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STOCK PURCHASE
AMONG
COMPETITIVE TECHNOLOGIES, INC.,
XXXXX XXXX XXXXXXXX,
AND
AGROFRUT E.U.
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APRIL 17, 2007
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of April
17, 2007, by and among Competitive Technologies, Inc., a Delaware corporation
("CTT"), Xxxxx Xxxx Valencia ("Agrofrut Shareholder") and Agrofrut E.U., a
Colombian corporation ("Agrofrut").
WHEREAS, Agrofrut has developed proprietary technology for the extraction
of micronutrients and nutraceutical compounds from organic materials and for
certain other nanoprocessing of organic materials;
WHEREAS, CTT seeks to acquire the technology developed by Agrofrut and the
nutraceutical compounds produced by Agrofrut and to be marketed by CTT;
WHEREAS, for these purposes, CTT is willing to make a strategic investment
in Agrofrut and Agrofrut is willing to issue shares of Agrofrut voting common
stock ("Shares") to CTT in return for CTT's strategic investment;
WHEREAS, in return for CTT's strategic investment in Agrofrut, Agrofrut is
willing to issue CTT 5% (five percent) of Agrofrut's Shares and exclusive
marketing rights, and Agrofrut Shareholder is willing to agree to exchange her
Shares in Agrofrut with CTT for Shares in CTT in accordance with the terms of
this Agreement, the accompanying Term Sheet and the Exchange Agreement and
Ancillary Agreements that would fully implement the Term Sheet;
WHEREAS, CTT, Agrofrut Shareholder and Agrofrut are entering into a Term
Sheet for an Exchange Agreement, dated as of the date hereof (the "Exchange
Agreement"), which provides, among other things, for CTT's acquisition of all of
the Shares of Agrofrut Shareholder (such exchange, along with the other
transactions contemplated by the Exchange Agreement, are referred to as the
"Transactions"), for CTT to have exclusive marketing rights to Agrofrut's
Products and for Agrofrut to issue to CTT 5% (five percent) of Agrofrut's Stock
as a strategic investment by CTT;
WHEREAS, as a condition and inducement to CTT's willingness to enter into
the Term Sheet, CTT has requested that Agrofrut Shareholder agree to exchange
all of Agrofrut Shareholder's Shares of Agrofrut Common Stock, par value $100
pesos colombianos per share (the "Common Stock"), for CTT stock upon the terms
and subject to the conditions hereof; and
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WHEREAS, in order to induce CTT to enter into the Term Sheet and this
Agreement, Agrofrut Shareholder is willing to agree to the exchange pursuant to
the Term Sheet;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. Purchase and Sale of Agrofrut Shares. Upon execution of this
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Agreement, the Term Sheet and the Exclusive Marketing Agreement, Agrofrut shall
deliver to CTT a certificate representing Shares of Agrofrut's common stock
equal to 5% (five percent) of the Shares of Agrofrut's Common Stock that are
issued and outstanding following Agrofrut's issuance of Shares of Common Stock
to CTT in consideration of the purchase price set forth in this Agreement. The
certificate representing the Agrofrut Shares of Common Stock shall have all the
necessary documentary transfer tax stamps affixed thereto at the expense of
Agrofrut. Agrofrut shall deliver the certificate representing the Shares to CTT
upon payment by CTT.
2. Conditions to Delivery of Shares. Agrofrut's obligation to deliver
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2,500 Shares representing 5% (five percent) of Agrofrut's Stock upon exercise of
the Option is subject only to the conditions that (a) a disinterested majority
of CTT's Board of Directors approve this transaction, (b) Agrofrut Shareholder,
CTT and Agrofrut agree to the Term Sheet, (c) Agrofrut Shareholder, CTT and
Agrofrut agree to the Exclusive Marketing Agreement, and (d) CTT pay Agrofrut
$750,000 (Seven Hundred Fifty Thousand United States Dollars).
