EXHIBIT 10.35
THE SECURITIES THAT ARE THE SUBJECT OF THIS SECURITIES PURCHASE AGREEMENT, AS IT
MAY BE AMENDED FROM TIME TO TIME, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY STATE
AND WILL BE OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THESE LAWS BY VIRTUE OF THE INTENDED COMPLIANCE BY THE ISSUER
WITH SECTION 4(2), SECTION 4(6) AND/OR REGULATION D OF THE SECURITIES ACT AND
SIMILAR EXEMPTIONS UNDER STATE LAW. THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE U.S. SECURITIES AND EXCHANGE COMMISSION (THE "SEC"), ANY
STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of this 13th day of April, 2006, by and between Savoy Resources Corp., a
Colorado corporation (the "Company"), with its offices located at 00000 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, and SDM Consultant Corp., with its offices
located at 0000 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Purchaser").
RECITALS:
WHEREAS, the Company is offering for sale 5,000,000 shares (the "Shares")
of common stock, $0.001 par value per share (the "Common Stock"), at a per share
price of $0.015 in a transaction exempt from registration under Section 4(2),
Section 4(6) and/or Regulation D of the Securities Act of 1933, as amended (the
"Securities Act"), and the regulations promulgated thereunder, and applicable
securities laws and regulations of the State of New York (the "Offering").
NOW, THEREFORE, for and in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1.0: PURCHASE AND SALE OF SHARES.
Section 1.1 Closing. The Company agrees to issue, sell and deliver to the
Purchaser, and the Purchaser agrees to purchase and receive from the Company,
five million (5,000,000) Shares upon the terms and conditions set forth in this
Agreement. The closing (the "Closing") of the sale and purchase of the Shares
shall take place at the Company's offices at 10:00 a.m., local time, on Monday,
April 24, 2005, or at such other time and place as may be agreed to by the
parties (the "Closing Date"). The Shares shall be restricted and the
certificates representing the Shares shall bear the restrictive legend pursuant
to Rule 144 of the General Rules and Regulations under the Securities Act.
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Section 1.2 Purchase Price. The total purchase price for the Shares (the
"Purchase Price") shall consist of cash in the amount of seventy-five thousand
U.S. dollars (US$75,000.00).
ARTICLE 2.0: REPRESENTATIONS AND WARRANTIES.
Section 2.1 Representations and Warranties of the Purchaser. The Purchaser
makes the following representations and warranties to the Company.
(a) Speculative Investment. The Purchaser is aware that an investment in
the Shares is highly speculative and subject to substantial risks. The Purchaser
is capable of bearing the high degree of economic risk and the burden of this
venture, including, but not limited to, the possibility of complete loss of the
Purchaser's investment in the Shares that makes liquidation of this investment
impossible for the indefinite future.
(b) Privately Offered. The offer to issue and sell the Shares was
communicated directly to the Purchaser in such a manner that the Purchaser was
able to ask questions of and receive answers concerning the terms and conditions
of this transaction. At no time was the Purchaser presented with or solicited by
or through any leaflet, public promotional meeting, television advertisement or
any other form of general advertising.
(c) Purchase for Investment. The Shares are being acquired solely for the
Purchaser's own account, for investment purposes and are not being purchased
with a view to the resale, distribution, subdivision or fractionalization
thereof without proper registration with appropriate securities administrators
or an applicable exemption from such registration. The Purchaser will comply
with all applicable law with respect to any resale of the Shares.
(d) Access to Information. The Purchaser or the Purchaser's professional
advisor has been granted the opportunity to ask questions of and receive answers
from representatives of the Company and its officers, directors, employees and
agents concerning the terms and conditions of the offering of the Shares, the
Company and its business and prospects, and to obtain any additional information
that the Purchaser or the Purchaser's professional advisor deems necessary to
verify the accuracy and completeness of the information received.
(e) Reliance on Own Advisors. The Purchaser has relied on the advice of, or
has consulted with, the Purchaser's own tax, investment, legal or other advisors
and has not relied on the Company or any of it affiliates, officers, directors,
attorneys, accountants or any affiliates of any thereof and each other person,
if any, who controls any thereof, within the meaning of Section 15 of the
Securities Act, for any tax or legal advice. The foregoing, however, does not
limit or modify the Purchaser's right to rely upon representations and
warranties of the Company in Section 2.2 of this Agreement and any
representations of any third parties acting as agents for or on the Company's
behalf.
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(f) Capability to Evaluate. The affiliates, officers and directors of, and
persons who control, the Purchaser have such knowledge and experience in
financial and business matters so as to enable such Purchaser to utilize the
information made available to it in connection with the offer of the Securities
in order to evaluate the merits and risks of the prospective investment.
