EXHIBIT 10.2
REGULATION S STOCK PURCHASE AGREEMENT
Dated December 20, 2001
For
BEECHPORT CAPITAL, INC. COMMON STOCK
TABLE OF CONTENTS
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PAGE
ARTICLE I. PURCHASE, SALE AND TERMS OF SHARES.............................2
1.1. The Shares......................................................2
1.2. Payment of Purchase Price; Closing..............................2
1.3. Covenants of Best Efforts.......................................3
1.4. Representations by the Purchaser................................3
1.5 Termination.....................................................6
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.1. Organization and Standing of the Company........................7
2.2. Corporate Action................................................7
2.3. Governmental Approvals..........................................8
2.4. Litigation......................................................8
2.5. Compliance with Other Instruments...............................8
2.6. Title to Assets; Intellectual Property Rights...................8
2.7. Taxes 9
2.8. Disclosure......................................................9
2.9. Brokers or Finders.............................................10
2.10. Capitalization; Status of Capital Stock........................10
2.11. SEC Reports............................................ 10
2.12. Books and Records..............................................10
2.13 Refusal of Registration ........................................11
2.14. Registration Rights.............................................11
ARTICLE III. MISCELLANEOUS
3.1. No Waiver; Cumulative Remedies.................................11
3.2. Amendments; Waivers and Consents...............................11
3.3. Addresses for Notices..........................................11
3.4. Costs; Expenses and Taxes......................................12
3.5. Effectiveness; Binding Effect; Assignment......................12
3.6. Survival of Representations and Warranties.....................12
3.7. Prior Agreements...............................................12
3.8. Severability...................................................12
3.9. Governing Law;Venue............................................12
3.10. Headings.......................................................13
3.11. Counterparts...................................................13
3.12. Further Assurances.............................................13
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Regulation S Stock Purchase Agreement, dated as of April 14, 2002 between
BEECHPORT CAPITAL INC., a Colorado corporation having offices at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 XXX (the "Company"), and Starz Investments
Limited, a Belize International business company, the registered address of
which is 00 Xxxxxx Xxxxxx, PO Box 364, Belize City, Belize (the "Purchaser").
ARTICLE I.
PURCHASE, SALE AND TERMS OF SHARES
1.1. THE SHARES. The Company agrees to issue and sell to the Purchaser
in an offshore transaction negotiated outside the U.S. and to be consummated and
closed outside the U.S. and, in consideration of and in express reliance upon
the representations, warranties, covenants, terms and conditions of this
Agreement, the Purchaser agrees to purchase from the Company up to 5,000,000
shares (the "Shares") of the Company's Common Stock at a per share purchase
price which shall be 35 % of the bid price of the Company's shares of Common
Stock as quoted on the OTC Bulletin Board (the "OTCBB") (or on such other United
States stock exchange or public trading market on which the shares of the
Company trade if, at the time of purchase, they are not trading on the OTCBB)
for the five (5) consecutive trading days immediately preceding the date (the
"Call Date") the purchase order (the "Purchase Notice") is received by the
Company (the "Purchase Price"), provided that the Purchase Price shall not be
less than a minimum Purchase Price of no less than $.20 (the "Floor Price"),
calculated as 35% of the 5-consequtive trading day average closing bid price.
1.1.1. In the event that the 35% of the 5-day average calculation of
the Purchase Price is less than the Floor Price, this contract will be suspended
until this average reaches the Floor Price or higher.
1.1.2. The company has the right to remove or alter its Floor Price at
any time provided that the Company notifies the Purchaser in writing and sends
the notice via registered post to the Purchaser's registered address, and
announces the removal or amendment to the Floor Price at least 10 business days
prior to the effective date of the new terms of business.
1.1.3. The Purchaser has the right to continue or suspend the entire
contract should the amended Floor Price not be considered beneficial to the
continuation of the purchase of shares, provided that all obligations of the
Company and the Purchaser are fulfilled as outlined in section 1.5 of this
Agreement.
1.2. PAYMENT OF PURCHASE PRICE; CLOSING. The transaction will be closed
in London, and the Purchaser will pay the purchase price by wire transfer of
immediately available funds within 5 business days upon receipt of the share
certificate(s).
1.3 COVENANT OF BEST EFFORTS. The Purchaser agrees to use its best
efforts to purchase the shares between now and February 28th, 2002.
