[Exhibit 2.3]
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made and entered as of
the 30th day of December, 2003, by and among the buyers detailed in Schedule "A"
("Buyer"), and the seller detailed in Schedule "B" ("Seller").
RECITALS
A. Seller owns 150,000 shares of common stock of American Busing
Corporation (herein "Company"), a Nevada corporation (herein "Shares").
B. Seller desires to sell, assign, transfer, convey, deliver and set
over the Shares to Buyer, on the terms and subject to the conditions specified
by the provisions of this Agreement.
C. Buyer desires to purchase and acquire the Shares from Seller, on the
terms and subject to the conditions specified by the provisions of this
Agreement.
D. This purchase and sale transaction is a privately negotiated
transaction between arms length parties at a privately negotiated price and
shall close on or around January 5, 2004.
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SPECIFIED ABOVE THAT SHALL BE
DEEMED TO BE A SUBSTANTIVE PART OF THIS AGREEMENT, AND THE MUTUAL COVENANTS,
PROMISES, UNDERTAKINGS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES SPECIFIED IN
THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED
LEGALLY AND EQUITABLY, THE PARTIES DO HEREBY COVENANT, PROMISE, AGREE, REPRESENT
AND WARRANT AS FOLLOWS:
ARTICLE I
DEFINITIONS
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For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Article I:
"Breach" -- a "Breach" of a representation, warranty, covenant,
obligation, or other provision of this Agreement or any instrument delivered
pursuant to this Agreement will be deemed to have occurred if there is or has
been (a) any material inaccuracy in or breach of, or any material failure to
perform or comply with, such representation, warranty, covenant, obligation, or
other provision, or (b) any material claim (by any Person) or other occurrence
or circumstance that is or was inconsistent with such representation, warranty,
covenant, obligation, or other provision, and the term "Breach" means any such
material inaccuracy, breach, failure, claim, occurrence, or circumstance.
"Buyer" -- as defined in Schedule "A" of this Agreement.
"Closing" -- The closing of the Contemplated Transaction, which shall
occur on the Closing Date.
"Closing date"- is on or around January 5, 2004.
"Consent" -- any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"Contemplated Transaction" -- the transaction contemplated by the
provisions of this Agreement, including:
(a) the sale of the Shares by Seller to Buyer;
(b) the performance by Buyer and Seller of their respective covenants
and obligations pursuant to this Agreement; and
(c) Buyer's acquisition and purchase of the Shares from the Seller.
"Contract" -- any agreement, contract, obligation, promise, or
undertaking (whether written or oral and whether express or implied) that is
legally obligating.
"Encumbrance" -- any charge, claim, community property interest,
condition, equitable interest, lien, option, pledge, security interest, right of
first refusal, or restriction of any nature whatsoever, including any
restriction on use, voting, transfer, receipt of income, or exercise of any
other attribute of ownership.
"Escrow Agent"--- Shall be Xxxxxx Xxxxxxxxx, Attorney at Law,
00 Xx. Xxxxxx Xxxxx, Xxxxxxxxx, XX 00000.
"Escrow Agreement"--- Is the Agreement attached hereto as Schedule "C".
"Governmental Authorization" -- any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or pursuant to the authority of any Governmental Body or pursuant
to any Legal Requirement.
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"Governmental Body" -- any:
(a) nation, state, commonwealth, county, city, town, village, district,
xxxx, or other jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other government;
(c) governmental or quasi-governmental authority of any nature
whatsoever (including any governmental agency, branch, department, official, or
entity and any court or other tribunal);
(d) multi-national organization or body; or
(e) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority or
power of any nature whatsoever.
"Knowledge" -- an individual will be deemed to have "Knowledge" of a
particular fact or other matter if such individual should have been aware of
such fact or other matter, after reasonable investigation thereof.
A Person (other than an individual) will be deemed to have "Knowledge"
of a particular fact or other matter if any individual who is serving, or who
has at any time served, as a director, officer, partner, manager, executor, or
trustee of such Person (or in any similar capacity) has, or at any time had,
Knowledge of such fact or other matter.
"Legal Requirement" -- any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"Order" -- any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"Person" -- any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company,
fraternal organization, group, joint venture, estate, trust, association,
organization, labor union, or other entity or Governmental Body.
