Exhibit 10.13
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into effective February 6, 2006, by and among LINKWELL CORPORATION, a Florida
corporation ("Linkwell"), AERISYS INCORPORATED, a Florida corporation
("Aerisys") and XXXX XXXXXXX, an individual ("Verdier").
RECITALS:
A. Linkwell owns all of the issued and outstanding capital stock of Aerisys,
(the "Aerisys Shares").
X. Xxxxxxx desires to acquire the Aerisys Shares from Linkwell in exchange for
the assumption of all the liabilities and obligations of Aerisys.
C. Linkwell desires to sell the Aerisys Shares for the assumption of all
liabilities and obligations of Aerisys upon the terms and conditions set forth
herein.
D. It is the intention of the parties hereto that: (i) Verdier shall acquire the
Linkwell Shares solely for the consideration set forth below (the "Exchange");
(ii) the Exchange shall qualify as a transaction exempt from registration or
qualification under the Securities Act of 1933, as amended (the "Securities
Act"), and (iii) the Exchange shall qualify as a "tax-free" transaction within
the meaning of Section 368 of the Internal Revenue Code of 1986.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. PURCHASE OF SHARES AND OTHER TRANSACTIONS
1.1 Purchase of Shares. On the Closing (as hereinafter defined), Linkwell
shall tender the Aerisys Shares to Verdier and Verdier shall purchase the
Aerisys Shares in exchange for the assumption of any and all liabilities and
obligations, past, current, contingent or otherwise, including but not limited
to the liabilities and obligations set forth on the balance sheet for Aerisys
attached hereto and incorporated herein by reference as Exhibit A.
1.2 Delivery of Aerisys Shares. On the Closing date, Linkwell will deliver
to Verdier the certificates representing the Aerisys Shares, duly endorsed for
transfer (or with executed stock powers) so as to convey good and marketable
title to the Aerisys Shares to Verdier.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF VERDIER
Verdier represents and warrants to Linkwell as follows:
2.1 Information on Verdier. Verdier is an "accredited investor," as such
term is defined in Regulation D promulgated under the Securities Act, or is
otherwise experienced in investments and business matters, has made investments
of a speculative nature and has such knowledge and experience in financial, tax
and other business matters as to enable him to evaluate the merits and risks of,
and to make an informed investment decision with respect to, this Agreement.
Verdier understands that his acquisition of the Aerisys Shares is a speculative
investment, and Verdier represents that he is able to bear the risk of such
investment for an indefinite period, and can afford a complete loss thereof.
2.2 Investment Intent. Verdier understand that the Aerisys Shares have not
been registered under the Securities Act, and may not be sold, assigned,
pledged, transferred or otherwise disposed of unless the Aerisys Shares are
registered under the Securities Act or an exemption from registration is
available. Verdier represents and warrants that he is acquiring the Aerisys
Shares for his own account, for investment, and not with a view to the sale or
distribution of the Aerisys Shares except in compliance with the Securities Act.
Each certificate representing the Aerisys Shares will have the following or
substantially similar legend thereon:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act") or any state securities laws. The shares
have been acquired for investment and may not be sold or
transferred in the absence of an effective Registration
Statement for the shares under the Securities Act unless, in
the opinion of counsel satisfactory to the Company,
registration is not required under the Securities Act or any
applicable state securities laws."
2.3 Authorization of Agreement. The Investor has the power to enter into
this Agreement and to carry out his obligations hereunder. This Agreement has
been duly executed by Verdier and constitutes the valid and binding obligation
of Verdier, enforceable against him in accordance with its terms.
2.4 Control. Verdier represents that he is not an "interested shareholder"
or "affiliate" of Linkwell under Section 607.0901 of the Florida Business
Corporation Act (as such term is defined therein) and is not an "acquiring
person or member of a group" owning "control shares" under Section 607.0902 of
the Florida Business Corporation Act (as such terms are defined therein), in
each case, as of the date of this Agreement and prior to giving effect to the
transactions contemplated by this Agreement.
