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EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
Agreement made and entered into as of July 25, 2000, among Lam King
Ko, Alfred ("the Buyer"), having an address for purposes of this agreement
at c/o Bryan Cave LLP, 2020 Main Street, Suite 600, Irvine, California 92614
(hereinafter collectively referred to as "Buyer"), and Grant W. Peck, Dean F.
Sessions, Gary S. Joiner, Mark DiSalvo, John Stearns, Richard Stearns, Scott
Olson, Jay Lutsky, and Frank Jackson (hereinafter collectively referred to as
"Seller"), in respect of the sale of certain shares of common stock of Pacific
CMA, Inc., a Colorado corporation, having an address at 7331 S. Meadow Court,
Boulder, Colorado 80301 (hereinafter referred to as the "Company"), which shares
are owned of record and beneficially by Seller.
This Agreement sets forth the terms and conditions upon which Seller is
selling to the Buyer and the Buyer is today purchasing from the Seller
9,000,000 shares of the issued and outstanding common stock of the Company,
representing approximately 75% of the issued and outstanding common stock of
the Company (hereinafter referred to as the "Shares"). Exhibit A attached
hereto, and incorporated herein by this reference, lists the number of Shares
being sold by each of the individuals comprising the Seller.
In consideration of the mutual agreements contained herein, the parties
hereby agree as follows:
I. SALE OF THE SHARES
1.01 SHARES BEING SOLD. Subject to the terms and
conditions of this Agreement, the Seller is selling and transferring the Shares
to the Buyer at the closing provided for in Section 1.03 hereof (the "Closing"),
free and clear of all liens, charges, or encumbrances of whatsoever nature.
1.02 CONSIDERATION. An aggregate total of $45,000 shall
be due and payable under the terms of this Agreement for purchase of the Shares.
Exhibit A attached hereto and incorporated herein by this reference lists the
portion of the purchase price payable to each of the individuals comprising the
Seller. The purchase price shall be payable through Buyer's execution, at
Closing, of an aggregate of four promissory notes in favor Seller substantially
in the form attached hereto as Exhibit B and incorporated herein by this
reference.
1.03 CLOSING. The Closing of the transactions provided
for in Section 1.04 and 1.05 shall take place at 4750 Table Mesa Drive, Boulder,
Colorado 80303 at 4:00 P.M., local time, on August 28, 2000, or at such other
date and time as the parties may mutually agree in writing.
1.04 DELIVERY BY THE SELLER. At the Closing, the Seller
shall deliver to the Buyer (i) certificates representing the Shares, endorsed in
blank and otherwise in form acceptable for transfer on the books of the Company,
with all necessary transfer tax stamps attached, and (ii) all contracts, books
and records of the Company not previously delivered.
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1.05 DELIVERY BY THE BUYER. At the Closing the Buyer
shall deliver to the Seller the promissory note referenced in Section 1.02
hereof.
II. RELATED TRANSACTIONS.
2.01 FINDER. Except as disclosed in the Consulting
Agreement between AGI Logistics (H.K.), Ltd., a Hong Kong corporation
("AGI"), and PCMA, Inc., dated as of June 1, 2000, Seller and Buyer
acknowledge that there were no finders with respect
to the transaction contemplated herein.
2.02 RESIGNATIONS. At the Closing, all of the current
directors and officers of the Company shall deliver their resignations after
having elected the designees of the Buyer.
2.03 EXECUTION OF STOCK EXCHANGE AGREEMENT. Buyer is
purchasing the Shares in anticipation of the completion of a share exchange
transaction between the Company and the sole stockholder of AGI. Accordingly, it
shall be a condition precedent to Closing hereunder that the Company shall have
executed a Stock Exchange Agreement (the "SEA") substantially in the form
attached hereto as Exhibit C and incorporated herein by this reference.
