STOCK PURCHASE AGREEMENT
AMONG
XXXXX XXXXXXX, REVOC GROUP II, LTD., CONFIDA CORPORATE FINANCE, LTD., XXXX
XXXXX, XPRESS, LTD., XXXX XXXXXXXX XXXXXX, AND ARVIMEX, INC., AS SELLERS
AND
NAVIGATOR VENTURES INC., AS PURCHASER
NOVEMBER 4, 2002
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") has been made and entered into as of
this 4th day of November, 2002, between Xxxxx Xxxxxxx, Revoc Group II, Ltd.,
Confida Corporate Finance, Ltd., Xxxx Xxxxx, Xpress, Ltd., Xxxx Xxxxxxxx Xxxxxx,
and Arvimex, Inc., individuals and corporations resident in Florida ("Sellers"),
and Navigator Ventures Inc., a Nevada Corporation (the "Purchaser").
R E C I T A L S:
A. The parties hereto desire to effect a stock sale (the "Stock Sale")
pursuant to which Purchaser will purchase from the Sellers an aggregate of 100
shares (the "Transferred Shares") of the common stock of Golden Apple Holding
Company Inc., a Florida corporation (the "Company"), par value $1.00 per share
(the "Company Stock"), to be purchased by Purchaser for the consideration set
forth herein. The Transferred Shares represent all of the issued and
outstanding stock of the Company.
B. Pursuant to the Stock Sale, the Sellers will sell, and Purchaser will
purchase, the Transferred Shares.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, the parties hereto agree as follows and do thereby adopt this
Agreement.
ARTICLE I.
DEFINITIONS
The terms defined in this Article (except as otherwise expressly provided in
this Agreement) for all purposes of this Agreement shall have the respective
meanings specified in this Article.
"AFFILIATE" shall mean any entity controlling or controlled by another person,
under common control with another person, or controlled by any entity which
controls such person.
"AGREEMENT" shall mean this Agreement, and all the exhibits, schedules and other
documents attached to or referred to in the Agreement, and all amendments and
supplements, if any, to this Agreement.
"CLOSING" shall mean the closing of the Transaction at which the Closing
Documents shall be exchanged by the parties, except for those documents or other
items specifically required to be exchanged at a later time.
"CLOSING DATE" shall mean five days from the date of this agreement plus any
extension as provided herein, or such other date as agreed in writing to by the
parties on which the Closing occurs.
"CLOSING DOCUMENTS" shall mean the papers, instruments and documents required to
be executed and delivered at the Closing pursuant to this Agreement.
"CODE" shall mean the Internal Revenue of 1986, or any successor law, and
regulations issued by the Internal Revenue Service pursuant to the Internal
Revenue Code or any successor law.
"ENCUMBRANCE" shall mean any charge, claim, encumbrance, community property
interest, condition, equitable interest, lien, option, pledge, security
interest, right of first refusal, or restriction of any kind, including any
restriction on use, voting (in the case of any security), transfer, receipt of
income, or exercise of any other attribute of ownership other than (a) liens for
taxes not yet due and payable, or (b) liens that secure the ownership interests
of lessors of equipment.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"GAAP" shall mean United States generally accepted accounting principles applied
in a manner consistent with prior periods.
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"INVESTMENT LETTER" shall mean the investment letter in the form attached hereto
as Appendix A.
"MATERIAL ADVERSE EFFECT" means any change (individually or in the aggregate) in
the general affairs, management, business, goodwill, results of operations,
condition (financial or otherwise), assets, liabilities or prospects (whether or
not the result thereof would be covered by insurance) that would be material and
adverse to the designated party.
"ORDINARY COURSE OF BUSINESS" shall mean actions consistent with the past
practices of the designated party which are similar in nature and style to
actions customarily taken by the designated party and which do not require, and
in the past have not received, specific authorization by the Board of Directors
of the designated party.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"TAXES" shall include federal, state and local income taxes, capital gains tax,
value-added taxes, franchise, personal property and real property taxes, levies,
assessments, tariffs, duties (including any customs duty), business license or
other fees, sales, use and any other taxes relating to the assets of the
designated party or the business of the designated party for all periods up to
and including the Closing Date, together with any related charge or amount,
including interest, fines, penalties and additions to tax, if any, arising out
of tax assessments.
"TRANSACTION" shall mean the Stock Sale contemplated by this Agreement.
