SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.1
THIS
SECURITIES PURCHASE AGREEMENT
(the
“Agreement”)
dated
as of July 21, 2008 by and among Tia III, Inc. ,
a
Delaware corporation having its principal office at 0000 Xxxxxx Xxxx , Xxxxx
X,
Xxxxxxxxx, Xxx Xxxx, 00000 (“Company”),
Xxxx
Xxxxxxxxxx, the sole and controlling shareholder of Company, having an office
at
0000 Xxxxxx Xxxx , Xxxxx X, Xxxxxxxxx, Xxx Xxxx, 00000 (“ Shareholder”),
and
Xxxxxx X. Xxxxxxxx, an individual residing at 00000 Xxxxx Xxxxxx Xx. 00X,
Xxxxxx, Xxxxxxx 00000 (the “ Purchaser”).
Company, Shareholder and Purchaser are collectively referred to herein as
Parties. Shareholder and Purchaser are referred herein collectively, after
the
Closing of this Agreement as (lower case) “shareholder”.
RECITALS
WHEREAS ,
the
Shareholder currently owns all of the issued and outstanding equity interests
of
the Company, constituting One Million (1,000,000) common shares (“Shareholder
Shares”);
and
WHEREAS ,
Company
is a reporting issuer (a “blank check company”) pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the “ Exchange
Act”);
and
WHEREAS
, the
Shareholder owns all of the Company’s issued and outstanding common stock and
has entered into this Agreement for the purpose of making certain
representations, warranties, covenants, indemnifications and agreements;
and
WHEREAS,
the
Company wish to sell, to Purchaser and Purchaser wishes to acquire, Two Million
2,000,000 shares of Company’s common stock, at a purchase price of $0.0001 par
value per share (the “ Purchaser
Shares”),
subject to and upon the terms and conditions hereinafter set forth herein (such
purchase being herein referred to as the “ Purchase”);
and
WHEREAS,
as a
result of the consummation of the Purchase, the Shareholder will no longer
control the business and/or corporate affairs of Company; and
WHEREAS,
the
Boards of Director of the Company deems it advisable and in the best interests
of respectively, the Company and the Company, that the Purchase is effected
pursuant to the terms and conditions of this Agreement.
NOW
THEREFORE,
in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
ARTICLE
1
SECURITIES
PURCHASE
1.1
Agreement
to Purchase Securities.
Subject
to the terms and upon the conditions set forth herein, Company agrees to sell,
assign, transfer and deliver to Purchaser, and Purchaser agrees to purchase
from
Company, at the Closing, Two Million common shares of Company (“Purchaser
Shares”)for
a
Total Purchase price of Two Hundred dollars and no/100 ($200) USD.
1.2
Closing.
The
closing of the Purchase (the “ Closing”)
shall
take place by overnight delivery (to the offices of X. Xxxxxxxxx, Esquire.
The
Offices at Veranda Park - Bldg 7000, 0000 Xxxxxxxxxx Xxxx. Xxxxx 000, Xxxxxxx,
XX 00000) on such date as is promptly as practicable following satisfaction
or
waiver of the conditions set forth in Section 6.4 hereof, or on such other
date
or at such other time and place as may be agreed to by the Company and Purchaser
(“ Closing
Date”).
1.3
Closing
Deliveries.
At the
Closing, the following deliveries shall be made:
(a)
Documents.
The
documents and information required under Section 6.4; and
(b)
Purchaser
Shares.
Company
shall issue to the Purchaser original certificates evidencing and representing
2,000,000 shares of Common Stock of Company ( the “ Purchaser
Shares”)
and
deliver the Purchaser Share to the address in Section 1.2
hereinabove.
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(c)
Separation
and Release Agreement.
Immediately after Closing, Purchaser shall deliver to Shareholder a duly
executed Separation and Release Agreement substantially in the form of
Exhibit
1.1
hereto.
(d)
Separation
Shares.
Immediately after Closing, Purchaser, shall issue and deliver to the Shareholder
Six Million (6,000,000) share of Company required under the Separation and
Release Agreement under Exhibit 1.1
(e)
Other
Documents.
The
Company, Shareholder, and Purchaser shall each receive, in a form and substance
reasonably satisfactory to it, all certificates and other documents, instruments
and writings to evidence the transactions contemplated by this Agreement from
any other party hereto as it may reasonably request.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES
OF
THE PURCHASER
Purchaser,
represents, warrants and covenants to Company with respect to himself that
the
following are correct and complete as of the date hereof, except insofar as
the
representations and warranties relate expressly and solely to a particular
date
or period, in which case the Purchaser, warrants and covenants to Company that
such representations and warranties were true, correct and complete with respect
to such date or period:
2.1
Power
and Authority.
Purchaser has all requisite power and authority, or legal capacity, as the
case
may be, to enter into and to carry out all of the terms of this Agreement and
all other documents executed and delivered in connection herewith (collectively,
the “Documents”).
Any
action on the part of the Purchaser necessary for the authorization, execution,
delivery and performance of the Documents by the Purchaser has been taken and
no
further authorization is required to consummate the transactions provided for
in
the Documents. When executed and delivered by the Purchaser, the Documents
shall
constitute the valid and legally binding obligation of the Purchaser enforceable
in accordance with their respective terms, subject to bankruptcy, moratorium,
principles of equity and other limitations limiting the rights of creditors
generally. Purchaser is a natural person is over the age of 21, has not been
declared incompetent, and has the right to execute, deliver and perform this
Agreement and the other Documents contemplated herein without the consent or
joinder of any other Person or Authority.
