Exhibit 10.56
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STOCK PURCHASE AGREEMENT
Between
TREZAC INTERNATIONAL CORPORATION
(a Texas Corporation)
And
MILLAGRO SRL.
(a Moldovan Corporation)
Dated as of January 22nd 2003
EFFECTIVE DATE: 29th of May, 2003
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STOCK PURCHASE AGREEMENT (this "Agreement"), originally dated January
22nd 2003, and revised on May 29, 2003 between Millagro SRL of, MD-
3003, Soroca, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. Republic of Moldova (a
Moldova corporation) and the shareholders of Millagro SRL. (collectively
referred to as "Seller"), and Trezac International Corporation., (a Texas
Corporation), at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Purchaser"
or "Company").
WHEREAS, subject to the terms and conditions set forth in this Agreement
in accordance with Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), the Seller desires to sell to and the Purchaser desires to
purchase from the Seller 100% of the ownership interest of Millagro SRL (the
"Common Stock"), as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Seller and the Purchaser agree
as follows:
ARTICLE I
PURCHASE AND SALE
1. The Closing
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(a) The Closing. Subject to the terms and conditions set forth in
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this Agreement, the Seller shall sell to the Purchaser One Hundred Percent of
the ownership interests (sometimes referred to as the "Securities") of Millagro
SRL (a Moldovan Limited liability Corp.) The Purchaser shall purchase from the
Seller One Hundred Percent of the ownership interests of Millagro SRL in
exchange for approximately 103,125,000 shares of Trezac Common stock (the
"Purchase Price") priced at the mean average closing price of the Five day
pre "effective date" and five day post effective date as follows;
Date Close
5/22/03 $0.12
5/22/03 $0.11
5/23/03 $0.085
5/27/03 $0.07
5/28/03 $0.08
5/29/03 $0.07
5/30/03 $0.07
6/02/03 $0.065
6/03/03 $0.07
6/04/03 $0.065
6/05/03 $0.065
= $0.870
$0.87 divided by 11 = $ 0.08 x 103,125,000 = $8,250,000
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for a total valuation/cost of $8,250,000 (Eight Million, Two Hundred and
Fifty Thousand US dollars) in Rule 144 restricted shares of common stock of
TREZ common stock ("The Investment Shares").
(b) The Closing of the purchase and sale of the Ownership Interests
(the "Closing") shall take place at the Dedeman Hotel, Chisinau, Republic of
Moldova.
(c ) The Closing Date shall occur on 29th May 2003. All due
diligence files and materials in a format satisfactory to Purchaser, as well as
satisfaction of all contingencies and the requirements listed in paragraphs 1.1
(a) (b) (c) (d) and 1, 2, 3 below.
1. On or before the Closing Date, the parties shall deliver or
shall cause to be delivered the following:
(a) One Hundred Percent ownership interest of Millagro
SRL which shall be effected by this Stock Purchase
Agreement upon the Closing and all of the conditions of
this Agreement.
(b) Purchaser will deliver to the Sellers
103,125,000 common shares of TREZ stock restricted
under rule 144.
2. All remaining unissued ownership interests, stock, warrants,
options, scrip or preferred stock of Millagro SRL shall be
cancelled forthwith.
(e) On or before the Closing Date, in addition to providing
due diligence files satisfactory to the Seller, the Purchaser
shall provide legally sufficient documents to Millagro
evidencing that Trezac Corp. has held a shareholder's meeting
approving and executing the following:
(1) The purchase of 100% of the ownership
interests of Millagro SRL by Trezac Corp. and the
issuance of the Purchase Price and Investment
shares of 144 restricted common stock to be made
payable to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ (95% of shares) and
▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ (5% of shares).
(2) Approved a resolution to indemnify ▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ personally from any
liabilities of Trezac Corp with the noted
exception of all existing debt, and debt
securities assumed in this transaction if any.
(3) Authorized and provided all necessary
documents to evidence a name change of
Trezac Corporation (a Texas Corporation)
to Trezac International Corporation
( a Texas Corp) executed name
change with NASDAQ , executed a symbol change
to TREZ and executed a CUSIP change.
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(4) Obtained a resignation of all the current
board of directors except ▇▇▇▇ ▇▇▇▇▇▇.
o ▇▇▇▇ ▇▇▇▇▇▇ remains Chairman and CEO &
President.
The sole officer and director, ▇▇▇▇ ▇▇▇▇▇▇, will
hold a Board Meeting in Chisinau, Moldova on
June 7, 2003 and evidence minutes to propose the
following members to the Board of Directors:
1.▇▇▇▇▇ ▇▇▇▇▇▇▇ as Director and COO
2.▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. as Director and CFO
3.Ruslan Romanciuc as Director
4.Constantin Volnitchi as Director
(5) Documentation proving the approval of the
voting majority of shareholders legally necessary
to approve this transaction has been obtained.
