Exhibt 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK AGREEMENT, (this "Agreement") made this 1st day of October 2008,
by and among Gray Creek Mining, Inc., a Nevada corporation (the "Company"), the
shareholders of the Company named on the signature pages hereof (individually, a
"Stockholder," and collectively, the "Stockholders"), the individuals and
entities set forth in Schedule 1 attached hereto ("Purchasers") and J. Bennett
Grocock, an attorney licensed in the State of Florida, serving as escrow agent
("Escrow Agent").
Background
The purpose of this Agreement is to set forth the terms and conditions upon
which the Stockholders will transfer to Purchasers 5,200,000 (approximately 99%)
of the outstanding shares of common stock of The Company (the "Shares").
Representatives of the PURCHASERS and Stockholders have asked Escrow Agent
to serve in an official capacity for the purpose of effecting and expediting the
closing of the transactions contemplated herein.
Escrow Agent has agreed to receive and hold all consideration received from
the PURCHASERS of the Shares, and all documents, stock certificates, stock
powers and corporate records of the PURCHASERS and the Stockholders in escrow
for delivery at the Closing and thereafter in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, the parties herewith agree as follows:
ARTICLE I
STOCK PURCHASE AND SALE
1.01 Stock Transfer. Subject to the terms and conditions of this Agreement,
the Stockholders agree to sell, convey and transfer an aggregate amount of
5,200,000 shares of common stock of the Company, which represent approximately
99% of the issued and outstanding shares of Company common stock to the
Purchasers in the amounts set forth on Schedule 1, attached hereto and made a
part hereof.
1.02 Purchase Price. The purchase price for the Shares is $275,000, payable
in full into Escrow, to be held in a noninterest-bearing account. The
distribution of the Purchase Price shall be governed by this Agreement.
1.03 Option to Purchase Additional Stock. Stockholders hereby grant
Purchaser an option to purchase all, and not less than all, of an additional
50,000 shares of stock of the Company ("Option Shares") for a price of $50,000.
This option shall be exercisable for a period of forty-five (45) days from the
date of Closing. Stockholders shall deliver these 50,000 shares into Escrow to
be held until purchased by Purchaser or returned to Stockholders at the end of
the 45 day period if not purchased.
1.04 Escrow Agent. Each of The Company, PURCHASERS and the Stockholders
hereby appoint J. Bennett Grocock to act on their behalves in all matters
pertaining to this transaction and for the distribution of the Shares, the
Option Shares and any funds related to the transactions contemplated hereby. The
Stockholders recognize that Mr. Grocock, in his capacity as Escrow Agent, is
also charged with collecting from The Company certain corporate documentation
and from the Stockholders their Share certificates for delivery at the Closing
to PURCHASERS. Mr. Grocock will also coordinate collection of due diligence
information for the PURCHASERS prior to Closing.
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1.05 Escrow of Shares, Option Shares, and Purchase Price. Immediately upon
signing this Agreement, (i) Stockholders shall deliver to Escrow Agent all of
the Shares and Option Shares, and (ii) Purchasers shall deposit with Escrow
Agent the Purchase Price (collectively referred to as the "Deposit").
1.06 The Escrow Period. The PURCHASER shall have a ten (10) calendar day
period (the "Period"), as measured from the date of this Agreement, to conduct
due diligence on the Company, including the right of access to and review of the
documents and items to be deposited with Escrow Agent as set forth below. During
the Period, the Company or Sellers shall cause to be delivered to Escrow Agent
the following:
* A certified list of shareholders from the Company's transfer agent
dated no earlier than October 1, 2008;
* Copies of all corporate books and records, including financial
information.
* Stock certificates representing all 5,250,000 shares of stock to be
delivered to Purchaser in certificate form duly endorsed for transfer,
and all Shares in electronic from by DTC transfer to a broker account
established by Escrow Agent.
