STOCK PURCHASE AND MEMBERSHIP INTEREST CONTRIBUTION AGREEMENT
Exhibit 10.5
STOCK PURCHASE AND MEMBERSHIP INTEREST
CONTRIBUTION AGREEMENT
THIS STOCK PURCHASE AND MEMBERSHIP INTEREST CONTRIBUTION AGREEMENT (this “Agreement”) is effective as of December 31, 2010 by and between 808 Renewable Energy Corporation, a Nevada corporation (the “Company”), and Xxxxxxx X. Xxxxxx (“Purchaser”).
The parties agree as follows:
1. Sale of Stock. The Company hereby agrees to sell to Purchaser and Purchaser hereby agrees to purchase from the Company an aggregate of Two Million Six Hundred Forty Thousand Two Hundred Fifty-Nine (2,640,259) shares of the Company’s Common Stock, par value $.001 per share (the “Shares”), as consideration for Purchaser’s irrevocable contribution, conveyance, assignment, transfer and delivery to the Company (collectively, “Purchaser’s Contribution”) of all of Purchaser’s right, title and interest in, to and under Two Million Six Hundred Forty Thousand Two Hundred Fifty-Nine (2,640,259) Units of Membership Interest of 808 Energy 2, LLC, a Nevada limited liability company, currently constituting approximately ninety percent (90%) of the issued and outstanding Units of Membership Interest of 808 Energy 2, LLC (the “Contributed LLC Membership Interests”), free and clear of any lien, claim or encumbrance. In connection with Purchaser’s Contribution and to ensure its legal effectiveness and enforceability for all purposes, concurrently with Purchaser’s execution and delivery of this Agreement, Purchaser shall execute and deliver to the Company an assignment substantially in the form of Exhibit A hereto (the “Assignment”) and shall deliver to the Company all certificates (if any) (collectively, the “LLC Certificates”) representing the Contributed LLC Membership Interests, duly endorsed by Purchaser for transfer to the Company.
2. Issuance of Shares. Upon execution of this Agreement by Purchaser and the Company, Purchaser’s execution and delivery to the Company of the Assignment and Purchaser’s delivery to the Company of the LLC Certificates (if any), duly endorsed by Purchaser for transfer to the Company, the Company shall issue a duly-executed certificate evidencing the Shares in the name of Purchaser.
3. Purchaser’s Representations and Warranties. In connection with the purchase of the Shares, Purchaser represents and warrants to the Company the following:
(a) Purchaser is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Shares. Purchaser is purchasing the Shares for investment for Purchaser’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”).
-1-
(b) Purchaser understands that the Shares have not been registered under the Securities Act by reason of a specific exemption therefrom, which exemption depends on, among other things, the bona fide nature of Purchaser’s investment intent as expressed herein. In this connection, Purchaser understands that, in the view of the Securities and Exchange Commission (the “SEC”), the statutory basis for such exemption may not be present if Purchaser’s representations meant that Purchaser’s present intention was to hold the Shares for a minimum capital gains period under applicable tax statutes, for a deferred sale, for a market rise, for a sale if the market does not rise or for a year or any other fixed period in the future.
(c) Purchaser further acknowledges and understands that the Shares must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Purchaser further acknowledges and understands that the Company is under no obligation to register the Shares.
(d) Purchaser is aware of the adoption of Rule 144 by the SEC, promulgated under the Securities Act, which permits limited public resales of securities acquired in a nonpublic offering, subject to the satisfaction of certain conditions, including, among other things, the availability of certain current public information about the issuer, the sale being through a broker in an unsolicited “broker’s transaction” and the amount of securities being sold during any three (3) month period not exceeding specified limitations. Purchaser is aware that Rule 144 of the SEC under the Securities Act currently is not available to exempt the sale of the Shares from the registration requirements of the Securities Act. Purchaser further represents that Purchaser understands that, at the time Purchaser desires to sell the Shares, there may be no public market in which to make such a sale and that, even if such a public market exists for the Company’s Common Stock, the Company may not be satisfying the current public information requirement of Rule 144 or other conditions under Rule 144 that are required of the Company. If so, Purchaser understands that Purchaser will be precluded from selling the Shares under Rule 144.