(6) Opinion letter acceptable to the Seller from
Counsel of the Purchaser that this transaction is
authorized, legal and valid. (Attached)
(7) A Form 8K is hereby attached and is to be
filed with the SEC to reflect this transaction to
be filed by counsel for the Purchaser
approximately 10 days after the Closing.
(Attached)
(8) Upon satisfaction of (iv) below, Trezac will
approve a resolution indemnifying and holding
harmless Millagro SRL , ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇ from legal action brought by any third
party as may be reasonably requested by Seller,
with the noted exceptions of the following
parties; Feingold and Kam , MMI LLC, No
indemnification protects Millagro SRL, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ from any form of
litigation from these parties.
(9) Negotiating a stock purchase agreement wherein
up to One Million, Eight hundred thousand U.S.
dollars or better will be raised on a "best
efforts" basis into Trezac International
Corp within 45 days of the Closing of this
Agreement.
Upon 45 days post the effective date, the company
will raise up to $1.8m. If the Company has not
raised the above capital in the specified time,
Millagro will be entitled to use any and all TREZ
assets to raise all or the difference in a best
efforts offering.
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(10) 13D's to be filed with the SEC filings by
appropriate shareholders reflecting their common
stock positions.
(f) On or before Closing, the Seller shall provide the
necessary documents to prove that Seller has spun itself off
entirely from Emerging Markets Corporation and that no assets
or liabilities, equity or debt of any kind remain encumbered
between Emerging Markets Corporation and Millagro SRL.
1.2 Defined Terms. Intentionally Omitted.
1.3 Promissory Notes
Upon the Effective date TREZ will assume the following liabilities:
1.3.1 ▇▇▇▇▇▇ ▇▇▇▇ $10,000 accruing at 8%
1.3.2 MMI LLC $15,000 accruing at 8%
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Seller. The Seller hereby
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makes the following representations and warranties to the Purchasers:
(a) Organization and Qualification. Such Seller is an entity
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duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite corporate or partnership
power and authority to enter into and to consummate the transactions
contemplated by the documents related to this transaction (the "Transaction
Documents") and otherwise to carry out its obligations there under. The
purchase by such Seller of the Securities hereunder has been duly authorized by
all necessary action on the part of such Seller. This Agreement has been duly
executed by such Seller, and when delivered by such Seller in accordance with
the terms hereof, will constitute the valid and legally binding obligation of
such Seller, enforceable against it in accordance with its terms.
(b) Authorization; Enforcement. The Seller has the requisite
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power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents and otherwise to carry out
its obligations there under. The execution and delivery of each of the
Transaction Documents by the Seller and the consummation by it of the
transactions contemplated thereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the
Company. Each of the Transaction Documents has been duly executed by the
Seller and, when delivered in accordance with the terms hereof, will constitute
the valid and binding obligation of the Seller enforceable against the Seller
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in accordance with its terms. Neither the Seller nor any related entity is in
violation of any of the provisions of its respective certificate or articles of
incorporation, by-laws or other organizational or charter documents.
(c) Capitalization. The number of authorized, issued and
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outstanding capital stock of the Seller is accurately set forth in the filings
of the Seller and all of said stock is being transferred to Purchaser via this
transaction, or, if it is not, then the Seller has attached hereto as Exhibit A
the accurate information. Any remaining stock, warrants, options, scrip or
derivatives of any kind, or preferred shares unissued will be cancelled and or
returned to the Company's treasury upon the closing of this agreement.
As disclosed in Exhibit A, the Seller owns 100% of the ownership
interests of Millagro SRL. No shares of Common Stock are entitled to preemptive
or similar rights, nor is any holder of the securities of the Seller or any
Subsidiary entitled to preemptive or similar rights arising out of any
agreement or understanding with the Seller or any Subsidiary by virtue of any
of the Transaction Documents.
As disclosed in Exhibit A, there are no outstanding options,
warrants, script rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into
or exchangeable for, or giving any Person any right to subscribe for or
acquire, any shares of Common Stock, or contracts, commitments, understandings,
or arrangements by which the Company, the Seller or any Subsidiary is or may
become bound to issue additional shares of Common Stock, or securities or
rights convertible or exchangeable into shares of Common Stock. This Agreement
will not obligate the Seller to issue shares of Common Stock or other
securities to any Person other than the Purchasers and will not result in a
right of any holder of Seller`s securities to adjust the exercise or conversion
or reset price under such securities.
(d) Issuance of this Agreement. The Seller will have (and
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will, at all times while this Agreement is outstanding, maintain) an adequate
reserve of duly authorized shares of Common Stock, reserved for issuance to the
Purchaser, to enable it to perform its obligations under this Agreement.
