SECURITIES PURCHASE AGREEMENT
Exhibit
99.1
THIS SECURITIES PURCHASE
AGREEMENT (the “Agreement”) dated as of August
20, 2008 to be effective August 25, 2008 by and among Xxx XX, Inc., a Delaware
corporation having its principal office at 0000 Xxxxxx Xxxx , Xxxxx X,
Xxxxxxxxx, Xxx Xxxx, 00000 (“Company ”), Xxxx Xxxxxxxxxx,
the sole and controlling shareholder of Company, having an office at 0000 Xxxxxx
Xxxx, Xxxxx X, Xxxxxxxxx, Xxx Xxxx, 00000 (“Shareholder ”), and Xxxxx Xxxxxxx,
an individual residing at 000 Xxxxx Xxx., Xxxxxx Xxxxxx, XX 00000 , Xxx
XxXxxxxxx, an individual residing at 0000 Xxxxx Xxxxx Xx., #000, Xxxxxx Xxxxxx,
XX 00000 and Xxxxx Xx, residing at 00 Xxxxx Xxx., Xxxxxx Xxxxxx, XX 00000 (“the
Purchasers”). Company, Shareholder and Purchasers are collectively
referred to herein as Parties. Shareholder and Purchasers are referred herein
collectively, after the Closing of this Agreement as (lower case)
“shareholder”.
RECITALS
WHEREAS, the Shareholder
currently owns all of the issued and outstanding equity interests of the
Company, constituting One Million (1,000,000) common shares (“Shareholder
Shares”); and
WHEREAS, Company is a
reporting issuer (a “blank check company”) pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the “ Exchange Act ”);
and
WHEREAS, the Shareholder owns
all of the Company’s issued and outstanding common stock and has entered into
this Agreement for the purpose of making certain representations, warranties,
covenants, indemnifications and agreements; and
WHEREAS, the Company wish to
sell, to Purchasers and Purchasers wishes to acquire, Thirteen Million Five
Hundred Thousand ( 13,500,000) shares of Company’s common stock, at a purchase
price of $0.0001 par value per share (the “ Purchaser Shares ”), subject to and
upon the terms and conditions hereinafter set forth herein (such purchase being
herein referred to as the “ Purchase ”); and
WHEREAS, as a result of the
consummation of the Purchase, the Shareholder will no longer control the
business and/or corporate affairs of Company; and
WHEREAS, the Boards of
Director of the Company deems it advisable and in the best interests of
respectively, the Company and the Company, that the Purchase is affected
pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE
1
SECURITIES
PURCHASE
1.1 Agreement to Purchase
Securities. Subject to the terms and upon the conditions set forth
herein, Company agrees to sell, assign, transfer and deliver to Purchasers, and
Purchasers agree to purchase from Company, at the Closing, Thirteen Million Five
Hundred Thousand common shares of Company (“Purchaser Shares”) for a Total
Purchase price of One Thousand Three Hundred Fifty dollars and no/100
($1,350.00) USD.
1.2 Closing. The closing of
the Purchase (the “Closing”) shall take place by overnight delivery (to the
office of Xxxxx Xxxxxxx, at 0000 Xxxxxx Xxxx Xx., Xxxxxx Xxxxxx, XX 10309) on
such date as is promptly as practicable following satisfaction or waiver of the
conditions set forth in Section 6.4 hereof, or on such other date or at such
other time and place as may be agreed to by the Company and Purchaser (“ Closing
Date ”).
1.3 Closing
Deliveries. At the Closing, the following deliveries shall be
made:
(a)
Documents. The documents and information required under Section 6.4;
and
(b)
Purchaser Shares. Company shall issue to the Purchaser original certificates
evidencing and representing 13,500,000 shares of Common Stock of Company (the “
Purchaser Shares ”) and deliver the Purchaser Share to the address in Section
1.2 hereinabove.
(c)
Separation and Release Agreement. Immediately after Closing,
Purchaser shall deliver to Shareholder a duly executed Separation and Release
Agreement substantially in the form of Exhibit 1.1 hereto.
