Voyager Group, Ltd.
CONVERTIBLE PREFERRED STOCK SERIES "J" 1999
& ROYALITY CERTIFICATES
"PURCHASE AGREEMENT"
This Convertible Preferred Stock Series "J" 1999 & Royalty Certificate(s)
"Purchase Agreement" (the "Agreement") is made as of August 30, 1999 by and
between Voyager Group Ltd., a Nevada corporation (the "Company"), and the
investors listed on Exhibit A attached hereto (each a "Purchaser" and together
the "Purchasers").
The parties hereby agree as follows:
1. Purchase and Sale of Convertible Series "J" 1999 Preferred Stock
and Royalty Certificate(s).
1.1 Sale and Issuance of Convertible Series "J" Preferred Stock
and Royalty Certificate(s).
(a) The Company shall adopt and file with the Secretary of State of
the State of Nevada on or before the Closing (as defined below) the Designations
of Rights, Privileges, Preference, Powers, Qualification, Limitations &
Restrictions & Investor's Rights Agreement with Certificate of Incorporation
Pursuant to the Provisions of Section 78.195,199.5 & 196 of Nevada Corporate Law
in the form attached hereto as Exhibit B (the "Designations & Investors
rights").
(b) Subject to the terms and conditions of this Agreement (defined
below), each Purchaser severally and not jointly agrees to purchase and the
Company agrees to sell and issue to each such Purchaser that number of shares of
Convertible Series "J" Preferred Stock & Royalty Certificate(s) listed opposite
such Purchaser's name on Exhibit A attached hereto at a purchase price of five
hundred dollars $500.00 per convertible preferred share with Royalty
certificate(s). The shares of Convertible Series "J" Preferred Stock issued to
each such Purchaser pursuant to this Agreement are hereinafter referred to as
the "Stock" * and Royalty Certificate(s)issued to each purchaser pursuant to
this agreement are hereinafter Referred to as the "Royal" *.
(c) The Royal and Stock shall have the Rights, Privileges, and
Preferences and Restrictions and Investors Rights as set forth in the
Designation & Invertors Rights filed with secretary of state of the state of
Nevada with the Company's certificate of Incorporation.
1.2 Sale and Issuances of the Convertible Series "J" Preferred
Stock and Royalty Certificate(s).
(a) Subject to the terms and conditions of this Agreement, each
Purchaser severally and not jointly agrees to purchase at the Closing and the
Company agrees to sell and issue to each Purchaser a Convertible Preferred
Series "J" and the Royalty Certificate(s) such Purchaser's on Exhibit A to this
Agreement. The purchase price of Stock and Royal together is $500.00 per share.
The Company's Agreement with each Purchaser's is a separate Agreement, and the
sales of the Stock and Royal certificate(s) to the Purchaser's are separate
sales.
(b) The Stock, when and if issued upon conversion to common shares and
Royal are hereinafter referred to as the "Securities."**
* Stock-Convertible Preferred Series "J" 1999
* Royal- Royality Certificate(s)
** Securities-Stock and Royal
1.3 Closing; Delivery. Singing of Agreement, shall take place at the offices
Voyager Group, ltd., 0000 Xxxxx xxx Xxxxx Xxxxx X Xxxxxxxx, Xxxxxxxxxx 00000, at
10:00 a.m., on August 30, 1999 or at such other time and place as the Company,
the Purchasers purchasing total majority of all the Convertible Series preferred
Stock and Royalty certificates offered, have mutually agree upon, orally or in
writing (which time and place are designated as the "Closing"). Purchasers have
caused a total of fifty thousand to be deposited in the Company's general Bank
account with Union Bank of California account #2300417283 by check payable, or
wire transfer on 6/15/99 $11,487.12, 6/29/99 $11,500.00, and 7/14/99 $11,900.00
7/15-16/99 $14,000.00, 7/28/99 $1,112.88. An Additional Loans to the Company
amount to $32,387.12 deposited on 7/28/99 and 8/24/99.