2.2
Investment
and Related Representations.
(a)
Securities
Laws Compliance.
The
Purchaser is aware that neither the Purchaser Shares nor the offer or sale
thereof to the Purchaser has been registered under the Securities Act, or under
any state or foreign securities Laws. The Purchaser understands that the
Purchaser Shares it will receive will be characterized as “restricted”
securities under United States federal securities Laws inasmuch as they are
being acquired in a transaction not involving a public offering and that under
such Laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited circumstances.
The
Purchaser agrees that the Purchaser will not sell all or any portion of
Purchaser Shares except pursuant to Regulations D or S under the Securities
Act,
pursuant to registration under the Securities Act or pursuant to an other
available exemption from registration under the Securities Act. The Purchaser
understands that each certificate for Purchaser Shares issued to the Purchaser
shall bear a legend substantially as set forth below:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “1933 ACT”) OR ANY STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED,
HYPOTHECATED, ASSIGNED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT WITH RESPECT TO SUCH SHARES, OR WITH
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS BEING MADE IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS; AND
HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS
IN
COMPLIANCE WITH THE 1933 ACT.
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(b)
Investment
Representation.
This
Agreement is made with the Company’s reliance upon the Purchaser’s
representation, which by the Purchaser’s execution of this Agreement hereby
confirms, that the Purchaser Shares to be received by the Purchaser are being
acquired pursuant to this Agreement for his own account, for investment, and
not
with a view to the resale or distribution thereof (i) such that the Purchaser
would be considered an “underwriter” as such term is defined in the Securities
Act, and (ii) unless pursuant to an effective registration statement or
exemption under the Securities Act.
(c)
No
Public Solicitation.
The
Purchaser is acquiring the Purchaser Shares after private negotiation and has
not been attracted to the acquisition of the Purchaser Shares by any press
release, advertising, publication, or other general solicitation or through
any
directed selling efforts (as such term is defined in Regulation S promulgated
under the Securities Act) made in the United States.
(d)
Access
to Information.
The
Purchaser acknowledges that the reports (collectively the “ SEC
Reports”)
filed
by Company with the SEC are publicly available, and that the Purchaser has
reviewed the SEC Reports to the extent that the Purchaser deemed necessary
and
appropriate in making an investment decision hereunder.
(e)
Investor
Solicitation and Ability to Bear Risk to Loss.
The
Purchaser acknowledges the acquisition of the Purchaser Shares is a highly
speculative investment, involving a high degree of risk and that he can bear
the
economic risk of investment in such securities without producing a material
adverse change in Purchaser’s financial condition. The Purchaser otherwise has
such knowledge and experience in financial or business matters that the
Purchaser is capable of evaluating the merits and risks of the investment in
the
Purchaser Shares.
(f)
U.S.
Person Status.
Purchaser is a U.S. resident and as such is considered a U. S. Person as that
term is defined in the U. S. securities laws and regulations.
JOINT
REPRESENTATIONS AND WARRANTIES OF COMPANY and SHAREHOLDER
Shareholder
and Company hereby jointly and severally represent and warrant to Purchaser
that
the following are correct and complete as of the date hereof, except insofar
as
the representations and warranties relate expressly and solely to a particular
date or period, in which case Company and Shareholder represent and warrant
to
the Purchaser that such representations and warranties were true, correct and
complete with respect to such date or period:
3.1
Corporate
Organization, Standing and Power.
Company
is a corporation duly organized, validly existing and in good standing under
the
Laws of the State of Delaware with the requisite corporate power and authority
to carry on its business as it is now being conducted and to own, operate and
lease its properties and assets, is duly qualified or licensed to do business
as
a foreign corporation in good standing in every other jurisdiction in which
the
character or location of the properties and assets owned, leased or operated
by
it or the conduct of its business requires such qualification or licensing.
Complete and correct copies of Company’s certificate of incorporation and bylaws
have previously been made available to the Purchaser
3.2
Capitalization;
Subsidiaries.
(a)
Company is authorized by its Certificate of Incorporation to issue an aggregate
of 260,000,000 shares of capital stock, of which 250,000,000 are shares of
Common Stock, par value $.0001 per share and 10,000,000 are shares of Preferred
Stock, par value $.0001 per share. Company has 1,000,000 shares of common stock
issued and outstanding (the “ Shareholder
Shares”),
all
of which are owned of record by the Shareholder, and no other shares of any
class or series of capital stock issued and outstanding. All of the Shareholder
Shares have been duly authorized and are validly issued, fully paid and
non-assessable and are without, and were not issued in violation of, preemptive
rights.
(b)
Company does not have any outstanding bonds, debentures, notes or other
indebtedness which (i) have the right to vote (or are convertible or exercisable
into securities having the right to vote) on any matter, or (ii) are or will
become entitled to receive any payment in shares or equity as a result of the
consummation of the transactions contemplated herein. Other than as above or
as
contemplated by this Agreement, there is no subscription, option, warrant,
call,
right, contract, agreement, commitment, understanding or arrangement to which
Company is a party, or by which it is bound, with respect to the issuance,
sale,
delivery or transfer of the capital securities of Company, including any right
of conversion or exchange under any security or other
instrument.
(c)
Company does not own, and has never owned, directly or indirectly, any equity
interest in any other entity.
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3.3
Authorization.
Company
has all requisite corporate power and authority to enter into, execute, deliver,
and perform its obligations under this Agreement. The Board of Directors of
Company has taken all action required by Law, Company's certificate of
incorporation and bylaws or otherwise to authorize the execution, delivery
and
performance of this Agreement and the consummation of the transactions
contemplated herein. This Agreement has been duly and validly executed and
delivered by Company and is the valid and binding legal obligation of Company
enforceable against Company in accordance with its terms, subject to bankruptcy,
moratorium, principles of equity and other limitations limiting the rights
of
creditors generally.