(d)
Separation Shares. Immediately after Closing, Purchaser, shall issue and deliver
to the Shareholder One Million Five Hundred Thousand (1,500,000) shares of
Company required under the Separation and Release Agreement under Exhibit
1.1
(e) Other
Documents. The Company, Shareholder, and Purchaser shall each receive, in a form
and substance reasonably satisfactory to it, all certificates and other
documents, instruments and writings to evidence the transactions contemplated by
this Agreement from any other party hereto as it may reasonably
request.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES
OF THE PURCHASER
Purchaser,
represents, warrants and covenants to Company with respect to himself that the
following are correct and complete as of the date hereof, except insofar as the
representations and warranties relate expressly and solely to a particular date
or period, in which case the Purchasers, warrant and covenant to Company that
such representations and warranties were true, correct and complete with respect
to such date or period:
2.1 Power and Authority.
Purchaser has all requisite power and authority, or legal capacity, as the case
may be, to enter into and to carry out all of the terms of this Agreement and
all other documents executed and delivered in connection herewith (collectively,
the “ Documents ”). Any action on the part of the Purchaser necessary for the
authorization, execution, delivery and performance of the Documents by the
Purchaser has been taken and no further authorization is required to consummate
the transactions provided for in the Documents. When executed and delivered by
the Purchaser, the Documents shall constitute the valid and legally binding
obligation of the Purchaser enforceable in accordance with their respective
terms, subject to bankruptcy, moratorium, principles of equity and other
limitations limiting the rights of creditors generally. Purchaser is a natural
person is over the age of 21, has not been declared incompetent, and has the
right to execute, deliver and perform this Agreement and the other Documents
contemplated herein without the consent or joinder of any other Person or
Authority.
2.2
Investment and Related Representations.
(a)
Securities Laws Compliance. The Purchaser is aware that neither the Purchaser
Shares nor the offer or sale thereof to the
Purchaser has been registered under the Securities Act, or under any state or
foreign securities Laws. The Purchaser understands that the Purchaser Shares it
will receive will be characterized as “restricted” securities under United
States federal securities Laws inasmuch as they are being acquired in a
transaction not involving a public offering and that under such Laws and
applicable regulations such securities may be resold without registration under
the Securities Act only in certain limited circumstances. The Purchaser agrees
that the Purchaser will not sell all or any portion of Purchaser Shares except
pursuant to Regulations D or S under the Securities Act, pursuant to
registration under the Securities Act or pursuant to an other available
exemption from registration under the Securities Act. The Purchaser understands
that each certificate for Purchaser Shares issued to the Purchaser shall bear a
legend substantially as set forth below:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “1933 ACT”) OR ANY STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED,
HYPOTHECATED, ASSIGNED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT WITH RESPECT TO SUCH SHARES, OR WITH
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS BEING MADE IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS; AND
HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE 1933 ACT.
(b)
Investment Representation. This Agreement is made with the Company’s reliance
upon the Purchaser’s representation, which by the Purchaser’s execution of this
Agreement hereby confirms, that the Purchaser Shares to be received by the
Purchaser are being acquired pursuant to this Agreement for his own account, for
investment, and not with a view to the resale or distribution thereof (i) such
that the Purchaser would be considered an “underwriter” as such term is defined
in the Securities Act, and (ii) unless pursuant to an effective registration
statement or exemption under the Securities Act.
(c) No
Public Solicitation. The Purchaser is acquiring the Purchaser Shares after
private negotiation and has not been attracted to the acquisition of the
Purchaser Shares by any press release, advertising, publication, or other
general solicitation or through any directed selling efforts (as such term is
defined in Regulation S promulgated under the Securities Act) made in the United
States.
(d)
Access to Information. The Purchaser acknowledges that the reports (collectively
the “ SEC Reports ”) filed by Company with the SEC are publicly available, and
that the Purchaser has reviewed the SEC Reports to the extent that the Purchaser
deemed necessary and appropriate in making an investment decision
hereunder.
(e)
Investor Solicitation and Ability to Bear Risk to Loss . The Purchaser
acknowledges the acquisition of the Purchaser Shares is a highly speculative
investment, involving a high degree of risk and that he can bear the economic
risk of investment in such securities without producing a material adverse
change in Purchaser’s financial condition. The Purchaser otherwise has such
knowledge and experience in financial or business matters that the Purchaser is
capable of evaluating the merits and risks of the investment in the Purchaser
Shares.
(f) U.S.
Person Status. Purchaser is a U.S. resident and as such is considered a U. S.
Person as that term is defined in the U. S.
securities laws and regulations.
