EXHIBIT 10.3
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") dated as of July 23, 2002,
is by and among Intrac, Inc., a Nevada corporation (the "Company"); Xxxxx Xxxxxx
and Xxxxxx Xxxxx (jointly, the "Sellers") and Rosebury Investments, Ltd., as
agent for each of the purchasers listed on Schedule A to this Agreement
(individually, a "Purchaser" and collectively, the "Purchasers").
RECITALS:
A. The Purchasers desire to purchase shares of the Company's Series A
Preferred Stock, par value $0.001 per share (the "Preferred Stock"), from the
Sellers on the terms and conditions set forth herein.
B. The Sellers desire to sell the shares of Preferred Stock pursuant to
this Agreement on the terms and subject to the conditions set forth herein.
C. The Board of Directors of the Company is in favor of the acquisition
of securities by the Purchasers and the related change in control which it
believes will be beneficial to the Company.
D. As a condition to the consummation of the acquisition of the
Preferred Stock and Debentures, the Purchasers require that the Sellers and the
Company make certain representations, warranties and covenants with respect to,
among other things, the Company, its securities and its assets and liabilities.
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, the
Sellers and the Purchasers hereby agree as follows:
1. Purchase of Shares. The Sellers hereby sell, convey and transfer to
the Purchasers and the Purchasers hereby purchase from the Sellers the number of
shares of Preferred Stock set forth beside the Purchaser's names on Schedule A
hereto (the "Shares") in consideration for Seller's receipt of, in the
aggregate, 300,000 shares of common stock of the Company (the "Purchase Price"),
payable as more specifically described in Section 6(b).
2. Closing. Subject to the terms of this Agreement, a closing shall
occur on or before July 23, 2002, or on such other date as the parties shall,
mutually agree (the "Closing").
3. Deliveries by the Parties. In connection with the Closing:
(a) Upon Closing, the Sellers shall deliver certificates
representing the Shares registered in the name of the Purchasers or, if not
registered in the name of the Purchasers, accompanied by stock powers
transferring such shares to the Purchasers.
(b) On the Issue Date (as defined herein), the Company will
arrange to have certificates representing the Purchase Price delivered to the
Sellers.
4. Representations of the Purchasers. Each Purchaser acknowledges,
represents and warrants as of the date hereof:
(a) Receipt of Corporate Information. All requested publicly
available documents, records and books pertaining to the Company and the offer
and sale hereby of the Shares, including, without limitation, the Company's
reports filed with the U.S. Securities and Exchange Commission ("SEC") pursuant
to the Securities Exchange Act of 1934 (the `Exchange Act') (the reports and
statements are collectively referred to herein as the "SEC Documents"), have
been delivered to the Purchaser and/or the Purchaser's advisors, and all of the
Purchaser's questions and requests for information have been answered to the
Purchaser's satisfaction.
(b) Risks. The Purchaser acknowledges and understands that the
purchase of the Shares involves a high degree of risk and is suitable only for
persons of adequate financial means who have no need for liquidity in this
investment in that (i) the Purchaser may not be able to liquidate the investment
in the event of an emergency; (ii) transferability is extremely limited; and
(iii) in the event of a disposition, the Purchaser could sustain a complete loss
of its entire investment. The Purchaser is sufficiently experienced in financial
and business matters to be capable of evaluating the merits and risks of an
investment in the Company; has evaluated such merits and risks, including risks
particular to the Purchaser's situation; and the Purchaser has determined that
this investment is suitable for the Purchaser. The Purchaser has adequate
financial resources and can bear a complete loss of the Purchaser's investment.
(c) Investment Intent. The Shares being purchased hereunder are
being acquired for the Purchaser's own account with no intention of distributing
such Shares to others. The Purchaser has no contract, undertaking, agreement or
arrangement with any person to sell, transfer or otherwise distribute to any
person or to have any person sell, transfer or otherwise distribute for the
Purchaser the Shares being purchased hereunder or any interest therein. The
Purchaser is presently not engaged, nor does the Purchaser plan to engage within
the presently foreseeable future, in any discussion with any person regarding
such a sale, transfer or other distribution of the Shares being purchased
hereunder or any interest therein.