3.4
Non-Contravention.
Neither
the execution, delivery and performance of this Agreement, nor the consummation
of the transactions contemplated herein will:
(a)
violate any provision of the certificate of incorporation or bylaws of Company;
or
(b)
be in
conflict with, or constitute a default, however defined (or an event which,
with
the giving of due notice or lapse of time, or both, would constitute such a
default), under, or cause or permit the acceleration of the maturity of, or
give
rise to, any right of termination, cancellation, imposition of fees or penalties
under, any debt, note, bond, lease, mortgage, indenture, license, obligation,
contract, commitment, franchise, permit, instrument or other agreement or
obligation to which Company is a party or by which Company or any of its
properties or assets is or may be bound;
(c)
result in the creation or imposition of any Encumbrance upon any property or
assets of Company under any debt, obligation, contract, agreement or commitment
to which Company is a party or by which Company or any of their respective
assets or properties is or may be bound; or
(d)
materially violate any Law of any Authority.
3.5
Consents
and Approvals.
No
Consent is required by any person or entity, including any Authority, in
connection with the execution, delivery and performance of this Agreement by
Company or the consummation of the transactions contemplated herein, other
than
any Consent which have been obtained or are required pursuant to this Agreement
or applicable securities Laws.
3.6
Valid
Issuance.
The
Purchaser Shares to be issued in connection with this Agreement have been duly
authorized and, when issued and delivered and upon the delivery of the
consideration therefore as provided in this Agreement, will be validly issued,
fully paid and non-assessable and will not be subject to any restrictions,
except those under United States federal and state securities Laws.
3.7
SEC
Filings; Financial Statements.
(a)
All
statements, reports, schedules, forms and other documents required to have
been
filed by Company with the SEC have been so filed on a timely basis. As of the
time it was filed with the SEC (or, if amended or superseded by a filing prior
to the date of this Agreement, then on the date of such filing): (i) each of
the
SEC Reports complied in all material respects with the applicable requirements
of the Securities Act or the Securities Exchange Act of 1934 (the “Exchange
Act”
); and
(ii) none of the SEC Reports contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading.
(b)
The
financial statements contained in the SEC Reports: (i) complied as to form
in
all material respects with the published rules and regulations of the SEC
applicable thereto; (ii) were prepared in accordance with GAAP applied on a
consistent basis throughout the periods covered (except as may be indicated
in
the notes to such financial statements and, in the case of unaudited statements,
as permitted by Form 10-QSB of the SEC); and (iii) fairly present, in all
material respects, the financial position of Company as of the respective dates
thereof and the results of operations of Company for the periods covered
thereby. All adjustments considered necessary for a fair presentation of such
financial statements have been included.
3.8
No
Liabilities.
Company
has no liabilities, obligations, or contingencies (whether absolute, accrued,
or
contingent) (each a “ Liability”
and
collectively, “ Liabilities”)
except for (i) Liabilities expressly stated in the most recent balance sheet
included in the SEC Reports or the notes thereto and (ii) Liabilities which
do
not exceed US$1,000 in the aggregate.
3.9
Assets.
The sole
assets of Company are any cash in any bank account of Company. There are no
Encumbrances on any assets of Company.
3.10
Real
Property; Leases.
Company owns no real property and is not party to any lease or sublease for
any
real property or personal property.
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3.11
Litigation.
There is
no legal, administrative, arbitration, or other proceeding, suit, claim or
action of any nature or investigation, review or audit of any kind, or any
judgment, decree, decision, injunction, writ or order pending, noticed,
scheduled, or, to the knowledge of Company, threatened or contemplated by or
against or involving Company, its assets, properties or business or its
directors, officers, agents or employees (but only in their capacity as such),
whether at law or in equity, before or by any person or entity or Authority,
or
which questions or challenges the validity of this Agreement or any action
taken
or to be taken by the parties hereto pursuant to this Agreement or in connection
with the transactions contemplated herein.
3.12
Contracts
and Commitments; No Default.
Company is not a party to, nor are any of its assets bound by, any contract,
oral or written (each, a“ Company
Contract”),
that
is not disclosed in the SEC Reports. None of the Company Contracts contains
a
provision requiring the consent of any party with respect to the consummation
of
the transactions contemplated by this Agreement. Company is not in breach,
violation or default, however defined, in the performance of any of its
obligations under any of the Company Contracts, and no facts and circumstances
exist which, whether with the giving of due notice, lapse of time, or both,
would constitute such breach, violation or default thereunder or thereof, and,
to the knowledge of Company or Shareholder, no other parties thereto are in
a
breach, violation or default, however defined, thereunder or thereof, and no
facts or circumstances exist which, whether with the giving of due notice,
lapse
of time, or both, would constitute such a breach, violation or default
thereunder or thereof.
3.13
No
Broker or Finder.
No
broker, finder or investment banker is entitled to any brokerage, finders or
other fee or commission in connection with any of the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of
Company.
3.14
Inter-company
and Affiliate Transactions; Insider Interests.
Except
as disclosed in the SEC Reports, there are, and during the last three years
there have been, no transactions, agreements or arrangements of any kind, direct
or indirect, between Company, on the one hand, and any director, officer,
employee, stockholder, or affiliate of Company, on the other hand, including
loans, guarantees or pledges to, by or for Company or from, to, by or for any
of
such persons, that are currently in effect.
