STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of the 19th day of June,
2000 by and between:
WHITEHALL ENTERPRISES, INC., (formerly TOTAL WORLD TELECOMMUNICATIONS,
INC.), a reorganized company under Chapter 11 of the United States
Bankruptcy Code, incorporated under the laws of the state of Delaware,
(the "Vendor")
- and -
GLOBAL FINANCIAL INVESTMENTS, LLC, a limited liability company
incorporated under the laws of Arizona, (the "Purchaser");
WHEREAS the Vendor is the owner of all of the issued and outstanding
shares of Mega Blow Moulding Limited, (the "Company") and desires to sell to
the Purchaser its shares in the Company's capital stock; and
WHEREAS the Purchaser desires to purchase the Vendor's shares in the
Company's capital stock;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
payments and mutual covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1. - INTERPRETATION
1.1 Definitions:
In addition to other terms defined in this Agreement, the following terms shall
have the following meanings:
(a) "Bankruptcy Code" means Title 11 of U.S. Code 11U.S.C., 1.1 Et Seq.;
(b) "Business" means the business presently carried on by the Company
consisting of the development and production of blow molded plastic
products;
(c) "Business Day" means a day other than Saturday, Sunday or legal holiday
as such term is defined in Bankruptcy Rule 9006(a) of the Bankruptcy
Code;
(d) "Closing" means the completion of the purchase and sale of the
Purchased Shares in accordance with Article 11 hereof;
(e) "Closing Date" means that date which is eleven (11) calendar days
following the date upon which all of the conditions precedent to
Closing set forth in this Agreement have been satisfied or waived by
the Purchaser and the Vendor as applicable;
(f) "Financial Statements" mean the Company's financial statement for its
last fiscal year end (and as may be available), together with notes to
such statements, all as reported upon by the Company's accountant;
(g) "Liens" means all mortgages, claims, charges, liens, pledges,
encumbrances, security interests, adverse claims and other restrictions
of any kind and nature whatsoever;
(h) "Ontario" means 1299004 Ontario Corporation which sold the Company to
the Vendor;
(i) "Purchase Price" shall have the meaning ascribed to it in Section 3.2
hereof;
(j) "Purchased Shares" means all of the issued and outstanding shares in
the capital of the Company owned and being sold by the Vendor, being
two hundred forty (240) shares in the Company's capital stock all of
which are being purchased by the Purchaser;
(k) "Taxes" means all taxes, duties, levies, assessments, reassessments or
governmental charges, including without limitation, income,
corporation, capital, real or personal property, excise, payroll
(including Unemployment Insurance and Canada Pension Plan
contributions), franchise, sales and goods and services taxes imposed
by any jurisdiction (whether federal, provincial or municipal)
applicable to the Vendor or the Company and any interest, penalties and
fines therein.
1.2 Certain definitions
"Agreement", "this Agreement", "hereto", "hereof", "herein",
"hereunder" and similar expressions refer to this Agreement and not to any
particular Article, Section, paragraph or other portion of this Agreement and
include every amendment or instrument supplementary hereto or in implementation
hereof.
1.3 Number and Gender
Except where the context otherwise indicates, words importing the
singular number only shall include the plural, and vice versa, and words
importing the masculine gender shall include the feminine gender and "persons"
shall include individuals, partnerships, joint ventures, associations,
corporations and all other forms of business organizations, governments,
regulatory or governmental agencies, commissions, departments and
instrumentalities.
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ARTICLE 2. - GENERAL
2.1 Dollar Amounts
All dollar amounts referred to herein are in lawful currency of the
United States unless otherwise stated.
2.2 Accounting Terms
Each accounting term used herein unless a contrary definition is
provided shall have the meaning given to it under generally accepted accounting
principles in Canada existing at the date hereof.
ARTICLE 3. - PURCHASED SHARES AND PURCHASE PRICE
3.1 Purchased Shares
Subject to the terms and conditions contained in this Agreement, the
Vendor agrees to sell, assign, transfer and deliver to the Purchaser all of the
Vendor's right, title and interest in and to the Purchased Shares and the
Purchaser agrees to purchase the Purchased Shares.
