Stock Purchase Agreement_original.txt

Execution Version

STOCK PURCHASE AGREEMENT

      This STOCK PURCHASE AGREEMENT (this  “Agreement”)  is entered into this day of 	, 2018 (the “Effective Date”), by and between ACQUISITION CO., a Delaware corporation (“Buyer”), and Target LLC, a Florida limited liability company (“Seller”). Buyer and Seller are sometimes referred to collectively herein as the “Parties” and singularly as a “Party.”

R E C I T A L S:

      WHEREAS, Seller owns [# of shares], which represents fifty percent (50%) of the issued and outstanding capital stock (the “Shares”) of ACQUIRED BUSINESS, INC., a Florida corporation (the “Company”), and desires to sell the Shares to Buyer, and Buyer wishes to purchase the Shares from Seller (the “Transaction”) pursuant to the terms and conditions of this Agreement. The
Company  owns  an  approximate  55-acre  site  located  at	and  more
particularly described on Exhibit “A” hereto (“Property”) which Property is currently used to house container ships and ancillary uses thereto.

      NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and intending to be legally bound hereby, the Parties agree as follows:

           SECTION 1 PURCHASE AND SALE OF SHARES

      1.1 Purchase and Sale Transaction. As of the Closing Date, and subject to the terms and conditions of this Agreement, Buyer hereby purchases from Seller, and Seller sells to Buyer, all of the Shares, for the consideration specified herein. In furtherance of such sale, as of the Closing Date, Seller hereby transfers, and is deemed to have transferred, all right, title and interest to the Shares and has duly executed and delivered to Buyer a stock power transferring all such Shares to Buyer in accordance with Section 1.4 below.

      1.2 Purchase Price. The aggregate purchase price (the “Purchase Price”) for the Shares shall be Eighteen Million Dollars ($18,000,000.00), which shall be paid by Buyer as follows:

                     A non-refundable deposit in the amount of One Hundred and Fifty Thousand Dollars ($150,000.00) shall be paid to Seller simultaneously with the execution of this Agreement (the “Initial Deposit”); and

                     In the event Buyer extends the Initial Termination Date in accordance with Section 2.2, an additional non-refundable deposit in the amount of One Hundred and Fifty Thousand Dollars ($150,000.00) shall be paid to Seller simultaneously with the delivery of the Extension Notice (the “Extension Deposit,” and together with the Initial Deposit shall be referred to herein as the “Non-refundable Deposit”); and

                     The amount of the Purchase Price less the Non-refundable Deposit shall be paid to Seller on the Closing Date.

      1.3 Delivery of Stock Certificates. At the Closing, Seller shall deliver to Buyer a stock certificate (or affidavits of lost certificate) evidencing the Shares, free and clear of all Encumbrances (as defined herein), duly endorsed in blank or accompanied by stock powers substantially in the form attached hereto as Exhibit A, or other instruments of transfer duly executed in blank, and Buyer shall deliver to Seller the Purchase Price in accordance with Section
4.2. Seller acknowledges that Seller shall cease to be a stockholder of the Company, and shall have no further rights as such, as of the Closing Date.

      1.4 Closing. The closing of the Transaction (the “Closing”) will take place at such time and on such date as mutually agreed to by the parties (the actual date of Closing being referred to herein as the “Closing Date”), provided, however, that the Closing shall occur on or before the Initial Termination Date, or, if such date is extended pursuant to Section 2.2, the Final Termination Date.

      1.5 Conditions to Closing.

                     The obligation of Seller to sell, transfer and assign the Shares to Buyer hereunder is subject to the satisfaction of the following conditions as of the Closing:

                  (i) The representations and warranties of Buyer in Section 3.2 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

                  (ii) Buyer shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date.

                     The obligation of Buyer to purchase the Shares from Seller is subject to the satisfaction of the following conditions as of the Closing:

                  (i) The representations and warranties of Seller in Section 3.1 shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

                  (ii) Seller shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date.






below:

SECTION 2 TERMINATION

2.1 Termination of Agreement. The Parties may terminate this Agreement as provided

Buyer and Seller may terminate this Agreement by mutual written consent

at any time prior to the Closing;

                     Buyer may terminate this Agreement by giving written notice to Seller at any time prior to the Closing (1) in the event Seller has breached any representation, warranty, or covenant contained in this Agreement in any material respect, (2) unless extended pursuant to Section 2.2, if the Closing shall not have occurred on or before December 12, 2018 (the “Initial Termination Date”), or (3) by reason of the failure of any condition precedent under Section 1.5 hereof;

                     Seller may terminate this Agreement by giving written notice to Buyer at any time prior to the Closing (1) in the event Buyer has breached any representation, warranty, or covenant contained in this Agreement in any material respect, (2) unless extended pursuant to Section 2.2, if the Closing shall not have occurred on or before the Initial Termination Date, or (3) by reason of the failure of any condition precedent under Section 1.5 hereof; and

If the Closing has not occurred on or before the Final Termination Date.