"Proceeding" -- any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"Representative" -- with respect to a particular Person, any director,
officer, manager, employee, agent, consultant, advisor, or other representative
of such Person, including legal counsel, accountants, and financial advisors.
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"Securities Act" -- the Securities Act of 1933, or any successor law,
and regulations and rules issued pursuant to that Act or any successor law.
"Seller" -- as defined in Schedule "B" of this Agreement.
"Shares" -- as defined in the Recital A of this Agreement.
"Threatened" -- a claim, Proceeding, dispute, action, or other matter
will be deemed to have been "Threatened" if any demand or statement has been
made (orally or in writing) or any notice has been given (orally or in writing),
or if any other event has occurred or any other circumstances exist, that would
cause a prudent Person to conclude that such a claim, Proceeding, dispute,
action, or other matter probably will be asserted, commenced, taken, or
otherwise pursued in the future.
ARTICLE II
SALE AND TRANSFER OF SHARES
---------------------------
2.1 Shares. On the terms and subject to the conditions of this
Agreement, upon Closing, Seller will sell, transfer, assign, convey, deliver and
set over the Shares to Buyer, and Buyer will purchase and acquire the Shares
from Seller.
2.2 Purchase Price. The aggregate purchase price for the Shares shall
be, and hereby is, $178,750 USD ("Purchase Price"). The Purchase Price shall be
paid to the Seller on Closing.
2.3 Obligations prior to Closing. Prior to Closing of this Agreement:
(a) Seller will have delivered to the Escrow Agent for the benefit of
the Buyer (i) the certificate or certificates representing the Shares, duly
endorsed (or accompanied by duly executed stock powers); (ii) the Certificate of
the Seller in the form annexed hereto as Exhibit 2.3(a)(ii), for the benefit of
the Buyer in accordance with the Escrow Agreement attached hereto as Schedule
"C"; and (iii) an irrevocable letter from Seller to the Escrow Agent, in the
form of Exhibit 2.3(a)(iii) annexed hereto, authorizing the release of all of
the items listed in this Paragraph 2.3(a); and
(b) Buyer will have delivered by wire transfer to the Escrow Agent for
the benefit of the Seller the Purchase Price in accordance with the Escrow
Agreement attached hereto as Schedule "C"; and will have delivered an
irrevocable letter from Buyer to the Escrow Agent, in the form of Exhibit 2.3(b)
annexed hereto, authorizing the release of all of the items listed in this
Paragraph 2.3(b).
2.4 Closing. On Closing the Escrow Agent shall immediately cause to be
delivered all documents, property, Shares, and Purchase Price that is to be
delivered to the parties under this Agreement in accordance with the terms of
the Escrow Agreement, subject to the delivery by the parties of appropriate
irrevocable authorization letters to the Escrow Agent.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
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OF SELLER
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Seller represents and warrants to Buyer as follows:
3.1 Authority; No Conflict.
(a) Seller is a corporation duly incorporated, validly existing and in
good standing under the laws of its place of incorporation.
(b) This Agreement constitutes the legal, valid, and binding obligation
of Seller, enforceable against Seller in accordance with its terms. Seller has
the absolute and unrestricted right, power, authority, and capacity to execute
and deliver this Agreement and to perform Seller's obligations pursuant to this
Agreement.
(c) Neither the execution and delivery of this Agreement nor the
consummation or performance of any of the Contemplated Transaction will,
directly or indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of, or
give any Governmental Body or other Person the right to challenge the
Contemplated Transaction or to exercise any remedy or obtain any relief
pursuant to, any Legal Requirement or any Order to which Seller or any
Shares may be subject;
(ii) contravene, conflict with, or result in a violation or
breach of any provision of, or give any Person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any applicable
Contract; or
(iii) result in the imposition or creation of any Encumbrance
upon or with respect to any of the Shares.
Seller is not and will not be required to give any notice to or obtain
any Consent from any Person in connection with the execution and delivery of
this Agreement or the consummation or performance of any of the Contemplated
Transaction.
