STOCK PURCHASE AGREEMENT
Exhibit
10.1
THIS
AGREEMENT (this
“Agreement”), entered
into as of the 4th
day of
October, 2007, is made by and between Kingsgate Development, Ltd. and Eastern
Glow Investment, Ltd.
(together,
are referred to herein as the“Shareholders”),
Isdera,
North America, Inc.
(“ISDERA”),
and Xxxxxx
Investments,
Ltd. (the
“Buyer”).
Whereas,
the
Shareholders desire to sell to the Buyer and the Buyer wishes to purchase and
acquire from the Shareholders all of the Shareholders’ shares of capital stock
of ISDERA, pursuant to the terms and conditions of this Agreement.
Now,
Therefore,
in
consideration of the representations, warranties and agreements set forth
herein, the parties hereto hereby agree as follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
1.1 Definitions.
In this
Agreement the following terms will have the following meanings:
|
(a)
|
“Agreement”
means this Stock Purchase
Agreement;
|
|
(b)
|
“Closing”
means the completion, on the date hereof, of the transactions contemplated
hereby in accordance with Article 7 hereof;
|
|
(c)
|
“Place
of Closing”
means such place as the Buyer and ISDERA may mutually agree
upon;
|
|
(d)
|
“ISDERA
Accounts Payable and Liabilities”
means all accounts payable and liabilities of ISDERA, on a consolidated
basis, due and owing or otherwise constituting a binding obligation
of
ISDERA (other than an ISDERA Material Contract) as of September 30,
2007,
as set forth is Schedule “A”
hereto;
|
|
(e)
|
“ISDERA
Accounts Receivable”
means all accounts receivable and other debts owing to ISDERA, on
a
consolidated basis, as of September 30, 2007, as set forth in Schedule
“B”
hereto;
|
|
(f)
|
“ISDERA
Assets”
means the undertaking and all the property and assets of the ISDERA
Business of every kind and description wheresoever situated including,
without limitation, ISDERA Equipment, ISDERA Inventory, ISDERA Material
Contracts, ISDERA Accounts Receivable, ISDERA Cash, ISDERA Intangible
Assets and ISDERA Goodwill, and all credit cards, charge cards and
banking
cards issued to ISDERA;
|
|
(g)
|
“ISDERA
Bank Accounts”
means all of the bank accounts, lock boxes and safety deposit boxes
of
ISDERA or relating to the ISDERA Business as set forth in Schedule
“C”
hereto;
|
|
(h)
|
“ISDERA
Business”
means all aspects of any business conducted by
ISDERA;
|
|
(i)
|
“ISDERA
Cash”
means all cash on hand or on deposit to the credit of ISDERA on the
date
hereof;
|
|
(j)
|
“ISDERA
Common Shares”
means the shares of common stock in the capital of
ISDERA;
|
|
(k)
|
“ISDERA
Debt to Related Parties”
means the debts owed by ISDERA to any affiliate, director or officer
of
ISDERA as described in Schedule “D”
hereto;
|
|
(l)
|
“ISDERA
Equipment”
means all machinery, equipment, furniture, and furnishings used in
the
ISDERA Business, including, without limitation, the items more
particularly described in Schedule “E”
hereto;
|
|
(m)
|
“ISDERA
Financial Statements”
means, collectively, the audited consolidated financial statements
of
ISDERA for the fiscal year ended June 30, 2007, and the unaudited
consolidated financial statements of ISDERA for the period ended
September
30, 2007, true copies of which are attached as Schedule “F”
hereto;
|
|
(n)
|
“ISDERA
Goodwill”
means the goodwill of the ISDERA Business including the right to
all
corporate, operating and trade names associated with the ISDERA Business,
or any variations of such names as part of or in connection with
the
ISDERA Business, all books and records and other information relating
to
the ISDERA Business, all necessary licenses and authorizations and
any
other rights used in connection with the ISDERA
Business;
|
|
(o)
|
“ISDERA
Insurance Policies”
means the public liability insurance and insurance against loss or
damage
to the ISDERA Assets and the ISDERA Business as described in Schedule
“G”
hereto;
|
|
(p)
|
“ISDERA
Intangible Assets”
means all of the intangible assets of ISDERA, including, without
limitation, ISDERA Goodwill, all trademarks, logos, copyrights, designs,
and other intellectual and industrial property of
ISDERA;
|
|
(q)
|
“ISDERA
Inventory”
means all inventory and supplies of the ISDERA Business as of September
30, 2007, as set forth in Schedule “H”
hereto;
|
|
(r)
|
“ISDERA
Material Contracts”
means the burden and benefit of and the right, title and interest
of
ISDERA in, to and under all trade and non-trade contracts, engagements
or
commitments, whether written or oral, to which ISDERA is entitled,
whereunder ISDERA is obligated to pay or entitled to receive the
sum of
$250 or more including, without limitation, any pension plans, profit
sharing plans, bonus plans, loan agreements, security agreements,
indemnities and guarantees, any agreements with employees, lessees,
licensees, managers, accountants, suppliers, agents, distributors,
officers, directors, attorneys or others which cannot be terminated
without liability on not more than one month's notice, and those
contracts
listed in Schedule “I” hereto; and
|
|
(s)
|
“Shares”
shall mean the ISDERA Common Shares to be sold to Buyer by ISDERA
hereunder.
|
Any
other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
-2-
1.2 Captions
and Section Numbers.