(d) Compliance with Federal and State Securities Laws. The
Purchaser understands that the Shares being offered and sold hereunder have not
been registered under the Securities Act. The Purchaser understands that the
Shares being offered and sold hereunder must be held indefinitely unless the
sale or other transfer thereof is subsequently registered under the Securities
Act or an exemption from such registration is available. Moreover, the Purchaser
understands that its right to transfer the Shares being purchased hereunder will
be subject to certain restrictions, which include restrictions against transfer
under the Securities Act and applicable state securities laws. In addition to
such restrictions, the Purchaser realizes that it may not be able to sell or
dispose of the Shares being purchased hereunder, as there may be no public or
other market for them. The Purchaser understands that certificates evidencing
the Shares being purchased hereunder shall bear a legend substantially as
follows:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or any applicable state
law. They may not be offered for sale, sold, transferred or pledged
without (1) registration Xxxxxx the Securities Act of 1933, as
amended, and any applicable state law, or (2) an opinion (reasonably
satisfactory to the Company) of counsel that registration is not
required.
(e) Corporate Authority and Enforceability. The Purchaser (1) has the
requisite corporate power and authority to execute, deliver and perform this
Agreement and to incur the obligations herein and therein and (2) has been
authorized by all necessary corporate action to execute, deliver and perform
this Agreement and to consummate the transaction contemplated hereby. This
Agreement is a valid and binding obligation of the Purchase enforceable in
accordance with its tern s, except as enforceability is limited by (A) any
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer, or similar law affecting creditors' rights generally, or (B) generally
principles of equity, whether considered in a proceeding in equity or at law; or
(C) applicable laws and court decisions which may limit or render unenforceable
certain terms and provisions contained therein, but which in our opinion do not
substantially interfere with the practical realization of the benefits thereof,
except of the economic consequences of any procedural delay which may be imposed
by, relate to or results from such laws and court decisions.
(f) Noncontravention. This Agreement constitutes a valid and legally
binding obligation of the Purchaser and neither the execution of this Agreement,
nor the consummation of the transactions contemplated hereby, will constitute a
violation of or default under, or conflict with, any judgment, decree, statute
or regulation of any governmental authority applicable to the Purchaser or any
contract, commitment, agreement or restriction of any kind to which the
Purchaser is a party or by which its assets are bound. The execution and
delivery of this Agreement does not, and the consummation of the transactions
described herein will not, violate applicable law, or any mortgage, lien,
agreement, indenture, lease or understanding (whether oral or written) of any
kind outstanding relative to the Purchaser.
(g) Approval. No approval, authorization, consent, order or other
action of, or filing with, any person, firm or corporation or any court,
administrative agency or other governmental authority is required in connection
with the execution and delivery of this Agreement by the Purchaser or the
consummation of the transactions described herein except pursuant to the
Securities Act.
(h) Brokers and Finders. The Purchaser has not retained any investment
banker, broker or finder in connection with the purchase of the Shares.
5. Representation and Warranties of the Company and the Sellers. Each of
the Company and each of the Sellers, jointly and severally, hereby represents
and warrants to the Purchasers as follows:
(a) Corporate Organization. The Company (1) is a corporation duly
organized, validly existing and in good standing under tile laws of the
jurisdiction of its incorporation, (2) has the corporate power to carry on its
business as now conducted, except where such failure would not have a material
adverse effect on the Company, its operations or financial condition (a
"Material Adverse Effect"`), and (3) is duly qualified and in good standing as a
foreign corporation authorized to do business in every jurisdiction where such
authorization is required, except where such failure would not have a Material
Adverse Effect.
(b) Corporate Authority and Enforceability. The Company (1) has the
requisite corporate power and authority to execute, deliver and perform this
Agreement and to incur the obligations herein and therein and (2) has been
authorized by all necessary corporate action to execute, deliver and perform
this Agreement and to consummate the transaction contemplated hereby. This
Agreement is a valid and binding obligation of the Company and each of the
Sellers enforceable in accordance with its terms, except as enforceability is
limited by (A) any applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, or similar law affecting creditors' rights
generally, or (B) general principles of equity, whether considered in a
proceeding in equity or at law; or (C) applicable laws and court decisions which
may limit or render unenforceable certain ten-t-is and provisions contained
therein, but which in our opinion do not substantially interfere with the
practical realization of the benefits thereof, except for the economic
consequences of any procedural delay which may be imposed by, relate to or
result from such laws and court decisions.
