STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT (this "Agreement") is made this ___ day of February,
2010 by and among Xxxxxx X. Xxxxxxxxx,
Esq., (the “Seller Representative”) and B6 Sigma, Inc. (the “Buyer”) and
Xxxxxx X. Xxxxxxxxx, P.C. (the “Escrow Agent”).
THE
PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase
and Sale of Stock.
(a) Sale of
Shares. Subject to the terms and conditions of this Agreement,
and in reliance upon the representations and warranties and covenants contained
herein, Buyer agrees to purchase from Seller Representative and Seller
Representative agrees to sell to Buyer Seven Hundred Eighty Thirty Thousand
(738,000) restricted (on a pre-split basis) shares (the “Shares”) of the 750,000
shares owned by sellers, and any rights attached to the shares as of the date
hereof (including any forward splits of stock or other dividends), of
FrameWaves, Inc.(the “Company”) for a total purchase price of One Hundred and
Ninety Five Thousand and no/100 Dollars (USD$195,000.00) (the “Purchase Price”)
which assumes a 125 to 1 forward split of the Shares in connection with the
closing of the intended reorganization and which amount shall be adjusted in the
event that the forward split of the Shares is a different ratio to the extent
that the Seller shall be left with the equivalent of 1,500,000 post split
Shares.
(b) Purchase Price. The
Parties agree that the Purchase price shall be delivered to the Escrow Agent on
or before the closing of the intended reorganization by and among the Company,
B6 Sigma, Inc. and the Shareholders of B6 Sigma, Inc., or such other entity as
may be the subject of a share exchange transaction with the Company, the result
of which the Company shall acquire certain business and/or assets of TMC
Corporation or its affiliates (such entity being referred to herein as the
“Target” and the transaction by and among the target, its shareholders and the
Company being referred to herein as the “Reorganization”).
2.
Deliveries.
(a) Upon
execution of this Agreement, the Seller Representative shall deliver to the
Escrow Agent a certificate or certificates representing the Shares in negotiable
form (the “Certificates”), duly endorsed in blank, or with stock transfer powers
(containing a bank’s signature guarantee or other signature guarantee acceptable
to the Company’s transfer agent) attached thereto (the “Transaction Documents”);
and
(b) On
or before the Closing, the Buyer shall deliver to the Escrow Agent the Purchase
Price ($195,000).
(c) Closing.
(i) The
closing of the transactions contemplated hereunder (the “Closing”) shall take
place at the office of the Escrow Agent contemporaneous with the contemplated
closing of the Reorganization (the “Reorganization Closing”). In the event that
the Company fails to complete the Reorganization on or before May 20, 2010, the
Escrow Agent shall thereupon return the Certificates and the Transaction
Documents to the Seller Representative and all rights and obligations under this
Agreement shall terminate.
(ii) The
Buyer agrees to cancel said 738,000 shares immediately following the
Reorganization Closing, but after the Closing of the sale by certain
shareholders of 388,000 shares of common stock to third parties (the “Eight
Shareholder Transaction”) pursuant to a separate agreement by and among such
persons and the Seller representative, as representative of the shareholders.
For avoidance of doubt, the cancellation of the 738,000 shares of common stock
referenced herein shall occur only after the shares are sold to the purchasers
in the Eight Shareholder Transaction and the Reorganization Closing has been
completed.
(iii) At
the Closing, the Escrow Agent shall deliver (a) the Certificates and the
Transaction Documents to the Buyer; and (b) the Purchase Price to the Seller
Representative.
(iv) As
a condition to Closing, Seller shall have piggyback registration rights for any
shares retained by Seller and such piggyback registration rights shall be
available to the Seller for any allowable registration statements by the Company
during the period from the execution of this Agreement until twelve months
following the closing of the Reorganization and filing of a report on Form 8-K
that provides the Form 10 information to the Securities and Exchange
Commission.
3. Representations and Warranties of
Seller Representative. In order to induce the Buyers to enter into this
Agreement and purchase the Shares, the Seller Representative hereby represents
and warrants to the Buyers that:
(a) Ownership of
Shares. Seller Representative warrants that the holders of the
Shares (each a “Seller”) are the record and beneficial owner of 750,000 shares
of the Company’s common stock (prior to the anticipated forward split) and have
sole power over the disposition of the Shares and that: (i) the
Shares are restricted shares, free and clear of any liens, claims, encumbrances,
and charges; (ii) the Shares have not been sold, conveyed, encumbered,
hypothecated or otherwise transferred by any Seller except pursuant to this
Agreement; (iii) the Company currently has 1,258,994 Shares issued
and outstanding; and (iii) at the Closing, after taking into account the
cancellation of the 738,000 shares being sold hereunder (without giving effect
to the anticipated forward split) and prior to shares of common stock to be
issued in the Reorganization, the Company will have 520,994 shares of common
stock issued and outstanding (and no shares of preferred stock or options or
warrants convertible into any class of stock issued or
outstanding).
