Exhibit 10.6
REGULATION "S" STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made this 28th day of November, 1996, by
and between Stonehill Investments, Ltd., a corporation organized under the laws
of Ireland ("BUYER"), and Xplorer, S.A., a Nevada corporation ("COMPANY").
WHEREAS, the COMPANY desires to sell SEVEN HUNDRED AND FIFTY THOUSAND
(750,000) SHARES of the COMPANY'S Common Stock ("SHARES") pursuant to Regulation
"S" as promulgated under the United States ("U.S.") Securities Act of 1933, as
amended (the "1933 Act"), at a value of U.S. Four Dollars (US$4.00) per share,
and
WHEREAS, the BUYER desires to purchase the Shares from the COMPANY in
exchange for 60,000 Units of Beneficial Interests ("UBI's") of Atlantic Pacific
Trust valued in excess of US$3,000,000 in accordance with the terms and
conditions of this Agreement, and
WHEREAS, the COMPANY desires to facilitate the purchase and
sale of the SHARES provided for herein;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements of the parties contained herein, the parties, intending to be legally
bound hereby, agree as follows:
1. SALE OF SHARES. The COMPANY shall sell and deliver to the BUYER and
the BUYER shall purchase and receive, at the Purchase Price, SEVEN HUNDRED AND
FIFTY THOUSAND (750,000) SHARES of the COMPANY'S Common Stock at such Purchase
Price as set forth herein.
2. CLOSING DATE. This transaction shall be, closed pursuant to the terms
and conditions hereon within thirty (30) days after the execution of this
Agreement at 5:00 P.M. (local time) at the offices of the COMPANY, or its
designee. The Date of Execution of this transaction is herein called the
"Closing Date." The actions outlined in Section 3, which are to take place on
the Closing Date, are herein called the "Closing."
3. CLOSING. At Closing, the parties shall take the following actions:
3.1 TRANSFER OF SHARES. The Company shall sell, transfer, assign,
and deliver to the BUYER, the SHARES, all of which shall be issued and
outstanding as of the Closing Date, upon the terms and subject to the conditions
set forth in this Agreement. The COMPANY shall deliver to the BUYER, free and
clear of all claims and encumbrances, certificate(s) for the SHARES which the
COMPANY is selling, without a restrictive legend of any kind, registered in the
name of the BUYER or, if not so registered, then to its assignee, designee or
nominee, so long as such assignee, designee or nominee is not a U.S. person as
defined by Regulation "S" under the Act.
3.2 TRANSFER AGENT INSTRUCTIONS. The COMPANY will instruct its
transfer agent to issue one or more share certificates representing the SHARES
Exhibit 10.6
pursuant to this Agreement without restrictive legend in the name of Stonehill
Investments, Ltd. or its non U.S.A. resident assignee, designee or nominee. The
BUYER agrees and acknowledges that the COMPANY shall issue stop transfer
instructions to its transfer agent prohibiting the transfer of the SHARES
delivered under this Agreement for a period of forty (40) calendar days after
the Closing Date.
3.3 PURCHASE PRICE. The Purchase Price shall be 60,000 UBI's,
properly endorsed, transferred and delivered to SELLER at the Closing.
3.4 The BUYER may purchase all or part of the, 750,000 shares prior
to the Closing Date. Upon the receipt of properly endorsed UBI's the Company
will instruct the transfer agent to issue the stock that has been paid for to
BUYER or a nominee. It is understood that the Forty (40) Calendar Days holding
period shall commence after the Closing Date as more fully set forth in
paragraph 4(e).