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1.4 REPRESENTATIONS BY THE PURCHASER. The Purchaser makes the following
representations and warranties to the Company:
(a) ACCESS TO INFORMATION. The Purchaser, in making the
decision to purchase the Shares, has relied solely upon independent
investigations made by it and/or its representatives, if any. The Purchaser
and/or its representatives during the course of this transaction, and prior to
the purchase of any Shares, has had the opportunity to ask questions of and
receive answers from the management of the Company concerning the terms and
conditions of the offering of the Shares and to receive any additional
information, documents, records and books relative to its business, assets,
financial condition, results of operations and liabilities (contingent or
otherwise) of the Company.
(b) SOPHISTICATION AND KNOWLEDGE. The Purchaser and/or its
representatives has such knowledge and experience in financial and business
matters that it can represent itself and is capable of evaluating the merits and
risks of the purchase of the Shares. The Purchaser is not relying on the Company
with respect to the tax and other economic considerations of an investment in
the Shares, and the Purchaser has relied on the advice of, or has consulted
with, only the Purchaser's own advisor(s). The Purchaser represents that it has
not been organized for the purpose of acquiring the Shares.
(c) LACK OF LIQUIDITY. The Purchaser acknowledges that the
purchase of the Shares involves a high degree of risk and further acknowledges
that it can bear the economic risk of the purchase of the Shares, including the
total loss of its investment. The Purchaser has no present need for liquidity in
connection with its purchase of the Shares.
(d) NO PUBLIC SOLICITATION. The Purchaser is not subscribing
for the Shares as a result of or subsequent to any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or presented at any seminar or
meeting, or any solicitation of a subscription by a person not previously known
to the Purchaser in connection with investments in securities generally. Neither
the company nor the Purchaser has engaged in any `Directed Selling Efforts in
the U.S.' as defined in Regulation S promulgated by the SEC under U.S.
securities laws.
(e) AUTHORITY. The Purchaser has full right and power to enter
into and perform pursuant to this Agreement and make an investment in the
Company, and this Agreement constitutes the Purchaser's valid and legally
binding obligation, enforceable in accordance with its terms. The Purchaser is
authorized and otherwise duly qualified to purchase and hold the Shares and to
enter into this Agreement
(f) REGULATION S EXEMPTION. The Purchaser understands that the
Shares are being offered and sold to it in reliance on an exemption from the
registration requirements of United States federal and state securities laws
under Regulation S promulgated under the Securities Act and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set forth herein
in order to determine the applicability of such exemptions and the suitability
of the Purchaser to acquire the Shares. In this regard, the Purchaser
represents, warrants and agrees that:
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(i) The Purchaser is not a U.S. Person (as defined
below) and is not an affiliate (as defined in Rule 501(b) under the
Securities Act) of the Company. A U.S. Person means any one of the
following:
(A) Any U.S. Citizen
(B) Any natural person residentin the United
States of America;
(C) any partnership or corporation organized
or incorporated under the laws of the
United States of America;
(D) any estate of which any executor or
administrator is a U.S. person;
(E) any trust of which any trustee is a U.S.
person;
(F) any agency or branch of a foreign entity
located in the United States of America;
(G) any non-discretionary account or similar
account (other than an estate or trust)
held by a dealer or other fiduciary for
the benefit or account of a U.S. person;
(H) any discretionary account or similar
account (other than an estate or trust)
held by a dealer or other fiduciary
organized, incorporated or (if an
individual) resident in the United
States of America; and
(I) any partnership or corporation if:
(1) organized or incorporated
under the laws of an foreign
jurisdiction; and
(2) formed by a U.S. person
principally for the purpose of
investing in securities not
registered under the Securities Act,
unless it is organized or
incorporated, and owned, by
accredited investors (as defined in
Rule 501(a) under the Securities
Act) who are not natural persons,
estates or trusts.
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(ii) At the time of the origination of contact
concerning this Agreement and the date of the execution and delivery of
this Agreement, the Purchaser was outside of the United States.
(iii) The Purchaser will not, during the period
commencing on the date of issuance of the Shares and ending on the
first anniversary of such date, or such shorter period as may be
permitted by Regulation S or other applicable securities law (the
"Restricted Period"), offer, sell, pledge or otherwise transfer the
shares in the United States, or to a U.S. Person for the account or
benefit of a U.S. Person, or otherwise in a manner that is not in
compliance with Regulation S.
(iv) The Purchaser will, after expiration of the
Restricted Period, offer, sell, pledge or otherwise transfer the Shares
only pursuant to registration under the Securities Act or an available
exemption there from and, in accordance with all applicable state and
foreign securities laws.