3.2 Consideration
In consideration for the transfer of the Vendor's right, title and
interest in and to the Purchased Shares, the Purchaser shall at Closing:
(a) pay $500,000.00 in equal monthly installments of $33,333.33
(b) pay $10,000.000 per month for 15 consecutive months for contract
administration
(c) agrees to pay $1,100,000.00 to implement Vendor's software marketing
campaign, said budget to be approved and funded beginning November 15,
2000
(d) Vendor to retain $1,397,000.00 worth of current receivables from the
books of Company
all of which shall be collectively referred to herein as the "Purchase Price".
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ARTICLE 4. - VENDOR'S REPRESENTATIONS AND WARRANTIES
The Vendor represents and warrants to the Purchaser as follows and
acknowledges that the Purchaser is relying upon such representation and
warranties in connection with this Agreement:
4.1 Share Ownership of the Company
At Closing, the Vendor will be the registered and beneficial owner of
the Purchased Shares.
4.2 Authorized and Issued Capital
The authorized capital of the Company consists of an unlimited number
of common shares, of which two hundred forty (240) common shares are issued and
outstanding. The Purchased Shares have been duly and validly authorized and
issued and are outstanding as fully paid and non-assessable shares.
4.3 Corporate Power
The Company has the corporate power to own or lease its property and to
carry on its business and is qualified as a corporation to do business and is in
good standing in each jurisdiction in which its business is conducted or the
property owned or leased by it makes such qualification necessary.
4.4 Guaranties
The Company, to the knowledge of the Vendor, is not a party to or bound
by any agreement of guarantee, indemnification, surety or similar commitment of
the obligations, liabilities (contingent or otherwise) or indebtedness of any
other person, corporation or partnership that is not referred to herein this
Agreement. The Vendor acquired the Company via Bankruptcy Code court order from
Ontario free and clear of all debt.
4.5 Corporate Authority
The execution, delivery and performance by the Vendor of this
Agreement, and each and every agreement, document and instrument of conveyance
contemplated hereby, and the consummation of the transactions herein, have been
duly and validly authorized by all necessary corporate action.
4.6 Real Property Lease
The lease of the Company's premises is the only lease to which the
Company is a party, whether as lessor or lessee, in respect of any real
property.
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4.7 Equipment Leases
The Company, through its management company entered into an equipment
lease back conditional sale agreement with a certain installment obligation as
referred to in Article 4.14 (b).
4.8 Conformity with Laws
The Vendor is not aware of any violations, notices of violations,
outstanding work orders, notices or similar requirements relating to the
business carried on by the Company by or from any police or fire department,
sanitation, health, building, labor safety or environmental authorities or from
any other federal, provincial or municipal authority and there are no matters
under discussion with any such departments or authorities relating to work
orders, notices or similar requirements.
4.9 Laws and Regulations
The Company, to the knowledge of the Vendor, is conducting its business
in compliance, in all material respects, with all applicable laws, rules,
regulations, notices, approvals and orders of Canada and Ontario and any
municipality thereof in which its business is carried on, is not in breach in
any material respect of any such laws, rules, regulations, notices, approvals or
orders and is duly licensed, registered or qualified and duly possesses all such
licenses in Ontario and any municipality thereof in which the Company carried on
its business to enable its business to be carried on as now conducted and all
such licenses, registrations, qualifications and permits are valid and
subsisting and in good standing.
4.10 Incorporation and Organization
The Company is a corporation duly incorporated and organized and
validly subsisting under the laws of Ontario and is duly qualified as a
corporation to do business in Ontario.