III. REPRESENTATIONS AND WARRANTIES OF COMPANY AND SELLER.
The individuals executing this Agreement as a Seller hereby jointly and
severally represent and warrant as follows:
3.01 ORGANIZATION. The Company is organized, validly
existing and in good standing under the laws of the State of Colorado and has
full corporate power to conduct its business as it is now being conducted and to
own or hold under lease the properties and assets it now owns or holds under
lease. The Company is qualified in no other state. The Company has conducted no
business since its organization other than the completion of its initial public
offering.
3.02 CAPITALIZATION. The authorized capital stock of the
Company consists of 100,000,000 shares of Common Stock without par value and
10,000,000 shares of Preferred Stock without par value. Immediately prior to
Closing, there will be issued and outstanding 12,000,000 shares of Common Stock
and no shares of Preferred Stock. All of such outstanding shares of the Company
Common Stock are validly issued, fully paid and non-assessable and are free of
any preemptive rights. There are no outstanding options, warrants, rights,
privileges or other arrangements, preemptive or contractual, to acquire any
shares of capital stock of the Company from the Company of any Seller.
3.03 SHAREHOLDERS' LIST. The Shareholder list dated
April 24, 2000, which is attached hereto as Exhibit D was prepared by Corporate
Stock Transfer, Inc., the Transfer Agent of the Company, and is a true and
correct copy of the current list of shareholders of the Company as of the date
of execution of this Agreement.
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3.04 AUTHORITY; NO VIOLATION. The execution, delivery,
and performance of this Agreement by the Company and by the Seller, and the
consummation by them of the transactions contemplated hereby have been duly
authorized. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will constitute a violation
or default under any term or provision of the Certificate of Incorporation or
bylaws of the Company, or of any contract, commitment, indenture, other
agreement or restriction of any kind or character to which the Company or any of
the individuals comprising the Seller is a party or by which the Company or the
Seller is bound.
3.05 SUBSIDIARIES AND INVESTMENTS. The Company has no
equity interest or other interest in any corporation, partnership, joint
venture or other entity.
3.06 FINANCIAL STATEMENTS. The Company has provided the
Buyer with a copy of its Form 10K-SB for the period ended December 31, 1999 and
with a copy of its Form 10Q-SB for the period ended March 31, 2000, both of
which have been filed with the Securities and Exchange Commission (the "SEC").
The financial statements contained therein, together with the notes thereto, are
complete and correct in all material respects, are in accordance with the books
and records of the Company, and present fairly the financial condition of the
Company and the results of its operations and changes in its financial position
as of the dates and for the periods indicated, and have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods covered by such statements. There has not been and
there will not be any material change to the March 31, 2000 balance sheet
contained in the Form 10Q-SB up to and including the Closing Date.
3.07 NO UNDISCLOSED LIABILITIES. The Company has no
liabilities or obligations (whether or as contemplated by this Agreement,
absolute, accrued, contingent or otherwise and whether due or to become due),
except liabilities and obligations (a) fully reflected or reserved against in
the December 31, 1999, audited balance sheet or disclosed in the notes thereto
or (b) incurred since the date of the March 31, 2000 balance sheet. Further,
neither the Seller nor the Company knows or has any reasonable ground to know of
any basis for the assertion against the Company of any liability or obligation
of any nature or in any amount not fully reflected or reserved against in the
March 31, 2000, balance sheet or Schedule 3.07 attached hereto.
3.08 TAXES. The Company has timely filed in accordance
with applicable law all tax returns and tax reports required to be filed by it
under any applicable law on or before the Closing with respect to all fiscal
periods ended before the Closing. Such returns and reports are true, correct,
and complete in all material respects. The Company has timely paid all income,
profits, franchise, sales, use, occupation, property, excise, withholding and
all other taxes, fees and governmental charges (including interest and
penalties, if any) with respect to present and prior periods to the extent they
have become due, except such as are being contested in good faith by appropriate
proceedings and for which adequate reserves to fully cover such liability have
been provided on the March 31, 2000 balance sheet. There are no tax liens upon
any properties or assets of the Company. All deficiencies and assessments
resulting from examination of state, local and foreign tax returns and reports
of the Company have been paid, except such as are being contested in good faith
by
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appropriate proceedings. There are no outstanding agreements or waivers
extending the statutory period of limitation applicable to any Federal, state,
local or foreign tax return or report for any period. The Company is not a party
to any tax-sharing or tax allocation agreement.
