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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
ROBERT G. COUTU
AS PURCHASER
AND
ROBERT S. DAVIMOS
THE PRINCIPAL SHAREHOLDER OF
ELM TREE CAPITAL CORP.
September ___, 1999
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into this _________ day of September, 1999 by and between ROBERT G. COUTU, an
individual with an address of c/o Ocean Fresh Seafood, 9001 N.W. 97th Terrace,
Unit E, Medley, Florida 33178 (the "Purchaser") and ROBERT S. DAVIMOS
("Davimos"), an individual with an address of 1200 N. Federal Highway #400, Boca
Raton, Florida 33432, Davimos constituting the principal shareholder (and
referred to herein as the "Shareholder") of Elm Tree Capital Corp. (the
"Company").
RECITALS:
A. The Shareholder own an aggregate of 3,110,000 shares of the issued
and outstanding shares of the capital stock of the Company (the "Shares") in the
amounts set forth in Exhibit A attached hereto.
B. The Purchaser is willing to acquire all of the Shares.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. EXCHANGE OF SHARES
1.1 PURCHASE OF SHARES. The Purchaser agrees to purchase from the
Shareholder the Shares in exchange for the promissory note in the aggregate
principal amount of $50,000.00 (the "Note"), the form of which is attached
hereto as Exhibit B.
1.2 DELIVERY OF SHARES. On the Closing Date (as hereinafter defined),
the Shareholder will deliver to the Purchaser the certificate representing the
Share, duly endorsed (or with executed stock powers) so as to make the Purchaser
the sole owner thereof. Simultaneously, the Purchaser will deliver the Note.
1.3 INVESTMENT INTENT. The Shares have not been registered under the
Securities Act of 1933, as amended, and may not be resold unless the Shares are
registered under the Act or an exemption from such registration is available.
The Purchaser represents and warrants that he is acquiring the Shares for his
own account, for investment, and not with a view to the sale or distribution of
the Shares. The certificate representing the Shares will have a legend thereon
incorporating language as follows:
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). The shares have been acquired for investment and may
not be sold or
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transferred in the absence of an effective Registration
Statement for the shares under the Act unless in the opinion
of counsel satisfactory to the Company, registration is not
required under the Act.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
The Shareholder hereby represents and warrants as follows:
2.1 ORGANIZATION AND GOOD STANDING; OWNERSHIP OF SHARES. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Florida, and is entitled to own or lease its properties and
to carry on its business as and in the places where such properties are now
owned, leased or operated and such business is now conducted. The Company is
duly licensed or qualified and in good standing as a foreign corporation where
the character of the properties owned by it or the nature of the business
transacted by it make such licenses or qualifications necessary. The Company
does not have any subsidiaries. There are no outstanding subscriptions, rights,
options, warrants or other agreements obligating either the Company or the
Shareholder to issue, sell or transfer any stock or other securities of the
Company.
2.2 OWNERSHIP OF SHARES. The Shareholder is the owner of record and
beneficially of the Shares, all of which Shares are free and clear of all
rights, claims, liens and encumbrances, and have not been sold, pledged,
assigned or otherwise transferred except pursuant to this Agreement.
2.3 FINANCIAL STATEMENTS, BOOKS AND RECORDS. There has been previously
delivered to the Purchaser the audited balance sheet of the Company as at
______________ and the unaudited balance sheet as at ________________, 1999 (the
"Balance Sheet") and the related audited and unaudited statements of operations
for the periods then ended (the "Financial Statements"). The Financial
Statements are true and accurate and fairly represent the financial position of
the Company as at such dates and the results of its operations for the periods
then ended, and have been prepared in accordance with generally accepted
accounting principles consistently applied.
2.4 NO MATERIAL ADVERSE CHANGES. Since the date of the Balance Sheet
there has not been:
(i) any material adverse change in the assets, operations,
condition (financial or otherwise) or prospective business of the Company;
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of the Company, whether or not covered by insurance;
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(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or repurchase of the
Company's capital stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by the Company of any properties or
assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
2.5 TAXES. The Company has prepared and filed all appropriate federal,
state and local tax returns for all periods prior to and through the date hereof
for which any such returns have been required to be filed by it and has paid all
taxes shown to be due by said returns or on any assessments received by it or
has made adequate provision for the payment thereof.
2.6 COMPLIANCE WITH LAWS. The Company has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to it or its business
which, if not complied with, would materially and adversely affect the business
of the Company.