(e) No Conflicts. The execution, delivery and performance of the
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Transaction Documents by the Seller and the consummation by the Seller of the
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of the Seller's or any Subsidiary's certificate or
articles of incorporation, bylaws or other charter documents (each as amended
through the date hereof), or (ii) subject to obtaining the Required Approvals
(as defined below), conflict with, or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a company or Subsidiary debt or otherwise)
or other understanding to which the Seller or any Subsidiary is a party or by
which any property or asset of the Seller or any Subsidiary is bound or
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affected, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Seller or a Subsidiary is subject (including federal and
state securities laws and regulations), or by which any property or asset of
the Seller or a Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), as could not, individually or in the aggregate, have or
result in a Material Adverse Effect. The business of the Seller is not being
conducted in violation of any law, ordinance or regulation of any governmental
authority, except for violations which, individually or in the aggregate, could
not have or result in a Material Adverse Effect.
(f) Intentionally Omitted
(f) No Default or Violation. Neither the Seller, Company nor any
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Subsidiary (i) is in default under or in violation of (and no event has
occurred which has not been waived which, with notice or lapse of time or both,
would result in a default by the Seller, Company or any Subsidiary under), nor
has the Seller, Company or any Subsidiary received notice of a claim that it is
in default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound, (ii) is in violation of any
judgment or order of any court, arbitrator or governmental body, or (iii) is in
violation of any statute, rule or regulation of any governmental authority, in
each case of clauses (i), (ii) or (iii) above, except as could not individually
or in the aggregate, have or result in a Material Adverse Effect.
(g) Private Offering. Assuming the accuracy of the
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representations and warranties of the Purchaser set forth in Sections 2.2(b)-
(g), the offer, issuance and sale of the Securities to the Purchaser as
contemplated hereby are exempt from the registration requirements of the
Securities Act. Neither the Seller, Company nor any Person acting on its
behalf has taken or is contemplating taking any action which could subject the
offering, issuance or sale of the Securities to the registration requirements
of the Securities Act including soliciting any offer to buy or sell the
Securities by means of any form of general solicitation or advertising.
(l) Intentionally omitted
(h) Exclusivity. The Seller shall not issue or sell securities
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to any Person other than the Purchasers without the specific prior written
consent of the Purchasers.
(i) Seniority. No indebtedness of the Seller is senior to the
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Securities in right of payment, whether with respect to interest or upon
liquidation or dissolution, or otherwise.
(p-s) Intentionally omitted
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(j) Title. The Seller and the Subsidiaries have good and
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marketable title in fee simple to all real property owned by them which is
material to the business of the Seller and its Subsidiaries and good and
marketable title in all personal property owned by them which is material to
the business of the Seller and its Subsidiaries, in each case free and clear of
all Liens, except for Liens as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of such
property by the Seller and its Subsidiaries. Any real property and facilities
held under lease by the Seller and its Subsidiaries are held by them under
valid, subsisting and enforceable leases of which the Seller and its
Subsidiaries are in compliance and do not interfere with the use made and
proposed to be made of such property and buildings by the Seller and its
Subsidiaries.
(v) Labor Relations. No material labor problem exists or, to the
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knowledge of the Seller, is imminent with respect to any of the employees of
the Seller.
(w) Intentionally omitted
(x) Solvency. Based on the financial condition of the Seller as
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of the Closing Date, (i) the Seller's fair saleable value of its assets exceeds
the amount that will be required to be paid on or in respect of the Seller's
existing debts and other liabilities (including known contingent liabilities)
as they mature; (ii) the Seller's assets do not constitute unreasonably small
capital to carry on its business for the current fiscal year as now conducted
and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Seller,
and project capital requirements and capital availability thereof; and (iii)
the current cash flow of the Seller, together with the proceeds the Seller
would receive, were it to liquidate all of its assets, after taking into
account all anticipated uses of the cash, would be sufficient to pay all
amounts on or in respect of its debt when such amounts are required to be paid.
The Seller does not intend to incur debts beyond its ability to pay such debts
as they mature (taking into account the timing and amounts of cash to be
payable on or in respect of its debt).
2.2 Representations and Warranties of the Purchasers. Each Purchaser
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hereby for itself and for no other Purchaser represents and warrants to the
Seller as follows:
(a) Organization; Authority. The Purchaser is an individual or a
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corporation duly incorporated, validly existing and in good standing under the
laws of its state of incorporation with the requisite corporate power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. The Purchaser is duly qualified to do business and is
in good standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by it makes
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such qualification necessary, except where the failure to be so qualified or in
good standing, as the case may be, could not, individually or in the aggregate,
(x) adversely affect the legality, validity or enforceability of the Securities
or any of this Agreement or documents required by this Agreement (collectively,
the "Transaction Documents"), (y) have or result in a material adverse effect
on the results of operations, assets, prospects, or condition (financial or
otherwise) of the public company whose stock is being purchased under this
Agreement (the "Company"), or (z) adversely impair the Purchaser's ability to
perform fully on a timely basis its obligations under any of the Transaction
Documents (any of (x), (y) or (z), a "Material Adverse Effect").
