EXHIBIT 2.1
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STOCK PURCHASE AGREEMENT
Dated January 7, 2004
by and between
ADVEN INC.
and
those shareholders of
BARNARD CASTLE LIMITED
VALLEY FORGE SITE LIMITED
STEINBECK LIMITED
Listed on Schedule A hereto
THIS STOCK PURCHASE AGREEMENT ("Agreement") dated January 7, 2004 is
made and entered into by and between Adven Inc., a Wyoming corporation, with its
principal office located at 3653 Hemlock Court, Reno, Nevada 89509 ("Purchaser")
and those shareholders listed on Schedule A annexed hereto ("Sellers").
WHEREAS, Sellers are the shareholders of all of the outstanding shares
of Barnard Castle Limited ("Barnard"), Valley Forge Site Limited ("Valley") and
Steinbeck Limited ("Steinbeck"). Barnard, Valley and Steinbeck control, in the
aggregate, seventy (70%) percent of Toubikoto, Manianguiti, In Darset, Anefis
and Touban, being the gold mining properties in Mali; and
WHEREAS, Stephen Craig Lumb has received power of attorney from the
Sellers to execute this Stock Purchase Agreement on their behalf and to enter
into any other documents necessary for the effectuation of this Agreement.
WHEREAS, Sellers desire to sell, transfer and assign to Purchaser, and
Purchaser desires to purchase and acquire from Sellers, all the issued and
outstanding shares of Bernard, Valley and Steinbeck ("Shares") on the terms set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
SALE OF SHARES AND CLOSING DATE
1.01 Shares. Subject to the terms and conditions hereinafter set forth,
Purchaser hereby agrees to purchase the Shares from Sellers for the Purchase
Price (as defined below) and Sellers agree to sell the Shares to Purchaser for
the Purchase Price.
1.02 Purchase Price. The purchase price for the Shares shall be
200,000,640 restricted shares of Common Stock of Purchaser to be delivered at
the Closing (as that term is defined in paragraph 1.04).
1.03 Liabilities. At the Closing, Barnard, Valley and Steinbeck will
have no liabilities of any kind or nature other than the obligations listed as
part of on Schedule 2.04 ("Liabilities"). To the extent that any other
liabilities or obligations of any kind or nature are not covered by Schedule
2.04, exist at Closing or arise after the Closing related only to activities of
Barnard, Valley and Steinbeck prior to Closing, Sellers shall indemnify, defend
and hold harmless Purchaser from any such liabilities and obligations,
including, without limitation, those items listed on Schedule 2.04 ("Retained
Liabilities") and any other liabilities the parties mutually agree in writing
to be a Retained Liability.
1.04 Closing. The closing of the transaction contemplated herein
("Closing") shall take place on January 7, 2004 in the City of London, United
Kingdom, or at such other place as Purchaser and Sellers mutually agree at the
Closing. At Closing, the following shall be delivered (the "Closing Documents"):
(a) Purchaser shall deliver to Sellers:
(i) The payment pursuant to Section 1.02 of this Agreement.
(ii) A secretary's certificate (or equivalent) certifying the
resolutions of the board of directors of Purchaser which, among other things:
(a) approve the execution and delivery of this Agreement and the carrying out of
the transactions contemplated hereby; and (b) approve the purchase of the
Shares.
(iii) An opinion of its counsel in the form attached hereto as
Schedule 1.04(a)(iii).
(iv) Resignations of the officers and directors of Purchaser.
(b) Sellers shall deliver to Purchaser:
(i) Stock Certificate(s) representing all the issued and
outstanding shares of capital stock of Barnard, Valley and Steinbeck together
with stock powers thereafter duly endorsed in favor of Purchaser.
(ii) A good standing for each of Barnard, Valley and Steinbeck
as of the Closing.
(iii) An opinion of its counsel in the form attached hereto as
Schedule 1.07(b)(v).