2.5 Risk Factors. Verdier understands that an investment in Aerisys
involves a high degree of risk; that there is no existing public trading market
for the Aerisys Common Stock and there can be no assurance that a public market
will ever be established, and; that an investment in the Aerisys Shares is
considered illiquid, and Verdier has liquid assets sufficient to assure that
such purchase will cause no undue financial difficulties and Verdier can provide
for current needs and possible personal contingencies.
2.6 Due Diligence. Verdier acknowledges that, except as set forth in
Section 3, Linkwell and Aerisys are making no representations with respect to
the transactions contemplated by this Agreement. Verdier and its advisers have
had full access to such financial and other information, and have been afforded
the opportunity to ask such questions of representatives of Linkwell and Aerisys
and receive answers thereto, as Verdier has deemed necessary in connection with
Verdier's decision to purchase the Aerisys Shares. Further, Verdier was the
former Chairman of the Board, Chief Executive Officer, President, Secretary and
Treasurer of Linkwell prior to May 2, 2005 and acknowledges that he is aware of
and understands the business and financial condition of Aerisys.
2.7 Full Disclosure. No representation or warranty by Verdier in this
Agreement or in any document or schedule to be delivered by him pursuant hereto,
and no written statement, certificate or instrument furnished or to be furnished
by Verdier pursuant hereto or in connection with the negotiation, execution or
performance of this Agreement contains, or will contain, any untrue statement of
a material fact or omits, or will omit, to state any fact necessary to make any
statement herein or therein not materially misleading or necessary to a complete
and correct presentation of all material information.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF LINKWELL
Linkwell and Aerisys, to the best of each of its knowledge, hereby
represent and warrant to Verdier as follows, with any exceptions thereto being
denoted on the applicable schedule to this Agreement:
3.1 Organization and Good Standing. Aerisys is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Florida, and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased or
operated and such business is now conducted. Linkwell is the record and
beneficial owner of 100% of the issued and outstanding shares of Aerisys, which
shares are, to the best knowledge of Linkwell and Aerisys, owned free and clear
of all rights, claims, liens and encumbrances, and have not been sold, pledged,
assigned or otherwise transferred. To the best knowledge of Linkwell and
Aerisys, there are no outstanding subscriptions, rights, options, warrants or
other agreements obligating Linkwell to sell or transfer to any third person any
of the shares of Aerisys shares owned by Linkwell or any interest therein.
3.2 Authorization; Enforceability. Linkwell and Aerisys have all necessary
corporate power and authority to execute this Agreement and perform their
respective obligations hereunder. This Agreement constitutes the valid and
binding obligation of Linkwell and Aerisys enforceable against Linkwell and
Aerisys in accordance with its terms, except as may be limited by bankruptcy,
moratorium, insolvency or other similar laws generally affecting the enforcement
of creditors' rights.
3.3 Financial Statements. The consolidated unaudited balance sheets of
Aerisys at December 31, 2005 (the "Aerisys Financial Statements") fairly present
in all material respects the financial position of Aerisys as of the date
thereof, and the other related statements included therein fairly present in all
material respects the results of operations, and cash flows of Aerisys for the
dates set forth therein. The Aerisys Financial Statements are a compilation of
internal accounting software reports that have not been generated or reviewed by
a certified public accountant. Accordingly, Linkwell and Aerisys cannot
represent that the Aerisys Financial Statements have been prepared in accordance
with U.S. generally accepted accounting principles ("GAAP") applied on a basis
consistent throughout all periods presented. However, to the best of Linkwell's
and Aerisys' knowledge, the Aerisys Financial Statements present fairly in all
material respects the financial position of Aerisys as of the date and for the
periods indicated.
3.4 Capitalization. The authorized capital stock of Aerisys consists of
25,000,000 shares of common stock of which 10,000,000 shares are presently
issued and outstanding and 10,000,000 shares of preferred stock, no shares of
which have been issued or designated.
