SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
THIS SECURITIES PURCHASE
AGREEMENT, dated as of the date of acceptance set forth below, is entered
into by and between PEGASUS TEL, INC., a Delaware corporation (the “Company”),
and the undersigned (individually and collectively, the “Buyer”).
W I T N E S S E T
H:
WHEREAS, the Company and the
Buyer are executing and delivering this Agreement in accordance with and in
reliance upon the exemption from securities registration afforded by Section
4(2) promulgated under the Securities Act of 1933, as amended (the “Act”);
and
WHEREAS, the Company is
authorized to issue up to ten million (10,000,000) shares of preferred stock,
par value $0.0001 per share (the “Preferred Stock”), in one or more classes with
rights and designations as determined and established by the Company’s Board of
Directors; and
WHEREAS, on July 31, 2008, by
unanimous written consent, the Board of Directors of the Company resolved to
create a class of Preferred Stock designated as Series A Convertible Preferred
Stock with all rights and distinctions as set forth in that certain Certificate
of Designations prepared and provided to the Board;
WHEREAS, on August 1, 2008,
the proper officer of the Company caused to be filed the Certificate of
Designations with the Secretary of State of the State of Delaware;
and
1
WHEREAS, the Buyer wishes to
purchase a certain amount of the Company’s shares of Series A Convertible
Preferred Stock, par value $0.0001 per share (the “Shares”), upon the terms and
subject to the conditions of this Agreement;
NOW THEREFORE, in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. AGREEMENT
TO PURCHASE; PURCHASE PRICE.
2. Purchase. The
Buyer hereby agrees to purchase from the Company (i) the number of Shares set
forth on the signature page of this Agreement. The purchase price for the Shares
shall be $0.0001 (the par value) per Share and shall be payable in United States
Dollars (the “Purchase Price”).
a. Form
of Payment; Escrow Arrangements; Offering Termination
Date. The Buyer shall pay the Purchase Price for the Shares by
check or wire directly to the Company.
3. BUYER
REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION; INDEPENDENT
INVESTIGATION.
The Buyer
represents and warrants to, and covenants and agrees with, the Company as
follows:
a. The
Buyer is purchasing the Shares for its own account for investment only and not
with a view towards the public sale or distribution thereof and not with a view
to or for sale in connection with any distribution thereof;
b. The
Buyer is (i) an “accredited investor” as that term is defined in Rule 501 of the
General Rules and Regulations under the Act by reason of Rule 501(a)(3), and/or
(ii) experienced in making investments of the kind described in this Agreement
and the related documents, (iii) able, by reason of the business and financial
experience of its officers (if an entity) and professional advisors (who are not
affiliated with or compensated in any way by the Company or any of its
affiliates or selling agents), to protect its own interests in connection with
the transactions described in this Agreement, and the related documents, and
(iv) able to afford the entire loss of its investment in the
Shares;
c. All
subsequent offers and sales of the Shares by the Buyer shall be made pursuant to
registration under the Act or pursuant to an exemption from
registration;
d. The
Buyer understands that the Shares are being offered and sold to it in reliance
on specific exemptions from the registration requirements of United States
federal and state securities laws and that the Company is relying upon the truth
and accuracy of, and the Buyer’s compliance with, the representations,
warranties, agreements, acknowledgements and understandings of the Buyer set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Buyer to acquire the Shares;
e. The
Buyer and its advisors, if any, have been furnished with all materials relating
to the business, finances and operations of the Company and materials relating
to the offer and sale of the Shares which have been requested by the Buyer. The
Buyer and its advisors, if any, have been afforded the opportunity to ask
questions of the Company and have received complete and satisfactory answers to
any such inquiries.
2
f. The
Buyer understands that its investment in the Shares involves a high degree of
risk;
g. The
Buyer understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or
endorsement of the Shares;
h. This
Agreement has been duly and validly authorized, executed and delivered on behalf
of the Buyer and is a valid and binding agreement of the Buyer enforceable in
accordance with its terms, subject as to enforceability to general principles of
equity and to bankruptcy, insolvency, moratorium and other similar laws
affecting the enforcement of creditors’ rights generally.
4. COMPANY
REPRESENTATIONS, ETC.
The
Company represents and warrants to the Buyer that:
a. Company
Status. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the requisite corporate power to own its properties and to carry on its business
as now being conducted. The Company is duly qualified as a foreign
corporation to do business and is in good standing in each jurisdiction where
the nature of the business conducted or property owned by it makes such
qualification necessary other than those jurisdictions in which the failure to
so qualify would not have a material and adverse effect on the business,
operations, properties, prospects or condition (financial or otherwise) of the
Company.
b. Authorized
Shares. The Company has authorized and reserved for issuance,
free from preemptive rights, the Shares and the shares of Common Stock issuable
upon the conversion of the Shares (the “Conversion Shares,” and together with
the Shares, the “Securities”). The Shares have been, and the
Conversion Shares upon issuance will be, duly authorized and will be duly and
validly issued, fully paid and non-assessable and will not subject the holder
thereof to personal liability by reason of being such holder.
c. Securities
Purchase Agreement. This Agreement and the transactions
contemplated hereby have been duly and validly authorized by the Company, this
Agreement has been duly executed and delivered by the Company and this
Agreement, when executed and delivered by the Company, will be, a valid and
binding agreement of the Company enforceable in accordance with its terms,
subject as to enforceability to general principles of equity and to bankruptcy,
insolvency, moratorium, and other similar laws affecting the enforcement of
creditors’ rights generally.