(g) Authority. The Purchaser (and each of its subsidiaries, if applicable)
is a corporation duly incorporated and existing in good standing under the laws
of the State of New York and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. The Purchaser
has full power and authority to execute and deliver this Agreement and each
other document included herein, if any, for which a signature is required and to
act in accordance with the terms of this Agreement and such other documents, if
any.
Section 2.2 Representations and Warranties of the Company. The Company
hereby makes the following representations and warranties to the Purchaser:
(a) Organization and Qualification. The Company is a corporation duly
incorporated and existing in good standing under the laws of the State of
Colorado and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. The Company is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted or property owned by it makes such
qualification necessary other than those in which the failure so to qualify
would not have a Material Adverse Effect. "Material Adverse Effect," for
purposes of this Agreement, means any adverse effect on the business,
operations, properties, prospects or financial condition of the entity with
respect to which such term is used and that is material to such entity and other
entities controlled by such entity taken as a whole.
(b) Authorization; Enforcement. (i) The Company has the requisite corporate
power and authority to enter into and perform this Agreement and to issue and
sell the Shares in accordance with the terms hereof; (ii) the execution and
delivery of this Agreement by the Company and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action, and no further consent or authorization of the Company or its
Board of Directors or stockholders is required; (iii) this Agreement has been
duly executed and delivered by the Company; and (iv) this Agreement constitutes
a valid and binding obligation of the Company enforceable against the Company in
accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of, creditors'
rights and remedies or by other equitable principles of general application).
(c) Authorized Capital; Rights or Commitments to Stock. As of the date of
this Agreement, the authorized capital stock of the Company consists of
110,000,000 shares, of which 100,000,000 shares are Common Stock, of which
approximately 66,025,517 shares are issued and outstanding, and 10,000,000
shares are preferred stock, of which no shares are issued and outstanding. All
of the outstanding shares of the Company's Common Stock have been validly issued
and are fully paid and non-assessable.
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(d) Issuance of Securities. The issuance of the Shares has been duly
authorized and, when paid for and issued in accordance with the terms hereof,
the Shares shall be validly issued, fully paid and non-assessable and entitled
to the rights inherent in the securities and as specified herein.
(e) No Conflicts. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) result in a violation of the
Company's Articles of Incorporation or Bylaws or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party, or result
in a violation of any federal, state, local or foreign law, rule, regulation,
order, judgment or decree (including federal and state securities laws and
regulations) applicable to the Company or any of its subsidiaries or by which
any property or assets of the Company or any of its subsidiaries is bound or
affected (except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect); provided that, for purposes of such
representation as to federal, state, local or foreign law, rule or regulation,
no representation is made herein with respect to any of the same applicable
solely to the Purchaser and not to the Company. The business of the Company is
not being conducted in violation of any law, ordinance or regulations of any
governmental entity, except for violations that either singly or in the
aggregate do not and will not have a Material Adverse Effect. The Company is not
required under federal, state or local law, rule or regulation in the United
States to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or issue and sell
the Shares in accordance with the terms hereof; provided that, for purposes of
the representation made in this sentence, the Company is assuming and relying
upon the accuracy of the relevant representations and agreements of the
Purchaser herein.
(f) Reporting Status. The Company is subject to the reporting requirements
of Section 13 of the Securities Exchange Act of 1934, as amended. The Company is
not an investment company or a developmental-stage company that has no specific
business plan or purpose. No information or documentation provided to the
Purchaser as of the date hereof has contained any untrue statement of a material
fact or has omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(g) No General Solicitation. Neither the Company, nor any of its
affiliates, or, to the best of its knowledge, any person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising
in connection with the offer or sale of the Shares.
(h) No Integrated Offering. Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any of the Company's securities or solicited any offers
to buy any of such securities, under circumstances that would prevent the
Company from offering the Shares pursuant to Section 4(2), Section 4(6) or
Regulation D of the Securities Act.
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ARTICLE 3.0: COMPLIANCE AND INSTRUCTIONS.
Section 3.1 Securities Compliance. The Company shall, to the extent
required, notify the SEC, the New York Bureau of Investor Protection and
Securities and the NASD Over-the-Counter Bulletin Board, in accordance with
their requirements, of the transactions contemplated by this Agreement, and
shall take all other necessary action and proceedings, as may be required by
applicable law, rule and regulation, for the legal and valid issuance of the
Shares to the Purchaser.
Section 3.2 Transfer Agent Instructions.
(a) Common Stock to be Issued With Restrictive Legend. Upon the Closing,
the Company shall instruct its transfer agent to issue certificates for
5,000,000 Shares to be received by the Purchaser pursuant to this Agreement,
with a restrictive legend pursuant to Rule 144 under the Securities Act, in the
name of the Purchaser and in such denominations to be specified by the
Purchaser.