The
headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended
to
interpret, define or limit the scope, extent or intent of this Agreement or
any
provision thereof.
1.3 Section
References and Schedules.
Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or other
subdivision is to the particular Article, section, clause or other subdivision
of this Agreement and any reference to a Schedule by letter will mean the
appropriate Schedule attached to this Agreement and by such reference the
appropriate Schedule is incorporated into and made part of this Agreement.
1.4 Severability
of Clauses.
If any
part of this Agreement is declared or held to be invalid for any reason, such
invalidity will not affect the validity of the remainder which will continue
in
full force and effect and be construed as if this Agreement had been executed
without the invalid portion, and it is hereby declared the intention of the
parties that this Agreement would have been executed without reference to any
portion which may, for any reason, be hereafter declared or held to be
invalid.
ARTICLE
2
PURCHASE
AND SALE
2.1 Issuance
of the Shares.
Subject
to all of the terms and conditions of this Agreement, the Shareholders do hereby
sell, assign, transfer and convey to the Buyer, and the Buyer does hereby
purchase and accept from the Shareholders, all of the Shares as set forth on
Exhibit
A,
free
and clear of all encumbrances, liens, charges and claims, which Shares represent
34.9% of the capital stock of ISDERA.
2.2 Purchase
Price; Payment. The
purchase price for the Shares is $245,000 (collectively the “Purchase
Price”)
and
shall be paid by wire transfer of immediately available funds or bank or
certified check in accordance with Exhibit
A.
The
parties approve the distribution of the Purchase Price as set forth on
Exhibit
A.
ARTICLE
3
SHAREHOLDERS’
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties.
The
Shareholders and ISDERA jointly and severally make the representations and
warranties set forth below and intend and acknowledge that the Buyer will rely
thereon in entering into this Agreement and in approving and completing the
transactions contemplated hereby. Any schedules described in or contemplated
by
such representations and warranties shall be prepared both as of the date of
this Agreement and as of the date of the Closing.
The
Shareholders
|
(a)
|
Power
and Capacity.
Each Shareholder has the power, authority and capacity to enter into
this
Agreement and to consummate the transactions contemplated hereby.
This
Agreement constitutes each Shareholder’s valid, legal and binding
obligation and is enforceable against such Shareholder in accordance
with
its terms, subject, however, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors’
rights;
|
ISDERA
- Corporate Status and Capacity
|
(b)
|
|
(c)
|
Carrying
on Business.
ISDERA conducts the business as described in the SEC Documents. ISDERA
is
not required to register or otherwise be qualified to carry on business
in
any foreign jurisdiction;
|
-3-
|
(d)
|
Corporate
Capacity.
ISDERA has the corporate power, capacity and authority to own the
ISDERA
Assets;
|
|
(e)
|
Reporting
Status; Listing.
ISDERA is required to file current reports with the Securities and
Exchange Commission pursuant to section 12(g) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and ISDERA’s Common Shares
are quoted on the National Association of Securities Dealers, Inc.’s
Over-the-Counter Bulletin Board System (the “OTC Bulletin Board”). ISDERA
has filed all reports required to be filed by it under the Exchange
Act,
including pursuant to Section 13(a) or 15(d) thereof, for the five
years
preceding the date hereof (or such shorter period as the ISDERA was
required by law to file such material) (the foregoing materials being
collectively referred to herein as the “SEC Documents”) and is current
with respect to its Exchange Act filing requirements. As of their
respective dates, the SEC Documents complied in all material respects
with
the requirements of the Securities Act of 1933, as amended (the
“Securities Act”) and the Exchange Act and the rules and regulations of
the Commission promulgated thereunder, and none of the SEC Documents,
when
filed, contained any untrue statement of a material fact or omitted
to
state a material fact required to be stated therein or necessary
in order
to make the statement therein, in light of the circumstances under
which
they were made, not misleading. All material agreements to which
ISDERA is a party or to which the property or assets of ISDERA are
subject
have been appropriately filed as exhibits to the SEC Documents as
and to
the extent required under the Exchange Act. The financial statements
of ISDERA included in the SEC Documents comply in all material respects
with applicable accounting requirements and the rules and regulations
of
the Commission with respect thereto as in effect at the time of filing,
were prepared in accordance with GAAP applied on a consistent basis
during
the periods involved (except as may be indicated in the notes thereto,
or,
in the case of unaudited statements, as permitted by Form 10-QSB
of the
Commission), and fairly present in all material respects (subject
in the
case of unaudited statements, to normal, recurring audit adjustments)
the
financial position of ISDERA as at the dates thereof and the results
of
its operations and cash flows for the periods then ended. ISDERA is
not aware of any facts which would make ISDERA’s Common Stock ineligible
for quotation on the OTC Bulletin Board;
|
ISDERA
- Capitalization
|
(f)
|
Authorized
Capital.
