COMMON STOCK SHARES PURCHASE AGREEMENT
Exhibit
10.1
Common
Stock Shares Purchase Agreement dated as of August 14, 2009 (this “Agreement”) by and between
Nature Vision, Inc., a Minnesota corporation, with principal executive offices
located at 0000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxxxxx, XX 00000 (the “Company”), and Swordfish
Financial, Inc. (“Purchaser”).
WHEREAS,
Purchaser desires to purchase from the Company, and the Company desires to issue
and sell to Purchaser, upon the terms and subject to the conditions of this
Agreement, 10,987,417 shares of the Company’s restricted Common Stock (the
“Common
Stock”);
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
I. PURCHASE
AND SALE OF COMMON STOCK
A. Transaction. Purchaser
hereby agrees to purchase from the Company, and the Company has offered and
hereby agrees to issue and sell to Purchaser in a transaction exempt from the
registration and prospectus delivery requirements of the Securities and Exchange
Act of 1933, as amended (the “Securities Act”), the Common
Stock.
B. Purchase Price; Form of
Payment. The purchase price for the Common Stock to be
purchased by Purchaser hereunder shall be $3,500,000 (the “Purchase Price”) to be
evidenced by a promissory note from Purchaser as set forth in Exhibit A to this
Agreement.
II. PURCHASER’S
REPRESENTATIONS AND WARRANTIES
Purchaser
represents and warrants to and covenants and agrees with the Company as
follows:
1.
Purchaser is purchasing the Common Stock for its own account, for investment
purposes only and not with a view towards or in connection with the public sale
or distribution thereof in violation of the Common Stock Shares
Act.
2.
Purchaser is (i) an “accredited investor” within the meaning of Rule 501 of
Regulation D under the Common Stock Shares Act, (ii) experienced in making
investments of the kind contemplated by this Agreement, (iii) capable, by reason
of its business and financial experience, of evaluating the relative merits and
risks of an investment in the Common Stock Shares, and (iv) able to afford the
loss of its investment in the Common Stock Shares.
3.
Purchaser understands that the Common Stock Shares are being offered and sold by
the Company in reliance on an exemption from the registration requirements of
the Common Stock Shares Act and equivalent state Common Stock Shares and “blue
sky” laws, and that the Company is relying upon the accuracy of, and Purchaser’s
compliance with, Purchaser’s representations, warranties and covenants set forth
in this Agreement to determine the availability of such exemption and the
eligibility of Purchaser to purchase the Common Stock Shares;
4.
Purchaser understands that the Common Stock Shares have not been approved or
disapproved by the Securities and Exchange Commission (the “Commission”) or any state or
provincial Securities Commission.
5. This
Agreement has been duly and validly authorized, executed and delivered by
Purchaser and is a valid and binding agreement of Purchaser enforceable against
it in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally and except as rights to indemnity and
contribution may be limited by federal or state securities laws or the public
policy underlying such laws.
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6.
Purchaser has read all of the public disclosures regarding the Company in
addition to interim data received from the Company. Purchaser
represents that they have satisfactory information and data to move forward with
the transaction. Companies most current financial results (June 30, 2009) are
attached as Schedule II.6.
7. The
Purchaser understands that the company is currently working with Mt. Yale to
sell certain of their assets to cover the line of credit at M&I Bank. See
Schedule II.8 The Company hereby agrees to continue the relationship with Mt
Yale and has signed the agreement to demonstrate their continued
support.
III. THE
COMPANY’S REPRESENTATIONS
The
Company represents and warrants as of the date hereof to the Purchaser that,
except as set forth on Schedule III attached hereto, the statements contained in
this Section 3 are complete and accurate as of the date of this
Agreement. As used in this Section 3, the term “Knowledge” shall mean
the knowledge of the members of the board of directors of the Company and/or the
officers or employees of the Company after reasonable
investigation.
A. Capitalization.
1. The
authorized capital stock of the Company consists of 25,000,000 shares of Common
Stock of which 2,312,583 shares are issued and outstanding as of the date hereof
and are fully paid and no assessable. The amount, exercise,
conversion or subscription price and expiration date for each outstanding option
and other security or agreement to purchase shares of Common Stock is accurately
set forth on Schedule III.A.1.
