Exhibit 10.2
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is made and entered
into as of May __, 2005, by and among Ezriel Silberger and Izik Liberman
(collectively, the "Buyer"), and James B. Wiegand and Max Gould (collectively,
the "Seller").
WHEREAS, Wiegand owns 375,000 shares of common stock of Akid Corporation,
a Colorado corporation (the "Company"), representing 30.48% of the issued share
capital of the Company on a fully-diluted basis, and Gould owns 375,000 of the
shares of the Company, representing 30.48% of the Company on a fully-diluted
basis;
WHEREAS, Wiegand is the sole officer and director of the Company;
WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from
Seller, an aggregate of 500,000 free-trading shares of the Company (the
"Shares"), for such consideration and on such terms as set out below; and
WHEREAS, upon consummation of the purchase of the Shares by Buyer from
Seller, each of Seller will continue to hold shares of the common stock of the
Company, and the parties hereto desire that a portion of such shares shall be
subject to a lock up agreement in the form annexed hereto as Exhibit A (the
"Lock Up Agreement") as follows:
- ---------------------------------------------------------------------------
Name # of shares of the common stock # of shares in column (a) of the
Company that will be held that shall be subject to the
by each of Seller after Lock Up Agreement (the
consummation of the purchase "Lock-Up
herein Shares")
(a) (b)
- ---------------------------------------------------------------------------
Wiegand 125,000 100,000
- ---------------------------------------------------------------------------
Gould 125,000 100,000
- ---------------------------------------------------------------------------
NOW THEREFORE, in consideration of the above premises and the mutual
representations, warranties, covenants and agreements hereinafter set forth and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Purchase Price; Closing Deliveries.
(a) The purchase price for the 500,000 Shares shall be $50,000 (the
"Purchase Price").
(b) Simultaneous with the execution and delivery of this Agreement,
(y) each Buyer shall execute the Note attached hereto as Exhibit B to each
Seller. Each Note shall be secured by 200,000 shares of the company
currently trading under the symbol "AMZB", and (z) Seller shall deliver or
cause to be delivered to Buyer:
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(i) the stock certificates evidencing the Shares, duly endorsed in
blank or accompanied by stock powers duly executed in blank, in proper
form for transfer;
(ii) resignation letter from Wiegand, the sole director and officer
of the Company;
(iii) a shareholders' list, dated no later than 2 business days
prior to the date hereof, including names and addresses of each
shareholder, certificate numbers and issue dates;
(iv) a legal opinion, in form satisfactory to Buyer, opining that
the Shares can be freely sold without any restrictions or filings under
federal and state securities laws and contractual provisions and any
matters deemed appropriate by Buyer; and
(v) a Lock-Up Agreement, fully executed by each Seller, and a lock
up agreement in the form annexed hereto as Exhibit C, fully executed by
Corporate Management Services, Inc.
2. Representations of Seller.
Each Seller hereby represents and warrants to each Buyer the following:
Wiegand owns 375,000 shares of common stock of Akid Corporation, a
Colorado corporation (the "Company"), representing 30.48% of the issued share
capital of the Company on a fully-diluted basis, and Gould owns 375,000 of the
shares of the Company, representing 30.48% of the Company on a fully-diluted
basis. Neither Seller nor any of his affiliates has any interest, direct or
indirect, in any other shares of capital stock or other equity in the Company or
has any other direct or indirect interest in any tangible or intangible property
which the Company uses or has used in the business conducted by the Company, or
has any direct or indirect outstanding indebtedness to or from the Company, or
related, directly or indirectly, to its assets other than 500,000 common shares
that are to be issued to each of Seller upon execution of the Share Exchange
Agreement, dated of even date herewith, among the Company, Advanced Plant
Pharmaceuticals, Inc., and Wiegand.