4.11 Binding Agreement
This Agreement constitutes a legal, valid and binding obligation of the
Vendor, enforceable against it in accordance with its terms subject to:
(a) bankruptcy, insolvency, moratorium, reorganization and other laws
relating to or affecting the enforcement of creditor's rights
generally; and
(b) the fact that equitable remedies, including the remedies of specific
performance and injunction, may only be granted in the discretion of a
court
4.12 Non Contravention; Consents
The execution and delivery of this Agreement and the completion by the
Vendor of the transaction contemplated herein will not result in any material
violation or breach of any of the provisions of the consulting documents or
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by-laws of the Company, or to the Vendor's knowledge breach any material
contract or lease, written or oral, to which the Company or the Vendor is a
party or by which they are bound, nor to the Vendor's knowledge require the
Company or the Vendor to obtain any consents, authorizations or approvals, or to
the Vendor's knowledge, result in the creation of any Lien on the Purchased
Shares.
4.13 No Other Purchase Agreements
The Vendor is not aware of any person, company, partnership or other
entity having any agreement or option or any right or privilege capable of
becoming an agreement for the purchase of the Purchased Shares save and except
as provided for in this Agreement.
4.14 Title to Assets; Permitted Liens
The assets owned or used by the Company (other than those leased by the
Company as delineated in Article 4.7) are owned by the Company as the beneficial
and legal owner thereof with a good and marketable title therein and thereto and
with full right of use thereof subject only to:
(a) a $600,000.00 CN working capital line of credit; current balance:
$573,000.00 CN
(b) a lease back agreement which is the sole responsibility of Ontario for
a total amount of $681,570.00 at an interest rate of 9.35% per annum,
repayable in 72 monthly installments of $12,627.00 including principal
and interest of which the Company's plastic molding equipment is
subject to
The Vendor hereby indemnifies Purchaser from the above mentioned
obligations, including but not limited to any other unauthorized
obligation or debt incurred by the Company, since the Vendor's
acquisition of the Company, without Vendor's written consent to the
Company's management company.
4.15 Financial Statements
(a) The Financial Statements of the Company provided to the Purchaser have
been prepared in accordance with Canadian generally accepted accounting
principles.
(b) There are no liabilities or obligations of the Company, in respect of
which the Company is or may become liable on or after the consummation
of the transactions contemplated by this Agreement other than:
(i) liabilities incurred in the ordinary course of business of the Company
4.16 Residency of Vendor
The Vendor is a non-resident of Canada within the meaning of the Income
Tax Act (Canada).
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4.17 Truth on Closing
The Vendor shall deliver a certificate to the Purchaser certifying that
each of the representations and warranties of the Vendor contained herein are
true and correct on and as of the Closing Date with the same force and effect as
though made on such date.
4.18 Litigation
The Vendor is not aware of any litigation, suit, proceeding, action,
claim or investigation, at law or in equity, pending or threatened against, or
affecting in any way the Company's ability to own and conduct its business as
presently conducted nor is the Company subject to any judgment, order, writ,
injunction or decree of any court or governmental authority, department,
commission, board, bureau, agency or other instrumentality which would have a
material effect on its business or on the transactions contemplated herein.
ARTICLE 5. - PURCHASER'S REPRESENTATIONS AND WARRANTIES
The Purchaser represents and warrants to the Vendor as follows and
acknowledges that the Vendor is relying upon such representations and warranties
in connection with this Agreement.
5.1 Binding Agreement
This Agreement constitutes a legal, valid and binding obligation of the
Purchaser, enforceable against it in accordance with its terms subject to:
(a) bankruptcy, insolvency, moratorium, reorganization and other laws
relating to or affecting the enforcement of creditor's rights
generally; and
(b) the fact that equitable remedies, including the remedies of specific
performance and injunction, may only be granted in the discretion of a
court.
5.2 Non- Contravention
The execution and delivery of this Agreement and the consummation by
the Purchaser of the transactions contemplated hereby will not result in any
material violation or breach of any material contract or lease, written or
oral, to which the Purchaser is a party or by which it is bound.
5.3 Truth on Closing
The Purchaser shall deliver a certificate to the Vendor certifying that
each of the representations and warranties of the Purchaser contained herein are
true and correct on and as of the Closing Date with the same force and effect as
though made on such date.