3. Payment for Agrofrut Equity. The parties agree that CTT shall pay
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Agrofrut the amount of $750,000 (Seven Hundred Fifty Thousand United States
Dollars) as good, valuable and binding consideration to Agrofrut for the
purchase of 5% (five percent) of Agrofrut's Shares of Common Stock, as
consideration for entering into an Exclusive Marketing Agreement with CTT, and
as consideration for Agrofrut Shareholder. If the Exchange Agreement does not
close within 180 (one hundred eighty) days due to the fault of Agrofrut
Shareholder or Agrofrut, then CTT shall have the greater of an additional 30
(thirty) days or 10 (ten) days after the fault of Agrofrut Shareholder or
Agrofrut is remedied to close the Exchange Agreement.
4. The Exchange. Contemporaneously herewith, CTT, Agrofrut Shareholder
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and Agrofrut are entering into the Term Sheet for the Exchange Agreement.
Subject to the other terms and conditions set forth herein, Agrofrut
Shareholder, Agrofrut and CTT agree that CTT shall acquire all of the Agrofrut
Shares of Common Stock amounting to 50,000 shares in exchange for the number of
CTT's shares determined by (i) multiplying by .95 the amount of the independent
valuation of Agrofrut that a disinterested majority of CTT's Board of Directors
has approved; and (ii) dividing the result by 110% (One Hundred Ten Percent) of
the 180-day (one hundred eighty) weighted average price of CTT shares, for the
period 90 days before the date of this Term Sheet and the period 90 days
beginning on the date of this Term Sheet, as determined by the closing price and
trading volume shown on the Consolidated Tape of the American Stock Exchange for
each trading day in the 180-day (one hundred eight) period ("CTT Share Value").
The Exchange shall close within 180 (one hundred eighty) days in accordance with
the Term Sheet and the Agreement, and documents implementing the Term Sheet and
consequent Exchange.
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5. Representations and Warranties of Agrofrut and Agrofrut Shareholder.
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Agrofrut and Agrofrut Shareholder represent and warrant to CTT that: (a)
Agrofrut is a corporation duly organized, validly existing and in good standing
under the laws of the Republic of Colombia and has the requisite corporate power
and authority to enter into and to perform this Agreement; (b) the execution and
delivery of this Agreement by Agrofrut and Agrofrut Shareholder and the
consummation by them of the transactions contemplated hereby have been duly
authorized by Agrofrut's Board of Directors, and this Agreement has been duly
executed and delivered by a duly authorized officer of Agrofrut and constitutes
a valid and binding obligation of Agrofrut and Agrofrut Shareholder, enforceable
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity;
(c) Agrofrut and Agrofrut Shareholder have taken all necessary corporate actions
to authorize and to reserve the Shares issuable under this Agreement, and the
Shares, when issued and delivered as contemplated hereby, will be duly
authorized, validly issued, fully paid and non-assessable, free of preemptive
rights and with all necessary documentary transfer tax stamps affixed thereto at
the expense of Agrofrut; (d) the execution and delivery of this Agreement by
Agrofrut and Agrofrut Shareholder and the consummation by them of the
transactions contemplated hereby do not require the consent, waiver, approval or
authorization of or any filing with any person or public authority and will not
violate, result in a breach of or the acceleration of any obligation under, or
constitute a default under, any provision of Agrofrut's certificate of
incorporation or bylaws, or any material indenture, mortgage, lien, lease,
agreement, contract, instrument, order, law, rule, regulation, judgment,
ordinance or decree, or restriction by which Agrofrut or Agrofrut Shareholder or
any of their respective properties or assets is bound; (e) no anti-takeover
provision contained in the certificate of incorporation or bylaws of Agrofrut
is, or shall be, applicable to any of the transactions contemplated by this
Agreement, and Agrofrut's Board of Directors has taken all action to approve the
transactions contemplated hereby to the extent necessary to avoid any such
application to the Transactions and not violate any such provision or require
any shareholder vote; (f) Agrofrut Shareholder and Agrofrut have taken all
corporate and individual actions necessary so that the Option may be granted and
subsequently exercised by CTT; (g) Agrofrut has no other Shares of Common Stock
or any other equity or debt securities issued and outstanding other than the
Shares of Agrofrut Common Stock that are subject to this Agreement or owned by
Agrofrut Shareholder and subject to the Exchange provided for in the
accompanying Term Sheet; and (h) Agrofrut has no subsidiary, parent or
affiliated corporation or other affiliated entity.