(c) Capitalization. Immediately prior to the Closing. the authorized
capital of the Company consisted of 500,000,000 shares of common stock, par
value $.001 per share (the "Common Stock"), of which 99,988 shares of Common
Stock are outstanding, and 5,000,000 shares of Preferred Stock, par value $.001
par value ("Preferred Stock") of which 1,000,000 shares are designated as Series
A Convertible Preferred Stock and 200,000 shares of which are issued and
outstanding. All outstanding shares were issued in compliance with all
applicable Federal and state securities laws. The Company has also issued and
outstanding the Debentures with a face value of $295,874. Except as contemplated
by this Agreement and pursuant to the Series A Preferred Stock and the
Debentures, there are (i) no outstanding subscriptions, warrants, options,
conversion privileges or other rights or agreements to purchase or otherwise
-acquire or issue any shares of capital stock of the Company (or shares reserved
for such purpose), and (ii) no preemptive rights or lights of first refusal with
respect to the issuance of additional shares of capital stock of the Company,
including the Shares. No shares of Common Stock are subject to any shareholders'
agreement, voting trust agreement or similar arrangement or understanding. The
Company has no outstanding bonds, debentures, note or other obligations, the
holders of which have the right to vote (or which are convertible into or
exercisable for securities having the right to vote) with the shareholders of
the Company on any matter.
(d) Validity of Shares. Each of the issuances of the Company's
securities has been duly authorized, and the securities were validly issued and
are fully paid and nonassessable.
(e) Brokers and-Finders. Neither the Company nor any Seller has
retained any investment banker, broker or finder in connection with the sale of
the Shares.
(f) Operating Business Subsidiaries. The Company currently has no
operating business, no assets and, with the exception of the Debentures, no
liabilities. As of the Closing, the Company has no subsidiaries and does not
otherwise directly or indirectly control any other business entity.
(g) No Conflict; Required Filings and Consents.
(i) The execution and delivery of this Agreement by the Company and
the Sellers does not, and the consummation by the Company of the transactions
contemplated hereby will not, (1) conflict with or violate the Articles of
Incorporation or By-Laws or equivalent organizational documents of the Company,
(2) conflict with or violate any Jaw, rule, regulation, order, judgment or
decree ("Legal Requirement") applicable to the Company or by which any property
or asset of the Company is bound or affected, or (3) result in any
breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, result in the loss of a material
benefit -under, or give to others any right of purchase or sale, or any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a hen or other encumbrance an any property or asset of
the Company pursuant to, any Company Material Contract (as defined below),
except, in the case of clauses (2) and (3), for any such conflicts, violations,
breaches, defaults or other occurrences which would not have a Material Adverse
Effect.
(ii) The execution and delivery of this Agreement by the Company
and the Sellers does not, and the performance of this Agreement and the
consummation by the Company and the Sellers of the transactions contemplated
hereby will not, require any consent, approval, authorization or permit of, or
filing with or notification to any Governmental Body (as defined below) except
for applicable requirements, if any, of the Exchange Act, or any state
securities or "blue sky" laws ("`Blue Sky Laws'). For purposes of this Agreement
"Governmental Body" shall mean any. (1) nation, state, commonwealth, province,
territory, county, municipality, district or other jurisdiction of any nature;
(2) federal, state, local, municipal, foreign or other government; or (3)
governmental or quasi-governmental authority of any nature (including any
governmental division, department, agency, commission, instrumentality,
official, organization, unit, body or entity and any court or other tribunal).
(h) Compliance. The Company is not in conflict with, or in default or
violation of (i) any Legal Requirement applicable to the Company or by which any
property or asset of the Company is bound or affected, or (il) any note, bond,
mortgage, indenture, contract agreement, lease, license, permit, franchise or
other instrument or obligation to which the Company is a party or by which the
Company or any property or asset of the Company is bound or affected, which
violation or default could reasonably be expected to have a Material Adverse
Effect. The Company has not received any notice or other communication from any
Governmental Body regarding any actual or possible violation of, or failure to
comply with, any Legal Requirement which violation or failure to comply could
reasonably be expected to have a Material Adverse Effect. The Company has
obtained all licenses, permits, and other authorizations and has taken all
actions required by applicable law or governmental regulations in connection
with its business as now conducted, except where such failure could not
reasonably expected to have a Material Adverse Effect.
(i) Financial Statements. Each of the balance sheets of the Company
disclosed in the SEC Documents fairly presents, in all material respects, the
financial position of the Company as of its date, and each of the statements of
income, retained earnings and cash flows of the Company presented to the
Purchasers (including any related notes and schedules) fairly presents, in all
material respects, the results of operations, retained earnings or cash flows,
as the case may be, of the Company for the periods set forth therein (subject,
in the case of unaudited statements, to normal year-end audit adjustments which
would not be material in amount or effect), in each case in accordance with
generally accepted accounting principles consistently applied during the period
involved, except as may be noted therein.
