STOCK PURCHASE AGREEMENT By and Among ARGAN, INC. and GEMMA POWER, INC., and GEMMA POWER SYSTEMS CALIFORNIA, INC. and WILLIAM F. GRIFFIN, JR. and JOEL M. CANINO
By
and
Among
ARGAN,
INC.
and
GEMMA
POWER, INC., and
GEMMA
POWER SYSTEMS CALIFORNIA, INC.
and
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇. ▇▇▇▇▇▇
THIS
STOCK PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of this
8th
day of
December, 2006, by and among (i) ARGAN, INC., a Delaware corporation
(“Purchaser”), (ii) GEMMA POWER, INC., a Connecticut corporation
(“GPS-Connecticut”), (iii) GEMMA POWER SYSTEMS CALIFORNIA, INC., a California
corporation (“GPS-California,” and, together with GPS-Connecticut, the
“Corporations”), and (iv) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. (“▇▇▇▇▇▇▇”), and (v) ▇▇▇▇ ▇.
▇▇▇▇▇▇ (“▇▇▇▇▇▇,” and together with ▇▇▇▇▇▇▇ sometimes hereinafter referred to
together as, the “Sellers”).
INTRODUCTORY
STATEMENT
A. The
Sellers own a majority of the issued and outstanding shares
of
capital stock of GPS-Connecticut, and all of the issued and
outstanding shares
of
capital stock of GPS-California.
B. GPS-Connecticut
and GPS-California are engaged in the engineering and construction of power
energy systems and also provide consulting, owner’s representative, operating,
and maintenance services to the energy market.
C. The
Boards of Directors of Purchaser and of GPS-Connecticut and GPS-California
have
approved the acquisition of the Corporations by Purchaser by acquisition (i)
from the Sellers and the Other Stockholders of all of the GPS-Connecticut Stock,
and from the Sellers of all of the GPS-California Stock, upon the terms and
subject to the conditions set forth herein.
D. For
federal income tax purposes, it is intended that the acquisition of
GPS-Connecticut and GPS-California shall qualify as a tax-free reorganization
within the meaning of Section 368(a)(1)(B) of the Internal Revenue Code of
1986,
as amended (the “Code”), and for such purpose the parties have adopted the Plan
of Reorganization in the form of the Plan of Reorganization attached hereto
as
Exhibit D.
NOW,
THEREFORE, for and in consideration of the premises and the mutual
representations, warranties, covenants and agreements herein contained and
other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties do agree as follows:
DEFINITIONS
The
following terms when used in this Agreement shall have the following
meanings:
“Act”
shall
mean the Securities Act of 1933, as the same has been and shall be amended
from
time to time.
“Argan
Per Share Value”
shall
mean Three and 75/100 Dollars ($3.75) per share, being the same price per
share as that paid by investors for Argan Common Stock in connection with that
certain private offering of up to 2,900,000 shares of Argan Common Stock to
a
limited number of sophisticated investors pursuant to that
certain Stock
Purchase Agreement dated as of December 7, 2006, by and among Argan and the
Buyers identified therein, and that certain Escrow Agreement dated as of
December 7, 2006, by and among Argan, the Buyers identified therein and the
escrow agent identified therein.
“Argan
Common Stock”
shall
mean the authorized voting common stock of Argan.
“Business
Day”
shall
mean shall mean any day of the week other than Saturday, Sunday or a day on
which banking institutions in either New York, New York, or Washington, D.C.,
are obligated or authorized by law to close.
“▇▇▇▇▇▇”
shall
mean ▇▇▇▇ ▇. ▇▇▇▇▇▇, a stockholder, officer
and director of GPS-Connecticut and of GPS-California, and a signatory to this
Agreement.
“Closing”
means
the transfer of the GPS-Connecticut Stock and the GPS-California Stock to
Purchaser and the payment of the Consideration to the Sellers pursuant to this
Agreement.
“Closing
Date”
means
the date of Closing, established under Section 3 of this Agreement.
“Code”
has
the
meaning set forth in the introductory statement.
“Corporations”
means
GPS-Connecticut and GPS-California and all of their respective subsidiaries
and
affiliates (unless the context clearly indicates otherwise). Each of
GPS-Connecticut and GPS-California (and all of their respective subsidiaries
and
affiliates, unless the context clearly indicates otherwise) is sometimes
referred to as “a Corporation.”
“Consideration”
means
the aggregate consideration set forth in Section 2 hereof.