(v) The Purchaser has not in any jurisdiction,
engaged in, and prior to the expiration of the Restricted Period will
not engage in, any short selling of or any hedging transaction with
respect to the Shares, including without limitation, any put, call or
other option transaction, option writing or equity swap.
(vi) Neither the Purchaser nor or any person acting
on its behalf has engaged, nor will engage, in any directed selling
efforts to U.S. Citizens with respect to the Shares and the Purchaser
and any person acting on its behalf have complied and will comply with
the "offering restrictions" requirements of Regulation S under the
Securities Act.
(vii) The transactions contemplated by this Agreement
have not been pre-arranged with a buyer located in the United States or
with a U.S. Person, and are not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(viii) Neither the Purchaser nor any person acting on
its behalf has undertaken or carried out any activity for the purpose
of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States, its territories or
possessions, for any of the Shares. The Purchaser agrees not to cause
any advertisement of the Shares to be published in any newspaper or
periodical or posted in any public place and not to issue any circular
relating to the Shares, except such advertisements that include the
statements required by Regulation S under the Securities Act, and only
offshore and not in the U.S. or its territories, and only in compliance
with any local applicable securities laws.
(ix) Each certificate representing the Shares shall
be endorsed with the following legends:
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(A) "THE SHARES ARE BEING OFFERED TO
INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE SECURITIES
ACT")) AND WITHOUT REGISTRATION WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN
RELIANCE UPON REGULATION S PROMULGATED UNDER THE SECURITIES
ACT."
(B) "TRANSFER OF THESE SHARES IS PROHIBITED,
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S,
PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT
TO AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS
MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT."
(C) Any other legend required to be placed
thereon by applicable federal or state securities laws.
(x) The Purchaser consents to the Company making a
notation on its records or giving instructions to any transfer agent of
the Company in order to implement the restrictions on transfer of the
Shares set forth in this Section 1.4.
1.5 TERMINATION. Either Party may terminate the agreement at any time
by providing a 10-business day written notification and sending it via
registered post to the registered address of the counter-party. After the
termination date, the Purchaser shall cease all further marketing efforts for
the Shares and shall no longer provide the Company with any new order to
purchase the Shares. In the event of termination by the Company, the following
conditions would be applicable.
A. Acceptance of the shares ordered at any time from receipt of the
termination notice and up to the last day of the 10-business day
notification period.
B. All share orders during the termination period and prior to the
termination period remain valid and enforceable for a further
period of 6 months in order to effect the following discharge of
responsibilities by the Parties:
By the company
a) cutting shares into individual names as specified by the
Purchaser for delivery as designated by the Purchaser,
b) correction of any certificates previously cut into individual
names that may have errors in spelling or quantities,
requiring amendment.
By the Purchaser
a) provision of lists if individual names of shareholders for
cutting by the Company.
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b) payment for shares ordered upon delivery of the individual
share certificates to the party designated by the Purchaser,
provided that said share certificates have been correctly cut.
c) notification of corrections to share certificates in
individual names until such time the share certificates are
delivered in a form which renders them eligible for payment
against stock order per above.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants as follows:
2.1. ORGANIZATION AND STANDING OF THE COMPANY. The Company is a duly
organized and validly existing corporation in good standing under the laws of
the State of California and has all requisite corporate power and authority for
the ownership and operation of its properties and for the carrying on of its
business as now conducted and as now proposed to be conducted and to execute and
deliver this Agreement and other instruments, agreements and documents
contemplated herein (together with this Agreement, the "Transaction Documents"),
to issue, sell and deliver the Shares and to perform its other obligations
pursuant hereto. The Company is duly licensed or qualified and in good standing
as a foreign corporation authorized to do business in all jurisdictions wherein
the character of the property owned or leased or the nature of the activities
conducted by it makes such licensing or qualification necessary, except where
the failure to be so licensed or qualified would not have a material adverse
effect on the business, operations or financial condition of the Company.
2.2. CORPORATE ACTION. The Transaction Documents have been duly
authorized, executed and delivered by the Company and constitute the legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms. The Shares have been duly authorized.
The issuance, sale and delivery of the Shares have been duly authorized by all
required corporate action on the part of the Company. The Shares, when issued
and paid for in accordance with the Transaction Documents, will be validly
issued, fully paid and non-assessable, with no personal liability attaching to
the ownership thereof and will be free and clear of all liens, charges,
restrictions, claims and encumbrances imposed by or through the Company, except
as expressly set forth in the Transaction Documents.