(j) Litigation. There are no claims, actions, suits, investigations,
inquiries or proceedings pending against the Company or, to the knowledge of the
Company and the Sellers, threatened against the Company, or any officer,
director, employee or agent thereof in his or her capacity as such, at law or in
equity, or before or by any court, tribunal, arbitrator, mediator or any federal
or state commission, board, bureau, agency or instrumentality, which if
adversely determined could reasonably be expected to have a Material Adverse
Effect.
(k) Absence of Certain Changes. As of the Closing, there has not been
(i) any event, occurrence, fact, condition, change, development or effect that
would reasonably be expected to have a Material Adverse Effect; (ii) any
declaration, payment or setting aside for payment of any dividend (except to the
Company) or other distribution or any redemption, purchase or other acquisition
of any shares of capital stock or securities of the Company; (iii) any return of
any capital or other distribution of assets to shareholders of the Company, (iv)
any acquisition (by merger, consolidation, acquisition of stock or assets or
otherwise) of any person or business; (v) any other action or agreement `or
undertaking by the Company that, if taken or done on or after the Closing would
reasonably be expected to have a Material Adverse Effect or (vi) any material
change in its accounting principles, practices or methods. There is no fact
known to the Company or the Sellers that has not been publicly disclosed in
writing by the Sellers or the Company to the Purchasers which could reasonably
be expected to have a Material Adverse Effect on the Company.
(l) Taxes. The Company has filed all material tax returns and reports
required to be filed by it, or requests for extensions to file such returns or
reports have been timely filed and granted and have not expired, and all tax
returns and reports are complete and accurate in all respects. As used in this
Section, "taxes" shall
include all Federal, state, local and foreign income, franchise, property,
sales, use, excise and other taxes, including obligations for withholding taxes
from payments due or made to any other person and any interest, penalties or
additions to tax.
(m) Disclosure. No representation or warranty of the Company and the
Sellers herein contains or will contain any untrue statement of a material fact
or omits or will omit to state. a material fact necessary in order to make the
statements contained herein or therein not misleading. The information furnished
by the Sellers and the Company to Purchasers for purpose of or in connection
with this Agreement or any transaction contemplated hereby, does not contain any
untrue statement of material fact or omit to state a material fact necessary in
order to make the statements contained therein, in light of the circumstances
under which they were made, not misleading.
6. Post Closing Covenants.
(a) Reports and Information. The Sellers shall cooperate with the
Company and the Purchasers in supplying such information as may be reasonably
requested to complete and file any information reporting forms presently or
hereafter required by the SEC (i) as a condition to the availability of an
exemption, presently existing or hereafter adopted, from the Securities Act for
the sale of any of the Shares, (ii) in connection with the Company's filing
obligations with the SEC under Section 13 or Section 15(d) of the Exchange Act,
or (iii) for any other reason.
(b) The Shares and Restrictions on Resale. The Shares are issuable by
the Purchasers upon the conversion of the Debentures. The Debentures will be
converted and the Shares will be issued on the earlier of (i) consummation of a
merger between the Company and an operating entity to be identified by the
Purchasers (the "Merger") and (ii) 90 days from the date of the Closing (the
"Issue Date). With respect to the Shares, Sellers agree to the following
restrictions on resale. With respect to 100,000 Shares, the Sellers will agree
that for the first eight weeks from the Issue Date, on any given day, the
Sellers will sell only such number of Shares that does not exceed 2% of the
average daily trading volume for the previous day. Moreover, the Sellers will
not sell any shares unless the average daily trading volume is greater than
500,000. After the first eight weeks and until three months from the Issue Date,
Sellers will agree to sell only such number of shares that does not exceed 2% of
the average daily trading volume for the previous day, without any minimum
limitation. Thereafter, there will be no volume limitations on Sellers' ability
to sell. Sellers will agree that after the registration statement has been
declared effective. during any 30 day period, Sellers will sell only such number
of shares that does not exceed 2% of the average monthly trading volume for the
previous day.
7. Registration Rights.
(a) Piggy-Back Registration Rights. With respect to 200,000 of the
Shares, if any time following the Closing the Company shall prepare and file one
or more registration statements under the Securities Act, the Company will
include in such registration statement such information as is required to
register the re-sale of 200,000 Shares owned by the Sellers (the "Registrable
Securities"). In the event of such a registration, the Company shall furnish the
Sellers with not less than 20 days' written notice prior to the proposed date of
filing of such registration statement. The Company shall bear all expenses,
incurred in the preparation and filing of such registration statements or
post-effective amendment (and related state registrations, to the extent
permitted by applicable law) and the furnishing of copies of the preliminary and
final prospectus thereof to the Sellers, other than expenses of the Sellers'
counsel., and other than sales commissions or transfer taxes incurred by the
then Purchasers with respect to the sale of such securities.