6. Representations and Warranties of CTT. CTT represents and warrants to
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Agrofrut Shareholder and Agrofrut that: (a) the execution and delivery of this
Agreement by CTT and the consummation by it of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of CTT, and this Agreement has been duly executed and delivered by a duly
authorized officer of CTT and constitutes a valid and binding obligation of CTT;
(b) CTT is acquiring Agrofrut's Shares for its own account and not with a view
to distribution or resale in any manner which would be in violation of the
Securities Act; (c) CTT is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the requisite
corporate power and authority to enter into and perform this Agreement; (d) the
execution and delivery of this Agreement by CTT and the consummation by it of
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the transactions contemplated hereby have been duly authorized by the Board of
Directors of Agrofrut and Agrofrut Shareholder, and this Agreement has been duly
executed and delivered by a duly authorized officer of CTT and constitutes a
valid and binding obligation of CTT, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity; (e) CTT has taken all
necessary corporate action to authorize and to reserve the Shares issuable upon
exercise of the Option and the Shares, when issued and delivered by CTT (upon
closing of the Exchange and delivery of Agrofrut Shares by Agrofrut Shareholder
as contemplated hereby), will be duly authorized, validly issued, fully paid and
non-assessable and free of preemptive rights; (f) the execution and delivery of
this Agreement by CTT and the consummation by it of the transactions
contemplated hereby do not require the consent, waiver, approval or
authorization of or any filing with any person or public authority and will not
violate, result in a breach of or the acceleration of any obligation under, or
constitute a default under, any provision of Agrofrut Shareholder's certificate
of incorporation or bylaws, or any material indenture, mortgage, lien, lease,
agreement, contract, instrument, order, law, rule, regulation, judgment,
ordinance or decree, or restriction by which CTT or any of its subsidiaries or
any of their respective properties or assets is bound; and (g) no anti-takeover
provision contained in the certificate of incorporation or bylaws of CTT is, or
shall be, applicable to any of the transactions contemplated by this Agreement,
and the Board of Directors of CTT has taken all action to approve the
transactions contemplated hereby to the extent necessary to avoid any such
application to the Transactions and not violate any such provision or require
any shareholder vote.
7. Covenants of Agrofrut Shareholder and Agrofrut. After the execution
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of this Agreement and the Term Sheet, Agrofrut Shareholder and Agrofrut covenant
that they shall not take, and shall not allow to be taken, any of the following
actions unless Agrofrut Shareholder and Agrofrut have both received the prior
written approval of CTT: (a) amending the articles of incorporation, by-laws or
corporate charter of Agrofrut; (b) sale or exchange of assets valued at more
than $10,000 (U.S.) or intellectual property or other rights of Agrofrut; (c)
sale or exchange of any interest in Agrofrut to a new owner; (d) taking any
action which would cause the dilution of CTT's or the Exchange Party's interest
in Agrofrut; (e) extending the purposes for which Agrofrut is organized or
operating; (f) entering into any agreement for the sharing of profits or for
joint ventures with any person or entity engaging in any business or venture
with Agrofrut; (g) acquiring or merging with any business or executing any
agreement to operate any business; (h) engaging in any other means of equity
financing; (i) lending of Agrofrut funds; (j) filing or consenting to filing a
petition for or against Agrofrut under any federal or state bankruptcy,
insolvency or reorganization act; (k) establishing a program to allow one or
more key employees to be awarded options or appreciation rights by Agrofrut;
and/or (l) making any assignment for the benefit of creditors.
8. Expenses. Each party hereto shall pay its own expenses incurred in
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connection with this Agreement, except as otherwise specifically provided
herein.
9. Specific Performance. Agrofrut Shareholder and Agrofrut acknowledge
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that if Agrofrut Shareholder and/or Agrofrut fail to perform any of their
obligations under this Agreement, immediate and irreparable harm or injury would
be caused to CTT for which money damages would not be an adequate remedy. In
such event, Agrofrut Shareholder and Agrofrut agree that CTT shall have the
right, in addition to any other rights it may have, to specific performance of
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this Agreement. Accordingly, if CTT should institute an action or proceeding
seeking specific enforcement of the provisions hereof, Agrofrut Shareholder and
Agrofrut hereby waive the claim or defense that CTT has an adequate remedy at
law and hereby agree not to assert in any such action or proceeding the claim or
defense that such a remedy at law exists. Agrofrut Shareholder and Agrofrut
further agree to waive any requirements for the securing or posting of any bond
in connection with obtaining any such equitable relief.