d. Non-contravention. The
execution and delivery of this Agreement by the Company, the issuance of the
Securities, and the consummation by the Company of the other transactions
contemplated by this Agreement do not and will not conflict with or result in a
breach by the Company of any of the terms or provisions of, or constitute a
default under (i) the articles of incorporation or by-laws of the Company, (ii)
any indenture, mortgage, deed of trust, or other material agreement or
instrument to which the Company is a party or by which it or any of its
properties or assets are bound, (iii) to its knowledge, any existing applicable
law, rule, or regulation or any applicable decree, judgment, or (iv) to its
knowledge, order of any court, United States federal or state regulatory body,
administrative agency, or other governmental body having jurisdiction over the
Company or any of its properties or assets, except such conflict, breach or
default which would not have a material adverse effect on the transactions
contemplated herein. The Company is not in violation of any material laws,
governmental orders, rules, regulations or ordinances to which its property,
real, personal, mixed, tangible or intangible, or its businesses related to such
properties are subject.
e. Approvals. No
authorization, approval or consent of any court, governmental body, regulatory
agency, self-regulatory organization, or stock exchange or market is required to
be obtained by the Company for the issuance and sale of the Shares to the Buyer
as contemplated by this Agreement, except such authorizations, approvals and
consents that have been obtained.
3
f. No
Trading Market. There is no trading market for the
Securities.
5. CERTAIN
COVENANTS AND ACKNOWLEDGMENTS.
a. Transfer
Restrictions. The Buyer acknowledges that (1) the Securities
have not been registered under the provisions of the Act and may not be
transferred unless (A) subsequently registered thereunder, as provided for
herein, or (B) the Buyer shall have delivered to the Company an opinion of
counsel, reasonably satisfactory in form, scope and substance to the Company, to
the effect that the Securities to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration; and (2) any sale
any Security made in reliance on Rule 144 promulgated under the Act may be made
only in accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of that Security under circumstances in which the seller,
or the person through whom the sale is made, may be deemed to be an underwriter,
as that term is used in the Act, may require compliance with some other
exemption under the Act or the rules and regulations of the SEC
thereunder.
b. Restrictive
Legend. The Buyer acknowledges and agrees that the Securities
and, until such time as they are registered under the Act as hereinafter
contemplated, the Securities shall bear a restrictive legend in substantially
the following form (and a stop-transfer order may be placed against transfer
thereof):
THESE
SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD
OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR AN
OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED.
c. Filings. The
Company undertakes and agrees to make all necessary filings in connection with
the sale of the Securities to the Buyer under any United States laws and
regulations, or by any domestic securities exchange or trading market, and to
provide a copy thereof to the Buyer promptly after such filing.
d. Available
Conversion Shares. The Company shall have at all times
authorized and reserved for issuance, free from preemptive rights, shares of
Common Stock equal to the Conversion Shares.
6. GOVERNING
LAW: MISCELLANEOUS. This Agreement shall be
governed by and interpreted in accordance with the laws of the State of
Delaware. A facsimile transmission of this signed Agreement shall be
legal and binding on all parties hereto. This Agreement may be signed
in one or more counterparts, each of which shall be deemed an
original. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other
jurisdiction. This Agreement may be amended only by an instrument in
writing signed by the party to be charged with enforcement. This
Agreement supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof.
7. NOTICES. Any
notice required or permitted hereunder shall be given in writing (unless
otherwise specified herein) and shall be deemed effectively given, (i) on the
date delivered, (a) by personal delivery, or (b) if advance copy is given by
fax, (ii) seven business days after deposit in the United States
Postal Service by regular or certified mail, or (iii) three business days
mailing by international express courier, with postage and fees prepaid,
addressed to each of the other parties thereunto entitled at the following
addresses, or at such other addresses as a party may designate by ten days
advance written notice to each of the other parties hereto.
COMPANY: PEGASUS
TEL, INC.
000 Xxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx,
President
with a copy to:
The
Xxxxxxx Law Firm
Xxxxxxxx
X. Xxxxxxx, Esq.
The
Galleria
0 Xxxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxxxx 00000
BUYER:
At the address set forth on the
signature page of this Agreement.
8. SUCCESSORS
AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGES FOLLOW]
4
IN WITNESS WHEREOF, this
Agreement has been duly executed by the Buyer or one of its officers thereunto
duly authorized as of the date set forth below.
Total
Number of
Shares: __________________________
Shares of Series A Convertible Preferred Stock, par value $0.0001 per share, of
Pegasus Tel, Inc., a Delaware corporation.
Purchase
Price: $0.0001
per share.
Total
Purchase
Price: $______________________________
____________________________________
Address:___________________________________
Printed
Name of
Buyer ___________________________________
___________________________________
By: _________________________________
Fax
No. ___________________________________
(Signature
of Authorized Person)
_____________________________________
Jurisdiction ________________________________
Printed
Name and
Title of
incorporation or
organization
_______________________________________________________________
Taxpayer
identification number or social
security number, as
applicable
5
*************************************************************************************
This
Agreement has been accepted as of the date set forth below.
By: /s/ Xxxx X.
Xxxxxxx
Xxxx X. Xxxxxxx
President
Dated: ____
___, 2008
6