(b) Intent. Such Purchaser is acquiring the Securities as
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principal for its own account and not with a view to act as a statutory
underwriter, without prejudice, however, to such Purchaser's right, to sell or
otherwise dispose of all or any part of such Securities. Nothing contained
herein shall be deemed a representation or warranty by such Purchaser to hold
the Securities for any period of time. Such Purchaser is acquiring the
Securities hereunder in the ordinary course of its business. Such Purchaser
does not have any agreement or understanding, directly or indirectly, with any
Person to distribute the Securities.
(c) Purchaser Status. At the time such Purchaser was offered the
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Securities, it was, and at the date hereof it is an "accredited investor" as
defined in Rule 501(a) under the Securities Act.
(d) Experience of such Purchaser. Such Purchaser, either alone
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or together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Securities, and has
so evaluated the merits and risks of such investment.
(e) Ability of such Purchaser to Bear Risk of Investment. Such
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Purchaser is able to bear the economic risk of an investment in the Securities
and, at the present time, is able to afford a complete loss of such investment.
(f) Access to Information. Such Purchaser acknowledges that it
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has reviewed Disclosure Materials and has been afforded (i) the opportunity to
ask such questions as it has deemed necessary of, and to receive answers from,
representatives of the Seller concerning the terms and conditions of the
offering of the Securities and the merits and risks of investing in the
Securities; (ii) access to information about the Seller and the Seller's
financial condition, results of operations, business, properties, management
and prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information which the Seller possesses or
can acquire without unreasonable effort or expense that is necessary to make an
informed investment decision with respect to the investment and to verify the
accuracy and completeness of the information contained in the Disclosure
Materials.
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(g) General Solicitation. Such Purchaser is not purchasing the
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Securities as a result of or subsequent to any advertisement, article, notice
or other communication regarding the Securities published in any newspaper,
magazine or similar media or broadcast over television or radio or presented at
any seminar or any other general solicitation or general advertisement.
(h) Reliance. Such Purchaser understands and acknowledges that
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(i) the Securities are being offered and sold to it without registration under
the Securities Act in a private placement that is exempt from the registration
provisions of the Securities Act and (ii) the availability of such exemption,
depends in part on, and the Company will rely upon the accuracy and
truthfulness of, the foregoing representations and such Purchaser hereby
consents to such reliance.
(i) SEC Documents; Financial Statements. The Purchaser has filed
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all reports required to be filed by it under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including, without limitation, all
filings required pursuant to Sections 13(a) and 15(d) thereof, for the two
years preceding the date hereof (or such shorter period as the Purchaser was
required by law to file such material) (the foregoing materials being
collectively referred to herein as the "SEC Documents" and, together with the
Schedules to this Agreement, the "Disclosure Materials") on a timely basis or
has received a valid extension of such time of filing and has filed any such
SEC Documents prior to the expiration of any such extension. As of their
respective dates, the SEC Documents complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated there under, and none of the SEC
Documents, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. All material agreements to which the Purchaser
is a party or to which the property or assets of the Purchaser are subject have
been filed as exhibits to the SEC Documents as required under the Exchange Act.
The financial statements of the Purchaser included in the SEC Documents comply
in all material respects with applicable accounting requirements and the rules
and regulations of the Commission with respect thereto as in effect at the time
of filing. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved United States of America Generally Accepted Accounting
Principles ("GAAP"), except as may be otherwise specified in such financial
statements or the notes thereto, and fairly present in all material respects
the financial position of the Purchaser and its consolidated subsidiaries as of
and for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments. Since the date of this Agreement,
except as specifically disclosed in the SEC Documents,
(a) there has been no event, occurrence or development that has or
that could result in a Material Adverse Effect,
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(b) the Purchaser has not incurred any liabilities (contingent or
otherwise) other than (x) liabilities incurred in the ordinary course of
business consistent with past practice and (y) liabilities not required to be
reflected in the Purchaser's financial statements pursuant to GAAP or required
to be disclosed in filings made with the Commission,
(c) the Purchaser has not altered its method of accounting or the
identity of its auditors and,
(d) the Purchaser has not declared or made any payment or
distribution of cash or other property to its stockholders or officers or
directors (other than in compliance with existing Company stock option plans)
with respect to its capital stock, or purchased, redeemed (or made any
agreements to purchase or redeem) any shares of its capital stock.
(j) Listing and Maintenance Requirements. The Purchaser is, and
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has no reason to believe that it will not in the foreseeable future continue to
be, in compliance with all SEC 12g status listing and maintenance
requirements.
(k) Patents and Trademarks. The Purchaser and its Subsidiaries
----------------------
have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, copyrights, licenses and
rights which are necessary or material for use in connection with their
respective businesses as described in the SEC Documents and which the failure
to so have would have a Material Adverse Effect (collectively, the
"Intellectual Property Rights"). Neither the Purchaser nor any Subsidiary has
received a written notice that the Intellectual Property Rights used by the
Purchaser or its Subsidiaries violates or infringes upon the rights of any
Person. To the best knowledge of the Purchaser, all such Intellectual Property
Rights are enforceable and there is no existing infringement by another Person
of any of the Intellectual Property Rights.