2. Except
as disclosed the Company’s Securities and Exchange Commission filings., there
are no preemptive, subscription, “call,” right of first refusal or other similar
rights to acquire any capital stock of the Company or other voting Common Stock
Shares of the Company that have been issued or granted to any person and no
other obligations of the Company to issue, grant, extend or enter into any
security, option, warrant, “call,” right, commitment, agreement, arrangement or
undertaking with respect to any of their respective capital stock.
B. Organization; Reporting Company
Status.
1. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the state or jurisdiction in which it is incorporated and is
duly qualified as a foreign corporation in all jurisdictions in which the
failure so to qualify would reasonably be expected to have a material adverse
effect on the business, properties, prospects, condition (financial or
otherwise) or results of operations of the Company or on the consummation of any
of the transactions contemplated by this Agreement (a “Material Adverse
Effect)..
2. The
Company is subject to the reporting requirements of the Securities and Exchange
Act of 1934, as amended (the “Exchange Act”). The
Common Stock is traded on the NASDAQ Capital Market. On August 6,
2009 a request was submitted by the Company to NASDAQ to be dropped from the OTC
capitol market and move to the OTC BB. A copy of the request is attached as
Schedule III.b.1.
C. Authorization. The
Company (i) has duly and validly authorized and reserved for issuance shares of
Common Stock, which is a number sufficient for the issuance of the Common Stock
contemplated by this Security Purchase Agreement. The Company
understands and acknowledges the potentially dilutive effect on the issuance of
the Common Stock Shares.
D. Authority; Validity and
Enforceability. The Company has the requisite corporate power
and authority to enter into this Agreement (as such term is hereinafter defined)
and to perform all of its obligations hereunder and thereunder (including the
issuance, sale and delivery to Purchaser of the Common Stock
Shares). The execution, delivery and performance by the Company of
the Documents and the consummation by the Company of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary corporate actions on the part of the Company and no further filing,
consent, or authorization is required by the Company, its board of directors, or
its stock Purchasers. Each of the Documents has been duly and validly
executed and delivered by the Company and each Document constitutes a valid and
binding obligation of the Company enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally and except as rights to indemnity and contribution may be
limited by federal or state securities laws or the public policy underlying such
laws. The Common Stock Shares have been duly and validly authorized
for issuance by the Company. For purposes of this Agreement, the term
“Documents” means (i)
this Agreement.
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E. Validity of Issuance of the Common
Stock Shares. The Common Stock Shares upon their issuance will
be validly issued and outstanding, fully paid and nonassessable, and not subject
to any preemptive rights, rights of first refusal, tag-along rights, drag-along
rights or other similar rights.
F. Approvals. No
authorization, approval or consent of any court or public or governmental
authority is required to be obtained by the Company for the issuance and sale of
the Common Stock Shares to Purchaser as contemplated by this Agreement, except
such authorizations, approvals and consents as have been obtained by the Company
prior to the date hereof, other than the requirements of the current
lending Agreement with M&I bank as attached in Schedule III.f
G. Commission
Filings. The Company has properly and timely filed with the
Commission all reports, proxy statements, forms and other documents required to
be filed with the Commission under the Securities Act and the Exchange Act since
becoming subject to such Acts (the “Commission
Filings”). As of their respective dates, (i) the Commission
Filings complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the Commission promulgated thereunder applicable to such
Commission Filings and (ii) none of the Commission Filings contained at the time
of its filing any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the
Commission Filings, as of the dates of such documents, were true and complete in
all material respects and complied with applicable accounting requirements and
the published rules and regulations of the Commission with respect thereto, were
prepared in accordance with generally accepted accounting principles in the
United States (“GAAP”)
(except in the case of unaudited statements permitted by Form 10-QSB under the
Exchange Act) applied on a consistent basis during the periods involved (except
as may be indicated in the notes thereto) and fairly presented the consolidated
financial position of the Company and its Subsidiaries as of the dates thereof
and the consolidated results of their operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end
audit adjustments that in the aggregate are not material and to any other
adjustment described therein).