2.7 NO BREACH. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of the Company;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which the Company is a party or by or to which it or any of its assets or
properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon, the Company, or upon the properties or business of the Company; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a material adverse effect on the business or operations of the Company.
2.8 ACTIONS AND PROCEEDINGS. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving the Company. There is no action, suit
or claim or legal, administrative or arbitral proceeding or (whether or not the
defense thereof or liabilities in respect thereof are covered by
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insurance) pending or threatened against or involving the Company or any of its
properties or assets. Except as set forth on Schedule 2.8, there is no fact,
event or circumstance that may give rise to any suit, action, claim,
investigation or proceeding.
2.9 BROKERS OR FINDERS. No broker's or finder's fee will be payable by
the Company, the Purchaser or the Shareholder in connection with the transaction
contemplated by this Agreement, nor will any such fee be incurred as a result of
any actions by the Company or the Shareholder.
2.10 REAL ESTATE. The Company neither owns real property nor is a party
to any leasehold agreement.
2.11 TANGIBLE ASSETS. The Company has full title and interest in all
machinery, equipment, furniture, leasehold improvements, fixtures, vehicles,
structures, owned or leased by the Company, any related capitalized items or
other tangible property material to the business of the Company (the "Tangible
Assets"). The Company holds all rights, title and interest in all the Tangible
Assets owned by it on the Balance Sheet or acquired by it after the date of the
Balance Sheet, free and clear of all liens, pledges, mortgages, security
interests, conditional sales contracts or any other encumbrances. All of the
Tangible Assets are in good operating condition and repair and are usable in the
ordinary course of business of the Company and conform to all applicable laws,
ordinances and governmental orders, rules and regulations relating to their
construction and operation.
2.12 LIABILITIES. The Company does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
Balance Sheet. As of the Closing Date, the Company will not have any
Liabilities, other than Liabilities fully and adequately reflected on the
Balance Sheet, except for Liabilities incurred in the ordinary course of
business.
2.13 OPERATIONS OF THE COMPANY. Except as set forth on Schedule 2.13,
from the date of the Balance Sheet and through the Closing Date hereof the
Company has not and will not have:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
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(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of the Company except in the
ordinary course of business; or
(vi) materially increased the annual rate of compensation of
any executive employee of the Company;
(vii) increased, terminated, amended or otherwise modified any
plan for the benefit of employees of the Company;
(viii) issued any equity securities or rights to acquire such
equity securities; or
(ix) except in the ordinary course of business, entered into
or modified any contract, agreement or transaction.
2.14 CAPITALIZATION. The authorized capital stock of the Company
consists of 50,000,000 shares of common stock of which 3,560,000 shares are
presently issued and outstanding. Neither the Company nor the Shareholder has
granted, issued or agreed to grant, issue or make available any warrants,
options, subscription rights or any other commitments of any character relating
to the issued or unissued shares of capital stock of the Company.
2.15 FULL DISCLOSURE. No representation or warranty by the Company or
the Shareholder in this Agreement or in any document or schedule to be delivered
by each of them pursuant hereto, and no written statement, certificate or
instrument furnished or to be furnished to the Company pursuant hereto or in
connection with the negotiation, execution or performance of this Agreement,
contains or will contain any untrue statement of a material fact or omits or
will omit to state any fact necessary to make any statement herein or therein
not materially misleading or necessary to a complete and correct presentation of
all material aspects of the businesses of the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Shareholder as
follows:
3.1 DUE AUTHORIZATION. The Purchaser is duly authorized to undertake
this Agreement and the Agreement does not conflict with any agreements,
obligations or legal requirements binding on the Purchaser.
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3.2 THE NOTE. The Note to be issued by the Purchaser has been or will
have been duly authorized by all necessary actions and, when so issued in
accordance with the terms of this Agreement, will be validly issued.
3.3 NO BREACH. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which the Purchaser may be bound or subject;
(ii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon the Purchaser; or
(iii) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a material adverse effect on the business or operations of the Company.
3.4 BROKERS OR FINDERS. No broker's or finder's fee will be payable by
the Purchaser in connection with the transactions contemplated by this
Agreement, nor will any such fee be incurred as a result of any actions by the
Purchaser.