(l) Registration Rights; Rights of Participation A revised SB2
filing will be filed with the SEC post the acquisition of Millagro SRL and all
forthcoming fiscal 2002 audit issues are past.
(m) Regulatory Permits. The Purchaser and its Subsidiaries
------------------
possess all certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses as described in its SEC Documents, except where the
failure to possess such permits could not, individually or in the aggregate,
have or result in a Material Adverse Effect ("Material Permits"), and neither
the Company nor any such Subsidiary has received any notice of proceedings
relating to the revocation or modification of any Material Permit.
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(n) No Default or Violation. Neither the Seller, Company nor any
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Subsidiary (i) is in default under or in violation of (and no event has
occurred which has not been waived which, with notice or lapse of time or both,
would result in a default by the Seller, Company or any Subsidiary under), nor
has the Seller, Company or any Subsidiary received notice of a claim that it is
in default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound, (ii) is in violation of any
judgment or order of any court, arbitrator or governmental body, or (iii) is in
violation of any statute, rule or regulation of any governmental authority, in
each case of clauses (i), (ii) or (iii) above, except as could not individually
or in the aggregate, have or result in a Material Adverse Effect.
(o) Capitalization. The number of authorized, issued and
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outstanding ownership interests of the Millagro SRL is accurately set forth in
the as disclosed in Exhibit A.
As disclosed in Exhibit A, there are no outstanding options,
warrants, script rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into
or exchangeable for, or giving any Person any right to subscribe for or
acquire, any shares of common stock, ownership interests or contracts,
commitments, understandings, or arrangements by which the Purchaser is, or may
become bound to issue additional shares of common stock, or securities or
rights convertible or exchangeable into shares of common stock. This
Agreement will not obligate the Purchaser to issue shares of Common Stock or
other securities to any Person other than the Sellers (except for those
securities contemplated by the raising of the one million dollars referenced in
Paragraph 1.1(a)(iii)(b) and will not result in a right of any holder of
Purchaser`s securities to adjust the exercise or conversion or reset price
under such securities.
(p) No Conflicts. The execution, delivery and performance of the
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Transaction Documents by the Purchaser and the consummation by the Purchaser
of the transactions contemplated thereby do not and will not (i) conflict with
or violate any provision of the Purchaser or any Subsidiary's certificate or
articles of incorporation, bylaws or other charter documents (each as amended
through the date hereof), or (ii) subject to obtaining the Required Approvals
(as defined below), conflict with, or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a company or Subsidiary debt or otherwise)
or other understanding to which the Purchaser or any Subsidiary is a party or
by which any property or asset of the Purchaser or any Subsidiary is bound or
affected, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Purchaser or a Subsidiary is
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subject (including federal and state securities laws and regulations),
or by which any property or asset of the Purchaser or a Subsidiary
is bound or affected; except in the case of each of clauses (ii) and
(iii), as could not, individually or in the aggregate, have or result in a
Material Adverse Effect. The business of the Purchaser is not being conducted
in violation of any law, ordinance or regulation of any governmental authority,
except for violations which, individually or in the aggregate, could not have
or result in a Material Adverse Effect.
(q) Filings, Consents and Approvals. Neither the Purchaser, nor
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any Subsidiary is required to obtain any consent, waiver, authorization or
order of, give any notice to, or make any filing or registration with, any
court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the
Purchaser of the Transaction Documents, other than (i) the filings required
pursuant to Section 3.10, (ii) applicable Blue Sky filings, and (iii) in all
other cases where the failure to obtain such consent, waiver, authorization or
order, or to give such notice or make such filing or registration could not
have or result in, individually or in the aggregate, a Material Adverse Effect
(the items described in clauses (i)-(iii) are collectively, the "Required
Approvals").
(r) Litigation; Proceedings. There is no action, suit, inquiry,
-----------------------
notice of violation, proceeding or investigation pending or, to the knowledge
of the Purchaser, threatened against or affecting the Purchaser or any of its
Subsidiaries or any of their respective properties before or by any court,
arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an "Action") which
(i) adversely affects or challenges the legality, validity or enforceability of
any of the Transaction Documents or the Securities or (ii) could, if there were
an unfavorable decision, individually or in the aggregate, have or result in a
Material Adverse Effect. Neither the Purchaser, nor any Subsidiary, nor any
director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws or
a claim of breach of fiduciary duty. The Purchaser does not have pending
before the Commission any request for confidential treatment of information and
the Purchaser has no knowledge of any expected such request that would be made
prior to the Closing Date. There has not been, and to the best of the
Purchaser's knowledge there is not pending or contemplated, any investigation
by the Commission involving the Purchaser or any current or former director or
officer of the Purchaser.
(s) Investment Company. The Purchaser is not an Affiliate (as
------------------
defined in Rule 405 under the Securities Act) of, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
13
(t) Certain Fees. Fees or commissions will be payable by the
Purchaser to the following financial advisors/
consultants with respect to the transactions
contemplated by this Agreement.