(b) Demand Registration Rights. Notwithstanding the foregoing, if a
registration statement has not been filed six months from the Issue Date,
Sellers will have demand registration rights and may demand that a registration
statement be filed within 30 days of the date of such demand. The Company shall
bear all expenses and use its best efforts to respond to any comments of the SEC
to declare the registration statement effective.
8. Indemnification.
(a) Indemnification by the Company and the Sellers. Each of the Company
and each of the Sellers, jointly and severally, hereby agrees to indemnify and
hold harmless the Purchasers and any director, officer or employee of the
Purchasers against all claims, losses and damages resulting from any and all
legal or administrative proceedings, including without limitation, reasonable
attorneys' fees and expenses incurred in connection therewith (collectively,
"Loss'), arising out of, based upon or resulting from a material breach by the
Company or the Sellers of any representation or warranty of the Company or the
Sellers contained herein or the failure of the Company to perform any covenant
made herein.
(b) Indemnification by the Purchasers. The Purchasers, jointly and
severally, agree to indemnify and hold the Company and its subsidiaries,
affiliates, directors, officers, employees and agents (collectively, the
"Company Indemnitees") and the Sellers harmless from, and to reimburse each of
the Company Indemnitees and the Sellers for, on an after-tax basis, any Loss
from (i) any material inaccuracy in or any breach of any representation or
warranty of the Purchasers contained in this Agreement, certificate or other
written instrument or document delivered by the Purchasers pursuant hereto or
(ii) any breach of any of the covenants, agreements or undertakings of the
Purchasers contained in or made pursuant to this Agreement.
(c) Procedure for Indemnification. As soon as reasonably practicable
after receipt by a party indemnified pursuant to this Agreement (an "Indemnified
Party') of notice of any Loss in respect of which a party providing
indemnification (an "Indemnifying Party") may be liable under this Section, the
Indemnified Party shall give notice thereof to the Indemnifying Party. The
Indemnified Party may, at its option, claim indemnity under this Section as soon
as a claim has been threatened by a third party, regardless of whether an actual
Loss has been suffered, so long as counsel for such Indemnified Party shall in
good faith determine that such claim is not frivolous and that such Indemnified
Party may be liable or otherwise incur a Loss as a result thereof and shall give
notice of such determination to the Indemnifying Party. The Indemnified Party
shall permit the Indemnifying Party, at the Indemnifying Party's option and
expense, to assume the defense of any such claim by counsel mutually and
reasonably satisfactory to the Indemnifying Party and the Indemnified Party, and
to settle or otherwise dispose of the same; provided however that the
Indemnified Party may at times participate in such defense at the Indemnified
Party `s expense; and provided, further that the Indemnifying Party shall not,
in defense of any such claim, consent to the entry of any judgment or enter into
any settlement (1) that does not include as an unconditional term thereof of the
giving by the claimant or plaintiff in question to the Indemnified Party and its
subsidiaries of a release of all liabilities in respect of such claims, or (2)
that provides for injunctive or other non-monetary relief affecting the
Indemnified Party. If the Indemnifying Party does not promptly assume the
defense of such claim irrespective of whether such inability is due to the
inability of the Indemnified Party and the Indemnifying Party to mutually agree
as to the choice of counsel, or if, under applicable standards of professional
conduct, a conflict or potential conflicts of interest exists between the
Indemnified Party and the Indemnifying Party, then the Indemnified Party may
assume such defense and be entitled to indemnification and prompt reimbursement
-from the Indemnifying Party for its costs and expenses incurred in connection
therewith, including without limitation, reasonable attorneys' fees and
expenses. Such fees and expenses shall be reimbursed to the Indemnified Party as
soon as practicable after submission of invoices to the Indemnifying Party.
