OFFSHORE STOCK PURCHASE AGREEMENT
EXHIBIT
10.1
These
securities are subject to restrictions on transferability and resale and may not
be transferred or resold except as permitted under the Act, an applicable state
securities laws, pursuant to registration or exemption
therefrom. Investors should be aware that they will be required to
bear the financial risks of this investment for an indefinite period of
time. All offers and sales of the herein-described securities by
non-U.S. persons before the expiration of a period commencing on the date of the
closing of this offering and ending one year thereafter shall only be made in
compliance with Regulation S, pursuant to registration under the Act, or
pursuant to an exemption from registration, and all offers and sales after the
expiration of the one-year period shall be made only pursuant to registration or
an exemption from registration. Hedging transactions involving these
securities may not be conducted unless in compliance with the Act.
This
Offshore Stock Purchase Agreement (the “Agreement”) is entered into this 15th day of
July, 2008 (the “Effective Date”), by and between Information Systems
Associates, Inc., a Florida corporation (“ISA”) and Xxxxx X. Xxxxx, a subject of
the United Kingdom.
WHEREAS,
XXXXX desires to purchase two million (2,000,000) shares of restricted common
stock of ISA (the “Shares”); and
WHEREAS,
ISA agrees to deliver the Shares for the Consideration (as defined below) to be
paid by Xxxxx, subject to the terms and conditions set forth below.
NOW,
THEREFORE, for and in consideration of the mutual promises herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
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1.
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Purchase and
Sale. On the basis of the representations and
warranties herein contained, subject to the terms and conditions set forth
herein, Xxxxx hereby agrees to purchase the Shares at a purchase price of
twenty-five cents (US$0.25) per share, and ISA hereby agrees to sell the
Shares to Xxxxx for such
Consideration.
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2.
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Payment of Purchase
Price. Xxxxx shall pay the purchase price to ISA as
follows: one hundred thousand dollars (US $100,000) at closing
along with a signed promissory note in the form attached hereto (the
“Note”) for the balance of four hundred thousand dollars (US $400,000)
payable in installments of one hundred thousand dollars (US $100,000) on
the first day of each month beginning September 1, 2008 and ending
December 1, 2008.
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3.
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Closing. The
closing of the purchase and sale contemplated by this Agreement (the
“Closing”) shall occur upon the transfer of the Consideration to ISA in
accordance with paragraph 2 at 0000 XX 00xx
Xxxxxx, Xxxxx X, Xxxx Xxxx, Xxxxxxx 00000 (the “Corporate
Address”).
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4.
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Delivery of the Shares
to Xxxxx. ISA shall deliver to Xxxxx one-fifth of
the Shares (400,000) within 14 days of receiving each payment of $100,000
at Closing under the Note. If Xxxxx defaults in making any
payments, ISA shall not be obligated to deliver any additional shares and
shall have the option, upon notice to Xxxxx of terminating this
Agreement.
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5.
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Delivery of Other
Necessary Documents. From time to time after the
Closing, upon the reasonable request of any party, the party to whom the
request is made shall deliver such other and further documents,
instruments, and/or certificates as may be necessary to more fully vest in
the requesting party the Consideration or the Shares as provided for in
this Agreement, or to enable the requesting party to obtain the rights and
benefits contemplated by this
Agreement.
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6.
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Private
Offering. Xxxxx and ISA both understand and agree that
the purchase and sale of securities contemplated herein constitutes a
private, arms-length transaction between a willing seller and willing
buyer without the use or reliance upon a broker, distributor or securities
underwriter.
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A.
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Purchase for
Investment. Neither Xxxxx nor ISA are underwriters of,
or dealers in, the securities to be sold and exchanged
hereunder.
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B.
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Investment Risk.
Because of ISA’s financial position and other factors as disclosed
in ISA’s business plan (which Xxxxx represents he has received and
reviewed), the transaction contemplated by this Agreement may
involve a high degree of financial risk, including the risk that Xxxxx may
lose his entire investment. Xxxxx further represents that he
has undertaken an independent evaluation of the risks associated with his
purchase of the Shares and understand those risks and is willing to accept
the risk that he may be required to bear the financial risks of this
investment for an indefinite period of
time.
