SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the "AGREEMENT") is made and entered
into as of April 16, 2010, by and among Xxxxxxx Xxxxx, an individual with an
address of c/o Kat Exploration, Inc., 0000 Xxxxxxx Xxxx, Xxxxx Xxxxx,
Xxxxxxxxxxxx X0X 0X0, Xxxxxx (the "PURCHASER") and each of the sellers of shares
of Common Stock (as defined below), whose names, addresses and amount of such
securities sold hereunder are set forth on ADDENDUM A (each, a "SELLER" and
collectively, the "SELLERS").
RECITALS
WHEREAS, the Sellers own of record and beneficially in the aggregate
220,667 shares (the "SHARES") of common stock of Bella Viaggio, Inc. (the
"COMPANY"), par value $0.001 per share (the "COMMON STOCK"), which Shares
constitute approximately 8.3% of all the issued and outstanding shares of Common
Stock;
WHEREAS, the Sellers desire to sell to the Purchaser all such 220,667
Shares and the Purchaser desires to purchase from the Sellers all such 220,667
Shares (the "SHARE ACQUISITION"), upon the terms and subject to the conditions
set forth herein;
WHEREAS, as a condition to the closing of the Share Acquisition pursuant
to this Agreement, the Purchaser pursuant to a securities purchase agreement by
and among the Purchaser and Messrs. Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxxxx, each
a principal shareholder of the Company (each a "PRINCIPAL SELLER" and
collectively the "PRINCIPAL SELLERS"), dated of even date herewith (the "OTHER
SHARE ACQUISITION"), the Purchaser shall acquire simultaneously with the closing
of the Share Acquisition, 2,043,333 additional shares of Common Stock (the
"OTHER SHARES"); and
WHEREAS, the sale of the Shares pursuant to this Agreement is being made,
inter alia, in accordance with and in reliance upon the exemptions from
securities registration for offers and sales under Section 4(1) and/or Section
4(2) of the under the Securities Act of 1933, as amended (the "SECURITIES ACT").
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties agree as follows:
CERTAIN DEFINITIONS
As used herein, each of the following terms has the meaning set forth
below, unless the context otherwise requires:
"AFFILIATE" means, with respect to any person, any other person
controlling, controlled by or under common control with such person. The term
"CONTROL" as used in the preceding sentence means, with respect to a
corporation, the right to exercise, directly or indirectly, more than 10% of the
voting rights attributable to the shares of the controlled corporation and, with
respect to any person other than a corporation, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such person.
"COLLATERAL AGREEMENTS" means any or all of the exhibits to this Agreement
and any and all other agreements, instruments or documents required or expressly
provided under this Agreement to be executed and delivered in connection with
the transactions contemplated by this Agreement.
"LEGAL REQUIREMENTS" means any and all laws (statutory, judicial or
otherwise), ordinances, regulations, judgments, orders, directives, injunctions,
writs, decrees or awards of, and any Contracts with, any Governmental Authority,
in each case as and to the extent applicable to such person or such person's
business, operations or properties.
"LIENS" means any lien, charge, mortgage interest, adverse claim, pledge,
security interest, encumbrance,
right of first refusal, preemptive right or other restrictions or limitations
whatsoever.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust or other enterprise
or any governmental or political subdivision or any agency, department or
instrumentality thereof.
"SUBSIDIARY" means any Person of which a majority of the outstanding
voting securities or other voting equity interests are owned, directly or
indirectly, by the Company.
ARTICLE I
SALE AND PURCHASE OF THE 220,667 SHARES
1.1 SALE AND PURCHASE OF SHARES.
(a) On the terms and subject to the conditions of this Agreement,
at the Closing (as defined in SECTION 2.1 hereof), Sellers shall sell, convey,
assign, transfer and deliver to Purchaser, and Purchaser shall purchase, acquire
and accept delivery of the 220,667 Shares, free and clear of any and all Liens.
(b) To effect the transfers contemplated by SECTION 1.1(a) hereof,
at the Closing, Sellers shall deliver or cause to be delivered to Purchaser,
against payment therefor in accordance with SECTION 1.2 hereof, stock
certificates representing the Shares, accompanied by stock powers duly executed
in blank and otherwise in form acceptable to Purchaser for transfer on the books
and records of the Company.