ARTICLE
3
JOINT REPRESENTATIONS AND WARRANTIES
OF COMPANY and SHAREHOLDER
Shareholder
and Company hereby jointly and severally represent and warrant to Purchaser that
the following are correct and complete as of the date hereof, except insofar as
the representations and warranties relate expressly and solely to a particular
date or period, in which case Company and Shareholder represent and warrant to
the Purchaser that such representations and warranties were true, correct and
complete with respect to such date or period:
3.1 Corporate Organization, Standing
and Power. Company is a corporation duly organized, validly existing and
in good standing
under the Laws of the State of Delaware with the requisite corporate power and
authority to carry on its business as it is now being conducted and to own,
operate and lease its properties and assets, is duly qualified or licensed to do
business as a foreign corporation in good standing in every other jurisdiction
in which the character or location of the properties and assets owned, leased or
operated by it or the conduct of its business requires such qualification or
licensing. Complete and correct copies of Company’s certificate of incorporation
and bylaws have previously been made available to the Purchaser
3.2 Capitalization;
Subsidiaries.
(a)
Company is authorized by its Certificate of Incorporation to issue an aggregate
of 260,000,000 shares of capital stock, of which 250,000,000 are shares of
Common Stock, par value $.0001 per share and 10,000,000 are shares of Preferred
Stock, par value $.0001 per share. Company has 1,000,000 shares of common stock
issued and outstanding (the “ Shareholder Shares ”), all of which are owned of
record by the Shareholder, and no other shares of any class or series of capital
stock issued and outstanding. All of the Shareholder Shares have been duly
authorized and are validly issued, fully paid and non-assessable and are
without, and were not issued in violation of, preemptive rights.
(b)
Company does not have any outstanding bonds, debentures, notes or other
indebtedness which (i) have the right to vote (or are convertible or exercisable
into securities having the right to vote) on any matter, or (ii) are or will
become entitled to receive any payment in shares or equity as a result of the
consummation of the transactions contemplated herein. Other than as above or as
contemplated by this Agreement, there is no subscription, option, warrant, call,
right, contract, agreement, commitment, understanding or arrangement to which
Company is a party, or by which it is bound, with respect to the issuance, sale,
delivery or transfer of the capital securities of Company, including any right
of conversion or exchange under any security or other instrument.
(c)
Company does not own, and has never owned, directly or indirectly, any equity
interest in any other entity.
3.3 Authorization. Company has
all requisite corporate power and authority to enter into, execute, deliver, and
perform its obligations under this Agreement. The Board of Directors of Company
has taken all action required by Law, Company's certificate of incorporation and
bylaws or otherwise to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein. This
Agreement has been duly and validly executed and delivered by Company and is the
valid and binding legal obligation of Company enforceable against Company in
accordance with its terms, subject to bankruptcy, moratorium, principles of
equity and other limitations limiting the rights of creditors
generally.
3.4
Non-Contravention. Neither the execution, delivery and
performance of this Agreement, nor the consummation of the transactions
contemplated herein will:
(a)
violate any provision of the certificate of incorporation or bylaws of Company;
or
(b) be in
conflict with, or constitute a default, however defined (or an event which, with
the giving of due notice or lapse of time, or both, would constitute such a
default), under, or cause or permit the acceleration of the maturity of, or give
rise to, any right of termination, cancellation, imposition of fees or penalties
under, any debt, note, bond, lease, mortgage, indenture, license, obligation,
contract, commitment, franchise, permit, instrument or other agreement or
obligation to which Company is a party or by which Company or any of its
properties or assets is or may be bound;
(c)
result in the creation or imposition of any Encumbrance upon any property or
assets of Company under any debt, obligation, contract, agreement or commitment
to which Company is a party or by which Company or any of their respective
assets or properties is or may be bound; or
(d)
materially violate any Law of any Authority.
3.5 Consents and
Approvals. No Consent is required by any person or entity,
including any Authority, in connection with the execution, delivery and
performance of this Agreement by Company or the consummation of the transactions
contemplated herein, other than any Consent which have been obtained or are
required pursuant to this Agreement or applicable securities Laws.
3.6 Valid Issuance. The
Purchaser Shares to be issued in connection with this Agreement have been duly
authorized and, when issued and delivered and upon the delivery of the
consideration therefore as provided in this Agreement, will be validly issued,
fully paid and non-assessable and will not be subject to any restrictions,
except those under United States federal and state securities Laws.
3.7
SEC Filings; Financial Statements.