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ARTICLE 6. - COVENANTS OF THE VENDOR
The Vendor hereby covenants with the Purchaser that the following will
be done or caused to be done at or prior to Closing or earlier as herein
provided:
6.1 Vendor's Compliance with Agreement
The Vendor shall have taken the necessary steps to ensure that the
representations and warranties contained in this Agreement are true and correct
on the Closing Date as if made on and as of such date and shall have done all
things necessary to facilitate the transactions provided for herein.
6.2 Resignation and Releases of Directors and Officers
At the request of the Purchaser, the Vendor shall cause all of the
Company's officers and directors to resign effective as of Closing and deliver
to the Company releases of any claims, actions or causes of action that any such
officer or directors has or may have against the Company.
6.3 Tax Filings
The Vendor shall cause the Company to promptly pay all taxes due and
owing by the Company up to the date of this Agreement, unless other satisfactory
arrangements have been made by the Vendor and the Purchaser in writing.
6.4 Transfers
The Vendor shall cause all necessary resolutions to be enacted and
other steps to be taken so as to validly and effectively transfer the Purchased
Shares to the Purchaser at Closing.
6.5 Third Party Consents
The Vendor shall cooperate with the Purchaser and its representatives
to obtain any third party consents which may be required.
6.6 Purchaser's Investigation
The Vendor shall cause the Company to permit the Purchaser and its
agents and professional advisors, at the Purchaser's expense, to make such
inspections of the assets, books and records, liabilities and financial and
legal condition of the Company and the Business as the Purchaser deems necessary
or advisable, acting reasonably.
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ARTICLE 7. - COVENANTS OF THE PURCHASER
The Purchaser hereby covenants with the Vendor that the following will
be done at or prior to Closing or earlier as herein provided:
7.1 Purchaser's Compliance with Agreement
The Purchaser shall have taken the necessary steps to ensure that its
representations and warranties contained herein are true and correct on the
Closing Date as if made on and as of such date and shall have done all things
necessary to facilitate the transactions herein provided for herein.
7.2 Confidentiality
Prior to Closing and, if the transaction contemplated herein is not
completed, at all times after Closing, the Purchaser will keep confidential all
information obtained by it relating to the Company and the Business, except for
such information which must reasonably be disclosed. The Purchaser further
agrees that such information will be disclosed only to those of its
representatives and advisors who need to know such information for the purposes
of evaluating and implementing the transactions contemplated hereby. If the
transactions contemplated herein are not completed for any reason, the Purchaser
will return forthwith, without retaining any copies thereof, any and all
information and documents obtained from the Vendor and Company.
7.3 Third Party Consents
The Purchaser shall cooperate with the Vendor and its representatives
to obtain any further consents required by any third party.
7.4 Directors
At Closing, the Purchaser shall ensure that not less than two (2) of
the Vendor's nominees are appointed or elected to the Purchaser's board of
directors which shall number three (3) in total.
ARTICLE 8. - SURVIVAL
8.1 Survival of Vendor's Representations and Warranties
The Vendor's representations and warranties contained in this Agreement
shall survive the closing of the purchase and sale of the Purchased Shares
provided for and, notwithstanding such closing, nor any investigation made by or
on behalf of the Purchaser, shall continue in full force and effect for the
benefit of the Purchaser following such closing.
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8.2 Survival of Vendor's Covenants
The Vendor's covenants contained in this Agreement shall survive the
closing of the purchase and sale of the Purchased Shares herein provided for
and, notwithstanding such closing, shall continue in full force and effect for
the benefit of the Purchaser in accordance with the terms thereof.
8.3 Survival of Purchaser's Representations and Warranties
The Purchaser's representations and warranties contained in this
Agreement shall survive the closing of the purchase and sale of the Purchased
Shares herein provided for and, notwithstanding such closing, nor any
investigation made by or on behalf of the Vendor, shall continue in full force
and effect following such closing.
8.4 Survival of Purchaser's Covenants
The Purchaser's covenants contained in this Agreement shall survive the
closing of the purchase and sale of the Purchased Shares herein provided for
and, notwithstanding such closing, shall continue in full force and effect for
the benefit of the Vendor in accordance with the terms thereof.