Seller has the absolute and unrestricted right, power, legal capacity and
authority to enter into and perform his obligations under this Agreement, to
carry out his obligations hereunder and to consummate the transactions
contemplated hereby. Assuming the due authorization, execution and delivery by
Buyer, this Agreement, when executed and delivered by Buyer, will be a valid and
binding obligation of Seller, enforceable against him in accordance with its
terms.
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(c) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will conflict with, or
(with or without notice or lapse of time, or both) result in a termination,
breach or violation of (i) any instrument, contract or agreement to which
Seller is a party or by which he is bound, or (ii) any federal, state, local or
foreign law, ordinance, judgment, decree, order, statute, or regulation, or
that of any other governmental body or authority, applicable to Seller or his
assets or properties.
(d) Seller is the sole record and beneficial owner of the Shares and has
good and marketable title to the Shares, free and clear of any liens, pledges,
hypothecations, charges, adverse claims, options, preferential arrangements or
restrictions of any kind, including, without limitation, any restriction of the
use, voting, transfer, receipt of income or other exercise of any attributes of
ownership (collectively, "Encumbrances"). Upon the execution and delivery of
this Agreement, each Buyer shall be the lawful record and beneficial owner of
250,000 Shares, free and clear of all Encumbrances, including without
limitation any Encumbrances expressly created by applicable federal and state
securities laws.
(e) There are no stockholders' agreements, voting trust, proxies, options,
rights of first refusal or any other agreements or understandings with respect
to the Shares.
(f) Neither Seller nor the Company is a party to or threatened with, any
litigation, suit, action, investigation, proceeding or controversy before any
court, administrative agency or other governmental authority, self-regulatory
organization or body. There are no outstanding judgments, UCC financing
instruments or UCCs filed against the Company.
(g) Seller has timely complied with all applicable rules and regulations
of the Securities and Exchange Commission in connection with his ownership of
the Shares, and will file all necessary filings with respect to the
transactions contemplated by this Agreement.
(h) The Company is duly organized, validly existing and in good standing
under the laws of the State of Colorado, with full power and authority to own,
lease, use and operate their respective properties and to carry on its business
as and where now owned, leased, used, operated and conducted. The Company is
duly qualified as foreign corporations to do business and is in good standing
in every jurisdiction in which its ownership or use of property or the nature
of the business conducted by it makes such qualification necessary. The Company
does not own, directly or indirectly, any capital stock of any corporation or
any equity, profit sharing, participation or other interest in any corporation,
partnership, limited liability company, joint venture or other entity.
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(i) As of the date hereof, the Company's authorized capital consists of
(a) 20,000,000 shares of common stock, no par value, authorized (the "Common
Stock"), of which 1,230,000 shares are issued and outstanding, (i) with each
holder thereof being entitled to cast one vote for each share held on all
matters properly submitted to the shareholders for their vote; and (ii) there
being no pre-preemptive rights and no cumulative voting; and (b) 5,000,000
shares of preferred stock, none of which are issued and outstanding. The
Company has no shares reserved for issuance pursuant to a stock option plan or
pursuant to securities exercisable for, or convertible into or exchangeable for
shares of its stock. All of the issued and outstanding shares of capital stock
of the Company are duly authorized, validly issued, fully paid and
nonassessable. No shares of capital stock of the Company are subject to
preemptive rights or any other similar rights. There are (i) no outstanding
options, warrants, scrip, rights to subscribe for, puts, calls, rights of first
refusal, agreements, understandings, claims or other commitments or rights of
any character whatsoever relating to, or securities or rights convertible into
or exchangeable for any shares of capital stock of the Company or arrangements
by which the Company is or may become bound to issue additional shares of
capital stock of the Company, (ii) no agreements or arrangements under which
the Company is obligated to register the sale of any of its or their securities
under the Securities Act of 1933, as amended (the "Act"), and (iii) no
anti-dilution or price adjustment provisions contained in any security issued
by the Company (or in any agreement providing any such rights).