(b) At the Closing, the Company shall deliver to each Purchaser the
Stock and Royal certificate(s) purchased.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Purchaser's that, except as set forth on the
Schedule of Exceptions delivered on the date hereof, which exceptions shall be
deemed to be Representations and Warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Nevada and has all requisite corporate power and authority
to carry on its business as now conducted. The Company is qualified to transact
business in the State of California and is in good standing under the laws of
the State of California. The Company is not required to qualify to transact
business in any other jurisdiction, except where the failure so to qualify would
not have a material adverse effect on its business or properties.
2.2 Capitalization. Upon filing of the Designations and Investors Rights the
authorized capital of the Company will consist, immediately prior to the
Closing, of:
(a) One Hundred (100) shares which have been designated Series "J" Preferred
Stock none of which are issued and outstanding immediately prior to the Closing.
All of the outstanding shares of Preferred Stock have been duly authorized,
fully paid and are no assessable, issued in compliance with all applicable
federal and state securities laws, and are convertible into Common Stock on a
one (1) preferred share for two hundred twenty thousand (220,000) basis.
(b) Four(4) Royality Certificate(s) consisting of four (4%) Of the Total Gross
Sales recorded by the Company and additional grants to Major Investors defined
herein as purchaser's owning over Ten Convertible Series "J" Preferred Stock or
common stock issued upon conversion there of) "Rights of First Offer" defined by
Designations and Investors Rights attached hereto as Exhibit B. The company
shall first make an offering of such securities to Major Investors first. All of
the outstanding shares of Common Stock have been duly authorized, fully paid and
are non assessable and issued in compliance with all applicable federal and
state securities laws.
(c) Conversion privileges of the Convertible
Preferred Stock and Royalty Certificate(s) payments as set forth in the
Designations and Investors' Rights (as defined below), the Company has Know
outstanding options, warrants, rights (including conversion or preemptive rights
and rights of first refusal or similar rights) or agreements, orally or in
writing, for the purchase or acquisition from the Company of any shares of its
capital stock.
2.3 Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement, the Designations and Investor Rights Investors'
Rights in the form attached hereto as Exhibit B ( the "Investors' Rights
Agreement") and ( Designations )and collectively with the Investors' Rights
Agreement and this Agreement, the ( "Agreements"),*** the performance of all
obligations of the Company hereunder and thereunder and the authorization,
issuance and delivery of the Securities has been taken or will be taken prior to
the Closing, and the Agreements, when executed and delivered by the Company,
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and other laws of general application affecting
enforcement of creditors' rights generally, as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies, or (ii) to the extent the indemnification provisions contained in the
Investors' Rights Agreement may be limited by applicable federal or state
securities laws.
2.4 Valid Issuance of Securities. The Securities are being issued to
the Purchasers hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued and free of restrictions on transfer other than restrictions on transfer
under this Agreement, the Investors' Rights and Designations Agreements
applicable state and federal securities laws. The Stock that may be issued to
the Purchasers upon conversion of the Convertible Preferred Stock en duly and
validly reserved for issuance and, when issued and delivered in accordance with
the terms thereof, will be duly and validly issued and free of restrictions on
transfer other than restrictions on transfer under this Agreement, the
Investors' Rights and applicable state and federal securities laws. Based in
part upon the representations of the Purchasers in this Agreement and subject to
the provisions of Section 2.6 below, the Securities will be issued in compliance
with all applicable federal and state securities laws. Neither the Company nor
any agent on its behalf has solicited or will solicit any offers to sell or has
offered to sell or will offer to sell all or any part of the Stock or Royal to
any person or persons so as to bring the sale of such Stock or Royal the Company
within the registration provisions of the Securities Act or any state securities
laws. Except as set forth in Section 2.6, no governmental orders, permissions,
consents, approvals or authorizations are required to be obtained and no
registrations or declarations are required to be filed in connection with the
execution and delivery of this Agreement and the issuance of the Stock, the
Royal or Securities, except such as has been duly and validly obtained or filed,
or with respect to any filings that must be made after the Closing, as will be
filed in a timely manner. The Common Stock when and if issued upon conversion of
the Stock has been duly and validly reserved for issuance, and upon issuance in
accordance with the terms of the designations and Investors Rights will be duly
and validly issued, fully paid and non assessable and free of restrictions on
transfer other than restrictions on transfer under this Agreement, the
Investors' Rights and Designations and applicable federal and state securities
laws and will be issued in compliance with all applicable federal and state
securities laws.