9. Notices. All notices, reports and other communications to the
Purchasers of the Company hereunder shall be in writing, shall refer
specifically to this Agreement and shall be hand delivered or sent by facsimile
transmission or by registered mail or certified mail, return receipt requested,
postage prepaid, in each case to the respective persons and addresses specified
below (or to such other persons or addresses as may be specified in writing to
the other party):
If to the Purchasers, to:
Xxxxx Xxxxxxxxx
c/o Que Management, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
With copies to:
Xxxxx X. Xxxxxxx, Esquire
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
If to the Sellers, to:
Xxxxx Xxxxxx
Xxxxxx Xxxxx
000 Xxxx 00x Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
With copies to:
Xxxxx Nussbaurn, Esquire
Loeb & Loeb LLP
000 Xxxx Xxxxxx.
Xxx Xxxx, Xxx Xxxx 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
If to the Company, to:
Intrac, Inc.
000 Xxxx 00x Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
With copies to: Xxxxx Xxxxxxxx, Esquire
Loeb & Loeb LLP
000 Xxxx Xxxxxx.
XxxXxxx,XxxXxxx 00000-0000
Phone No-: (000) 000-0000
Fax No.: (000) 000-0000
Any notice or communication given in conformity with this Section shall be
deemed to be effective when received by the addressee if delivered by hand or
overnight courier and three days after mailing, if mailed with such mailing to
be accompanied by a simultaneous facsimile.
10. No Implied Waivers, Rights Cumulative. No failure on the part of the
Purchasers or the Company to exercise and no delay in exercising any right,
power, remedy or privilege under this Agreement or provided by statute or at law
or in equity or otherwise, including, without limitation, the right or power to
terminate this Agreement, shall impair, prejudice or constitute a waiver of any
such right, power, remedy or privilege or be construed as a waiver of any breach
of this Agreement or as an acquiescence therein, nor shall any single or partial
exercise of any such right, power, remedy or privilege preclude any other or
further exercise thereof or the exercise of any other right, power, remedy or
privilege.
11. Publicity. The parties agree that no publicity, release or other
public announcement concerning the transactions contemplated by this Agreement
shall be issued by either party without the advance approval of both the form
and substance of the same by the other party and its counsel, which approval, in
the case of any publicity, release or other public announcement required by
applicable law, shall not be unreasonably withhold or delayed.
12. Amendments. No amendment, modification, waiver, termination or
discharge of any provision of this Agreement, nor consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
specifically identifying this Agreement and the provision(s) intended to be
amended, modified, waived, terminated or discharged and signed by the Purchasers
and the Company, and each amendment, modification, waiver, termination or
discharge shall be effective only in the specific instance and for the specific
purpose for which given. No provision of this Agreement shall be varied,
contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by the Purchasers and the Company.
13. Survival of Representations and Warranties. Notwithstanding any
right of either party to fully investigate the affairs of the other, each party
has the right to rely fully upon the representations, warranties,
covenants and agreements of the other party contained in this Agreement or in
any documents delivered pursuant to this Agreement. All such representations and
warranties of the Company and the Purchasers shall survive the execution and
delivery of this Agreement and the Closing hereunder.
14. Integration. This Agreement represents the entire understanding and
agreement of the parties with respect to the subject matter hereof, No other
representations, statements or warranties have been made, other than what is
written herein.
15. Attorneys' Fees. Except as otherwise set forth herein, all costs and
expenses, including reasonable attorneys' fees, incurred in the enforcement of
this Agreement, shall be paid to the prevailing party by the non-prevailing
party, upon demand.
16. Further Instruments and Actions. Each party shall deliver such
further instruments and take such further action as may be reasonably requested
by any other in order to carry out the intents and purposes of this Agreement.
17. Construction. The parties hereto and their respective legal counsel
participated in the preparation of this Agreement; therefore, this Agreement
shall be construed neither against nor in favor of any of the parties hereto,
but rather in accordance with the fair meaning thereof.
18. Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
19. Governing Law. This Agreement shall be enforced, governed and
construed in all respects in accordance with the internal laws, and not the laws
pertaining to conflicts or choice of laws, of the State of New York.
20. Counterparts. This Agreement may be executed in one or more
counterparts, all of which may be considered one and the same agreement and each
of which shall be deemed an original. Notwithstanding anything contained herein
to the contrary, it is expressly agreed that the Closing may occur with
facsimile signatures on all documents (with the exception of stock powers);
provided original signature pages will follow within five business days of the
Closing
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned have executed this Securities
Purchase Agreement as of the date first written above.
THE COMPANY:
INTRAC, INC., a Nevada corporation
By:
THE SELLERS:
Xxxxx Xxxxxx
Xxxxxx Xxxxx
THE PURCHASERS:
ROSEBURY INVESTMENTS, LTD., Agent
By:
Name:
Title:
SCHEDULE A
List of Purchasers
Purchaser No. of Shares Purchased
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