▇▇▇▇ ▇▇▇▇▇▇ 8,206,900 5.778%
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 3,000,000 2.112%
▇▇▇▇▇ ▇▇▇▇▇▇▇ 3,000,000 2.112%
CONSTANTIN VOLNITCHI 500,000 0.352%
RUSLAN ROMANCIUC 3,000,000 2,112%
MMIM 1,540,244 1.084%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,500,000 1.056%
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 8,206,900 5.778%
BRENTWOOD CAPITAL LTDA 1,540,244 1.084%
The Sellers shall have no obligation with respect to any fees or
with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section that may be due in
connection with the transactions contemplated by this Agreement.
The Company shall indemnify and hold harmless the Sellers, their
employees, officers, directors, agents, and partners, and their
respective Affiliates, from and against any and all claims, losses,
damages, costs(including the costs of preparation and attorney's
fees) and expenses suffered in respect of any such claimed or
existing fees, and expenses are incurred).
(x) Solvency. Based on the financial condition of the Company as
--------
of the Closing Date, (i) the Company's fair saleable value of its
assets exceeds the amount that will be required to be paid on or in
respect of the Company's existing debts and other liabilities
(including known contingent liabilities) as they mature; (ii) the
Company's assets do not constitute unreasonably small capital to
carry on its business for the current fiscal year as now conducted
and as proposed to be conducted including its capital needs taking
into account the particular capital requirements of the business
conducted by the Company, and project capital requirements and
capital availability thereof; and (iii) the current cash flow of
the Company, together with the proceeds the Company would receive,
14
were it to liquidate all of its assets, after taking into account
all anticipated uses of the cash, would be sufficient to pay all
amounts on or in respect of its debt when such amounts are required
to be paid. The Company does not intend to incur debts beyond its
ability to pay such debts as they mature (taking into account the
timing and amounts of cash to be payable on or in respect of its
debt).
The Seller and Purchaser acknowledge and agree that no party makes
or has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set
forth in this Section 2.
ARTICLE III
OTHER AGREEMENTS OF THE PARTIES
3.1 Transfer Restrictions. (a) Securities which have been transferred
---------------------
pursuant to this Agreement and which contain a restrictive legend
may only be disposed of pursuant to an effective registration
statement under the Securities Act, to the Company or pursuant to
an available exemption from or in a transaction not subject to the
registration requirements of the Securities Act, and in compliance
with any applicable federal and state securities laws. In
connection with any transfer of Securities other than pursuant to
an effective registration statement or to the Company, except as
otherwise set forth herein, the Company may require the transferor
thereof to provide to the Company an opinion of counsel selected by
the transferor, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred
securities under the Securities Act. Notwithstanding the
foregoing, the Company, without requiring a legal opinion as
described in the immediately preceding sentence, hereby consents to
and agrees to register on the books of the Company and with any
transfer agent for the securities of the Company any transfer of
Securities by a Purchaser to an Affiliate of such Purchaser or to
one or more funds or managed accounts under common management with
such Purchaser, and any transfer among any such Affiliates or one
or more funds or managed accounts, provided that the transferee
certifies to the Company that it is an "accredited investor" as
defined in Rule 501(a) under the Securities Act and that it is
acquiring the Securities solely for investment purposes (subject to
the qualifications hereof). Any such transferee shall agree in
writing to be bound by the terms of this Agreement and shall have
the rights of a Purchaser under this Agreement and the Registration
Rights Agreement.
15
(b) The Purchasers agree to the imprinting on any non-free
trading stock that has been purchased, so long as is required by
this Section 3.1(b), of the following legend on the Securities:
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE
SECURITIES ARE [CONVERTIBLE] [EXERCISABLE] HAVE BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AS EVIDENCED BY
A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH
EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLYACCEPTABLE TO THE
COMPANY.
The Shares shall not contain the legend set forth above nor any
other legend if the issuance of the Shares occurs at any time ,if
the Shares received are free trading, or a Shares Registration
Statement is effective under the Securities Act or the holder of
any such security is relying on Rule 144 promulgated under the
Securities Act ("Rule 144") in connection with the resale of such
Shares or in the event there is not an effective Shares
Registration Statement at such time and Rule 144 is not then
available if, in the opinion of counsel to the Company, such legend
is not required under applicable requirements of the Securities Act
(including judicial interpretations and pronouncements issued by
the staff of the Commission).
The Seller shall permit Purchasers Counsel to issue the legal
opinion included in the Transfer Agent Instructions to the
Company's transfer agent on the day that the Shares Registration
Statement is declared effective by the Commission (the "Effective
Date").
The Seller agrees that in the event any Shares are issued with a
legend in accordance with this Section 3.1(b), it will, within
three (3) Trading Days after request therefore by a Purchaser,
provide such Purchaser with a certificate or certificates
representing such Shares, free from such legend at such time as
such legend would not have been required under this Section 3.1(b)
had such issuance occurred on the date of such request. The
Company may not make any notation on its records or give
instructions to any transfer agent of the Company which enlarge the
restrictions of transfer set forth in this Section.