2.5 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement.
2.6 Liabilities. The Company has no material liabilities and, to the
best of its knowledge, knows of no material contingent liabilities not disclosed
in the Financial Statements, except current liabilities incurred in the ordinary
course of business subsequent to the Statement Date, which have not been, either
in any individual case or in the aggregate, materially adverse.
*** Agreements- Designations and Investors Rights.
2.7 Litigation. There is no action, suit, proceeding or investigation
pending or, to the Company's knowledge, currently threatened against the Company
that questions the validity of the Agreements or the right of the Company to
enter into them, 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 assets, condition or affairs of the Company,
financially or otherwise, nor is the Company aware that there is any basis for
the foregoing. The Company is not a party 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 currently pending or that the Company intends to initiate.
2.8 Intellectual Property. To its knowledge, the Company owns or
possesses sufficient legal rights to all patents, trademarks, service marks,
tradenames, copyrights, trade secrets, licenses, information and proprietary
rights necessary for its business as now conducted without any conflict with, or
infringement of, the rights of others. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business, would violate any of the patents, trademarks, service marks,
tradenames, copyrights, trade secrets or other proprietary rights of any other
person or entity. The Company is not aware that any of its employees is
obligated under any contract or other agreement, or subject to any judgment,
decree or order of any court or administrative agency that would interfere with
the use of such employee's best efforts to promote the interest of the Company
or that would conflict with the Company's business. Neither the execution or
delivery of this Agreement, nor the carrying on of the Company's business as now
conducted by the employees of the Company, will, to the Company's knowledge,
conflict with or result in a breach of the terms, conditions, or provisions of,
or constitute a default under, any contract, covenant or instrument under which
any such employee is now obligated. The Company does not believe it is or will
be necessary to use any inventions of any of its employees (or persons it
currently intends to hire) made prior to their employment by the Company.
2.9 Compliance with Other Instruments. The Company is not in violation
or default of any provisions of its Articles of incorporation or Bylaws or in
violation or default of any instrument, judgment, order, writ, decree or
contract to which it is a party or by which it is bound or, to its knowledge, of
any provision of any federal or state statute, rule or regulation applicable to
the Company, the effect of which would have a material adverse effect on the
Company. The execution, delivery and performance of the Agreements and the
consummation of the transactions contemplated hereby or thereby will not result
in any such violation or be in conflict with or constitute, with or without the
passage of time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event, which results
in the creation of any lien, charge or encumbrance upon any assets of the
Company.
2.10 Agreements; Action.
(a) Except for agreements explicitly contemplated hereby there are no
agreements, understandings or proposed transactions between the Company and any
of its officers, directors, affiliates or any affiliate thereof that would be
required to be disclosed pursuant to Regulation S-K, as promulgated by the
Securities and Exchange Commission.
(b) Except for agreements explicitly contemplated by the Agreements,
there are no agreements, understandings, instruments, contracts or proposed
transactions to which the Company is a party or by which it is bound that
involve (i) obligations (contingent or otherwise) of, or payments to, the
Company in excess of, $100,000, (ii) the license of any patent, copyright, trade
secret or other proprietary right to or from the Company (other than standard
"off the shelf"
product licenses), or (iii) the grant of rights to manufacture, produce,
assemble, license, market, or sell its products to any other person or affect
the Company's exclusive right to develop, manufacture, assemble, distribute,
market or sell its products.
