CONFIDENTIALITY AGREEMENT
Exhibit
10.22
CONFIDENTIALITY
AGREEMENT
The
undersigned has requested that Zone Mining Limited (the “Company”) provide it
with a copy of the Common Stock Purchase Agreement and other documents (the
“Offering Documents”) relating to the Company’s offering of Common Stock (the
“Offering”).
As
a
condition to the receipt of the Offering Documents, the undersigned acknowledges
and agrees as follows:
1. |
The
Offering Documents have been furnished to me on a confidential basis
solely for the purpose of enabling me to evaluate the
Offering.
|
2. |
Certain
of the information contained in the Offering Documents constitutes
material non public information under United States federal securities
laws, and that United States federal securities laws prohibit any
person
who has received material non-public information relating to the
Company
from purchasing or selling securities of the Company, or from
communicating such information to any person under circumstances
in which
it is reasonably foreseeable that such person is likely to purchase
or
sell securities of the Company.
|
3. |
The
undersigned will not communicate such information to any other person
until such time as any such non-public information has been adequately
disseminated to the public.
|
IN
WITNESS WHEREOF, the undersigned acknowledges and agrees to abide by the terms
of this Confidentiality Agreement.
Date:
_______________________
|
By:
__________________________________
|
|
Name:
________________________________
|
|
Title:
_________________________________
|
|
Address:
______________________________
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_____________________________________
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EXECUTION
OF THIS DOCUMENT DOES NOT INDICATE ANY INTENT TO SUBSCRIBE FOR OR PURCHASE
THE
SECURITIES OFFERED IN THE OFFERING DOCUMENTS. THIS DOCUMENT MUST BE SIGNED
AT
THE TIME YOU RECEIVE THE ATTACHED OFFERING DOCUMENTS AND
RETURNED
TO THE SECRETARY OF THE COMPANY.
1
ZONE
MINING LIMITED
_______________________________________
_____________________________________________
CONFIDENTIAL
2
CONFIDENTIAL
INFORMATION
THE
OFFEREE, BY ACCEPTING THE COMMON STOCK PURCHASE AGREEMENT AND THE OTHER OFFERING
DOCUMENTS RELATING TO THE COMPANY’S PROPOSED OFFERING OF COMMON STOCK,
ACKNOWLEDGES
AND AGREES THAT: (I) THE
OFFERING DOCUMENTS HAVE
BEEN FURNISHED TO THE OFFEREE ON A CONFIDENTIAL BASIS SOLELY FOR THE PURPOSE
OF
ENABLING THE OFFEREE TO EVALUATE THE OFFERING; (II) THAT THE OFFEREE MAY NOT
FURTHER DISTRIBUTE THE OFFERING DOCUMENTS WITHOUT THE PRIOR WRITTEN CONSENT
OF
THE COMPANY, EXCEPT TO THE OFFEREE’S LEGAL, FINANCIAL OR OTHER PERSONAL
ADVISORS, IF ANY, WHO WILL USE THE OFFERING DOCUMENTS ON THE OFFEREE’S BEHALF
SOLELY FOR PURPOSES OF EVALUATING THE OFFERING; (III) ANY REPRODUCTION OR
DISTRIBUTION OF THE OFFERING DOCUMENTS, IN WHOLE OR IN PART, OR THE DIRECT
OR
INDIRECT DISCLOSURE OF THE CONTENTS OF THE OFFERING DOCUMENTS FOR ANY OTHER
PURPOSE WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY IS PROHIBITED; AND
(IV)
THE
OFFEREE SHALL BE BOUND BY ALL TERMS AND CONDITIONS SPECIFIED IN THE OFFERING
DOCUMENTS.
NOTICE
TO OFFEREES
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER THE APPLICABLE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION. THIS COMMON
STOCK
PURCHASE AGREEMENT AND THE OTHER OFFERING DOCUMENTS DO NOT CONSTITUTE AN OFFER
TO SELL OR SOLICITATION OF AN OFFER TO BUY THE SECURITIES IN ANY JURISDICTION
IN
WHICH SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL.
THE
SECURITIES ARE BEING SOLD FOR INVESTMENT PURPOSES ONLY, WITHOUT A VIEW TO RESALE
OR DISTRIBUTION THEREOF, AND MAY NOT BE TRANSFERRED, RESOLD OR OFFERED FOR
RESALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND EFFECTIVE REGISTRATION OR QUALIFICATION UNDER THE APPLICABLE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, OR THE AVAILABILITY OF
AN
EXEMPTION THEREFROM.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR THE SECURITIES COMMISSION OR OTHER
REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION HAS APPROVED OR
DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF
THIS
COMMON
STOCK
PURCHASE AGREEMENT OR ANY OF THE OTHER OFFERING DOCUMENTS. ANY REPRESENTATION
TO
THE CONTRARY IS A CRIMINAL OFFENSE.
3
ADDITIONAL
INFORMATION
Zone
Mining Limited (the “Company”) files annual, quarterly and current reports,
proxy statements and other information with the Securities and Exchange
Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended.
Reports, statements or other information that we file with the SEC are available
to the public at the SEC’s Website at xxxx://xxx.xxx.xxx. The following
documents that we have previously filed with the SEC are incorporated by
reference into this agreement:
· |
Quarterly
Report on Form 10-QSB for the fiscal quarter ended September 30,
2006;
|
· |
Current
Reports on Form 8-K dated October 20, 2006, October 27, 2006, December
12,
2006, and December 22, 2006; and
|
· |
Any
Quarterly Reports on Form 10-QSB or Current Reports on Form 8-K filed
with
the SEC after January 23, 2007 and before the date this agreement
is
executed.
|
The
information incorporated by reference into this agreement is an important part
of this agreement.
Any
statement contained in a document incorporated by reference into this agreement
shall be deemed to be modified or superseded for the purposes of this agreement
to the extent that a statement contained herein or in any other subsequently
filed document modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this agreement.
The
Company will provide to each person to whom this agreement is sent, upon the
written or oral request of such person, a copy of any or all of the documents
referred to above that have been incorporated by reference into this agreement
but not delivered with this agreement. You may make such requests at no cost
to
you by writing or telephoning us at the following address or
number:
Zone
Mining Limited
000
Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx
Xxxxxx, XX 00000
Attention:
Chief Executive Officer
You
should rely only on the information contained in this agreement or incorporated
by reference into this agreement. The Company has not authorized anyone to
provide you with different information. You should not assume that the
information in this agreement is accurate as of any date other than the date
this agreement is sent to you for review or that the information incorporated
by
reference into this agreement is accurate as of any date other than the date
set
forth on the front of the document containing such information.