3.09 ABSENCE OF CERTAIN CHANGES. The Company has not
since March 31, 2000, and as of the Closing will not have:
(a) Suffered any material adverse change in
financial condition, assets, liabilities, business, or
prospects;
(b) Incurred any additional obligations or
liabilities (whether absolute, accrued, contingent, or otherwise) which it
either has not previously satisfied or will not satisfy at or before Closing;
(c) Paid any claim or discharged or
satisfied any lien or encumbrance or paid or satisfied any liability
(whether absolute, accrued, contingent, or otherwise) other than liabilities
shown or reflected in the Company's March 31, 2000 balance sheet or liabilities
incurred since March 31, 2000 and listed on Schedule 3.09 hereto;
(d) Declared, paid, or set aside for payment to
its stockholders any dividend or other distribution in respect of its capital
stock or redeemed or purchased or otherwise acquired any of its capital stock or
any options relating thereto or agreed to take any such
action; or
(e) Made any material change in any method of
accounting or accounting practice.
3.10 LITIGATION. There are no actions, proceedings, or
investigations pending or, to the knowledge of the Company or the Seller,
threatened against the Company, and neither the Company nor the Seller know or
have any reason to know of any basis for any such action, proceedings, or
investigation. There is no event or condition of any kind or character
pertaining to the business, assets, or prospects of the Company that may
materially and adversely affect such business, assets or prospects.
3.11 DISCLOSURE. The Seller has disclosed to the Buyers
all facts material to the assets, prospects, and business of the Company. No
representation or warranty by the Seller contained in this Agreement, and no
statement contained in any instrument, list, certificate, or writing furnished
to the Buyers pursuant to the provisions hereof or in connection with the
transaction contemplated hereby, contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading or necessary in order to provide a
prospective purchaser of the Company with proper information as to the Company
and its affairs.
3.12 SEC FILINGS. The Company filed a registration
statement on Form 10-SB under the Securities Exchange Act of 1934 on October 14,
1999, which, in accordance with Section 12(g) under such Act became effective on
or about December 14,1999. On or about December 21, 1999,
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the Company filed an amended registration statement on Form 10-SB/A in response
to a comment letter from the SEC dated November 30, 1999. The filing on Form
10-SB/A fully responded to all SEC comments, and following such filing, the SEC
verbally advised the Company that it had no further comments. Thereafter, the
Company has filed all periodic reports required to be filed with the SEC on a
timely basis and as of the date hereof, is current in its filing obligations.
3.13 FULL DISCLOSURE. The Company and each of the
individuals executing this Agreement as a Seller have provided the Buyer with
full disclosure of all material information known to them regarding the Company
and the Shares. None of the representations and warranties made herein, or in
any other certificate or memorandum furnished or to be furnished to Buyer by the
Company or by any of the individuals executing this Agreement as Seller,
contains or will contain any untrue statement of material fact, or omit any
material fact the omission of which would be misleading.
IV. REPRESENTATIONS AND WARRANTIES BY THE BUYER.
The Buyer hereby represents and warrants as
follows:
4.01 AUTHORITY; NO VIOLATION. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will constitute a violation or default under any term or provision of any
contract, commitment, indenture, other agreement or restriction of any kind or
character to which the Buyer is a party or by which the Buyer is bound.