4. SECURITIES ACT OF 1933 AND HOLDING PERIOD. The BUYER covenants and
agrees as follows:
a) The BUYER understands that the SHARES acquired pursuant to this
Agreement have not been registered under the 1933 Act with the
Securities and Exchange Commission in reliance upon the exemption
from such registration requirements afforded by Regulation "S" under
the 1933 Act, governing the offer and sale of securities that occur
outside the U.S., nor with any state securities commission.
b) The BUYER hereby represents and warrants that: it is a corporation
organized and subject to the jurisdiction of Ireland and whose
principal address is Xxx xxx Xxxxx 00, 000 Xxxxxx, Xxxxxxxxxxx and it
is not a U.S. person, within the meaning of Rule 902(o) of Regulation
"S."
c) The BUYER hereby represents and warrants that it is the sole owner
of the 60,000 UBI's to be transferred to the COMPANY and that it has
the power and authority to transfer such UBI's without any further
corporate or government consent or approval. Furthermore, BUYER
represents that there are no liens or obligations against such UBI's
and that they are free and clear of any liabilities.
d) The BUYER agrees that the SHARES acquired by the BUYER pursuant to
this Agreement shall not be voluntarily sold, transferred or
otherwise disposed of for a minimum period of FORTY (40) CALENDAR
DAYS from the Closing Date.
e) In connection with the transaction which is the subject of this
Agreement, BUYER acknowledges that offers respecting the sale of
Common Stock directed to it by the COMPANY were received outside of
the U.S. and that BUYER did not engage in or direct any unsolicited
offers to buy SHARES of Common Stock of the COMPANY into the U.S.
Exhibit 10.6
f) The BUYER understands that any disposition of the SHARES in
violation of this Agreement, as well as Section 4.1, 4.3, or this
Section 4.4, shall be null and void. No transfer of the SHARES shall
be made by the COMPANY'S registrar or transfer agent upon the
COMPANY'S stock transfer books or records unless there has been
compliance with the terms of this Agreement. The COMPANY shall issue
stop transfer instructions to its registrar or transfer agent to the
effect that the certificate(s) evidencing the SHARES may not be
transferred for a period of FORTY (40) CALENDAR DAYS after the
Closing Date and shall be transferred immediately thereafter except
as provided in 3.1 hereof.
g) BUYER agrees that any disposition of the SHARES in the U.S. shall
be in conformity with Regulation "S" pursuant to an opinion of
counsel for the holder of such SHARES, that such SHARES are exempt
from registration under the 1933 Act and such opinion shall be
acceptable to COMPANY.
5. CONDITIONS OF BUYER'S AND COMPANY'S OBLIGATIONS TO CLOSE. The
following shall be conditions of the BUYER'S and the COMPANY'S obligation to
close hereunder, which either the BUYER or the COMPANY, in the sole discretion
of each, may waive in whole or in part:
5.1 REPRESENTATIONS AND WARRANTIES OF THE BUYER AND THE COMPANY.
Representations and Warranties made by the BUYER, and the Company, in this
Agreement shall be true and correct as of the Closing Date.
5.2 NO DEFAULT - COVENANTS AND AGREEMENTS. Neither the BUYER nor
the COMPANY shall be in material default with respect to any obligation under
this Agreement and both shall have performed or complied with all covenants,
agreements and conditions to be performed or complied with prior to, or at, the
Closing.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The COMPANY represents
and warrants to the BUYER that the statements contained in Sections 6.1 through
6.7 are true and correct on the date hereof.
6.1 CORPORATE STANDING. The COMPANY is a corporation duly
ORGANIZED, validly existing, and in good standing under the laws of the State of
Nevada and it has full power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby. The execution and delivery of
this Agreement by the COMPANY does not, and the consummation of the transactions
contemplated hereby will not, violate or result in a breach of any provisions of
COMPANY's Charter or Bylaws.
6.2 CAPITAL STOCK. As of September 30, 1996, the authorized capital
stock of the COMPANY consists of SIXTY MILLION (60,000,000) SHARES of Common
Stock of par value $.001, of which amount FIFTEEN MILLION NINE HUNDRED AND FIFTY
FOUR THOUSAND (15,954,000) SHARES of Common Stock have been validly issued and
are outstanding, fully paid and nonassessable and FIFTEEN MILLION (15,000,000)
SHARES of Preferred Stock, of which amount ONE MILLION FORTY THREE THOUSAND ONE
HUNDRED (1,043,100) SHARES have been validly issued and are outstanding, fully
paid and nonassessable.