* All corporate records of the Company
* The written and signed resignations of all officers and directors of
the Company, and the due appointment of PURCHASER's designee(s) as new
officers and directors of the Company
At the end of the Period (or such sooner time within the Period that
Purchaser elects to close), assuming Purchaser has not cancelled the transaction
(see below), the following shall take place:
* Escrow Agent shall deliver to Purchasers 5,200,000 restricted shares
and free trading shares
* Escrow Agent shall deliver to Sellers from Escrow of the Purchase
Price of $275,000.
By the end of the Period, Purchaser may elect to cancel the transaction by
giving written notice to Sellers. Upon timely cancellation, the full purchase
price shall be returned to the PURCHASER and Shares to Sellers, and no Party
shall have any further rights or obligations hereunder.
1.07. The Option Shares. Once the Closing has occurred, the 45 day period
for Purchaser to exercise the option to purchase the Option Shares (the "Option
Period") shall commence. Escrow Agent shall give notice to all parties of the
official Closing Date and the end date of the Option Period. If, within the
Option Period, Purchaser delivers $50,000 to Escrow Agent, Escrow Agent shall
release the Options Shares to Purchaser and deliver the $50,000 to Stockholders.
If the Option Period expires without Purchaser's having delivered the $50,000 to
Escrow Agent, then the option shall expire automatically, and Escrow Agent shall
deliver the Option Shares to Stockholders along with the stock powers for them.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Company and each of the Stockholders represent and warrant to
PURCHASERS the following:
2.01 Organization. The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Nevada, has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing. All actions taken by the
incorporators, directors and/or shareholders of The Company have been valid and
in accordance with all applicable laws.
2.02 Capital. The authorized capital stock of The Company consists of
75,000,000 Shares of Common Stock, par value $.001 per share, of which 5,250,000
Shares are issued and outstanding. All outstanding Shares are fully paid and
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non-assessable, free of liens, encumbrances, options, restrictions and legal or
equitable rights of others not a party to this Agreement. At the Closing, there
will be no outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating The Company to issue
or to transfer from treasury any additional shares of its capital stock. None of
the outstanding Shares of The Company are subject to any stock restriction
agreements. Selling Shareholders have valid title to the Shares and acquired the
Shares in a lawful transaction in accordance with applicable federal and state
law.
2.03 Financial Statements. All financial statements of the Company as filed
in EDGAR fairly present the financial position of The Company as of the date of
the balance sheets included in the financial statements, and the results of its
operations for the periods indicated.
2.04 Liabilities. The Company does not as of the date hereof, and will not
as of the Closing, have any debt, liability, or obligation of any nature,
whether accrued, absolute, contingent, or otherwise, and whether due or to
become due. The Company is not aware of any pending, threatened or asserted
claims, lawsuits or contingencies involving The Company. There is no dispute of
any kind between The Company and any third party, and no such dispute will exist
at the Closing of this Agreement.
2.05 Tax Returns. Within the times and in the manner prescribed by law, The
Company has filed all federal, state, and local tax returns required by law. The
Company has paid, or will pay by the Closing, all taxes, assessments, and
penalties due and payable. There are no present disputes as to taxes of any
nature payable by The Company as of the Closing, and there shall be no taxes of
any kind due or owing.
2.06 Ability to Carry Out Obligations. Each of the Stockholders has the
right, power, and authority to enter into and perform its obligations under this
Agreement. The execution and delivery of this Agreement by the Stockholders and
the performance by the Stockholders of its obligations hereunder will not cause,
constitute, or conflict with or result in (a) any breach or violation or any of
the provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which The Company or the Stockholders is a party or
by which they may be bound, nor will any consents or authorizations of any party
other than those hereto be required, (b) an event that would cause PURCHASERS or
Escrow Agent to be liable to any party, or (c) an event that would result in the
creation or imposition of any lien, charge, or encumbrance on any asset of The
Company or upon the Shares.
2.07 Full Disclosure. None of the representations and warranties made in
this Agreement by the Stockholders or The Company or on their behalf contains or
will contain any untrue statement of a material fact or omit any material fact
the omission of which would be misleading.
2.08 Compliance with Laws. The Company has complied with all, and is not in
violation of any, federal, state, or local statute, law, and regulation. The
Company has complied with all federal and state securities laws in connection
with the offer, sale and distribution of its securities. The Shares are being
sold in a private transaction between the Stockholders and the PURCHASERS, and
it is understood that certain of the Shares are subject to trading restrictions
under the Securities Act of 1933, as amended, and the rules and regulations
thereunder.