3.15
No
Adverse Changes.
There
has been no material adverse change in the business, financial condition,
prospects, assets or operations of Company since May 21, 2008.
3.16
Compliance
With Law; Permits and Other Operating Rights.
The assets, properties, business and operations of Company are and have been
in
compliance in all respects with all Laws applicable to Company's assets,
properties, business and operations. Company possesses all permits, licenses
and
other authorizations from all Authorities necessary to permit it to operate
its
business in the manner in which it presently is conducted and the consummation
of the transactions contemplated by this Agreement will not prevent Company
from
being able to continue to use such permits and operating rights. Company has
not
received notice of any violation of any such applicable Law, and is not in
default with respect to any order, writ, judgment, award, injunction or decree
of any Authority.
3.17
Taxes.
Company
has duly filed when due all tax reports and returns in connection with and
in
respect of its business, assets and employees, and has timely paid and
discharged all amounts shown as due thereon. Company has not received any notice
of any tax deficiency outstanding, proposed or assessed against or allocable
to
it, and has not executed any waiver of any statute of limitations on the
assessment or collection of any tax or executed or filed with any Authority
any
agreement now in effect extending the period for assessment or collection of
any
taxes against it.
3.18
Accuracy
of Information.
No
representation or warranty made by Company or Shareholder in this Agreement
or
in any agreement or certificate furnished or to be furnished to the Purchaser
at
the Closing by or on behalf of Company in connection with any of the
transactions contemplated by this Agreement contains or will contain any untrue
statement of material fact or omits or will omit to state any material fact
necessary in order to make the statements herein or therein not misleading
in
light of the circumstances in which they are made, and all of the foregoing
completely and correctly present the information required or purported to be
set
forth herein or therein.
ARTICLE
4
SEPARATE
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
The
Shareholder warrants and covenants to Purchaser as follows:
4.1
Power
and Authority.
The
Shareholder has all requisite power and authority to enter into and to carry
out
all of the terms of this Agreement and all other documents executed and
delivered in connection herewith (collectively, the “ Documents”).
All
action on the part of the Shareholder necessary for the authorization,
execution, delivery and performance of the Documents by the Shareholder has
been
taken and no further authorization on the part of the Shareholder is required
to
consummate the transactions provided for in the Documents, except as set forth
in Section 6.4. When executed and delivered by the Shareholder, the Documents
shall constitute the valid and legally binding obligation of the Shareholder
enforceable in accordance with their respective terms.
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4.2.
Ownership
of and Title to Securities.
The
Shareholder as of the date hereof is the record owner of all of the Shareholder
Shares, which constitute one hundred (100%) of Company’s issued and outstanding
securities. The Shareholder has good and marketable title to the Shareholder
Shares which she owns, free and clear of all pledges, security interests,
mortgages, liens, claims, charges, restrictions or encumbrances of any kind,
except for any restrictions imposed by federal or state securities
laws.
COVENANTS
OF THE COMPANY and COVENANTS of the PARTIES
5.1
Conduct
of Business.
Except
as contemplated by this Agreement, during the period from the date of this
Agreement to the Closing Date, Company shall conduct its business and operations
according to its ordinary and usual course of business consistent with past
practices. Without limiting the generality of the foregoing, and, except as
otherwise expressly provided in this Agreement, prior to the Closing Date,
without the prior written consent of the Purchaser the Company shall
not:
(a)
amend
its certificate of incorporation, articles of association, bylaws or memorandum
of association, as the case may be;
(b)
issue, reissue, sell, deliver, or pledge, or authorize or propose the issuance,
reissuance, sale, delivery or pledge of shares of capital stock of any class,
or
securities convertible into capital stock of any class, or any rights, warrants
or options to acquire any convertible securities, or capital stock;
(c)
adjust, split, combine, subdivide, reclassify or redeem, purchase or otherwise
acquire, or propose to redeem or purchase or otherwise acquire, any shares
of
its capital stock, or any of its other securities;
(d)
declare, set aside or pay any dividend or distribution (whether in cash, stock
or property or any combination thereof) in respect of its capital stock, redeem
or otherwise acquire any shares of its capital stock or other securities, or
alter any term of any of its outstanding securities;
(e)
(i)
increase in any manner the compensation of any of its directors, officers or
other employees; (ii) pay or agree to pay any pension, retirement allowance
or
other employee benefit not required or permitted by any existing plan, agreement
or arrangement to any such director, officer or employee, whether past or
present; or (iii) create or commit itself to any additional pension,
profit-sharing, bonus, incentive, deferred compensation, stock purchase, stock
option, stock appreciation right, group insurance, severance pay, retirement
or
other employee benefit plan, agreement or arrangement, or to any employment
agreement or consulting agreement (arising out of prior employment ) with or
for
the benefit of any person, or, except to the extent required to comply with
applicable law, amend any of such plans or any of such agreements in existence
on the date of this Agreement;
(f)
incur, assume, suffer or become subject to, whether directly or by way of
guarantee or otherwise, any Liabilities which, individually or in the aggregate,
exceed US$1,000;
(g)
make
or enter into any commitment for capital expenditures which, individually or
in
the aggregate, exceed US$1,000;
(h)
pay,
lend or advance any amount to, or sell, transfer or lease any properties or
assets (real, personal or mixed, tangible or intangible) to, or enter into
any
agreement or arrangement with, any of its officers or directors or any affiliate
or associate of any of its officers or directors;
(i)
terminate, enter into or amend in any material respect any contract, agreement,
lease, license or commitment, or take any action or omit to take any action
which will cause a breach, violation or default (however defined) under any
contract, except in the ordinary course of business and consistent with past
practice;
(j)
acquire any of the business or assets of any other person or
entity;
(k)
permit any of its current insurance (or reinsurance) policies to be cancelled
or
terminated or any of the coverage thereunder to lapse, unless simultaneously
with such termination, cancellation or lapse, replacement policies providing
coverage equal to or greater than coverage remaining under those cancelled,
terminated or lapsed are in full force and effect;
(l)
enter
into other material agreements, commitments or contracts not in the ordinary
course of business or in excess of current requirements;
(m)
initiate, settle or compromise any suit, claim or dispute or threatened suit,
claim or dispute;
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(n)
make
any changes in accounting methods or policies or make any change in its
auditors; or
(o)
agree
in writing or otherwise to take any of the foregoing actions or any action
which
would make any representation or warranty in this Agreement untrue or incorrect
in any material respect.
