Exhibit 2.1
STOCK PURCHASE AGREEMENT
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AGREEMENT made as of this [ ]th day of May 2004, by and
between Xxxxxx Aerospace Group, Ltd. a Delaware corporation ("Seller") and Xxxxx
Holding & Finance Ltd., a corporation formed and existing under the laws of
Switzerland ("Buyer").
W I T N E S S E T H:
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WHEREAS, Seller is the owner of 100 shares of the common stock (the
"Shares"), of Xxxxxx Airplane Company ("MAC"), a Delaware corporation;
WHEREAS, Buyer desires to purchase from Seller and Seller desires to
sell to Buyer, the Shares upon the terms and conditions hereinafter set forth;
and
WHEREAS, concurrently with the execution of this Agreement, and as a
condition and inducement to Seller's willingness to enter into this Agreement,
Buyer and Seller shall enter into an Assignment and Assumption Agreement, in the
form attached hereto as Exhibit A.
NOW THEREFORE, in consideration of the mutual covenants and promises
herein contained and upon the terms and conditions hereinafter set forth, the
parties hereto, intending to be legally bound, agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
PURCHASE AND SALE. Upon the terms and conditions herein contained, at
the Closing (as hereinafter defined), Seller agrees to sell the Shares to Buyer
and Buyer agrees to purchase the Shares from Seller, free and clear of all
liens, claims, pledges, mortgages, restrictions, obligations, security interests
and encumbrances of any kind, nature and description, except as set forth on
Schedule A hereto.
2. CONSIDERATION.
The purchase price for the Shares (the "Purchase Price") shall be the
Buyer's acceptance of the assignment and assumption of the secured debt owed by
the Seller as listed on Exhibit B hereto.
3. CLOSING.
3.1 TIME AND PLACE OF CLOSING. The closing of the transactions
contemplated by this Agreement (the "Closing") is taking place simultaneously
with the execution of this Agreement, at the offices of Sichenzia Xxxx Xxxxxxxx
Xxxxxxx LLP, 1065 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
at the date first set forth above (hereinafter the "Closing Date").
3.2 Delivery by Seller. At the Closing, Seller shall deliver to Buyer
executed Stock Power(s) or other documents satisfactory to Buyer permitting
transfer to Buyer of the Shares. Buyer acknowledges that the Shares are held
pursuant to the Pledge Agreement described on Schedule A attached hereto. Buyer
further acknowledges that it is purchasing the Shares subject to the Pledge
Agreement and the liens and other obligations set forth on Schedule A.
3.3 DELIVERY BY BUYER. At the Closing, Buyer shall deliver to the
Seller an executed assignment and assumption agreement relating to the Purchase
Price or other documents satisfactory to Seller evidencing assignment and
assumption of the secured debt, guarantees and related stock pledge.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants to Buyer as follows:
4.1 STATUS OF SELLER AND SHARES. Seller is the sole beneficial owner of
the Shares, and owns the Shares, free and clear of all mortgages, pledges,
restrictions, liens, charges, encumbrances, security interests, obligations or
other claims, except as set forth on Schedule A hereto.
4.2 CAPITALIZATION AND RELATED MATTERS.
(a) MAC has an authorized capital consisting of [ ] shares of
common stock, of which 100 shares of common stock are issued and outstanding as
of the date hereof. All shares of common stock are duly and validly issued,
fully paid and nonassessable. No shares of common stock (i) were issued in
violation of the preemptive rights of any shareholder, or (ii) are held as
treasury stock.
(b) There are no outstanding securities convertible into
shares of common stock or any other capital stock of the Company nor any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, such capital stock or
securities convertible into such capital stock (collectively, "Securities
Rights"). MAC: (i) is not subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any of its capital stock; or (ii) has
no liability for dividends or other distributions declared or accrued, but
unpaid, with respect to any capital stock.
(c) MAC is not a party to any agreement, understanding or
arrangement, direct or indirect, relating to any class or series of MAC's
capital stock, including, without limitation, any voting agreement, restriction
on resale, shareholder agreement or registration rights agreement.
