EXHIBIT 10.1
AGREEMENT FOR THE PURCHASE OF COMMON STOCK
AGREEMENT, made this 21st day of February 2003, by and between Corporate
Management Services, Inc. (Shareholder,) Downside Up, Inc. (Downside) a Colorado
corporation, and Xxxxx X. Xxxxxxx (Xxxxxxx) is for the purpose of setting forth
the terms and conditions upon which Corporate Management Services, Inc. will
sell to Xxxxxxx 750,000 shares of Downside's common stock.
In consideration of the mutual promises, covenants, and representations
contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
SALE OF SECURITIES
1.01 Subject to the terms and conditions of this Agreement, the Shareholder
agrees to sell, and Xxxxxxx agrees to purchase, 750,000 shares of the common
stock of Downside for $2,500. The purchase price of $2,500 for 750,000 shares of
Downside will include completing a registration of at least 480,000 shares of
Downside stock outstanding at the date of this agreement. The 750,000 shares
shall contain a legend stating that the shares are not fully paid and full
payment will not accrue until a registration statement is in effect. This
agreement replaces that option agreement executed by Shareholder on September 6,
2002, granting Xxxxxxx the conditional right to purchase 750,000 shares of
Downside.
1.02 On February 21, 2003, Xxxxxxx tendered funds in the amount of $2,500 to
Corporate Management Services, Inc., which amount was payment in full of the
750,000 shares of Downside. Closing is considered to be at the time that the
consideration has been paid by Xxxxxxx, Xxxxxxx takes possession of the stock
certificates representing the 750,000 shares of common stock and Corporate
Management Services, Inc. delivers all documents described below and all terms
of this agreement are fulfilled. In the event that Xxxxxxx agrees to escrow of
the stock certificates, placement of the certificates into escrow under an
escrow agreement approaved by Xxxxxxx will constitute delivery of the
certificates to Xxxxxxx.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Downside represents and warrants to Xxxxxxx the following:
2.01 Organization. Downside is a corporation duly organized, validly existing,
and in good standing under the laws of Colorado, has all necessary corporate
powers to own properties and carry on a business, and is duly qualified to do
business and is in good standing in Colorado. All actions taken by the
Incorporators, Directors and/or shareholders of Downside have been valid and in
accordance with the laws of the State of Colorado.
2.02 Downside. The authorized Downside stock of Downside consists of 20,000,000
shares of common stock, no par value, of which 1,230,000 shares are issued and
outstanding. All outstanding shares are fully paid and non assessable, free of
liens, encumbrances, options, restrictions and legal or equitable rights of
others not a party to this Agreement. At closing, there will be no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating Downside to issue or to transfer from
treasury any additional shares of its Downside stock. None of the outstanding
shares of Downside are subject to any stock restriction agreements. There are
approximately 47 shareholders of Downside. All of such shareholders have valid
title to such shares and acquired their shares in a lawful transaction and in
accordance with Colorado corporate law.
2.03 Financial Statements. Audited financial statements will be provided at the
closing and will include the balance sheets of Downside as of April 30, 2002 and
the related statements of income and retained earnings for the period then
ended. The financial statements have been prepared in accordance with generally
accepted accounting principles consistently followed by Downside throughout the
periods indicated, and fairly present the financial position of Downside as of
the date of the balance sheet included in the financial statements, and the
results of its operations for the periods indicated.
2.04 Absence of Changes. Since October 31, 2002, there has not been any change
in the financial condition or operations of Downside, except changes in the
ordinary course of business, which changes have not in the aggregate been
materially adverse and will be fully disclosed.
2.05 Liabilities. Downside did not as of October 31, 2002 and at the signing of
this Agreement, have any debt, liability, or obligation of any nature, whether
accrued, absolute, contingent, or otherwise, and whether due or to become due,
that is not reflected in Downside's balance sheet as of October 31, 2002.
Downside is not aware of any pending, threatened or asserted claims, lawsuits or
contingencies involving Downside, its directors, officers or its common stock.
There is no dispute of any kind between Downside and any third party, and no
such dispute will exist at the closing of this Agreement. At closing, Downside
will be free from any and all liabilities, liens, claims and/or commitments .
2.06 Tax Returns. Within the times and in the manner prescribed by law, Downside
has filed all federal, state, and local tax returns required by law and has paid
all taxes, assessments, and penalties due and payable. No federal income tax
returns of Downside have been audited by the internal Revenue Service. The
provision for taxes, if any, reflected in Downside's balance sheet as of October
31, 2002, is adequate for any and all federal, state, county, and local taxes
for the period ending on the date of that balance sheet and for all prior
periods, whether or not disputed. There are no present disputes as to taxes of
any nature payable by Downside.
