EXHIBIT 10.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into as of January
10, 2007, by and among Electric Aquagenics Unlimited, Inc., a Delaware
corporation whose address is 0000 Xxxx 00 Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000
(the "Company"), and Xxxxx X. Xxxxxxx, whose address is 0000 XX 00xx Xxxxx,
Xxxxx, XX 00000 (the "Purchaser").
R E C I T A L S
WHEREAS, the Company is offering for sale 2,307,692 shares of its
restricted common stock at the price of $1.30 per share (the "Shares") to
Purchaser, an accredited investor as that term is defined in Regulation D,
promulgated under the 1933 Act by the Securities and Exchange Commission; and
WHEREAS, the Company desires to sell and Purchaser desires to acquire the
Shares in a private transaction at the price and subject to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the terms, conditions and other
agreements set forth herein, the parties hereto agree as follows:
SECTION 1. SALE AND PURCHASE
1.1 Sale and Purchase of Shares. Subject to the terms and conditions of
this Agreement, the Company agrees to sell and issue to Purchaser, and Purchaser
agrees to purchase from the Company, the Shares.
1.2 Purchase Price. The purchase price for the Shares shall be
$2,999,999.60, or $1.30 per share (the "Purchase Price"). The Purchase Price
shall be paid in cash at the Closing.
SECTION 2. CLOSINGS
The closing of the transactions contemplated by this Agreement (the
"Closings") will occur simultaneously with the execution of this Agreement by
both parties hereto. At the Closing, the Company shall deliver to Purchaser a
certificate representing the Shares being sold by Company pursuant to this
Agreement, and Purchaser shall pay to Company, by wire transfer of funds or by
check, the full Purchase Price.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF COMPANY
The authorized capital stock of EAU consists of 50,000,000 shares of
$0.0001 par value common stock, of which, as of June 30, 2006, a total of
10,972,825 common shares had been issued and were outstanding. Company
represents and warrants to Purchaser that it may properly issue the Shares and
will transfer to Purchaser at each of the Closing, good and valid title to all
of such Shares free and clear of any liens, pledges, security interests, adverse
claims, equities, options, proxies, charges, encumbrances or restrictions other
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than the restrictions set forth in the Company's Articles of Incorporation. The
Company further represents and warrants that it has full power and authority to
enter into this Agreement and to perform its obligations hereunder, and that the
execution, delivery and performance of this Agreement by it has been duly
authorized by all necessary action on its part. The Company further represents
and warrants that, assuming that this Agreement is a valid and binding
obligation of each of the other parties hereto, this Agreement is a valid and
binding obligation of Company.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser represents and warrants to the Company as follows:
4.1 Non-Distributive Intent. The Shares being issued to Purchaser pursuant
to this Agreement are being purchased for Purchaser's own account and are not
being acquired by Purchaser with a view to the public distribution of them.
Purchaser acknowledges that the Shares will be "restricted stock" under federal
and state securities laws. Purchaser is not an underwriter, as such term is
defined under the Securities Act.
4.2 Access of Information. Purchaser acknowledges that he is a shareholder
of the Company, and that he possesses all the information he needs to determine
whether to purchase the Shares. Purchaser is not relying on any representation
of Company as to the value, business, or prospects of the Company in determining
whether to purchase the Shares, and the Company expressly disclaims any such
representation.
4.3 Sophistication and Knowledge. Purchaser has sufficient experience in
financial and business matters to be capable of utilizing such information to
evaluate the merits and risks of Purchaser's investment, and to make an informed
decision relating thereto, and he has sufficient experience in financial and
business matters that he is capable of utilizing such information to evaluate
the merits and risks of the investment, and to make an informed decision
relating thereto.
4.4 Evaluation of Risks. Purchaser has evaluated the risks of this
investment in the Company and has determined that the investment is suitable for
Purchaser. Purchaser has adequate financial resources for an investment of this
character, and at this time he could bear a complete loss of his investment.
4.5 Suitability. Purchaser has (i) a net worth (or joint net worth with
spouse) of at least $1,000,000, or (ii) an annual gross income during the
previous two years, and reasonably expects to have gross income in the current
year, of at least $200,000 (or $300,000 collectively with spouse), or (iii)
otherwise meets the criteria for being an "Accredited Investor" as defined in
Rule 501 of Regulation D promulgated under Section 4(2) of the Securities Act of
1933, as amended (the "1933 Act"), or (iv) is the beneficiary of a fiduciary
account, or, if the fiduciary of the account or other party is the donor of
funds used by the fiduciary account to make this investment, then such donor,
who meets the requirements of either (i), (ii) or (iii) above.
