STOCK PURCHASE AGREEMENT
THIS
STOCK PURCHASE AGREEMENT (the “Agreement”)
is
made and entered into as of this _10th__
day of
November, 2008 (the “Effective
Date”),
by
and between Xxxxxxxx X. Xxxxxx, Xx. and EAU Technologies, Inc., a Delaware
corporation (the “Corporation”).
WITNESETH:
WHEREAS,
the Corporation desires to sell to Xxxxxxxx X. Xxxxxx, Xx.(the “Purchaser”), and
Purchaser desires to purchase from the Corporation, a total of 100,000 shares
of
the Common Stock of the Corporation at a purchase price of $1.00 per share
upon
the terms and conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Purchase
and Sale of Shares.
Subject
to the terms of this Agreement, the Corporation hereby agrees to sell to
Purchaser, and Purchaser herby agrees to purchase from the Corporation a total
of 100,000 unregistered shares of the Common Stock of the Corporation (the
“Purchased
Shares”)
at a
purchase price of $1.00 per share.
2. Purchase
Price; Issuance of Shares.
The
aggregate cash consideration for the Purchased Shares shall be $100,000 (the
“Purchase
Price”),
which
shall be paid by Purchaser to the Corporation by wire transfer of immediately
available funds, on the following date: November 10, 2008. Upon
receipt by the Corporation of the Purchase Price, the Corporation shall cause
its transfer agent to issue
in
the name of, and deliver to, Purchaser a certificate evidencing the number
of
Purchased Shares purchased for the applicable Purchase Price
payment.
3. Representations
and Warranties of the Corporation.
The
Corporation hereby represents and warrants to Purchaser as follows:
3.1 Authority.
The
Corporation has the corporate power and authority to execute and deliver the
Agreement,
to sell the Purchased Shares to Purchaser, and
to
perform its obligations hereunder, and such execution, delivery and performance
will not violate any agreement, contract, law, rule, decree or other legal
restriction by which the Corporation is bound.
The
execution of the Agreement and the issuance of the Purchased Shares hereunder
have been approved by the Board of Directors of the Corporation.
3.2 Shares.
Upon
payment of the applicable Purchase Price amount, the Purchased Shares for which
the Corporation has actually received payment shall be duly authorized, validly
issued, fully-paid and non-assessable.
4. Representations
and Warranties of Purchaser.
Purchaser hereby represents and warrants to the Corporation as
follows:
4.1 Legal
Capacity.
Purchaser has the company power and authority to execute and deliver the
Agreement,
to purchase the Purchased Shares from the Corporation, and
to
perform its obligations hereunder, and such execution, delivery and performance
will not violate any agreement, contract, law, rule, decree or other legal
restriction by which Purchaser is bound. The
execution of the Agreement by Purchaser
and the
performance of its obligations hereunder has been approved by all company action
and no further company action is necessary for Purchaser
to
perform its obligations hereunder. Purchaser
has duly
executed and delivered this Agreement.
4.2 Information.
Purchaser has had a reasonable opportunity to conduct due diligence related
to
the purchase of the Purchased Shares, including the opportunity to ask questions
and receive answers from the Corporation, and Purchaser has received all
information requested by it from the Corporation in connection with the purchase
of the Purchased Shares. Purchaser has had an opportunity to consult with its
own legal counsel, tax and financial advisors regarding the purchase of the
Purchased Shares.
4.3 Investment.
(a)
Purchaser is acquiring the Purchased Shares solely for its own account for
investment purposes and not with a view or interest of participating, directly
or indirectly, in the resale or distribution of all or any part thereof; (b)
Purchaser acknowledges that all of the Purchased Shares acquired by it are
to be
issued and sold to Purchaser without registration and in reliance upon certain
exemptions under the Federal Securities Act of l933, as amended, and in reliance
upon certain exemptions from registration requirements under applicable state
securities laws; (c) Purchaser will make no transfer or assignment of any of
the
Purchased Shares except in compliance with the Securities Act of l933, as
amended, and any other applicable securities laws; (d) Purchaser consents,
agrees and acknowledges that the certificate or certificates representing the
Purchased Shares will be inscribed with the following legend, or another legend
to the same effect and agrees to the restrictions set forth therein:
“The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, or under the securities laws of any other
jurisdiction, in reliance upon exemptions from the registration requirements
of
such laws. The shares represented by this certificate may not be sold or
otherwise transferred, nor will an assignee or endorsee hereof be recognized
as
an owner of the shares by the issuer unless: (i) a registration statement under
the Securities Act of 1933 and other applicable securities laws with respect
to
the shares and the transfer shall then be in effect; or (ii) in the opinion
of
counsel satisfactory to the issuer, the shares are transferred in a transaction
which is exempt from the registration requirements of such laws.”;
(e)
Purchaser is aware that no federal or state agency has made any recommendation
or endorsement of the Purchased Shares or any finding or determination as to
the
fairness of the investment in such Purchased Shares; (f) neither the Corporation
nor any person acting on its behalf has offered the Purchased Shares to it
by
means of general or public solicitation or general or public advertising, such
as by newspaper or magazine advertisements, by broadcast media, or at any
seminar or meeting whose attendees were solicited by such means; (g) Purchaser
hereby acknowledges and represents that no commission or other remuneration
has
been paid or given directly or indirectly in connection with the offer or sale
of the Purchased Shares to him; (h) it acknowledges that no public or secondary
market exists or may ever exist for the Purchased Shares and, accordingly,
it
may not be able to readily liquidate its investment in the Purchased Shares;
and
(i) it acknowledges that the Purchased Shares are a speculative investment
and
represents that it can bear the economic risks of such an investment for an
indefinite period of time.