2.09 Litigation. The Company is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding or pending
governmental investigation. To the best knowledge of the Stockholders, there is
no basis for any such action or proceeding, and no such action or proceeding is
threatened against The Company. The Company is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
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2.10 Conduct of Business. Prior to the Closing, The Company shall not (i)
amend its Certificate of Incorporation or Bylaws, (ii) declare dividends or
redeem or sell stock or other securities, except as part of completing its spin
off transaction, (iii) incur any liabilities, (iv) acquire any assets, enter
into any contract, or guarantee obligations of any third party, or (v) enter
into any other transaction.
2.11 Title. Each of the Stockholders has good title to all of the Shares
being sold by it pursuant to this Agreement. The Shares will be, at the Closing,
free and clear of all liens, security interests, pledges, charges, claims,
encumbrances and restrictions of any kind. None of the Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to such Shares. Except as
provided in this Agreement, the Stockholders and The Company are not parties to
any agreement which offers or grants to any person the right to purchase or
acquire any of the Shares.
2.12 Truth of Representations. All of these representations shall be true
as of the Closing and shall survive the Closing for a period of one year.
ARTICLE III
ESCROW AGENT
3.1 This Agreement may be altered or amended only with the written consent
of all of the parties hereto. Should any of the parties attempt to change this
Agreement in any manner, which, in the Escrow Agent's discretion, shall be
undesirable, the Escrow Agent may resign as Escrow Agent by notifying all
parties in writing. In the case of the Escrow Agent's resignation pursuant to
the foregoing, its only duty, until receipt of notice from the parties that a
successor escrow agent has been appointed, shall be to hold and preserve the
Deposit. Upon receipt by the Escrow Agent of said notice from the parties of the
appointment of a successor escrow agent, the name of a successor escrow account
and a direction to transfer the Deposit, the Escrow Agent shall promptly
thereafter transfer the Deposit to said successor escrow agent. The Escrow Agent
is authorized to disregard any notices received from the parties after notice of
resignation or removal has been given.
3.2 The Escrow Agent shall not be liable for any action taken or omitted by
it in good faith, and in no event shall the Escrow Agent be liable or
responsible except for the Escrow Agent's own gross negligence or willful
misconduct. The Escrow Agent has made no representations or warranties to the
parties. The Escrow Agent has no liability hereunder to either party other than
to hold the Deposit and to deliver it under the terms hereof. Each party hereto
agrees to indemnify and hold harmless the Escrow Agent from and with respect to
any suits, claims, actions or liabilities arising in any way out of this
transaction (other than for non-compliance with the terms of the Agreement by
the Escrow Agent) including the obligation to defend any legal action brought
which in any way arises out of or is related to this Agreement.
3.3 The parties acknowledge and represent that they are not being
represented in a legal capacity by J. Bennett Grocock, P.A., and have had the
opportunity to consult with their own legal advisors prior to the signing of
this Agreement.
3.4 The Escrow Agent shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
the Escrow Agent to be genuine and to have been signed or presented by the
proper party or parties. The Escrow Agent shall not be personally liable for any
act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while
acting in good faith, and any act done or omitted by the Escrow Agent pursuant
to the advice of the Escrow Agent's attorney shall be conclusive evidence of
such good faith.
3.5 The Escrow Agent is hereby expressly authorized to disregard any and
all instructions given by any one of the parties hereto, accepting only
instructions signed by all parties and orders or process of courts of law, and
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Escrow Agent is hereby expressly authorized to comply with and obey orders,
judgments or decrees of any court. In case the Escrow Agent obeys or complies
with any such order, judgment or decree, the Escrow Agent shall not be liable to
any of the parties hereto or to any other person, firm or corporation by reason
of such decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
3.6 The Escrow Agent shall not be liable in any respect on account of the
identity, authority, or rights of the parties executing or delivering or
purporting to execute or deliver this Agreement.