ARTICLE 9. - CONDITIONS IN FAVOR OF THE PURCHASER
9.1 Full Performance
The Vendor shall have performed in all material respects all the terms,
covenants and conditions of the Vendor under this Agreement.
9.2 No Adverse Change
At the Closing Date, there shall have been no material adverse change
in the financial condition of the Business. For purposes of this Section, a
"material adverse change" does not include any change in the affairs,
operations, prospects, assets or condition of the Business arising directly or
indirectly from (i) any activities of the Purchaser, its employees officers,
agents or representatives (whether pursuant to this Agreement or otherwise), or
(ii) any activities arising in the ordinary course of business.
9.3 Litigation
No action or proceeding shall be pending or, to the knowledge of the
Vendor, threatened by any person to enjoin, prohibit or materially affect the
transactions herein contemplated or which may have a material adverse effect on
the Company, but excluding any litigation, action or proceeding arising, in
whole or in part, from the acts or omissions of the Purchaser, its agents or
representatives, whether pursuant to this Agreement or otherwise.
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If any of the foregoing conditions set forth in Article 9 hereof has
not been fulfilled by the Vendor or waived by the Purchaser on or prior to the
Closing Date, the Purchaser may rescind this Agreement by notice in writing to
the Vendor (except where failure to fulfill such conditions arises as a result
of the Purchaser's actions or omissions). In such event, the Purchaser shall be
released from all its obligations hereunder and unless the Purchaser can
demonstrate the condition or conditions for the non-performance of which they
have rescinded this Agreement are reasonably capable of being performed by the
Vendor, the Vendor shall also be released from all of its obligations.
ARTICLE 10. - CONDITIONS IN FAVOR OF THE VENDOR
The purchase and sale of the Purchased Shares is subject to the
following terms and conditions for the exclusive benefit of the Vendor, to be
fulfilled or performed by the Purchaser or waived by the Vendor at or prior to
Closing:
10.1 Full Performance
The Purchaser shall have performed in all material respects all the
terms, covenants and conditions of the Purchaser under this Agreement.
10.2 Payment or Satisfaction of Purchase Price
The Purchaser shall have executed the Business Agreement, (the
"Business Agreement"), incorporated herein and made part of this Agreement as
Exhibit 1 of this Agreement, whereby Purchaser agrees to:
(a) pay $500,000.00 in equal monthly installments of $33,333.33
(b) pay $10,000.000 per month for 15 consecutive months for contract
administration
(c) agrees to pay $1,100,000.00 to implement Vendor's software marketing
campaign, said budget to be approved and funded beginning November 15,
2000
(d) Vendor to retain $1,397,000.00 worth of current receivables from the
books of Company
If any of the foregoing conditions set forth in Article 10 has not been
fulfilled by the Purchaser or waived by the Vendor on or prior to the Closing
Date, the Vendor may rescind this Agreement by notice in writing to the
Purchaser. In such event, the Vendor shall be released from all its obligations
hereunder and unless the Vendor can demonstrate the condition or conditions for
the non-performance of which it has rescinded this Agreement are reasonably
capable of being performed by the Purchaser, the Purchaser shall also be
released from all of its obligations hereunder.
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ARTICLE 11. - CLOSING ARRANGEMENTS
11.1 Place of Closing
The closing of the transactions contemplated by this Agreement shall
take place at Closing on the Closing Date at the offices of Atlas ▇▇▇▇▇▇▇▇ Trop
& Borkson, P.A., Suite 1900, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, or at such other place as the parties hereto may agree.