4
CONFIDENTIAL
COMMON
STOCK
PURCHASE AGREEMENT
THIS
COMMON STOCK PURCHASE AGREEMENT (this "Agreement"), dated _______________,
2007,
by and between Zone Mining Limited, a Nevada corporation (the "Company"), and
the purchaser or purchasers identified on the signature page hereof
("Purchaser").
R
E C
I T A L S:
WHEREAS,
Purchaser desires to purchase and the Company desires to sell shares of Common
Stock on the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises hereof and the agreements set forth
herein below, the parties hereto hereby agree as follows:
1. The
Offering.
(a) Private
Offering.
The
securities offered by this Agreement are being offered in a private offering
(the "Offering") of shares of the Company’s Common Stock, $0.00001 par value per
share (the “Common Stock”). The shares of Common Stock to be sold hereunder
(collectively, the “Shares”) will be sold at a purchase price (the “Purchase
Price”) of $1.00 per Share. The Company is offering up to 2,500,000 Shares for
an aggregate purchase price of $2,500,000 (the “Maximum Amount”); provided,
however,
that in
the event of any over-allotments of Shares during the Offering Period (as
defined below), the Company reserves the right to sell Shares for an aggregate
purchase price in excess of $2,500,000 to
cover
such over-allotments. The Shares will be sold on a reasonable “best efforts”
basis pursuant to Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), and/or Rule 506 of Regulation D thereunder. The Shares are
being offered solely to a limited number of “accredited investors” as that term
is defined in Rule 501(a) of the Securities Act during an offering period (the
“Offering Period”) commencing January 24, 2007 and terminating not later than
February 15, 2007, unless extended by the Company in its sole discretion for
up
to an additional thirty-day period (the “Termination Date”). The Offering may be
terminated by the Company at any time in its sole discretion.
(b) The
Acquisition.
The
Company has entered into a Letter of Intent (the “LOI”), pursuant to which the
Company intends to enter into a definitive purchase agreement to purchase all
of
the outstanding limited liability company membership interests (the
“Transaction”) of Reliant Partners LLC, a California limited liability company
(“Reliant”). A description of the general terms of the Transaction as currently
proposed and a description of Reliant are attached hereto as Exhibit
A
and
Exhibit
B,
respectively. The closing of the Transaction is subject to the completion and
execution of a definitive purchase agreement along with satisfaction or waiver
of standard and customary approvals and closing. Accordingly, there can be
no
assurance that the Transaction will be completed and the Company makes no
representations or warranties herein as to whether the transactions contemplated
under the LOI will be consummated and, if so, the effect those transactions
will
have on the Company.
5
(c) Use
of
Proceeds.
Assuming the Company sells the Maximum Amount, the net proceeds to the Company
are estimated to be approximately $2,480,000 after deducting offering expenses
payable by the Company estimated at $20,000. The
Company intends to use $100,000 of the net proceeds to fund the initial cash
purchase price of the Transaction and the balance for general working capital
purposes, which may include repayment of existing indebtedness and the
acquisition of additional companies or assets.
(d) No
Minimum Offering Amount.
Funds
shall be released to the Company upon the Company’s execution of this Agreement
and similar agreements and the Company is not required to raise any minimum
amount of proceeds prior to executing this Agreement or any similar agreement
and obtaining such funds. Because there is no minimum amount of subscriptions
which the Company must receive before accepting funds in the Offering, Purchaser
will not be assured that the Company will have sufficient funds to operate
its
business and will bear the risk that the Company will be unable to secure the
funds necessary to meet its current and anticipated financial obligations.
(e) Placement
Agent
and Finders Fees.
The
Company reserves the right to pay cash fees to agents, brokers, dealers and
finders in connection with the sale of the Shares in an amount up to eight
percent (8%) of the Purchase Price of such Shares.
2. Sale
and Purchase of Shares.
(a) Purchase
and Sale.
Subject
to the terms and conditions hereof, the Company agrees to sell, and Purchaser
irrevocably subscribes for and agrees to purchase, the number of Shares set
forth on the signature page of this Agreement at a purchase price of $1.00
per
Share. The aggregate purchase price for the Shares shall be as set forth on
the
signature page hereto (the “Aggregate Purchase Price”) and shall be payable upon
execution hereof by check or wire transfer of immediately available funds as
set
forth below.
(b) Subscription
Procedure.
In
order to purchase Shares, Purchaser shall deliver to the Company, 000
Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000: (i) one
completed and duly executed copy of this Agreement; and (ii) immediately
available funds, or a certified check or bank check, in an amount equal to
the
Aggregate Purchase Price. Execution and delivery of this Agreement shall
constitute an irrevocable subscription for that number of Shares set forth
on
the signature page hereto. The minimum investment that may be made by a
Purchaser is $50,000 or
50,000
Shares, although the Company may, in its sole discretion, accept subscriptions
for a lesser amount. Payment for the Shares may be made by wire transfer
to:
Sovereign
Bank
0000
Xxxxxxxxx Xxxx.
Xxxxxxxxxx,
XX 00000
ABA# 231
372
691
For
Credit to: Zone Mining Limited
000
Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx
Xxxxxx, XX 00000
Account
#
236 106 7331
6
or
by
check made payable to: “Zone Mining Limited.” Receipt by the Company of funds
wired, or deposit and collection by the Company of the check tendered herewith,
will not constitute acceptance of this Agreement by the Company. The Shares
subscribed for will not be deemed to be issued to, or owned by, Purchaser until
the Company has executed this Agreement. All funds tendered by Purchaser will
be
held by the Company pending acceptance or rejection of this Agreement by the
Company and the closing of Purchaser’s purchase of Shares. This Agreement will
either be accepted by the Company, in whole or in part, in its sole discretion,
or rejected by the Company as promptly as practicable. If this Agreement is
accepted only in part, Purchaser agrees to purchase such smaller number of
Shares as the Company determines to sell to Purchaser. If this Agreement is
rejected for any reason, including the termination of the Offering by the
Company, this Agreement and all funds tendered herewith will be promptly
returned to Purchaser, without interest or deduction of any kind, and this
Agreement will be void and of no further force or effect.
(c) Closing.