2.07 Ability to Carry Out Obligations. The Shareholder has the right, power, and
authority to enter into, and perform their obligations under this Agreement. The
execution and delivery of this Agreement by the Shareholder and the performance
by the Shareholder of its obligations hereunder will not cause, constitute, or
conflict with or result in (a) any breach or violation or any of the provisions
of or constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, bylaw, or other agreement or instrument
to which Downside or the Shareholder is a party, or by which they may be bound,
nor will any consents or authorizations of any party other than those hereto be
required, (b) an event that would cause Downside to be liable to any party, or
(c) an event that would result in the creation or imposition of any lien,
charge, or encumbrance on any asset of Downside or upon the securities of
Downside to be acquired by Xxxxxxx.
2.08 Full Disclosure. None of representations and warranties made by Downside or
the Shareholder, or in any certificate or memorandum furnished or to be
furnished by Downside or the Shareholder, or on their behalf, contains or will
contain any untrue statement of a material fact, or omit any material fact the
omission of which would be misleading.
2.09 Contracts and Leases. Downside does not and has never carried on any
business. Downside is not a party to any contract, agreement or lease. No person
holds a power of attorney from Downside.
2.10 Compliance with Laws. Downside has complied with, and is not in violation
of any federal, state, or local statute, law, and/or regulation pertaining to
Downside. Downside has complied with all federal and state securities laws in
connection with the offer, sale and distribution of its securities.
2.11 Litigation. Downside is not (and has not been) a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or pending
governmental investigation. To the best knowledge of the Shareholders, there is
no basis for any such action or proceeding and no such action or proceeding is
threatened against Downside. Downside is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
2.12 Conduct of Business. Prior to the closing, Downside shall conduct its
business in the normal course, and shall not (without the prior written approval
of Xxxxxxx) (i) sell, pledge, or assign any assets (ii) amend its Articles of
Incorporation or Bylaws, (iii) declare dividends, redeem or sell stock or other
securities, (iv) incur any liabilities, (v) acquire or dispose of any assets,
enter into any contract, guarantee obligations of any third party, or (vi) enter
into any other transaction.
2.13 Corporate Documents. Copies of each of the following documents, which are
true, complete and correct in all material respects, will be attached to and
made a part of this Agreement:
(i) Articles of Incorporation;
(ii) Bylaws;
(iii) Organizational Consent of Shareholders;
(iv) Consent of Directors;
(v) List of Officers and Directors;
(vi) List of Shareholders;
(vii) Form10-QSB including Balance Sheet as of October 31, 2002, together with
other financial statements described in Section 2.03;
(viii) Secretary of State Filing Receipt;
(ix) Copies of all federal and state income tax returns of Downside;
(x) Stock register and stock certificate records of Downside;
(xi) Form 10SB.
2.14 Closing Documents. All minutes, consents or other documents pertaining to
Downside to be delivered at closing shall be valid and in accordance with the
laws of Colorado.
2.15 Title. The Shareholder has good and marketable title to all of the
securities to be sold to Xxxxxxx pursuant to this Agreement. The securities to
be sold to Xxxxxxx will be, at closing, free and clear of all liens, security
interests, pledges, charges, claims and encumbrances of any kind. None of such
shares are or will be subject to any voting trust or agreement. No person holds
or has the right to receive any proxy or similar instrument with respect to such
shares. Except as provided in this Agreement, the Shareholder is not a party to
any agreement which offers or grants to any person the right to purchase or
acquire any of the securities to be sold to Xxxxxxx. There is no applicable
local, state or federal law, rule, regulation, or decree which would, as a
result of the purchase of the shares by Xxxxxxx, impair, restrict or delay
Xxxxxxx voting rights with respect to the shares.
ARTICLE III
INVESTMENT INTENT
3.01 Xxxxxxx agrees that the securities being acquired pursuant to this
Agreement may be sold, pledged, assigned, hypothecated or otherwise transferred,
with or without consideration (Transfer) only pursuant to an effective
registration statement under the Act, or pursuant to an exemption from
registration under the Act, the availability of which is to be established to
the satisfaction of Bail.
3.02 Xxxxxxx or assigns, on behalf of Downside, agrees to use his best efforts
to file a registration statement with the Securities and Exchange Commission to
register, at Xxxxxxx' or Downside's sole expense, the resale of at least all of
the Downside shares issued to all of the Downside shareholders (except the
shares being sold hereby which may be registered or not at the sole option of
Xxxxxxx) of record.
3.03 After acquiring the shares being purchased hereby Xxxxxxx agrees to: (a)
use his best efforts to have that registration statement declared effective at
the earliest practicable date thereafter and to thereafter use best efforts to
establish a public market for Downside's common stock, (b) file all quarterly
and annual reports to comply with SEC regulations. Shareholder agrees to
cooperate in all respects with this endeavor and to assist Xxxxxxx in any
reasonable way. Failure by Xxxxxxx to file quarterly and annual reports will
result in surrender of the 750,000 shares.