Exhibit 10.6
6.3 AUTHORITY. The COMPANY has full power and authority to enter
into this Agreement and has taken all action or will use its best efforts to
take all action, corporate and otherwise, necessary to authorize the execution,
delivery and performance of this Agreement, the completion of the transactions
contemplated hereby and the execution and delivery on behalf of the COMPANY of
any and all Instruments necessary or appropriate in order to effectuate fully
the terms and conditions of this Agreement. Upon delivery of the SHARES and
payment of the purchase price, good and clear title to the SHARES will pass,
free and clear of all restrictions on transfer, liens, encumbrances, security
interest and claims whatsoever, to the BUYER, subject, however, to the
provisions of Sections 2, 3, and 4 inclusive.
No consent or approval of any court, governmental agency or other public
authority, or of any other person, corporation or entity with any actual or
alleged interest in the COMPANY is required as a condition to (a) the validity
or enforceability of this Agreement or any other instruments to be executed by
the COMPANY to effectuate this Agreement, or (b) the completion or validity of
any of the transactions contemplated by this Agreement. This Agreement has been
properly executed and delivered by the duly authorized officers of the COMPANY,
and constitutes the valid and legally binding agreement of the COMPANY and is
enforceable against the COMPANY in accordance with its terms.
6.4 FINANCIAL STATEMENTS. The COMPANY furnished, or made available,
to the BUYER financial statements contained in the COMPANY'S Form 8-K dated
August 5, 1996 ("Financial Statements"). There has been no material adverse
change in, material loss or destruction of, or material amount of damage to the
financial condition or business of the COMPANY since the filing of the Form 8-K,
whether or not arising from transactions in the ordinary course of business. The
regular books of account of the COMPANY fairly and accurately reflect all
transactions since the filing of the Form 8-K, are true, correct and complete,
and are maintained and kept in accordance with generally accepted accounting
principles consistently applied. The COMPANY does not have any liabilities or
obligations, whether accrued, absolute, contingent or otherwise, which would
materially and adversely affect the condition (financial and otherwise) of the
COMPANY, except and to the extent reflected or reserved against in the balance
sheets included in the Financial Statements. No dividends are due or unpaid by
the COMPANY.
6.5 TAXES. The COMPANY knows of no outstanding claims against the
COMPANY for taxes which constitute a lien on the SHARES being sold hereunder.
6.6 ADVERSE CIRCUMSTANCES. To the best knowledge of the COMPANY,
there are no facts, developments or circumstances, existing or threatened, of a
special or unusual nature that may be materially adverse to the assets,
business, financial condition or future prospects of the COMPANY.
6.7 LIABILITIES. The COMPANY does not have any material liabilities
of any nature, whether accrued, absolute, contingent or otherwise, existing, or
which may hereafter arise out of any transaction entered into prior to the
Closing Date or out of any act or failure to act on the part of the COMPANY or
ARC or any of its employees or agents prior to the Closing Date, except (i) as
and to the extent and in the amounts reflected or reserved against in the
Financial Statements, and (ii) current liabilities incurred in the ordinary
course of business since its filing of the COMPANY'S Form 8-K.