Subscriptions will be accepted by the Company in its sole discretion until
the
Termination Date. Upon the Company’s execution of this Agreement, the
subscription evidenced hereby, if not previously rejected by the Company,
will,
in reliance upon Purchaser’s representations and warranties contained herein, be
accepted, in whole or in part, by the Company. If Purchaser’s subscription is
accepted only in part, this Agreement will be marked to indicate such fact,
and
the Company will return to Purchaser the portion of the funds tendered by
Purchaser representing the unaccepted portion of Purchaser’s subscription,
without interest or deduction of any kind. Upon acceptance of this Agreement
in
whole or in part by the Company, the Company will issue certificates for
the
Common Stock to Purchaser, together with a copy of Purchaser’s executed
Agreement countersigned by the Company.
3. Representations
and Warranties of Purchaser.
Purchaser represents and warrants to the Company as follows:
(a) Organization
and Qualification.
(i) If
Purchaser is an entity, Purchaser is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, with the
corporate or other entity power and authority to own and operate its business
as
presently conducted, except where the failure to be or have any of the foregoing
would not have a material adverse effect on Purchaser, and Purchaser is duly
qualified as a foreign corporation or other entity to do business and is in
good
standing in each jurisdiction where the character of its properties owned or
held under lease or the nature of their activities makes such qualification
necessary, except for such failures to be so qualified or in good standing
as
would not have a material adverse effect on it.
(ii) If
Purchaser is an entity, the address of its principal place of business is as
set
forth on the signature page hereto, and if Purchaser is an individual, the
address of its principal residence is as set forth on the signature page
hereto.
(b) Authority;
Validity and Effect of Agreement.
7
(i) If
Purchaser is an entity, Purchaser has the requisite corporate or other entity
power and authority to execute and deliver this Agreement and perform its
obligations under this Agreement. The execution and delivery of this Agreement
by Purchaser, the performance by Purchaser of its obligations hereunder and
all
other necessary corporate or other entity action on the part of Purchaser have
been duly authorized by its board of directors or similar governing body, and
no
other corporate or other entity proceedings on the part of Purchaser is
necessary for Purchaser to execute and deliver this Agreement and perform its
obligations hereunder.
(ii) This
Agreement has been duly and validly authorized, executed and delivered by
Purchaser and, assuming it has been duly and validly executed and delivered
by
the Company, constitutes a legal, valid and binding obligation of Purchaser,
in
accordance with its terms.
(c) No
Conflict; Required Filings and Consents.
Neither
the execution and delivery of this Agreement by Purchaser nor the performance
by
Purchaser of its obligations hereunder will: (i) if Purchaser is an entity,
conflict with Purchaser’s articles of incorporation or bylaws, or other similar
organizational documents; (ii) violate any statute, law, ordinance, rule or
regulation, applicable to Purchaser or any of the properties or assets of
Purchaser; or (iii) violate, breach, be in conflict with or constitute a default
(or an event which, with notice or lapse of time or both, would constitute
a
default) under, or permit the termination of any provision of, or result in
the
termination of, the acceleration of the maturity of, or the acceleration of
the
performance of any obligation of Purchaser under, or result in the creation
or
imposition of any lien upon any properties, assets or business of Purchaser
under, any material contract or any order, judgment or decree to which Purchaser
is a party or by which it or any of its assets or properties is bound or
encumbered except, in the case of clauses (ii) and (iii), for such violations,
breaches, conflicts, defaults or other occurrences which, individually or in
the
aggregate, would not have a material adverse effect on its obligation to perform
its covenants under this Agreement.
(d) Accredited
Investor.
Purchaser
is an “accredited investor” as that term is defined in Rule 501(a) of Regulation
D under the Securities Act. If Purchaser is an entity, Purchaser was not formed
for the specific purpose of acquiring the Shares, and, if it was, all of
Purchaser’s equity owners are “accredited investors” as defined
above.
(e) No
Government Review.
Purchaser understands that neither the United States Securities and Exchange
Commission (“SEC”) nor any securities commission or other governmental authority
of any state, country or other jurisdiction has approved the issuance of the
Shares or passed upon or endorsed the merits of the Shares, this Agreement,
the
Common Stock, or any of the other documents relating to the proposed Offering
(collectively, the “Offering Documents”), or confirmed the accuracy of,
determined the adequacy of, or reviewed this Agreement, the Common Stock or
the
other Offering Documents.
(f) Investment
Intent.
The
Shares are being acquired for the Purchaser’s own account for investment
purposes only, not as a nominee or agent and not with a view to the resale
or
distribution of any part thereof, and Purchaser has no present intention of
selling, granting any participation in or otherwise distributing the same.
By
executing this Agreement, Purchaser further represents that Purchaser does
not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to such person or third person with
respect to any of the Shares.
8
(g) Restrictions
on Transfer.
Purchaser understands that the Shares are “restricted securities” as such term
is defined in Rule 144 under the Securities Act and have not been registered
under the Securities Act or registered or qualified under any state securities
law, and may not be, directly or indirectly, sold, transferred, offered for
sale, pledged, hypothecated or otherwise disposed of without registration under
the Securities Act and registration or qualification under applicable state
securities laws or the availability of an exemption therefrom. In any case
where
such an exemption is relied upon by Purchaser from the registration requirements
of the Securities Act and the registration or qualification requirements of
such
state securities laws, Purchaser shall furnish the Company with an opinion
of
counsel stating that the proposed sale or other disposition of such securities
may be effected without registration under the Securities Act and will not
result in any violation of any applicable state securities laws relating to
the
registration or qualification of securities for sale, such counsel and opinion
to be satisfactory to the Company. Purchaser acknowledges that it is able to
bear the economic risks of an investment in the Shares for an indefinite period
of time, and that its overall commitment to investments that are not readily
marketable is not disproportionate to its net worth.
(h) Investment
Experience.
Purchaser has such knowledge, sophistication and experience in financial, tax
and business matters in general, and investments in securities in particular,
that it is capable of evaluating the merits and risks of this investment in
the
Shares, and Purchaser has made such investigations in connection herewith as
it
deemed necessary or desirable so as to make an informed investment decision
without relying upon the Company for legal or tax advice related to this
investment. In making its decision to acquire the Shares, Purchaser has not
relied upon any information other than information provided to Purchaser by
the
Company or its representatives and contained herein and in the other Offering
Documents.
(i) Access
to Information.