“Delivery
Date” has
the
meaning set forth in Section 3.1 below.
“Escrow
Agent”
shall
mean ▇▇▇▇▇▇ Law ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Salans, P.C.
“GPS-California
Stock”
have
the meaning set forth in Section 1.1.
“GPS-Connecticut
Stock”
shall
have the meaning set forth in Section 1.1.
“▇▇▇▇▇▇▇”
shall
mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., a stockholder, officer
and director of GPS-Connecticut and of GPS-California, and a signatory to this
Agreement.
“Membership
Interest Purchase Agreement”
shall
mean that certain Membership Interest Purchase Agreement by and among Purchaser,
Gemma Power Systems, LLC (a Connecticut limited liability company),
GPS-Connecticut, GPS-California, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ to be executed
contemporaneously with this Agreement.
2
“Organizational
Documents”
shall
mean (a) the articles or certificate of incorporation and the bylaws of a
corporation; (b) the articles of organization and the operating agreement of
any
limited liability company; (c) the partnership agreement and any statement
of
partnership of a general partnership; (d) the limited partnership agreement
and
the certificate of limited partnership of a limited partnership; (e) any charter
or similar document adopted or filed in connection with the creation, formation,
or organization of any entity; and (f) any amendment to any of the
foregoing.
“Other
Stockholders”
shall
have the meaning set forth in Section 1.1.
“Plan
of Reorganization”
shall
mean the Plan of Reorganization adopted and approved by the Boards of Directors
of Purchaser, GPS-Connecticut and GPS-California and by the managers of GPS
in
the form of the Plan of Reorganization attached hereto as Exhibit
D.
“SEC”
shall
have the meaning set forth in Section 4.12.
“Sellers”
has
the
meaning set forth in the preface above.
SECTION
1
ACQUISITION
OF STOCK
1.1 Acquisition
of Stock.
On the
Closing Date (as defined in Section 3), and subject to and upon the fulfillment
or waiver of the terms and conditions of this Agreement and of the Membership
Interest Purchase Agreement, Purchaser shall acquire
(i) from the Sellers and the other stockholders of GPS-Connecticut (the “Other
Stockholders”) all of the authorized issued and outstanding capital stock of
GPS-Connecticut, including all warrants, options, convertible securities or
other rights (contingent or otherwise) to purchase or acquire stock of
GPS-Connecticut (the “GPS-Connecticut Stock”), and (ii) from the Sellers all of
the authorized issued and outstanding capital stock of GPS-California, including
all warrants, options, convertible securities or other rights (contingent or
otherwise) to purchase or acquire stock of GPS-California (the “GPS-California
Stock”). Purchaser’s acquisition of all of the GPS-Connecticut Stock and all of
the GPS-California Stock shall be by means of a tax-free reorganization under
Section 368(a)(1)(B) of the Code. The names, addresses and numbers of shares
of
GPS-Connecticut Stock and of GPS-California Stock held by each of the Sellers
and each of the Other Stockholders is set forth on Schedule 1.1.
1.2 Organizational
Documents, Management.
(a) Organizational
Documents.
At
Closing, the Organizational Documents of the Corporations shall be amended
in
the manner determined by Purchaser, as sole stockholder of GPS-Connecticut
and
of GPS-California.
3
(b) Management.
At
Closing, Purchaser, as sole stockholder of GPS-Connecticut and of
GPS-California, shall take all appropriate action to elect the persons
designated on Schedule 1.2(b) as the directors and the officers of
GPS-Connecticut and of GPS-California, respectively, until their respective
successors are duly elected or appointed and qualified.
SECTION
2
CONSIDERATION
2.1 Consideration.
The
total
consideration to be paid by Purchaser to the Sellers and to the Other
Stockholders (the “Consideration”) shall be an amount equal to Four Million
Eight Hundred Seventy-Five Thousand Dollars ($4,875,000) in Argan Common Stock.
The Consideration shall be allocated Two Million Forty-Seven Thousand Five
Hundred Dollars ($2,047,500) for all of the GPS-Connecticut Stock, and Two
Million Eight Hundred Twenty-Seven Thousand Five Hundred Dollars ($2,827,500)
for all of the GPS-California Stock, and shall be determined and paid in
accordance with Section 2.2.
2.2 Payment
of Consideration .
The
Consideration shall be paid at Closing:.