      2.2 Extension. Provided that Seller has not terminated this Agreement pursuant to Section 2.1(c)(1), Buyer may, in its sole discretion, extend the Initial Termination Date to February 12, 2019 (the “Final Termination Date”) by delivering, on or before the Initial Termination Date, to Seller: (i) written notice of Buyer’s intention to extend the Initial Termination Date (the “Extension Notice”); and (ii) the Extension Deposit.

      2.3 Effect of Termination. If any Party terminates this Agreement pursuant to Section 2.1, all rights and obligations of the Parties hereunder shall terminate without any liability of any Party to any other Party; provided, however, that if Buyer terminates this Agreement in accordance with Section 2.1(b)(1), Seller shall, within five (5) days of the termination of this Agreement, repay the Non-refundable Deposit to Buyer in accordance with Section 4.2. If this Agreement is terminated for any reason other than those set forth in Section 2.1(b)(1), Seller may retain the Non- refundable Deposit as liquidation damages.

              SECTION 3 REPRESENTATIONS AND WARRANTIES

      3.1 Representations and Warranties of Seller. Seller represents and warrants to Buyer as follows:

Authority of Seller. Seller has full power and authority to execute and deliver this Agreement and perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Seller enforceable in accordance with the terms and conditions set forth herein. Seller need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any government or governmental agency in order to consummate the transaction contemplated by this Agreement. The execution, delivery and performance of this Agreement, and all other agreements contemplated hereby, have been duly authorized by Seller.

            (a) Ownership of the Shares. Seller holds of record and beneficially owns the Shares free and clear of any restrictions on transfer, taxes, liens, options, warrants, purchase rights, contracts, commitments, and claims (collectively, “Encumbrances”). Seller is not a party to any

option, warrant, purchase right, or other contract or commitment that would require Seller to sell, transfer or otherwise dispose of the Shares, other than this Agreement.

            (b) Consideration. Seller represents that the Purchase Price given in consideration for the Shares was freely negotiated in an arms-length transaction between Seller and Buyer. Seller also represents that it was afforded full access to the books and financial records of Buyer in connection with the negotiation of this Agreement, and that in light of such information the Purchase Price is reasonable consideration for the transfer of the Shares.

            (c) Binding Obligation. This Agreement has been duly authorized, executed and delivered by Seller and (assuming due authorization, execution and delivery by Buyer) constitutes a valid and binding obligation of Seller enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors rights generally.

            (d) Conflict With Laws. The execution and delivery of this Agreement and the performance hereunder by Seller does not and will not conflict with or constitute a violation of any agreement or existing law, regulation, court order or consent decree to which Seller, or any of its assets is subject, or any court order, agreement, indenture, note or other obligation or instrument to which Seller is a party or by which Seller may be bound, nor is Seller otherwise in breach or in default of any of the foregoing.

            (e) Action, Suits. There is not pending or threatened any action, suit, proceeding (at law or in equity), or investigation before or by any court, administrative agency or public or private board against or affecting Seller or any of its assets, including the Shares, wherein an unfavorable decision, ruling or finding would adversely affect the validity or enforceability of this Agreement or would have a reasonable possibility of materially impairing the ability of Seller to perform its obligations hereunder.

      3.2 Representations and Warranties of Buyer. Buyer hereby represents and warrants to Seller as follows:

            (a) Authority of Buyer. Buyer has all requisite authority to execute and deliver this Agreement, to purchase the Shares and to perform all of the terms and conditions hereof. All necessary action has been taken by and on behalf of Buyer with respect to the execution, delivery and performance by Buyer of the Agreement and the transactions contemplated hereby.

            (b) Binding Obligation. This Agreement has been duly authorized, executed and delivered by Buyer and (assuming due authorization, execution and delivery by Seller) constitutes a valid and binding obligation of Buyer enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors rights generally.

SECTION 4 MISCELLANEOUS

      4.1 Recitals. The foregoing recitals are incorporated herein by reference and are made a substantive part of this Agreement.