Exhibit 10.6
7. COVENANTS AND AGREEMENTS OF THE BUYER. The BUYER hereby Covenants and
agrees as follows:
a) IMPAIRMENT - REPRESENTATIONS AND WARRANTIES. The BUYER shall not
take any action or fail to take any action, without the prior written
approval of the COMPANY, which would or might cause any
representation or warranty of the COMPANY made herein not to be true
on the Closing Date, or impair the COMPANY'S ability to carry out its
obligations under this agreement.
b) DUE DILIGENCE. The BUYER, or its agents, have had a full
opportunity to conduct its due diligence of the COMPANY, in
connection with this Agreement to its complete satisfaction. The
BUYER is familiar with the COMPANY, its financial condition, business
and prospects, has been provided with such information concerning the
COMPANY'S financial and other affairs as the BUYER deems necessary to
enter into and perform this Agreement, has had sufficient opportunity
to ask questions and receive answers to verify the accuracy of such
information, and is not in any way relying upon any information,
representation or warranty (without implying that the supplying of
any such information or the making of any such representation or
warranty has occurred) that the COMPANY or its officers, directors,
employees, agents and attorneys have provided, or have failed to
provide, to the BUYER in entering into or performing this Agreement.
c) Buyer is not a U.S. person as that term is defined in Regulation
"S" under the Act.
d) At the time the buy order was originated BUYER was outside the
United States and is outside the United States as of the date of its
execution and delivery of this Agreement.
e) BUYER is purchasing the SHARES for its own account and not on
behalf of any U.S. persons; the sale has not been pre-arranged with a
purchaser in the United States; and all offers and resales of the
securities shall only be made in compliance with the provisions of
Regulation S.
f) This transaction is made in compliance with all laws of the
country of Germany and the customary practices and documentation of
such jurisdiction.
g) BUYER is not an entity organized under foreign law by a U.S.
person, as defined in Regulation "S," Rule 902(o), for the purpose of
investing in unregistered securities, unless the BUYER was organized
and is owned by accredited investors. as defined in Regulation D,
Rule 501(a), who are not natural persons, estates or trusts.
8. CONDITIONS OF THE COMPANY'S OBLIGATION TO CLOSE. The obligations of
the COMPANY to close this transaction and transfer and deliver to the BUYER the
SHARES as set forth in Section 4.1 hereof, and to perform its obligations
pursuant to the terms and conditions of this Agreement, are subject to the
fulfillment as of the Closing Date of each of the following conditions
precedent, any or all of which may be waived in writing by the COMPANY:
Exhibit 10.6
a) PAYMENT OF PURCHASING PRICE. The BUYER shall be ready, willing
and able to pay the Purchase Price; provided, however, that this
condition precedent shall not be interpreted to permit the COMPANY to
refuse to perform its obligations in accordance with Sections 2 and
3, except upon termination of this Agreement pursuant to Section II.
9. DELIVERY OF DOCUMENTS BY THE COMPANY. At the Closing, and in addition
to all other documents and instruments which the COMPANY is required to deliver
pursuant to this Agreement, the COMPANY shall deliver to the BUYER the following
documents duly executed by the COMPANY or the directors, officers, or employees
of or counsel to the COMPANY, or appropriate governmental officials, in form and
substance satisfactory to the BUYER and its counsel.
a) GOOD STANDING CERTIFICATE. If requested by the BUYER a CERTIFICATE
from the State of Nevada dated not more than THIRTY (30) DAYS prior
to the Closing Date, as to the good standing of the COMPANY.
b) OTHER DOCUMENTS. Such other documents, certificates and
instruments relating to the transactions contemplated by this
Agreement as the BUYER or its counsel may reasonably request or deem
necessary.
