SHC Advance Services Inc.
Exhibit
10.1
November
24, 2010
Triglobal
Investments Ltd.
0000
Xxxxxxxx Xxxxx
00
Xxxxxxxxxx Xxxx
Xxxxxxx,
Xxxx Xxxx
Gentlemen:
We are
pleased to accept the offer you (the “Subscriber”) have made to purchase 500,000
shares (the “Shares”) of common stock, $0.001 par value per share (the “Common
Stock”) of SHC Advance Services Inc., a Delaware corporation (the
“Company”). The terms on which the Company is willing to sell the
Shares to the Subscriber, and the Company and the Subscriber’s agreements
regarding such Shares, are as follows:
1. Purchase of
Shares. For the aggregate sum of $17,500.00 (the
“Purchase Price”), which the Company acknowledges receiving in cash, the Company
hereby sells and issues, effective as of October 31, 2010, the Shares to the
Subscriber, and the Subscriber hereby purchases the Shares from the Company, on
the terms and subject to the conditions set forth in this
Agreement. Concurrently with the Subscriber’s execution of this
Agreement, the Company is delivering to the Subscriber a certificate registered
in the Subscriber’s name representing the Shares, receipt of which the
Subscriber hereby acknowledges.
2. The Subscriber’s
Representations, Warranties and Agreements. To induce the
Company to issue the Shares to the Subscriber, the Subscriber hereby represents
and warrants to the Company and agrees with the Company as follows:
2.1. No Government Recommendation
or Approval. The Subscriber 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 offering of the
Shares.
2.2. Experience, Financial
Capability and Suitability. The Subscriber is sufficiently
experienced in financial and business matters to be capable of evaluating the
merits and risks of this investment and to make an informed decision relating
thereto. The Subscriber is aware its investment in the Company is a speculative
investment that has limited liquidity, because there may never be an established
market for the Company’s securities. The Subscriber has the financial
capability for making the investment and the investment is a suitable one for
the Subscriber. The Subscriber can, without impairing its financial
condition, hold the Shares for an indefinite period of time and can afford a
complete loss of the investment. The Subscriber acknowledges that the Company
has urged the Subscriber to seek independent advice from professional advisors
relating to the suitability of an investment in the Company and in connection
with this Agreement, and that the Subscriber has sought and received such
independent professional advice with respect to such investment and this
Agreement or, after careful consideration, the Subscriber has determined to
waive its right to seek and/or receive such independent professional
advice.
2.3. Access to
Information. Prior to the execution of this Agreement,
the Subscriber has had the opportunity to ask questions of and receive answers
from representatives of the Company concerning an investment in the Company, as
well as the finances, operations, business and prospects of the Company, and the
opportunity to obtain additional information to verify the accuracy of all
information so obtained.
2.4. Regulation D
Offering. Subscriber represents that it is an “accredited
investor” as such term is defined in Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended (the “Securities Act”) and acknowledges the
sale contemplated hereby is being made in reliance on a private placement
exemption to “accredited investors” within the meaning of Section 501(a) of
Regulation D under the Securities Act or similar exemptions under state law;
and, accordingly, such securities will be “restricted securities” within the
meaning of Rule 144(a)(3) under the Securities Act, and therefore may not be
offered, pledged or sold by it, directly or indirectly, in the United States
without registration under United States federal and state securities laws and
Subscriber understands the certificates representing such securities will
contain a legend in respect of such restrictions.
2.5. Restrictions on
Transfer. Subscriber acknowledges and understands the Shares
are being offered in a transaction not involving a public offering within the
meaning of the Securities Act. The Shares have not been registered under the
Securities Act, and, if in the future the Subscriber decides to offer, resell,
pledge or otherwise transfer the Shares, such Shares may be offered, resold,
pledged or otherwise transferred only (A) pursuant to an effective registration
statement filed under the Securities Act, (B) pursuant to an exemption from
registration under Rule 144 promulgated under the Securities Act, if available,
or (C) pursuant to any available other exemption from the registration
requirements of the Securities Act, and in each case in accordance with any
applicable securities laws of any state or any other
jurisdiction. Subscriber agrees that if any transfer of its Shares or
any interest therein is proposed to be made, as a condition precedent to any
such transfer, Subscriber may be required to deliver to the Company an opinion
of counsel satisfactory to the Company. Absent registration or an
available exemption from registration, the Subscriber agrees that it will not
resell the Shares. Subscriber explicitly understands and acknowledges
that the Securities and Exchange Commission (the “SEC”) has taken the position
the Subscriber would be considered a promoter under the Securities Act and that
promoters or affiliates of a blank check company and their transferees, both
before and after a business combination, would act as “underwriters” under the
Securities Act when reselling the securities of that blank check
company. Accordingly, Rule 144 promulgated under the Securities Act
will not be available to the Subscriber for the resale of the Shares despite
technical compliance with the requirements of Rule 144, in which event the
resale transactions would need to be made through a registered
offering.
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3. Restrictions on
Transfer.
3.1. Securities Law
Restrictions. Subscriber agrees not to sell, transfer, pledge,
hypothecate or otherwise dispose of all or any part of the Shares unless, prior
thereto (a) a registration statement on the appropriate form under the
Securities Act and applicable state securities laws with respect to the Shares
proposed to be transferred shall then be effective or (b) the Company shall have
received an opinion from counsel reasonably satisfactory to the Company, that
such registration is not required because such transaction complies with the
Securities Act and the rules promulgated by the Securities and Exchange
Commission thereunder and with all applicable state securities
laws.