2.3. GOVERNMENTAL APPROVALS. No authorization, consent, approval,
license, exemption of or filing or registration with any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, is or will be necessary for, or in connection with, the execution and
delivery by the Company of this Agreement, for the offer, issue, sale, execution
or delivery of the Shares, or for the performance by the Company of its
obligations under the Transaction Documents except for any filings required by
applicable securities laws.
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2.4. LITIGATION. Except as set forth on Schedule 2.4, there is no
litigation or governmental proceeding or investigation pending or, to the
knowledge of the Company, threatened against the Company affecting any of its
properties or assets, nor, to the best knowledge of the Company, has there
occurred any event or does there exist any condition on the basis of which any
litigation, proceeding or investigation might properly be instituted. The
Company is not in default with respect to any order, writ, injunction, decree,
ruling or decision of any court, commission, board or other government agency,
which such default might have a material adverse effect on the business, assets,
liabilities, operations, Intellectual Property Rights, (as defined hereinafter)
management or financial condition of the Company. There are no actions or
proceedings pending or, to the Company's knowledge, threatened (or any basis
therefore known to the Company) against the Company which might result, either
in any case or in the aggregate, in any material adverse change in the business,
operations, Intellectual Property Rights, affairs or financial condition of the
Company or in any of its properties or assets, or which might call into question
the validity of any of the Transaction Documents, any of the Shares, or any
action taken or to be taken pursuant hereto or thereto.
2.5. COMPLIANCE WITH OTHER INSTRUMENTS. The Company is in compliance in
all respects with its Certificate of Incorporation and Bylaws, each as amended
and/or restated to date, and in all respects with the material terms and
provisions of all mortgages, indentures, leases, agreements and other
instruments by which it is bound or to which it or any of its properties or
assets are subject. The Company is in compliance in all material respects with
all judgments, decrees, governmental orders, laws, statutes, rules or
regulations by which it is bound or to which it or any of its properties or
assets are subject. Neither the execution and delivery of the Transaction
Documents nor the issuance of the Shares, nor the consummation or performance of
any transaction contemplated hereby or thereby, has constituted or resulted in
or will constitute or result in a default or violation of, create a conflict
with, trigger any "change of control" or other right of any Person under, or
require any consent, waiver, release or approval under or with respect to, any
term or provision of any of the foregoing documents, instruments, judgments,
agreements, decrees, orders, statutes, rules and regulations.
2.6. TITLE TO ASSETS; INTELLECTUAL PROPERTY RIGHTS. (a) The Company has
good and marketable title in fee to such of its fixed assets as are real
property, and good and merchantable title to all of its other assets, now
carried on its books, free of any mortgages, pledges, charges, liens, security
interests or other encumbrances. The Company enjoys peaceful and undisturbed
possession under all leases under which it is operating, and all said leases are
valid and subsisting and in full force and effect.
(b) The Company owns or has a valid right to use patents,
patent applications, patent right, trade secrets, confidential business
information, formula, processes, laboratory notebooks, algorithms, copyrights,
mask works, claims of infringement against third parties, licenses, permits,
license rights, contract rights with employees, consultants and third parties,
trademarks, trademark rights, inventions and discoveries, and all other
intellectual property, including, without limitation, all other such rights
generally classified as intangible, intellectual property assets in accordance
with GAAP (collectively the, "Intellectual Property Rights") being used to
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conduct its business as now operated and as now proposed by the Company to be
operated and to the best of the Company's knowledge, the conduct of its business
as now operated and as now proposed to be operated does not and will not
conflict with or infringe upon the Intellectual Property Rights of others. To
the best of the Company's knowledge, no claim is pending or threatened against
the Company and/or its officers, employees and consultants to the effect that
any such Intellectual Property Right owned or licensed by the Company, or which
the Company otherwise has the right to use, is invalid or unenforceable by the
Company.
(c) The Company has taken all reasonable measures to protect
and preserve the security, confidentiality and value of its Intellectual
Property Rights, including its trade secrets and other confidential information.
The Company is and will be the exclusive owner of all right, title and interest
in its Intellectual Property Rights as purported to be owned by the Company, and
such Intellectual Property Rights are valid and in full force and effect. The
Company has not received notice of and, to the best of the Company's knowledge
there are no claims that the Company's Intellectual Property Rights or the use
or ownership thereof by the Company infringes, violates or conflicts with any
such right of any third party.
