Exhibit 10.6
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of October __,
2004, by and between AGU Entertainment Corp., a Colorado corporation (the
"Corporation"), and AUW, Inc. (the "Purchaser" ).
The Corporation and the Purchaser hereby agrees as follows:
SECTION 1.
AUTHORIZATION, PURCHASE AND SALE OF THE STOCK
1.1 Authorization of the Stock. The Corporation has authorized the
issuance and sale to the Purchaser of 25,000 shares of the Corporation's common
stock (the "Stock") as a payment of a portion of the Purchase Price pursuant to
the Agreement for Purchase and Sale dated September 10, 2004 between the parties
hereto (the "Purchase Transaction").
1.2 Sale and Purchase of the Stock. At the Closing (as defined herein),
subject to the terms and conditions hereof and in reliance upon the
representations, warranties and agreements contained herein, Purchaser agrees to
purchase at the Closing and the Corporation agrees to issue to Purchaser at the
Closing, that number of shares of the Stock set forth in Section 1.1 above.
SECTION 2.
CLOSING, PAYMENT AND DELIVERY
2.1 Closing Date and Place of Closing. The purchase and sale of the stock
shall take place at the offices of the Corporation, at the time of the closing
of the Purchase Transaction, or at such other time and place as the Corporation
and the Purchaser mutually agree upon orally or in writing (which time and place
are designated as the "Closing").
2.2 Payment and Delivery. Within three business days of the Closing, the
Corporation will deliver to Purchasers' counsel a stock certificate representing
the Stock.
2.3 Covenant of Best Efforts and Good Faith. The Corporation and the
Purchaser agree to use their respective best efforts and to act in good faith to
cause to occur all conditions to Closing which are in their respective control.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation hereby represents and warrants to the Purchaser that:
3.1 Incorporation. The Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado
and is qualified to do business in each jurisdiction in which the character of
its properties or the nature of its business requires such qualification, except
where the failure to so qualify would not have a material adverse effect upon
the Corporation's financial condition, business, assets or results of operations
(hereafter, a "Material Adverse Effect"). The Corporation has all requisite
corporate power and authority to carry on its business as now conducted.
3.2 Authorization. All corporate action on the part of the Corporation,
its officers, directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated herein has been taken. When executed and delivered
by the Corporation, this Agreement shall constitute the legal, valid and binding
obligation of the Corporation, enforceable against the Corporation in accordance
with its terms, except (i) as limited by bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally; (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies; and (iii) to the extent the indemnification provisions contained in
this Agreement may be limited by applicable federal or state securities laws.
The Corporation has all requisite corporate power to enter into this Agreement
and to carry out and perform its obligations under the terms of this Agreement.
3.3 Valid Issuance of the Stock. The Stock being issued to the Purchaser
hereunder will, upon issuance pursuant to the terms hereof, be duly authorized
and validly issued, fully paid, nonassessable and free of any liens or
encumbrances created by the Corporation and will, assuming the accuracy of the
representations and warranties made by the Purchaser to the Corporation, be in
compliance with applicable state and federal securities laws.
3.4 Consents. All consents, approval, orders, authorizations,
registrations, qualifications, and filings required on the part of the
Corporation to be obtained or made prior to the Closing in connection with the
execution, delivery or performance of this Agreement, and the consummation of
the transactions contemplated herein have been obtained or made or will be
obtained or made, prior to the Closing.
3.5 No Conflict. The execution and delivery of this Agreement by the
Corporation and the consummation of the transactions contemplated hereby will
not conflict with or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
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cancellation or acceleration of any obligation or to a loss of a material
benefit or give rise to an event which results in the creation of any lien,
charge or encumbrance upon any of the Corporation's properties or assets under
(i) any provision of the Certificate or Bylaws of the Corporation or (ii) any
agreement or instrument, permit, franchise, license, judgment, order, statute,
law, ordinance, rule or regulations, applicable to the Corporation or its
respective properties or assets.
3.6 Brokers or Finders. The Corporation has not dealt with any broker or
finder in connection with the transactions contemplated by this Agreement, and
the Corporation has not incurred, and shall not incur, directly or indirectly,
any liability for any brokerage or finders' fees or agents commissions or any
similar charges in connection with this Agreement or any transaction
contemplated hereby.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser hereby represents, warrants and covenants to the Corporation
that:
4.1 Authorization. The Purchaser has full right, power and authority to
enter into this Agreement, and such agreement constitutes its valid and legally
binding obligation, enforceable in accordance with its terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in this Agreement may be limited
by applicable federal or state securities laws.