The following appendices and schedules are attached to and form part of this
Agreement:
APPENDICES
----------
DESCRIPTION
Appendix A Investment Letter
SCHEDULES
---------
DESCRIPTION
Schedule 2.1 Selling Shareholder's Share Ownership
Schedule 3.1.12 Purchaser SEC Documents
Schedule 5.2.1 Directors of Purchaser upon Closing
ARTICLE II.
THE TRANSACTION
2.1 STOCK SALE. Subject to the terms and conditions of the Closing Documents,
the Sellers hereby agree to sell, transfer and deliver to Purchaser, and
Purchaser hereby agree to purchase and accept, the Transferred Shares, in
consideration for the delivery of 2,250,000 common shares of the Purchaser (the
"Purchase Price") by Purchaser to Sellers to be distributed pro-rata based on
share ownership detailed in Schedule 2.1.
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2.2. SECURITIES LAW MATTERS.
2.2.1. Private Offering. The Parties understand that the Transferred Shares
to be acquired and delivered to the Sellers pursuant to the terms of this
Agreement will not be registered under the Securities Act, but will be
transferred in reliance upon exemptions available for private transactions, and
that each is relying upon the truth and accuracy of the representations set
forth in the Investment Letter signed by each of the Sellers and delivered
concurrently with the execution of this Agreement. Each certificate representing
the Transferred Shares in the name of the Sellers pursuant to the terms of this
Agreement shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE TRANSFERRED UNLESS THEY ARE SO REGISTERED
OR, IN THE OPINION OF COUNSEL ACCEPTABLE TO THIS CORPORATION, SUCH TRANSFER
IS EXEMPT FROM REGISTRATION.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. The Sellers hereby represent
and warrant to Purchaser that:
3.1.1. Organization of the Company; Foreign Qualification. The Company is
duly organized, validly existing, and in good standing under the laws of the
state of Florida and has all requisite corporate power, franchises, and licenses
to own its property and conduct the business in which it is engaged. Each of the
Company and the Sellers have the full power and authority (corporate or
otherwise) to execute, deliver and perform their respective obligations under
this Agreement and the Closing Agreements to which it is a party. A complete set
of the Company's corporate records, including its Certificate of Incorporation,
Bylaws, minutes, transfer records, have been delivered or made available to
Purchaser. The Company is duly qualified and in good standing as a foreign
corporation in every jurisdiction in which such qualification is necessary,
except to the extent the failure to be so qualified is not reasonably expected
to result in a Material Adverse Effect.
3.1.2. Capitalization; Ownership of Transferred Shares.
3.1.2.1. The Company has an authorized capital stock consisting of 100
shares of common stock, par value $1.00 per share, of which 100 shares are
issued and outstanding. All of the shares of Company Stock have been
validly issued, fully paid, are non-assessable, and were issued in
compliance with any preemptive or similar rights and in compliance with
applicable federal and state securities laws. All shares held by the
Sellers were issued in compliance with the exemption set forth in Section
4(2) of the Securities Act.
3.1.2.2. The Company does not have any outstanding subscriptions,
options, preferred stock, rights, warrants, convertible securities or other
agreements or commitments to issue, or contracts or any other agreements
obligating the Company to issue, or to transfer from treasury, any shares
of its capital stock or membership interests, as applicable, of any class
or kind, or securities convertible into such stock or interests. No persons
who are now holders of Company Stock, and no persons who previously were
holders of Company Stock, are or ever were entitled to preemptive rights
other than persons who exercised or waived those rights.
3.1.2.3. There is no outstanding vote, plan, pending proposal or right
of any person to cause any redemption of Company Stock. Neither the Company
nor any of its Affiliates, is under any obligation, contract or other
arrangement to register (or maintain the registration of) any of its or
their securities under federal or state securities laws.
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3.1.2.4. Neither the Company nor the Sellers is a party to any
agreement, voting trust, proxy or other agreement or understanding of any
character, whether written or oral, with any other stockholders of the
Company with respect to or concerning the purchase, sale or transfer or
voting of the Company Stock or any other security of the Company.
3.1.2.5. Neither the Company nor the Sellers has any legal
obligations, absolute or contingent, to any other person or entity to sell
the assets, or any capital stock or any other security of the Company or
any of its subsidiaries or affect any merger, consolidation or other
reorganization of the Company or any of its subsidiaries or to enter into
any agreement with respect thereto, except pursuant to this Agreement.
3.1.2.6. The Sellers are the sole beneficial and record holders of the
Transferred Shares. The Sellers hold the Transferred Shares free and clear
of any Encumbrance of any kind whatsoever. The Transferred Shares represent
all of the issued and outstanding common stock of the Company.