3.5 AUTHORITY TO EXECUTE AND PERFORM AGREEMENTS. The Purchaser has the
full legal right and power and all authority and approval required to enter
into, execute and deliver this Agreement and to perform fully his obligations
hereunder. This Agreement has been duly executed and delivered and is the valid
and binding obligation of the Purchaser enforceable in accordance with its
terms, except as may be limited by bankruptcy, moratorium, insolvency or other
similar laws generally affecting the enforcement of creditors' rights. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and the performance by the Purchaser of this
Agreement, in accordance with its respective terms and conditions will not:
(i) require the approval or consent of any governmental or
regulatory body; or
(ii) conflict with or result in any breach or violation of any
of the terms and conditions of, or constitute (or with any notice or lapse of
time or both would constitute) a default under, any order, judgment or decree
applicable to the Purchaser, or any instrument, contract or other agreement to
which the Purchaser is a party or by or to which the Purchaser is bound or
subject.
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3.6 FULL DISCLOSURE. No representation or warranty by the Purchaser in
this Agreement or in any document or schedule to be delivered by it pursuant
hereto, and no written statement, certificate or instrument furnished or to be
furnished to the Company or the Shareholder pursuant hereto or in connection
with the execution or performance of this Agreement contains or will contain any
untrue statement of a material fact or omits or will omit to state any fact
necessary to make any statement herein or therein not materially misleading or
necessary to a complete and correct presentation of all material aspects of the
business of the Purchaser.
SECTION 4. COVENANTS
4.1 CORPORATE EXAMINATIONS AND INVESTIGATIONS. Prior to the Closing
Date, each of the parties acknowledges that he has been entitled, through his
employees and representatives, to make such investigation of the assets,
properties, business and operations, books, records and financial condition of
the other as they each may reasonably require. No investigation by any party
hereto shall, however, diminish or waive in any way any of the representations,
warranties, covenants or agreements of any of the other parties under this
Agreement.
4.2 EXPENSES. Each party hereto agrees to pay his own costs and
expenses incurred in negotiating this Agreement and consummating the
transactions described herein.
4.3 FURTHER ASSURANCES. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. Each party shall use his best efforts to fulfill or obtain the
fulfillment of the conditions to the Closing (as hereinafter defined),
including, without limitation, the execution and delivery of any documents or
other papers, the execution and delivery of which are necessary or appropriate
to the Closing.
4.4 CONFIDENTIALITY. In the event the transactions contemplated by this
Agreement are not consummated, each of the parties agrees to keep confidential
any information disclosed to each other in connection therewith for a period of
one (1) year from the date hereof; provided, however, such obligation shall not
apply to information which:
(i) at the time of disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge
(except due to the action of the receiving party); or
(iii) the receiving party had within its possession at the
time of disclosure.
4.5 STOCK CERTIFICATES. At the Closing, the Shareholder shall have
delivered the certificate representing the Shares duly endorsed (or with
executed stock powers) so as to make the Purchaser the sole owner thereof. At
the Closing, the Purchaser shall issue to the Shareholder the Note.
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SECTION 5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Notwithstanding any right of the Shareholder fully to investigate the
affairs of the Purchaser, the Shareholder shall have the right to rely fully
upon the representations, warranties, covenants and agreements of the Purchaser
contained in this Agreement or in any document delivered by the Purchaser or any
of his representatives, in connection with the transactions contemplated by this
Agreement. All such representations, warranties, covenants and agreements shall
survive the execution and delivery hereof and the Closing Date hereunder for
twelve (12) months following the Closing.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SHAREHOLDER
Notwithstanding any right of the Purchaser fully to investigate the
affairs of the Company and the Shareholder, the Purchaser has the right to rely
fully upon the representations, warranties, covenants and agreements of the
Company and the Shareholder contained in this Agreement or in any document
delivered to the Purchaser by the Shareholder or any of his representatives in
connection with the transaction contemplated by this Agreement. All such
representations, warranties, covenants and agreements shall survive the
execution and delivery hereof and the Closing Date hereunder for twelve (12)
months following the Closing.
SECTION 7. INDEMNIFICATION
7.1 OBLIGATION OF THE PURCHASER TO INDEMNIFY. Subject to the
limitations on the survival of representations and warranties contained in
Section 5, the Purchaser hereby agrees to indemnify, defend and hold harmless
the Shareholder from and against any losses, liabilities, damages, deficiencies,
costs or expenses (including interest, penalties and reasonable attorneys' fees
and disbursements) (a "Loss") based upon, arising out of or otherwise due to any
inaccuracy in or any breach of any representation, warranty, covenant or
agreement of the Purchaser contained in this Agreement or in any document or
other writing delivered pursuant to this Agreement.
