STOCK PURCHASE AGREEMENT
Exhibit
10.1
STOCK
PURCHASE AGREEMENT (this “Agreement”), made as of the date set forth below
between XXXXXXX.XXX, INC., a Delaware corporation (the “Company”),
and WUKUANG IE LIMITED,
a B.V.I. corporation (the “Buyer”).
WITNESSETH:
WHEREAS,
subject to the terms and conditions herein, the Company has agreed to offer and
sell to the Buyer in a private placement, 50,000,000 shares (the “Shares”) of
the Company’s common stock, $.001 par value per share (the “Common Stock”), for
an aggregate purchase price of Three Million Dollars ($3,000,000) (the “Purchase
Price”); and
WHEREAS,
the Buyer desires to purchase the Shares from the Company, and the Company
desires to sell the Shares to the Buyer, on the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the
promises, mutual representations and warranties hereinafter set forth, the
parties hereto intending to be legally bound hereby, do agree as
follows:
I. PURCHASE
AND SALE OF SHARES
1.1 Common
Stock. Subject to the terms and conditions herein stated, the
Company hereby agrees to sell, issue and deliver to the Buyer, and the Buyer
agrees to purchase from the Company, the Shares at a price equal to $0.06 per
share of Common Stock.
1.2 Closing. The closing
(the “Closing”) of the transaction contemplated hereby is taking place
simultaneously with the execution and delivery of this Agreement or such other
place, date and time as may be mutually agreed upon by the parties hereto (the
“Closing Date”). At the Closing, the parties shall make the following
deliveries to each other:
(a) The
Buyer shall pay the Purchase Price to the Company in immediately available funds
by wire transfer or certified check to an account designated by the Company or
otherwise in accordance with its written instructions; and
(b) The
Company shall deliver to the Buyer a certificate registered in the name of the
Buyer, representing the Shares, receipt of which is acknowledged by the
Buyer.
II. REPRESENTATIONS
BY THE BUYER
The Buyer
represents and warrants to the Company as follows:
2.1 Execution. The
execution, delivery and performance of this Agreement by the Buyer has been duly
approved by the Board of Directors or any body performing a similar function, of
the Buyer, and all other actions required to authorize and effect the purchase
of the Shares have been taken.
2.2 Binding
Obligations. This Agreement constitutes a valid and binding
obligation of the Buyer, enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application referring to or affecting enforcement of
creditors’ rights and general principles of equity.
2.3 Non-Contravention. Neither
the execution and delivery of this Agreement nor the purchase of Shares by the
Buyer shall, result in a material violation of, or constitute a material default
under its Certificate of Incorporation or By-Laws (or similar document), in the
performance or observance of any material obligations, agreements, covenants or
conditions contained in any debenture, note or other evidence of indebtedness or
in any material contract, indenture, mortgage, loan agreement, lease, joint
venture or other agreement or instrument to which the Buyer is a party or by
which its properties may be bound or in violation of any material order, rule,
regulation, writ, injunction, or decree of any domestic government, governmental
instrumentality or court.
2.4 No Public Sale or
Distribution. The Buyer is acquiring the Shares for its own
account for investment purposes only and not with a view towards, or for resale
in connection with, the public sale or distribution thereof, except pursuant to
sales registered or exempted under the Securities Act of 1933, as amended (the
“1933 Act); provided, however, that by
making the representations herein, the Buyer does not agree to hold any of the
Shares for any minimum or other specific term and reserves the right to dispose
of the Shares at any time in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act. The Buyer is acquiring
the securities hereunder in the ordinary course of its business. The
Buyer presently does not have any agreement or understanding, directly or
indirectly, with any person to distribute any of the Shares.
2.5 Accredited Investor
Status. The Buyer is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D.
2.6 Reliance on
Exemptions. The Buyer understands that the Shares are being
offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Company is relying in part upon the truth and accuracy of, and the Buyer's
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of the Buyer to acquire the
Shares.