4.3 EXECUTION; NO INCONSISTENT AGREEMENTS; ETC.
(a) This Agreement is a valid and binding agreement of the
Seller, enforceable in accordance with its terms, except as such enforcement may
be limited by bankruptcy or similar laws affecting the enforcement of creditors'
rights generally, and the availability of equitable remedies.
(b) The execution and delivery of this Agreement by the Seller
does not, and the consummation of the transactions contemplated hereby will not,
constitute a breach or violation of the charter or bylaws of the Seller, or a
default under any of the terms, conditions or provisions of (or an act or
omission that would give rise to any right of termination, cancellation or
acceleration under) any note, bond, mortgage, lease, indenture, agreement or
obligation to which the Seller is a party, pursuant to which the Seller
otherwise receives benefits, or to which any of the properties of the Seller is
subject.
4.4 CORPORATE RECORDS. The statutory records, including the stock
register and minute books of the Seller, fully reflect all issuances, transfers
and redemptions of its capital stock, correctly show and will correctly show the
total number of shares of its capital stock issued and outstanding on the date
hereof and on the Closing Date, the charter or other organizational documents
and all amendments thereto, and bylaws as amended and currently in force.
4.5 TITLE TO PROPERTIES. The Seller has good and marketable title to
all of its properties and assets, real and personal, including, but not limited
to, those reflected in the 2003 Seller Balance Sheet (except as since sold or
otherwise disposed of in the ordinary course of business, or as expressly
provided for in this Agreement), free and clear of all Encumbrances of any kind
or character except: (a) those securing liabilities of the Seller incurred in
the ordinary course (with respect to which no material default exists); (b)
liens of 2004 real estate and personal property taxes; and (c) imperfections of
title and encumbrances, if any, which, in the aggregate (i) are not substantial
in amount; (ii) do not detract from the value of the property subject thereto or
impair the operations of the Seller or; and (iii) do not have a material adverse
effect on the business, properties or assets of the Seller.
4.6 FINANCIAL STATEMENTS.
(a) The Seller has delivered to the Buyer (i) the consolidated
audited balance sheet of MAC as of December 31, 2003, and the consolidated
audited consolidated profit and loss statement of MAC for the fiscal year ended
December 31, 2003, and (ii) the consolidated unaudited balance sheet of MAC as
of March 31, 2004 and the consolidated unaudited profit and loss statement of
MAC for the three months ended March 31, 2004 (the balance sheet as of December
31, 2003 is hereinafter referred to as the "2003 MAC Balance Sheet"). All the
foregoing financial statements, and any financial statements delivered pursuant
to subsection (c) below, are referred to herein collectively as the "MAC
Financial Statements."
(b) The MAC Financial Statements have been and will be
prepared in accordance with U.S. GAAP, applied on a consistent basis (except
that the unaudited statements do not contain all the disclosures required by
GAAP), and fairly reflect and will reflect in all material respects the
financial condition of MAC as at the dates thereof and the results of the
operations of MAC for the periods then ended.
4.7 LIABILITIES. MAC has no material debt, liability or obligation of
any kind, whether accrued, absolute, contingent or otherwise, except: (a) those
reflected on the 2003 MAC Balance Sheet, including the notes thereto, and (b)
liabilities incurred in the ordinary course of business since December 31, 2003,
none of which have had or will have a material adverse effect on the financial
condition of MAC.
5. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS OF BUYER. Buyer
hereby represents, warrants and acknowledges to Seller as follows:
5.1 INVESTMENT PURPOSES. Buyer is acquiring the Shares for his own
account, for investment purposes only and not with a view to resale or other
distribution thereof, nor with the intention of selling, transferring or
otherwise disposing of all or any part of such Shares, or any interest therein,
for any particular price, or at any particular time, or upon the happening of
any particular event or circumstances, except selling, transferring, or
disposing of such Shares made in full compliance with all applicable provisions
of the Securities Act of 1993 (the "Act") and the Securities Exchange Act of
1934 ("Exchange Act"), and the Rules and Regulations promulgated by the
Securities and Exchange Commission thereunder, all as amended; and that such
Shares must be held indefinitely unless they are subsequently registered under
the Act, or an exemption from such registration is available.
5.2 SOPHISTICATED INVESTOR. Buyer has sufficient knowledge and
experience of financial and business matters, is able to evaluate the merits and
risks of purchasing such Shares and has had substantial experience in previous
private and public purchases of securities.