(a)
for
the shares of GPS-Connecticut Stock, through issuance of the number of shares
of
Argan Common Stock equal in value to Two Million Forty-Seven Thousand Five
Hundred Dollars ($2,047,500), valued at the Argan Per Share Value (the
“GPS-Connecticut Stock Consideration”). At Closing, the Sellers and the Other
Stockholders shall receive their respective pro rata shares of the
GPS-Connecticut Stock Consideration as set forth in Schedule 2.2;
and
(b) for
the
shares of GPS-California Stock, through issuance of the number of shares of
Argan Common Stock equal in value to Two Million Eight Hundred Twenty-Seven
Thousand Five Hundred Dollars ($2,827,500), valued at the Argan Per Share Value
(the “GPS-California Stock Consideration”). At Closing, the Sellers shall
receive their respective pro rata shares of the GPS-California Stock
Consideration as set forth in Schedule 2.2.
SECTION
3
CLOSING
3.1 Closing;
Deliveries into Escrow.
The
closing of the acquisition of the GPS-Connecticut Stock and the GPS-California
Stock (the “Closing”) shall take place on a date designated by Purchaser in a
notice given to the Sellers that shall be not earlier than one (1) Business
Day
nor later than five (5) Business Days following the execution of this Agreement,
the Membership Interest Purchase Agreement, and of all documents contemplated
under this Agreement and under the Membership Interest Purchase Agreement,
and
placement thereof, together with all other documents or items to be delivered
by
the parties at Closing under this Agreement and under the Membership Interest
Purchase Agreement into escrow with the Escrow Agent (the “Delivery Date”), or
at such other time, date and place as Purchaser and the Sellers may agree (the
“Closing Date”). In satisfying their obligations hereunder, the Sellers shall
cause the Other Stockholders to transfer to the Escrow Agent, to be held in
escrow pursuant to this Section 3, duly endorsed stock certificates
representing all of the outstanding shares owned by the Other Stockholders
of
GPS-Connecticut Stock together with such other customary documents as may be
required to transfer same.
4
3.2 Deliveries
by Escrow Agent.
Upon
confirmation from either Purchaser or the Sellers that the wire transfer of
funds described in Section 3.2 of the Membership Interest Purchase Agreement
has
been effected, the Escrow Agent shall be authorized, and hereby agrees, to
date
as of the Closing Date all documents held by it in escrow which, in accordance
with the terms of this Agreement, are to be dated as of the Closing Date and
to
deliver, and the Escrow Agent shall release from escrow and deliver, (i) to
the
Sellers, and to the Other Stockholders, as the case may be, stock certificates
representing the Consideration described in Section 2, and (ii) to Purchaser
(A)
duly endorsed stock certificates representing all of the outstanding shares
of GPS-Connecticut Stock together with such other customary documents as may
be
required to transfer same, (B) duly endorsed stock certificates
representing all of the outstanding shares of GPS-California Stock together
with
such other customary documents as may be required to transfer same.
SECTION
4
MISCELLANEOUS
4.1 Costs.
Each
party shall pay its own expenses incident to the transaction contemplated
hereby, including fees and expenses of their attorneys, accountants, appraisers
or consultants, whether or not those transactions are consummated at Closing.
4.2 Attorneys
Fees.
If any
party initiates any litigation against any other party involving this Agreement,
the prevailing party in such action shall be entitled to receive reimbursement
from the other party for all reasonable attorneys’ fees and other costs and
expenses incurred by the prevailing party in respect of that litigation,
including any appeal, and such reimbursement may be included in the judgment
or
final order issued in that proceeding.
4.3 Titles
and Captions.
All
articles or section titles or captions in this Agreement are for convenience
of
reference and shall in no way define, limit, extend or describe the scope or
intent of provisions herein.
4.4 Applicable
Law.
This
Agreement is to be governed by, and construed, interpreted, and enforced in
accordance with, the laws of the State of Delaware.
5
4.5 Binding
Effect and Assignment.
This
Agreement shall be binding on and inure to the benefit of the parties hereto
and
their respective heirs, personal representative, affiliates, successors and
assigns. Notwithstanding the foregoing, neither the Corporations nor Purchaser
shall have any right to assign any of its or their rights or obligations under
this Agreement without the prior written consent of the other parties
hereto.
4.6 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 facsimile (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 facsimile numbers set forth below
(or to such other addresses and facsimile numbers as a party may designate
by
notice to the other parties):
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If
the Corporations then:
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Gemma
Power, Inc. and
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Gemma
Power Systems of California, Inc.