H. Full
Disclosure. There is no fact known to the Company (other than
general economic or industry conditions known to the public generally) that has
not been fully disclosed in the Commission Filings that (i) reasonably could be
expected to have a Material Adverse Effect or (ii) reasonably could be expected
to materially and adversely affect the ability of the Company to perform its
obligations pursuant to the Documents. EXHIBIT C
I. Absence of Events of
Default. No “Event of Default” (as defined
in any agreement or instrument to which the Company is a party) and no event
which, with notice, lapse of time or both, would constitute an Event of Default
(as so defined), has occurred and is continuing.
J. Common Stock Shares Law
Matters. Assuming the accuracy of the representations and
warranties of Purchaser set forth in Article II, the offer and sale by the
Company of the Common Stock Shares is exempt from (i) the registration and
prospectus delivery requirements of the Securities Act and the rules and
regulations of the Commission thereunder and (ii) the registration and/or
qualification provisions of all applicable state and provincial Securities and
“blue sky” laws. The Company shall not directly or indirectly take,
and shall not permit any of its directors, officers or Affiliates directly or
indirectly to take, any action (including, without limitation, any offering or
sale to any person or entity of any security similar to the Common Stock Shares)
which will make unavailable the exemption from Securities Act registration being
relied upon by the Company for the offer and sale to Purchaser of the Common
Stock Shares, as contemplated by this Agreement. No form of general
solicitation or advertising has been used or authorized by the Company or any of
its officers, directors or Affiliates in connection with the offer or sale of
the Common Stock Shares as contemplated by this Agreement or any other agreement
to which the Company is a party. As used in the Documents, “Affiliate” has the meaning
ascribed to such term in Rule 12b-2 under the Exchange Act.
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K. Registration
Rights. Except as set forth in the Company’s Commission
filings, no Person has, and as of the Closing (as such term is hereinafter
defined), no Person shall have, any demand, “piggy-back” or other rights to
cause the Company to file any registration statement under the Common Stock
Shares Act relating to any of its Common Stock Shares or to participate in any
such registration statement.
L. No
Misrepresentation. No representation or warranty of the
Company contained in this Agreement or any of the other Documents, any schedule,
annex or exhibit hereto or thereto or any agreement, instrument or certificate
furnished by the Company to Purchaser pursuant to this Agreement contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
M. Finder’s Fee. There
is no finder’s fee, brokerage commission or like payment in connection with the
transactions contemplated by this Agreement for which Purchaser is liable or
responsible. (Note. Mt Yale is not entitled to any finder’s fee or
commission associated with this transaction.)
N. Subsidiaries. Other
than the Subsidiaries, the Company does not presently own or control, directly
or indirectly, any interest in any other corporation, association, or other
business entity. The Company is not a participant in any joint
venture, partnership, or similar arrangement.
O. Litigation. Other
than as disclosed in the Commission Filings, there is no action, suit,
proceeding or investigation pending or, to the Company’s knowledge, currently
threatened against the Company or its Subsidiaries that questions the validity
of this Agreement, the Documents, or the right of the Company to enter into such
agreements, or to consummate the transactions contemplated hereby or thereby, or
that might result, either individually or in the aggregate, in any material
adverse changes in the business, assets or condition of the Company and its
Subsidiaries, taken as a whole, financially or otherwise, or any change in the
current equity ownership of the Company or its Subsidiaries. Neither
the Company nor its Subsidiaries are parties or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or
investigation by the Company or its Subsidiaries currently pending or that the
Company or its Subsidiaries intends to initiate. Disclosed litigation
attachments IV.o
P. Agreements. Except
for agreements explicitly contemplated hereby, or disclosed in the Commission
Filings, there are no agreements, understandings or proposed transactions
between the Company and any of its officers, directors, Affiliates, or any
affiliate thereof.
Q. Tax Returns. The
Company and each of its Subsidiaries has made and filed all federal and state
income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject and (unless and only to the extent that the
Company and each of its Subsidiaries has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes) has paid
all taxes and other governmental assessments and charges that are material in
amount, shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and has set aside on its books
provision reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Company know of no basis
for any such claim.