3.7 If the Escrow Agent reasonably requires other or further documents in
connection with this Agreement, the necessary parties hereto shall join in
furnishing such documents.
3.8 It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the Deposit held by
the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the
Escrow Agent's sole discretion (a) to retain in the Escrow Agent's possession
without liability to anyone all or any part of the Deposit until such disputes
shall have been settled either by mutual written agreement of the parties
concerned or by a final order, decree or judgment of a court of competent
jurisdiction after the time for appeal has expired and no appeal has been
perfected, but the Escrow Agent shall be under no duty whatsoever to institute
or defend any such proceedings or (b) to deliver the Deposit to a state or
federal court having competent subject matter jurisdiction and located in the
State of Florida in accordance with the applicable procedure therefor.
ARTICLE IV
REMEDIES
4.01 Arbitration. Any controversy or claim arising out of, or relating to,
this Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in Orlando, Florida, in accordance with the Rules of the
American Arbitration Association then existing, and judgment on the arbitration
award may be entered in any court having jurisdiction over the subject matter of
the controversy.
4.03 Indemnification. Each of the Stockholders and The Company jointly and
severally agree to indemnify Escrow Agent and PURCHASERS against all actual
losses, damages and expenses caused by (i) any material breach of this Agreement
by them or any material misrepresentation of the Stockholders contained herein,
or (ii) any misstatement of a material fact or omission to state a material fact
required to be stated herein or necessary to make the statements herein not
misleading.
4.04 Other Remedies. The forgoing indemnification provision is in addition
to, and not derogation of, any statutory, equitable or common law remedy any
party may have for breach of representation, warranty, covenant or agreement.
ARTICLE V
MISCELLANEOUS
5.01 Captions and Headings. The article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
5.02 No Oral Change. This Agreement and any provision hereof may not be
waived, changed, modified, or discharged orally but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
5.03 Non Waiver. Except as otherwise expressly provided herein, no waiver
of any covenant, condition, or provision of this Agreement shall be deemed to
have been made unless expressly in writing and signed by the party against whom
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such waiver is charged; and (i) the failure of any party to insist in any one or
more cases upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein contained shall
not be construed as a waiver or relinquishment for the future of any such
provisions, covenants, or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the breach
or failure of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of one breach
by another party shall be construed as a waiver with respect to any other or
subsequent breach.
5.04 Entire Agreement. This Agreement, including any and all attachments
hereto, if any, contains the entire Agreement and understanding between the
parties hereto and supersedes all prior agreements and understandings, whether
written or oral.
5.05 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures will
be acceptable to all parties as originals.
5.06 Notices. 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 party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, or on the second day if faxed, and properly addressed or faxed as
follows:
If to The Company or any of the Stockholders:
IF to Purchaser:
If to Escrow Agent:
J. Bennett Grocock
919 Outer Rd, Suite A
Orlando, Florida 32814
Fax 407-425-0032
Phone 407-422-0300
5.07 Binding Effect. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives, successors and assigns of each of
the parties to this Agreement.
5.08 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall be true and
correct as of the closing and shall survive the Closing of this Agreement for a
period of one year.
5.09 Mutual Cooperation. The parties hereto shall cooperate with each other
to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
5.10 Counterpart Signatures. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
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delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
5.11 Severability. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affected or impaired thereby and the parties will attempt to agree
upon a valid and enforceable provision which shall be a reasonable substitute
therefor, and upon so agreeing, shall incorporate such substitute provision in
this Agreement.
In witness whereof, this Agreement has been duly executed by the parties
hereto as of the date first above written.
THE COMPANY
GRAY CREEK MINING, INC. STOCKHOLDERS
By: /s/ Alan Cox By: REPRESENTATIVE
----------------------------
Alan Cox, President
By: /s/ Alan Cox
----------------------------
Alan Cox
PURCHASERS
By: Can HOldings, LTD, representative
By: /s/ Jim Can
----------------------------
Jim Can, President
ESCROW AGENT
J. Bennett Grocock, P.A.
By: /s/ J. Bennett Grocock
----------------------------
J. Bennett Grocock, President
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