2.7. TAXES. Except as set forth on Schedule 2.7, the Company has
accurately prepared and timely filed all federal, state and other tax returns
required by law to be filed by it, has paid or made provision for the payment of
all taxes shown to be due and all additional assessments, and adequate
provisions have been made and are reflected in the Company's financial
statements for all current taxes and other charges to which the Company is
subject and which are not currently due and payable.
2.8. DISCLOSURE. There is no fact within the knowledge of the Company
or any of its executive officers which has not been disclosed herein or in
writing by them to the Purchaser and which materially adversely affects, or in
the future in their opinion may, insofar as they can now foresee, materially
adversely affect the business, operations, properties, Intellectual Property
Rights, assets or condition, financial or other, of the Company. Without
limiting the foregoing, the Company has no knowledge that there exists, or there
is pending or planned, any patent, invention, device, application or principle
or any statute, rule, law, regulation, standard or code which would materially
adversely affect the business, operations, Intellectual Property Rights, affairs
or financial condition of the Company.
2.9. BROKERS OR FINDERS. No Person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest or valid claim
against or upon the Purchaser for any commission, fee or other compensation as a
finder or broker because of any act or omission by the Company or its respective
agents.
2.10. CAPITALIZATION; STATUS OF CAPITAL STOCK. As of the date hereof, the
Company had a total authorized capitalization consisting of 750,000,000 shares
of Common Stock, .001 par value. As of November 19, 2001, 12,092,000 shares of
Common Stock were issued and outstanding. All the outstanding shares of capital
stock of the Company have been duly authorized, and are validly issued, fully
paid and non-assessable. None of the Company's outstanding securities or
9
authorized capital stock or the Shares is subject to any rights of redemption,
repurchase, rights of first refusal, preemptive rights or other similar rights,
whether contractual, statutory or otherwise, for the benefit of the Company, any
stockholder, or any other Person. There are no restrictions on the transfer of
shares of capital stock of the Company other than those imposed by relevant
federal and state securities laws and as otherwise contemplated by this
Agreement. There are no agreements, understandings, trusts or other
collaborative arrangements or understandings concerning the voting or transfer
of the capital stock of the Company to which the Company is a party. The Company
does not have outstanding, and has no obligation to grant or issue, any "phantom
stock" or other right measured by the profits, revenues or results of operations
of the Company or any portion thereof; or any similar rights.
2.11. SEC REPORTS. TO BE INSERTED BY ITEC The Company has furnished the
Purchaser with true and complete copies of its reports on Form S-8 filed
September 17, 2001; Form NT 10-Q on November 15, 2001; and Form 10-QSB for the
quarter ending September 30, 2001 on November 20, 2001 (the "Current Reports")
which constitute the only documents that the Company was required to file with
the SEC since November 20th, 2001. As of their respective filing dates, the
Current Reports and all other filings made by the Company under the Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act")(collectively, the
"SEC Reports"), complied with the requirements of the Act or the 1934 Act, as
the case may be, and none of such filings contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
2.12. BOOKS AND RECORDS. The books of account, ledgers, order books,
records and documents of the Company accurately and completely reflect all
material information relating to the business of the Company, the location and
collection of its assets, and the nature of all transactions giving rise to the
obligations or accounts receivable of the Company.
2.13. REFUSAL OF REGISTRATION. The parties hereby acknowledge and agree
that the Company shall be required, as a term of this contract, to refuse to
register any transfer of the shares not made in accordance with the provisions
of Regulation S, or pursuant to Registration, or another exemption from
registration under the Securities Act.
2.14. REGISTRATION RIGHTS. Purchaser, and its successors and assigns,
shall have the right, in the event that the Company files a Registration
Statement under the Securities Act of 1933 at any time, in which one year after
the Call Date on each tranche of shares purchased, to have part or all of the
shares of the Company in such tranche(s) included in said Registration Statement
and registered under the Securities Act of 1933 (provided the form of
Registration Statement permits such inclusion under SEC rules).
The Company shall pay all costs of the registration of such shares.
The Company shall give the Purchaser, its successors and assigns, at least 30
days' written notice prior to filing such Registration Statement of Company's
intent to so file the Registration Statement, and Purchaser, its successors and
assigns, shall give written notice of intent to exercise such rights hereby
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granted, and the number of shares to be registered, within 15 days after receipt
of the Company's written notice. Otherwise, in the event that the company does
not file a Registration Statement upon or subsequent to one year of the Call
Date of the first (or any subsequent) tranche of shares, then the Purchaser, and
its successors and assigns, shall have the right to request Registration of any
tranche(s) of shares at any time after the one year restricted period from the
Call Date has elapsed.