The authorized capital of ISDERA consists of: (i) 50,000,000 ISDERA
Common
Shares, $0.001 par value, of which 4,284,400 ISDERA Common Shares
are
presently issued and outstanding.
|
|
(g)
|
No
Option.
No person, firm or corporation has any agreement, warrant or option
or any
right capable of becoming an agreement or option for the acquisition
of
ISDERA Common Shares or for the purchase, subscription or issuance
of any
other securities of ISDERA;
|
ISDERA
- Records and Financial Statements
|
(h)
|
Charter
Documents.
The charter documents of ISDERA have not been altered since its
incorporation, except as filed in the record books of
ISDERA;
|
|
(i)
|
Corporate
Minute Books.
The corporate minute books of ISDERA are complete and each of the
minutes
contained therein accurately reflect the actions that were taken
at a duly
called and held meeting or by consent without a meeting. All actions
by
ISDERA which required director or shareholder approval are reflected
on
the corporate minute books of ISDERA. ISDERA is not in violation
or breach
of, or in default with respect to, any term of their respective
Certificates of Incorporation (or other charter documents) or
by-laws.
|
-4-
|
(j)
|
ISDERA
Financial Statements.
The ISDERA Financial Statements present fairly, in all material respects,
the assets and liabilities (whether accrued, absolute, contingent
or
otherwise) of ISDERA, on a consolidated basis, as of the respective
dates
thereof, and the sales and earnings of the ISDERA Business during
the
periods covered thereby, in all material respects and have been prepared
in substantial accordance with generally accepted accounting principles
consistently applied;
|
|
(k)
|
ISDERA
Accounts Payable and Liabilities.
There are no liabilities, contingent or otherwise, of ISDERA which
are not
disclosed in Schedule “A” hereto or reflected in the ISDERA Financial
Statements and ISDERA has not guaranteed or agreed to guarantee any
debt,
liability or other obligation of any person, firm or corporation.
Without
limiting the generality of the foregoing, all accounts payable and
liabilities of ISDERA as of September 30, 2007 are described in Schedule
“A” hereto;
|
|
(l)
|
ISDERA
Accounts Receivable.
All the ISDERA Accounts Receivable result from bona fide business
transactions and services actually rendered without, to the knowledge
and
belief of ISDERA, any claim by the obligor for set-off or
counterclaim;
|
|
(m)
|
ISDERA
Bank Accounts.
All of the ISDERA Bank Accounts, their location, numbers and the
authorized signatories thereto are as set forth in Schedule “C”
hereto;
|
|
(n)
|
No
Debt to Related Parties.
Except as disclosed in Schedule “D” hereto, ISDERA is not, and on Closing
will not be, indebted to any affiliate, director or officer of
ISDERA;
|
|
(o)
|
No
Related Party Debt to ISDERA.
No director or officer or affiliate of ISDERA is now indebted to
or under
any financial obligation to ISDERA on any account
whatsoever;
|
|
(p)
|
No
Dividends.
No dividends or other distributions on any shares in the capital
of ISDERA
have been made, declared or authorized since the date of ISDERA Financial
Statements;
|
|
(q)
|
No
Payments.
No payments of any kind have been made or authorized since the date
of the
ISDERA Financial Statements to or on behalf of officers, directors,
shareholders or employees of ISDERA or under any management agreements
with ISDERA, except payments made in the ordinary course of business
and
at the regular rates of salary or other remuneration payable to
them;
|
|
(r)
|
No
Pension Plans.
There are no pension, profit sharing, group insurance or similar
plans or
other deferred compensation plans affecting
ISDERA;
|
|
(s)
|
No
Adverse Events.