IV. CERTAIN
COVENANTS AND ACKNOWLEDGMENTS
A. Filings. The
Company shall make all necessary Commission Filings and “blue sky” filings
required to be made by the Company in connection with the sale of the Common
Stock Shares to Purchaser as required by all applicable laws, and shall provide
a copy thereof to Purchaser promptly after such filing. The company has
requested an extension from NASDAQ for the filing of their 2nd Qtr.
10Q report.
B. Reporting
Status. On or before the fourth Business Day following the
closing date hereof, the Company shall file a Current Report on Form 8-K
describing the terms of the transactions contemplated by the Documents in the
form required by the Exchange Act and attaching the material Documents
(including, without limitation, this Agreement and the Debenture) as exhibits to
such filing.
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C. Listing. On August
6, 2009 the company requested to be dropped from the NASDAQ Capital Market and
be re-listed on the OTC BB. See Schedule II.b.1.a
D. Resignation of
Directors. The present directors of the Company shall resign,
in favor of directors designated by Purchaser, who shall to serve until the next
shareholder’s meeting following the Closing. See Schedule IV.c
E. Resignation of
Officers. The present officers of the Company shall
voluntarily resign, in favor of officers designated by Purchaser, who shall to
serve until their replacement by the Company’s Board of Directors designated by
Purchaser or their resignations. See Schedule IV.d
F. Liabilities to Officers
and Directors. Notes Payable and Liabilities to NVI
Directors and Officers, not covered by proceeds from asset sales will be
converted to one year term notes payable. These notes will be
forgiven by the holders if the bid price of NVI common stock equals or exceeds
$10.00 per shares on the maturity date of the notes.
G. Options and
Warrants. The Company will cancel all stock options and
warrants outstanding as the date of closing.
H. Stockholder
Listing. The Company will provide Purchaser with a
current stockholder listing upon the signing of this Agreement.
V. ISSUANCE
OF COMMON STOCK
A. The Company undertakes and
agrees that no instruction other than the instructions referred to in this
Article V shall be given to its transfer agent for the Common Stock Shares and
that they shall be freely transferable on the books and records of the Company
as and to the extent provided in this Agreement and applicable
law. Nothing contained in this Section V.A. shall affect in any way
Purchaser’s obligations and agreement to comply with all applicable Securities
laws upon resale of such Common Stock.
B. The Company
shall, at its own cost and expense, take all necessary action (including the
issuance of an opinion of counsel) to assure that the Company's transfer agent
shall issue stock certificates in the name of Purchaser (or its nominee) or such
other persons as designated by Purchaser and in such denominations to be
specified at conversion or exercise representing the number of shares of common
stock issuable by this Agreement. .
VI. CLOSING
DATE
The
“Closing” shall occur by
the delivery: (i) to the Purchaser the executed promissory note as set forth in
Exhibit A, and the date on which the Closing occurs shall be referred to herein
as the “ Closing Date
”.
VII. CONDITIONS
TO THE COMPANY’S OBLIGATIONS
Purchaser
understands that the Company’s obligation to sell the Common Stock Shares on the
Closing Date to Purchaser pursuant to this Agreement is conditioned
upon:
A. Delivery by Purchaser to
the Company of the Purchase Price;
B. The accuracy on the Closing
Date of the representations and warranties of Purchaser contained in this
Agreement as if made on the Closing Date (except for representations and
warranties which, by their express terms, speak as of and relate to a specified
date, in which case such accuracy shall be measured as of such specified date)
and the performance by Purchaser in all material respects on or before the
Closing Date of all covenants and agreements of Purchaser required to be
performed by it pursuant to this Agreement on or before the Closing Date;
and
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C. There shall not be in
effect any law or order, ruling, judgment or writ of any court or public or
governmental authority restraining, enjoining or otherwise prohibiting any of
the transactions contemplated by this Agreement.