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4.6 No Federal or State Registration. Purchaser understands that the Shares
are not being registered under the 1933 Act, and that the certificates
representing the Shares will bear a legend substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT") OR QUALIFIED UNDER THE
SECURITIES LAWS OF ANY STATE ("THE LAW"). SUCH SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NEITHER SAID SHARES NOR ANY INTEREST THEREIN MAY BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SHARES UNDER THE ACT AND QUALIFICATION UNDER THE LAW OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED AS TO SAID SALE OR OFFER."
4.7 Indemnification. Purchaser hereby agrees to indemnify and hold harmless
the Company and the Company and all of their affiliates, attorneys, accountants,
employees, officers, directors, shareholders and agents from any liability,
claims, costs, damages, losses or expenses incurred or sustained by them as a
result of Purchaser's representations and warranties herein being untrue or
inaccurate, or because of a breach of this agreement by Purchaser.
4.8 Acknowledgment of Investment Risks. Purchaser hereby understands and
acknowledges the risk factors relating to this investment, including but not
limited to those described in the Information, and that the purchase of the
Shares is highly speculative and subject to a high degree of risk.
SECTION 5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of each party hereto will survive and
will not be affected by the Closing.
SECTION 6. MISCELLANEOUS
6.1 Further Assurances. Following the Closing, the Company will furnish to
Purchaser other documents as Purchaser may reasonably request for the purpose of
carrying out or evidencing the transactions contemplated hereby.
6.2 Attorneys' Fees and Costs. The prevailing party of any legal proceeding
arising out of or resulting from this Agreement will be entitled to recover its
costs and fees, including, but not limited to, reasonable attorneys' fees and
post judgment costs, from the other party.
6.3 Choice of Law and Venue. This Agreement is made and entered into in the
State of Georgia. It is the intention of the parties that this Agreement will be
subject to and will be governed by and construed in accordance with the internal
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laws of the State of Georgia without reference to its choice of law provisions;
provided, however, that questions or corporate law shall be governed by the law
of the state of the Company's incorporation. Any legal proceeding arising out of
this Agreement will be brought only in a state of federal court of competent
jurisdiction sitting in Xxxxxx County, Georgia, and all parties hereto agree
that venue will lie therein and agree to submit themselves to the personal
jurisdiction of such court.
6.4 Successors and Assigns. This Agreement will be binding upon the parties
hereto and their respective heirs, successors and assigns, if any, and will
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns, if any.
6.5 Severability. In the event that any provision of this Agreement, or the
application of such provision to any person or set of circumstances, will be
determined to be invalid, unlawful or unenforceable to any extent at any time
after the Closings, or either of them, the remainder of this Agreement, and the
application of such provision to persons or circumstances other than those as to
which it is determined to be invalid, unlawful or unenforceable, will not be
affected and will continue to be enforceable to the fullest extent permitted by
law.
6.6 Waiver. No failure or delay on the part of any party hereto in the
exercise of any power, right or privilege hereunder will operate as a waiver
thereof, nor will any single or partial exercise of any such power, right or
privilege preclude any other or further exercise thereof or of any other power,
right or privilege.
6.7 Entire Agreement. This Agreement sets forth the entire understanding of
the parties hereto and supersedes all prior agreements and understandings among
the parties relating to the subject matter hereof.
6.8 Parties in Interest. None of the provisions of this Agreement or of any
other document relating hereto is intended to provide any rights or remedies to
any person (including, without limitation, any employees or creditors of the
Company) other than the parties hereto and their respective heirs, successors
and assigns, if any.
6.9 "Person." The term "person" as used herein will include any individual,
corporation, general partnership, limited partnership, joint venture,
association, trust, organization, business entity, government (or political
subdivision thereof) or governmental agency.
6.10 Counterparts. This Agreement may be executed in several counterparts,
each of which will constitute an original and all of which, when taken together,
will constitute one agreement.
(Signatures appear on following page)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
COMPANY:
ELECTRIC AQUAGENICS UNLIMITED, INC.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Chief Executive Officer
PURCHASER:
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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