5.2
Full
Access.
Throughout the period prior to the Closing, Company shall afford to the
Purchaser and his employees, counsel, accountants, investment advisors and
other
authorized representatives and agents, reasonable access to the facilities,
properties, books and records of Company in order that Purchaser may have full
opportunity to make such investigations as Purchaser shall desire to make of
the
affairs of the disclosing party. Company shall furnish Purchaser such additional
financial and operating data and other information as the Purchaser, from time
to time, reasonably request, including access to the working papers of its
independent certified public accountants; provided,
however ,
that any
such investigation shall not affect or otherwise diminish or obviate in any
respect any of the representations and warranties of the disclosing
party.
5.3
Confidentiality.
Each of
the parties hereto agrees that it shall not use, or permit the use of, any
of
the information relating to any other party hereto furnished to it in connection
with the transactions contemplated herein ( “Information”)
in a
manner or for a purpose detrimental to such other party or otherwise than in
connection with the transaction, and that they shall not disclose, divulge,
provide or make accessible (collectively, “ Disclose”),
or
permit the Disclosure of, any of the Information to any person or entity, other
than their respective directors, officers, employees, investment advisors,
accountants, sources of financing, counsel and other authorized representatives
and agents, except as may be required by judicial or administrative process
or,
in the opinion of such party's counsel, by other requirements of Law;
provided , however ,
that
prior to any Disclosure of any Information permitted hereunder, the disclosing
party will first obtain the recipients' agreement to comply with the provisions
of this Section 5.3 with respect to such information. Notwithstanding the
foregoing, the confidentiality obligations of this Section 5.3 will not apply
after the Closing to any Information furnished to the Purchaser regarding
Company or its business. The term “ Information”
does
not include any information relating to a party that the party disclosing such
information can show: (i) to have been in its possession prior to its receipt
from another party hereto; (ii) to be now or to later become generally available
to the public through no fault of the disclosing party; (iii) to have been
available to the public at the time of its receipt by the disclosing party;
(iv)
to have been received separately by the disclosing party in an unrestricted
manner from a person entitled to disclose such information; or (v) to have
been
developed independently by the disclosing party without regard to any
information received in connection with this transaction. Each party hereto
agrees to promptly return to the party from whom it originally received such
information all original and duplicate copies of written materials containing
Information if the Purhcase does not occur. A party hereto shall be deemed
to
have satisfied its obligations to hold the Information confidential if it
exercises the same care as it takes with respect to its own similar information.
5.4
Filings;
Consents; Removal of Objections.
Subject
to the terms and conditions herein provided, the parties hereto shall use their
reasonable best efforts to take or cause to be taken all actions and do or
cause
to be done all things necessary, proper or advisable under applicable Laws
to
consummate and make effective, as soon as reasonably practicable, the
transactions contemplated hereby, including without limitation obtaining all
Consents of any person or entity, whether private or governmental, required
in
connection with the consummation of the transactions contemplated herein. In
furtherance, and not in limitation of the foregoing, it is the intent of the
parties to consummate the transactions contemplated herein at the earliest
practicable time, and they respectively agree to exert commercially reasonable
efforts to that end, including without limitation: (i) the removal or
satisfaction, if possible, of any objections to the validity or legality of
the
transactions contemplated herein; and (ii) the satisfaction of the conditions
to
consummation of the transactions contemplated hereby.
5.5
Name
& Address and RA and TA Change and Preferred
Shares.
Company
shall take all actions necessary, including, but not limited to, obtaining
shareholder consent, on or prior or within five (5) days after Closing
to:
(a)
change its name and address to “PTL Energy Inc.,” The Offices at Veranda Park
Bldg 7000, 0000 Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, XX 00000xx or prior to
the
Closing Date.
(b)
the
registered agent for Company shall remain.
(
c ) the
Transfer Agent shall be changed to Transfer Online.
(d)
the
authorization of Thirty Million (30,000,000) shares of additional Preferred
Shares. Said Shares shall be in three classes of Ten Million Shares each but
without the designation of any rights.
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7 -
5.6
Further
Assurances; Cooperation; Notification.
(a)
Each
party hereto shall, before, at and after Closing, execute and deliver such
instruments and take such other actions as the other party or parties, as the
case may be, may reasonably require in order to carry out the intent of this
Agreement. Without limiting the generality of the foregoing, at any time after
the Closing, at the reasonable request of Company and without further
consideration, the Company and Shareholder shall execute and deliver such
instruments of sale, transfer, conveyance, assignment and confirmation and
take
such action as Purchaser may reasonably deem necessary or desirable in order
to
more effectively consummate the transactions contemplated hereby.