4.02 REPRESENTATIONS REGARDING THE ACQUISITION OF THE SHARES.
(a) The Buyer understands that the Shares have
not been registered under the Securities Act of 1933, as amended, and,
accordingly, may constitute restricted securities as that term is defined in
Rule 144 under sch Act and that such shares may not be sold or transferred in
the absence of a registration statement or an available exemption from
registration;
(b) The Buyer understands the speculative
nature and risks of investments associated with the Company and confirms that
it is able to bear the risk of the investment, and that there may not be any
public market for the Shares purchased herein;
(c) The Buyer understands that neither the
Company nor the Seller is under an obligation to register or seek an exemption
under any federal and/or state securities acts for any sale or transfer of the
Shares by the Buyer, and Buyer is solely responsible for determining the status,
in its hands, of the shares acquired in the transaction and the availability, if
required, of exemptions from registration for purposes of sale or transfer of
the Shares; and
(d) The Buyer has had the opportunity to ask
questions of the Company and the Seller and receive additional information
from the Company to the extent that the Company possessed such information, or
could acquire it without unreasonable effort or expense necessary to evaluate
the merits and risks of any investment in the Company. Further, the Buyer has
been given: (1) All material books and records of the Company; (2) all material
contracts and documents relating
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to the proposed transaction; (3) all filings made with the SEC; and, (4) an
opportunity to question the appropriate executive officers of the Company and
each of the individuals comprising the Seller.
V. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.
5.01 SURVIVAL OF REPRESENTATIONS. All representations,
warranties, and covenants made by any party in this Agreement and in any other
certificates and documents, including, but not limited to, the SEA, delivered in
connection herewith or therewith shall survive the execution and delivery hereof
and any investigation at any time made by or on behalf of any party and shall
apply until the expiration of the applicable statute of limitations.
5.02 INDEMNIFICATION BY SELLER. Each individual Seller
hereby agrees jointly and severally to indemnify the Buyer and to
hold him harmless from and in respect of any assessment, loss, damage,
liability, cost, and expense (including, without limitation, interest,
penalties, and reasonable attorneys' fees), imposed upon or incurred by the
Buyer resulting from a breach of any agreement, representation, warranty, or
covenant of the Seller, including, but not limited to, any undisclosed
liabilities or obligations of the Company, whether known by Seller or not.
Assertion by the Buyer of its right to indemnification under this Section 5.02
shall not preclude the assertion by the Buyer of any other rights or the seeking
of any other remedies against the Seller.
5.03 INDEMNIFICATION BY BUYER. The Buyer hereby agrees
to indemnify each individual Seller and to hold him harmless from and in respect
of any assessment, loss, damage, liability, cost, and expense (including,
without limitation, interest, penalties, and reasonable attorneys' fees),
imposed upon or incurred by the Seller resulting from a breach of any agreement,
representation, warranty, or covenant of the Buyer, whether known by Buyer or
not.
5.04 TIMELY NOTICE OF INDEMNIFICATION. The parties shall
be entitled to indemnification hereunder only in respect of claims for which
notice of an indemnifiable claim shall have been given to the indemnifying party
on or before 20 days from the date on which an indemnifiable claim is made
against such indemnified party or such other time as may be reasonable under the
circumstances of the breach or discovery thereof.
VI. ADDITIONAL CONDITIONS TO CLOSING
6.01 OBLIGATION OF BUYER TO CLOSE. Buyer shall not be
obligated to close this transaction unless:
(a) Buyer is satisfied with the condition of
the Company following a due diligence review of the books, records, business
and affairs of the Company. The Seller agrees to provide Buyer and its agents
complete access to all of the Company's books, records and personnel for
purposes of enabling Buyer to conduct its investigation.
(b) There are no material liabilities on the
books of the Company, other than as disclosed in the Company's financial
statements for March 31, 2000, or Schedule 3.07 hereto, and there are no
undisclosed or contingent liabilities.
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(c) There have been no changes in the Company's
business or capitalization between the date of signing this Agreement and the
date of Closing, other than as required herein.
(d) The Company has completed and filed all
documentation, reports, schedules and other information necessary to bring
the Company into compliance with the rules and regulations of the SEC under the
Securities Exchange Act of 1934, including, but not limited to, a notice to
shareholders regarding the proposed change in directors as required by Rule
14f-1.
(e) The current officers and directors of the
Company shall have tendered their resignations effective as of the date of
Closing, and the current directors shall have appointed persons designated by
Buyers as successor members of the Board of Directors to fill the vacancies
created by the resignation of the current directors.