3.1.3. Subsidiaries. The Company does not have any subsidiaries (whether
held directly or indirectly) or any equity investment in any corporation,
partnership, joint venture or other business.
3.1.4. Real Estate. The Company does not own any real estate or any
interest in any real estate.
3.1.5. Authority Relative to the Closing Documents; Enforceability. The
Sellers are not suffering from any legal disability which would: (a) prevent
them from executing, delivering or performing their obligations under the
Closing Documents or consummating the Transaction, (b) make such execution,
delivery, performance or consummation voidable or subject to necessary
ratification, and (c) require the signature or consent of any third party in
connection therewith for the Transaction to be binding and enforceable against
the Sellers and their property. The Closing Documents have been duly and validly
executed and delivered by the Sellers and each constitutes the legal, valid and
binding obligation of the Sellers, enforceable against them in accordance with
their respective terms, except insofar as the enforcement thereof may be limited
by the Insolvency/Equity Exceptions.
3.1.6. Title to Assets. The Company has good and marketable title free and
clear of any Encumbrance in and to all of the assets and properties identified
to Purchaser.
3.1.7. Material Contracts. Except as disclosed to Purchaser, the Company is
not a party to or bound by any agreement or contract.
3.1.8. Labor Matters. There are presently no employment or consulting
contracts with, or covenants against competition by, any present or former
employees of the Company.
3.1.9. Compliance with Other Instruments; Consents. Neither the execution
of any Closing Document nor the consummation of the Transaction will conflict
with, violate or result in a breach or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default), or result in
a termination of, or accelerate the performance required by, or result in the
creation of any Encumbrance upon any assets of the Company under any provision
of the Articles of Incorporation, Bylaws, indenture, mortgage, lien, lease,
agreement, contract, instrument, order, judgment, decree, statute, ordinance,
regulation or any other restriction of any kind or character to which the
Company is bound.
3.1.10. Litigation. There are no legal, administrative, arbitration or
other proceedings or claims pending against the Company, nor is the Company
subject to any existing judgment which might affect the financial condition,
business, property or prospects of the Company; nor has the Company received any
inquiry from an agency of the federal or of any state or local government about
the Transaction, or about any violation or possible violation of any law,
regulation or ordinance affecting its business or assets.
3.1.11. Taxes. The Company either: (a) has timely filed with the
appropriate taxing authority all Tax and information returns required to have
been filed by the Company or (b) has timely filed for any required extensions
with
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regard to such returns. All Taxes of the Company have been paid (or
estimated Taxes have been deposited) to the extent such payments are required
prior to the date hereof or accrued on the books of the Company. The returns
were correct when filed. There are no pending investigations of the Company
concerning any Tax returns by any federal, state or local Taxing authority, and
there are no federal, state, local or foreign Tax liens upon any of the
Company's assets.
3.1.12. Compliance with Law and Government Regulations. The Company is in
compliance with, and is not in violation of, applicable federal, state, local or
foreign statutes, laws and regulations (including without limitation, any
applicable environmental, building, zoning or other law, ordinance or
regulation) affecting the Company or its properties or the operation of its
business. The Company is not subject to any order, decree, judgment or other
sanction of any court, administrative agency or other tribunal.
3.1.13. Trade Names and Rights. The Company does not own any trademarks,
trademark registrations or applications, trade names, service marks, copyrights,
copyright registrations or applications. No person owns any trademark, trademark
registration or application, service xxxx, trade name, copyright or copyright
registration or application, the use of which is necessary or contemplated in
connection with the operation of the Company's business.
3.1.14. Full Disclosure. None of the representations and warranties made by
the Sellers herein, or in any Closing Document furnished or to be furnished by
them hereunder contain or will contain any untrue statement of material fact, or
omits any material fact, the omission of which would be misleading.
3.2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to Sellers that:
3.2.1. Organization of Purchaser; Foreign Qualification. Purchaser is duly
organized, validly existing, and in good standing under the laws of the state of
Nevada and has all requisite corporate power, franchises, and licenses to own
its property and conduct the business in which it is engaged. Purchaser has the
full power and authority (corporate or otherwise) to execute, deliver and
perform its obligations under this Agreement and the Closing Agreements to which
it is a party. A complete set of Purchaser's corporate records, including its
Certificate of Incorporation, Bylaws, minutes, transfer records, have been
delivered or made available to Sellers. Purchaser is duly qualified and in good
standing as a foreign corporation in every jurisdiction in which such
qualification is necessary, except to the extent the failure to be so qualified
is not reasonably expected to result in a Material Adverse Effect.