1.2 PAYMENT FOR SHARES. As payment in full for the 220,667 Shares,
Purchaser shall pay to the Sellers Twenty-nine Thousand, Seven Hundred
Twenty-eight Dollars ($29,728) as of the Closing Date, as such term is defined
in SECTION 2.1 below (the "PURCHASE PRICE"). Simultaneously with the delivery to
counsel to the Purchaser of certificates representing the 220,667 Shares duly
endorsed in blank for transfer, or with appropriate stock powers in blank
attached, counsel to the Purchaser shall deliver to Xxxxxxx X. Xxxxxx, PA, a
professional association, as escrow agent (the "ESCROW AGENT"), the Purchase
Price in next day funds. The Purchase Price and the certificates representing
the 220,667 Shares shall be released upon the Purchaser's and the Sellers'
mutual written notification that each is ready to close.
ARTICLE II
CLOSING; DELIVERIES
2.1 CLOSING. Subject to the conditions stated in ARTICLE V of this
Agreement, the closing of the transactions contemplated hereby (the "CLOSING")
shall be held at 10:00 a.m., EST, on April 23, 2010 or, if the conditions set
forth in SECTION 5.2 have not been satisfied or waived on such date, on the
first (1st) business day after all such conditions shall have been satisfied or
waived, at the offices of Gusrae Xxxxxx Xxxxx & Xxxxxxx PLLC, located at 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000. The date upon which the Closing occurs is
hereinafter referred to as the "CLOSING DATE."
2.2 DELIVERIES BY SELLERS. At or prior to the Closing, the Sellers shall
deliver to Purchaser:
(a) certificates representing the Shares duly endorsed in blank
for transfer, or with appropriate stock powers in blank attached; and
(b) letters from each of the Sellers addressed to the Purchaser
(the "10b-5 LETTERS"), in the form attached hereto as EXHIBIT A.
2.3 DELIVERIES BY PURCHASER. At or prior to the Closing, Purchaser shall
deliver the amount of the Purchase Price required to be paid at Closing pursuant
to SECTION 1.2 hereof to the Sellers through the Escrow Agent.
2.4 TERMINATION IN ABSENCE OF CLOSING.
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(a) Purchaser shall have the right to terminate this Agreement
without liability to any party by so notifying the Sellers at any time prior to
Closing if, in Purchaser's sole discretion:
(i) the results of the Purchaser's due diligence
investigation shall have revealed that any representation or warranty made
herein for the benefit of Purchaser, or any certificate, schedule or document
furnished to Purchaser pursuant to this Agreement, is untrue or incorrect in any
respect or otherwise be unsatisfactory to Purchaser;
(ii) Any Seller shall have defaulted in any material respect
in the performance of any material obligation under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers hereby severally, and not jointly, represents and
warrants for and on behalf of such Seller only, to Purchaser as of the date
hereof and as of the Closing Date that:
3.1 AUTHORITY, APPROVAL AND ENFORCEABILITY. This Agreement has been duly
executed and delivered by the Seller. The Seller has all requisite power and
legal capacity to execute and deliver this Agreement and all Collateral
Agreements executed and delivered or to be executed and delivered in connection
with the transactions provided for hereby, to consummate the transactions
contemplated hereby and by the Collateral Agreements, and to perform its
obligations hereunder and under the Collateral Agreements. This Agreement
constitutes, or upon execution and delivery will constitute, the legal, valid
and binding obligation of such party, enforceable in accordance with its terms.
3.2 OWNERSHIP OF SHARES. Seller holds of record and owns beneficially
the Shares set forth opposite his, her, or its name on ADDENDUM A hereto, free
and clear of any restrictions on transfer (other than any restrictions under
applicable state or federal securities laws), taxes, Liens, options, warrants,
contracts, commitments, equities, claims, and demands. Seller is not a party to
any option, warrant, purchase right, or other contract or commitment (other than
this Agreement) that could require Seller to sell, transfer, or otherwise
dispose of any of his, her or its Shares. Seller is not a party to any voting
trust, proxy, or other agreement or understanding with respect to the voting of
any capital stock of the Company. Seller has the power, authority and legal
capacity to sell, transfer, assign and deliver such Shares as provided in this
Agreement, and such delivery will convey to the Company good and marketable
title to such Shares, free and clear of all Liens. Upon the Closing, neither
Seller nor any third party will have any rights whatsoever with respect to the
Shares or to any other securities, or incidents of ownership, of or in the
Company.