(a) All
statements, reports, schedules, forms and other documents required to have been
filed by Company with the SEC have been so filed on a timely basis. As of the
time it was filed with the SEC (or, if amended or superseded by a filing prior
to the date of this Agreement, then on the date of such filing): (i) each of the
SEC Reports complied in all material respects with the applicable requirements
of the Securities Act or the Securities Exchange Act of 1934 (the “Exchange Act”
); and (ii) none of the SEC Reports 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 statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) The
financial statements contained in the SEC Reports: (i) complied as to form in
all material respects with the published rules and regulations of the SEC
applicable thereto; (ii) were prepared in accordance with GAAP applied on a
consistent basis throughout the periods covered (except as may be indicated in
the notes to such financial statements and, in the case of unaudited statements,
as permitted by Form 10-QSB of the SEC); and (iii) fairly present, in all
material respects, the financial position of Company as of the respective dates
thereof and the results of operations of Company for the periods covered
thereby. All adjustments considered necessary for a fair presentation of such
financial statements have been included.
3.8 No
Liabilities. Company has no liabilities, obligations, or
contingencies (whether absolute, accrued, or contingent) (each a “ Liability ”
and collectively, “ Liabilities ”) except for (i) Liabilities expressly stated
in the most recent balance sheet included in the SEC Reports or the notes
thereto and (ii) Liabilities which do not exceed US$48,000.00 in the
aggregate.
3.9 Assets. The
sole assets of Company are any cash in any bank account of Company. There are no
Encumbrances on any assets of Company.
3.10 Real Property;
Leases. Company owns no real property and is not party to any
lease or sublease for any real property or personal
property.
3.11 Litigation. There is no
legal, administrative, arbitration, or other proceeding, suit, claim or action
of any nature or investigation, review or audit of any kind, or any judgment,
decree, decision, injunction, writ or order pending, noticed, scheduled, or, to
the knowledge of Company, threatened or contemplated by or against or involving
Company, its assets, properties or business or its directors, officers, agents
or employees (but only in their capacity as such), whether at law or in equity,
before or by any person or entity or Authority, or which questions or challenges
the validity of this Agreement or any action taken or to be taken by the parties
hereto pursuant to this Agreement or in connection with the transactions
contemplated herein.
3.12 Contracts and Commitments; No
Default. Company is not a party to, nor are any of its assets
bound by, any contract, oral or written (each, a“ Company Contract ”), that is
not disclosed in the SEC Reports. None of the Company Contracts contains a
provision requiring the consent of any party with respect to the consummation of
the transactions contemplated by this Agreement. Company is not in breach,
violation or default, however defined, in the performance of any of its
obligations under any of the Company Contracts, and no facts and circumstances
exist which, whether with the giving of due notice, lapse of time, or both,
would constitute such breach, violation or default thereunder or thereof, and,
to the knowledge of Company or Shareholder, no other parties thereto are in a
breach, violation or default, however defined, thereunder or thereof, and no
facts or circumstances exist which, whether with the giving of due notice, lapse
of time, or both, would constitute such a breach, violation or default
thereunder or thereof.
3.13 No Broker or
Finder. No broker, finder or investment banker is entitled to
any brokerage, finders or other fee or commission in connection with any of the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Company.
3.14 Inter-company and Affiliate
Transactions; Insider Interests. Except as disclosed in the SEC Reports,
there are, and during the last three years there have been, no transactions,
agreements or arrangements of any kind, direct or indirect, between Company, on
the one hand, and any director, officer, employee, stockholder, or affiliate of
Company, on the other hand, including loans, guarantees or pledges to, by or for
Company or from, to, by or for any of such persons, that are currently in
effect.
3.15 No Adverse
Changes. There has been no material adverse change in the
business, financial condition, prospects, assets or operations of Company since
July 31, 2008.
3.16 Compliance With Law; Permits and
Other Operating Rights. The assets, properties, business and
operations of Company are and have been in compliance in all respects with all
Laws applicable to Company's assets, properties, business and operations.
Company possesses all permits, licenses and other authorizations from all
Authorities necessary to permit it to operate its business in the manner in
which it presently is conducted and the consummation of the transactions
contemplated by this Agreement will not prevent Company from being able to
continue to use such permits and operating rights. Company has not received
notice of any violation of any such applicable Law, and is not in default with
respect to any order, writ, judgment, award, injunction or decree of any
Authority.