(j) Upon the consummation of the transactions contemplated herein, Buyer
will own in the aggregate 40.65% of the issued and outstanding share capital of
the Company on a fully-diluted basis, free and clear of any Encumbrances.
(k) The Company has timely filed all reports, schedules, forms, statements
and other documents required to be filed by it with the Securities and Exchange
Commission (the "SEC") pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act") (all of the foregoing filed
prior to the date hereof and all exhibits included therein and financial
statements and schedules thereto and documents (other than exhibits to such
documents) incorporated by reference therein, being hereinafter referred to
herein as the "SEC Documents"). The Company does not have any securities
registered pursuant to Section 12 of the 1934 Act. As of their respective
dates, the SEC Documents complied in all material respects with the
requirements of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, 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. None of the
statements made in any such SEC Documents is, or has been, required to be
amended or updated under applicable law (except for such statements as have
been amended or updated in subsequent filings prior the date hereof). The
Company has not received any communication from the SEC, NASD or any other
regulatory authority regarding any SEC Document or any disclosure contained
therein. As of their respective dates, the financial statements of the Company
included in the SEC Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the consolidated financial position of the Company as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments). Except as set forth in the financial
statements of the Company included in the SEC Documents and as otherwise
disclosed in the SEC Documents, the Company has no debts, liabilities,
obligations, direct, indirect, absolute or contingent, whether accrued, vested
or otherwise, whether known or unknown.
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(l) The Company does not (i) have any employees, (ii) owe any compensation
of any kind, deferred or otherwise, to any person, including without
limitation, agents, representatives, consultants, accountants and attorneys,
(iii) have any written or oral employment agreement with any person, nor (iv)
is it a party to or bound by any collective bargaining agreement. There are no
loans or other obligations payable to or owing by the Company to any
stockholder, officer, director, agent, representative, consultant, accountant,
attorney or otherwise nor are there any loans or debts payable or owing by any
such persons to the Company or any guarantees by the Company of any loan or
obligation of any nature to which any such person is a party.
(m) The Company does not own, use or possess any licenses or rights to use
any patents, patent applications, patent rights, inventions, know-how, trade
secrets, trademarks, trademark applications, service marks, service names,
trade names and copyrights ("Intellectual Property"). There is no claim or
action by any person pertaining to, or proceeding pending, or threatened, which
challenges the right of the Company with respect to any Intellectual Property.
(n) The Company is not a party to any contract, arrangement or agreement,
whether oral or in writing, including without limitation, loan agreements,
credit lines, promissory notes, mortgages, pledges, guarantees, security
agreements, factoring agreements, letters of credit, powers of attorney or
other arrangements to loan or borrow money or extend credit.
(o) The Company had made or filed all federal, state and foreign income
and all other tax returns, reports and declarations required by any
jurisdiction to which each is subject and have paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations. There are no
and will be no taxes due as a result of the transactions contemplated by this
Agreement. There are no unpaid taxes claimed to be due by the taxing authority
of any jurisdiction, and Seller knows of no basis for any such claim. The
Company has not executed a waiver with respect to the statute of limitations
relating to the assessment or collection of any foreign, federal, state or
local tax. None of the Company's tax returns is presently being audited by any
taxing authority. Seller expressly assumes and shall pay any taxes due by the
Company up to the date hereof.
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(p) There are, with respect to the Company or any predecessors thereof, no
past or present violations of Environmental Laws (as defined below), releases
of any material into the environment, actions, activities, circumstances,
conditions, events, incidents, or contractual obligations which may give rise
to any common law environmental liability or any liability under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 or
similar federal, state, local or foreign laws and the Company has not received
any notice with respect to any of the foregoing, nor is any action pending or
threatened in connection with any of the foregoing. The term "Environmental
Laws" means all federal, state, local or foreign laws relating to pollution or
protection of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata),
including, without limitation, laws relating to emissions, discharges, releases
or threatened releases of chemicals, pollutants contaminants, or toxic or
hazardous substances or wastes (collectively, "Hazardous Materials") into the
environment, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials, as well as all authorizations, codes, decrees, demands or
demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations issued, entered, promulgated or approved
thereunder. Other than those that are or were stored, used or disposed of in
compliance with applicable law, no Hazardous Materials are contained on or
about any real property currently owned, leased or used by the Company, and no
Hazardous Materials were released on or about any real property previously
owned, leased or used by the Company. There are no underground storage tanks on
or under any real property owned, leased or used by the Company.