The company agrees to undertake the registration of the shares in a full
Registration Statement as defined under the Securities Act of 1933 (provided the
form of Registration Statement permits such inclusion under SEC rules), as
requested by the Purchaser, its successors or assigns.
ARTICLE III.
MISCELLANEOUS
3.1. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
3.2. AMENDMENTS; WAIVERS AND CONSENTS. Any provision in the Agreement
to the contrary notwithstanding, and except as hereinafter provided, changes in,
termination or amendments of or additions to this Agreement may be made, and
compliance with any covenant or provision set forth herein may be omitted or
waived, if either Party shall obtain consent thereto in writing from the other
Party. Any waiver or consent may be given subject to satisfaction of conditions
stated therein and any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
3.3. ADDRESSES FOR NOTICES. Any notice or other communication required
or permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or delivered against receipt to
Company and/or to Purchaser at the addresses for each set forth above. Any
notice or other communication given by certified mail shall be deemed given at
the time of certification thereof, except for a notice changing a party's
address which shall be deemed given at the time of receipt thereof.
3.4. COSTS; EXPENSES AND TAXES. Upon execution of this Agreement and
with each delivery of the Purchase Price as set forth in 1.3, the Company shall
pay no monies in the aggregate, to cover fees and disbursements of counsel to
the Purchaser incurred in connection with the negotiation, drafting and
completion of the Transaction Documents and all related matters. The Company
shall pay any and all stamp, or other similar taxes payable or determined to be
payable in connection with the execution and delivery of this Agreement, the
issuance of any securities and the other instruments and documents to be
delivered hereunder or thereunder, and agrees to save the Purchaser harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes.
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3.5. EFFECTIVENESS; BINDING EFFECT; ASSIGNMENT. This Agreement shall
be binding upon and inure to the benefit of the Company, the Purchaser and the
respective successors and assigns.
3.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in the Transaction Documents, the Shares, or any other
instrument or document delivered in connection herewith or therewith, shall
survive the execution and delivery hereof or thereof.
3.7. PRIOR AGREEMENTS. The Transaction Documents executed and delivered
in connection herewith constitute the entire agreement between the parties with
respect to the subject matter set forth herein and supersede any prior
understandings or agreements concerning the subject matter hereof.
3.8. SEVERABILITY. The provisions of the Transaction Documents are
severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of a provision
contained therein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of such Transaction
Document and the terms of the Shares shall be reformed and construed as if such
invalid or illegal or unenforceable provision, or part of a provision, had never
been contained herein, and such provisions or part reformed so that it would be
valid, legal and enforceable to the maximum extent possible.
3.9. GOVERNING LAW; VENUE. (a)This Agreement shall be enforced,
governed and construed in accordance with the laws of New York without giving
effect to choice of laws principles or conflict of laws provisions. Any suit,
action or proceeding pertaining to this Agreement or any transaction relating
hereto shall be brought to the courts of New York in New York, United States of
America, and the undersigned hereby irrevocably consents and submits to the
jurisdiction of such courts for the purpose of any such suit, action, or
proceeding. Purchaser acknowledges and agrees that venue hereunder shall lie
exclusively in New York, United States of America.
(b) Purchaser hereby waives, and agrees not to assert against the
Company, or any successor assignee thereof, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, (i) any claim that the
Purchaser is not personally subject to the jurisdiction of the above-named
courts, and (ii) to the extent permitted by applicable law, any claim that such
suit, action or proceeding is brought in an inconvenient forum or that the venue
of any such suit, action or proceeding is improper or that this Agreement may
not be enforced in or by such courts.
3.10. HEADINGS. Article, section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
3.11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
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3.12. FURTHER ASSURANCES. From and after the date of this Agreement,
upon the request of the Purchaser or the Company, the Company and the Purchaser
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of the Transaction Documents and the Shares.
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be executed as of the date first above written.
BEECHPORT CAPITAL, INC.
By:
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Name: Xxxx De Laurentiis
Title: CEO/President
Beechport Capital
By:
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Name:
Title:
STARZ INVESTMENTS LTD
00 XXXXXX XXXXXX
XX XXX 000
XXXXXX XXXX, XXXXXX
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