SECTION 4. COVENANTS
4.1 Examinations and Investigations. Prior to the Closing, the parties
acknowledge that they have been entitled, through their employees and
representatives, to make such investigation and verification of the assets,
properties, business and operations, books, records and financial condition of
the other, including communications with suppliers, vendors and customers, as
they each may reasonably require. No investigation by a party hereto shall,
however, diminish or waive in any way any of the representations, warranties,
covenants or agreements of the other party under this Agreement. Consummation of
this Agreement shall be subject to the fulfillment of due diligence procedures
to the reasonable satisfaction of each of the parties hereto and their
respective counsel.
4.2 Expenses. Each party hereto agrees to pay its own costs and expenses
incurred in negotiating this Agreement and consummating the transactions
described herein.
4.3 Further Assurances. The parties shall execute such documents and other
papers and take such further action as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated hereby.
Each such party shall use its best efforts to fulfill or obtain in the
fulfillment of the conditions to the Closing, including, without limitation, the
execution and delivery of any documents or other papers, the execution and
delivery of which are necessary or appropriate to the Closing.
4.4 Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, each of the parties hereto agree to keep
confidential any information disclosed to each other in connection therewith;
provided, however, such obligation shall not apply to information which:
(a) at the time of disclosure was public knowledge;
(b) after the time of disclosure becomes public knowledge
(except due to the action of the receiving party); or
(c) the receiving party had within its possession at the time
of disclosure.
4.5 Stock Certificates and Consideration. At the Closing, the Linkwell
shall have delivered the certificate representing the Aerisys Shares duly
endorsed (or with executed stock powers) so as to make Verdier the sole owner
thereof.
4.6 Management of Aerisys. On the Closing date, the directors and officers of
Aerisys shall resign.
SECTION 5. THE CLOSING
The closing (the "Closing") shall take place contemporaneous with the
execution of this Agreement, or at such other time and place as is mutually
agreed upon by Verdier and Linkwell, following satisfaction or waiver of all
conditions precedent to Closing. At the Closing, the parties shall provide each
other with such documents as may be necessary or appropriate and customary in
transactions of this sort in order to consummate the transactions contemplated
hereby, including evidence of due authorization of the Agreement and the
transactions contemplated hereby.
SECTION 6. CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions Precedent to the Obligation of Linkwell to sell the Aerisys
Shares. The obligation of Linkwell to sell the Aerisys Shares to Verdier and to
otherwise consummate the transactions contemplated hereby is subject to the
satisfaction, at or before the Closing, of each of the conditions set forth
below. These conditions are for Linkwell's sole benefit and may be waived by
Linkwell at any time in its sole discretion.
(a) Accuracy of Verdier's Representations and Warranties
The representations and warranties of Verdier will be true and correct
in all material respects as of the date when made and as of the Closing, as
though made at that time.
(b) Performance by Verdier. Verdier shall have performed all
agreements and satisfied all conditions required to be performed or satisfied by
it at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(d) No Material Adverse Changes. Verdier shall have suffered no
Material Adverse Effect.
(e) Miscellaneous. Verdier shall have delivered to Linkwell such
other documents relating to the transactions contemplated by this Agreement as
Linkwell may reasonably request.
6.2 Conditions Precedent to the Obligation of Verdier to Purchase the
Aerisys Shares. The obligation of Verdier to purchase the Aerisys Shares and to
otherwise consummate the transactions contemplated hereby is subject to the
satisfaction, at or before the Closing, of each of the conditions set forth
below. These conditions are for Verdier' sole benefit and may be waived by
Verdier at any time in its sole discretion.
(a) Accuracy of Linkwell's Representations and Warranties. The
representations and warranties of Linkwell and Aerisys will be true and correct
in all material respects as of the date when made and as of the Closing, as
though made at that time.
(b) Performance by Linkwell. Linkwell and Aerisys shall have
performed all agreements and satisfied all conditions required to be performed
or satisfied by them at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(d) No Material Adverse Changes. Aerisys shall have suffered no
Material Adverse Effect.
(e) Miscellaneous. Linkwell shall have delivered to the Verdier
such other documents relating to the transactions contemplated by this Agreement
as Verdier may reasonably request.