1.05 Further Assurances; Post-Closing Cooperation.
(a) Subject to the terms and conditions of this Agreement, at any
time or from time to time after the Closing, at Purchaser's request and without
further consideration, Sellers shall execute and deliver to Purchaser within ten
(10) days following such request, as the case may be, such other instruments of
sale, transfer, conveyance, assignment and confirmation, provide such materials
and information and take such other actions as Purchaser may reasonably deem
necessary or desirable in order more effectively to transfer, convey and assign
to Purchaser, and to confirm Purchaser's title to, the Shares and, to the full
extent permitted by law, to put Purchaser in actual possession and operating
control of Sellers' business and to assist Purchaser in exercising all rights
with respect thereto, and otherwise to cause Sellers to fulfill its obligations
under this Agreement.
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(b) Following the Closing, each party will afford the other party,
its counsel and its accountants, during normal business hours, reasonable access
to the books, records and other data relating to its business in its possession
with respect to periods prior to the Closing and the right to make copies and
extracts therefrom, to the extent that such access may be reasonably required by
the requesting party in connection with (i) the preparation of tax returns, (ii)
the determination or enforcement of rights and obligations under this Agreement,
(iii) compliance with the requirements of any governmental or regulatory
authority, (iv) the determination or enforcement of the rights and obligations
of any party to this Agreement, or (v) in connection with any actual or
threatened action or proceeding. Further each party agrees for a period
extending six (6) years after the Closing not to destroy or otherwise dispose of
any such books, records and other data unless such party shall first offer in
writing to surrender such books, records and other data to the other party and
such other party shall not agree in writing to take possession thereof during
the ten (10) day period after such offer is made.
(c) Subsequent to the Closing, Purchaser shall change its name to
"West Africa Gold Inc.".
(d) At the Closing, Tauton Vale Limited, Romney Marsh Investments
Limited, Gulf of Ancud Limited and Keyvale Investments Limited shall each
transfer to Henri Hornby 2,500,000 restricted shares of Purchaser's Common Stock
in consideration of his agreement to provide consulting services to the
Purchaser for a period of two (2) years subsequent to the Closing
(e) If, in order properly to prepare its tax returns, other
documents or reports required to be filed with governmental or regulatory
authorities or its financial statements or to fulfill its obligations hereunder,
it is necessary that a party be furnished with additional information, documents
or records relating to its business not referred to in paragraph (b) above, and
such information, documents or records are in the possession or control of the
other party, such other party shall use its best efforts to furnish or make
available such information, documents or records (or copies thereof) at the
recipient's request, cost and expense. Each party to this Agreement agrees to
keep such information confidential.
(f) At the Closing, Henri Hornby, the sole officer and principal
shareholder of the Company will enter into an agreement to assign all of the
outstanding debt owed to him by the Purchaser (approximately $18,500) to Chris
Cardinal and simultaneously the Purchaser will enter into an agreement with
Chris Cardinal to issue 100,000 shares of the Purchaser's restricted common
stock in full settlement of this outstanding obligation. Such shares shall be
restricted for one year in accordance with Rule 144 of the Securities Act of
1933.
(g) At the Closing Henri Hornby and Sheila Ledrew shall resign as
Directors of Purchasers and Richard Mark Axtell shall be appointed to the Board
of Directors of the Purchaser. In addition, at closing, Henri Hornby shall
resign as President, Chief Executive Officer and Chief Financial Officer of the
Purchaser and Richard Mark Axtell shall be appointed as the new President, Chief
Executive Officer and Chief Financial Officer of the Purchaser.
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(h) Prior to Closing, Henri Hornby owns a total of 814,181 shares
of the Purchaser's common stock which he has owned for over two years. Pursuant
to Rule 144(k) of the Securities Act of 1933 such shares can be "freed up"
ninety days after Henri Hornby is not an affiliate of the Company. Henri Hornby
shall enter into a "Bleed Out" Agreement with the Company for such shares so
that shares can be sold by Mr. Hornby in the following manner: 100,000 shares
ninety days after the Closing date and 100,000 shares every ninety days.