Purchaser acknowledges that it has had access to and has reviewed all documents
and records relating to the Company, including, but not limited to, the
Company’s Quarterly Report on Form 10-QSB for the fiscal quarter ended September
30, 2006, and the Company’s Current Reports on Form 8-K dated October 20, 2006,
October 27, 2006, December 12, 2006, and December 22, 2006,
respectively (as
such
documents have been amended since the date of their filing, collectively, the
“Company SEC Documents”), that it has deemed necessary in order to make an
informed investment decision with respect to an investment in the Shares; that
it has had the opportunity to ask representatives of the Company certain
questions and request certain additional information regarding the terms and
conditions of such investment and the finances, operations, business and
prospects of the Company and has had any and all such questions and requests
answered to its satisfaction; and that it understands the risks and other
considerations relating to such investment.
(j) Reliance
on Representations.
Purchaser understands that the Shares are being offered and sold to it in
reliance on specific exemptions from the registration requirements of the
federal and state securities laws and that the Company is relying in part upon
the truth and accuracy of, and such Purchaser’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of
such Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of such Purchaser to acquire the Shares.
Purchaser represents and warrants to the Company that any information that
Purchaser has heretofore furnished or furnishes herewith to the Company is
complete and accurate, and further represents and warrants that it will notify
and supply corrective information to the Company immediately upon the occurrence
of any change therein occurring prior to the Company’s issuance of the Shares.
Within five (5) days after receipt of a request from the Company, Purchaser
will
provide such information and deliver such documents as may reasonably be
necessary to comply with any and all laws and regulations to which the Company
is subject.
9
(k) No
General Solicitation.
Purchaser is unaware of, and in deciding to participate in the Offering is
in no
way relying upon, and did not become aware of the Offering through or as a
result of, any form of general solicitation or general advertising including,
without limitation, any article, notice, advertisement or other communication
published in any newspaper, magazine or similar media, or broadcast over
television or radio or the internet, in connection with the
Offering.
(l) Placement
and Finder’s Fees.
No
agent, broker, investment banker, finder, financial advisor or other person
acting on behalf of Purchaser or under its authority is or will be entitled
to
any broker’s or finder’s fee or any other commission or similar fee, directly or
indirectly, in connection with the Offering, and no person is entitled to any
fee or commission or like payment in respect thereof based in any way on
agreements, arrangements or understanding made by or on behalf of
Purchaser.
(m) Investment
Risks.
Purchaser understands that purchasing Shares in the Offering will subject
Purchaser to certain risks, including, but not limited to, each of the
following:
(i) The
offering price of the Shares offered hereby has been determined solely by the
Company and does not necessarily bear any relationship to the value of the
Company’s assets, current or potential earnings of the Company, or any other
recognized criteria used for measuring value and, therefore, there can be no
assurance that the offering price of the Shares is representative of the actual
value of the Shares.
(ii) In
order
to capitalize the Company, execute its business plan, and for other corporate
purposes, the Company has issued, and expects to issue additional shares of
Common Stock, securities exercisable or convertible into shares of Common Stock,
or debt. Such securities have been and may be issued for a purchase price
consisting of cash, services or other consideration that may be materially
different than the purchase price of the Shares. The issuance of any such
securities may result in substantial dilution to the relative ownership
interests of the Company’s existing shareholders and substantial reduction in
net book value per share. Additional equity securities may have rights,
preferences and privileges senior to those of the holders of Common Stock,
and
any debt financing may involve restrictive covenants that may limit the
Company’s operating flexibility.
(iii) An
investment in the Shares may involve certain material legal, accounting and
federal and state tax consequences. Purchaser should consult with its legal
counsel, accountant and/or business adviser as to the legal, accounting, tax
and
related matters accompanying such an investment.
(iv) There
is
no minimum amount required to be raised in this Offering and, therefore, the
Company may not generate enough net proceeds form this Offering to execute
its
business plan and satisfy its working capital requirements.
10
(v) At
this
time, the Company has nominal operations and assets and is, therefore,
considered a shell corporation under applicable rules of the Exchange Act (as
defined in Section 6.1(a) hereof).
(n) Legends.
The
certificates and agreements evidencing the Shares shall have endorsed thereon
the following legend (and appropriate notations thereof will be made in the
Company’s stock transfer books), and
stop
transfer instructions reflecting these restrictions on transfer will be placed
with the transfer agent of the Shares:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES
REPRESENTED HEREBY HAVE BEEN TAKEN BY THE REGISTERED OWNER FOR INVESTMENT,
AND
WITHOUT A VIEW TO RESALE OR DISTRIBUTION THEREOF, AND MAY NOT BE SOLD,
TRANSFERRED OR DISPOSED OF WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER THAT SUCH TRANSFER OR DISPOSITION DOES NOT VIOLATE THE SECURITIES ACT
OF
1933, AS AMENDED, THE RULES AND REGULATIONS THEREUNDER OR OTHER APPLICABLE
SECURITIES LAWS.
4. Representations
and Warranties of the Company.
The
Company represents and warrants to Purchaser as follows:
(a) Organization
and Qualification.
The
Company is duly organized, validly existing and in good standing under the
laws
of its jurisdiction of organization, with the corporate power and authority
to
own and operate its business as presently conducted, except where the failure
to
be or have any of the foregoing would not have a material adverse effect on
the
Company. The Company is duly qualified as a foreign corporation or other entity
to do business and is in good standing in each jurisdiction where the character
of its properties owned or held under lease or the nature of their activities
makes such qualification necessary, except for such failures to be so qualified
or in good standing as would not have a material adverse effect on the
Company.
(b) Authority;
Validity and Effect of Agreement.
(vi) The
Company has the requisite corporate power and authority to execute and deliver
this Agreement, perform its obligations under this Agreement, and conduct the
Offering. The execution and delivery of this Agreement by the Company, the
performance by the Company of its obligations hereunder, the Offering and all
other necessary corporate action on the part of the Company have been duly
authorized by its board of directors, and no other corporate proceedings on
the
part of the Company are necessary to authorize this Agreement or the Offering.
This Agreement has been duly and validly executed and delivered by the Company
and, assuming that it has been duly authorized, executed and delivered by
Purchaser, constitutes a legal, valid and binding obligation of the Company,
in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
11
(vii) The
Shares have been duly authorized and, when issued and paid for in accordance
with this Agreement, will be validly issued, fully paid and non-assessable
shares of Common Stock with no personal liability resulting solely from the
ownership of such Shares and will be free and clear of all liens, charges,
restrictions, claims and encumbrances imposed by or through the Company.
(c) No
Conflict; Required Filings and Consents.