3.2.2. Capitalization; Ownership of Transferred Shares.
3.2.2.1. Purchaser has an authorized capital stock consisting of
45,000,000 shares of common stock, par value $0.001 per share, of which
2,250,000 shares are issued and outstanding. All of the shares of Company
Stock have been validly issued, fully paid, are non-assessable, and were
issued in compliance in compliance with applicable federal and state
securities laws. All shares held by the Sellers were issued pursuant to a
form SB2 registration statement filed under the Securities Act.
3.2.2.2. Purchaser does not have any outstanding subscriptions,
options, preferred stock, rights, warrants, convertible securities or other
agreements or commitments to issue, or contracts or any other agreements
obligating Purchaser to issue, or to transfer from treasury, any shares of
its capital stock or membership interests, as applicable, of any class or
kind, or securities convertible into such stock or interests. No persons
who are now holders of Purchaser's common stock, and no persons who
previously were holders of Purchaser's common stock, are or ever were
entitled to preemptive rights other than persons who exercised or waived
those rights.
3.2.2.3. There is no outstanding vote, plan, pending proposal or right
of any person to cause any redemption of Purchaser's common stock. Neither
Purchaser nor any of its Affiliates, is under any obligation, contract or
other arrangement to register (or maintain the registration of) any of its
or their securities under federal or state securities laws.
3.2.2.4. Purchaser is the sole beneficial and record holders of the
Purchase Price Shares.
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3.2.3. Subsidiaries. Purchaser does not have any subsidiaries (whether held
directly or indirectly) or any equity investment in any corporation,
partnership, joint venture or other business, except as disclosed in the SEC
Documents.
3.2.4. Real Estate. Purchaser does not own any real estate or any interest
in any real estate, except as disclosed in the SEC Documents.
3.2.5. Authority Relative to the Closing Documents; Enforceability.
Purchaser is not suffering from any legal disability which would: (a) prevent it
from executing, delivering or performing its obligations under the Closing
Documents or consummating the Transaction, (b) make such execution, delivery,
performance or consummation voidable or subject to necessary ratification, and
(c) require the signature or consent of any third party in connection therewith
for the Transaction to be binding and enforceable against Purchaser and its
property. The Closing Documents have been duly and validly executed and
delivered and each constitutes the legal, valid and binding obligation,
enforceable against Purchaser in accordance with their respective terms, except
insofar as the enforcement thereof may be limited by the Insolvency/Equity
Exceptions.
3.2.6. Material Contracts. Except as disclosed in the SEC Documents,
Purchaser is not a party to or bound by any agreement or contract. Purchaser
represents and warrants that all of its Material Contracts, including its mining
lease, are terminable unilaterally by Purchaser without penalty or restriction.
3.2.7. Labor Matters. There are presently no employment or consulting
contracts with, or covenants against competition by, any present or former
employees of Purchaser. Purchaser has no employees other than its sole officer.
3.2.8. Compliance with Other Instruments; Consents. Neither the execution
of any Closing Document nor the consummation of the Transaction will conflict
with, violate or result in a breach or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default), or result in
a termination of, or accelerate the performance required by, or result in the
creation of any Encumbrance upon any assets of Purchaser under any provision of
the Articles of Incorporation, Bylaws, indenture, mortgage, lien, lease,
agreement, contract, instrument, order, judgment, decree, statute, ordinance,
regulation or any other restriction of any kind or character to which Purchaser
is bound.
3.2.9. Financial Statements. Purchaser's audited financial statements (the
"Purchaser Financial Statements") for the year ended December 31, 2001 and
unaudited quarterly financial statements for the six month period ended June 30,
2002, copies of which have been delivered to Purchaser, are true and complete in
all material respects, and have been prepared in accordance with GAAP for the
period covered by such statements, and fairly present, in accordance with GAAP,
the properties, assets and financial condition of Purchaser, and results of its
operations as of the dates and for the periods covered thereby. Except as may be
disclosed in the SEC Documents, there has been no material adverse change in the
business operations, assets, properties, prospects or condition (financial or
otherwise) of Purchaser, taken as a whole, from that reflected in the Purchaser
Financial Statements. As of the date hereof, Purchaser does not have any debts,
liabilities or obligations of any nature, whether accrued, absolute, unmatured,
contingent, or otherwise, whether due or to become due. There are and will be a
closing no accounts payable and no liabilities owed by Purchaser, except for an
accounting expense of approximately $1500 for the preparation and filing of the
Company's 10QSB and any transfer agent fees related to the issuance of
Purchasers common stock to the Sellers.