(c) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) incurred any indebtedness for money borrowed or
incurred any other liabilities individually in excess of $10,000 or in excess of
$50,000 in the aggregate, (iii) made any loans or advances to any person, other
than ordinary advances for business expenses, or (iv) sold, exchanged or
otherwise disposed of any of its assets or rights, other than in the ordinary
course of business.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
2.11 No Conflict of Interest. The Company is not indebted, directly or
indirectly, to any of its officers or directors or to they're respective spouses
or children, in any amount whatsoever other than in connection with expenses or
advances of expenses incurred in the ordinary course of business or relocation
expenses of employees. None of the Company's officers or directors, or any
members of their immediate families, are, directly or indirectly, indebted to
the Company (other than in connection with purchases of the Company's stock) or,
to the Company's knowledge, have any direct or indirect ownership interest in
any firm or corporation with which the Company is affiliated or with which the
Company has a business relationship, or any firm or corporation that competes
with the Company except that officers, directors and/or existing stockholders of
the Company may own stock in (but not exceeding two percent of the outstanding
capital stock of) any publicly traded company that may compete with the Company.
To the Company's knowledge, none of the Company's officers or directors or any
members of their immediate families are, directly or indirectly, interested in
any material contract with the Company. The Company is not a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation.
2.12 Rights of Registration and Voting Rights. Except as contemplated
in the Investors' Rights Agreement, the Company has not granted or agreed to
grant any registration rights, including piggyback rights, to any person or
entity.
2.13 Title to Property and Assets. With respect to the property and
assets it leases, the Company is in compliance with such leases and, to its
knowledge, holds a valid leasehold interest free of any liens, claims or
encumbrances.
2.14 Changes. Since the Company's inception, there has been:
(g) payments made by the Company to the benefit of former officers or
directors, and members of their immediate families, not made in the ordinary
course of its business;
(h) declaration, setting aside payments and other distribution in
respect to any of the Company's capital stock, which were set aside by the
Company;
(i) without Company's knowledge, other event and condition that might materially
and adversely affect the financial condition of the Company;
(j) and arrangements by former officers and directors of the Company
to do things described in this Section 2.14.
2.15 Tax Returns and Payments. The Company has filed all tax returns
and reports as required by law. These returns and reports are true and correct
in all material respects. The Company has paid all taxes and other assessments
due.
2.16 Labor Agreements and Actions. The Company is not bound by or
subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has requested or, to the knowledge of the
Company, has sought to represent any of the employees, representatives or agents
of the Company. There is no strike or other labor dispute involving the Company
pending, or to the knowledge of the Company threatened, which could have a
material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company, nor is the Company aware of any
labor organization activity involving its employees. The employment of each
officer and employee of the Company is terminable at the will of the Company. To
its knowledge, the Company has complied in all material respects with all
applicable state and federal equal employment opportunity laws and with other
laws related to employment. To the Company's knowledge, no employee of the
Company, nor any consultant with whom the Company has contracted, is in
violation of any term of any employment contract, proprietary information
agreement or any other agreement relating to the right of any such individual to
be employed by, or to contract with, the Company because of the nature of the
business to be conducted by the Company that would have a material adverse
effect on the Company; and to the Company's knowledge the continued employment
by the Company of its present employees, and the performance of the Company's
contracts with its independent contractors, will not result in any such
violation that would have a material adverse effect on the Company. To its
knowledge, the Company has not received any notice alleging that any such
violation has occurred.
2.17 Confidential Information and Invention Assignment Agreements.
Each employee, consultant and officer of the Company has executed an agreement
with the Company regarding confidentiality and proprietary information in the
form provided to the Purchasers. The Company is not aware that any of its
employees or consultants is in violation thereof, and the Company will use its
best efforts to prevent any such violation.