(b)
At
all times from the date hereof until the Closing, each party shall promptly
notify the other in writing of the occurrence of any event which it reasonably
believes will or may result in a failure by such party to satisfy the conditions
specified in this Article 5.
5.7
Public
Announcements.
None of
the parties hereto shall make any public announcement with respect to the
transactions contemplated herein without the prior written consent of the
Company, which consent shall not be unreasonably withheld or delayed;
provided , however ,
that any
of the parties hereto may at any time make any announcements that are required
by applicable Law so long as the party so required to make an announcement
promptly upon learning of such requirement notifies the other parties of such
requirement and discusses with the other parties in good faith the exact
proposed wording of any such announcement.
5.8
Satisfaction
of Conditions Precedent.
Each
party shall use commercially reasonable efforts to satisfy or cause to be
satisfied all the conditions precedent that are applicable to them, and to
cause
the transactions contemplated by this Agreement to be consummated, and, without
limiting the generality of the foregoing, to obtain all material consents and
authorizations of third parties and to make filings with, and give all notices
to, third parties that may be necessary or reasonably required on its part
in
order to effect the transactions contemplated hereby.
5.9
Delivery
of Purchaser Shares.
Company
covenants and undertakes, following the Closing pursuant to Article 1 of this
Agreement, to cause the original certificates evidencing the Purchaser Shares
to
be delivered to the Purchaser.
ARTICLE
6
CONDITIONS
TO OBLIGATIONS OF THE COMPANY AND SHAREHOLDER
Notwithstanding
anything in this Agreement to the contrary, the obligations of the Company
and
Shareholder to effect the transactions contemplated herein will be subject
to
the satisfaction at or prior to the Closing, or waiver by the Purchaser, of
each
of the following conditions:
6.1
Representations
and Warranties True.
The
representations and warranties of Company and Shareholder contained in this
Agreement shall be true, complete and accurate in all material respects as
of
the date when made and at and as of the Closing, as though such representations
and warranties were made at and as of such time, except for changes permitted
or
contemplated in this Agreement, and except insofar as the representations and
warranties relate expressly and solely to a particular date or period, in which
case they shall be true and correct at the Closing with respect to such date
or
period.
6.2
Performance.
Company
and Shareholder shall have performed and complied in all material respects
with
all agreements, covenants, obligations and conditions required by this Agreement
to be performed or complied with by, respectively, Company and the Shareholder,
at or prior to the Closing.
6.3
Required
Approvals and Consents.
(a)
All
action required by law and otherwise to be taken by the directors and
stockholders of Company to authorize the execution, delivery and performance
of
this Agreement and the consummation of the transactions contemplated hereby
shall have been duly and validly taken.
(b)
All
Consents of or from all Authorities required hereunder to consummate the
transactions contemplated herein, shall have been delivered, made or obtained,
and the Company shall have received copies thereof.
(c)
all
Consents under all applicable Laws from all applicable Authorities in form
and
substance satisfactory to the Purchaser shall have been obtained and shall
be in
full force and effect.
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8 -
6.4
Agreements
and Documents.
The
Purchaser shall have received the following agreements and documents, each
of
which shall be in full force and effect:
(a)
a
copy of the written consent of the board of directors of Company, executed
by
all such directors, approving the transactions contemplated by this Agreement,
including the issuance of the Purchaser Shares;
(b)
a
certified list of the record holders of capital stock of Company as of the
most
recent practicable date evidencing all of the shares of Company’s capital stock
issued and outstanding;
(c)
a
certificate of good standing of Company from the State of Delaware and any
other
states where Company is qualified to do business, as of the most recent
practicable date;
(d)
written resignations of the officers and directors of Company, effective as
of
the Closing, and evidence that prior to their resignations, the pre-Closing
directors of Company appointed to the board of directors of Company the persons
designated by the Purchaser, to be effective as of the Closing;
(e)
a
copy of a written consent of the board of directors of Company regarding the
change of the list of authorized banking signatories for all bank and depositary
accounts of Company to persons nominated by the Company;
(f)
all
books and records of Company;
(
g ) the
agreements and documents contemplated in Article 1 hereof;.
(h)
the
corporate recordbook and corporate deal of Company; and
(i)
the
Xxxxx codes for SEC filings
6.5
Adverse
Changes.
No
Material Adverse Effect shall have occurred with respect to Company since May
21, 2008.
6.6
No
Proceeding or Litigation.
No suit,
action, investigation, inquiry or other proceeding by any Authority or other
person or entity shall have been instituted or threatened which delays or
questions the validity or legality of the transactions contemplated hereby
or
which, if successfully asserted, would, in the reasonable judgment of the
Company, individually or in the aggregate, otherwise have a Material Adverse
Effect on Company’s business, financial condition, prospects, assets or
operations or prevent or delay the consummation of the transactions contemplated
by this Agreement.
6.7
Legislation.
No Law
shall have been enacted which prohibits, restricts or delays the consummation
of
the transactions contemplated hereby or any of the conditions to the
consummation of such transaction.
6.9
Filings;
Press Releases.
Company
shall have made such filings and press releases, in form and substance
satisfactory to the Company, as may be requested by the Purchaser to comply
with
any disclosure requirements under the U.S. securities regulations or other
applicable Laws.
6.10
Appropriate
Documentation.
The
Company shall have received, in a form and substance reasonably satisfactory
to
Company, dated the Closing Date, copies of all documents, instruments and
writings to evidence the fulfillment of the conditions set forth in this Article
6 as the Purchaser may reasonably request.
6.11
Charter
Documents.