16
3.2 Acknowledgment of Dilution. The Purchaser acknowledges that the
--------------------------
issuance of the Shares, will result in dilution of the outstanding
shares of common stock, which dilution may be substantial under
certain market conditions. The Seller further acknowledges that
its obligation to issue Shares in accordance with this Agreement,
is unconditional and absolute, subject to the limitations set forth
herein, regardless of the effect of any such dilution.
3.3 Furnishing of Information. As long as the Purchasers own
-------------------------
Securities, the Seller agrees to help the Company to timely file
(or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to Section 13(a) or 15(d) of
the Exchange Act, to the extent the Seller's assistance is needed.
As long as the Purchasers own Securities, if the Company is not
required to file reports pursuant to such sections, it will prepare
and furnish to the Purchasers and make publicly available in
accordance with Rule 144(c) promulgated under the Securities Act
such information as is required for the Purchasers to sell the
Securities under Rule 144 promulgated under the Securities Act.
The Seller further covenants that it will take such further action
as any holder of Securities may reasonably request, all to the
extent required from time to time to enable such Person to sell
Underlying Shares without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144
promulgated under the Securities Act, including causing its
attorneys to render and deliver any legal opinion required in order
to permit a Purchaser to receive Shares free of all restrictive
legends and to subsequently sell Shares under Rule 144 upon receipt
of a notice of an intention to sell or other form of notice having
a similar effect. Upon the request of any such Person, the Company
shall deliver to such Person a written certification of a duly
authorized officer as to whether it has complied with such
requirements.
3.4 Integration. The Seller shall not, and shall use its best efforts
------------
to ensure that, no Affiliate of the Company shall, sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of
any security (as defined in Section 2 of the Securities Act) that
would be integrated with the offer or sale of the Securities in a
manner that would require the registration under the Securities Act
of the sale of the Securities to the Purchasers.
17
3.5 Reservation and Listing of Underlying Shares. (a) The Purchaser
--------------------------------------------
shall make sure that the Company shall (i) in the time and manner
required by any national securities exchange, market, trading or
quotation facility on which the common stock is then traded,
prepare and file with such national securities exchange, market,
trading or quotation facility on which the common stock is then
traded an additional shares listing application covering a number
of shares of common stock which is not less than the Shares, (ii)
take all steps necessary to cause such shares of common stock to
be approved for listing on any such national securities exchange,
market or trading or quotation facility on which the common stock
is then listed as soon as possible thereafter, and (iii) provide to
the Purchasers evidence of such listing, and the Company shall
maintain the listing of its common stock thereon.
(b) The Seller shall make sure that the Company shall maintain a
reserve of shares of common stock for issuance, respectively in
accordance with this Agreement, in such amount as may be required
to fulfill its obligations in full under the Transaction Documents.
3.6 Certain Securities Laws Disclosures; Publicity. The Purchaser
----------------------------------------------
shall make sure that, if legally required, the Company shall: (i)
on the Closing Date, issue a press release acceptable to the
Purchasers disclosing the transactions contemplated hereby, (ii)
file with the Commission a Report on Form 8-K disclosing the
transactions contemplated hereby within ten Business Days after the
Closing Date, and (iii) timely file with the Commission a Form D
promulgated under the Securities Act.
3.7 Non-Disclosure of Non-Public Information.
----------------------------------------
(a) The Purchaser represents that it does not disseminate non-
public information to any investors who purchase stock in the
Company in a public offering, to money managers or to securities
analysts. Notwithstanding the foregoing or anything herein to
the contrary, the Purchaser will immediately notify the Seller
of any event or the existence of any circumstance (without any
obligation to disclose the specific event or circumstance) of
which it becomes aware, (whether or not requested of the Company
specifically or generally during the course of due diligence by
such persons or entities), which, if not disclosed in the
prospectus included in the Registration Statement would cause
such prospectus to include a material misstatement or to omit
a material fact required to be stated therein in order to make
the statements, therein in light of the circumstances in which
they were made, not misleading.
18
3.8 Transfer of Intellectual Property Rights. Except in connection
----------------------------------------
with the sale of all or substantially all of the assets of the
Company or licensing arrangements in the ordinary course of the
Company's business, the Purchaser shall make sure that the Company
shall not transfer, sell or otherwise dispose of any Intellectual
Property Rights, or allow any of the Intellectual Property Rights
to become subject to any liens, or fail to renew such Intellectual
Property Rights (if renewable and it would otherwise lapse if not
renewed), without the prior written consent of the Purchasers.