3.2 Ownership of Shares. Seller is the beneficial owner and holder of
the Shares, free and clear of all Encumbrances. There are no Contracts relating
to the encumbrance, sale, transfer or other disposition of any of the Shares.
Seller does not beneficially own, nor have any Contract to acquire, any equity
securities or other securities of the Company.
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3.3 Legal Proceedings; Orders.
(a) There is no pending Proceeding:
(i) that has been commenced by or against Seller that relates
to or may affect the Shares;
(ii) that challenges, or that may have the effect of
preventing, delaying, making illegal, or otherwise interfering with,
the Contemplated Transaction;
(b) There is no Order to which any of the Shares is subject;
(c) The Seller is not subject to any Order that relates to any of the
Shares;
(d) No event has occurred or circumstance exists that may constitute or
result in (with or without notice or lapse of time) a violation of or failure to
comply with any term or requirement of any Order to which Seller or any of the
Shares is subject;
(e) The Seller has not received any notice or other communication
(whether oral or written) from any Governmental Body or any other Person
regarding any actual, alleged, possible, or potential violation of, or failure
to comply with, any term or requirement of any Order to which Seller or any of
the Shares is or has been subject.
To the Knowledge of Seller, (1) no such Proceeding or Order has been
Threatened, and (2) no event has occurred or circumstance exists that may give
result in or serve as a basis for the commencement of any such Proceeding or the
issuance of any such Order.
3.4 Brokers or Finders. Seller and Seller's agents have incurred no
obligation or liability, contingent or otherwise, for brokerage or finders' fees
or agents' commissions or other similar payment in connection with the
contemplated transaction.
3.5 Disclosure. No representation or warranty of Seller in this
Agreement omits to specify a material fact necessary to make the information
specified herein or therein, considering the circumstances in which that
information was furnished, not misleading.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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OF BUYER
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Buyer represents and warrants to Seller as follows:
4.1 Authority; No Conflict.
(a) This Agreement constitutes the legal, valid, and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms. Buyer has the
absolute and unrestricted right, power, authority, and capacity to execute and
deliver this Agreement and to perform its obligations pursuant to this
Agreement, and Buyer has the absolute and unrestricted right, power, authority,
and capacity to execute and deliver this Agreement.
(b) Neither the execution and delivery of this Agreement nor the
consummation or performance of the Contemplated Transaction will, directly or
indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of, or
give any Governmental Body or other Person the right to challenge any
of the Contemplated Transaction or to exercise any remedy or obtain any
relief pursuant to, any Legal Requirement or any Order to which Buyer
may be subject;
(ii) contravene, conflict with, or result in a violation of
any of the terms or requirements of, or give any Governmental Body the
right to revoke, withdraw, suspend, cancel, terminate, or modify, any
Governmental Authorization that is held by Buyer or that otherwise
relates to the business of Buyer; or
(iii) contravene, conflict with, or result in a violation or
breach of any provision of, or give any Person the right to declare a
default or exercise any remedy pursuant to, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any
Applicable Contract.
Buyer is not or will not be required to give any notice to or obtain
any Consent from any Person in connection with the execution and delivery of
this Agreement or the consummation or performance of the Contemplated
Transaction.
(c) Buyer is acquiring the Shares for Buyer's own account and not with
an intention of distribution as contemplated by the provisions of Section 2(11)
of the Securities Act. Buyer is an "accredited investor" as such term is defined
in Rule 501(a) of Regulation D promulgated pursuant to the Securities Act.
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4.2 Disclosure. No representation or warranty of Buyer in this
Agreement omits to specify a material fact necessary to make the information
specified herein or therein, considering the circumstances in which that
information was furnished, not misleading.
4.3 Brokers or Finders. Buyer and Buyer's agents have incurred no
obligation or liability, contingent or otherwise, for brokerage or finders' fees
or agents' commissions or other similar payment in connection with this
Agreement.
4.4 Investment Representation. Buyer, severally, each with respect to
the portion of the Shares being purchased by him from Seller, acknowledges that
the transactions contemplated by this Agreement, including his purchase of the
Shares, have not been reviewed by the Securities and Exchange Commission and
that such transaction is intended to be a non-public offering pursuant to
Sections 4(2) or 3(b) of the Securities Act. Such Shares are being acquired for
such Buyer's own account, for investment and not for distribution or resale to
others. Each Buyer agrees that he will not sell or otherwise transfer any of
such Shares unless they are registered under the Securities Act and any
applicable state securities law, unless an exemption from such registration is
available.