The
charter documents of Company shall be, or shall be amended to be, in form and
substance, satisfactory to the Purchaser.
6.12
SEC
Filings.
Company
shall have prepared a Form 8-K and all other required filings with the SEC
relating to the Closing and such filings shall be in form and substance
satisfactory to the Purchaser and ready for filing. Company shall remain an
Exchange Act reporting company and no action shall have been taken by Company
or
any Authority to terminate Company's Exchange Act registration of its common
stock.
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9 -
6.13
Resignation .
Each of
the officers and directors of Company shall have tendered resignations in form
and substance satisfactory to the Company, effective at the Closing, and such
resignations shall not have been revoked or modified in any way.
ARTICLE
7
TERMINATION
AND ABANDONMENT
7.1
Termination
by Either the Company or Purchaser.
This
Agreement may be terminated by either the Company or Purchaser at any time
if
there has been a breach by the other of any representation, warranty, or
covenant which breach remains uncured for a period of 30 days following written
notice thereof given in accordance with Section
8.6
hereof.
This Agreement may be terminated at any time by the mutual consent of the
Company and Purchaser. This Agreement shall automatically terminate if the
Purchase has not been consummated by August 1, 2008. If this Agreement so
terminates, all parties hereto shall be absolved from any claims or liabilities
arising from and in connection with this Agreement.
7.2
Procedure
and Effect of Termination.
If this
Agreement is terminated as provided herein:
(a)
Each
of the parties shall, upon request, redeliver all documents, work papers and
other material of the other parties relating to the transactions contemplated
hereby, whether obtained before or after the execution hereof, to the party
furnishing the same;
(b)
No
party shall have any liability for a breach of any representation, warranty,
agreement, covenant or the provision of this Agreement, unless such breach
was
due to a willful or bad faith action or omission of such party or any
representative, agent, employee or independent contractor thereof;
and
(c)
All
filings, applications and other submissions made pursuant to the terms of this
Agreement shall, to the extent practicable, be withdrawn from the agency or
other person to which made.
ARTICLE
8
MISCELLANEOUS
PROVISIONS
8.1
Survival
of Representations, Warranties and Covenants.
All of
the representations, warranties and covenants of the Company and the Shareholder
in this Agreement in Articles 3, 4 and 5 or in any instrument delivered pursuant
to this Agreement shall survive the Closing hereof.
8.2
Expenses.
Company,
Shareholder, and the Purchaser shall each bear their own costs and expenses
relating to the transactions contemplated hereby, including fees and expenses
of
legal counsel, accountants, investment bankers, brokers or finders, printers,
copiers, consultants or other representatives for the services used, hired
or
connected with the transactions contemplated hereby.
8.3
Amendment;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company, the Shareholder
and the Purchaser; or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought.
8.4
Waiver
of Compliance; Consents.
Any
failure of a party to comply with any obligation, covenant, agreement or
condition herein may be expressly waived in writing by the Purchaser, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. No single or partial exercise
of a right or remedy shall preclude any other or further exercise thereof or
of
any other right or remedy hereunder. Whenever this Agreement requires or permits
the consent by or on behalf of a party, such consent shall be given in writing
in the same manner as for waivers of compliance.
8.5
“Piggy-back”
Registration Rights.
If at
any time during the six-month period following the Closing Date there is not
an
effective registration statement (other than on Form S-4 or Form S-8, each
as
promulgated under the Securities Act) covering any of Company’s shares, the
Shareholder may determine to prepare and file with the SEC a registration
statement relating to an offering for her own account under the Securities
Act
of any of her equity securities, relating to Shareholder’s securities issued or
to be issued in connection with this Agreement. Further any acquisition of
any
entity or business or equity securities issuable in connection with stock option
or other employee benefit plans, then Company shall send to Shareholder written
notice of such determination and, if within fifteen days after receipt of such
notice, Shareholder shall so request in writing, and Company shall include
in
such registration statement all or any part of such the Shareholder Shares
such
holder requests to be registered. If, in connection with any underwritten
offering for the account of Company the managing underwriter(s) thereof shall
impose a limitation on the number of shares of Common Stock which may be
included in the registration statement because, in such underwriter(s)'
judgment, such limitation is necessary to effect an orderly public distribution
of securities covered thereby, then Company shall be obligated to include in
such registration statement only such limited portion of Shareholder Shares
for
which
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10 -
Shareholder
has requested inclusion hereunder as such underwriter(s) shall permit. Other
than this piggy-back registration obligation, nothing in this Agreement shall
entitle any party hereto to any claim, cause of action, remedy or right of
any
kind with respect to the registration rights.
8.6
Notices.
All
notices, requests, demands and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
and effective: (i) on the date of delivery, if delivered personally; (ii) on
the
date of transmission, if sent by facsimile, telecopy, telex or other similar
telegraphic communications equipment; (iii) one business day after delivery
to
an overnight delivery courier service for next-business day delivery; or (iv)
on
the fifth business day following the date of mailing, if sent by registered
mail, return receipt requested, postage prepaid, and in each case addressed
to
such party at the following address:
If
to the Purchaser or, following the Closing, to Company,
at:
To
Purchaser:
Xxxxxx
X.
Xxxxxxxx
00000
Xxxxx Xxxxxx Xx. 00X
Xxxxxx,
XX 00000
Phone
000
000 0000
Fax
352
504 ______
Email:
xxxxxxxxx@xxxxxxxxxxxxxx.xxx
To
Company:
PTL
Energy Inc
Formerly
Tia III Inc
The
Offices at Veranda Park - Bldg 7000
0000
Xxxxxxxxxx Xxxx - Xxxxx 000
Xxxxxxx,
XX. 00000
Phn:
000
000 0000
Fax:
000
000 0000
Email:
xxxxxxxxxx@xxxxxxxxx.xxx
With
a
copies (which shall not constitute notice) to:
Xxxxxxxxx
Consulting LLC.