Neither
the execution and delivery
of this
Agreement by the Company nor the performance by the Company of its obligations
hereunder will: (i) conflict with the Company’s articles of incorporation or
bylaws; (ii) violate any statute, law, ordinance, rule or regulation, applicable
to the Company or any of the properties or assets of the Company; or (iii)
violate, breach, be in conflict with or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, or
permit the termination of any provision of, or result in the termination of,
the
acceleration of the maturity of, or the acceleration of the performance of
any
obligation of the Company, or result in the creation or imposition of any lien
upon any properties, assets or business of the Company under, any material
contract or any order, judgment or decree to which the Company is a party or
by
which it or any of its assets or properties is bound or encumbered except,
in
the case of clauses (ii) and (iii), for such violations, breaches, conflicts,
defaults or other occurrences which, individually or in the aggregate, would
not
have a material adverse effect on its obligation to perform its covenants under
this Agreement.
(d) SEC
Reports and Financial Statements.
The
Company has filed with the SEC, and has heretofore made available to Purchaser,
true and complete copies of all forms, reports, schedules, statements and other
documents required to be filed by it under the Exchange Act (as defined in
Section 6.1(a)) or the Securities Act. In addition, the Company has incorporated
by reference into this Agreement the Company SEC Documents. As of their
respective dates or, if amended, as of the date of the last such amendment,
the
Company SEC Documents, including any financial statements or schedules included
therein: (i) did not contain any untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary in order to
make the statements made therein, in light of the circumstances under which
they
were made, not misleading; and (ii) complied in all material respects with
the
applicable requirements of the Exchange Act and the Securities Act, as the
case
may be, and the applicable rules and regulations of the SEC thereunder. Each
of
the financial statements included in the Company SEC Documents have been
prepared from, and are in accordance with, the books and records of the Company,
comply in all material respects with applicable accounting requirements and
with
the published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles applied
on
a consistent basis during the periods involved (except as may be indicated
in
the notes thereto) and fairly present the financial position and the results
of
operations and cash flows of the Company as of the dates thereof or for the
periods presented therein (subject, in the case of unaudited statements, to
normal year-end audit adjustments not material in amount).
5. Indemnification.
Purchaser agrees to indemnify, defend and hold harmless the Company and its
respective affiliates and agents from and against any and all demands, claims,
actions or causes of action, judgments, assessments, losses, liabilities,
damages or penalties and reasonable attorneys’ fees and related disbursements
incurred by the Company that arise out of or result from a breach of any
representations or warranties made by Purchaser herein, and Purchaser agrees
that in the event of any breach of any representations or warranties made by
Purchaser herein, the Company may, at its option, forthwith rescind the sale
of
the Shares to Purchaser.
12
6. Registration
Rights. The Company covenants and agrees as follows:
6.1
For
the
purpose of this Section 6, the following definitions shall apply:
(a) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC thereunder, all as the same shall be in effect at
the
time.
(b) “Person”
shall mean an individual, partnership (general or limited), corporation, limited
liability company, joint venture, business trust, cooperative, association
or
other form of business organization, whether or not regarded as a legal entity
under applicable law, a trust (inter vivos or testamentary), an estate of a
deceased, insane or incompetent person, a quasi-governmental entity, a
government or any agency, authority, political subdivision or other
instrumentality thereof, or any other entity.
(c) “Register,”
“registered,” and “registration” shall refer to a registration effected by
preparing and filing a registration statement in compliance with the Securities
Act, and the declaration or order of effectiveness of such registration
statement or document by the SEC.
(d) “Registration
Statement” shall mean any registration statement of the Company filed with the
SEC pursuant to the provisions of Section 6.2 of this Agreement, which covers
the resale of the Restricted Stock on an appropriate form then permitted by
the
SEC to be used for such registration and the sales contemplated to be made
thereby under the Securities Act, or any similar rule that may be adopted by
the
SEC, and all amendments and supplements to such registration statement,
including any pre- and post- effective amendments thereto, in each case
including the prospectus contained therein, all exhibits thereto and all
materials incorporated by reference therein.
(e) “Restricted
Stock” shall mean (i) the shares of Common Stock issued and sold hereunder; and
(ii) any additional shares of Common Stock of the Company issued or issuable
after the date hereof in respect of any shares of the foregoing securities
by
way of a stock dividend or stock split, provided that as to any particular
shares of Restricted Stock, such securities shall cease to constitute Restricted
Stock when (x) a Registration Statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of thereunder, (y) such securities are
permitted to be transferred pursuant to Rule 144(k) (or any successor provision
to such rule) under the Securities Act or (z) such securities are otherwise
freely transferable to the public without further registration under the
Securities Act.
(f) “Selling
Stockholders” shall mean Purchaser and any other purchaser of Shares in the
Offering, and their respective successors and assigns.
13
6.2.
Registration
of the Shares.
(a)
The
Company shall notify all Selling Stockholders in writing at least twenty
(20) days
prior to the filing of any registration statement under the Securities Act
for
the purpose of registering securities of the Company, excluding registration
statements on SEC Forms X-0, X-0 or any similar or successor forms, and will
afford each such Selling Stockholder an opportunity to include in such
registration statement all or part of such Restricted Stock held by such Selling
Stockholder. Each Selling Stockholder desiring to include in any such
registration statement all or any part of the Restricted Stock held by it shall,
within ten (10) days after the above-described notice from the Company, so
notify the Company in writing. Such notice shall state the intended method
of
disposition of the Restricted Stock by such Selling Stockholder. If a Selling
Stockholder decides not to include all of its Restricted Stock in any
registration statement thereafter filed by the Company, such Selling Stockholder
shall nevertheless continue to have the right to include any Restricted Stock
in
any subsequent registration statement or registration statements as may be
filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein. The Company may, without the consent of the
Selling Stockholders, withdraw such registration statement prior to its becoming
effective if the proposal to register the securities proposed to be registered
thereby is abandoned.
(b)
In
the
event that any registration pursuant to Section 6.2(a) shall be, in whole or
in
part, an underwritten public offering of Restricted Stock on behalf of the
Company, all Purchasers proposing to distribute their Restricted Stock through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by the
Company. If the managing underwriter thereof advises the Company in writing
that
in its opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the Company, the Company shall
include in such registration (i) first, the securities the Company proposes
to
sell, and (ii) second, the Restricted Stock and any other registrable securities
eligible and requested to be included in such registration to the extent that
the number of shares to be registered under this clause (ii) will not, in the
opinion of the managing underwriter, adversely affect the offering of the
securities pursuant to clause (i). In such a case, shares shall be registered
pro rata among the holders of such Restricted Stock and registrable securities
on the basis of the number of shares eligible for registration that are owned
by
all such holders and requested to be included in such registration.