5.3 EXECUTION; NO INCONSISTENT AGREEMENTS; ETC.
(a) This Agreement is a valid and binding agreement of the
Buyer, enforceable in accordance with its terms, except as such enforcement may
be limited by bankruptcy or similar laws affecting the enforcement of creditors'
rights generally, and the availability of equitable remedies.
(b) The execution and delivery of this Agreement by the Buyer
does not, and the consummation of the transactions contemplated hereby will not,
constitute a breach or violation of the charter or bylaws of the Buyer, or a
default under any of the terms, conditions or provisions of (or an act or
omission that would give rise to any right of termination, cancellation or
acceleration under) any note, bond, mortgage, lease, indenture, agreement or
obligation to which the Buyer is a party, pursuant to which the Buyer otherwise
receives benefits, or to which any of the properties of the Buyer is subject.
6. CONDITIONS PRECEDENT TO OBLIGATION OF BUYER.
Buyer's obligation to consummate the transaction contemplated by this
Agreement is subject to the satisfaction, on or prior to the Closing, of each of
the following conditions, unless waived by Buyer in writing:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained in this Agreement will be true and correct in all
material respects as of the Closing with same effect as though made at such
time.
6.2 PERFORMANCE OF AGREEMENTS. Seller and the Stockholders will have
performed in all material respects all of their covenants, agreements and
obligations under this Agreement which are to be performed or complied with
prior to or upon the Closing.
6.3 DELIVERIES. Seller will have delivered to stock powers executed in
blank satisfactory to Buyer, transferring to Buyer all of the Shares, together
with the executed Assignment and Assumption Agreement, as attached hereto as
Exhibit A.
6.5 APPROVAL OF TRANSACTIONS. The transactions contemplated hereby will
have been approved by the Board of Directors and stockholders of Seller.
7. CONDITIONS PRECEDENT TO OBLIGATION OF SELLER.
The obligation of Seller to consummate the transaction contemplated by
this Agreement is subject to the satisfaction, on or prior to the Closing, of
the following conditions, unless waived by Seller in writing:
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer contained in this Agreement will be true in all material
respects as of the Closing with the same effect as though made at such time.
7.2 PERFORMANCE OF AGREEMENT. Buyer will have performed in all material
respects all of its covenants, agreements and obligations required by this
Agreement and each of the other documents contemplated hereby to be performed or
complied with by Buyer prior to or upon the Closing and will have delivered all
documents and items required to be delivered at or prior to the Closing.
7.3 APPROVAL OF TRANSACTIONS. The transactions contemplated hereby will
have been approved by the Board of Directors of Buyer.
7.4 DELIVERIES. Buyer will have delivered to Seller the executed
Assignment and Assumption Agreement, as attached hereto as Exhibit A.
7.5 CONSENTS. All consents and approvals required to be obtained by
Buyer in connection with the consummation of the transactions contemplated
hereby will have been obtained without conditions materially and adversely
affecting Seller or its business or properties.
8. POST-CLOSING COVENANTS.
8.1 FURTHER ASSURANCES. After the Closing, at the request of either
party, the other party shall execute, acknowledge and deliver, without further
consideration, all such further assignments, conveyances, endorsements, deeds,
powers of attorney, consents and other documents and take such other action as
may be reasonably requested to consummate the transactions contemplated by this
Agreement.
9. MISCELLANEOUS
9.1 BINDING EFFECT; BENEFITS. This Agreement shall inure to the benefit
of, and shall be binding upon, the parties hereto and their respective
successors and permitted assigns. Except as otherwise set forth herein, this
Agreement may not be assigned by any party hereto without the prior written
consent of the other party hereto. Except as otherwise set forth herein, nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
9.2 NOTICES. All notices, requests, demands and other communications
which are required to be or may be given under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered in person, or
transmitted by telecopy or telex, or upon receipt after dispatch by certified or
registered first class mail, postage prepaid, return receipt requested, to the
party to whom the same is so given or made, at the following addresses (or such
others as shall be provided in writing hereinafter):
(a) If to Seller, to:
(b) If to the Buyer, to:
Xxxxxxxxxxxxxxxx 00
Xxxxxxxx 0000
XX-0000 Xxxxxx
Telephone: 000-00-000-000-000
Facsimile: 011-41-442-000-910
Attn: Francois Morax, Director
With a copy to:
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
1065 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 212-930-9725
Attn: Xxxx Xxxx, Esq.