2.7 Information. The
Buyer and its advisors, if any, have been furnished with all materials relating
to the business, finances and operations of the Company and materials relating
to the offer and sale of the Shares which have been requested by the
Buyer. The Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company and its officers. Neither
such inquiries nor any other due diligence investigations conducted by the Buyer
or its advisors, if any, or its representatives shall modify, amend or affect
the Buyer's right to rely on the Company's representations and warranties
contained herein.
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2.8 No Governmental
Review. The Buyer understands that no United States federal or
state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Shares or the fairness or
suitability of the investment in the Shares nor have such authorities passed
upon or endorsed the merits of the offering of the Shares.
2.9 Transfer or
Resale. The Buyer understands that the Shares have not been
and are not being registered under the 1933 Act, or any state securities laws,
and may not be offered for sale, sold, assigned or transferred unless (i)
subsequently registered there under, (ii) the Buyer shall have delivered to the
Company an opinion of counsel, in a generally acceptable form, to the effect
that such Shares to be sold, assigned or transferred may be sold, assigned or
transferred pursuant to an exemption from such registration, or (iii) the Buyer
shall have satisfied the requirements of Rule 144(k) promulgated under the 1933
Act, as amended (or a successor rule thereto). The Shares may be
pledged in connection with a bona fide margin account or other loan or financing
arrangement secured by the Shares and such pledge of Shares shall not be deemed
to be a transfer, sale or assignment of the Shares hereunder, and no Buyer
effecting a pledge of Shares shall be required to provide the Company with any
notice thereof or otherwise make any delivery to the Company pursuant to this
Agreement or any other agreements entered into by the parties hereto in
connection with the transaction contemplated by this agreement, including,
without limitation, this Section 2.9; provided, that in
order to make any sale, transfer or assignment of Shares, the Buyer and its
pledge makes such disposition in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act.
2.10 Legends. The
Buyer consents to the placement of a legend on any certificate or other document
evidencing the Shares, stating that they have not been registered under the
Securities Act and setting forth or referring to the restrictions on
transferability and sale thereof. The Buyer is aware that the Company
may make a stop order notation in its appropriate records with respect to the
restrictions on the transferability of such Shares.
2.11 Organization. The
Buyer is validly existing and in good standing under the laws of the
jurisdiction of its organization, and has the requisite power and authorization
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
2.12 Authorization; Validity;
Enforcement. This Agreement has been duly and validly
authorized, executed and delivered on behalf of the Buyer and constitutes the
legal, valid and binding obligations of the Buyer enforceable against the Buyer
in accordance with its respective terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application referring to or affecting enforcement of creditors’ rights and
general principles of equity.
2.13 Placement
Agent. No broker's, finder’s or placement agent fees or
commission will be payable to any Person retained by, or on behalf of, the
Buyers with respect to the transactions contemplated herein.
2.14 No Other
Representations. Except as set forth herein, no
representations (oral or written) have been made to the Buyer, or any
representative, by the Company or by any of its officers, directors, agents or
employees, nor anyone else on their behalf, concerning among others, the future
profitability of the Company, the future performance of the Common Stock or the
Buyer’s investment in the Company.
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III. REPRESENTATIONS
BY THE COMPANY
The
Company represents and warrants to the Buyer as follows:
3.1 Organization. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the corporate power to conduct
its current business and the business which it proposes to conduct.
3.2 Execution. The
execution, delivery and performance of this Agreement by the Company has been
duly approved by the Board of Directors of the Company and all other actions
required to authorize and effect the offer, sale and issuance of the Shares have
been taken.
3.3 Binding
Obligations. This Agreement constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application referring to or affecting enforcement of
creditors’ rights and general principles of equity.
3.4 Capitalization. The
authorized capital stock of the Company consists of 300,000,000 shares of Common
Stock and 50,000,000 shares of preferred stock, $.001 par value (the “Preferred
Stock”). As of July 25, 2009, 186,424,316 shares of the
Company’s Common Stock and no shares of the Company’s Preferred Stock were
issued and outstanding. In addition, at that date, there were no
warrants and no options outstanding for the purchase of shares of Common
Stock.