2.18 Compliance with Laws; Permits. To its knowledge, the Company is
not in violation of any applicable statute, rule, regulation, order or
restriction of any domestic or foreign government or any instrumentality or
agency thereof in respect of the conduct of its business or the ownership of its
properties which violation would materially and adversely affect the business,
assets, liabilities, financial condition, operations or prospects of the
Company. The Company has all franchises, permits, licenses and any similar
authority necessary for the conduct of its business, the lack of which could
materially and adversely affect the business, properties, prospects, or
financial condition of the Company. The Company is not in default in any
material respect under any of such franchises, permits, licenses or other
similar authority.
2.19 Corporate Documents. The documents and Designations, Investors Rights
restating Certificate of Company articles and Bylaws of the Company are in the
form made available to counsel for the Purchaser's. The copy of the minute books
of the Company made available to the Purchaser's
contains minutes of all meetings of directors and stockholders and all actions
by written consent without a meeting by the directors and stockholders since the
date of incorporation and reflects all actions by the directors and stockholders
with respect to all transactions referred to in such minutes accurately in all
material respects.
2.20 Full Disclosure. This Agreement, the Exhibits hereto, the
Agreements and all other documents delivered by the Company to Purchasers or
their attorneys or agents in connection herewith or therewith or with the
transactions contemplated hereby or thereby, do not contain any untrue statement
of a material fact nor, to the Company's knowledge, omit to state a material
fact necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances under which they were made. To the
Company's knowledge, there are no facts which (individually or in the aggregate)
materially adversely affect the business, assets, liabilities, financial
condition, prospects or operations of the Company that have not been set forth
in the Agreements, the Exhibits hereto, or in other documents delivered to
Purchasers or their attorneys or agents in connection herewith.
3. Representations and Warranties of the Purchaser's. Each Purchaser
hereby represents and warrants to the Company that:
3.1 Authorization. Such Purchaser has full power and authority to
enter into this Agreement. The Agreements, when executed and delivered by the
Purchaser, will constitute valid and legally binding obligations of the
Purchaser, enforceable in accordance with their terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and any other laws of general application affecting enforcement of
creditors' rights generally, and as limited by laws relating to the availability
of a specific performance, injunctive relief, or other equitable remedies, or
(b) to the extent the indemnification provisions contained in the Investors'
Rights may be limited by applicable federal or state securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made with
the Purchaser in reliance upon the Purchaser's representation to the Company,
which by the Purchaser's execution of this Agreement, the Purchaser hereby
confirms, that the Securities to be acquired by the Purchaser will be acquired
for investment for the Purchaser's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and that the
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, the Purchaser
further represents that the Purchaser does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Securities. The Purchaser has not been formed for the specific purpose of
acquiring the Securities.
3.3 Disclosure of Information. The Purchaser's has had an opportunity to discuss
the Company's business, management, financial affairs and the terms and
conditions of the offering of the Stock with the Company's management and has
had an opportunity to review the Company's facilities. The Purchaser's
understands that such discussions, as well as any written information delivered
by the Company to the Purchaser's, were intended to describe the aspects of the
Company's business that it believes to be material.
3.4 Restricted Securities. The Purchaser understands that the
Securities have not been, and will not be, registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the
Securities Act, which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Purchaser's representations as
expressed herein. The Purchaser understands that the Securities are
"restricted securities" under applicable U.S. federal and state securities laws
and that, pursuant to these laws, the Purchaser must hold the Securities
indefinitely unless they are registered with the Securities and Exchange
Commission and qualified by state authorities, or an exemption from such
registration and qualification requirements are available. The Purchaser
acknowledges that the Company has no obligation to register or qualify the
Securities for resale except as set forth in the Investors' Rights. The
Purchaser further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Securities, and on requirements relating to the Company that are outside
of the Purchaser's control, and which the Company is under no obligation and may
not be able to satisfy.
3.5 No Public Market. The Purchaser understands that no public market
now exists for any of the Securities issued by the Company, and that the Company
has made no assurances that a public market will ever exist for the Securities.
