EXHIBIT 10
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of January 21,
2007, by and between NPOWR Digital Media, Inc., a California corporation (the
"Company"), and Avante Holding Group, Inc., a Florida corporation ("Buyer").
WHEREAS, the Company and Buyer are executing and delivering this Agreement
in reliance upon an exemption from securities registration afforded by the
provisions of Section 4(2), Section 4(6) and/or Regulation D ("Regulation D") as
promulgated by the United States Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to Buyer, as
provided herein, and Buyer the aggregate, shall purchase one million shares
(1,000,000) of the Series A Preferred stock, $0.01 par value of K2 Digital, Inc.
("K2") (the "Shares") at a per share price equal to $.1125 per share for One
Hundred and Twelve Thousand Five Hundred Dollars ($112,500) (the "Closing
Purchase Price"). I
NOW, THEREFORE, in consideration of the mutual covenants and other
agreements contained in this Agreement the Company and Buyer hereby agree as
follows:
1. Closing.
(a) Subject to the satisfaction or waiver of the terms and
conditions of this Agreement, on the Closing Date, Buyer shall purchase and the
Company shall sell to Buyer the Shares. The amount of the Shares to be purchased
by Buyer on the Closing Date shall, in the aggregate, be equal to the Closing
Purchase Price. The "Closing Date" shall be the date that Buyer pays funds
representing the amount due the Company from the Closing Purchase Price is
transmitted by wire transfer or otherwise to or for the benefit of the Company,
but in no event later than February 21, 2007.
(b) Payment of Purchase Price. Buyer shall make all payments
hereunder, by wire transfer to the account of the Company as follows:
Union Bank of California
Thousand Oaks #96
0000 Xxxxxxxx Xxxx Xxxx.
Xxxxxxxx Xxxx, XX 00000
Account Name: NPOWR Digital Media, Inc.
Account Number: 0960001273
ABA Number: 000000000
2. Representations and Warranties. Buyer hereby represents and
warrants to and agrees with the Company only as to such Buyer that:
(a) Information on K2. Buyer has received such information
concerning the operations, financial condition and other matters of K2 as Buyer
has requested in writing (such other information is collectively, the "Other
Written Information"), and considered all factors Buyer deems material in
deciding on the advisability of investing in the Shares.
(b) Information on Buyer. Buyer is, and will be at the time of
the conversion of the Shares, an "accredited investor", as such term is defined
in Regulation D promulgated by the Commission under the 1933 Act, is experienced
in investments and business matters, has made investments of a speculative
nature and has purchased securities of United States publicly-owned companies in
private placements in the past and, with its representatives, has such knowledge
and experience in financial, tax and other business matters as to enable Buyer
to utilize the information made available by the Company to evaluate the merits
and risks of and to make an informed investment decision with respect to the
proposed purchase, which represents a speculative investment. Buyer has the
authority and is duly and legally qualified to purchase and own the Securities.
Buyer is able to bear the risk of such investment for an indefinite period and
to afford a complete loss thereof. The information set forth on the signature
page hereto regarding Buyer is accurate.
(c) Purchase of Shares. On the Closing Date, Buyer will
purchase the Shares as principal for its own account for investment only and not
with a view toward, or for resale in connection with, the public sale or any
distribution thereof.
(d) Compliance with Securities Act. Buyer understands and
agrees that the Shares have not been registered under the 1933 Act or any
applicable state securities laws, by reason of their issuance in a transaction
that does not require registration under the 1933 Act (based in part on the
accuracy of the representations and warranties of Buyer contained herein), and
that such Shares must be held indefinitely unless a subsequent disposition is
registered under the 1933 Act or any applicable state securities laws or is
exempt from such registration. In any event, and subject to compliance with
applicable securities laws, Buyer may enter into lawful hedging transactions
with third parties, which may in turn engage in short sales of the Shares in the
course of hedging the position they assume and Buyer may also enter into short
positions or other derivative transactions relating to the Shares, or interests
in the Shares, and deliver the Shares, or interests in the Shares, to close out
their short or other positions or otherwise settle short sales or other
transactions, or loan or pledge the Shares, or interests in the Shares, to third
parties that in turn may dispose of these Shares.