3.9.10. Litigation. There are no legal, administrative, arbitration or
other proceedings or claims pending against Purchaser, nor is Purchaser subject
to any existing judgment which might affect the financial condition, business,
property or prospects of Purchaser; nor has Purchaser received any inquiry from
an agency of the federal or of any state or local government about the
Transaction, or about any violation or possible violation of any law, regulation
or ordinance affecting its business or assets.
3.2.11. SEC Documents. Purchaser has furnished or made available to Sellers
a true and complete copy of each report, schedule, registration statement and
proxy statement filed by Purchaser with the SEC since the inception of Purchaser
(as such documents have since the time of their filing been amended, the "SEC
Documents"), a list of which is attached as Schedule 3.1.12. Purchaser has
timely filed with the SEC all documents required to have been filed pursuant
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to the Securities Act and the Exchange Act. As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the
Securities Act, or the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such SEC Documents, and none of
the SEC Documents contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
3.2.12. Taxes. Purchaser either: (a) has timely filed with the appropriate
taxing authority all Tax and information returns required to have been filed by
Purchaser or (b) has timely filed for any required extensions with regard to
such returns. All Taxes of Purchaser have been paid (or estimated Taxes have
been deposited) to the extent such payments are required prior to the date
hereof or accrued on the books of Purchaser. The returns were correct when
filed. There are no pending investigations of Purchaser concerning any Tax
returns by any federal, state or local Taxing authority, and there are no
federal, state, local or foreign Tax liens upon any of Purchaser's assets.
3.2.13. Compliance with Law and Government Regulations. Purchaser is in
compliance with, and is not in violation of, applicable federal, state, local or
foreign statutes, laws and regulations (including without limitation, any
applicable environmental, building, zoning or other law, ordinance or
regulation) affecting Purchaser or its properties or the operation of its
business. Purchaser is not subject to any order, decree, judgment or other
sanction of any court, administrative agency or other tribunal.
3.2.14. Trade Names and Rights. Purchaser does not use any trademark,
service xxxx, trade name, or copyright in its business, nor does it own any
trademarks, trademark registrations or applications, trade names, service marks,
copyrights, copyright registrations or applications. No person owns any
trademark, trademark registration or application, service xxxx, trade name,
copyright or copyright registration or application, the use of which is
necessary or contemplated in connection with the operation of Purchaser's
business.
3.2.15. OTCBB Status. Purchaser is currently eligible for trading on the
Over-the-Counter Bulletin Board ("OTCBB"), and Purchaser does not have any -----
reason to believe that its current market makers will cease to make a market
following the Closing. Purchaser shall take all necessary action to continue to
maintain its eligibility for quotation on the OTCBB.
3.2.16. Investment Company Act. Purchaser is not, and upon completion of
the Transaction will not be, subject to registration as an investment company
under the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
3.2.17. Full Disclosure. None of the representations and warranties made by
Purchaser herein, or in any Closing Document furnished or to be furnished by
them hereunder contain or will contain any untrue statement of material fact, or
omits any material fact, the omission of which would be misleading.
ARTICLE IV.
ADDITIONAL COVENANTS AND AGREEMENTS OF THE PARTIES
4.1. FILING WITH SECURITIES AND EXCHANGE COMMISSION. Upon the consummation of
this Agreement, if required to do so by law, Purchaser shall file with the SEC
an Information Statement on Schedule 14F (the "Schedule 14F") or such other
documents as may be required, disclosing the anticipated resignation of the
current directors and appointment of the anticipated new directors as provided
herein, in a form that will satisfy the requirements of law. The parties agree
to cooperate in the preparation and filing of such report or any other filings
to be filed with the SEC.
4.2. BROKERS OR FINDERS. Each party agrees to hold the others harmless and to
indemnify them against the claims of any persons or entities claiming to be
entitled to any brokerage commission, finder's fee, advisory fee or like payment
from such other party based upon actions of the indemnifying party in connection
with the Transaction.
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ARTICLE V.
CLOSING DELIVERIES
5.1. THE CLOSING. The Closing shall take place on or before the Closing
Date (unless such date is extended by the mutual agreement of the parties) at
such location as agreed to by the parties. Notwithstanding the location of the
Closing, each party agrees that the Closing may be completed by the exchange of
undertakings between the respective legal counsel for the Sellers and Purchaser,
provided such undertakings are satisfactory to each party's respective legal
counsel.