3.2. Restrictive
Legends. All certificates representing the Shares shall have
endorsed thereon legends substantially as follows:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION
OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE.”
3.3. Additional Shares or
Substituted Securities. In the event of the declaration
of a stock dividend, the declaration of an extraordinary dividend payable in a
form other than stock, a spin-off, a stock split, an adjustment in conversion
ratio, a recapitalization or a similar transaction affecting the Company’s
outstanding capital stock without receipt of consideration, any new, substituted
or additional securities or other property which are by reason of such
transaction distributed with respect to any Shares subject to this Section 3 or
into which such Shares thereby become convertible shall immediately be subject
to this Section 3 and Section 3.3. Appropriate adjustments to reflect
the distribution of such securities or property shall be made to the number
and/or class of Shares subject to this Section 3.
4. Other
Agreements.
4.1. Further
Assurances. Subscriber agrees to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
4.2 No Obligation as to
Employment. The Company is not by reason of this
Agreement obligated to employ, or continue to employ, the Subscriber in any
capacity.
4.3. Notices. All
notices, requests, consents and other communications hereunder shall be in
writing, shall be addressed to the receiving party’s address set forth on the
first page of this Agreement or to such other address as a party may designate
by notice hereunder, and shall be either (a) delivered by hand, (b) sent by
overnight courier, or (c) sent by certified mail, return receipt requested,
postage prepaid. All notices, requests, consents and other
communications hereunder shall be deemed to have been given either (i) if by
hand, at the time of the delivery thereof to the receiving party at the address
of such party set forth above, (ii) if sent by overnight courier, on the next
business day following the day such notice is delivered to the courier service,
or (iii) if sent by certified mail, on the (5th)
business day following the day such mailing is made.
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4.4. Entire
Agreement. This Agreement embodies the entire agreement and
understanding between the Subscriber and the Company with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
4.5. Modifications and
Amendments. The terms and provisions of this Agreement
may be modified or amended only by written agreement executed by all parties
hereto.
4.6. Waivers and
Consents. The terms and provisions of this Agreement may
be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent shall be deemed to be or shall
constitute a waiver or consent with respect to any other terms or provisions of
this Agreement, whether or not similar. Each such waiver or consent
shall be effective only in the specific instance and for the purpose for which
it was given, and shall not constitute a continuing waiver or
consent.
4.7. Assignment. The
rights and obligations under this Agreement may not be assigned by either party
hereto without the prior written consent of the other party.
4.8. Benefit. All
statements, representations, warranties, covenants and agreements in this
Agreement shall be binding on the parties hereto and shall inure to the benefit
of the respective successors and permitted assigns of each party
hereto. Nothing in this Agreement shall be construed to create any
rights or obligations except among the parties hereto, and no person or entity
shall be regarded as a third-party beneficiary of this Agreement.
4.9. Governing
Law. This Agreement and the rights and obligations
of the parties hereunder shall be construed in accordance with and governed by
the law of State of Delaware, without giving effect to the conflict of law
principles thereof.
6.10. Severability. In
the event that any court of competent jurisdiction shall determine that any
provision, or any portion thereof, contained in this Agreement shall be
unreasonable or unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it reasonable and
enforceable, and as so limited shall remain in full force and
effect. In the event that such court shall deem any such provision,
or portion thereof, wholly unenforceable, the remaining provisions of this
Agreement shall nevertheless remain in full force and effect.
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4.11. No Waiver of Rights, Powers
and Remedies. No failure or delay by a party hereto in
exercising any right, power or remedy under this Agreement, and no course of
dealing between the parties hereto, shall operate as a waiver of any such right,
power or remedy of such party. No single or partial exercise of any
right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The
election of any remedy by a party hereto shall not constitute a waiver of the
right of such party to pursue other available remedies. No notice to
or demand on a party not expressly required under this Agreement shall entitle
the party receiving such notice or demand to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the party giving such notice or demand to any other or further action in any
circumstances without such notice or demand.
4.12. Survival of Representations
and Warranties. All representations and warranties made
by the parties hereto in this Agreement or in any other agreement, certificate
or instrument provided for or contemplated hereby, shall survive the execution
and delivery hereof and any investigations made by or on behalf of the
parties.
4.13. No Broker or
Finder. Each of the parties hereto represents and
warrants to the other that no broker, finder or other financial consultant has
acted on its behalf in connection with this Agreement or the transactions
contemplated hereby in such a way as to create any liability on the
other. Each of the parties hereto agrees to indemnify and save the
other harmless from any claim or demand for commission or other compensation by
any broker, finder, financial consultant or similar agent claiming to have been
employed by or on behalf of such party and to bear the cost of legal expenses
incurred in defending against any such claim.
4.14. Headings and
Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify or affect the meaning or construction of any of the terms or
provisions hereof.
4.15. Counterparts. This
Agreement may be executed in one or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
(Signature
page to follow)
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If any foregoing accurately sets forth
our understanding and agreement, please sign the enclosed copy of this agreement
and return it to us.
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Very
truly yours,
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By:
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/s/Xxxxxxx Xxxxx
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Name:
Xxxxxxx Xxxxx
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Title:
Treasurer
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Accepted
and agreed this
24th day of
November, 2010
TRIGLOBAL
INVESTMENTS LTD.
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By:
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/s/Xxxxxx Xxxxx
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Name:
Xxxxxx Xxxxx
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Title:
Principal
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