Since the date of the ISDERA Financial
Statements
|
|
(i)
|
there
has not been any adverse change in the financial position or condition
of
ISDERA, its liabilities or the ISDERA Assets or any damage, loss
or other
change in circumstances affecting ISDERA, the ISDERA Business or
the
ISDERA Assets or ISDERA’s right to carry on the ISDERA Business, other
than changes in the ordinary course of
business,
|
|
(ii)
|
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) adversely affecting ISDERA, the ISDERA Business
or
the ISDERA Assets,
|
|
(iii)
|
there
has not been any increase in the compensation payable or to become
payable
by ISDERA to any of ISDERA’s officers, employees or agents or any bonus,
payment or arrangement made to or with any of
them,
|
|
(iv)
|
the
ISDERA Business has been and continues to be carried on in the ordinary
course,
|
|
(v)
|
ISDERA
has not waived or surrendered any right of material
value,
|
-5-
|
(vi)
|
ISDERA
has not discharged or satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary
course of business, and
|
|
(vii)
|
no
capital expenditures in excess of $250 individually or $500 in total
have
been authorized or made.
|
ISDERA
- Income Tax Matters
|
(t)
|
Tax
Returns.
All tax returns and reports of ISDERA required by law to be filed
have
been filed and are true, complete and correct, and any taxes payable
in
accordance with any return filed by ISDERA or in accordance with
any
notice of assessment or reassessment issued by any taxing authority
have
been so paid;
|
|
(u)
|
Current
Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and
there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by ISDERA.
There
are no contingent tax liabilities or any grounds which would prompt
a
reassessment including aggressive treatment of income and expenses
in
filing earlier tax returns;
|
ISDERA
- Applicable Laws and Legal Matters
|
(v)
|
Licenses.
ISDERA holds all licenses and permits as may be requisite for carrying
on
the ISDERA Business in the manner in which it has heretofore been
carried
on, which licenses and permits have been maintained and continue
to be in
good standing except where the failure to obtain or maintain such
licenses
or permits would not have an adverse effect on the ISDERA
Business;
|
|
(w)
|
Applicable
Laws.
ISDERA has not been charged with or received notice of breach of
any laws,
ordinances, statutes, regulations, by-laws, orders or decrees to
which
they are subject or which apply to them the violation of which would
have
an adverse effect on the ISDERA Business (greater than $250), and
to
ISDERA’s knowledge, ISDERA is not in breach of any laws, ordinances,
statutes, regulations, bylaws, orders or decrees the contravention
of
which would result in an adverse impact on the ISDERA
Business;
|
|
(x)
|
Pending
or Threatened Litigation.
There is no litigation or administrative or governmental proceeding
pending or threatened against or relating to ISDERA, the ISDERA Business,
or any of the ISDERA Assets nor does ISDERA have any knowledge after
due
investigation of any deliberate act or omission of ISDERA that would
form
any basis for any such action or
proceeding;
|
|
(y)
|
No
Bankruptcy.
ISDERA has not made any voluntary assignment or proposal under applicable
laws relating to insolvency and bankruptcy and no bankruptcy petition
has
been filed or presented against ISDERA and no order has been made
or a
resolution passed for the winding-up, dissolution or liquidation
of
ISDERA;
|
|
(z)
|
Labor
Matters.
ISDERA is not party to any collective agreement relating to the ISDERA
Business with any labor union or other association of employees and
no
part of the ISDERA Business has been certified as a unit appropriate
for
collective bargaining or, to the best knowledge of ISDERA, has made
any
attempt in that regard;
|
|
(aa)
|
Finder's
Fees.
ISDERA is not party to any agreement which provides for the payment
of
finder's fees, brokerage fees, commissions or other fees or amounts
which
are or may become payable to any third party in connection with the
execution and delivery of this Agreement and the transactions contemplated
herein;
|
-6-
Execution
and Performance of Agreement
|
(bb)
|
Authorization
and Enforceability.
The completion of the transactions contemplated hereby, have been
duly and
validly authorized by all necessary corporate action on the part
of
ISDERA;
|
|
(cc)
|
No
Violation or Breach.
The execution and performance of this Agreement will
not:
|
|
(i)
|
violate
the charter documents of ISDERA or result in any breach of, or default
under, any loan agreement, mortgage, deed of trust, or any other
agreement
to which ISDERA is a party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, the ISDERA Material Contracts, or any right or
rights
enjoyed by ISDERA,
|
|
(iii)
|
result
in any alteration of ISDERA’s obligations under any agreement to which
ISDERA is a party including, without limitation, the ISDERA Material
Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
ISDERA
Assets,
|
|
(v)
|
result
in the imposition of any tax liability to ISDERA relating to the
ISDERA
Assets, or
|
|
(vi)
|
violate
any court order or decree to which ISDERA is
subject;
|
ISDERA
Assets - Ownership and Condition
|
(dd)
|
Business
Assets.
The ISDERA Assets comprise all of the property and assets of the
ISDERA
Business, and no other person, firm or corporation owns any assets
used by
ISDERA in operating the ISDERA Business, whether under a lease, rental
agreement or other arrangement, other than as disclosed in Schedules
“E”
or “H” hereto;
|
|
(ee)
|
Title.