(b) Registration. The Company shall be required, at the request of the
Purchaser and at the Company's expense, to effectuate the registration of the
shares of Common Stock included in the Shares under the Securities Act and all
relevant "blue sky" laws as promptly as is practicable, but in any event within
the time limits specified in this Section 3.2, (b). The Company and the
Purchaser shall cooperate in good faith in connection with the furnishing of
information required for such registration and the taking of such other actions
as may be legally or commercially necessary in order to effectuate such
registration. The Company shall file a registration statement within ninety (90)
days after the Purchaser's demand therefor and shall use its best efforts to
cause such registration statement to become effective as soon as practicable
thereafter and, in any event, within one hundred eighty (180) days from the
initial filing thereof. Such best efforts shall include, without limitation,
promptly responding to all comments received from the SEC and providing the
Purchaser's counsel with a contemporaneous copy of all written correspondence
with the SEC. Once declared effective by the SEC, the Company shall cause such
registration statement to remain effective until the earlier of: (i) the sale by
the Purchaser of all of the shares of Common Stock registered or (ii) one
hundred eighty (180) days after the effective date of such registration
statement. In the event that the Company undertakes to file a registration
statement on Form S-3 in connection with the Common Stock, upon the
effectiveness of such registration, the Purchaser shall have the option to sell
its shares of Common Stock pursuant thereto. The foregoing shall not in any way
limit the Purchaser's rights in connection with the Common Stock.
ARTICLE 4.0: GENERAL CONDITIONS.
Section 4.1 General Conditions Precedent to the Obligation of the Company
to Sell the Shares. The obligation hereunder of the Company to issue and/or sell
the Shares to the Purchaser is subject to the satisfaction, at the Closing, of
each of the conditions set forth below. These conditions may be waived by the
Company at any time in its sole discretion.
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(a) Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties of the Purchaser shall be true and correct in all
material respects as of the date when made and as of the Closing Date, as though
made at that time (except for any representations and warranties that are
effective as of a particular, specified date).
(b) Performance by the Purchaser. The Purchaser shall have performed all
agreements and satisfied all conditions required to be performed or satisfied by
the Purchaser at or prior to the Closing.
(c) No Injunction, No Legal Action. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction that prohibits the consummation of any of the transactions
contemplated by this Agreement. No legal action, suit or proceeding shall be
pending or threatened that seeks to restrain or prohibit the transactions
contemplated by this Agreement.
(d) Execution. The Purchaser shall have executed two (2) originals of this
Agreement and delivered the same to the Company.
(e) Purchase Price. The Purchaser shall have delivered the applicable
Purchase Price for the Shares to be purchased, in accordance with Section 1.2
above.
Section 4.2 General Conditions Precedent to the Obligation of the Purchaser
to Purchase the Shares. The obligation hereunder of the Purchaser to purchase
and pay for the Shares is subject to the satisfaction, at the Closing, of each
of the conditions set forth below. These conditions may be waived by the
Purchaser at any time in its sole discretion.
(a) Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that are effective
as of a particular, specified date).
(b) Performance by the Company. The Company shall have performed all
agreements and satisfied all conditions required to be performed or satisfied by
the Company pursuant to this Agreement at or prior to the Closing, unless any
such agreement or condition is waived by the Purchaser in writing at or prior to
Closing.
(c) Trading and Listing. The Company shall not have received notice of, and
trading in the Company's Common Stock shall not have been, suspended by the SEC
or a national securities exchange (currently the Over-the-Counter Bulletin
Board) (except for any suspension of trading of limited duration agreed to
between the Company and the principal exchange on which the Common Stock is
traded solely to permit dissemination of material information regarding the
Company) or de-listed by such exchange, and trading in securities generally as
reported by such exchange shall not have at any prior time been suspended or
limited, or minimum prices shall not have been established on securities whose
trades are reported by such exchange.
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(d) No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction that prohibits
the consummation of any of the transactions contemplated by this Agreement.
(e) Execution. The Company shall have executed two (2) originals of this
Agreement and delivered the same to the Purchaser.
ARTICLE 5.0: TERMINATION.
Section 5.1 Termination. This Agreement may be terminated at any time prior
to the Closing by the mutual written consent of the Company and the Purchaser.
This Agreement may be terminated by action of the respective Board of Directors
or other governing body of the Purchaser or the Company at any time if the
Closing shall not have been consummated by the fifth (5th) business day
following the date of this Agreement, provided that the party seeking to
terminate the Agreement is not in breach of the Agreement. This Agreement shall
automatically terminate without any further action of either party hereto if the
Closing shall not have occurred by the seventh (7th) business day following the
date of this Agreement, provided, however, that any such termination shall not
terminate the liability of any party that is then in breach of the Agreement.