(c)
Notwithstanding
anything to the contrary contained herein, the Company’s obligation in Sections
6.2(a) and 6.2(b) above shall extend only to the inclusion of the Restricted
Stock in a Registration Statement. The Company shall have no obligation to
assure the terms and conditions of distribution, to obtain a commitment from
an
underwriter relative to the sale of the Restricted Stock or to otherwise assume
any responsibility for the manner, price or terms of the distribution of the
Restricted Stock.
(d)
The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Section 6.2 prior to the effectiveness of such registration
without thereby incurring liability to the holders of the Restricted Stock,
regardless of whether any holder has elected to include securities in such
registration. The Registration Expenses (as defined in Section 6.5) of such
withdrawn registration shall be borne by the Company in accordance with
Section 6.4 hereof.
14
6.3.
Registration
Procedures.
Whenever it is obligated to register any Restricted Stock pursuant to this
Agreement, the Company shall:
(a)
prepare
and file with the SEC a Registration Statement with respect to the Restricted
Stock in the manner set forth in Section 6.2 hereof and use its reasonable
best
efforts to cause such Registration Statement to become effective as promptly
as
possible and to remain effective until the earlier of: (i) the sale of all
shares of Restricted Stock covered thereby, (ii) the availability under Rule
144
for the Selling Stockholder to immediately, freely resell without restriction
all Restricted Stock covered thereby, or (iii) two (2) years from the date
of
this Agreement;
(b)
prepare
and file with the SEC such amendments (including post-effective amendments)
and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective
for
the period specified in Section 6.3(a) above and to comply with the provisions
of the Securities Act with respect to the disposition of all Restricted Stock
covered by such Registration Statement in accordance with the intended method
of
disposition set forth in such Registration Statement for such
period;
(c)
furnish
to the Selling Stockholders such number of copies of the Registration Statement
and the prospectus included therein (including each preliminary prospectus)
as
such person may reasonably request in order to facilitate the public sale or
other disposition of the Restricted Stock covered by such Registration
Statement;
(d)
use
its
reasonable best efforts to register or qualify the Restricted Stock covered
by
such Registration Statement under the state securities laws of such
jurisdictions as any Selling Stockholder shall reasonably request; provided,
however,
that
the Company shall not for any such purpose be required to qualify generally
to
transact business as a foreign corporation in any jurisdiction where it is
not
so qualified or to consent to general service of process in any such
jurisdiction;
(e)
in
the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter(s) of such offering. Each Purchaser participating
in
such underwriting shall also enter into and perform its obligations under such
an agreement, as described in Section 6.2(b);
(f)
immediately
notify each Selling Stockholder at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained in such Registration
Statement, as then in effect, includes an untrue statement of a material fact
or
omits to state a material fact required or necessary to be stated therein in
order to make the statements contained therein not misleading in light of the
circumstances under which they were made. The Company will use reasonable
efforts to amend or supplement such prospectus in order to cause such prospectus
not to include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made;
15
(g)
prepare
and file with the SEC such amendments and supplements to such Registration
Statement and the prospectus used in connection with such Registration Statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement;
(h)
use
its
reasonable best efforts to list the Restricted Stock covered by such
Registration Statement on each exchange or automated quotation system on which
similar securities issued by the Company are then listed (with the listing
application being made at the time of the filing of such Registration Statement
or as soon thereafter as is reasonably practicable);
(i)
notify
each Selling Stockholder of any threat by the SEC or state securities commission
to undertake a stop order with respect to sales under the Registration
Statement; and
(j)
cooperate
in the timely removal of any restrictive legends from the shares of Restricted
Stock in connection with the resale of such shares covered by an effective
Registration Statement.
6.4.
Delay
of Registration.
No
Selling Stockholder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 6.
6.5
Expenses.
(a)
For
the
purposes of this Section 6.5, the term “Registration Expenses” shall mean: all
expenses incurred by the Company in complying with Section 6.2 of this
Agreement, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees under state securities laws, fees of the
National Association of Securities Dealers, Inc. (“NASD”), fees and expenses of
listing shares of Restricted Stock on any securities exchange or automated
quotation system on which the Company’s shares are listed and fees of transfer
agents and registrars. The term “Selling Expenses” shall mean: all underwriting
discounts and selling commissions applicable to the sale of Restricted Stock
and
all accountable or non-accountable expenses paid to any underwriter in respect
of such sale.
(b)
Except
as
otherwise provided herein, the Company will pay all Registration Expenses in
connection with the Registration Statements filed pursuant to Section 6.2 of
this Agreement. All Selling Expenses in connection with any Registration
Statements filed pursuant to Section 6.2 of this Agreement shall be borne by
the
Selling Stockholders, pro rata, on the basis of the number of shares registered
by each Selling Stockholder whose shares of Restricted Stock are covered by
such
Registration Statement, or by such persons other than the Company (except to
the
extent the Company may be a seller) as they may agree in writing.
16
6.6.
Obligations
of the Selling Stockholders.
(a)
In
connection with each registration hereunder, each Selling Stockholder will
furnish to the Company in writing such information with respect to it and the
securities held by it and the proposed distribution by it, as shall be
reasonably requested by the Company in order to assure compliance with
applicable federal and state securities laws as a condition precedent to
including the Selling Stockholder’s Restricted Stock in the Registration
Statement. Each Selling Stockholder shall also promptly notify the Company
of
any changes in such information included in the Registration Statement or
prospectus as a result of which there is an untrue statement of material fact
or
an omission to state any material fact required or necessary to be stated
therein in order to make the statements contained therein not misleading in
light of the circumstances under which they were made.
(b)
In
connection with the filing of the Registration Statement, each Selling
Stockholder shall furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with such
Registration Statement or prospectus.