(e) Shares Legend. The Shares shall bear the following or
similar legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH SECURITIES ACT OR ANY APPLICABLE
STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO K2 DIGITAL, INC. THAT SUCH REGISTRATION IS
NOT REQUIRED."
(f) Communication of Offer. The offer to sell the Shares was
directly communicated to Buyer by the Company. At no time was Buyer presented
with or solicited by any leaflet, newspaper or magazine article, radio or
television advertisement, or any other form of general advertising or solicited
or invited to attend a promotional meeting otherwise than in connection and
concurrently with such communicated offer.
(g) Authority; Enforceability. This Agreement and other
agreements delivered together with this Agreement or in connection herewith have
been duly authorized, executed and delivered by Buyer and are valid and binding
agreements enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity; and Buyer has full corporate power and
authority necessary to enter into this Agreement and such other agreements and
to perform its obligations hereunder and under all other agreements entered into
by Buyer relating hereto.
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(h) Restricted Securities. Buyer understands that the Shares
have not been registered under the 1933 Act and such Buyer will not sell, offer
to sell, assign, pledge, hypothecate or otherwise transfer any of the Shares
unless (i) pursuant to an effective registration statement under the 1933 Act,
(ii) Buyer provides the Company with an opinion of counsel, in a form reasonably
acceptable to the Company, to the effect that a sale, assignment or transfer of
the Shares may be made without registration under the 1933 Act, or (iii) Buyer
provides the Company with reasonable assurances (in the form of seller and
broker representation letters) that the Shares may be, may be sold pursuant to
(A) Rule 144 promulgated under the 1933 Act, or (B) Rule 144(k) promulgated
under the 1933 Act, in each case following the applicable holding period set
forth therein. Notwithstanding anything to the contrary contained in this
Agreement, Buyer may transfer (without restriction and without the need for an
opinion of counsel) the Shares to its Affiliates (as defined below) provided
that each such Affiliate is an "accredited investor" under Regulation D and such
Affiliate agrees to be bound by the terms and conditions of this Agreement.
For the purposes of this Agreement, an "Affiliate" of any
person or entity means any other person or entity directly or indirectly
controlling, controlled by or under direct or indirect common control with such
person or entity. For purposes of this definition, "control" means the power to
direct the management and policies of such person or firm, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise.
(i) No Governmental Review. Buyer understands that no United
States federal or state agency or any other governmental or state agency has
passed on or made recommendations or endorsement of the Shares or the
suitability of the investment in the Shares nor have such authorities passed
upon or endorsed the merits of the offering of the Shares.
(j) Correctness of Representations. Buyer represents that the
foregoing representations and warranties are true and correct as of the date
hereof and, unless Buyer otherwise notifies the Company prior to each Closing
Date shall be true and correct as of each Closing Date.
(k) Survival. The foregoing representations and warranties
shall survive the Closing Date for a period of three years.
3. Company Representations and Warranties. The Company represents
and warrants to and agrees with Buyer that:
(a) Authority; Enforceability. This Agreement has been duly
authorized, executed and delivered by the Company is a valid and binding
agreement enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity. The Company has full corporate power and
authority necessary to enter into and deliver this Agreement and to perform
their obligations thereunder.
(b) Consents. No consent, approval, authorization or order of
any court, governmental agency or body or arbitrator having jurisdiction over
the Company, or any of its Affiliates, nor the Company's shareholders is
required for the execution by the Company of the Agreement and compliance and
performance by the Company of its obligations under the Agreement, including,
without limitation, the sale of the Securities.
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(c) The Shares. The Shares upon transfer:
(i) are, or will be, free and clear of any security
interests, liens, claims or other encumbrances, subject to restrictions upon
transfer under the 1933 Act and any applicable state securities laws;
(d) Correctness of Representations. The Company represents
that the foregoing representations and warranties are true and correct as of the
date hereof in all material respects, and, unless the Company otherwise notifies
Buyer prior to each Closing Date, shall be true and correct in all material
respects as of each Closing Date.