3.3 NO DEFAULT OR CONSENTS. Neither the execution and delivery of this
Agreement by the Seller nor his, her or its carrying out of the transactions
contemplated hereby will:
(a) violate any Legal Requirements applicable to Seller;
(b) result in the creation of any Lien; or
(c) require Seller to obtain or make any waiver, consent, action,
approval or authorization of, or registration, declaration, notice or filing
with, any private non-governmental third party or any governmental authority
3.4 NO PROCEEDINGS. No suit, action or other proceeding is pending or,
to the knowledge of the Seller, threatened before any governmental authority
seeking to restrain the Seller or prohibit his, her or its entry into this
Agreement or prohibit the Closing, or seeking damages against the Company or its
properties as a result of the consummation of this Agreement.
3.5 FULL DISCLOSURE. The information furnished by the Sellers and the
Company to Purchaser pursuant to this Agreement (including, without limitation,
information contained in the exhibits hereto, the schedules
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identified herein, the instruments referred to in such schedules and the
certificates and other documents to be executed or delivered pursuant hereto by
the Sellers and/or the Company at or prior to the Closing) is not, nor at the
Closing will be, false or misleading in any material respect, or contains, or at
the Closing will contain, any misstatement of material fact, or omits, or at the
Closing will omit, to state any material fact required to be stated in order to
make the statements therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Sellers that:
4.1 AUTHORITY, APPROVAL AND ENFORCEABILITY. This Agreement has been duly
executed and delivered by Purchaser and Purchaser has all requisite power and
legal capacity to execute and deliver this Agreement and all Collateral
Agreements executed and delivered or to be executed and delivered by Purchaser
in connection with the transactions provided for hereby, to consummate the
transactions contemplated hereby and by the Collateral Agreements, and to
perform his obligations hereunder and under the Collateral Agreements. This
Agreement and each Collateral Agreement to which Purchaser is a party
constitutes, or upon execution and delivery will constitute, the legal, valid
and binding obligation of Purchaser, enforceable in accordance with its terms,
except as such enforcement may be limited by general equitable principles or by
applicable bankruptcy, insolvency, moratorium, or similar laws and judicial
decisions from time to time in effect which affect creditors' rights generally.
4.2 NO DEFAULT OR CONSENTS. Neither the execution and delivery of this
Agreement by the Purchaser nor his carrying out of the transactions contemplated
hereby will:
(a) violate any Legal Requirements applicable to Purchaser;
(b) result in the creation of any Lien; or
(c) require Purchaser to obtain or make any waiver, consent,
action, approval or authorization of, or registration, declaration, notice or
filing with, any private non-governmental third party or any governmental
authority.
ARTICLE V
CONDITIONS TO PURCHASER'S OBLIGATIONS
5.1 CONDITIONS TO OBLIGATIONS OF THE SELLERS. The obligations of the
Sellers to carry out the transactions contemplated by this Agreement are subject
to the satisfaction or waiver by Sellers holding a majority of the Shares to be
purchased and sold hereunder, of the following conditions:
(a) All representations and warranties of Purchaser contained in
this Agreement shall be true and correct in all material respects at and as of
the Closing, and Purchaser shall have performed and satisfied in all material
respects all covenants and agreements required by this Agreement to be performed
and satisfied by Purchaser at or prior to the Closing.
(b) As of the Closing Date, no suit, action or other proceeding
(excluding any such matter initiated by or on behalf of the Company or Sellers)
shall be pending or threatened before any governmental authority seeking to
restrain the Seller or prohibit the Closing or seeking damages against the
Seller as a result of the consummation of this Agreement.
5.2 CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of the
Purchaser to carry out the transactions contemplated by this Agreement are
subject, at the option of the Purchaser, to the satisfaction or waiver by the
Purchaser of the following conditions:
(a) All representations and warranties of the Sellers contained in
this Agreement shall be true and correct in all material respects at and as of
the Closing, and the Company and the Sellers shall have performed
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and satisfied in all material respects all agreements and covenants required by
this Agreement to be performed and satisfied by them at or prior to the Closing.
(b) As of the Closing Date, no suit, action or other proceeding
(excluding any such matter initiated by or on behalf of Purchaser) shall be
pending or threatened before any court or governmental agency seeking to
restrain Purchaser or prohibit the Closing or seeking damages against Purchaser
or the Company or its properties as a result of the consummation of this
Agreement.
(c) The Other Shares shall have been acquired by the Purchaser
pursuant to the Other Share Acquisition.
(d) Purchaser shall have completed its due diligence
investigation, and the results thereof shall not have revealed that any of the
representations of the Sellers set forth herein are untrue or incorrect in any
respect or otherwise be unsatisfactory to Purchaser.