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C.
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Access to
Information. Xxxxx has been afforded the
opportunity to discuss the transaction with legal and accounting
professionals and to examine and evaluate the financial impact of the sale
contemplated herein. Xxxxx acknowledges that he has been furnished with
the information required to conform with the provisions of subparagraph
(a)(5) of Rule 15c2-11 of the Securities and Exchange
Commission.
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5.
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Representations and
Warranties of Xxxxx: Xxxxx hereby covenants, represents and
warrants to ISA the following:
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A.
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Status. Xxxxx
is a individual subject and resident of the United
Kingdom.
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B.
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No Third Party Consents
Necessary. No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other
person is required to be obtained or made by Xxxxx in connection with the
execution, delivery, or performance of this Agreement or the transfer of
the Shares, or if any such is required, Xxxxx will have or will obtain the
same prior to Closing.
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C.
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Litigation. Xxxxx
is not a defendant against whom a claim has been made or a judgment
rendered in any litigation or proceedings before any local, state, or
federal government, including but not limited to the United States, or any
department, board, body, or agency
thereof.
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D.
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Authority. This
Agreement has been duly executed by Xxxxx, and the execution and
performance of this Agreement will not violate, or result in a breach of,
or constitute a default in, any agreement, instrument, judgment, order, or
decree to which Xxxxx is a party or to which the Consideration is
subject.
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E.
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Offshore Transaction.
Xxxxx represents and warrants to ISA as follows: (i) Xxxxx is not a “U.S.
person” as that term is defined in Rule 902 of Regulation S; (ii) Xxxxx is
not, and on the Closing date will not be, an affiliate of ISA; (iii) at
the execution of this Agreement, as well as the time this transaction is
or was due, Xxxxx was outside the United States, and no offer to purchase
the Shares was made in the United States; (iv) Xxxxx agrees that all
offers and sales of the Shares shall not be made to U.S. persons unless
the Shares are registered or a valid exemption from registration can be
relied on under applicable U.S. state and federal securities laws; (v)
Xxxxx is not a distributor or dealer; (vi) the transactions contemplated
hereby have not been and will not be made on behalf of any U.S. person or
pre-arranged by Xxxxx with a purchaser located in the United States or a
purchaser which is a U.S. person, and such transactions are not and will
not be part of a plan or scheme to evade the registration provisions of
the Act; (vii) all offering documents received by Xxxxx include statements
to the effect that the Shares have not been registered under the
Securities Act of 1933 and may not be offered or sold in the United States
or to U.S. Persons (other than distributors as defined in Regulation S)
during the Restricted Period unless the Shares are registered under the
Securities Act of 1933 or an exemption from registration is
available.
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F.
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Accredited
Investor. Xxxxx is an accredited investor as that term
is defined in Rule 501(a) of Regulation D promulgated under the
Act. Xxxxx further represents and warrants that the information
as disclosed in “Exhibit A” attached hereto is true and
correct.
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G.
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Beneficial
Owner. Xxxxx is purchasing stock for his own account or
for the account of beneficiaries for whom Xxxxx has full investment
discretion with respect to stock and whom Xxxxx has full authority to
bind, so that each such beneficiary is bound hereby as if such beneficiary
were a direct signatory hereunder, and all representations, warranties and
agreements herein were made directly by such
beneficiary.
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H.
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Directed Selling
Efforts. Xxxxx will not engage in any activity for the
purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States for any of the Shares sold
hereunder. To the best of its knowledge, neither Xxxxx nor any
person acting for Xxxxx has conducted any “directed selling efforts” as
that term is defined in Rule 902 of Regulation
S.
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I.