4. Purchaser’s Additional Representations and Warranties. In addition to Purchaser’s representations and warranties set forth in Section 3, Purchaser represents and warrants to the Company the following:
(a) Purchaser has the full power, authority and legal right to execute and deliver this Agreement (and all agreements and documents executed and delivered by Purchaser in connection herewith) and to perform all of Purchaser’s obligations hereunder (and under all other agreements and documents executed and delivered by Purchaser in connection herewith) and to consummate the transactions contemplated by this Agreement (and by all agreements and documents executed and delivered by Purchaser in connection herewith). Purchaser has duly executed and delivered this Agreement (and all agreements and documents executed and delivered by Purchaser in connection herewith). This Agreement (and each agreement and document executed and delivered by Purchaser in connection herewith), assuming its (and their) due authorization, execution and delivery by the Company (as required), constitutes Purchaser’s legal, valid and binding obligation, enforceable against Purchaser in accordance with its (and their) terms.
(b) Purchaser has good and transferable title to the Contributed LLC Membership Interests, and as of the date of the closing of the transactions contemplated hereby, the Contributed LLC Membership Interests shall be free and clear of any lien, claim or encumbrance.
-2-
(c) Neither the execution and delivery of this Agreement nor the fulfillment of or compliance with the terms and conditions of this Agreement by Purchaser will (i) conflict with or result in a breach of any of the terms, conditions or provisions of any agreement, contract, loan, understanding or instrument to which Purchaser is now a party or by which Purchaser (or any of Purchaser’s properties) is or may be bound, or constitute a default or result in an acceleration of indebtedness under any of the foregoing; (ii) conflict with or result in a breach of any law, rule or regulation; (iii) result in the violation of any order, judgment or decree to which Purchaser (or any of Purchaser’s properties) is subject; or (iv) result in the creation or imposition of any lien, charge or encumbrance on any of Purchaser’s properties pursuant to the terms of any mortgage, deed of trust, contract or other instrument.
(d) No consent, approval, authorization or order of, or registration or filing with, or notice to, any court or governmental agency or body having jurisdiction or regulatory authority over Purchaser (or any of Purchaser’s properties) or any other person or entity is required for (i) Purchaser’s execution and delivery of this Agreement (and each agreement and document executed and delivered by Purchaser in connection herewith) or (ii) the consummation by Purchaser of the transactions contemplated by this Agreement (and each agreement and document executed and delivered by Purchaser in connection herewith). No consent, approval or authorization of, or declaration or filing with, any governmental authority is required to be obtained or made by Purchaser for the valid execution, delivery and performance of this Agreement and Purchaser’s investment in the Shares.
(e) There are no actions or suits pending or, to Purchaser’s knowledge, threatened against Purchaser, which, if decided adversely to Purchaser, would have a material adverse effect on Purchaser’s ability to perform Purchaser’s obligations under this Agreement or to consummate the transactions contemplated hereby.
5. Stock Certificate Legends. The stock certificate evidencing the Shares issued hereunder shall be endorsed with the following (or substantially similar) legends:
(a) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF LEGAL COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
(b) THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
-3-
6. Market Stand-Off Agreement. Purchaser hereby agrees, to the extent requested by the managing underwriters in a public offering of the Company’s capital stock, that, without the prior written consent of such managing underwriters, Purchaser shall not offer, sell, contract to sell, grant any option to purchase, make any short sale or otherwise dispose of or make a distribution of any capital stock of the Company held by or on behalf of Purchaser or beneficially owned by Purchaser in accordance with the rules and regulations of the SEC for a period of up to one hundred eighty (180) days after the date of the final prospectus relating to the Company’s initial public offering.
7. Adjustment for Stock Splits. All references to the number of Shares in this Agreement shall be appropriately adjusted to reflect any stock split, reverse stock split or stock dividend or other similar change in the Shares that may be made by the Company after the date of this Agreement.
8. Transfer Taxes. All transfer, excise, documentary, sales, use, stamp, registration and other such taxes and fees (if any) (including penalties and interest) incurred by reason of the transfer to the Company of Purchaser’s right, title and interest in and to the Contributed LLC Membership Interests pursuant to this Agreement (“Transfer Taxes”) shall be paid by the Company when due, and the Company shall, at its own expense, file all necessary tax returns and other documentation with respect to all Transfer Taxes, and, if required by applicable law, Purchaser shall join in the execution of any of such tax returns and other documentation.
9. Tax Consequences. Purchaser has reviewed with Purchaser’s own tax advisers the federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. Purchaser is relying solely on such advisers and not on any statement or representation of the Company or any of its agents. Purchaser understands that Purchaser (and not the Company) shall be responsible for Purchaser’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.
10. Tax Character of Transactions. Without limiting the application or effect of the terms and provisions of Section 9, the Company and Purchaser agree that Purchaser’s purchase of the Shares, Purchaser’s Contribution and the Company’s issuance of the Shares in accordance with the terms of this Agreement are intended to qualify under Section 351 and related provisions of the Internal Revenue Code of 1986, as amended, and similar state and local income tax provisions. The Company and Purchaser further agree that each of them shall report (as required) all such transactions in a manner consistent with such qualification.