3.17 Taxes. Company has duly
filed when due all tax reports and returns in connection with and in respect of
its business, assets and employees, and has timely paid and discharged all
amounts shown as due thereon. Company has not received any notice of any tax
deficiency outstanding, proposed or assessed against or allocable to it, and has
not executed any waiver of any statute of limitations on the assessment or
collection of any tax or executed or filed with any Authority any agreement now
in effect extending the period for assessment or collection of any taxes against
it.
3.18 Accuracy of Information.
No representation or warranty made by Company or Shareholder in this
Agreement or in any agreement or certificate furnished or to be furnished to the
Purchaser at the Closing by or on behalf of Company in connection with any of
the transactions contemplated by this Agreement contains or will contain any
untrue statement of material fact or omits or will omit to state any material
fact necessary in order to make the statements herein or therein not misleading
in light of the circumstances in which they are made, and all of the foregoing
completely and correctly present the information required or purported to be set
forth herein or therein.
ARTICLE
4
SEPARATE REPRESENTATIONS AND
WARRANTIES OF THE SHAREHOLDER
The
Shareholder warrants and covenants to Purchaser as follows:
4.1 Power and
Authority. The Shareholder has all requisite power and
authority to enter into and to carry out all of the terms of this Agreement and
all other documents executed and delivered in connection herewith (collectively,
the “ Documents ”). All action on the part of the Shareholder necessary for the
authorization, execution, delivery and performance of the Documents by the
Shareholder has been taken and no further authorization on the part of the
Shareholder is required to consummate the transactions provided for in the
Documents, except as set forth in Section 6.4. When executed and delivered by
the Shareholder, the Documents shall constitute the valid and legally binding
obligation of the Shareholder enforceable in accordance with their respective
terms.
4.2. Ownership of and Title to
Securities. The Shareholder as of the date hereof is the
record owner of all of the Shareholder Shares, which constitute one hundred
(100%) of Company’s issued and outstanding securities. The Shareholder has good
and marketable title to the Shareholder Shares which she owns, free and clear of
all pledges, security interests, mortgages, liens, claims, charges, restrictions
or encumbrances of any kind, except for any restrictions imposed by federal or
state securities laws.
ARTICLE
5
COVENANTS OF THE COMPANY and
COVENANTS of the PARTIES
5.1 Conduct of
Business. Except as contemplated by this Agreement, during the
period from the date of this Agreement to the Closing Date, Company shall
conduct its business and operations according to its ordinary and usual course
of business consistent with past practices. Without limiting the generality of
the foregoing, and, except as otherwise expressly provided in this Agreement,
prior to the Closing Date, without the prior written consent of the Purchaser
the Company shall not:
(a) amend
its certificate of incorporation, articles of association, bylaws or memorandum
of association, as the case may be;
(b)
issue, reissue, sell, deliver, or pledge, or authorize or propose the issuance,
reissuance, sale, delivery or pledge of shares of capital stock of any class, or
securities convertible into capital stock of any class, or any rights, warrants
or options to acquire any convertible securities, or capital stock;
(c)
adjust, split, combine, subdivide, reclassify or redeem, purchase or otherwise
acquire, or propose to redeem or purchase or otherwise acquire, any shares of
its capital stock, or any of its other securities;
(d)
declare, set aside or pay any dividend or distribution (whether in cash, stock
or property or any combination thereof) in respect of its capital stock, redeem
or otherwise acquire any shares of its capital stock or other securities, or
alter any term of any of its outstanding securities;
(e) (i)
increase in any manner the compensation of any of its directors, officers or
other employees; (ii) pay or agree to pay any pension, retirement allowance or
other employee benefit not required or permitted by any existing plan, agreement
or arrangement to any such director, officer or employee, whether past or
present; or (iii) create or commit itself to any additional pension,
profit-sharing, bonus, incentive, deferred compensation, stock purchase, stock
option, stock appreciation right, group insurance, severance pay, retirement or
other employee benefit plan, agreement or arrangement, or to any employment
agreement or consulting agreement (arising out of prior employment) with or for
the benefit of any person, or, except to the extent required to comply with
applicable law, amend any of such plans or any of such agreements in existence
on the date of this Agreement;
(f)
incur, assume, suffer or become subject to, whether directly or by way of
guarantee or otherwise, any Liabilities which, individually or in the aggregate,
exceed US$48,000.00;
(g) make
or enter into any commitment for capital expenditures which, individually or in
the aggregate, exceed US$48,000.00;
(h) pay,
lend or advance any amount to, or sell, transfer or lease any properties or
assets (real, personal or mixed, tangible or intangible) to, or enter into any
agreement or arrangement with, any of its officers or directors or any affiliate
or associate of any of its officers or directors;
(i)
terminate, enter into or amend in any material respect any contract, agreement,
lease, license or commitment, or take any action or omit to take any action
which will cause a breach, violation or default (however defined) under any
contract, except in the ordinary course of business and consistent with past
practice;
(j)
acquire any of the business or assets of any other person or
entity;
(k)
permit any of its current insurance (or reinsurance) policies to be cancelled or
terminated or any of the coverage thereunder to lapse, unless simultaneously
with such termination, cancellation or lapse, replacement policies providing
coverage equal to or greater
than coverage remaining under those cancelled, terminated or lapsed are in full
force and effect;
(l) enter
into other material agreements, commitments or contracts not in the ordinary
course of business or in excess of current requirements;
(m)
initiate, settle or compromise any suit, claim or dispute or threatened suit,
claim or dispute;
(n) make
any changes in accounting methods or policies or make any change in its
auditors; or
(o) agree
in writing or otherwise to take any of the foregoing actions or any action which
would make any representation or warranty in this Agreement untrue or incorrect
in any material respect.