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Independent Investigation;
Access. Xxxxx, in electing to purchase the Shares
herein, has relied solely upon independent investigation made by him and
his representatives. Xxxxx has been given no oral or written
representation or warranty from ISA other than as set forth in this
Agreement. Xxxxx and his representatives, if any, have, prior
to any sale to it, been given access and the opportunity to examine all
material books and records of ISA, all material contracts and documents
relating to ISA and this offering and an opportunity to ask questions of,
and to receive answers from, ISA or any officer of ISA acting on his
behalf concerning ISA and the terms and conditions of this offering. Xxxxx
and his advisors, if any, have been furnished with access to all publicly
available materials relating to the business, finances and operations of
ISA and materials relating to the offer and sale of the Shares which have
been requested. Xxxxx and his advisors, if any, have received complete and
satisfactory answers to any such
inquiries.
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J.
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No Government Recommendation
or Approval. Xxxxx understands that no United States federal or
state agency, or similar agency of any other country, has passed upon or
made any recommendation or endorsement of the Shares, or this
transaction.
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K.
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No Formation or Membership in
“Group.” Xxxxx is not part of a “group” as that term is
defined under the Act. Xxxxx is not, and does not intend to
become, included with two or more persons acting as a partnership,
syndicate, or other group for the purpose of acquiring, holding or
disposing of securities of the
Company.
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L.
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Hedging
Transactions. Xxxxx hereby agrees not to engage in any
hedging transactions involving the securities described herein unless in
compliance with the Act and Regulation S promulgated
thereunder.
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The
foregoing representations and warranties are true and accurate as of the date
hereof, shall be true and accurate as of the date of the acceptance by ISA of
Xxxxx’x purchase, and shall survive thereafter. If Xxxxx has knowledge, prior to
the acceptance of this Offshore Stock Purchase Agreement by ISA, that any such
representations and warranties shall not be true and accurate in any respect,
Xxxxx prior to such acceptance, will give written notice of such fact to ISA
specifying which representations and warranties are not true and accurate and
the reasons therefore.
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6.
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Indemnification. Xxxxx
agrees to fully indemnify, defend and hold harmless ISA, its officers,
directors, employees, agents and attorneys from and against any and all
losses, claims, damages, liabilities and expenses, including reasonable
attorney's fees and expenses, which may result from a breach of Xxxxx’x
representations , warranties and agreements contained
herein.
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7.
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Conditions Precedent
to ISA’s Closing. All obligations of ISA under his
Agreement, and as an inducement to ISA to enter into this Agreement, are
subject to Xxxxx’x
covenants and
agreements to each of the
following:
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A.
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Acceptance of
Documents. All instruments and documents delivered to
ISA pursuant to this Agreement or reasonably requested by ISA to verify
the representations and warranties of Xxxxx herein, shall be satisfactory
to ISA and its legal counsel.
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B.
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Representations and
Warranties. The representations and warranties by Xxxxx
set forth in this Agreement shall be true and correct at and as of the
Closing date, with the same force and effect as though made at and as of
the date hereof, except for changes permitted or contemplated by this
Agreement.
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C.
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No Breach or
Default. Xxxxx shall have performed and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it prior to or at the
Closing.
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8.
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Termination. This
Agreement may be terminated at any time prior to the date of Closing by
either party if there shall be any actual or threatened action or
proceeding by or before any court or any other governmental body which
shall seek to restrain, prohibit, or invalidate the transaction
contemplated by this Agreement, and which in the judgment of such party
giving notice to terminate and based upon the advice of legal counsel
makes it inadvisable to proceed with the transaction contemplated by this
Agreement..
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9.
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Restrictive
Legend. Xxxxx agrees that the Shares shall bear a
restrictive legend to the effect that transfer is prohibited except in
accordance with the provisions of Regulation S, pursuant to registration
under the Act, or pursuant to an available exemption from registration,
and that hedging transactions involving those securities may not be
conducted unless in compliance with the
Act.
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10.
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ISA’s Obligation to
Refuse Transfer. Pursuant to Regulation S promulgated
under the Act, ISA hereby agrees to refuse to register any transfer of the
Shares not made in accordance with the provisions of Regulation S,
pursuant to registration under the Act, or pursuant to an available
exemption from registration.
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11.
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Miscellaneous.
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A.
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Authority. Xxxxx
and the officer of ISA executing this Agreement are duly authorized to do
so, and each party has taken all action required for valid
execution.