5.2. DELIVERIES BY THE PURCHASER. Purchaser hereby agrees to deliver, or cause
to be delivered, to Sellers the following items on Closing:
5.2.1. Certified Resolutions. Copies of the resolutions, certified by an
officer of Purchaser, of the Board of Directors of Purchaser: (a) duly electing
the persons set forth on Schedule 5.2.1 to serve as directors of Purchaser
effective on the business day following the expiration of the ten-day period
following the filing of the Schedule 14F with the SEC and mailing thereof to the
stockholders of the Company (the "RESIGNATION DATE"); and (b) approving the
terms of this Agreement for purposes of Nev. Rev. Stat. Sec. 78.438(1) and
78.378 - 78.3793.
5.2.2. Resignations. A copy of the resignations of the existing directors
and officers of Purchaser, to be effective as of the Resignation Date.
5.2.3. Termination of Contracts. Evidence satisfactory to the Sellers that
mining lease and all payables and liabilities have been terminated effective as
of the Resignation Date without any payment by, or continuing liability to, the
Company.
5.2.4. Stock Certificates. A stock certificate or certificates representing
the Purchase Price Shares issued in the name of Sellers.
5.2.5. Transfer Agent Direction. A direction of the Company to the
Company's transfer agent to register the Purchase Price Shares in the name of
the Purchaser with the legend set forth in paragraph 2.2.1 of this Agreement or
such legend as is otherwise required by law.
5.2.6. Investment Letter. The Investment Letter, executed by Purchaser.
5.3. DELIVERIES BY SELLERS. Sellers hereby agree to deliver to the Purchaser the
following items on Closing:
5.3.1. Certified Resolutions. Copies of the resolutions, certified by an
officer of the Company, of the Board of Directors of the Company approving the
terms of this Agreement, and a copy of the resolution of the shareholders of the
Company approving the sale of the Transferred Shares.
5.3.2. Stock Certificates. A stock certificate or certificates representing
the Transferred Shares, together with such stock powers, legal opinions and all
other documentation required by the Company's transfer agent to reissue such
shares in the name of Purchaser.
5.3.3. Transfer Agent Direction. A direction of Purchaser to its transfer
agent to register the Transferred Shares in the name of the Sellers with the
legend set forth in paragraph 2.2.1 of this Agreement or such legend as is
otherwise required by law.
5.3.4. Investment Letter. The Investment Letter, executed by the Sellers.
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ARTICLE VI.
CONDITIONS PRECEDENT TO PURCHASER' OBLIGATION TO CLOSE
Purchaser's obligation to purchase the Transferred Shares and to take the other
actions required to be taken by Purchaser at the Closing is subject to the
satisfaction, at or prior to Closing, of each of the following conditions (any
of which may be waived by Purchaser, in whole or in part):
6.1. PERFORMANCE OF CONVENANTS. The Sellers shall have performed all covenants
and agreements required to be completed prior to or on closing, including
completion of the deliveries required by Section 5.3 of this Agreement.
6.2. ACCURACY OF REPRESENTATIONS. All of Sellers' representations and warranties
in this Agreement (considered collectively), and each of Sellers'
representations and warranties (considered individually), must have been
accurate in all material respects as of the date of this Agreement, and must be
accurate in all material respects as of the Closing Date as if made on the
Closing Date.
ARTICLE VII.
CONDITIONS PRECEDENT TO SELLERS'S OBLIGATION TO CLOSE
The Sellers' obligation to sell the Transferred Shares and to take the other
actions required to be taken by Sellers at the Closing is subject to the
satisfaction, at or prior to Closing, of each of the following conditions (any
of which may be waived by the Sellers, in whole or in part):
7.1. PERFORMANCE OF COVENANTS. Purchaser shall have performed all covenants and
agreements required to be completed prior to or on closing, including completion
of the deliveries required by Section 5.2 of this Agreement.
7.2. ACCURACY OF REPRESENTATIONS. All of Purchaser's representations and
warranties in this Agreement (considered collectively), and each of Purchaser's
representations and warranties (considered individually), must have been
accurate in all material respects as of the date of this Agreement, and must be
accurate in all material respects as of the Closing Date as if made on the
Closing Date.
ARTICLE VIII.