(c)
In
connection with each registration pursuant to this Agreement, each Selling
Stockholder agrees that it will not effect sales of any Restricted Stock until
notified by the Company of the effectiveness of the Registration Statement,
and
thereafter will suspend such sales after receipt of telegraphic or written
notice from the Company to suspend sales to permit the Company to correct or
update a Registration Statement or prospectus. At the end of any period during
which the Company is obligated to keep a Registration Statement current, each
Selling Stockholder shall discontinue sales of Restricted Stock pursuant to
such
Registration Statement upon receipt of notice from the Company of its intention
to remove from registration the Restricted Stock covered by such Registration
Statement that remains unsold, and each Selling Stockholder shall notify the
Company of the number of shares registered which remain unsold immediately
upon
receipt of such notice from the Company.
6.7.
Information
Blackout and Holdbacks.
(a)
At
any
time when a Registration Statement effected pursuant to Section 6.2 is
effective, upon written notice from the Company to Purchaser that the Company
has determined in good faith that the sale of Restricted Stock pursuant to
the
Registration Statement would require disclosure of non-public material
information, Purchaser shall suspend sales of Restricted Stock pursuant to
such
Registration Statement until such time as the Company notifies Purchaser that
such material information has been disclosed to the public or has ceased to
be
material, or that sales pursuant to such Registration Statement may otherwise
be
resumed.
(b)
Notwithstanding
any other provision of this Agreement, Purchaser shall not effect any public
sale or distribution (including sales pursuant to Rule 144 under the Securities
Act), if and when available, of equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
during the thirty (30) days prior to the commencement of any primary offering
to
be undertaken by the Company of shares of its unissued Common Stock (“Primary
Offering”), which may also include other securities, and ending one hundred
twenty (120) days after completion of any such Primary Offering, unless the
Company, in the case of a non-underwritten Primary Offering, or the managing
underwriter, in the case of an underwritten Primary Offering, otherwise agree
in
writing.
17
6.8.
Indemnification.
(a)
The
Company agrees to indemnify, to the extent permitted by law, each Selling
Stockholder, such Selling Stockholder’s respective partners, officers,
directors, underwriters and each Person who controls any Selling Stockholder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by (i) any untrue statement of or alleged untrue
statement of material fact contained in the Registration Statement, prospectus
or preliminary prospectus or any amendment or supplement thereto, (ii) any
omission of or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such Registration Statement
(“Violations”); provided,
however,
that
the indemnity agreement contained in this Section 6.8(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company, which consent
shall not be unreasonably withheld, nor shall the Company be liable in for
any
loss, claim, damage, liability or action to the extent that it arises out of
or
is based upon a Violation which occurs in reliance upon and in conformity with
information furnished to the Company by such Selling Stockholder, partner,
officer, director, underwriter or controlling person of such Selling
Stockholder.
(b)
To
the
extent permitted by law, each Selling Stockholder shall indemnify and hold
harmless the Company, each of its directors, its officers and each person,
if
any, who controls the Company within the meaning of the Securities Act, any
underwriter and any other Selling Stockholder selling securities under such
registration statement or any of such other Selling Stockholder’s partners,
directors or officers or any person who controls such Selling Stockholder,
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such director, officer, controlling person, underwriter
or
other such Selling Stockholder, or partner, director, officer or controlling
person of such other Selling Stockholder, may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as
such
losses, claims, damages or liabilities (or actions in respect thereto) arise
out
of or are based upon any Violation, in each case to the extent (and only to
the
extent) that such Violation occurs (i) in reliance upon and in conformity with
information furnished by such Selling Stockholder to the Company, (ii) as a
result of any failure to deliver a copy of the prospectus relating to such
Registration Statement, or (iii) as a result of any disposition of the
Restricted Stock in a manner that fails to comply with the permitted methods
of
distribution identified within the Registration Statement; provided,
that in
no event shall Selling Stockholder’s obligation under this Section 6.8(b) exceed
the net proceeds from the sale of Restricted Stock purchased by Selling
Stockholder hereunder.
18
(c)
Any
Person entitled to indemnification hereunder shall (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice shall not
impair any Person’s right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party), and (ii) unless in such
indemnified party’s reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not
be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees
and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to
such
claim.
(d)
If
the
indemnification provided for in this Section 6.8 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect
to
any losses, claims, damages or liabilities referred to herein, the indemnifying
party, in lieu of indemnifying such indemnified party thereunder, shall to
the
extent permitted by applicable law contribute to the amount paid or payable
by
such indemnified party as a result of such loss, claim, damage or liability
in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other
in
connection with the violation(s) described in Section 6.8(a) that resulted
in
such loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission to state a material fact relates to information supplied by
the
indemnifying party or by the indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided,
that in
no event shall any contribution by a Selling Stockholder hereunder exceed the
net proceeds from the sale of the Restricted Stock purchased by Selling
Stockholder hereunder.
(e)
The
indemnification provided for under this Agreement shall remain in full force
and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling Person of such indemnified party
and shall survive the transfer of securities. The Company also agrees to make
such provisions as are reasonably requested by any indemnified party for
contribution to such party in the event the Company’s indemnification is
unavailable for any reason.
7. Confidentiality.
Purchaser acknowledges and agrees that:
(a) All
of
the information contained herein and in the other Offering Documents is of
a
confidential nature and may be regarded as material non-public information
under
Regulation FD of the Securities Act.
(b) This
Agreement and the other Offering Documents have been furnished to Purchaser
by
the Company for the sole purpose of enabling Purchaser to consider and evaluate
an investment in the Company, and will be kept confidential by Purchaser and
not
used for any other purpose.
19
(c) The
existence of this Agreement and the information contained herein shall not,
without the prior written consent of the Company, be disclosed by Purchaser
to
any person or entity, other than Purchaser’s personal financial and legal
advisors for the sole purpose of evaluating an investment in the Company, and
Purchaser will not, directly or indirectly, disclose or permit Purchaser’s
personal financial and legal advisors to disclose, any of such information
without the prior written consent of the Company.
(d) Purchaser
shall make its representatives aware of the terms of this Section 7 and to
be
responsible for any breach of this Agreement by such representatives.
(e) Purchaser
shall not, without the prior written consent of the Company, directly or
indirectly, make any statements, public announcements or release to trade
publications or the press with respect to the subject matter of this Agreement
and the other Offering Documents.
(f) If
Purchaser decides to not pursue further investigation of the Company or to
not
participate in the Offering, Purchaser will promptly return this Agreement,
the
other Offering Documents and any accompanying documentation to the
Company.
8. Non-Public
Information.