6.02 SELLER'S OBLIGATION TO CLOSE. Seller shall not be
obligated to close this transaction unless:
(a) Following a due diligence review of the
affairs of AGI and its proposed business plan, Seller is satisfied with its
plan for completion of a business combination transaction involving the Company
in accordance with Section 2.03 hereof.
(b) The Company shall have executed the SEA,
substantially in the form attached hereto as Exhibit C.
VII. MISCELLANEOUS
7.01 EXPENSES. Each of the parties shall bear its own
expenses incurred in conjunction with the Closing hereunder.
7.02 FURTHER ASSURANCES. From time to time, at the
request of the Buyer and, without further consideration, the Seller shall
execute and transfer such documents and take such action as the Buyer may
reasonably request in order to effectively consummate the transactions herein
contemplated.
7.03 PARTIES IN INTEREST. All the terms and provisions
of this Agreement shall be binding upon, shall inure to the benefit of, and
shall be enforceable by the heirs, beneficiaries, representatives, successors,
and assigns of the parties hereto.
7.04 PRIOR AGREEMENTS; AMENDMENTS. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to the subject matter hereof. This Agreement may be amended only by a
written instrument duly executed by the parties hereto or their respective
successors or assigns.
7.05 HEADINGS. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretations of this Agreement.
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7.06 CONFIDENTIALITY. Each party hereby agrees that all
information provided by the other party and identified as "confidential" will be
treated as such, and the receiving party shall not make any use of such
information other than with respect to this Agreement. If the Agreement shall be
terminated, each party shall return to the other all such confidential
information in their possession, or will certify to the other party that all of
such confidential information that has not been returned has been destroyed.
7.07 NOTICES. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed (registered or certified mail, postage
prepaid, return receipt requested) as follows:
If to the Seller:
c/o Gary S. Joiner, Esq.
Frascona, Joiner, Goodman & Greenstein, P.C.
4750 Table Mesa Drive
Boulder, Colorado 80305
If to the Buyer:
c/o Randolf W. Katz, Esq.
Bryan Cave LLP
2020 Main Street, Suite 600
Irvine, California 92614
7.08 EFFECT. In the event any portion of this Agreement
is deemed to be null and void under any state or federal law, all other portions
and provisions not deemed void or voidable shall be given full force and effect.
7.09 COUNTERPARTS. This Agreement may be executed
simultaneously in several counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the Buyer, the Seller and the Company on the date first above
written.
BUYER:
/s/ Alfred Lam King Ko
--------------------------
Lam King Ko, Alfred
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SELLERS:
/s/ Grant W. Peck /s/ John Stearns
------------------------------- ------------------------------
Grant W. Peck John Stearns
/s/ Dean F. Sessions /s/ Richard Stearns
------------------------------- ------------------------------
Dean F. Sessions Richard Stearns
/s/ Gary S. Joiner /s/ Scott Olson
------------------------------- ------------------------------
Gary S. Joiner Scott Olson
/s/ Mark DiSalvo /s/ Jay Lutsky
------------------------------- ------------------------------
Mark DiSalvo Jay Lutsky
/s/ Frank Jackson
-------------------------------
Frank Jackson
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EXHIBIT A
TO
STOCK PURCHASE AGREEMENT
Dated July 25, 2000
<TABLE>
<CAPTION>
Name of Selling Number of Shares Selling
Shareholder Sold Price
---------------- ---------------- ------------
<S> <C> <C>
Mark DiSalvo 1,571,563 $ 7,857.82
Frank Jackson 565,000 $ 2,825.00
Gary S. Joiner 1,656,063 $ 8,280.31
Jay Lutsky 490,000 $ 2,450.00
Scott Olson 515,000 $ 2,575.00
Grant W. Peck 1,851,812 $ 9,259.06
Dean Sessions 1,860,562 $ 9,302.81
John Stearns 294,000 $ 1,470.00
Richard Stearns 196,000 $ 980.00
---------------- ------------
Total 9,000,000 $45,000.00
</TABLE>
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