11.2 Deliveries by the Vendor
Subject to the satisfaction and fulfillment of all conditions provided
for in this Agreement (unless waived in writing by the Purchaser at or prior to
Closing) the Vendor shall deliver to the Purchaser the following documents or
matters duly executed by all persons other than the Purchaser or do the
following acts or things which delivery and performance constitute a condition
precedent in favor of the Purchaser to the completion of the transactions herein
provided for:
(a) the share certificates representing the Purchased Shares duly endorsed
in blank for transfer to the Purchaser;
(b) a copy of a resolution of the board of directors of the Company and the
Vendor authorizing the transfer of the Purchased Shares to the
Purchaser; and
(c) the releases and resignations of the Company's officers and directors
referred to herein; and
(d) the Company's minute book and other corporate records
11.3 Deliveries by the Purchaser
Subject to the satisfaction and fulfillment of all conditions provided
for in this Agreement (unless waived in writing by the Vendor at or prior to
Closing), the Purchaser shall deliver to the Vendor:
(a) an executed Business Agreement
ARTICLE 12. - GENERAL PROVISIONS
12.1 Notices
Any notice required or permitted to be given for purposes of this
Agreement shall be in writing and shall be sufficiently given if personally
delivered, at the applicable address set out below, or sent by registered
letter, postage prepaid or transmitted by telecopier (confirmed on the same day
or following day by prepaid mail or by return telecopier transmittal):
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(a) if to Vendor addressed to:
Mr. ▇▇▇▇ ▇▇▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) if to Purchaser addressed to:
▇▇. ▇▇ ▇▇▇▇▇, Authorized Representative
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address as the party to whom such writing is to be given shall
have notified the party giving the same in the manner provided in this Section.
Any notice delivered to the party to whom it is addressed as hereinbefore
provided shall be deemed to have been given and received on the date it is so
delivered at such address, provided that if such day is not a Business Day, then
a notice shall be deemed to have been given and received on the next Business
Day following such day. Any notice mailed as aforesaid shall be deemed to have
been given and received on the date it is so delivered at such address, provided
that if such day is not a Business Day, then a notice shall be deemed to have
been given and received on the next Business Day following such day. Any notice
transmitted by telecopier shall be deemed given and received on the first
Business Day after its transmission.
12.2 Entire Agreement
This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements, understandings, negotiations and
discussions between the parties hereto with respect to the subject matter of
this Agreement. There are not and shall not be any verbal statements,
representations, warranties, undertakings or agreements between the parties with
respect to the subject matter of this Agreement and this Agreement may not be
amended or modified in any respect except by written instrument signed by the
parties hereto.
12.3 Waiver
No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar) nor shall
such waiver be effective or binding unless in writing and, unless otherwise
provided, shall be limited to the specific breach waived.
12.4 Applicable Law
This Agreement shall be governed by and construed in accordance with
the laws of the state of Florida and the laws applicable therein.
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12.5 Inurement
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors and legal personal
representatives, and shall not be assignable by any of the parties hereto
without the written consent of the other party.
12.6 Counterparts
This Agreement may be executed in one or more counterparts, all of
which when executed and delivered (including by facsimile transmission) shall be
considered one and the same agreement, and each of which shall be deemed an
original. If executed by facsimile the party(s) so executing shall forthwith
deliver an original thereof to the other.
12.7 Further Assurances
From time to time subsequent to the Closing Date, each of the parties
hereto shall, at the request and expense of the requesting party, execute and
deliver such additional conveyances, transfers and other assurances, as may, in
the opinion of counsel for such party, be required to effectually carry out the
intent of this Agreement in accordance with the terms hereof.
12.8 Severability
If any provision of this Agreement is determined to be invalid or
unenforceable by a court of competent jurisdiction from which no further appeal
lies or is taken, the provision shall be deemed to be severed herefrom, and the
remaining provisions of this Agreement shall not be affected thereby and shall
remain valid and enforceable.
IN WITNESS WHEREOF this Agreement has been executed and delivered by
the parties hereto on the date first above written.
WHITEHALL ENTERPRISES, INC.
A corporation incorporated under the laws of Delaware
Per: _________________________________
▇▇▇▇ ▇▇▇▇▇▇▇, President
GLOBAL FINANCIAL INVESTMENTS, LLC
A limited liability company incorporated under
the laws of Arizona
Per: __________________________________
▇▇ ▇▇▇▇▇, Authorized Representative
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