3.03 Subsequent to the transfer contemplated hereby neither Xxxxxxx, on behalf
of Downside, or Downside will unduly delay or refuse to render legal opinions or
provide any other reasonable assistance to permit current shareholders of
Downside to transfer their securities, once a public market for the Downside
shares develops.
3.04 In the event Xxxxxxx and Shareholder mutually agree to definitive terms for
an escrow agreement, then the shares acquired by Xxxxxxx shall be escrowed until
such time as a registration statement as described in section 3.02 is filed with
the SEC and thereafter within 10 days following filing of the registration
statement, Shareholder will cause the escrow shares to be released to Xxxxxxx.
ARTICLE IV
CLOSING
The closing of this transaction will occur when all of the documents and/or
consideration described below has been delivered. As part of the closing, the
following documents, in form reasonably acceptable to counsel to the parties,
shall be delivered:
By the Shareholder:
A. A certificate or certificates for 750,000 shares of Downside common stock,
registered in names so designated by Xxxxxxx as designated.
B. The resignation of all officers of Downside.
C. The resignation of all the directors of Downside.
D. A Board of Directors resolution appointing directors as designated by
Xxxxxxx.
E. Certified Audited financial statements of Downside, which shall include a
balance sheet dated as of April 30, 2002 and statements of operations,
stockholders' equity and cash flows for the twelve month period then ended.
F. All of the business and corporate records of Downside, including but not
limited to correspondence files, bank statements, checkbooks, savings account
books, minutes of shareholder and directors meetings, financial statements,
shareholder listings, stock transfer records, agreements and contracts.
H. Within 10 days following closing Shareholder will file disclosure of this
sale of shares to Xxxxxxx by filing Form 8-K with the SEC. Shareholder will also
complete any reports to the SEC on Forms 3, 4, and 13D as required of any party
to this transaction.
By Xxxxxxx:
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A. As described in Section 1.01, Xxxxxxx has paid Corporate Management Services,
Inc. the amount of $2,500, representing the payment in full for the 750,000
shares of Downside common stock.
ARTICLE V
REMEDIES
5.01 Arbitration. Any controversy or claim arising out of, or relating to, this
Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in Littleton, Colorado in accordance with the Rules of
the American Arbitration Association then existing, and judgment on the
arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy.
5.02 Indemnification. Each party agrees to indemnify the others against all
actual losses, damages and expenses caused by (i) any material breach of this
Agreement or any material misrepresentation of any party contained herein or
(ii) any misstatement of a material fact or omission to state a material fact
required to be stated herein or necessary to make the statements herein not
misleading.
ARTICLE VI
MISCELLANEOUS
6.01 Captions and Headings. The Article and paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be deemed
to define, limit, or add to the meaning of any provision of this Agreement.
6.02 No Oral Change. This Agreement and any provision hereof, may not be waived,
changed, modified, or discharged, orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
6.03 Non Waiver. Except as otherwise expressly provided herein, no waiver of any
covenant, condition, or provision of this Agreement shall be deemed to have been
made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants, or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future of any such provisions, covenants,
or conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a covenant,
condition, or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver with respect to any other or subsequent breach.
6.04 Time of Essence. Time is of the essence of this Agreement and of each and
every provision hereof.
6.05 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings.
6.06 Significant Changes. The Shareholder understands that significant changes
may be made in the Capitalization and/or stock ownership of Downside, which
changes could involve a reverse stock split and/or the issuance of additional
shares of common stock, thus possibly having a dramatic negative effect on the
percentage of ownership and/or number of shares owned by present shareholders of
Downside.
6.07 Counterparts. This Agreement may be executed simultaneously 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. Facsimile signatures will
be acceptable to all parties.
6.08 Notices. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is to be
given, or on the third day after mailing if mailed to the party to whom notice
is to be given, by first class mail, registered or certified, postage prepaid,
and properly addressed as follows:
If to Shareholder or Downside:
Xxxxxx Xxxxxxx, Corporate Management Services, Inc., 0000 Xxxx Xxxxx Xxxxx,
Xxxxxxxxx, XX 00000
If to Xxxxxxx:
Xxxxx X. Xxxxxxx, 00000 X. Xxxxxx Xxxx Xx., Xxxxxxxx, XX 00000.
6.09 Binding Effect. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives, successors and assigns of each of
the parties to this Agreement.
6.10 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall be true and
correct as of the closing and shall survive the closing of this Agreement.
6.11 Mutual Cooperation. The parties hereto shall cooperate with each other to
achieve the purpose of this Agreement, and shall execute such other and further
documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
AGREED AND ACCEPTED as of the date first above written.
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
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Corporate Management Services, Inc. Downside Up,Inc.
By: /s/ Xxxxxx Xxxxxxx By:/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, President Xxxxxx Xxxxxxx, President