7.2 OBLIGATION OF THE COMPANY AND THE SHAREHOLDER TO INDEMNIFY. Subject
to the limitations on the survival of representations and warranties contained
in Section 6, the Shareholder agrees to indemnify, defend and hold harmless the
Purchaser from and against any Loss, based upon, arising out of or otherwise due
to any inaccuracy in or any breach of any representation, warranty, covenant or
agreement made by him and contained in this Agreement or in any document or
other writing delivered pursuant to this Agreement.
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SECTION 8. THE CLOSING
The closing of the transaction contemplated by this Agreement (the
"Closing") shall take place simultaneously with the execution hereof (the
"Closing Date"). At the Closing, the parties shall provide each other with such
documents as may be necessary or appropriate in order to consummate the
transactions contemplated hereby including evidence of due authorization of the
Agreement and the transactions contemplated hereby.
SECTION 9. MISCELLANEOUS
9.1 WAIVERS. The waiver of a breach of this Agreement or the failure of
any party to exercise any right under this Agreement shall in no event
constitute waiver as to any future breach whether similar or dissimilar in
nature or as to the exercise of any further right under this Agreement.
9.2 AMENDMENT. This Agreement may be amended or modified only by an
instrument of equal formality signed by each of the parties or the duly
authorized representatives of the respective parties.
9.3 ASSIGNMENT. This Agreement is not assignable except by operation of
law.
9.4 NOTICES. Until otherwise specified in writing, the mailing
addresses of the parties of this Agreement is as follows:
Purchaser: ROBERT G. COUTU
c/o Ocean Fresh Seafood
9001 N.W. 97th Terrace, Unit E
Medley, Florida 33178
Shareholder: ROBERT S. DAVIMOS
1200 N. Federal Highway #400
Boca Raton, Florida 33432
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to such other party.
9.5 GOVERNING LAW. This Agreement shall be construed, and the legal
relations be the parties determined, in accordance with the laws of the State of
Florida, thereby precluding any choice of law rules which may direct the
application of the laws of any other jurisdiction.
9.6 PUBLICITY. No publicity release or announcement concerning this
Agreement or the transaction contemplated hereby shall be issued by any party at
any time from the signing hereof
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without advance approval in writing of the form and substance thereof by each of
the other parties.
9.7 ENTIRE AGREEMENT. This Agreement (including the Exhibits and
Schedules hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the purchase and issuance of the
Shares and related transactions, and supersede all prior agreements, written or
oral, with respect thereto.
9.8 HEADINGS. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
9.9 SEVERABILITY OF PROVISIONS. The invalidity or unenforceability of
any term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
9.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
PURCHASER:
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ROBERT G. COUTU
SHAREHOLDER:
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ROBERT S. DAVIMOS
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EXHIBIT A
Shareholder No. of Shares
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Robert S. Davimos 3,110,000
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EXHIBIT B
PROMISSORY NOTE
$50,000.00 September ___, 1999
FOR VALUE RECEIVED, the undersigned (the "Maker"), promises to pay to
the order of ROBERT S. DAVIMOS (the "Payee"), the principal sum of $50,000.00
one (1) year from the date hereof in lawful money of the United States, in hand
or at the principal office of the Payee as may from time to time be designated
by the Payee. This Note shall bear interest on the unpaid principal balance from
the date first written above and until paid at the rate of seven percent (7%)
per annum. Interest shall be due and payable at the time of and together with
the payment of the principal amount of this Note. All payments on account of the
indebtedness evidenced by this Note shall be applied first to interest accrued
on the unpaid principal balance and the remaining to principal. This Note may be
prepaid in whole or in part of any amount.
In the event of any default in any payment on this Note, then after
such default in lieu of the rate of interest set forth above this Note shall
bear interest computed from the date of such default at one percent (1%) per
month, but in any event not in excess of the legally prescribed rate for
instruments of this kind. The term "event of default" as used herein, shall mean
the failure of Maker to make payment of principal and related interest due under
the Note on the date of maturity thereof and without requirement for any notice
of such default.
Any provision hereof which may prove unenforceable under any law shall
not affect the validity of any other provision hereof.
Maker hereby waives presentment for payment protest and notice of
protest and all other notices or demands in connection with the delivery,
acceptance, performance, default or endorsement of this Note.
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ROBERT G. COUTU