       4.2 Payments. All payments made pursuant to this Agreement shall be made by cash or wire transfer, in immediately available funds, or other manner reasonably acceptable to party receiving such payment.

      4.3 Expenses. Each of Seller and Buyer shall be responsible for their own costs and expenses in reviewing this Agreement and the transaction contemplated by this Agreement, including legal fees and expenses.

      4.4 Resignation. Simultaneous with the Closing, [Erik Smith] hereby resigns from any positions as a director of the Company and from all offices of the Company.

      4.5 No Third Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.

      4.6 Entire Agreement. This Agreement, together with the exhibits attached hereto, constitutes the entire agreement among the Parties and supersedes any prior understandings, agreements, or representations by and among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof.

      4.7 Specific Performance. Seller agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with the terms hereof or were otherwise breached and that Buyer shall be entitled to an injunction or injunctions to prevent breaches of the provisions hereof and to specific performance of the terms hereof, in addition to any other remedy at law or equity.

      4.8 Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. No Party may assign this Agreement or any of his, her, or its rights, interests or obligations hereunder without the prior written consent of the other Party.

      4.9 Counterparts. This Agreement may be executed in one or more counterparts (including by means of electronic transmission) each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

      4.10 Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

      4.11 Notices. All notices, requests, demands, claims and other communications hereunder shall be in writing.

      4.12 Governing Law. This Agreement shall be governed by and construed in accordance with the domestic law of the State of Florida without giving effect to any choice or conflict of law provisions or rules that would cause the application of the laws of any jurisdiction other than the State of Florida.

      4.13 Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by Buyer and Seller. No waiver by

any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver, nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty, or covenant hereunder, or affect in any way any right arising by virtue of any prior or subsequent such default, misrepresentation, or breach of warranty or covenant.

      4.14 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and the provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

      4.15 Mutual Release. Seller, on the one hand, and Buyer, on the other hand, for themselves and their respective spouses, directors, officers, employees, shareholders, partners, principals, agents, successors, assignors, parent organizations, subsidiaries, affiliates, heirs, executors, administrators and assigns, as applicable (collectively, “Related Persons”), if any, hereby mutually release, remise, acquit and forever discharge each other, each other’s respective Related Persons, if any, from any and all claims, judgments, demands, causes of action, orders, suits, actions, controversies, counterclaims, third-party actions, proceedings, liabilities, obligations, contracts or agreements of any kind or nature whatsoever, without exception, known or unknown, accrued or unaccrued, whether in law or in equity, and whether in contract, warranty, tort or otherwise, arising from (i) Seller’s ownership of the Shares and/or (ii) the negotiation, execution, performance or termination of any agreements relating to Seller’s ownership of the Shares. Notwithstanding the foregoing paragraph, nothing herein shall be deemed to release Buyer and Seller from the performance of each of their respective obligations under this Agreement.

       4.16 Indemnification. Seller shall indemnify Buyer and hold Buyer harmless against and in respect of any and all losses, liabilities, damages, obligations, claims, Encumbrances, costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by Buyer resulting from any breach of any representation, warranty, covenant or agreement made by Seller herein or in any instrument or document delivered to Buyer pursuant hereto. Buyer shall indemnify Seller and hold Seller harmless against and in respect of any and all losses, liabilities, damages, obligations, claims, Encumbrances, costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by Seller resulting from any breach of any representation, warranty, covenant or agreement made by Buyer herein or in any instrument or document delivered to Seller pursuant hereto.



[SIGNATURE PAGE FOLLOWS]

Execution Version



Date.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective


BUYER:










SELLER:



By:	 [Name]
[Title]





















[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]

Execution Version

EXHIBIT A


IRREVOCABLE STOCK POWER

Dated:	, 2018


      FOR VALUE RECEIVED, the undersigned does hereby assign and transfer unto JEFFREY SOFFER, an individual residing in the State of Florida, [# of shares] shares of common stock (the “Common Stock”) of ________ (the “Corporation”), standing in its name on the books of the Corporation as certificate # 	, and does hereby irrevocably constitute and appoint the Corporation, as attorney-in-fact, to transfer said shares of Common Stock on the books of the Corporation with full power of substitution.

      IN WITNESS WHEREOF, the undersigned has executed and delivered this Irrevocable Stock Power as of the date first written above.


By: [Name of general partner], its general partner




By:	 [Name]
[Title]