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4.4 Indemnification.
Each
party hereby agrees to indemnify the other and hold harmless each other and
all
of its affiliates, attorneys, accountants, employees, officers, directors,
shareholders and agents from any liability, claims, costs, damages, losses
or
expenses incurred or sustained by them as a result of either party’s
representations and warranties being untrue or inaccurate, or because of a
breach of this Agreement by either party.
4.5 Brokers.
Purchaser has not retained or utilized the services of any broker, finder,
intermediary, or paid or agreed to pay any fee or commission to any person
or
entity for or on account of the transactions contemplated hereby, or had any
communications with any person or entity thereto which would obligate Purchaser
or the Corporation to pay any such fees or commissions.
5. Survival
of Representations and Warranties.
All
representations and warranties of the parties contained in this Agreement shall
survive the execution and delivery of this Agreement.
6. Amendment
and Modification.
Subject
to applicable law, this Agreement may be amended, modified and supplemented
in
any and all respects, only by written agreement signed by Purchaser
and the
Corporation.
7. Notices.
All
notices, consents and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand or by Federal
Express or a similar overnight courier to the party for whom intended, at the
address for such party set forth below (or at such other address for a party
as
shall be specified by like notice, provided,
however,
that
any notice of change of address shall be effective only upon
receipt):
if
to
Purchaser:
Xxxxxxxx
X. Xxxxxx, Xx.
0000
Xxxxxx Xxxxx Xxxxx
Xx.
Xxxxx, XX 00000
if
to the
Corporation:
EAU
Technologies, Inc.
0000
Xxxx
Xxxxxxxxxxxxx Xxxx., Xxxxx X
Xxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxx X. Xxxxxxx, President and CEO
The
parties hereto agree that notices or other communications that are sent in
accordance herewith (i) by personal delivery will be deemed received on the
day
sent or on the first business day thereafter if not sent on a business day,
(ii)
by overnight delivery, will be deemed received on the first business day
immediately following the date sent, and (iii) by U.S. mail, will be deemed
received three (3) business days immediately following the date
sent.
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8. Counterparts.
This
Agreement may be executed in multiple counterparts, all of which shall together
be considered one and the same agreement.
9. Entire
Agreement; Third Party Beneficiaries.
This
Agreement and any exhibits thereto constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede and terminate
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof, and is not intended to confer
upon any person other than the parties hereto any rights or remedies
hereunder.
10. Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction or other authority to be invalid, void, unenforceable
or
against its regulatory policy, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
11. Governing
Law.
This
Agreement and the rights and obligations of the parties under this Agreement
shall be governed by, and construed and interpreted in accordance with, the
law
of the State of Georgia.
12. Assignment.
Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties. Subject
to
the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective permitted
successors and assigns.
13. Expenses.
Except
as otherwise provided herein, all costs and expenses incurred in connection
with
this Agreement and the consummation of the transactions contemplated herein
shall be paid by the party incurring such costs and expenses, whether or not
the
transactions contemplated hereby are consummated.
14. Headings.
Headings of the articles and sections of this Agreement are for convenience
of
the parties only, and shall be given no substantive or interpretative effect
whatsoever.
15. Waivers.
Except
as otherwise provided in this Agreement, any failure of any of the parties
to
comply with any obligation, covenant, agreement or condition herein may be
waived by the party or parties entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, 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.
[Signatures
begin on following page.]
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IN
WITNESS WHEREOF,
the
parties have executed and delivered this Stock Purchase Agreement on the date
first written above.
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CORPORATION:
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| By: | /s/ Xxxx X. Xxxxxxx | |
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Xxxx X. Xxxxxxx |
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| Chief Executive Officer | ||
| PURCHASER: | ||
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| /s/ Xxxxxxxx X. Xxxxxx, Xx. | ||
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Xxxxxxxx X. Xxxxxx, Xx. |
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