VIII. CONDITIONS
TO PURCHASER’S OBLIGATIONS
The
Company understands that Purchaser’s obligation to purchase the Common Stock
Shares on the Closing Date pursuant to this Agreement is conditioned
upon:
A. Delivery by the Company of
the Common Stock Shares (I/N/O Purchaser’s nominee) to Purchaser;
B. The accuracy on the Closing
Date of the representations and warranties of the Company contained in this
Agreement as if made on the Closing Date (except for representations and
warranties which, by their express terms, speak as of and relate to a specified
date, in which case such accuracy shall be measured as of such specified date)
and the performance by the Company in all respects on or before the Closing Date
of all covenants and agreements of the Company required to be performed by it
pursuant to this Agreement on or before the Closing Date, all of which shall be
confirmed to Purchaser by delivery of the certificate of the chief executive
officer of the Company to that effect;
C. The Company shall have
delivered to the Purchaser a certificate of the Company executed by an officer
of the Company, dated as of the Closing, certifying the resolutions adopted by
the Company’s board of directors authorizing the execution of the Documents, the
issuance of the Common Stock Shares, and the transactions contemplated hereby,
and copies of any required third party consents, approvals and filings required
in connection with the consummation of the transactions contemplated by this
Agreement;
D. In agreement with the
Purchaser, the company has requested be removed from the NASDAQ Capital Market
and drop to the OTC BB. The company will continue to work with the
Purchaser to the best of their ability to this regard.
E. There not having occurred
any event or development, and there being in existence no condition, having or
which reasonably and foreseeably could have a Material Adverse
Effect;
F. There shall not be in
effect any law, order, ruling, judgment or writ of any court or public or
governmental authority restraining, enjoining or otherwise prohibiting any of
the transactions contemplated by this Agreement;
F. The Company
shall have obtained all consents, approvals or waivers from governmental
authorities and third persons necessary for the execution, delivery and
performance of the Documents and the transactions contemplated thereby, all
without material cost to the Company;
G. Purchaser shall have
received such additional documents, certificates, payment, assignments,
transfers and other deliveries as it or its legal counsel may reasonably request
and as are customary to effect a closing of the matters herein
contemplated;
H. The Company has determined that upon receipt
of the purchase price and in addition to the sale of assets currently being
conducted by Mt Yale both the Bank and common creditors will be
satisfied.
IX. SURVIVAL;
INDEMNIFICATION
A. The representations,
warranties and covenants made by each of the Company and Purchaser in this
Agreement, the annexes, schedules and exhibits hereto and in each instrument,
agreement and certificate entered into and delivered by them pursuant to this
Agreement shall survive the Closing and the consummation of the transactions
contemplated hereby. In the event of a breach or violation of any of
such representations, warranties or covenants, the party to whom such
representations, warranties or covenants have been made shall have all rights
and remedies for such breach or violation available to it under the provisions
of this Agreement or otherwise, whether at law or in equity, irrespective of any
investigation made by or on behalf of such party on or prior to the Closing
Date.
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B. The Company hereby agrees
to indemnify and hold harmless Purchaser, its affiliates and their respective
officers, directors, employees, consultants, partners, members and attorneys
(collectively, the “ Purchaser
Indemnitees ”) from and against any and all losses, claims, damages,
judgments, penalties, liabilities and deficiencies (collectively, “ Losses ”) and agrees to
reimburse Purchaser Indemnitees for all reasonable out-of-pocket expenses
(including the reasonable fees and expenses of legal counsel), in each case
promptly as incurred by Purchaser Indemnitees and to the extent arising out of
or in connection with:
1. any
misrepresentation, omission of fact or breach of any of the Company’s
representations or warranties contained in this Agreement or the other
Documents, or the annexes, schedules or exhibits hereto or thereto or any
instrument, agreement or certificate entered into or delivered by the Company
pursuant to this Agreement or the other Documents;
2. any
failure by the Company to perform any of its covenants, agreements, undertakings
or obligations set forth in this Agreement or the other Documents or any
instrument, certificate or agreement entered into or delivered by the Company
pursuant to this Agreement or the other Documents; or
3.
resales of the Common Stock by Purchaser in the manner and as contemplated by
this Agreement and the Documents.
