $6,000,000.
1.03.
Conditions
Precedent.
Sellers
acknowledge the Reverse Merger is a condition precedent to Purchaser’s
obligations hereunder.
ARTICLE
2
PURCHASE
OF SHARES
2.01.
Purchase
Terms.
(a)
Sellers hereby agree, subject to the terms hereof, to sell to Purchaser free
and
clear of all liens, claims and encumbrances, and Purchaser hereby agrees to
purchase from Sellers, free and clear of all liens, claims and encumbrances,
and
subject to the terms hereof, 510,000 shares of Common Stock owned by them (the
“Shares”)
for an
aggregate cash purchase price of Four Hundred Fifty Thousand Dollars ($450,000)
(the “Purchase
Price”).
The
Purchase Price will be allocated among the Sellers in the amounts set forth
opposite their names on Schedule A hereto. Any transfer or similar taxes, if
any, imposed upon the sale and transfer of the Shares to Purchaser hereunder
shall be borne by Sellers.
(b)
Purchaser has paid to Sellers prior to the execution of this Agreement, the
sum
of Fifty Thousand Dollars ($50,000) (the “Down
Payment”),
which
Sellers represent has been disbursed to creditors of AMCC. The Four Hundred
Thousand Dollar ($400,000) balance of the Purchase Price (the “Purchase
Price Balance”)
shall
be paid by Purchaser on the Closing Date (hereinafter defined), by wire transfer
to each Seller pursuant to wire transfer instructions provided to Purchaser
by
each of the Sellers prior to the Closing Date, in the amounts set forth opposite
their names on Schedule A hereto.
2.02.
Return
of Down Payment.
In the
event, however, that the Closing does not occur by June 15, 2007 (unless
extended by Purchaser as hereinafter provided or delayed by any action of
Sellers or AMCC) the Escrow Agent will return the Share Certificates
(hereinafter defined) to Sellers and the Sellers shall retain the Down Payment
as a non-refundable payment and as liquidated damages with respect to any such
breach by Purchaser, 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 Sellers,
or
any breach or default by AMCC of its obligations under the Merger Agreement
relating to the Reverse Merger or any action by Sellers or AMCC, Purchaser
will
notify Sellers of same (the “Breach
Notice”)
and the
Sellers will then cause AMCC to promptly issue and deliver to Purchaser, AMCC’s
promissory note in the principal amount of the Down Payment, bearing interest
at
the rate of five percent (5%) per annum, maturing on the earlier of (i) the
sale
by AMCC of any of its securities to any third party, (ii) the merger by AMCC
with any entity not introduced by or associated by virtue of any existing
business relationship with Purchaser or Mastodon Ventures, Inc. or the sale
of
all, or substantially all, of its assets to a third party, or (iii) one year
from the date of any such Breach Notice 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 Sellers’ compliance with their 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 elect upon notice to Sellers and the Escrow Agent, to
extend the Closing Date to a date specified in the Merger Agreement between
AMCC
and BAXL Technologies, Inc. (but not beyond July 27, 2007). If the Closing
Date
does not occur by June 15, 2007 (or any such extended date), Purchaser or
Sellers, as applicable, may terminate this Agreement upon three (3) days notice
to Sellers, or Purchaser, as applicable, and the Escrow Agent. In the event
of
such termination, Purchaser and Sellers acknowledge that the Escrow Agent will
comply with Section 2.02 above.
| 3.02. |
Closing
Deliveries.
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(a)
Upon
the
execution of this Agreement, Sellers 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)
Purchaser will pay the Purchase Price Balance to Sellers as provided in Section
2.01(b), (ii) the Escrow Agent will deliver to Purchaser the Share Certificates
in the name of Purchaser and/or its designees.
ARTICLE
4
ESCROW
4.01.
Sellers 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. Sellers 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 Sellers
(or
to AMCC’s transfer agent for reissuance to Sellers).
4.03.
In
the
event of any dispute or disagreement between Purchaser and Sellers with respect
to 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.
4.04.
The
Escrow Agent shall not be liable to Sellers 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 Sellers
or
Purchaser caused by or arising out of the Escrow Agent’s gross negligence or
willful misconduct.
4.05.
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
Sellers 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.
4.06.
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 Sellers to enter into this Agreement and to consummate the transactions
contemplated hereby, Purchaser hereby makes the following representations and
warranties to Sellers (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 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
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).