3.5 Issuance of
Shares. The Shares are duly authorized and, upon issuance in
accordance with the terms hereof, shall be validly issued, free from all taxes,
liens and charges with respect to the issue thereof. Assuming the
accuracy of each of the representations and warranties of the Buyer contained in
Section 2, the issuance by the Company of the securities is exempt from
registration under the 1933 Act.
3.6 Non-Contravention. Neither
the execution and delivery of this Agreement nor the issuance of the Shares by
the Company shall, result in a material violation of, or constitute a material
default under its Articles of Incorporation or By-Laws, in the performance or
observance of any material obligations, agreements, covenants or conditions
contained in any debenture, note or other evidence of indebtedness or in any
material contract, indenture, mortgage, loan agreement, lease, joint venture or
other agreement or instrument to which the Company is a party or by which its
properties may be bound or in violation of any material order, rule, regulation,
writ, injunction, or decree of any domestic government, governmental
instrumentality or court.
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IV. MISCELLANEOUS
4.1 Survival. The
representations and warranties made in Articles II and III herein shall survive
the Closing for a period of one (1) year.
4.2 Amendment. This
Agreement shall not be changed, modified or amended except by a writing signed
by the parties to be charged, and this Agreement may not be discharged except by
performance in accordance with its terms or by a writing signed by the party to
be charged. This Agreement and the documents delivered in connection herewith
sets forth the entire agreement and understanding between the parties as to the
subject matter thereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature between them.
4.3 Binding. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and
assigns.
4.4 Governing Law;
Jurisdiction. Notwithstanding the place where this Agreement
may be executed by any of the parties hereto, the parties expressly agree that
all the terms and provisions hereof shall be construed in accordance with and
governed by the laws of the State of New York, without giving effect to any
choice of law or conflicts of law provision.
4.5 Severability. The
holding of any provision of this Agreement to be invalid or unenforceable by a
court of competent jurisdiction shall not affect any other provision of this
Agreement, which shall remain in full force and effect.
4.6 Waiver. It
is agreed that a waiver by either party of a breach of any provision of this
Agreement shall not operate, or be construed, as a waiver of any subsequent
breach by that same party.
4.7 Further
Assurances. The parties agree to execute and deliver all such
further documents, agreements and instruments and take such other and further
action as may be necessary or appropriate to carry out the purposes and intent
of this Agreement.
4.8 Notice. Any
notice or other communication given hereunder shall be deemed sufficient if in
writing and sent by recognized overnight courier or registered or certified
mail, return receipt requested, or delivered by hand against written receipt
there for, addressed to the address set forth below (or to such other address as
the party shall have furnished in accordance with the provisions of this
Section):
If to the
Company:
XXXXXXX.XXX,
INC.
0 Xxxxx Xxxxxxx Xxxx Country Garden
Xxxxxx Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxx Xxxxx
000000
Telephone:
(00) 00 0000 0000
Facsimile: (00)
00 0000 0000
Attention:
Xxxx Xxx, Chief Executive Officer
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with a
copy (which shall not constitute notice) to:
Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Gen:
000.000.0000
Fax:
000.000.0000
Attn: Xxxxxx
X. Xxxxxx, Esq.
If to the
Buyer:
Xxxx
0000, 00/X.,Xxxxx Xxxx Xxxx
000 Xxx Xxx Xxxx Xxxxxxx, Xxxx Xxxx
Telephone:
000 0000 0000
Facsimile:
852 6705 8311
Attention:
Xxxxxx X. Xxxx c/o Wukuang IE Ltd.
Notices
shall be deemed to have been given on the date of mailing, except for notices of
change of address, which shall be deemed to have been given when
received.
4.9 Counterparts. This
Agreement may be executed in one or more counterparts, including by facsimile,
each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument.
Remainder
of Page Intentionally Left Blank
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
set forth below.
Dated: August 3, 2009
| BUYER: WUKUANG IE LIMITED | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxx | |
| Name: Xxxxxx X. Xxxx | |||
| Title: Director | |||
| XXXXXXX.XXX, INC. | |||
| By: | /s/ Xxxx Xxx | ||
| Name: Xxxx Xxx | |||
| Title: Chief Executive Officer | |||
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