C. Promptly after receipt by a
party seeking indemnification pursuant to this Article VIII (an “Indemnified Party ”) of
written notice of any investigation, claim, proceeding or other action in
respect of which indemnification is being sought (each, a “ Claim ”), the Indemnified
Party promptly shall notify the Company against whom indemnification pursuant to
this Article VIII is being sought (the “ Indemnifying Party ”) of the
commencement thereof, but the omission so to notify the Indemnifying Party shall
not relieve it from any liability that it otherwise may have to the Indemnified
Party except to the extent that the Indemnifying Party is materially prejudiced
and forfeits substantive rights or defenses by reason of such
failure. In connection with any Claim as to which both the
Indemnifying Party and the Indemnified Party are parties, the Indemnifying Party
shall be entitled to assume the defense thereof. Notwithstanding the
assumption of the defense of any Claim by the Indemnifying Party, the
Indemnified Party shall have the right to employ separate legal counsel and to
participate in the defense of such Claim, and the Indemnifying Party shall bear
the reasonable fees, out-of-pocket costs and expenses of such separate legal
counsel to the Indemnified Party if (and only if): (x) the Indemnifying Party
shall have agreed to pay such fees, out-of-pocket costs and expenses, (y) the
Indemnified Party and the Indemnifying Party reasonably shall have concluded
that representation of the Indemnified Party and the Indemnifying Party by the
same legal counsel would not be appropriate due to actual or, as reasonably
determined by legal counsel to the Indemnified Party, potentially differing
interests between such parties in the conduct of the defense of such Claim, or
if there may be legal defenses available to the Indemnified Party that are in
addition to or disparate from those available to the Indemnifying Party or (z)
the Indemnifying Party shall have failed to employ legal counsel reasonably
satisfactory to the Indemnified Party within a reasonable period of time after
notice of the commencement of such Claim. If the Indemnified Party
employs separate legal counsel in circumstances other than as described in
clauses (x), (y) or (z) above, the fees, costs and expenses of such legal
counsel shall be borne exclusively by the Indemnified Party. Except
as provided above, the Indemnifying Party shall not, in connection with any
Claim in the same jurisdiction, be liable for the fees and expenses of more than
one firm of legal counsel for the Indemnified Party (together with appropriate
local counsel). The Indemnifying Party shall not, without the prior
written consent of the Indemnified Party (which consent shall not unreasonably
be withheld), settle or compromise any Claim or consent to the entry of any
judgment that does not include an unconditional release of the Indemnified Party
from all liabilities with respect to such Claim or judgment.
D. In the event one party
hereunder should have a claim for indemnification that does not involve a claim
or demand being asserted by a third party, the Indemnified Party promptly shall
deliver notice of such claim to the Indemnifying Party. If the
Indemnified Party disputes the claim, such dispute shall be resolved by mutual
agreement of the Indemnified Party and the Indemnifying Party or by binding
arbitration conducted in accordance with the procedures and rules of the
American Arbitration Association. Judgment upon any award rendered by
any arbitrators may be entered in any court having competent jurisdiction
thereof.
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X. GOVERNING
LAW
This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Minnesota, without regard to the conflicts of law principles of
such state.
XI. SUBMISSION
TO JURISDICTION
Each of
the parties hereto consents to the exclusive jurisdiction of the federal courts
whose districts encompass any part of the ____________ or the state courts of
the State of Minnesota sitting in the City of _______________ in connection with
any dispute arising under this Agreement and the other
Documents. Each party hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may effectively do so, any defense of an
inconvenient forum or improper venue to the maintenance of such action or
proceeding in any such court and any right of jurisdiction on account of its
place of residence or domicile. Each party hereto irrevocably and
unconditionally consents to the service of any and all process in any such
action or proceeding in such courts by the mailing of copies of such process by
registered or certified mail (return receipt requested), postage prepaid, at its
address specified in Article XVII. Each party hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
XII. WAIVER
OF JURY TRIAL
TO
THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OTHER DOCUMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND OTHER DOCUMENTS. EACH PARTY
HERETO (i) CERTIFIES THAT NEITHER OF THEIR RESPECTIVE REPRESENTATIVES, AGENTS OR
ATTORNEYS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.