SURVIVAL OF REPRESENTATIONS
8.1 REPRESENTATIONS TO SURVIVE CLOSING. The representations and warranties of
the Sellers and Purchaser contained herein or in any document furnished pursuant
hereto shall survive the Closing of the Transaction for a period of one year
following the Closing. Each party acknowledges and agrees that, except as
expressly set forth in this Agreement or any Closing Document, no party has made
(and no party is relying on) any representation or warranties of any nature,
express or implied, regarding any or relating to any of the transactions
contemplated by this Agreement.
ARTICLE IX.
MISCELLANEOUS
9.1 NOTICES. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed delivered if delivered by hand, by
telecopier, by courier or mailed by certified or registered mail, postage
prepaid, addressed to the following persons at their last know or provided
address:
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IF TO THE SELLERS:
Xxxxx Xxxxxxx
IF TO PURCHASER:
Xxxxx Xxxxxxxxx or Xxxx Xxxxxx
9.2 ASSIGNABILITY AND PARTIES IN INTEREST. This Agreement shall not be
assignable by any of the parties hereto without the consent of all other parties
hereto. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors. Nothing in this Agreement is
intended to confer, expressly or by implication, upon any other person any
rights or remedies under or by reason of this Agreement.
9.3 EXPENSES. Each party shall bear its own expenses and costs, including the
fees of any attorney retained by it, incurred in connection with the preparation
of the Closing Documents and consummation of the Transaction.
9.4 GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Nevada. Each of the
parties hereto consents to the personal jurisdiction of the federal and state
courts in the State of Nevada in connection with any action arising under or
brought with respect to this Agreement.
9.5 COUNTERPARTS. This Agreement may be executed as of the same effective date
in one or more counterparts, each of which shall be deemed an original.
9.6 HEADINGS. The headings and subheadings contained in this Agreement are
included solely for ease of reference, and are not intended to give a full
description of the contents of any particular Section and shall not be given any
weight whatever in interpreting any provision of this Agreement.
9.7 PRONOUNS, ETC. Use of male, female and neuter pronouns in the singular or
plural shall be understood to include each of the other pronouns as the context
requires. The word "and" includes the word "or". The word "or" is disjunctive
but not necessarily exclusive.
9.8 COMPLETE AGREEMENT. This Agreement, the Appendices hereto, and the
documents delivered pursuant hereto or referred to herein or therein contain the
entire agreement between the parties with respect to the Transaction and, except
as provided herein, supersede all previous negotiations, commitments and
writings.
9.9 MODIFICATIONS, AMENDMENTS AND WAIVERS. This Agreement shall not be
modified or amended except by a writing signed by each of the parties hereto.
Prior to the Closing, the Sellers may amend any of the disclosure schedules
referenced herein by giving the other party notice of such amendments. If such
amended disclosures reveal material adverse information about the Company,
Purchaser may terminate this Agreement without liability to the Sellers.
9.10 SEVERABILITY. If any term or other provision of this Agreement is invalid,
illegal, or incapable of being enforced by any rule of law or public policy, all
other terms and provisions of this Agreement will nevertheless remain in full
force and effect so long as the economic or legal substance of the Transaction
is not affected in any manner adverse to any party hereto. Upon any such
determination that any term or other provision is invalid, illegal, or incapable
of being enforced, the parties hereto will negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in any acceptable manner to the end that the Transaction are
consummated to the extent possible.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
PURCHASER:
---------
----------------------------------------
Navigator Ventures Inc.
SELLERS:
-------
----------------------------------------
Xxxxx Xxxxxxx
----------------------------------------
Revoc Group II, Ltd.
----------------------------------------
Confida Corporate Finance, Ltd.
----------------------------------------
Xxxx Xxxxx, Xpress, Ltd.
----------------------------------------
Xxxx Xxxxxxxx Xxxxxx
----------------------------------------
Arvimex, Inc.
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Page 11
APPENDIX A
----------
INVESTMENT LETTER
[CLOSING DATE]
____________
____________
Dear Sir:
In connection with the purchase of 2,250,000 shares of the common stock (the
"Shares") of Navigator Ventures Inc. (the "Corporation") by Xxxxx Xxxxxxx, Revoc
Group II, Ltd., Confida Corporate Finance, Ltd., Xxxx Xxxxx, Xpress, Ltd., Xxxx
Xxxxxxxx Xxxxxx, and Arvimex, Inc. (the "Purchasers") pursuant to a share
purchase agreement dated the 4th of November, 2002 (the "Share Purchase
Agreement"), the undersigned (the "Purchaser"), hereby makes the following
acknowledgments, representations and warranties:
1. INVESTMENT INTENT. The Purchaser is acquiring the Shares for
investment solely for his/her/its own account and not with a present view to any
distribution, transfer or resale to others, including any "distribution" within
the meaning of Securities Act of 1933, as amended, (the "Securities Act"). The
Purchaser understands that the Shares have not and will not be registered under
the Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends on, among
other things, the bona fide nature of the investment intent and the accuracy of
my representations made herein.