SECTION 7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF KIRSHNER AND VERDIER
Notwithstanding any right of Verdier fully to investigate the affairs of
Aerisys, Verdier shall have the right to rely fully upon the representations,
warranties, covenants and agreements of Linkwell and Aerisys contained in this
Agreement or in any document delivered by Linkwell or Aerisys or any of its
representatives, in connection with the transactions contemplated by this
Agreement. All such representations, warranties, covenants and agreements shall
survive the execution and delivery hereof and the Closing hereunder for 12
months following the Closing.
SECTION 8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF LINKWELL
AND THE SHAREHOLDERS
Notwithstanding any right of Linkwell fully to investigate the affairs of
Verdier, Linkwell has the right to rely fully upon the representations,
warranties, covenants and agreements of Verdier contained in this Agreement or
in any document delivered to Linkwell by Verdier or any of his representatives,
in connection with the transactions contemplated by this Agreement. All such
representations, warranties, covenants and agreements shall survive the
execution and delivery hereof and the Closing hereunder for 12 months following
the Closing.
SECTION 9. INDEMNIFICATION
9.1 Obligation of Verdier to Indemnify. Subject to the limitations on the
survival of representations and warranties contained in Section 8, Verdier
hereby agree to indemnify, defend and hold harmless Linkwell, to the extent
provided for herein, from and against any losses, liabilities, damages,
deficiencies, costs or expenses (including interest, penalties and reasonable
attorneys' fees and disbursements) (a "Loss") based upon, arising out of, or
otherwise due to any inaccuracy in or any breach of any representation,
warranty, covenant or agreement of Verdier contained in this Agreement or in any
document or other writing delivered pursuant to this Agreement.
9.2 Obligation of the Linkwell to Indemnify. Subject to the limitations on
the survival of representations and warranties contained in Section 7, Linkwell
agrees to indemnify, defend and hold harmless Verdier to the extent provided for
herein from and against any Loss based upon, arising out of, or otherwise due to
any inaccuracy in or any breach of any representation, warranty, covenant or
agreement made by any of them and contained in this Agreement or in any document
or other writing delivered pursuant to this Agreement.
SECTION 10. MISCELLANEOUS
10.1 Waivers. The waiver of a breach of this Agreement or the failure of
any party hereto to exercise any right under this Agreement shall in no event
constitute a waiver as to any future breach whether similar or dissimilar in
nature or as to the exercise of any further right under this Agreement.
10.2 Amendment. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
10.3 Assignment. This Agreement is not assignable except by operation of
law.
10.4 Notices. Until otherwise specified in writing, the mailing addresses
of both parties of this Agreement shall be asfollows:
Linkwell: Linkwell Tech Group, Inc. (U.S. Address)
Xx. 000 Xxxxx Xxxxxx Xxxx 0000 Xxxxxx Road, #213
Baoshan District Xxxx Xxxxx, Xxxxxxx 00000
Shanghai, China 200436
With a copy to: Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx Xxxxxxxxxx & Beilly LLP
0000 Xxxxxxxxx Xxxxxxxxx, X.X., Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Verdier: Xxxx Xxxxxxx
0000 XX 00xx Xxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address as may be furnished in writing to the
addressor.
10.5 Governing Law; Venue. This Agreement shall be governed and construed
in accordance with the laws of the State of Florida, without regard to the
conflicts of law provisions thereof. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the County
of Palm Beach, State of Florida, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this agreement in that jurisdiction or the
validity or enforceability of any provision of this agreement in any other
jurisdiction. EACH PARTY HERETO IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY.
10.6 Publicity. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance thereof by the other party.
10.7 Entire Agreement. This Agreement (including the Exhibits and Schedules
hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the Exchange and related
transactions, and supersede all prior agreements, written or oral, with respect
thereto.
10.8 Headings. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
10.9 Severability of Provisions. The invalidity or unenforceability of any
term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
10.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
/s/ Xxxx Xxxxxxx
XXXX XXXXXXX
LINKWELL CORPORATION.
By:/s/ XxxXxxx Xxxx
XxxXxxx Xxxx, President
AERISYS INCORPORATED
By:/s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, President