ARTICLE V
GENERAL PROVISIONS
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5.1 Expenses. Except as otherwise expressly provided in this Agreement,
each party shall pay all expenses, costs and fees (including attorneys' fees)
incurred by that party in connection with the Contemplated Transaction,
including the preparation, execution and delivery of this Agreement.
5.2 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
Seller:
Xxxxxx Xxxxxxxxx, Esq.
00 Xx. Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Buyer:
Xxxxxxxx X. Xxxxxxx, Esq.,
Gusrae, Xxxxxx & Bruno PLLC,
Attorney at Law,
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
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5.3 Jurisdiction; Service of Process. The parties hereto hereby agree
that any suit or proceeding arising directly and/or indirectly pursuant to or
under this Agreement, shall be brought solely in a federal or state court
located in the City, County and State of New York. By its execution hereof, the
parties hereby covenant and irrevocably submit to the in personam jurisdiction
of the federal and state courts located in the City, County and State of New
York and agree that any process in any such action may be served upon any of
them personally, or by certified mail or registered mail upon them or their
agent, return receipt requested, with the same full force and effect as if
personally served upon them in New York City. The parties hereto waive any claim
that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of in personam jurisdiction with respect
thereto. In the event of any such action or proceeding, the party prevailing
therein shall be entitled to payment from the other party hereto of its
reasonable counsel fees and disbursements in an amount judicially determined.
5.4 Further Assurances. The parties agree (a) to furnish upon request
to each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
5.5 Waiver. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by any
party in exercising any right, power, or privilege pursuant to this Agreement or
the documents referred to in this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement or the documents referred to in this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
5.6 Entire Agreement and Modification. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter and
constitutes a complete and exclusive statement of the terms of the Agreement
between the parties with respect to its subject matter. This Agreement may not
be amended except by a written Agreement executed by the party to be charged
with the amendment.
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5.7 Assignments, Successors, and No Third-party Rights. No party may
assign any of its rights pursuant to this Agreement without the prior written
consent of the other parties, and any such assignment shall be null and void ab
initio; Subject to the preceding sentence, this Agreement will apply to, be
binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the parties. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement. This Agreement and all of
its provisions and conditions are for the sole and exclusive benefit of the
parties to this Agreement and their successors and assigns.
5.8 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
5.9 Section Headings, Construction. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "section" or "sections" refer to the
corresponding section or sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
5.10 Time of Essence. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
5.11 Governing Law. This Agreement will be governed by the laws of the
State of New York without regard to conflicts of laws principles.
5.12 Counterparts. This Agreement may be executed in one or more
counterparts and by facsimile, each of which will be deemed to be an original
copy of this Agreement and all of which, when taken together, will be deemed to
constitute one and the same Agreement.
5.13 Termination of Agreement. This Agreement shall be terminated prior
to or on the Closing Date in the event that the Stock Purchase and
Reorganization Agreement, of even date herewith, among the Company, Xxxxxx
Xxxxxxxx, W.W. Cycles, Inc. ("Cycles") and the shareholders of Cycles, including
the Buyer, is terminated prior to or on the Closing Date.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
IFG INVESTMENTS SERVICES INC.
By: /s/ Xxxxxx XxxXxxxxx
--------------------
Name: Xxxxxx XxxXxxxxx
Title: President
F:\wp\wwcycles\SMM0816.DOC
SCHEDULE "A"
LIST OF BUYERS
Xxxxxxx X. Xxxxx - 75,000 Shares
Xxxxxxx X. Xxxxx - 75,000 Shares
SCHEDULE "B"
LIST OF SELLER
IFG INVESTMENTS SERVICES INC.
Xxxxx 0, Xxxxxx Xxxxxxxx
Xxxx & Xxxxxx Xxxxxxx Xxxxxx
Charlestown, Nevis
St. Kitts & Nevis, West Indies
SCHEDULE "C"
ESCROW AGREEMENT