3.6 Legends. The Purchaser's understands that the Securities, and any securities
issued in respect thereof or exchange therefore, may bear one or all of the
following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933."
(b) Any legend set forth in the other Agreements.
(c) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the shares represented by the certificate so
legended.
3.7 Accredited Investor. The Purchaser is an accredited investor as
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
4. Conditions of the Purchasers' Obligations at Closing. The
obligations of each Purchaser to the Company under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
4.1 Representations and Warranties. The representations and warranties
of the Company contained in Section 2 shall be true and correct in all material
respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
4.2 Performance. The Company shall have performed and complied with
all covenants, agreements, obligations and conditions contained in this
Agreement that is required to be performed or complied with by it on or before
the Closing and, except as set forth in Section 2.6, the Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement and the
Agreements.
4.3 Reservation of Conversion Shares. The Stock when and if issued
upon conversion of the Convertible Preferred stock and the Securities when and
if issued upon conversion of the Stock shall have been duly authorized and
reserved for issuance upon such conversions.
4.4 Qualifications. Except as described in Section 6, all
authorizations, approvals or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Notes pursuant to this
Agreement shall be obtained and effective as of the Closing.
4.5 Investors' Rights & Designations. The Company, each Purchaser and
the parties thereto shall have executed and delivered the Investors' Rights
Agreement in substantially the form attached as Exhibit B.
4.6 Certifications. The Company shall have filed the appropriate
documents with the Secretary of State of Nevada on or prior to the Closing,
which shall continue to be in full force and effect as of the Closing.
5. Conditions of the Company's Obligations at Closing. The
obligations of the Company to each Purchaser under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
5.1 Representations and Warranties. The representations and warranties
of each Purchaser contained in Section 3 shall be true and correct in all
material respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
5.2 Performance. All covenants, agreements and conditions contained in
this Agreement to be performed by the Purchasers on or prior to the Closing
shall have been performed or complied with in all material respects.
5.3 Qualifications. Except as described in Section 6, all
authorizations, approvals or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Stock pursuant to this
Agreement shall be obtained and effective as of the Closing.
5.4 Investors' Rights & Designations. The Company and each Purchaser
shall have executed and delivered the Investors' Rights & Designations in
substantially the form attached as Exhibit B.
5.5 Nevada Certificates. The Company shall have filed all documents the
Restating Certificate with the Secretary of State of Nevada on or prior to the
Closing, which shall continue to be in full force and effect as of the Closing.
6. Nevada Law. Holders of Series "J" Preferred Stock,
outstanding shall vote as a separate class.
7. Miscellaneous.
7.1 Survival of Warranties. The warranties, representations and
covenants of the Company and the Purchasers contained in or made pursuant to
this Agreement shall survive any investigation made by any Purchaser and the
closing of the transactions contemplated hereby.
7.2 Transfer; Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
7.3 Governing Law. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
7.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
7.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.6 Notices. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed sufficient upon delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or forty-eight
(48) hours after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed to the party to be notified at such
party's address as set forth on the signature page or Exhibit A hereto, or as
subsequently modified by written notice, and if to the Company.
7.7 Finder's Fee. Each party represents that it neither is nor will be
obligated for any finder's fee or commission in connection with this
transaction. Each Purchaser agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which each Purchaser or any of its officers, employees,
or representatives is responsible. The Company agrees to indemnify and hold
harmless each Purchaser from any liability for any commission or compensation in
the nature of a finder's fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
7.8 Fees and Expenses. If the Closing is consummated, the Company
shall pay the reasonable fees and expenses of one special counsel for the
Purchasers, incurred with respect to this Agreement, the documents referred to
herein and the transactions contemplated hereby and thereby, provided such fees
and expenses do not exceed $15,000. Except as provided above, the Company and
each Purchaser shall pay their respective filing fees and other expense in
connection with all filings they are required by law.