(b) Authority for
Agreement. Seller Representative has the requisite power and
authority to enter into and to consummate the transactions contemplated hereby
and otherwise to carry out its obligations hereunder. The execution,
delivery and performance by the Seller Representative of this Agreement has been
duly authorized by all requisite action by the Seller Representative and by each
Seller represented by the Seller Representative, and this Agreement, when
executed and delivered by the Seller Representative, constitutes a valid and
binding obligation of the Seller Representative and each Seller of Shares
represented by the Seller Representative, enforceable against the Seller
Representative and each such Seller in accordance with its terms. The Seller
Representative has no authority to vote or control the Shares and her sole
function in this transaction is to handle the sale of the Shares from the
Sellers to the Buyer.
(c) Experience and
Knowledge. The Seller Representative acknowledges and agrees that it
(i) has extensive knowledge and experience in financial and business
matters; (ii) has had access to and received all information regarding the
Company and the Buyer as it has desired or requested; (iii) has made its
own inquiry and investigation into, and, based thereon, has formed an
independent judgment concerning, the operations of the Company and its business
and future prospects, including those of the Buyer; and (iv) has received
sufficient and satisfactory answers to all questions posed to the Company to
evaluate the merits and risks of the transactions contemplated by this
Agreement.
(d) The
Reorganization. The Seller Representative has satisfied
herself with respect to, and has knowledge of the operations, affairs, condition
and prospects of the Company and its future plans and the financial details
relating to the Reorganization. The Seller Representative understands that the
terms of the Reorganization may change or differ from those presently
contemplated based upon negotiations occurring after the date of this
Agreement.
(e) No Fiduciary Duty.
The Seller Representative hereby acknowledges and agrees that (a) at
present there is no regular public trading market for the Shares; (b) the
purchase and sale of Seller’s Shares is taking place in a private transaction
between Seller Representative and Buyer in an arm’s length commercial
transaction between the Seller Representative, on the one hand, and the Buyer on
the other, at a price negotiated and agreed to by the Seller Representative; and
(c) the Seller Representative agrees that it is solely responsible for making
its own judgments in connection with the Agreement.
(f) Affiliate
Status and Share Restrictions. The Seller Representative
represents that the Sellers are affiliates of the Company and that the Shares
being sold hereunder are “restricted
securities”.
4. Representations and Warranties of the
Buyer. The Buyer hereby warrants and represents to each Seller
that:
(a) Authority. The
Buyer has the requisite power and authority to enter into and to consummate the
transactions contemplated hereby and otherwise to carry out its obligations
hereunder. The execution, delivery and performance by the Buyer of
this Agreement have been duly authorized by all requisite action by the Buyer,
and this Agreement, when executed and delivered by the Buyer, constitutes a
valid and binding obligation of the Buyer, enforceable against the
Buyer.
(b) Experience and
Knowledge. The Buyer acknowledges and agrees that it (i) has
extensive knowledge and experience in financial and business matters;
(ii) has had access to all information as to the Company and the Buyer as
it has desired; (iii) has made its own inquiry and investigation into, and,
based thereon, has formed an independent judgment concerning, the operations of
the Company and its business and future prospects; and (iv) has received
sufficient and satisfactory answers to all questions posed to the Company to
evaluate the merits and risks of the transactions contemplated by this
Agreement.
5. Escrow
Agent.
(a) Buyer
Deliveries. On or before the Closing Date, the Buyer shall
have delivered to the Escrow Agent the Purchase Price for the
Shares.
(b) Seller
Deliveries. On or before the Closing Date, the Seller
Representative shall have delivered to the Escrow Agent the Certificates and
Transaction Documents.
(c) Escrow Agent to Deliver
Certificate, Transaction Documents and Purchase Price. The
Escrow Agent shall hold and release the Certificates, Transaction Documents and
Purchase price only in accordance with the terms and conditions of this
Agreement.
(d) Duties and Responsibilities
of the Escrow Agent. The Escrow Agent’s duties and
responsibilities shall be subject to the following terms and
conditions:
(i) The
Seller Representative and each of the Buyers acknowledge and agree that the
Escrow Agent (a) shall not be responsible for or bound by, and shall not be
required to inquire into whether either the Seller Representative or the Buyer
is entitled to receipt of the Certificates, Transaction Documents or Purchase
Price pursuant to any other agreement or otherwise; (b) shall be obligated only
for the performance of such duties as are specifically assumed by the Escrow
Agent pursuant to this Agreement; (c) may rely on and shall be protected in
acting or refraining from acting upon any written notice, instruction,
instrument, statement, request or document furnished to it hereunder and
believed by the Escrow Agent in good faith to be genuine and to have been signed
or presented by the proper person or party, without being required to determine
the authenticity or correctness of any fact stated therein or the propriety or
validity or the service thereof; (d) may assume that any person believed by the
Escrow Agent in good faith to be authorized to give notice or make any statement
or execute any document in connection with the provisions hereof is so
authorized; (e) shall not be under any duty to give the property held by Escrow
Agent hereunder any greater degree of care than the Escrow Agent gives its own
similar property, but in no event less than a reasonable amount of care; and (f)
may consult with counsel satisfactory to the Escrow Agent, the opinion of such
counsel to be full and complete authorization and protection in respect of any
action taken, suffered or omitted by the Escrow Agent hereunder in good faith
and in accordance with the opinion of such counsel.