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B.
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Notices. Any
notice under this Agreement shall be deemed to have been sufficiently
given if sent by registered or certified mail, postage prepaid, or by
express mail service substantially equivalent to Federal Express,
addressed as follows:
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To
Xxxxx: Xxxxx
X. Xxxxx
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Xxxx 0,
00 Xxxxxx Xxxx
Xxxxxx X
00 XX
Xxxxxx
Xxxxxxx
Telephone:
+ 00 000 000 000
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0000
XX 00xx
Xxxxxx, Xxxxx X
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Xxxx
Xxxx, Xxxxxxx 00000
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Telephone:
000.000.0000 Ext. 11
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C.
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Entire Agreement. This
Agreement constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof and supersedes any and all prior or
contemporaneous representations, warranties, agreements and understandings
in connection therewith. This Agreement may be amended only by a writing
executed by all parties hereto.
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D.
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Severability. If
a court of competent jurisdiction determines that any clause or provision
of this Agreement is invalid, illegal or unenforceable, the other clauses
and provisions of the Agreement shall remain in full force and effect and
the clauses and provisions which are determined to be void, illegal or
unenforceable shall be limited so that they shall remain in effect to the
extent permissible by law.
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E. Assignment. Xxxxx
may assign his rights under this Agreement with the consent of ISA only to
the extent such assignment would (a) be limited to an assignment to a non
US citizen or resident, (b) be consistent with the other terms and
conditions of the Agreement, including without limitation the
representations and warranties made by Xxxxx and (c) not violate, or
expose ISA to a violation of, any applicable law or
regulation. Prior to and as a condition of any assignment,
Xxxxx shall provide 30 days written notice of any intended assignment,
identify the proposed assignee, and provide any additional information ISA
may request about the assignment and/or the proposed
assignee. To the extent that the proposed assignment is
consistent with the conditions set forth above and Xxxxx provides any
information requested by ISA, ISA shall not unreasonably withhold its
consent to the assignment. Any assignment to which ISA consents
shall be binding on and inure to the benefit of such successor or, in the
event of death or incapacity, on assignor’s heirs, executors,
administrators, representatives, and
successors.
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F.
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Governing Law; Venue;
Jurisdiction. This Agreement has been negotiated and is being
contracted for in the United States, State of Florida. It shall
be governed by and interpreted in accordance with the laws of the United
States and the State of Florida, regardless of any conflict-of-law
provision to the contrary. In any dispute arising out of or
connected with this Agreement, each party consents to the exclusive
jurisdiction of the courts of the State of Florida or the federal district
court for Florida; each party consents to the personal jurisdiction of
such courts; and each party waives any objection to personal jurisdiction
or venue.
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G.
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Attorney’s
Fees. If any legal action or other proceeding (including
but not limited to binding arbitration) is brought for the
enforcement of or to declare any right or obligation under this Agreement
or as a result of a breach, default or misrepresentation in connection
with any of the provisions of this Agreement, or otherwise
because of a dispute among the parties hereto, the prevailing party will
be entitled to recover actual attorney’s fees (including for appeals and
collection and including the actual cost of in-house counsel,
if any) and other expenses incurred in such action or proceeding, in
addition to any other relief to which such party may be
entitled.
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H.
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Counterparts and
Facsimile. This Agreement may be executed in any number
of identical counterparts, each of which may be deemed an original for all
purposes. A fax, telecopy or other reproduction of this
instrument may be executed by one or more parties hereto and such executed
copy may be delivered by facsimile or similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of
such party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all
purposes.
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I.
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Waiver of Jury
Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING INVOLVING THIS
AGREEMENT TO THE FULLEST EXTENT SUCH PARTY MAY LEGALLY AND EFFECTIVELY DO
SO.
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IN WITNESS WHEREOF, the parties have
executed this agreement below as of the date first set forth above.
/s/ Xxxxx X.
Leach_________
By:_/s/ Xxxxxx
Coschera____________
Xxxxx X.
Xxxxx
Xxxxxx Xxxxxxxx, President