11. Cooperation on Tax Matters. The Company and Purchaser shall cooperate fully, as and to the extent reasonably requested by the other party hereto, in connection with any audit, litigation or other proceeding with respect to taxes. Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information that are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided pursuant to this Section.
12. General Provisions.
(a) This Agreement shall be governed by the laws of the State of Nevada, as such laws are applied to contracts entered into and performed in such State. This Agreement represents the entire agreement between the parties with respect to the purchase of the Shares by Purchaser and Purchaser’s Contribution and may be modified or amended only in a writing signed by both parties.
-4-
(b) Any notice, demand or request required or permitted to be given by either the Company or Purchaser pursuant to the terms of this Agreement shall be in writing and shall be deemed given when delivered personally or deposited in the U.S. mail, First Class with postage prepaid, and addressed to the parties at the addresses of the parties set forth at the end of this Agreement or such other address as a party may request by notifying the other in writing.
(c) The rights and benefits of the Company under this Agreement shall be transferable to any one or more persons or entities, and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by the Company’s successors and assigns. The rights and obligations of Purchaser under this Agreement may be assigned only with the prior written consent of the Company, and any purported transfer otherwise shall be null and void.
(d) Either party’s failure to enforce any provision of this Agreement shall not in any way be construed as a waiver of any such provision and shall not prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted to both parties herein are cumulative and shall not constitute a waiver of either party’s right to assert all other legal remedies available to such party under the circumstances.
(e) Purchaser agrees upon request to execute all further documents or instruments necessary or desirable to carry out the purposes or intent of this Agreement.
(f) All representations, warranties and agreements of Purchaser contained in this Agreement shall survive the consummation of the transactions contemplated hereby.
(g) If any dispute arises between the parties hereto with respect to the matters covered by this Agreement that leads to a proceeding to resolve such dispute, then the prevailing party in such proceeding shall be entitled to receive from the other party such prevailing party’s reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding in addition to any other relief that may be awarded to such prevailing party.
(h) Neither this Agreement nor any uncertainty or ambiguity herein will be construed against any party hereto. The parties hereto hereby expressly waive the application of any law, regulation, holding or ruling of construction providing that ambiguities in an agreement or other document shall be construed against the party drafting such agreement or document. All references in this Agreement to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise expressly specified. Unless otherwise expressly provided in this Agreement, the word “including” wherever it appears in this Agreement does not and shall not limit the words or terms preceding such word.
-5-
(i) If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision shall be excluded from this Agreement, and the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
(j) This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
(k) The provisions of this Agreement shall inure to the benefit of and be binding on the Company and its successors and assigns and Purchaser and Purchaser’s legal representatives, heirs, legatees, distributees, permitted assigns and transferees by operation of law, whether or not any such person has become a party to this Agreement and has agreed in writing to join herein and be bound by the terms and conditions hereof.
(l) Purchaser represents, warrants and acknowledges that Purchaser has read carefully this Agreement and understands all of its terms and that Purchaser voluntarily is executing and delivering this Agreement. Purchaser further represents, warrants and acknowledges that the Company’s legal counsel is not legal counsel to Purchaser and has not advised Purchaser in any way in connection with or regarding this Agreement. Purchaser further represents, warrants and acknowledges that Purchaser has been given and had the opportunity to be represented by independent legal counsel in connection with this Agreement and the transactions contemplated hereby and has consulted with such legal counsel or has waived Purchaser’s right to do so.
[Signature Page Follows]
-6-
IN WITNESS WHEREOF, the Company and Purchaser have duly executed this Agreement to be effective as of the date first written above.
| The “Company”: | “Purchaser”: | |
| 808 Renewable Energy Corporation, | ||
|
a Nevada corporation
|
||
| By: /s/Xxxxxx Xxxxxxxxx | /s/Xxxxxxx X. Xxxxxx | |
| Xxxxxx Xxxxxxxxx, | Xxxxxxx X. Xxxxxx | |
| CEO | ||
| Address: | Address: | |
| 0000 Xxxxxx Xxxxxx, Xxxxx 0 | Purchaser’s address on file | |
| Xxxxxxxxxx Xxxxx, XX 00000 | with the Company | |
[SIGNATURE PAGE TO STOCK PURCHASE AND MEMBERSHIP INTEREST CONTRIBUTION AGREEMENT]
-7-