(i) The shareholders of Barnard Castle Limited, Valley Forge Site
Limited and Steinbeck Limited shall provide audited financial statements
required for Purchaser's filing of the Form 8-K with the SEC in the required
time period. Notwithstanding same, the shareholders of Barnard Castle Limited,
Valley Forge Site Limited and Steinbeck Limited shall use its best efforts to
provide such audited financial statements within 21 days of the date of the
closing herein.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers, hereby jointly and severally, represent and warrant to
Purchaser as follows:
2.01 Corporate Existence. Barnard, Valley and Steinbeck are
corporations validly existing and in good standing under the laws of Gibraltar,
and has full corporate power and authority to conduct its business and to the
extent now conducted.
2.02 Ownership. Sellers own and are conveying to Purchaser all of their
rights, title and interests to the Shares, free and clear of all liens,
mortgages, pledges, security interests, encumbrances or charges of any kind or
description and upon consummation of the transaction contemplated herein good
title in the Shares shall vest in Purchaser free of all liens and other charges.
Sellers represent that they own all of the issued and outstanding shares in the
Companies.
2.03 No Conflicts. The execution and delivery of this Agreement, the
performance of its obligations hereunder, and the consummation of the
transaction contemplated hereby, including, without limitation, the sale of the
Shares to Purchaser, shall not conflict with or result in the breach of any term
or provision of, or violate or constitute a default under any other agreement to
which Sellers or Barnard, Valley and Steinbeck are a party, or result in the
creation of any lien on any of the Shares or Purchaser. This Agreement has been
duly and validly executed and delivered by Sellers and constitutes, and upon the
execution and delivery by Sellers of the Closing Documents to which it is a
party, such Closing Documents will constitute, legal, valid and binding
obligations of Sellers enforceable against Sellers in accordance with their
terms.
2.04 Accuracy and Completeness of Due Diligence Documents. The
documents provided to Purchaser in response to Purchaser's due diligence
requests, completely and accurately portray the status of business of Barnard,
Valley and Steinbeck as of the Closing and do not include a material
misstatement or omission of a material fact which would reasonably likely to
have a material adverse effect on Barnard, Valley and Steinbeck or their
business.
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Further, the information included in such responses shall be incorporated herein
as an affirmative representation and warranty on the part of Sellers.
2.05 Continuity of Business. Sellers reasonably expect that the
business represented by the agreements found in Schedule 2.04 will continue
after the date hereof. Sellers have no knowledge that any customer included in
that Schedule intend to terminate or reduce the amount of business they
presently do with Sellers, and Sellers have no knowledge of any state of facts
which would lead it to believe that any of such customers will terminate their
relationship with Sellers or significantly reduce the amount of business they
presently do with Sellers.
2.06 Claims, Litigation, Disclosure. Except as set forth in Schedule
2.06 there is no claim, litigation, tax audit, proceeding or investigation
pending or threatened against Sellers or Barnard, Valley and Steinbeck, with
respect to their business, nor is there a basis for any such claim, litigation,
audit, proceeding or investigation.
2.07 Taxes. Except as specifically set forth on Schedule 2.07 (the "Tax
Liabilities"), Barnard, Valley and Steinbeck have correctly prepared and timely
filed all Federal, state and local tax returns, estimates and reports, and paid
all such taxes as and when due. For purposes of this paragraph, taxes shall mean
all taxes, charges, fees, levies or other assessments of any kind whatsoever
(including, without limitation, income, franchise, sales, use and withholding
taxes). On or before the Closing Date, Sellers shall pay off and satisfy any of
the Tax Liabilities which are then due and payable and provide Purchaser with
evidence thereof in form satisfactory to Purchaser and its counsel and have
granted a reserve adequate to pay any tax liabilities with respect to the
operations of the Barnard, Valley and Steinbeck's business prior to the Closing.
ARTICLE III
REPRESENTATIONS ,WARRANTIES AND COVENANTS OF PURCHASER
Purchaser hereby represents and warrants to Sellers as follows:
3.01 Corporate Existence. Purchaser is a corporation validly existing
and in good standing under the laws of the State of Wyoming, and has full
corporate power and authority to conduct its business and to the extent now
conducted.
3.02 Authority. The execution and delivery by Purchaser of this
Agreement, and the performance by Purchaser of its obligations hereunder and
under the Closing Documents, are duly and validly authorized by Purchaser. This
Agreement has been duly and validly executed and delivered by Purchaser and
constitutes, and upon the execution and delivery by Purchaser of the Closing
Documents to which it is a party, such Closing Documents will constitute, legal,
valid and binding obligations of Purchaser enforceable against Purchaser in
accordance with their terms.