(c) Rule
144 Opinions.
Purchaser acknowledges that on the Closing Date, the new directors and officers
of AMCC shall and do hereby acknowledge that they will accept the opinion of
The
Loev Law Firm, PC or any other legal counsel mutually agreed upon that the
shares retained by Sellers were fully paid for on or prior to Closing and that
AMCC and its officers and directors acknowledge that they will not delay or
hinder the processing of any Rule 144 opinion, provided that such subsequent
transfer complies with the rules and regulations set forth in Rule
144.
5.02. Representations
and Warranties of Sellers.
To
induce Purchaser to enter into this Agreement and to consummate the transactions
contemplated hereby, Sellers hereby make 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.
The
execution, delivery and performance by Sellers of the transactions contemplated
by this Agreement have been duly authorized by all necessary action on the
part
of each Seller. This Agreement has been duly and validly executed and delivered
by each Seller, and constitutes the valid and binding obligation of each Seller,
enforceable against each Seller 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 any 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 any Seller is subject.
(d) No
Litigation.
There
are no actions, suits, proceedings or claims pending or threatened against
Sellers 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 sold by each 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 encumbrances of any kind.
(f)
Liabilities.
As of
March 31, 2007, AMCC’s liabilities do not exceed $10,750 and, on the Closing
Date, AMCC’s liabilities will not exceed $25,000, which liabilities will be
assumed by BAXL Technologies, Inc. on the date of closing of the Reverse Merger
and will be paid on such date by BAXL Technologies, Inc.
(g)
No
Business.
On the
Closing Date, AMCC will not be engaged in any ongoing business
activities.
5.03.
Survival. Notwithstanding
any provision of this Agreement to the contrary, the representations and
warranties of Purchaser and Sellers 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 among 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, among the parties
hereto with respect to the subject matter hereof (and between Sellers and
Mastodon Ventures, Inc.) 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 any 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 any of the parties hereto shall specify
by notice given in accordance with this provision):
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(i) If
to the Sellers:
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Xxxxxxx
Xxxxxx
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0000
Xxxxx Xxxx 000 Xxxx. 0
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Xxxxx
000
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Xxxxxx,
Xxxxx 00000
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Xxxxxx
Xxxxx
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0000
Xxxxxxxx #0
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Xxxxxx,
Xxxxx 00000
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Xxxxx
X. Xxxx
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0000
Xxxx Xxxx Xxxxx, Xxxxx 000
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Xxxxxxxx,
Xxxxx 00000
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(ii)
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If
to Purchaser:
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MV
Equity Partners, 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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Xxxxx
X. Xxxx, Esq.
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0000
Xxxx Xxxx Xxxxx, Xxxxx 000
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Xxxxxxxx,
Xxxxx 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
Sellers 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, heirs, personal representatives,
administrators, executors 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, heirs, personal representatives,
administrators, executors 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
any
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 City, 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 he or it has been
represented by independent counsel of his or 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, 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.
(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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SELLERS:
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
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/s/
Xxxxxx Xxxxx
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Xxxxxx
Xxxxx
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/s/
Xxxxx X. Xxxx
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Xxxxx
X. Xxxx
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PURCHASER:
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MV
EQUITY PARTNERS, INC.
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By:
/s/ Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx, President
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| ESCROW AGENT: | |
| AGREED TO AND ACCEPTED | |
| THIS 17th DAY OF APRIL, 2007 | |
| /s/ Xxxxx X. Xxxx | |
| Xxxxx X. Xxxx | |
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SCHEDULE
A
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Name
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Address
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No.
of AMCC Shares
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Xxxxxxx
Xxxxxx
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0000
Xxxxx Xxxx 000 Xxxx. 0
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170,000
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Xxxxx
000
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Xxxxxx,
Xxxxx 00000
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Xxxxxx
Xxxxx
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2311
Westrock #1
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170,000
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Xxxxxx,
Xxxxx 00000
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Xxxxx
X. Xxxx
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0000
Xxxx Xxxx Xxxxx, Xxxxx 000
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170,000
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Xxxxxxxx,
Xxxxx 00000
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PURCHASE
PRICE
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ALLOCATION
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Xxxxxxx
Xxxxxx
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One-third
of the purchase price
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Xxxxxx
Xxxxx
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One-third
of the purchase price
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Xxxxx
X. Xxxx
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One-third
of the purchase price
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