4.2 Purchase Entirely for Own Account. This Agreement is made with the
Purchaser in reliance upon such Purchaser's representation to the Corporation,
which by such Purchaser's execution of this Agreement the Purchaser hereby
confirms, that the Stock to be received by such Purchaser will be acquired for
investment for the Purchaser's own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and that the
Purchaser has no present intention of selling, granting any participation in or
otherwise distributing the same. By executing this Agreement, the Purchaser
further represents that such Purchaser does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Stock.
4.3 Disclosure of Information. The Purchaser, individually or through its
investment advisor believes it has received all the information it considers
necessary or appropriate for deciding whether to purchase the Stock. The
Purchaser further represents that, individually or through its investment
advisor it has had an opportunity to ask questions and receive answers from the
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Corporation regarding the terms and conditions of the offering of the Stock and
the business, properties, prospects and financial condition of the Corporation.
4.4 Investment Experience. The Purchaser acknowledges that it can bear the
economic risk of its investment, and has, individually or through its investment
advisor such knowledge and experience in financial or business matters that it
is capable of evaluating the merits and risks of the investment in the Stock. If
other than an individual, the Purchaser also represents it has not been
organized for the purpose of acquiring the Stock.
4.5 Accredited Investor. The Investor is an "accredited investor" within
the meaning of SEC Rule 501 of Regulation D as presently in effect.
4.6 Restricted Securities. The Purchaser understands that the Stock it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Corporation in a
transaction not involving a public offering and that under such laws and
applicable regulations such Securities may be resold without registration under
the Act only in certain limited circumstances. In the absence of an effective
registration statement covering the Securities or an available exemption from
registration under the Act, the Stock must be held indefinitely. In this
connection, such Purchaser represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the Act, including without limitation the Rule 144 condition that current
information about the Corporation be available to the public.
4.7 Further Limitations on Disposition. Without in any way limiting the
representations set forth above, the Purchaser further agrees not to make any
disposition of all or any portion of the Stock unless:
(a) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(b) it is made in compliance with Rule 144; or
(c) the Purchaser shall have (i) notified the Corporation of the
proposed disposition and shall have furnished the Corporation with a detailed
statement of the circumstances surrounding the proposed disposition, (ii)
provided a written agreement from the transferee for the benefit of the
Corporation to be bound by the Section 4, and (iii) if requested by the
Corporation, such Purchaser shall have furnished the Corporation with an opinion
of counsel, reasonably satisfactory to the Corporation that such disposition
will not require registration of such shares under the Act. It is agreed that
the Corporation will not require opinions of counsel for transactions made
pursuant to Rule 144 except in unusual circumstances.
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(d) Notwithstanding any of the foregoing, transfers to principals of
or investment advisory clients shall be permitted without any consent, statement
or legal opinion.
4.8 Legends. It is understood that the certificates evidencing the Stock
it is purchasing may bear the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAW OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED."
4.9 Purchaser Counsel. The Purchaser acknowledges that such Purchaser and,
if applicable, its advisors has had the opportunity to review this Agreement,
the exhibits and schedules attached hereto and the transactions contemplated by
this Agreement with such Purchaser's own legal counsel. Purchaser is relying
solely on such Purchaser's legal counsel and not on the Corporation's legal
counsel, for legal advice with respect to this investment or the transactions
contemplated by this Agreement.
SECTION 5.
CONDITIONS TO OBLIGATIONS OF THE PURCHASER
The obligation of the Purchasers to purchase the Stock is subject to
the fulfillment on or prior to the Closing Date of each of the following
conditions:
5.1 Representations and Warranties. The representations and warranties of
the Corporation shall be true and correct in all material respects on the
Closing Date as if made on such Date and the Corporation shall have an officer
provide a certificate as of the Closing Date attesting to such fact.
5.2 Performance. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Corporation on or prior
to the Closing Date shall have been performed or complied with in all material
respects.
5.3 Legal Issuance. At the time of the Closing, the issuance and purchase
of the Stock shall be legally permitted by all laws and regulations to which the
Purchaser and the Corporation are subject.
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5.4 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be satisfactory in form and
substance to the Purchaser and its counsel.
SECTION 6.
CONDITIONS TO OBLIGATIONS OF THE CORPORATION
The Corporation's obligation to sell the Stock is subject to the
fulfillment on or prior to the Closing Date of each of the following conditions:
6.1 Representations and Warranties . The representations and warranties
made by the Purchaser shall be true and correct in all material respects on the
Closing Date.