ATTN:
X.
Xxxxxxxxx, ESQ
0000
Xxxxxx Xxxxxxxxxx Xx. #000
Xxxxxxx,
XX 00000
Phn
000
000 0000
Fax
000
000 0000
Email:
xxxxxxxxxx@xxxxxxxxxxx.xxx
If
to Company (prior to Closing) or Shareholder:
To
Company:
0000
Xxxxxx Xxxx
Xxxxx
X
Xxxxxxxxx,
Xxx Xxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
To
Shareholder:
Xxxx
Xxxxxxxxxx
0000
Xxxxxx Xxxx
Xxxxx
X
Xxxxxxxxx,
Xxx Xxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
xxxxxx@xxxxx.xxx
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11 -
8.7
Assignment.
This
Agreement and all of the provisions hereof shall be binding upon and inure
to
the benefit of the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned (whether voluntarily, involuntarily,
by
operation of law or otherwise) by any of the parties hereto without the prior
written consent of the other parties. The Shareholder prior to the Closing
shall
be a third party beneficiary of this Agreement.
8.8
Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and the parties will attempt to agree upon a valid and
enforceable provision which shall be a reasonable substitute therefore, and
upon
so agreeing, shall incorporate such substitute provision in this Agreement.
Any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction.
8.9
Counterparts.
This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party.
This Agreement, once executed by a party, may be delivered to the other parties
hereto by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement. In the event any signature
is delivered by facsimile transmission, the party using such means of delivery
shall cause the manually executed execution page(s) hereof to be physically
delivered to the other party within five days of the execution hereof, provided
that the failure to so deliver any manually executed execution page shall not
affect the validity or enforceability of this Agreement.
8.10
Headings.
The
headings herein are inserted for convenience only and do not constitute a part
of this Agreement. Unless the context otherwise requires, all references to
articles and sections refer to articles and sections of this Agreement, and
all
references to schedules are to schedules attached hereto, each of which is
made
a part hereof for all purposes. The descriptive headings of the several articles
and sections of this Agreement are inserted for purposes of reference only,
and
shall not affect the meaning or construction of any of the provisions
hereof.
8.11
Entire
Agreement.
This
Agreement, and any schedules and exhibits hereto and other writings referred
to
in this Agreement or any such exhibit or other writing are part of this
Agreement, together they embody the entire agreement and understanding of the
parties hereto in respect of the transactions contemplated by this Agreement
and
together they are referred to as this “Agreement” or the “Agreement.” There are
no restrictions, promises, warranties, agreements, covenants or undertakings,
other than those expressly set forth or referred to in this Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to the transaction or transactions contemplated by this
Agreement.
8.13
Remedies
and Injunctive Relief.
It is
expressly agreed among the parties hereto that monetary damages would be
inadequate to compensate a party hereto for any breach by any other party of
its
covenants in Article 6 hereof. Accordingly, the parties agree and acknowledge
that any such violation or threatened violation shall cause irreparable injury
to the other and that, in addition to any other remedies which may be available,
such party shall be entitled to injunctive relief against the threatened breach
of Article 6 hereof or the continuation of any such breach without the necessity
of proving actual damages and may seek to specifically enforce the terms
thereof.
8.14
Definition
of Material Adverse Effect.
“ Material
Adverse Effect”
with
respect to a party means a material adverse change in or effect on the business,
operations, financial condition, properties or liabilities of the party taken
as
a whole; provided, however, that a Material Adverse Effect shall not be deemed
to include (i) changes as a result of the announcement of this transaction,
(ii)
events or conditions arising from changes in general business or economic
conditions or (iii) changes in generally accepted accounting
principles.
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12 -
8.16
Construction.
The
parties hereto have participated jointly in the negotiation and drafting of
this
Agreement. If an ambiguity or question of intent or interpretation arises,
this
Agreement will be construed as if drafted jointly by the parties hereto and
no
presumption or burden of proof will arise favoring or disfavoring any party
hereto because of the authorship of any provision of this Agreement. The words
“include,” “includes,” and “including” will be deemed to be followed by “without
limitation.” Pronouns in masculine, feminine, and neuter genders will be
construed to include any other gender, and words in the singular form will
be
construed to include the plural and vice versa, unless the context otherwise
requires.
8.17
Governing
Law.
The
corporate laws of the State of Delaware shall govern all issues concerning
the
relative rights of the Company and its shareholders. All other questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of Florida,
without giving effect to any choice of law or conflict of law provision or
rule
(whether of the State of New York or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of
Florida. Each party hereby irrevocably submits to the exclusive jurisdiction
of
the state and federal courts sitting in the City and County of Orange, Florida
for the adjudication of any dispute hereunder or in connection herewith or
therewith, or with any transaction contemplated hereby or discussed herein,
and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
IN
WITNESS WHEREOF
, the
parties hereto have caused this Agreement to be duly executed as of the day
and
year first above written.
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The
Company:
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The
Purchaser:
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Tia
III Inc.
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By
:
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By:
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Name
:
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Xxxx
Xxxxxxxxxx
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Name
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.Xxxxxx
X. XxxXxxxx
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Title:
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President,
Secretary and Sole Director
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The
Shareholder:
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Name
:
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Xxxx
Xxxxxxxxxx
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