(e) Survival. The foregoing representations and warranties
shall survive the Closing Date for a period of three years.
4. Regulation D Offering. The offer and issuance of the Shares to
Buyer is being made pursuant to the exemption from the registration provisions
of the 1933 Act afforded by Section 4(2) or Section 4(6) of the 1933 Act and/or
Rule 506 of Regulation D promulgated thereunder.
5. Broker/Legal Fees.
(a) Broker's Fee. The Company on the one hand, and Buyer (for
itself only) on the other hand, agree to indemnify the other against and hold
the other harmless from any and all liabilities to any persons claiming
brokerage commissions or finder's fees on account of services purported to have
been rendered on behalf of the indemnifying party in connection with this
Agreement or the transactions contemplated hereby and arising out of such
party's actions.
(b) Legal Fees. Each party shall pay all legal fees incurred
in connection with this Agreement and the purchase and sale of the Shares.
6. Miscellaneous.
(a) Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be (i) personally served,
(ii) deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be: (i) if to the Company, to: NPOWR Digital Media,
Inc., 0000 Xxxxxxxx Xxxx, Xxxxxx, XX 00000, and (ii) if to Buyer to: Avante
Holding Group, 0000 Xxxxx Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000,
copy, in each case to Xxxxxx X. Xxxx, Esq., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000.
(b) Closing. The consummation of the transactions contemplated
herein shall take place at the offices of Xxxxxx X. Xxxx, 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, XX 00000 upon the satisfaction of all conditions to
Closing set forth in this Agreement. The Closing Date is referred to as a
"Closing Date". At the Closing, the Company will transfer the Shares to Buyer
with signatures medallion guaranteed and the Buyer will pay the Closing Purchase
Price and assume the Promissory Note issued to K2 by the Company.
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(c) Entire Agreement; Assignment. This Agreement and other
documents delivered in connection herewith represent the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only by a writing executed by both parties. Neither the Company nor
Buyer have relied on any representations not contained or referred to in this
Agreement and the documents delivered herewith.
(d) Counterparts/Execution. This Agreement may be executed in
any number of counterparts and by the different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signature and delivered by facsimile
transmission.
(e) Law Governing this Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts of laws. Any action brought by either
party against the other concerning the transactions contemplated by this
Agreement shall be brought only in the state courts of New York or in the
federal courts located in the state of New York. The parties and the individuals
executing this Agreement and other agreements referred to herein or delivered in
connection herewith on behalf of the Company agree to submit to the jurisdiction
of such courts and waive trial by jury. The prevailing party shall be entitled
to recover from the other party its reasonable attorney's fees and costs. In the
event that any provision of this Agreement or any other agreement delivered in
connection herewith is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any such provision which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability of
any other provision of any agreement.
(f) Specific Enforcement, Consent to Jurisdiction. The Company
and Buyer acknowledge and agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to one or more preliminary and final
injunctions to prevent or cure breaches of the provisions of this Agreement and
to enforce specifically the terms and provisions hereof, this being in addition
to any other remedy to which any of them may be entitled by law or equity.
Subject to Section 7(e) hereof, each of the Company, Buyer and any signator
hereto in his personal capacity hereby waives, and agrees not to assert in any
such suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction in New York of such court, that the suit, action or proceeding
is brought in an inconvenient forum or that the venue of the suit, action or
proceeding is improper. Nothing in this Section shall affect or limit any right
to serve process in any other manner permitted by law.
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SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
Please acknowledge your acceptance of the foregoing Stock Purchase
Agreement by signing and returning a copy to the undersigned whereupon it shall
become a binding agreement between us.
NPOWR DIGITAL MEDIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: CEO
Dated: January 21, 2007
BUYER
AVANTE HOLDING GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Dated: January 21, 2007
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