10. Notice. All notices, requests, demands and other communications
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hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended or delivered
by registered or certified mail, return receipt requested, or, if sent by
facsimile transmission, upon receipt of oral confirmation that such transmission
has been received, to the person at the address set forth below, or such other
address as may be designated in writing hereafter, in the same manner, by such
person:
If to CTT:
Xx. Xxxx X. Nano
President and Chief Executive Officer
Competitive Technologies, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
With a copy to:
Xxxxxxx Sale, Esq.
Sale & Xxxxx, P.C.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
If to Agrofrut:
Agrofrut E.U.
Carrera Primero Xxxx 000
Xxxxxxxx 0000
Xxxxx Xxxxxxxx
Xxxx, Xxxxxxxx
ATTN : Sra. Xxxxx Xxxx Valencia
President
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If to Agrofrut Shareholder:
Sra. Xxxxx Xxxx Xxxxxxxx
Xxxxxxx Primero Xxxx 717
Apartado 1401
Penta Xxxxxxxx
Xxxx, Xxxxxxxx
00. Parties in Interest. This Agreement shall inure to the benefit of and
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be binding upon the parties named herein and their respective successors.
Nothing in this Agreement, express or implied, is intended to confer upon any
person or entity other than Agrofrut Shareholder, Agrofrut or CTT, or their
successors, any rights or remedies under or by reason of this Agreement.
12. In Pari Materia; Amendments. This Stock Purchase Agreement shall be
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construed in conjunction with and to accord full effect to the Exclusive
Marketing Agreement and Term Sheet executed simultaneously herewith, and to any
Exchange Agreement and all Ancillary Agreements implementing the Term Sheet and
Exchange Agreement, and together they contain the entire agreement among the
parties hereto with respect to the subject matter hereof and supersede all prior
and contemporaneous agreements and understandings, oral or written, with respect
to such Transactions. This Agreement may not be changed, amended or modified
orally, but may be changed only by an agreement in writing signed by the party
against whom any waiver, change, amendment, modification or discharge may be
sought.
13. Assignment. No party to this Agreement may assign any of its rights
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or obligations under this Agreement without the prior written consent of the
other party hereto, except that CTT may assign its rights and obligations
hereunder to a direct or indirect wholly owned subsidiary, but no such transfer
shall relieve CTT of its obligations hereunder if such transferee does not
perform such obligations.
14. Headings. The section headings herein are for convenience only and
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shall not affect the construction of this Agreement.
15. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
16. Facsimiles. Facsimiles of original signatures of the parties shall be
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binding and shall be deemed original signatures for all purposes.
17. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware (without regard to principles
of conflicts of law). Any action relating to this Agreement shall be brought in
a court in the State of Connecticut.
18. Termination. This Agreement shall be terminable by CTT, at its
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option, in 180 (one hundred eighty) days if the Agreement is not performed due
to the fault of Agrofrut or Agrofrut Shareholder. All representations and
warranties contained in this Agreement shall survive delivery of and payment for
the Shares.
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19. Severability. If any term, provision, covenant or restriction of this
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Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect, and shall
in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, CTT, Agrofrut Shareholder and Agrofrut have caused
this Agreement to be duly executed and delivered on the day and year first above
written.
COMPETITIVE TECHNOLOGIES, INC. AGROFRUT E.U.
/s/ Xxxx X. Nano /s/ Xxxxx Xxxx Valencia
__________________________________ __________________________________
Xxxx X. Nano Xxxxx Xxxx Valencia
President and Chief Executive Officer President
AGROFRUT SHAREHOLDER
Dated: April 17, 0000
/x/ Xxxxx Xxxx Xxxxxxxx
___________________________________
Xxxxx Xxxx Valencia
Individually