(ii) The
Seller Representative and the Buyer acknowledges that the Escrow Agent is acting
solely at its request and that the Escrow Agent shall not be liable for any
action taken by Escrow Agent in good faith and believed by the Escrow Agent to
be authorized or within the rights or powers conferred upon the Escrow Agent by
this Agreement. The Seller and the Buyer agree to indemnify and hold harmless
the Escrow Agent and any of the Escrow Agent’s partners, employees, agents,
affiliates and representatives for any action taken or omitted to be taken by
the Escrow Agent or any of them hereunder, including the fees of outside counsel
and other costs and expenses of defending itself against any claim or liability
under this Agreement, except in the case of gross negligence or willful
misconduct on the part of the Escrow Agent committed in its capacity as Escrow
Agent under this Agreement. The Escrow Agent shall owe a duty only to the
Sellers and the Buyer under this Agreement and to no other person.
(iii) The
Buyer and Seller Representative agree to reimburse the Escrow Agent for outside
counsel fees, to the extent authorized hereunder and incurred in connection with
the performance of its duties and responsibilities hereunder.
(iv)
The Escrow Agent may at any time resign as Escrow
Agent hereunder by giving five (5) days prior written notice of resignation to
the Buyer and the Seller Representative. Prior to the effective date of the
resignation as specified in such notice, the Buyer and Seller Representative,
respectively, will issue to the Escrow Agent an Instruction authorizing delivery
of the Purchase Price, the Certificates and Transaction Documents to a
substitute escrow agent selected jointly by the Buyer and the Seller
Representative. If no successor escrow agent is agreed upon and named
by the Buyer and the Seller Representative, the Escrow Agent may apply to a
court of competent jurisdiction in the State of Utah for appointment of a
successor escrow agent, and to deposit the Purchase Price, the Certificates and
Transaction Documents with the clerk of any such court.
(v) This
Agreement sets forth exclusively the duties of the Escrow Agent with respect to
any and all matters pertinent thereto and no implied duties or obligations shall
be read into this Agreement.
(vi) The
provisions of this Section 5 shall survive the resignation of the Escrow Agent
or the termination of this Agreement.
6. Miscellaneous.
(a) Successors and
Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties.
(b) Governing
Law/Venue. This Agreement shall be governed by and construed
under the laws of the State of Nevada as applied to agreements entered into and
to be performed entirely within Nevada. Any dispute or controversy
concerning or relating to this Agreement shall be exclusively resolved in the
federal or state courts located in the City, County and State of
Nevada.
(c) Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(d) Default. Seller
Representative’s failure to deliver to Buyer’s Certificates representing any
securities as required hereby along with fully executed stock powers with
signature medallion guaranteed, shall constitute a default under this Agreement
(“Default”). Nothing herein shall limit the Buyer’s rights to protect
and enforce its rights by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein for an injunction against a violation of any of the terms hereof or
thereof, or for the pursuit of any other remedy which it may have by virtue of
this Agreement, for the failure of the Seller Representative to deliver
Certificates representing any securities as required hereby, and the Buyer shall
have the right to pursue all remedies available to them at law or in equity,
including, without limitation, a decree of specific performance and/or
injunctive relief.
(e) 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.
(f) Notices. Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given upon personal delivery
to the party to be notified or sent by overnight delivery by a nationally
recognized overnight courier upon proof of sending thereof and addressed to the
party to be notified at the address indicated for such party above, or at such
other address as such party may designate by written notice to the other
parties.
(g)
Expenses. Each
of the parties shall bear its own costs and expenses incurred with respect to
the negotiation, execution, delivery, and performance of this
Agreement.
(h) Amendments and
Waivers. Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of Seller Representative and Buyer.
(i) Entire
Agreement. This Agreement represents and constitutes the
entire agreement and understanding between the parties with regard to the
subject matter contained herein. All prior agreements, understandings and
representations are hereby merged into this Agreement.
IN
WITNESS WHEREOF, the undersigned have executed, or caused to be executed on
their behalf by an agent thereunto duly authorized, this Agreement as of the
date first above written.
[Signatures
on Page Following]
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SELLER
REPRESENTATIVE:
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By:
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Xxxxxx
X. Xxxxxxxxx, Esq.
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1322
Xxxxxx
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Xxxxx,
XX 00000
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Number
of Shares: ____________________________
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ESCROW
AGENT:
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XXXXXX
X. XXXXXXXXX, P.C.
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By:
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| Name: Xxxxxx X. Xxxxxxxxx, Esq. | |
| Title: Attorney at Law | |
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B6
SIGMA, INC. (BUYER):
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By:
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Name:
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Address:
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