ISDERA is the legal and beneficial owner of the ISDERA Assets, free
and
clear of all mortgages, liens, charges, pledges, security interests,
encumbrances or other claims whatsoever, save and except as disclosed
in
Schedules “E” or “H” hereto;
|
|
(ff)
|
No
Option.
No person, firm or corporation has any agreement or option or a right
capable of becoming an agreement for the purchase of any of the ISDERA
Assets;
|
|
(gg)
|
ISDERA
Insurance Policies.
ISDERA does not maintain public liability insurance and insurance
against
loss or damage to the ISDERA Assets and the ISDERA
Business;
|
|
(hh)
|
ISDERA
Material Contracts.
The ISDERA Material Contracts listed in Schedule “I” constitute all of the
material contracts of ISDERA;
|
|
(ii)
|
No
Default.
There has not been any default in any obligation of ISDERA or any
other
party to be performed under any of the ISDERA Material Contracts,
each of
which is in good standing and in full force and effect and unamended
(except as disclosed in Schedule “I” hereto), and ISDERA is not aware of
any default in the obligations of any other party to any of the ISDERA
Material Contracts;
|
|
(jj)
|
No
Compensation on Termination.
There are no agreements, commitments or understandings relating to
severance pay or separation allowances on termination of employment
of any
employee of ISDERA. ISDERA is not obliged to pay benefits or share
profits
with any employee after termination of employment except as required
by
law;
|
-7-
ISDERA
Assets - ISDERA Equipment
|
(kk)
|
ISDERA
Equipment.
The ISDERA Equipment has been maintained in a manner consistent with
that
of a reasonably prudent owner and such equipment is in good working
condition;
|
ISDERA
Assets - ISDERA Goodwill and Other Assets
|
(ll)
|
ISDERA
Goodwill.
ISDERA does not carry on the ISDERA Business under any other business
or
trade names. ISDERA does not have any knowledge of any infringement
by
ISDERA of any patent, trademarks, copyright or trade
secret;
|
ISDERA
Business
|
(mm)
|
Maintenance
of Business.
Since the date of the ISDERA Financial Statements, ISDERA has not
entered
into any agreement or commitment except as disclosed
herein;
|
|
(nn)
|
Subsidiaries.
ISDERA does not own any subsidiaries and does not otherwise own,
directly
or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm;
and
|
ISDERA
- Shares
|
(oo)
|
Shares.
The Shares when delivered to the Buyer shall be validly issued and
outstanding as fully paid and non-assessable shares and the Shares
shall
be transferable upon the books of ISDERA, in all cases subject to
the
provisions and restrictions of all applicable securities
laws.
|
3.2 Survival.
The
representations and warranties herein will be true at and as of the date hereof
in all material respects. Notwithstanding the completion of the transactions
contemplated hereby, the waiver of any condition contained herein (unless such
waiver expressly releases a party from any such representation or warranty)
or
any investigation made by the Buyer, the representations and warranties made
herein shall survive the Closing and be effective for a period of twelve months
(12) months from the date hereof.
3.3 Indemnity.
The
Shareholders agree to jointly and severally indemnify and save harmless the
Buyer from and against any and all claims, demands, actions, suits, proceedings,
assessments, judgments, damages, costs, losses and expenses, including any
payment made in good faith in settlement of any claim (subject to the right
of
the Shareholders to defend any such claim), resulting from the breach by them
of
any representation or warranty made under this Agreement or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by ISDERA to the Buyer hereunder.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
4.1 Representations
and Warranties.
The
Buyer makes the representations and warranties set forth below and intend and
acknowledge that ISDERA and the Shareholders will rely thereon in entering
into
this Agreement and in approving and completing the transactions contemplated
hereby. Any schedules described in or contemplated by such representations
and
warranties shall be prepared both as of the date of this Agreement and as of
the
date of the Closing.
-8-
|
(a)
|
Power
and Capacity.
The Buyer has the power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby.
This
Agreement constitutes the Buyer’s valid, legal and binding obligation and
is enforceable against it in accordance with its terms, subject,
however,
as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to
or
affecting creditors’ rights and to general principles of equity,
regardless of whether such enforceability is considered in equity
or at
law;
|
|
(b)
|
No
Conflict.