3.9 Intentionally omitted
3.10 Reimbursement. If any Seller becomes involved in any capacity in
-------------
any action, proceeding or investigation brought by or against any
Person, including stockholders of the Company, solely as a result
of acquiring the Securities under this Agreement, the Purchaser
will reimburse such Seller for its reasonable legal and other
expenses (including, but not limited to, the cost of any
investigation, preparation or travel) incurred in connection
therewith, as such expenses are incurred. The reimbursement
obligations of the Purchaser under this paragraph shall be in
addition to any liability which the Purchaser may otherwise have,
and shall extend upon the same terms and conditions to any
affiliates of the Sellers who are actually named in such action,
proceeding or investigation, and partners, directors, agents,
employees and controlling persons (if any), as the case may be, of
the Sellers and any such affiliate, and shall be binding upon and
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company, the Sellers and any such affiliate
and any such Person. The Purchaser also agrees that neither the
Seller nor any such affiliates, partners, directors, agents,
employees or controlling persons shall have any liability to the
Purchaser, Company or any Person asserting claims on behalf of or
in right of the Company solely as a result of acquiring the
Securities under this Agreement. The Purchaser shall also be
responsible for the payment of all attorneys fees, costs and escrow
agent fees incurred by the Seller with regards to this transaction
and the security deposit stock may be used and sold to pay for the
attorneys fees, costs and escrow agent fees of this transaction via
the attorneys of the Seller/escrow agent selling that number of
shares of the security deposit stock as necessary to pay for the
attorneys fees as they are incurred and the attorney of the
Seller/escrow agent is specifically authorized to do so.
19
3.11 Shareholder Rights Plan. No claim will be made or enforced by the
-----------------------
Purchaser or any other Person that any Seller is an "Acquiring
Person" under any shareholders rights plan or similar plan or
arrangement in effect or hereafter adopted by the Company, or that
any Seller could be deemed to trigger the provisions of any such
plan or arrangement, by virtue of receiving Securities or shares of
Common Stock under the Transaction Documents.
ARTICLE IV
MISCELLANEOUS
4.1 Fees and Expenses. Each party shall be responsible to pay the fees
-----------------
and expenses of its advisers, counsel, accountants, auditors and
other experts and or professionals, if any, and all other expenses
incurred by either party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement.
The Purchaser shall pay all filing fees, edgarizing fees, stamp and
other taxes and duties levied in connection with the issuance and
registration of the Securities, if a registration statement is
necessary.
4.2 Entire Agreement; Amendments. The Transaction Documents, together
----------------------------
with the Exhibits and Schedules thereto, contain the entire
understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral
or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.
4.3 Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the
date of transmission, if such notice or communication is delivered
via facsimile at the facsimile telephone number specified in this
Section prior to 6:30 p.m. (Florida time) on a Business Day, (ii)
the Business Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (Florida
time) on any date and earlier than 11:59 p.m. (Florida time) on
such date, (iii) the Business Day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service, or
(iv) upon actual receipt by the party to whom such notice is
required to be given.
20
4.4 Amendments; Waivers. No provision of this Agreement may be waived
-------------------
or amended except in a written instrument signed, in the case of an
amendment, by the Seller and each of the Purchasers or, in the case
of a waiver, by the party against whom enforcement of any such
waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any
other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder
in any manner impair the exercise of any such right accruing to it
thereafter.
4.5 Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
4.6 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and
permitted assigns. The Purchaser may not assign this Agreement or
any rights or obligations hereunder without the prior written
consent of the Sellers. Except as set forth in Section 3.1(a), the
Sellers may not assign this Agreement or any of the rights or
obligations hereunder without the consent of the Purchaser. This
provision shall not limit any Purchaser's right to transfer
securities or transfer or assign rights under the Registration
Rights Agreement.
4.7 No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and
permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
4.8 Governing Law. All questions concerning the construction,
-------------
validity, enforcement and interpretation of this Agreement shall be
governed by and construed and enforced in accordance with the
internal laws of the State of Texas, without regard to the
principles of conflicts of law thereof. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in Texas for the adjudication of any
dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), 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 improper. Each party hereby irrevocably waives
21
personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence
of delivery). Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law.
Each party irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an
action or proceeding to enforce any provisions of a Transaction
Document, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its attorney's fees and
other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
4.9 Survival. The representations, warranties, agreements and
--------
covenants contained herein shall survive the Closing.
4.10 Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign
the same counterpart. In the event that any signature is delivered
by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as
if such facsimile signature page were an original thereof.
4.11 Severability. In case any one or more of the provisions of this
------------
Agreement shall be invalid or unenforceable in any respect, the
validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affecting or impaired
thereby and the parties will attempt to agree upon a valid and
enforceable provision which shall be a reasonable substitute
therefore, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
4.12 Remedies. In addition to being entitled to exercise all rights
--------
provided herein or granted by law, including recovery of damages,
Seller will be entitled to specific performance of the obligations
of the Purchaser under the Transaction Documents. The parties
hereto agree that monetary damages may not be adequate compensation
for any loss incurred by reason of any breach of its obligations
described in the foregoing sentence and hereby agrees to waive in
any action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
22
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
Trezac International Corporation.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
President and CEO
On Behalf of Millagro SRL:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Position: Chief Operating Officer
On Behalf of the Selling Shareholders:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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