3.03 No Conflicts. The execution and delivery by Purchaser of this
Agreement does not, and the execution and delivery by Purchaser of the Closing
Documents to which it is a party, the performance by Purchaser of its
obligations under this Agreement and such Closing
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Documents and the consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a violation or breach of any of the
terms, conditions or provisions of any agreement Purchaser is a party to.
3.04 Claims, Litigation, Disclosure. There is no claim, litigation, tax
audit, proceeding or investigation pending or threatened against Purchaser, with
respect to its business which would have a material effect on its ability to
satisfactorily perform its duties under this Agreement, nor is there a basis for
any such claim, litigation, audit, proceeding or investigation.
3.05 Taxes. The Purchaser has correctly prepared and timely filed all
Federal, state and local tax returns, estimates and reports, and paid all such
taxes as and when due. For purposes of this paragraph, taxes shall mean all
taxes, charges, fees, levies or other assessments of any kind whatsoever
(including, without limitation, income, franchise, sales, use and withholding
taxes).
3.06 Liabilities. The Purchaser represents that except for the
obligations to Henri Hornby to be satisfied at closing pursuant to Section
1.05(f), the Purchaser's outstanding liabilities at closing will be less than
$10,000.
ARTICLE IV
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser hereunder to purchase the Shares are
subject to the fulfillment, at or before the Closing Date, of each of the
following conditions (all or any of which may be waived in whole or in part by
Purchaser in its sole discretion):
4.01 Representations and Warranties. The representations and warranties
made by Sellers in this Agreement, taken as a whole, shall be true and correct,
in all respects material to the validity and enforceability of this Agreement
and the Closing Documents and to the condition of the business, on and as of the
Closing Date as though made on and as of the Closing or, in the case of
representations and warranties made as of a specified date earlier than the
Closing, on and as of such earlier date.
4.02 Performance. Sellers shall have performed and complied with, in
all material respects, the agreements, covenants and obligations required by
this Agreement to be so performed or complied with by Sellers at or before the
Closing.
4.03 Officers' Certificates. Sellers shall have delivered to Purchaser
two certificates of Sellers each dated as of the Closing and executed in the
name and on behalf of Sellers by the President of each of Sellers, substantially
in the form of Schedule 4.03.1 annexed hereto, and a certificate executed by the
Secretary or any Assistant Secretary of Sellers, substantially in the form of
Schedule 4.03.2 annexed hereto.
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ARTICLE V
CONDITIONS TO OBLIGATIONS OF SELLERS
The obligations of Sellers hereunder to sell the Shares are subject to
the fulfillment, at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by Sellers in their sole
discretion):
5.01 Representations and Warranties. The representations and warranties
made by Purchaser in this Agreement, taken as a whole, shall be true and correct
in all material respects on and as of the Closing.
5.02 Performance. Purchaser shall have performed and complied with, in
all material respects, the agreements, covenants and obligations required by
this Agreement to be so performed or complied with by Purchaser at or before the
Closing.
ARTICLE VI
TERMINATION
6.01 Termination. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned:
(a) at any time before the Closing, by mutual written agreement of
Sellers and Purchaser; or
(b) at any time before the Closing, by Sellers or Purchaser, in
the event that any order or law becomes effective restraining, enjoining, or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement or any of the Closing Documents,
upon notification of the non-terminating party by the terminating party.
6.02 Effect of Termination. If this Agreement is validly terminated
pursuant to this Section, this Agreement will forthwith become null and void,
and there will be no liability or obligation on the part of Sellers, Purchaser
or Sellers (or any of their respective officers, directors, employees, agents or
other representatives or Affiliates, as the case may be).
ARTICLE VII
MISCELLANEOUS
7.01 Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
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If to Purchaser, to: Adven Inc.