Neither the execution and delivery of this Agreement by the Buyer,
nor
compliance with any of the provisions hereof, nor the consummation
of the
transactions contemplated hereby, will: (a)
result in a default, or give rise to any right of termination,
cancellation or acceleration, under any term, condition or provision
of
any contract or other instrument or obligation to which the
Buyer
is a party or by which its assets may be bound; or (b) violate any
order,
writ, injunction or decree applicable to the
Buyer,
or any of its properties or assets.
|
|
(c)
|
Legal
Proceedings, Etc. There
is no legal, equitable, administrative or arbitration action, suit,
proceeding or known investigation pending or threatened against or
affecting the Buyer. There is no judgment, decree, injunction, rule
or
order of any court, governmental department, commission, agency,
instrumentality or arbitrator outstanding against the Buyer and there
is
no basis for any action, suit, proceeding or investigation against
the
Buyer.
|
4.2 Survival.
The
representations and warranties of the Buyer contained herein will be true at
and
as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation
or
warranty) or any investigation made by the Shareholders, the representations
and
warranties of the Buyer made herein shall survive the Closing and be effective
for a period of twelve (12) months from the date hereof.
4.3 Indemnity.
The
Buyer agrees to indemnify and save harmless ISDERA and the Shareholders from
and
against any and all claims, demands, actions, suits, proceedings, assessments,
judgments, damages, costs, losses and expenses, including any payment made
in
good faith in settlement of any claim (subject to the right of the Buyer to
defend any such claim), resulting from the breach by any of them of any
representation or warranty of such party made under this Agreement or from
any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by the Buyer to the Shareholders
hereunder.
4.4 Escrow.
$50,000
of the Purchase Price has been placed in escrow (the “Escrow Proceeds”) with
Xxxxxxx X. Xxxxx, Esq. Upon Closing of the transactions contemplated hereby,
the
Parties hereby authorize the release of the Escrow Proceeds equally to each
of
the Shareholders.
-9-
ARTICLE
5
FURTHER
COVENANTS
5.1 Legend. The
Buyer
agrees to the imprinting of the following legend on any certificates
representing the Shares:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES ARE “RESTRICTED SECURITIES” WITHIN THE MEANING
OF RULE 144(3) OF THE SECURITIES ACT AND MAY NOT BE RESOLD PUBLICLY UNDER RULE
144 UNTIL CERTAIN HOLDING PERIOD REQUIREMENTS ARE MET.”
5.2 Expenses
of the Parties.
Except
as otherwise expressly provided in this Agreement, all expenses incurred by
any
party to this Agreement in the preparation, negotiation, authorization and
consummation of this Agreement and the transactions contemplated hereby,
including all fees and expenses of agents, representatives, counsel and
accountants, shall be borne solely by the party incurring such expense(s),
with
the caveat that any expenses incurred by ISDERA shall be paid prior to the
Closing of the transactions contemplated hereby.
5.3 Further
Assurances.
Each
party shall cooperate with the other, take such further action and execute
and
deliver such further documents as may be reasonably requested by any other
party
in order to carry out the terms and purposes of this Agreement.
ARTICLE
6
CONDITIONS
PRECEDENT
6.1 Conditions
Precedent in favor of ISDERA and the Shareholders.
The
obligations of ISDERA and the Shareholders to carry out the transactions
contemplated hereby are subject to the fulfillment of each of the following
conditions precedent on or before the Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
ISDERA hereunder will have been so executed and
delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by the Buyer at or prior to the Closing will have been
complied with or performed; and
|
|
(c)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any.
|
6.2 Waiver
by ISDERA and the Shareholders.
The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of ISDERA and the Shareholders and any such condition may
be
waived in whole or in part by ISDERA or the Shareholders at or prior to Closing
by delivering to the Buyer a written waiver to that effect signed by ISDERA
or
the Shareholders, as the case may be. In the event that the conditions precedent
set out in the preceding section are not satisfied on or before the Closing,
the
Shareholders shall be released from all obligations under this
Agreement.
-10-
6.3 Conditions
Precedent in Favor of the Buyer.
The
obligation of the Buyer to carry out the transactions contemplated hereby is
subject to the fulfillment of each of the following conditions precedent on
or
before the Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
the ISDERA or the Shareholders hereunder will have been so executed
and
delivered;
|
|
(b)
|
ISDERA,
its officers and directors and each Shareholder shall be current
in their
respective filing obligations with the Securities and Exchange Commission
(it being understood that Schedule 13Ds and Forms 3 and 4 may be
required
to be filed by such parties, as
applicable);
|
|
(c)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by the Shareholders or ISDERA at or prior to the
Closing
will have been complied with or
performed;
|
|
(d)
|
ISDERA
will have delivered the Shares, duly and validly issued, to the Buyer
at
the Closing;
|
|
(e)
|
title
to the Shares will be free and clear of all mortgages, liens, charges,
pledges, security interests, encumbrances or other claims
whatsoever;
|
|
(h)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any;
|
|
(i)
|
the
completion of the transfer of all assets and liabilities of ISDERA
on or
prior to the Closing will have been completed to the satisfaction
of the
Buyer, which transfer shall reflected in the schedules provided
to the
Buyer as of the date of the Closing;
|
|
(j)
|
ISDERA
shall have no liabilities as of the Closing; and
|
|
(k)
|
The
Buyer shall have received from ISDERA’s counsel a legal opinion in form
and substance satisfactory to
ISDERA.
|
6.4 Waiver
by the Buyer.