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Attention:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Fax:
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If
▇▇▇▇▇▇▇ then:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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c/o
Gemma Power Systems, LLC
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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If
▇▇▇▇▇▇ then:
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▇▇▇▇ ▇. ▇▇▇▇▇▇
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c/o
Gemma Power Systems, LLC
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Fax:
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Counsel
for the Corporations, ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇:
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▇. ▇▇▇▇
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▇▇▇▇▇▇,
▇’▇▇▇▇▇▇, ▇’▇▇▇▇▇▇▇ & ▇▇▇▇, P.C.
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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If
Purchaser then:
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Argan,
Inc.
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Attn:
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Fax:
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Counsel
for Purchaser:
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▇▇▇▇▇
▇. Law
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Law ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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&
Salans, PC
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Fax:
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4.7 Severability.
Inapplicability or unenforceability of any provision of this Agreement shall
not
impair the operation or validity of any other provision hereof. If any provision
shall be declared inapplicable or unenforceable, there shall be added
automatically as part of this Agreement a provision as similar in terms to
such
inapplicable or unenforceable provision as may be possible and be legal, valid
and enforceable.
4.8 Acceptance
or Approval.
By
accepting all or approving anything required to be observed, performed, or
fulfilled, or to be given to Purchaser pursuant to this Agreement, Purchaser
shall not be deemed to have accepted or approved the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision, or
condition thereof as to third parties.
4.9 Entire
Agreement.
This
Agreement, including all Exhibits and Schedules, constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof,
and
supersedes all prior agreements and understandings pertaining thereto. No
covenant, representation, or condition not expressed in this Agreement shall
affect or be deemed to interpret, change or restrict the express provisions
hereof and no amendments hereto shall be valid unless made in writing and signed
by all parties hereto.
4.10 Counterparts.
This
Agreement may be executed in any number of counterparts, all of which together
shall constitute one instrument.
4.11 Securities
Matters.
By
executing this Agreement, Purchaser acknowledges that: (i) Purchaser has been
advised that the GPS-Connecticut Stock and the GPS-California Stock has not
been
and will not have been registered under the Act or the applicable securities
laws of any state, that the Sellers in transferring such stock to Purchaser
will
be relying, if applicable, upon the exemption from such registration
requirements contained in Section 4(1) or 4(2) of the Act as a transaction
by a
person other than an issuer, underwriter or dealer and the applicable state
exemption; (ii) the GPS-Connecticut Stock and the GPS-California Stock may
be
“restricted” as that term is used in Rule 144 under the Act as a consequence of
which Purchaser may not be able to sell the interests unless such stock is
first
registered under the Act and any applicable state securities laws or unless
an
exemption from such registration is, in the opinion of counsel, available;
(iii)
the GPS-Connecticut Stock and the GPS-California Stock will be acquired by
Purchaser for purposes other than “distribution” as that term is used in Section
2(11) of the Act, and (iv) Purchaser will execute, if Sellers so request, an
appropriate letter affirming that its intention with respect to the proposed
acquisition of the GPS-Connecticut Stock and the GPS-California Stock is that
such acquisition be for investment purposes only and not with a view toward
resale or distribution thereof.
7
4.12 Preparation
and Filing of SEC Documents.
If and
whenever, as a result of the transaction contemplated hereunder, Purchaser
is
under an obligation to provide financial information to, or prepare a filing
of
any kind with, the United States Securities and Exchange Commission (the “SEC”),
the Sellers shall assist Purchaser in preparing any audited financial statements
required by the SEC for this purpose. The cost of preparing any such financial
statements shall be borne by Purchaser.
4.13 Further
Assurances.
From
time to time at or after the Closing, upon request, the parties each will
execute and deliver such other instruments of conveyance, assignment, transfer
and delivery and take such actions as the other party reasonably may request
in
order to consummate, complete and carry out the purposes of the transactions
contemplated hereby.
4.14 Tag
Along Rights.
4.14.1
In
the event that one or more holders (the "Tag Along Holders") of common stock
of
Purchaser (including any successor thereof) shall transfer (or agree to
transfer) more than fifty percent (50%) of the outstanding common stock of
Purchaser, then Purchaser shall use commercially reasonable efforts to include
the Sellers and the Other Stockholders (including any assignees or successors
thereof), to the extent that they then hold shares of common stock of Purchaser,
in said sale upon the same terms and subject to the same conditions as apply
to
the Tag Along Holders.