Purchaser acknowledges that information concerning the matters that are the
subject matter of this Agreement may constitute material non-public information
under United States federal securities laws, and that United States federal
securities laws prohibit any person who has received material non-public
information relating to the Company from purchasing or selling securities of
the
Company, or from communicating such information to any person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell securities of the Company. Accordingly, until such time
as
any such non-public information has been adequately disseminated to the public,
Purchaser shall not purchase or sell any securities of the Company, or
communicate such information to any other person.
9. Entire
Agreement. This Agreement contains the entire agreement between the parties
and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereto, and no party
shall be liable or bound to any other party in any manner by any warranties,
representations, guarantees or covenants except as specifically set forth in
this Agreement. Nothing in this Agreement, express or implied, is intended
to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations or liabilities under
or
by reason of this Agreement, except as expressly provided in this
Agreement.
10. Amendment
and Modification. This Agreement may not be amended, modified or supplemented
except by an instrument or instruments in writing signed by the Company and
the
holders of a majority of the Shares sold in the Offering.
11. Extensions
and Waivers. At any time prior to the Closing, the parties hereto entitled
to
the benefits of a term or provision may (a) extend the time for the performance
of any of the obligations or other acts of the parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document, certificate or writing delivered pursuant hereto, or (c) waive
compliance with any obligation, covenant, agreement or condition contained
herein. Any agreement on the part of a party to any such extension or waiver
shall be valid only if set forth in an instrument or instruments in writing
signed by the by the Company and the holders of a majority of the Shares sold
in
the Offering. No failure or delay on the part of any party hereto in the
exercise of any right hereunder shall impair such right or be construed to
be a
waiver of, or acquiescence in, any breach of any representation, warranty,
covenant or agreement.
20
12. Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however, that no party
hereto may assign its rights or delegate its obligations under this Agreement
without the express prior written consent of the other party hereto. Except
as
provided in Sections 5 and 6, nothing in this Agreement is intended to confer
upon any person not a party hereto (and their successors and assigns) any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
13. Survival
of Representations, Warranties and Covenants. The representations and warranties
contained herein shall survive the Closing and shall thereupon terminate 18
months from the Closing, except that the representations contained in Sections
3(a), 3(b), 4(a), and 4(b) shall survive indefinitely. All covenants and
agreements contained herein which by their terms contemplate actions following
the Closing shall survive the Closing and remain in full force and effect in
accordance with their terms. All other covenants and agreements contained herein
shall not survive the Closing and shall thereupon terminate.
14. Headings;
Definitions. The Section headings contained in this Agreement are inserted
for
convenience of reference only and will not affect the meaning or interpretation
of this Agreement. All references to Sections contained herein mean Sections
of
this Agreement unless otherwise stated. All capitalized terms defined herein
are
equally applicable to both the singular and plural forms of such
terms.
15. Severability.
If any provision of this Agreement or the application thereof to any person
or
circumstance is held to be invalid or unenforceable to any extent, the remainder
of this Agreement shall remain in full force and effect and shall be reformed
to
render the Agreement valid and enforceable while reflecting to the greatest
extent permissible the intent of the parties.
16. Notices.
All notices hereunder shall be sufficiently given for all purposes hereunder
if
in writing and delivered personally, sent by documented overnight delivery
service or, to the extent receipt is confirmed, telecopy, telefax or other
electronic transmission service to the appropriate address or number as set
forth below:
If
to
the Company:
Zone
Mining Limited
000
Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx
Xxxxxx, XX 00000
Attention:
Chief Executive Officer
21
with
a
copy to:
Fox
Rothschild LLP
000
Xxxxx
Xxxxx
Xxxxxxxx
0
Xxxxxxxxxxxxx,
XX 00000-0000
Attention:
Xxxxxxx X. Xxxxxx, Esquire
If
to
Purchaser:
To
that
address indicated on the signature page hereof.
17. Governing
Law. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania, without regard to the laws that might
otherwise govern under applicable principles of conflicts of laws thereof,
except to the extent that the General Corporation Law of the State of Nevada
shall apply to the internal corporate governance of the Company.
18. Arbitration.
If a dispute arises as to the interpretation of this Agreement, it shall be
decided in an arbitration proceeding conforming to the Rules of the American
Arbitration Association applicable to commercial arbitration then in effect
at
the time of the dispute. The arbitration shall take place in Philadelphia,
Pennsylvania. The decision of the arbitrators shall be conclusively binding
upon
the parties and final and such decision shall be enforceable as a judgment
in
any court of competent jurisdiction. The parties shall share equally the costs
of the arbitration.
19. Counterparts.
This Agreement may be executed and delivered by facsimile in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement.
[Signature
page follows]
22
IN
WITNESS WHEREOF, intending to be legally bound, the parties hereto have caused
this Agreement to be executed as of the date set forth below.
Date:
____________________
|
PURCHASER
___________________________________
By:
________________________________
Name:___________________________
Title:____________________________
Address:_________________________
________________________________
________________________________
Social
Security
or Tax ID No.:_____________________
|
|
|
|
|
|
Number
of Shares Purchased:_____________
Aggregate
Purchase Price: $______________
________________
Shares @ $1.00 per Share
|
|
Delivery
Instructions (if different from Address):
____________________________________
____________________________________
____________________________________
|
|
|
Date:____________________
|
ZONE
MINING LIMITED
By:_________________________________
Name:_______________________________
Title:________________________________
|
|
|
|
|
23
EXHIBIT
A
SUMMARY
OF TERMS OF PROPOSED TRANSACTION
Below
is
a summary of certain of the material terms of the proposed transaction with
Reliant Partners, LLC
The Parties: |
Zone Mining Limited (“ZM”), Reliant Partners LLC
(“Reliant”), and Xxxxx X. Xxxxxxx (“Xxxxxxx”), the sole member of
Reliant.
|
|
Purchase Price: |
1,000,000 shares of Common Stock and $100,000
to be paid
at closing. Additional cash payments to be made 5 and 45 days after
closing based on the value of certain loan originations and certain
accounts receivable of Reliant and $400,000 to be paid 6 months after
closing.
|
|
Employment Agreement: |
One (1) year annual renewable employment agreement
with
Xxxxxxx to serve as an officer of the Company at an annual base salary
of
$200,000.
|
|
Closing conditions: | Execution of a definitive purchase agreement and the satisfaction or waiver of all closing conditions which will include delivery of audited financial statements of Reliant and standard and customary approvals and representations. |
24
EXHIBIT
B
INFORMATION
REGARDING RELIANT PARTNERS, LLC.
Reliant
is a San Diego, California based company engaged in the business of direct
marketing and sales of federal consolidation loans.
25