ARTICLE 6.0: MISCELLANEOUS.
Section 6.1 Fees and Expenses. The parties shall each pay the fees,
commissions and expenses of their respective advisers, brokers, finders,
counsel, accountants and other experts, if any, and all other expenses
associated therewith, in accordance with their respective agreements.
Section 6.2 Specific Enforcement, Consent to Jurisdiction.
(a) The Company and the Purchaser acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent or cure breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which either of them may be entitled by
law or equity.
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(b) The Company and the Purchaser hereby (i) irrevocably submit to the
jurisdiction of the United States District Court and other courts of the United
States sitting in the State of Colorado for the purposes of any suit, action or
proceeding arising out of or relating to this Agreement and (ii) waive, and
agree not to assert in any such suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of such court, that the suit, action
or proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper. The Company and the Purchaser consent to
process being served in any such suit, action or proceeding by mailing a copy
thereof to each party at the address in effect for notices to it under this
Agreement and agree that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this paragraph shall affect or
limit any right to serve process in any other manner permitted by law.
Section 6.3 Entire Agreement: Amendment. This Agreement contains the entire
understanding of the parties with respect to the matters covered hereby and,
except as specifically set forth herein, neither the Company nor the Purchaser
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by a
written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought.
Section 6.4 Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be effective (a)
upon hand delivery or delivery by telex (with correct answer back received),
telecopy or facsimile at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to be received)
or the first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second (2nd) business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur.
The addresses for such communications shall be:
To the Company: Savoy Resources Corp.
00000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxx Xxxxxxx, President
With a copy to: Xxxx & Associates
00000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxx, Esq.
To the Purchaser: At the address set forth in the first paragraph of
this Agreement or as specified hereafter in
writing by the Purchaser.
Either party hereto may from time to time change its address for notices by
giving at least ten (10) days' written notice of such changed address to the
other party hereto.
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Section 6.5 Waivers. No waiver by either party of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter. Section 6.6 Headings. The headings herein are
for convenience only, do not constitute a part of this Agreement and shall not
be deemed to limit or affect any of the provisions hereof.
Section 6.7 Governing Law. This Agreement is deemed made, and the
transactions contemplated herein are deemed to have taken place in, the State of
Colorado. This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Colorado without regard to
such state's principles of conflict of laws.
Section 6.8 Survival. The representations and warranties of the Company and
the Purchaser contained in herein and the agreements and covenants set forth in
Sections 1.1 and 1.2, 2.1 and 2.2 and 4.1 and 4.2 shall survive for a period of
three (3) years after the Closing Date.
Section 6.9 Publicity. The Company agrees that it will not disclose, and
will not include in any public announcement, the name of the Purchaser without
its consent, unless and until such disclosure is required by law or applicable
regulation, and then only to the extent of such requirement.
Section 6.10 NASD. The term "NASD" or "NASD Over-the-Counter Bulletin
Board" herein refers to the principal market on which the Common Stock of the
Company is traded. If the Common Stock is listed on a securities exchange, or if
another market becomes the principal market on which the Common Stock is traded
or through which price quotations for the Common Stock are reported, the term
"NASD" or "NASD Over-the-Counter Bulletin Board" shall be deemed to refer to
such exchange or other principal market.
Section 6.11 Acceptance. Execution and delivery of this Agreement by the
Purchaser shall constitute an offer to purchase the Shares, which offer, unless
previously revoked by the Purchaser, may be accepted or rejected by the Company,
in its sole discretion, for any cause or for no cause and without liability to
the Purchaser. The Company shall indicate acceptance of this Agreement by
signing as indicated on the signature page hereof.
Section 6.12 Binding Agreement. Upon acceptance of this Agreement by the
Company, the Purchaser agrees that it may not cancel, terminate or revoke any
agreement of the Purchaser made hereunder, and that this Agreement shall be
binding upon the successors and assigns of the Purchaser.
Section 6.13 Counterparts. This Agreement may be signed in multiple
counterparts, which counterparts shall constitute one and the same original
instrument.
Section 6.14 Severability. If any portion of this Agreement shall be held
illegal, unenforceable or void or voidable by any court, each of the remaining
terms hereof shall nevertheless remain in full force and effect as a separate
contract.
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Section 6.15 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
THE COMPANY: THE PURCHASER:
SAVOY RESOURCES CORP. SDM CONSULTANT CORP.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxx
------------------ ---------------
Xxxxxx Xxxxxxx, President and Xxxxx Xxxxx, President
Chief Executive Officer
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