4.14.2
In
addition, in the event Purchaser proposes any underwritten secondary offering
of
its common stock, Purchaser will give prior written notice thereof to each
Seller and the Other Stockholders offering them the opportunity to include
in
any such offering such number of shares as they may request in writing not
later
than ten (10) days before such filing. Upon receipt by Purchaser of any such
request, Purchaser shall use reasonable efforts to cause the managing
underwriter to include such shares in such secondary offering.
4.15 Access
to Corporate Records.
From
and after the Closing, Purchaser shall allow Griffin, Canino, and their
respective authorized agents, access to the Corporations’ books and records in
the event that the same is necessary in connection with any tax audits or other
indemnifiable claims, which audit or indemnifiable claim arose with respect
to
the Sellers’ period of ownership of the GPS-Connecticut Stock and the
GPS-California Stock prior to the Closing Date.
SECTION
5
ESCROW
PROVISIONS
5.1 Each
of
the parties to this Agreement recognizes and acknowledges that the Escrow Agent
is serving solely as an accommodation to the parties, and each of them agrees
that the Escrow Agent shall not be liable to any of the parties for any error
of
judgment, mistake, or act or omission hereunder, or any matter or thing arising
out of its conduct hereunder, except for the Escrow Agent's willful misfeasance
or gross negligence. The Escrow Agent shall be entitled to rely upon the
authenticity of any signature, and the genuineness and/or validity of any
writing received by the Escrow Agent pursuant to or otherwise relating to this
Agreement.
8
5.2 The
Escrow Agent is acting, and may continue to act, as counsel to Purchaser in
connection with the transactions contemplated by this Agreement.
5.3 Each
of
the parties jointly and severally agrees to indemnify and hold harmless the
Escrow Agent from and against any and all costs, claims, damages, or expenses
(including, without limitation, reasonable attorneys’ fees and disbursements,
whether paid to retained attorneys or representing the fair value of legal
services rendered to itself) that may be incurred by the Escrow Agent acting
under this Agreement (including, without limitation, any costs incurred by
the
Escrow Agent pursuant to Section 5.4 hereof) or to which the Escrow Agent may
be
put in connection with the Escrow Agent acting under this Agreement, except
for
costs, claims, or damages arising out of the Escrow Agent’s willful misfeasance
or gross negligence.
5.4 In
the
event that: (a) the Escrow Agent shall receive contrary instructions from the
parties; or (b) any dispute shall arise as to any matter arising under this
Agreement; or (c) there shall be any uncertainty as to the meaning or
applicability of any of the provisions hereof, or the Escrow Agent’s duties,
rights or responsibilities hereunder, or any written instructions received
by
the Escrow Agent pursuant hereto, the Escrow Agent shall not itself determine
such dispute, controversy or uncertainty, but shall either (i) continue to
hold
the documents and other items placed with it pursuant to the terms of this
Agreement until otherwise directed in writing by joint instruction of the
parties, or by a final non-appealable court order, or (ii) at its option, at
any
time that such dispute, controversy or uncertainty continues, deposit said
documents and other items into any court having appropriate jurisdiction.
5.5 Upon
the
delivery or disposition of the documents and other items placed with it in
accordance with the provisions of this Agreement, the Escrow Agent shall
thereupon be relieved of, and discharged and released from, any and all
liability hereunder and with respect to said documents and other items and
Escrow Agent’s obligations under this Agreement shall be deemed to have been
completed.
[Signatures
on following pages]
9
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and
year first above written.
| ATTEST: | ARGAN, INC. | ||
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| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Chairman and CEO
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| ATTEST: |
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GEMMA POWER, INC. | |
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | ||
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇., President
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| ATTEST: | GEMMA
POWER
SYSTEMS
CALIFORNIA,
INC.
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | ||
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇., President
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| WITNESS: | |||
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | ||
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇.
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| WITNESS: | |||
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
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▇▇▇▇
▇. ▇▇▇▇▇▇
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10
Escrow
Agent hereby executes the foregoing Agreement for the sole purpose of agreeing
to the provisions of Section 3.2 thereof, subject to the provisions of Section
5
thereof.
ESCROW
AGENT:
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▇▇▇▇▇▇
LAW ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & SALANS, P.C.
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| By: | /s/ ▇▇▇▇▇ ▇. Law | |||
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▇▇▇▇▇
▇. Law, Vice President
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11