2. FINANCIAL ABILITY. The Purchaser is financially able to bear the
economic risks of an investment in the Corporation and has no need for liquidity
in this investment. Furthermore, the financial capacity of the Purchaser is of
such a proportion that the total cost of the Purchaser's commitment is not
material when compared with his total committed capital. The Purchaser is
financially able to suffer a complete loss of this investment.
3. EXPERIENCE. The Purchaser has such knowledge and experience in
financial and business matters in general and with respect to investments of a
nature similar to that evidenced by the Shares so as to be capable, by reason of
such knowledge and experience, of evaluating the merits and risks of, and making
an informed business decision with regard to, and protecting his own interests
in connection with, the acquisition of the Shares.
4. REVIEW OF PROSPECTUS AND FINANCIAL STATEMENTS. The Purchaser has
been provided with and had the opportunity to review all filings made by the
Corporation with the United States Securities and Exchange Commission, as
disclosed in the Share Purchase Agreement and available at the SEC's web site at
xxx.xxx.xxx.
5. LIMITED PUBLIC MARKET. The Purchaser understands that a limited
public market now exists for any of the securities of the Corporation and that
the Corporation has made no assurances that a more active public market will
ever exist for the Corporation's securities.
6. RESTRICTED LEGEND. The Purchaser acknowledges that certificates
representing the Shares will bear a legend substantially as follows:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED UNLESS THEY ARE SO
REGISTERED OR, IN THE OPINION OF COUNSEL ACCEPTABLE TO THE
CORPORATION, SUCH TRANSFER IS EXEMPT FROM REGISTRATION.
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Page 12
7. STOCK TRANSFER. The Purchaser is aware that stop-transfer
instructions will be given to the transfer agent of the common stock of the
Corporation to prevent any unauthorized or illegal transfer of the Shares.
8. RELIANCE FOR EXEMPTIONS. The Purchaser understands that the Shares
are being transferred to him pursuant to exemptions from the registration
requirements of federal and applicable state securities laws and acknowledges
that he is relying upon the investment and other representations made herein as
the basis for such exemptions.
9. ACCURACY OF PURCHASER REPRESENTATIONS. The Purchaser represents
that the information and representations contained in this letter are true,
correct and complete.
Dated: [CLOSING DATE]
------------------------------------
Purchaser
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Page 13
SCHEDULE 2.1
------------
SELLING SHAREHOLDER'S SHARE OWNERSHIP
Golden Apple Adjusted Navigator
Shareholder No. of Shares Percentage No. of Shares
----------- ------------- ---------- -------------
Xxxxx Xxxxxxx 38 Shares 37.9% 852,750
Revoc Group II, Ltd. 30 Shares 30.0% 675,000
Confida Corporate Finance,
Ltd. 15 Shares 15.0% 337,500
Xxxx Xxxxx 10 Shares 10.0% 225,000
Xpress, Ltd. 3 Shares 3.4% 76,500
Xxxx Xxxxxxxx Xxxxxx 2 Shares 1.7% 38,250
Arvimex, Inc. 2 Shares 2.0% 45,000
----------- ------ ---------
Total 100 Shares 100% 2,250,000
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SCHEDULE 3.1.12
---------------
COMPANY SEC DOCUMENTS
SEC FILINGS
------------
FILING DATE OF FILING
------ ----------------
Form SB-2 (as amended) Originally: February 26, 2001
Last Pre-Effective Amendment: July 18, 2001
Prospectus Supplement (424B3): August 8, 2001
Form 8-A12G February 15, 2002
Form 10-QSB February 15, 2002
Form 10-KSB April 3, 2002
Form 10-QSB May 20, 2002
Form 10-QSB August 15, 2002
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SCHEDULE 5.2.1
DIRECTORS OF PURCHASER UPON CLOSING
THE COMPANY DIRECTORS UPON CLOSING
----------------------------------
1. Xxxxx Xxxxxxx, Chairman
2. Xxxxxxx X. Xxxxxxxx, Secretary
3. Xxxx Fraynhd, Vice Chairman
4. Xxxx Xxxxx
5. Xxxxxxx Xxxxxx
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