(r) The Company does not own any real or personal property.
(s) The Company maintains a system of internal accounting controls
sufficient, in the judgment of the Company's board of directors, to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's
general or specific authorization, and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The books of
account, corporate records and minute books of the Company are complete and
correct in all material respects. Complete and accurate copies of all such
books of account, corporate records and minute books of the Company have been
made available to Buyer and his representatives.
(t) All information relating to or concerning the Company set forth in
this Agreement and otherwise in connection with the transactions contemplated
hereby is true and correct in all respects and Seller has not omitted to state
any fact necessary in order to make the statements made herein or therein, in
light of the circumstances under which they were made, not misleading. No event
or circumstance has occurred or exists with respect to the Company or its or
their business, properties, prospects, operations or financial conditions,
which, under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed.
(u) There are no liabilities of the Company of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or otherwise,
and there is no existing condition, situation or set of circumstances which
could reasonably be expected to result in such a liability.
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(v) The purchase of the Shares by Buyer from Seller will not give rise to
any dissenting shareholders' rights under Colorado law, the Articles of
Incorporation or By-laws of the Company, or otherwise.
(w) All issuances by the Company of shares of Common Stock in past
transactions have been legally and validly effected, and all of such shares of
Common Stock are fully paid and non-assessable. All of the offerings were
conducted in strict accordance with the requirements of Regulation D, Rules
504, 505 and 506, as applicable, in full compliance with the requirements of
the 1933 Act and the 1934 Act, as applicable, and in full compliance with and
according to the requirements of any applicable state laws and the Articles of
Incorporation and By-laws of the Company.
(x) The Company does not have in effect any plan, scheme, device or
arrangement, commonly or colloquially known as a "poison pill" or
"anti-takeover" plan or similar plan, scheme, device or arrangement. No other
state takeover statute or similar statute or regulation applies or purports to
apply to this agreement or the transactions contemplated hereby.
3. Buyers' Representations.
Each Buyer hereby represents and warrants to Seller the following:
(a) Buyer has the absolute and unrestricted right, power, legal capacity
and authority to enter into and perform his respective obligations under this
Agreement, to carry out his obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Buyer.
(b) No filing with, authorization from or consent or approval of any
governmental body, agency, official or authority or any other third party is
necessary or required to be made or obtained to enable Buyer to enter into, and
to perform his respective obligations under, this Agreement.
(c) Assuming the due authorization, execution and delivery by Seller, this
Agreement, when executed and delivered by Seller, will be a valid and binding
obligation of Buyer, enforceable against him in accordance with its terms.
(d) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will conflict with, or
(with or without notice or lapse of time, or both) result in a termination,
breach or violation of (i) any instrument, contract or agreement to which either
Buyer is a party or by which he is bound, or (ii) any federal, state, local or
foreign law, ordinance, judgment, decree, order, statute, or regulation, or that
of any other governmental body or authority, applicable to either Buyer or his
respective assets or properties.