6.2 Legal Issuance. At the time of the Closing, the issuance and
purchase of the Stock shall be legally permitted by all laws and regulations to
which the Purchaser and the Corporation are subject.
6.3 Consideration. The Corporation shall concurrently receive the
consideration for the Stock as provided in the Purchase Transaction.
SECTION 7.
COVENANT TO REGISTER
7.1 For purposes of this Section 7, the following definitions shall apply:
(1) The terms "register", "registered", and "registration" refer to a
registration under the Securities Act effected by preparing and filing a
registration statement or similar documents in compliance with the Securities
Act or an amendment thereto, and the declaration or ordering of effectiveness of
such registration statement, document or amendment thereto.
(2) The term "Registrable Securities" means the Stock issued to the
Purchaser pursuant to the Agreement and any securities of the Corporation or
securities of any successor corporation issued as, or issuable upon the
conversion or exercise of any warrant, right or other security that is issued
as, a dividend or other distribution with respect to, or in exchange for or in
replacement of, such Stock.
7.2 If the Corporation proposes to register (including for this purpose a
registration effected by the Corporation for shareholders other than the
Purchaser) any of its stock or other securities under the Securities Act in
connection with a public offering of such securities (other than a registration
on Form S-4, Form S-8 or other limited purpose form or a registration effected
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pursuant to agreements to register in effect on the date hereof) and the
Registrable Securities have not heretofore been included in a registration
statement, which remains effective, the Corporation shall, at such time,
promptly give the Purchasers written notice of such registration. Upon the
written request of any Purchaser given within 10 days after receipt of such
notice by such Purchaser, the Corporation shall cause to be registered under the
Securities Act all of the Registrable Securities that the Purchaser has
requested to be registered. However, the Corporation shall have no obligation
under this Section 7.2 to the extent that, with respect to a public offering
registration, any underwriter of such public offering reasonably requests that
the Registrable Securities or a portion thereof be excluded therefrom.
7.3 The Purchaser will furnish to the Corporation in connection with any
registration under this Section 7 such information regarding itself, the
Registrable Securities and other securities of the Corporation held by it, and
the intended method of disposition of such securities as shall be required to
effect the registration of the Registrable Securities held by such Purchaser.
7.4 With respect to the including of Registrable Securities in a
registration statement pursuant to this Section 7, all fees, costs and expenses
of and incidental to such registration, inclusion and public offering shall be
borne by the Corporation; provided, however, that any security holders
participating in such registration shall bear their pro rata share of the
underwriting discounts and commissions, if any.
7.5 The rights to cause the Corporation to register all or any portion of
Registrable Securities pursuant to this Section 7 may be assigned by the
Purchasers to a transferee or assignee of the Registrable Securities. Within a
reasonable time after such transfer the Purchaser shall notify the Corporation
of the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned. Such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act. Any transferee asserting registration rights hereunder shall
be bound by the provision of this Section 7.
7.6 In connection with any primary offering involving an underwriting of
shares of the Corporation's common stock, the Corporation shall not be required
under this Section 7 to include any Purchaser's securities in such underwriting
unless such Purchaser accepts the terms of the underwriting as agreed upon
between the Corporation and the underwriters selected by it, and then only in
such quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Corporation.
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7.7 The Corporation may suspend the effectiveness of a registration
statement required by this Section 7 for a period of not more than 45 days if
the Corporation is engaged in confidential negotiations or other confidential
business activities the disclosure of which (in the reasonable opinion of
outside counsel to the Corporation) would be required in such registration
statement and would not be required if such registration statement were not
filed and effective.
SECTION 8.
LEGEND ON STOCK
Until the registration contemplated by Section 7 above is declared
effective with respect to the stock, each certificate representing the Stock
shall be stamped or otherwise imprinted with a legend substantially in the
following form (in addition to any legend required under any applicable state
securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT AND ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
Upon request of a holder of Stock the Corporation shall remove the
foregoing legend or issue to such holder a new certificate therefor free of any
such legend, if the Corporation shall have received either an opinion of counsel
or a "no-action" letter of the SEC, in either case reasonable satisfactory in
substance to the Corporation and its counsel, to the effect that such legend is
no longer required.
SECTION 9.