10. TERMINATION OF AGREEMENT. This Agreement and the transaction
contemplated hereby may be terminated by the BUYER without liability of any kind
to the COMPANY by written instrument signed by the BUYER and delivered at any
time on or prior to the Closing Date, giving notice of termination if:
a) There has been a material misrepresentation or material breach of
warranty on the part of the COMPANY, in the representations and
warranties set forth herein or in any certificate delivered pursuant
hereto, or the COMPANY shall have failed to perform or comply with,
in any material respect, any covenant, agreement or condition to be
performed or complied with prior to, or at Closing, due to the
nonfulfillment of any condition set forth herein;
b) In the reasonable judgment of the BUYER the transactions
contemplated by this Agreement have become inadvisable or
impracticable by reason of (i) the enactment of new federal, state or
local legislation since the date of this Agreement, or (ii) the
announcement of the institution by federal, state or local
authorities of an investigation of or litigation or proceedings
against the COMPANY which may have a material and adverse effect on
the Company or the transactions contemplated hereby, or (iii) the
institution since the date of this Agreement by any other person,
corporation or entity of litigation or proceedings against or in
regard to the COMPANY, which may have a material and adverse effect
upon the authority or ability of the COMPANY to consummate the
transactions contemplated hereby; or
c) The business, assets, results of operations, financial condition
or future prospects of the COMPANY have been significantly and
Exhibit 10.6
adversely affected by reason of changes or developments in
operations, other than in the ordinary course of business, since the
filing of the COMPANY'S most recent Form 8-K.
11. EFFECT OF TERMINATION. In the event that this Agreement shall be
terminated in accordance with the provisions of the Agreement, then all further
obligations, if any, of the BUYER to the COMPANY under this Agreement shall
terminate without further liability.
12. EXPENSES. All legal, accounting and other costs and fees incurred by
the BUYER, or the COMPANY, in connection with the transactions contemplated by
this Agreement shall be borne and paid for by the party incurring same.
13. MISCELLANEOUS PROVISIONS.
13.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
respective representations, warranties, covenants and agreements made in this
Agreement by the BUYER or the COMPANY, shall survive the Closing. The
representations and warranties of each contained herein or in any certificates
delivered pursuant hereto shall not he deemed to be waived or otherwise affected
by an investigation or audit made by any other, or by any action taken by any
other, at the request of any other hereto.
13.2 ASSIGNMENT. This Agreement and all rights and obligations
hereunder may not be assigned by the BUYER, in whole or in part, without the
prior knowledge, and/or written consent of the COMPANY.
13.3 NOTICES. Any notice, request, instruction or other document or
communication required or permitted to be given upon delivery in person or upon
being deposited in the mail, postage prepaid, for mailing by certified or
registered mail as follows:
If to the COMPANY, delivered or mailed to:
Xplorer, S.A.
0000 Xxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, P.E., President
If to the BUYER, delivered or mailed to:
Stonehill Investments, Ltd.
Xxx xxx Xxxxx 00
000 Xxxxxx, Xxxxxxxxxxx
13.4 SECTION HEADINGS. Section headings are for convenience only and
shall not limit or otherwise affect any of the provisions of this Agreement.
13.5 ENTIRE AGREEMENT. This Agreement and any Exhibits thereto
constitute the entire agreement and understanding of the parties hereto with
respect to the matters herein set forth, and all prior negotiations, writings
and understands relating to the subject matter of this Agreement are merged
herein and are superseded and canceled by this Agreement.
Exhibit 10.6
13.6 WAIVERS - AMENDMENTS. Any of the terms or conditions of this
Agreement may be waived, but only in writing by the party which is entitled to
the benefit thereof, and this Agreement may be amended, or modified in whole or
in part, only by an agreement in writing, executed by all the parties to this
Agreement.
13.7 LITIGATION. If, for any reason, it becomes necessary for the
BUYER, its assignees, nominees or transferees, including any and all third party
beneficiaries, the BUYER, its nominee, assignee or third party beneficiary, to
enforce all, or any portion, of this Agreement through the courts, arbitration,
or litigation, it shall be entitled to recover reasonable attorney fees and
costs.
13.8 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of California without regard to conflicts
of law.
13.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, as well as by
facsimile, but all of which together shall constitute one and the same
instrument.
BUYER: STONEHILL INVESTMENTS, LTD.
/s/ Date: November 28, 1996
------------------------------------
By:
COMPANY: XPLORER, S.A.
/s/ Xxxxxx X. Xxxxx Date: November 28, 1996
------------------------------------
By: Xxxxxx X. Xxxxx, P.E., President
Exhibit 10.6