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4. Indemnification. Each Seller shall jointly and severally indemnify and
hold harmless the Company, each Buyer and their respective officers, directors,
shareholders, employees, agents, beneficiaries, affiliates, representatives and
their respective successors and assigns (collectively, the "Indemnified
Persons") from and against any and all damages, losses, liabilities, taxes and
costs and expenses (including, without limitation, attorneys' fees and costs)
(collectively, "Losses") resulting directly or indirectly from (a) any
inaccuracy, misrepresentation, breach of warranty or nonfulfillment of any of
the representations and warranties of Seller in this Agreement or in any
certificate or document delivered by Seller or the Company pursuant to this
Agreement, or any actions, omissions or statements of fact inconsistent with in
any material respect any such representation or warranty, (b) any failure by the
Seller or the Company to perform or comply with any agreement, covenant or
obligation in this Agreement or in any certificate or document delivered
herewith or to be performed by or complied with Seller or the Company, (c) any
claims made by a third party against the Company based upon an obligation, act
or omission of Seller or the Company prior to the date hereof and, (d) any
claims made at any time arising out of, or in connection with, any Environmental
Laws or environmental conditions with respect to the Company which are based
upon conditions existing prior to the date hereof, (e) taxes attributable to the
Company or the ownership of its assets prior to the date hereof, (f) any claims
for severance or any other compensation made by any employee, representative,
officer, director or agent of the Company prior to the date hereof, (g) any
claim made at any time by any governmental body in respect of the business of
the Company prior to the date hereof, (h) any debt, claim, liability or
obligation of the Company prior to the date hereof, or (i) any litigation,
action, claim, proceeding or investigation by any third party relating to or
arising out of the business or operations of the Company prior to the date
hereof.
All representations, warranties, covenants and agreements of the parties
contained herein or in any other certificate or document delivered pursuant
hereto shall survive the date hereof for three years, except the representations
and warranties set forth in Section 2 (o) and (p) which shall survive until the
expiration of the applicable statute of limitations.
5. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
(b) If any covenant or agreement contained herein, or any part
hereof, is held to be invalid, illegal or unenforceable for any reason, such
provision will be deemed modified to the extent necessary to be valid, legal and
enforceable and to give effect of the intent of the parties hereto.
(c) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof. This Agreement supersedes all
prior agreements between the parties with respect to the subject matter hereof
or thereof. There are no representations, warranties, covenants or undertakings
with respect to the subject matter hereof other than those expressly set forth
herein or in the other agreements referenced herein.
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(d) This Agreement may not be amended or modified except by the
express written consent of the parties hereto. Any waiver by the parties of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach thereof or of any other provision.
(e) All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally, on the fifth day after mailing if
mailed to the party by first class mail, registered or certified, postage
prepaid and properly addressed, or on the third business day after delivering by
internationally recognized courier services as follows:
If to Seller,
James B. Wiegand
16200 WCR 18E
Loveland, CO 80537
And
Max Gould
700 Newport
Denver, CO 80220
If to Buyer,
---------
---------
---------
(f) This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties hereto and their respective successors and permitted
assignees and heirs and legal representatives. The parties hereto intend that
this Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than the parties hereto.
(g) The parties agree that this Agreement shall be deemed to have been
jointly and equally drafted by them, and that the provisions of this Agreement
therefore shall not be construed against a party or parties on the ground that
such party or parties drafted or was more responsible for the drafting of any
such provision(s). The parties further agree that they have each carefully read
the terms and conditions of this Agreement, that they know and understand the
contents and effect of this Agreement and that the legal effect of this
Agreement has been fully explained to its satisfaction by counsel of its own
choosing.
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(h) The parties hereto agree to execute and deliver such further documents
and instruments and to do such other acts and things any of them, as the case
may be, may reasonably request in order to effectuate the transactions
contemplated by this Agreement.
(i) This Agreement may be executed in counterparts and by facsimile, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
[Remainder of Page Intentionally Omitted; Signature Page to Follow]
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to
be executed as of the date first above written.
SELLER:
/s/ James B. Wiegand
James B. Wiegand
/s/ Max Gould
Max Gould
BUYER:
/s/ Ezriel Silberger
---------------------
Ezriel Silberger
/s/ Izik Liberman
Izik Liberman
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