ARBITRATION
9.1 Arbitration
9.1.1 Scope. Resolution of any and all disputes arising from or in
connection with this Agreement, whether based on contract, tort, common law,
equity, statute, regulation, order or otherwise ("Disputes"), including disputes
arising in connection with claims by third persons, shall be exclusively
governed by and settled in accordance with the provisions of this Section 9;
provided, that the foregoing shall not preclude equitable or other judicial
relief to enforce the provisions hereof or to preserve the status quo pending
resolution of Disputes hereunder.
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9.1.2 Binding Arbitration. The parties hereby agree to submit
all Disputes to arbitration for final and binding resolution. Any party may
initiate such arbitration by delivery of a demand therefor (the "Arbitration
Demand") to the other parties. The arbitration shall be conducted in the City of
Fort Lauderdale, Florida, by a panel of three arbitrators, one chosen by each
party and the third selected by agreement of the parties not later than 10 days
after delivery of the Arbitration Demand, or, failing such agreement, appointed
pursuant to the Commercial Arbitration Rules of the America Arbitration
Association, as amended from time to time (the "AAA Rules"). If the arbitrators
become unable to serve, his, her or their successor(s) shall be similarly
selected or appointed.
9.1.3 Procedure. The arbitration shall be conducted pursuant to the
Federal Arbitration Act and such procedures as the parties may agree or, in
the absence of or failing such agreement, pursuant to the AAA Rules.
Notwithstanding the foregoing, (a) each party shall have the right to audit the
books and records of the other parties that are reasonably related to the
Dispute; (b) each party shall provide to the other, reasonably in advance of any
hearing, copies of all documents that a party intends to present in such
hearing; (c) all hearings shall be conducted on an expedited schedule; and (d)
all proceedings shall be confidential, except that either party may at its
expense make a stenographic record thereof.
9.1.4 Timing. The arbitrators shall complete all hearings not later
than 90 days after his or her selection or appointment, and shall make a final
award not later than 30 days thereafter. The arbitrators shall apportion all
costs and expenses of the arbitration, including the arbitrators' fees and
expenses, and fees and expenses of experts ("Arbitration Costs") between the
prevailing and non-prevailing party as the arbitrators shall deem fair and
reasonable. In circumstances where a Dispute has been asserted or defended
against on grounds that the arbitrator deems manifestly unreasonable, the
arbitrators may assess all Arbitration Costs against the non-prevailing party
and may include in the award the prevailing party's attorney's fees and expenses
in connection with any and all proceedings under this Section 9. Notwithstanding
the foregoing, in no event may the arbitrators award multiple or punitive
damages.
SECTION 10.
MISCELLANEOUS
10.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Except as set forth in Section
9, any action or proceeding relating to this Agreement may be brought in the
courts of Florida, or in the United States courts located in the southern
district of Florida and each of the parties irrevocably consents to the
jurisdiction of such courts in any such action or proceeding.
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10.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of and be binding upon
the successors and assigns of the parties.
10.3 Entire Agreement; Amendment. This Agreement (including any Exhibits
and Schedules hereto) and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof. Neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated except by a written
instrument signed by the Corporation and holders of a majority of the Stock.
10.4 Notices, etc. All notices and other communications required or
permitted hereunder shall be mailed by internationally recognized courier
service and facsimile addressed (a) if to the Purchaser, as indicated below the
Purchaser's signature with a copy to the designated entity or at such other
address as the Purchaser shall have furnished to the Corporation in writing, or
(b) if to any other holder of any Stock at the address of such holder as shown
on the records of the Corporation, or (c) if to the Corporation, at its address
set forth below or at such other address as the Corporation shall have furnished
to the Purchaser and each such other holder in writing. All such notices or
communications shall be deemed given when delivered personally by courier, by
internationally recognized courier or by facsimile.
10.5 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement (including any holder of
Stock), upon any breach or default or another party under this Agreement, shall
impair any such right, power or remedy of such party nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or of
or in any similar breach or default thereafter occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. All remedies, either under this
Agreement or by law or otherwise afforded to any party, shall be cumulative and
not alternative.
10.6 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
10.7 Titles and Subtitles. The titles of the Sections and subsections of
this Agreement are for convenience of reference only and are not be considered
in construing this Agreement.
10.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
10.9 Fees and Expenses. The parties hereto shall pay their own costs and
expenses in connection herewith.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the day and year
first written above.
AGU ENTERTAINMENT CORP.
By: /s/ David C. Levy
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Name: David C. Levy
Title: President
AUW, Inc.
By: /s/ Steve Edelstein
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Name: Steve Edelstein
Title:
Address:
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