3653 Hemlock Court
Reno, Nevada 89509
Facsimile No.: (775) 829-8813
with a copy to: Anslow & Jaclin, LLP
4400 Route 9 South
Freehold, New Jersey 07728
If to Sellers, to: Barnard Castle Limited
c/o St James Resource Management Limited
Second Floor
Berkeley Square House
Berkeley Square
London
W1J 6BD
United Kingdom
Facsimile No.: + 44 207 887 1449
Valley Forge Site Limited
c/o St James Resource Management Limited
Second Floor
Berkeley Square House
Berkeley Square
London
W1J 6BD
United Kingdom
Facsimile No.: + 44 207 887 1449
Steinbeck Limited
c/o St James Resource Management Limited
Second Floor
Berkeley Square House
Berkeley Square
London
W1J 6BD
United Kingdom
Facsimile No.: + 44 207 887 1449
with a copy to: Marrache & Co.
5 Cannon Lane
Gibraltar
Facsimile No.: + 350 73315
Attn: Mr Isaac Marrache Esq.
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All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
7.02 Entire Agreement. This Agreement and the Closing Documents
supersede all prior discussions and agreements between the parties with respect
to the subject matter hereof and thereof and contain the sole and entire
agreement between the parties hereto with respect to the subject matter hereof
and thereof.
7.03 Expenses. Except as otherwise expressly provided in this Agreement
whether or not the transactions contemplated hereby are consummated, each party
will pay its own costs and expenses incurred in connection with the negotiation,
execution and closing of this Agreement and the Closing Documents and the
transactions contemplated hereby and thereby.
7.04 Waiver. Any term or condition of this Agreement may be waived at
any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
7.05 Amendment. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party hereto.
7.06 No Assignment; Binding Effect. Purchaser may not assign its
obligations under this Agreement without the express written consent of Sellers.
7.07 Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
7.08 Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof and (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom.
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7.09 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
7.11 Dispute Resolution. Any dispute hereunder shall be resolved by
arbitration in RENO, Nevada under the rules of the American Arbitration
Association and the decision of the arbitrator shall be final and binding on the
parties hereto. Any and all costs and expenses associated with actions taken
pursuant to this Paragraph 7.11 shall be borne by the non-prevailing party.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officer of each party as of the date first above written.
Adven Inc.
as Purchaser
By: /s/ Henri Hornby
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Name: Henri Hornby
Title: President
STEPHEN CRAIG LUMB as Power of Attorney from
the Sellers listed on Schedule A
By: /s/ Stephen Craig Lumb
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Name: Stephen Craig Lumb duly authorized.
EXECUTING THIS AGREEMENT PURSUANT TO SECTION 1.05(D):
TAUNTON VALE LIMITED ROMNEY MARSH INVESTMENTS LIMITED
/s/ Stephen Craig Lumb /s/ Stephen Craig Lumb
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GULF OF ANCUD LIMITED KEYVALE INVESTMENTS LIMITED
/s/ Stephen Craig Lumb /s/ Stephen Craig Lumb
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SCHEDULE A
SHAREHOLDER NAME NUMBER OF SHARES
- ---------------- ----------------
Hanover Capital Group plc 63,895,836
Roseau Enterprises Limited 20,000,064
Pychley Limited 5,804,810
Opio Holdings Limted 3,931,512
Eurpacific Consulting plc 20,000,064
Libra Consulting Limited 3,931,512
Taunton Vale Limited 7,037,320
Gulf of Ancud Limited 8,279,200
Teme Valley Holdings Limited 1,241,880
Thistlemoor Estates Limited 2,897,720
Caddington Properties Limited 4,139,600
West Hay Estates Limited 4,139,600
Gold Flower Limited 5,515,972
Keyvale Investments Limited 5,396,680
Romney Marsh Investments Limited 5,177,930
Vadni (International) Limited 437,500
Lutton Grove Investments Limited 4,771,680
Ashford Valley Investments Limited 4,771,680
Blackmore and Sparkford Vale Limited 4,771,680
Glass Falls Advisory Limited 4,771,680
Otter Vale Enterprises Limited 4,771,680
Dabbs Investment Limited 4,771,680
Libreville Estates Limited 4,771,680
Windhoek (International) Limited 4,771,680
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200,000,640