(e) No proceeding in which the Sellers shall be a debtor,
defendant or party seeking an order for its own relief or reorganization shall
have been brought or be pending by or against such person under any United
States or state bankruptcy or insolvency law.
(f) The Purchaser shall have received 10b-5 Letters from each of
the Sellers addressed to the Purchaser.
(g) Each of the Sellers shall have delivered the certificate
representing his, her or its Shares duly endorsed in blank for transfer, or with
appropriate stock powers in blank attached.
ARTICLE VI
MISCELLANEOUS
6.1 CONFIDENTIALITY.
(a) Prior to the Closing, Purchaser shall, and shall cause its
Affiliates and its and their employees, agents, accountants, legal counsel and
other representatives and advisers to, hold in strict confidence all, and not
divulge or disclose any, information of any kind concerning the Company and its
business; provided, however, that the foregoing obligation of confidence shall
not apply to (i) information that is or becomes generally available to the
public other than as a result of a disclosure by Purchaser or its Affiliates or
any of its or their employees, agents, accountants, legal counsel or other
representatives or advisers, (ii) information that is or becomes available to
Purchaser or its Affiliates or any of its or their employees, agents,
accountants, legal counsel or other representatives or advisers on a
nonconfidential basis prior to its disclosure by Purchaser or its Affiliates or
any of its or their employees, agents, accountants, legal counsel or other
representatives or advisers and (iii) information that is required to be
disclosed by Purchaser or its Affiliates or any of its or their employees,
agents, accountants, legal counsel or other representatives or advisers as a
result of any applicable law, rule or regulation of any governmental authority;
and provided further that Purchaser promptly shall notify the Company of any
disclosure pursuant to clause (iii) of this SECTION 9.2(a); and, provided,
further, that the foregoing obligation of confidence shall not apply to the
furnishing of information by Purchaser in bona fide discussions or negotiations
with prospective lenders.
(b) The Sellers shall, and shall cause its or his Affiliates and
their respective employees, agents, accountants, legal counsel and other
representatives and advisers to, hold in strict confidence all, and not divulge
or disclose any, information of any kind concerning the transactions
contemplated by this Agreement, the Company, Purchaser or their respective
businesses; provided, however, that the foregoing obligation of confidence shall
not apply to (i) information that is or becomes generally available to the
public other than as a result of a disclosure by the Sellers or its or their
Affiliates or any of their respective employees, agents, accountants, legal
counsel or other representatives or advisers, (ii) information that is or
becomes available to the Sellers or its or their Affiliates or any of their
respective employees, agents, accountants, legal counsel or other
representatives or
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advisers after the Closing on a nonconfidential basis prior to its disclosure by
the Sellers or its or their Affiliates or any of their respective employees,
agents, accountants, legal counsel or other representatives or advisers and
(iii) information that is required to be disclosed by the Sellers or its or
their Affiliates or any of their respective employees, agents, accountants,
legal counsel or other representatives or advisers as a result of any applicable
law, rule or regulation of any governmental authority.
6.2 COSTS AND EXPENSES. Each of the parties to this Agreement shall bear
his or its own expenses incurred in connection with the negotiation,
preparation, execution and closing of this Agreement and the transactions
contemplated hereby.
6.3 NOTICES. Any notice, request, instruction, correspondence or other
document to be given hereunder by any party hereto to another (herein
collectively called "NOTICE") shall be in writing and delivered personally or
mailed by registered or certified mail, postage prepaid and return receipt
requested, or by telecopier, as follows:
IF TO THE PURCHASER: XXXXXXX XXXXX
c/o Kat Exploration, Inc.
0000 Xxxxxxx XX
Xxxxx Xxxxx, XX X0X 0X0, Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxxxxx.xxx
IF TO A SELLER:
To the address specified with respect to such Seller on ADDENDUM A
appended hereto.
Each of the above addresses for notice purposes may be changed by
providing appropriate notice hereunder. Notice given by personal delivery or
registered mail shall be effective upon actual receipt. Notice given by
telecopier shall be effective upon actual receipt if received during the
recipient's normal business hours, or at the beginning of the recipient's next
normal business day after receipt if not received during the recipient's normal
business hours. All Notices by telecopier shall be confirmed by the sender
thereof promptly after transmission in writing by registered mail or personal
delivery. Anything to the contrary contained herein notwithstanding, notices to
any party hereto shall not be deemed effective with respect to such party until
such Notice would, but for this sentence, be effective both as to such party and
as to all other persons to whom copies are provided above to be given.