The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of the Buyer and any such condition may be waived in whole
or
in part by the Buyer at or prior to the Closing by delivering to ISDERA and
Shareholders a written waiver to that effect signed by the Buyer. In the event
that the conditions precedent set out in the preceding section are not satisfied
on or before the Closing the Buyer shall be released from all obligations under
this Agreement.
6.5 Confidentiality
Notwithstanding any provision herein to the contrary, the parties hereto agree
that the existence and terms of this Agreement are confidential and that if
this
Agreement is terminated pursuant to the preceding section the parties agree
to
return to one another any and all financial, technical and business documents
delivered to the other party or parties in connection with the negotiation
and
execution of this Agreement and shall keep the terms of this Agreement and
all
information and documents received from the other party and the contents thereof
confidential and not utilize nor reveal or release same, provided, however,
that
ISDERA will be required to file a Current Report on Form 8-K with the Securities
and Exchange Commission respecting the proposed transaction contemplated hereby
together with such other documents as are required to maintain ISDERA’s status
as being current in all of its filings with the Securities and Exchange
Commission, subject to the review and approval of the Buyer of any and all
copy
and/or documents drafted by ISDERA.
-11-
ARTICLE
7
CLOSING
7.1 Closing.
The sale
of the Shares and the other transactions contemplated by this Agreement will
be
closed at the Place of Closing in accordance with the closing procedure set
out
in this Article.
7.2 Closing
Deliveries of the Buyer. On
or
before the Closing, the Buyer will deliver or cause to be delivered to the
Shareholders:
|
(a)
|
this
Agreement, duly executed by the
Buyer;
|
|
(b)
|
the
Purchase Price
|
|
(c)
|
all
reasonable consents or approvals required to be obtained by the Buyer
for
the purposes of completing the transaction contemplated herein and
preserving and maintaining the interests of the Buyer;
and
|
|
(d)
|
such
other documents as ISDERA may reasonably require to give effect to
the
terms and intention of this
Agreement.
|
7.3 Closing
Deliveries of ISDERA and
Shareholders.
On or
before the Closing, ISDERA and the Shareholders shall deliver or cause to be
delivered to the Buyer:
|
(a)
|
this
Agreement, duly executed by the
Shareholders;
|
|
(b)
|
share
certificates representing the
Shares;
|
|
(c)
|
resignations
of all of the officers of ISDERA as of the date
hereof;
|
|
(d)
|
updated
schedules of ISDERA and the Shareholders, dated as of the date of
the
Closing;
|
|
(e)
|
a
certified copy of a resolution of the directors of ISDERA dated as
of the
date hereof appointing the nominee(s) of the Buyer as officers of
the
Buyer;
|
|
(f)
|
a
certified copy of a resolution of the directors of ISDERA dated as
of the
date hereof appointing Xxxx Xxxxx to the board of directors of ISDERA
effective as of ten days after the delivery to the shareholders of
the
ISDERA of an Information Statement pursuant to Rule
14f;
|
|
(g)
|
resignation
of Xxxxxxxx Xxxxxxxx (sole director) as a director of ISDERA, effective
as
of ten days after the delivery to the shareholders of the ISDERA
of an
Information Statement pursuant to Rule
14f;
|
|
(h)
|
resignations
of all officers, including but not limited to Xxxxxxxx Xxxxxxxx,
as
officers of ISDERA dated as of the date
hereof;
|
|
(i)
|
all
reasonable consents or approvals required to be obtained by the Buyer
for
the purposes of completing the transaction contemplated herein and
preserving and maintaining the interests of the Buyer;
|
|
(j)
|
the
legal opinion of ISDERA’s counsel referred to in Section 6.3(j);
|
|
(k)
|
|
(l)
|
such
other documents as the Buyer may reasonably require to give effect
to the
terms and intention of this
Agreement.
|
-12-
ARTICLE
8
POST-CLOSING
MATTERS
Forthwith
after the Closing, the Buyer and the Shareholders agree to use all their best
efforts to:
|
(a)
|
file
with the Securities and Exchange Commission a report on Form 14f1
disclosing the change in control of ISDERA and, 10 days after such
filing,
date the resolutions appointing to the board of directors of ISDERA
Xxxx
Xxxxx, and forthwith date and accept the resignation of Xxxxxxxx
Xxxxxxxx
as a director of ISDERA;
|
|
(b)
|
file
a Form 8-K with the Securities and Exchange Commission disclosing
the
terms of this Agreement;
|
|
(c)
|
file
reports on Forms 13D and 3 with the Securities and Exchange Commission
disclosing the acquisition of the Shares by the Buyer;
and
|
|
(d)
|
take
such steps are required to change the name of ISDERA to as Buyer
may
determine.
|
ARTICLE
9
GENERAL
PROVISIONS
9.1 Arbitration.
The
parties hereto shall attempt to resolve any dispute, controversy, difference
or
claim arising out of or relating to this Agreement by negotiation in good faith.