9.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and supersedes all prior agreements and understandings, oral and written,
between the parties hereto with respect to the subject matter hereof.
9.4 HEADINGS. The section and other headings contained in this
Agreement are for reference purposes only and shall not be deemed to be a part
of this Agreement or to affect the meaning or interpretation of this Agreement.
9.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
9.6 GOVERNING LAW. This Agreement shall be construed as to both
validity and performance and enforced in accordance with and governed by the
laws of the State of New York, without giving effect to the conflicts of law
principles thereof.
9.7 SEVERABILITY. If any term or provision of this Agreement shall to
any extent be invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby, and each term and provision of the Agreement shall be
valid and enforced to the fullest extent permitted by law.
9.8 ARBITRATION. Any controversy or dispute arising out of or in
connection with this Agreement, its interpretation, performance or termination,
which the parties hereto are unable to resolve within a reasonable time after
written notice from one (1) party to the other of the existence of such
controversy or dispute shall be determined by arbitration. Such arbitration
shall be in accordance with the rules and procedures then in effect of the
National Association of Securities Dealers, Inc. by a securities industry panel.
The costs and expenses of such arbitration, including attorney's fees and
expenses, shall be awarded as determined by the arbitrators.
9.9 AMENDMENTS. This Agreement may not be modified or changed except by
an instrument or instruments in writing executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SELLER:
XXXXXX AEROSPACE GROUP, LTD.
/s/ Xxxxxx Happy
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By: Xxxxxx Happy
Title:
BUYER:
XXXXX HOLDING & FINANCE LTD.
/s/ Francois Morax
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By: Francois Morax
Title: Director
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT B
NAME AMOUNT OWED
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XXXXXXX XXXXXXXXXX ROTSCHILD $632,800.00
GUARANTY 7 FINANCE CORP. $2,732,800.00
XXXX XXXX - NEW YORK $140,000.00
SILVER DEVELOPMENT CORP $641,372.62
XXXXXX XXXXXX $210,000.00
PALISADES EQUITY CORP $283,200.00
XXXXXX J XXXXXXX $140,000.00
XXXXX INC $442,350.56
XXXXXXX XXXXXXXX $50,000.00
XXXXXX XXXXXXXXXXX $173,191.90
ESQUIRE TRADE & FINANCE $77,965.79
LIBRA FINANCE $1,092,302.58
ALPHA CAPITAL $4,681,611.71
XXXX XXXXX $88,700.00
XXXXX FAMILY INVESTMENTS PARTY FMY LTD $1,332,800.00
TRW HOLDINGS PARTY LTD $1,332,800.00
XXXXX XXXXX $113,120.00
XXXXXX XXXXX $364,154.98
XXXXX XXXXXX $54,877.20
FIDULEX $140,000.00
MM & CTW FOUNDATIONS INC $140,000.00
XXXXXXX XXXXXXX $43,620.00
BRISTOL INVESTMENTS $782,500.00
XXXXXXX XXXXXXXX $58,000.00
LUCRATIVE INVESTMENTS $651,014.92
RENAISSANCE DEVELOPMENT HOLDINGS INT LTD $2,738,686.13
XXXX XXXXX $42,080.00
XXXXXX XXXXX $140,000.00
XXXXXXX XXXXXX $70,000.00
XXXXXXX XXXXXXX $35,000.00
XXXXXX XXXXX $185,000.00
XXXX XXXXXXXXXX $300,000.00
XXXXXXXXX XXXXXXXXXX $120,000.00
CON BIAS YITZCHAK INC $140,000.00
CAMDEN INTERNATIONAL LTD $20,000.00
XXXXXXX XXXXXX $200,000.00
AUSTINVEST ANSTALT BALZERS $182,000.00
AREIVIM INC $161,775.00
INTERNATIONAL TRADE & INVESTMENTS $302,000.00
XXX XXXXXXX $74,170.88
TOTAL $21,109,894.27