5.2 Full Access. Throughout
the period prior to the Closing, Company shall afford to the Purchaser and his
employees, counsel, accountants, investment advisors and other authorized
representatives and agents, reasonable access to the facilities, properties,
books and records of Company in order that Purchaser may have full opportunity
to make such investigations as Purchaser shall desire to make of the affairs of
the disclosing party. Company shall furnish Purchaser such additional financial
and operating data and other information as the Purchaser, from time to time,
reasonably request, including access to the working papers of its independent
certified public accountants; provided, however , that any such investigation
shall not affect or otherwise diminish or obviate in any respect any of the
representations and warranties of the disclosing party.
5.3
Confidentiality. Each of the parties hereto agrees that it
shall not use, or permit the use of, any of the information relating to any
other party hereto furnished to it in connection with the transactions
contemplated herein ( “Information ”) in a manner or for a purpose detrimental
to such other party or otherwise than in connection with the transaction, and
that they shall not disclose, divulge, provide or make accessible (collectively,
“ Disclose ”), or permit the Disclosure of, any of the Information to any person
or entity, other than their respective directors, officers, employees,
investment advisors, accountants, sources of financing, counsel and other
authorized representatives and agents, except as may be required by judicial or
administrative process or, in the opinion of such party's counsel, by other
requirements of Law; provided , however , that prior to any Disclosure of any
Information permitted hereunder, the disclosing party will first obtain the
recipients' agreement to comply with the provisions of this Section 5.3 with
respect to such information. Notwithstanding the foregoing, the confidentiality
obligations of this Section 5.3 will not apply after the Closing to any
Information furnished to the Purchaser regarding Company or its business. The
term “ Information ” does not include any information relating to a party that
the party disclosing such information can show: (i) to have been in its
possession prior to its receipt from another party hereto; (ii) to be now or to
later become generally available to the public through no fault of the
disclosing party; (iii) to have been available to the public at the time of its
receipt by the disclosing party; (iv) to have been received separately by the
disclosing party in an unrestricted manner from a person entitled to disclose
such information; or (v) to have been developed independently by the disclosing
party without regard to any information received in connection with this
transaction. Each party hereto agrees to promptly return to the party from whom
it originally received such information all original and duplicate copies of
written materials containing Information if the Purchase does not occur. A party
hereto shall be deemed to have satisfied its obligations to hold the Information
confidential if it exercises the same care as it takes with respect to its own
similar information.
5.4 Filings; Consents; Removal of
Objections. Subject to the terms and conditions herein
provided, the parties hereto shall use their reasonable best efforts to take or
cause to be taken all actions and do or cause to be done all things necessary,
proper or advisable under applicable Laws to consummate and make effective, as
soon as reasonably practicable, the transactions contemplated hereby, including
without limitation obtaining all Consents of any person or entity, whether
private or governmental, required in connection with the consummation of the
transactions contemplated herein. In furtherance, and not in limitation of the
foregoing, it is the intent of the parties to consummate the transactions
contemplated herein at the earliest practicable time, and they respectively
agree to exert commercially reasonable efforts to that end, including without
limitation: (i) the removal or satisfaction, if possible, of any objections to
the validity or legality of the transactions contemplated herein; and (ii) the
satisfaction of the conditions to consummation of the transactions contemplated
hereby.