6.4 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed solely and exclusively under and pursuant to the laws
of the State of New York as applied to agreements among New York residents
entered into and to be performed entirely within New York. Each of the Sellers
and the Purchaser (i) hereby irrevocably submits to the jurisdiction of the
United States District Court sitting in the Southern District of New York and
the courts of the State of New York located in New York, New York for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement or any of the other Transaction Documents or the transactions
contemplated hereby or thereby and (ii) 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 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. Each of the Sellers and the Purchaser consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof.
6.5 JURY TRIAL; WAIVER. The Sellers and the Purchaser hereby waive a
trial by jury in any action, proceeding or counterclaim brought by any of the
parties hereto against the other in respect of any matter arising out or in
connection with this Agreement and the transactions and developments
contemplated hereby.
6.6 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement, together
with all exhibits and
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schedules attached hereto, constitutes the entire agreement between and among
the parties hereto pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter hereof
except as set forth specifically herein or contemplated hereby. No supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (regardless of whether similar), nor shall any such waiver
constitute a continuing waiver unless otherwise expressly provided.
6.7 BINDING EFFECT AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective permitted
successors and assigns; but neither this Agreement nor any of the rights,
benefits or obligations hereunder shall be assigned, by operation of law or
otherwise, by any party hereto without the prior written consent of the other
party, provided, however, that nothing herein shall prohibit the assignment of
Purchaser's rights and obligations to any direct or indirect subsidiary or
prohibit the assignment of Purchaser's rights (but not obligations) to any
lender. Nothing in this Agreement, express or implied, is intended to confer
upon any person or entity other than the parties hereto and their respective
permitted successors and assigns, any rights, benefits or obligations hereunder.
6.8 REMEDIES. The rights and remedies provided by this Agreement are
cumulative, and the use of any one right or remedy by any party hereto shall not
preclude or constitute a waiver of its right to use any or all other remedies.
Such rights and remedies are given in addition to any other rights and remedies
a party may have by law, statute or otherwise.
6.9 EXHIBITS AND SCHEDULES. The exhibits and schedules referred to
herein are attached hereto and incorporated herein by this reference. Disclosure
of a specific item in any one schedule shall be deemed restricted only to the
Section to which such disclosure specifically relates except where (i) there is
an explicit cross-reference to another schedule, and (ii) Purchaser could
reasonably be expected to ascertain the scope of the modification to a
representation intended by such cross-reference.
6.10 MULTIPLE COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.11 REFERENCES AND CONSTRUCTION.
(a) Whenever required by the context, and is used in this
Agreement, the singular number shall include the plural and pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural, as the identification the person may require. References to
monetary amounts, specific named statutes and generally accepted accounting
principles are intended to be and shall be construed as references to United
States dollars, statutes of the United States of the stated name and United
States generally accepted accounting principles, respectively, unless the
context otherwise requires.
(b) The provisions of this Agreement shall be construed according
to their fair meaning and neither for nor against any party hereto irrespective
of which party caused such provisions to be drafted. Each of the parties
acknowledges that it has been represented by an attorney in connection with the
preparation and execution of this Agreement.
6.12 SURVIVAL. Any provision of this Agreement which contemplates
performance or the existence of obligations after the Closing Date, and any and
all representations and warranties set forth in this Agreement, shall not be
deemed to be merged into or waived by the execution and delivery of the
instruments executed at the Closing, but shall expressly survive Closing and
shall be binding upon the party or parties obligated thereby in accordance with
the terms of this Agreement, subject to any limitations expressly set forth in
this Agreement.
6.13 SEVERABILITY. The provisions of this Agreement are severable and, in
the event that any court of competent jurisdiction shall determine that any one
or more of the provisions or part of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity,
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illegality or unenforceability shall not affect any other provision or part of a
provision of this Agreement and such provision shall be reformed and construed
as if such invalid or illegal or unenforceable provision, or part of such
provision, had never been contained herein, so that such provisions would be
valid, legal and enforceable to the maximum extent possible.
[SIGNATURE ON NEXT FOLLOWING PAGE]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the Purchaser
and each of the Sellers.
THE PURCHASER: XXXXXXX XXXXX
By:
------------------------------
Name: Xxxxxxx Xxxxx
Title: An individual
THE SELLERS: XXXX XXXXXXXX
AS AGENT FOR ALL THE SELLERS
By:
------------------------------
Name: Xxxx Xxxxxxxx
Title: Agent
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