If such good negotiation fails to resolve such dispute, controversy, difference
or claim within fifteen (15) days after any party delivers to any other party
a
notice of its intent to submit such matter to arbitration, then any party to
such dispute, controversy, difference or claim may submit such matter to
arbitration in Nassau County, New York.
9.2 Notice.
Any
notice required or permitted to be given by any party will be deemed to be
given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid single certified or registered mail,
or
telecopier. Any notice delivered by mail shall be deemed to have been received
on the fourth business day after and excluding the date of mailing, except
in
the event of a disruption in regular postal service in which event such notice
shall be deemed to be delivered on the actual date of receipt. Any notice
delivered personally or by telecopier shall be deemed to have been received
on
the actual date of delivery.
9.3 Addresses
for Service.
The
address for service of notice of each of the parties hereto is as
follows:
|
(a)
|
the
Shareholders:
|
|
Kingsgate
Development, Ltd.
|
|
|
Xxxxx
Xxxxx
|
|
|
00
Xxx Xxxxxxxxx
|
|
|
Xx
Xxxxxx, Xxxxxx XX0 0XX
|
|
|
Eastern
Glow Investment, Ltd.
|
|
|
XX
Xxx 0000, XX Xxxxx Xxxxx,
|
|
|
Xxxxxx
Street, Wickhams Cay 1
|
|
|
Road
Town, Tortola, British Virgin
Islands
|
-13-
|
(b)
|
the
Buyer:
|
|
Xxxxxx
Investments Limited
|
|
|
X.X.
Xxx 000, Xxxxxxxx Xxxxxxxxxxxxx Xxxxxx
|
|
|
Xxxx
Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
|
|
|
(x)
|
ISDERA
|
|
Isdera,
North America, Inc.
|
|
|
00
Xxxx Xxxxx
|
|
|
Xxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
|
9.4 Change
of Address.
Any
party may, by notice to the other parties change its address for notice to
some
other address in North America and will so change its address for notice
whenever the existing address or notice ceases to be adequate for delivery
by
hand. A post office box may not be used as an address for service.
9.5 Amendment.
This
Agreement may be amended only by a writing executed by each of the parties
hereto.
9.6 Entire
Agreement.
The
provisions contained herein constitute the entire agreement among the Buyer
and
the Shareholders respecting the subject matter hereof and supersede all previous
communications, representations and agreements, whether verbal or written,
among
the Buyer and the Shareholders with respect to the subject matter
hereof.
9.7 Enurement.
This
Agreement will enure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
9.9 Assignment.
This
Agreement is not assignable without the prior written consent of the parties
hereto.
9.10 Counterparts.
This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by telecopier will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
9.11 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and to be performed entirely
within such State. The parties agree to be subject to the exclusive jurisdiction
and venue of the state and federal courts located in Nassau County, New
York.
[Remainder
of page intentionally left blank.]
-14-
IN
WITNESS WHEREOF
the
parties have executed this Agreement effective as of the day and year first
above written.
|
Isdera
|
||
|
|
Isdera,
North America, Inc.
|
|
|
|
By:_________________________
|
|
|
Name:
Xxxxxxxx Xxxxxxxx
|
||
|
Title:
President
|
||
|
Shareholders:
|
||
|
Kingsgate
Development, Ltd.
|
||
|
|
||
|
|
|
By:_________________________
|
|
Name:
|
||
|
|
Eastern
Glow Investment, Ltd.
|
|
|
|
By:_________________________
|
|
|
Name:
|
||
|
Buyer:
|
||
|
Xxxxxx
Investments Limited
|
||
|
|
By:_________________________
|
|
|
Name:
Xxxx Xxxxx
|
||
|
Title: President
|
||
-15-
Exhibit
A
|
Name
of Shareholder
|
Number
of Shares
|
|||
|
Kingsgate
Development, Ltd.
|
1,097,200
|
|||
|
Eastern
Glow Investment, Ltd.
|
398,200
|
PURCHASE
PRICE ALLOCATION
|
Name
|
Dollar
Amount
|
|
Kingsgate
Development, Ltd.
|
$
179,760.60
|
|
Eastern
Glow Investment, Ltd.
|
$
65,239.40
|
-16-