7.9 Attorney's Fees. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of any of the
Agreements, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
7.10 Amendments and Waivers. Any term of this Agreement may be amended
or waived only with the written consent of the Company and the Purchasers of at
least a majority of the Convertilbe Preferred Stock purchased hereunder. Any
amendment or waiver effected in accordance with this Section 7.10 shall be
binding upon the Purchasers and each transferee of the Securities, each future
holder of all such Securities, and the Company.
7.11 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
7.12 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party under this Agreement, upon any breach or
default of any other party under this Agreement, shall impair any such right,
power or remedy of such non-breaching or non-defaulting party nor shall it be
construed to be a waiver of any such breach or default, or acquiescence therein,
or of or in any similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any breach or
default under this Agreement, or any waiver on the part of any party of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
7.13 Entire Agreement. This Agreement, and the documents referred to
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
relating to the subject matter hereof existing between the parties hereto are
expressly canceled.
7.14 Corporate Securities Law. THE SALE OF THE SECURITIES, WHICH ARE
THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
7.15 Confidentiality. Except as provided below, each party hereto agrees
that, except with the prior written permission of the other party, it shall at
all times keep confidential and not divulge, furnish or make accessible to
anyone any confidential information, knowledge or data concerning or relating to
the business or financial affairs of the other parties to which such party has
been or shall become privy by reason of this Agreement, discussions or
negotiations relating to this Agreement, the performance of its obligations
hereunder or the ownership of Stock purchased hereunder. The provisions of this
Section 7.15 shall be in addition to, and not in substitution for, the
provisions of any separate nondisclosure agreement executed by the parties
hereto with respect to the transactions contemplated hereby. Notwithstanding the
foregoing, nothing herein shall prevent any party from disclosing (i) such
information which has been publicly disclosed, (ii) such information which
becomes available to the party on a non-confidential basis from a source other
than a party hereto, provided that such source is not bound by confidentiality
with such party, (iii) information required to be disclosed pursuant to subpoena
or other court process or otherwise required by law and (iv) such information
was known to such party prior to its first receipt from the other party.
Notwithstanding the foregoing provisions of this Section
7.16 Exculpation Among Purchasers. Each Purchaser acknowledges that it
is not relying upon any person, firm or corporation, other than the Company and
its officers and directors, in making its investment or decision to invest in
the Company. Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable to any other Purchaser for any action heretofore or
hereafter taken or omitted to be taken by any of them in connection with the
purchase of the Securities.
The parties have executed this Series "J" Preferred Stock &
Royalty Certificate
Purchase Agreement as of the date first written above.
SIGNATURE PAGE.
COMPANY:
Voyager Group, Ltd
By:
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President, Secretary and Director
PURCHASERS:
Xxxx Xxxxxxxxxxx
By:______________________
Xxxxxx Xxxxxxx
BY:_______________________
Signature Page to the Series "J" Preferred Stock and
Royalty Certificates Purchase Agreement
EXHIBITS
Exhibit A - Schedule of Purchasers
Exhibit B - Designation of Rights, Privileges, Preferences,
Power, Qualifications, Limitations & restriction
of the Convertible Preferred Series "J" 1999
and Royalty certificates. Pursuant to Nevada Law Sections
78-195,199.5, And 196 filed with Secretary of State and
Company's Certificate of Incorporation.
B - Investors' Rights Agreement filed with Designations
Rights, with Secretary of State of Nevada
Exhibit C - Form of Convertible Preferred Series "J" 1999
Exhibit D - Form of Royalty Certificate
EXHIBIT A
SCHEDULE OF PURCHASERS
Purchaser Name Total Purchase Price Preferred Shares Royalty Certificates
Xxxx Southland $25,000.00 50 2
Xxxxxx Xxxxxxx $25,000.00 50 2
* Pursuant to Section 1.2 of this Agreement, such Purchaser is acquiring
convertible preferred stock series "J" 1999.
* Pursuant to Section 1.2 of this Agreement, such Purchaser's are acquiring two
Royalty Certificates.