XIII. COUNTERPARTS;
EXECUTION
This
Agreement may be executed in counterparts, each of which when so executed and
delivered shall be an original, but both of which counterparts shall together
constitute one and the same instrument. A facsimile transmission of
this signed Agreement shall be legal and binding on both parties
hereto.
XIV. HEADINGS
The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
XV. SEVERABILITY
In the
event any one or more of the provisions contained in this Agreement or in the
other Documents should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions,
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
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XVI. ENTIRE
AGREEMENT; REMEDIES, AMENDMENTS AND WAIVERS
7This
Agreement and the Documents constitute the entire agreement between the parties
hereto pertaining to the subject matter hereof and supersede all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of such parties. No supplement, modification or waiver of
this Agreement shall be binding unless executed in writing by both
parties. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
XVII. NOTICES
Except as
may be otherwise provided herein, any notice or other communication or delivery
required or permitted hereunder shall be in writing and shall be delivered
personally, or sent by telecopier machine or by a nationally recognized
overnight courier service, and shall be deemed given when so delivered
personally, or by telecopier machine or overnight courier service as
follows:
A. If to the Company,
to:
0000
Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention: Xx.
Xxxxxxx x. Xxxxxx, President and Chief Executive Officer
B. If to Purchaser,
to:
Swordfish
Financial, Inc.
000
Xxxxxxx Xxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxxx, President and Chief Executive Officer
The
Company or Purchaser may change the foregoing address by notice given pursuant
to this Article XVII.
XVIII. CONFIDENTIALITY
Each of
the Company and Purchaser agrees to keep confidential and not to disclose to or
use for the benefit of any third party the terms of this Agreement or any other
information which at any time is communicated by the other party as being
confidential without the prior written approval of the other party; provide,
however, that this provision shall not apply to information which, at the time
of disclosure, is already part of the public domain (except by breach of this
Agreement) and information which is required to be disclosed by law (including,
without limitation, pursuant to Item 601(b)(10) of Regulation S-K under the
Common Stock Shares Act and the Exchange Act).
XIX. ASSIGNMENT
This
Agreement shall not be assignable by the Company without the prior written
consent of the Purchaser. The Purchaser may assign this Agreement
upon 10 days prior written notice to the Company.
IN
WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be
executed and delivered on the date first above written.
9
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Swordfish
Financial, Inc.
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By:
/s/s Xxxxxxx X.
Zernove
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By:
/s/ Xxxxxxx
Xxxxxxxxx
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Name:
Xxxxxxx X.
Xxxxxx
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Name:
Xxxxxxx
Xxxxxxxxx
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Title:
President –
Chief Executive Officer
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Title:
President –
Chief Executive Officer
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10
Exhibit
10.1 Continued
EXHIBIT A
PROMISSORY
NOTE
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$3,500,000.00
(Three Million Five Hundred Thousand)
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July
__, 2009
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FOR VALUE
RECEIVED, SWORDFISH FINANCIAL, INC., a Texas corporation("Maker"), promises to pay to
the order of NATURE VISION, INC. , a Minnesota corporation ("Payee"), on the Maturity
Date in immediately available funds and in lawful money of the United States of
America, the principal sum of Three Million Five Hundred Thousand
Dollars ($3,500,000.00) plus interest accrued thereon at the rate of
five percent (5.0%) per annum compounded annually, from the date
hereof until paid.
1. Maturity Date. As used in this
Note, "Maturity Date"
means the earliest of the date upon which (i) Maker has obtained
available cash reserves through equity investments of at least Three Million
Five Hundred Thousand Dollars ($3,500,000.00), or (ii) One Million Seven Hundred
Fifty Thousand Dollars ($1,750,000) on or before forty-five (45) days from the
date of this Note and One Million Seven Hundred Fifty Thousand Dollars
($1,750,000 one hundred twenty (120) days from the date of this
Note.
2. Payment. Subject to the
provisions of Section 1 above, the principal balance and accrued interest on
this Note shall be due and payable on the Maturity Date(s). Payments due under
this Note shall be made to the Payee or its successors and assigns at such place
as the holder hereof shall, from time to time, designate in writing. Payments
hereunder shall be made in cash or certified bank funds.
3. No Waiver by Payee. No delay
or omission of Payee or any other holder hereof to exercise any power, right or
remedy accruing to Payee or any other holder hereof shall impair any such power,
right or remedy or shall be construed to be a waiver of the right to exercise
any such power, right or remedy.
4. Costs and Attorneys' Fees. If any
holder of this Note retains an attorney in connection with any default or to collect, enforce or
defend this Note in any lawsuit or in any probate, reorganization,
bankruptcy or other proceeding, or if Maker sues any holder in connection with
this Note and does not prevail, men Maker agrees to pay to each such holder, in
addition to the unpaid principal on this Note, all reasonable costs and expenses
incurred by such holder in trying to collect this Note or in any such suit or
proceeding, including reasonable attorneys' fees.
5. Waivers by Maker and Others.
Maker waives notice (including, but not limited to, notice of intent to
accelerate and. notice of acceleration, notice of protest and notice of
dishonor), demand, presentment for payment, protest, diligence hi collecting and
the filing of suit for the
purpose of fixing liability and consents that the time of payment hereof
may he extended and re-extended from time to time without notice to Maker. Maker
agrees that its liability on, or with respect to this Note shall not he
affected. by any release of or change in any guaranty at any time existing or by
the partial or complete unenforceability of any guaranty or other surety
obligation, in each case in whole or in part, with or without notice and before
or after maturity.
6. Paragraph Headings. Paragraph
headings appearing in this Note are for
convenient reference only and shall, not be used to interpret or limit the
meaning of any provision of this Note.
7. Governing Law. This Note shall
be governed by and construed in accordance with the applicable laws of the State
of Texas from time to time in effect without giving effect to principles of
conflicts of law.
8. Successors and Assigns. This
Note and all the covenants and agreements contained herein shall be binding
upon, and shall inure to the benefit of, the respective successors and assigns
of Maker and Payee.
11
9. Severability. If any provision
of this Note is held to be illegal, invalid or unenforceable under present or
future laws, the legality, validity and enforceability of the remaining
provisions of this Note shall not be affected thereby, and this Note shall be
liberally construed so as to early out the intent of Maker and Payee. Each
waiver in this Note is subject to the overriding and controlling rule that it shall be
effective only if and to the extent that (a) it is not prohibited by applicable
law and (h) applicable
law neither provides for nor allows any material sanctions to be imposed against
Payee for having bargained Ior and obtained it.
10. Notices. Any notice, request
or other communication required or permitted to be given hereunder shall be
given in writing by delivering it against receipt for it, by depositing it with
an overnight delivery service or by depositing it in a receptacle maintained by
the United States Postal Service, postage prepaid, registered or certified mail,
return, receipt requested, addressed to the respective parties as follows (and
if so given, shall be deemed given on the second business day after
mailing):
A. If to the Payee,
to:
0000
Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention: Xx.
Xxxxxxx x. Xxxxxx, President and Chief Executive Officer
B. If to Maker,
to:
Swordfish
Financial, Inc.
000
Xxxxxxx Xxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxxx, President and Chief Executive Officer
The
address for notice for any of the above may he changed at any time and from time
to time but only after ten (10) days advance written notice to the other persons
listed above. Actual, notice, however and. from whomever given or received,
shall always be effective when received.
11.
Prepayment. Maker may at any time pay the full amount or any part of this
Note without the
payment of any premium or fee. All prepayments shall be applied first to accrued
interest with the balance to principal.
12. Note Amendments. This Note may
only be amended or modified with the written consent of Maker and
Payee.
13. Entire Agreement. This Note
embodies the entire agreement and understanding between Payee and Maker with
respect to its subject matter and supersedes all prior conflicting or
inconsistent agreements, consents and understandings relating to such subject
matter. Maker acknowledges and agrees that there is no oral agreement between
Maker and Payee that has not been incorporated in this Note.
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Maker
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Swordfish
Financial, Inc.
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s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx
Xxxxxxxxx
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President/CEO
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12