5.5 Name & Address and RA and TA
shall remain the same. The Company shall take all actions
necessary, including, but not limited to, obtaining shareholder consent, on or
prior or within five (5) days after Closing to:
(a) The
Company shall change its address to 0000 Xxxxxx Xxxx Xx., Xxxxxx Xxxxxx, XX
00000 on or prior to the Closing Date.
(b) the
registered agent for Company shall remain.
(c) the
Transfer Agent for Company shall remain.
5.6
Further Assurances; Cooperation; Notification.
(a) Each
party hereto shall, before, at and after Closing, execute and deliver such
instruments and take such other actions as the other party or parties, as the
case may be, may reasonably require in order to carry out the intent of this
Agreement. Without limiting the generality of the foregoing, at any time after
the Closing, at the reasonable request of Company and without further
consideration, the Company and Shareholder shall execute and deliver such
instruments of sale, transfer, conveyance, assignment and confirmation and take
such action as Purchaser may reasonably deem necessary or desirable in order to
more effectively consummate the transactions contemplated hereby.
(b) At
all times from the date hereof until the Closing, each party shall promptly
notify the other in writing of the occurrence of any event which it reasonably
believes will or may result in a failure by such party to satisfy the conditions
specified in this Article 5.
5.7 Public Announcements. None
of the parties hereto shall make any public announcement with respect to the
transactions contemplated herein without the prior written consent of the
Company, which consent shall not be unreasonably withheld or delayed; provided ,
however , that any of the parties hereto may at any time make any announcements
that are required by applicable Law so long as the party so required to make an
announcement promptly upon learning of such requirement notifies the other
parties of such requirement and discusses with the other parties in good faith
the exact proposed wording of any such announcement.
5.8 Satisfaction of Conditions
Precedent. Each party shall use commercially reasonable
efforts to satisfy or cause to be satisfied all the conditions precedent that
are applicable to them, and to cause the transactions contemplated by this
Agreement to be consummated, and, without limiting the generality of the
foregoing, to obtain all material consents and authorizations of third parties
and to make filings with, and give all notices to, third parties that may be
necessary or reasonably required on its part in order to effect the transactions
contemplated hereby.
5.9 Delivery of Purchaser
Shares. Company covenants and undertakes, following the
Closing pursuant to Article 1 of this Agreement, to cause the original
certificates evidencing the Purchaser Shares to be delivered to the
Purchaser.
ARTICLE
6
CONDITIONS TO OBLIGATIONS OF THE
COMPANY AND SHAREHOLDER
Notwithstanding
anything in this Agreement to the contrary, the obligations of the Company and
Shareholder to effect the transactions contemplated herein will be subject to
the satisfaction at or prior to the Closing, or waiver by the Purchaser, of each
of the following conditions:
6.1 Representations and Warranties
True. The representations and warranties of Company and
Shareholder contained in this Agreement shall be true, complete and accurate in
all material respects as of the date when made and at and as of the Closing, as
though such representations and warranties were made at and as of such time,
except for changes permitted or contemplated in this Agreement, and except
insofar as the representations and warranties relate expressly and solely to a
particular date or period, in which case they shall be true and correct at the
Closing with respect to such date or period.
6.2
Performance. Company and Shareholder shall have performed and
complied in all material respects with all agreements, covenants, obligations
and conditions required by this Agreement to be performed or complied with by,
respectively, Company and the Shareholder, at or prior to the
Closing.
6.3
Required Approvals and Consents.
(a) All
action required by law and otherwise to be taken by the directors and
stockholders of Company to authorize the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby
shall have been duly and validly taken.
(b) All
Consents of or from all Authorities required hereunder to consummate the
transactions contemplated herein, shall have been delivered, made or obtained,
and the Company shall have received copies thereof.
(c) all
Consents under all applicable Laws from all applicable Authorities in form and
substance satisfactory to the Purchaser shall have been obtained and shall be in
full force and effect.
6.4 Agreements and
Documents. The Purchaser shall have received the following
agreements and documents, each of which shall be in full force and
effect:
(a) a
copy of the written consent of the board of directors of Company, executed by
all such directors, approving the transactions contemplated by this Agreement,
including the issuance of the Purchaser Shares;
(b) a
certified list of the record holders of capital stock of Company as of the most
recent practicable date evidencing all of the shares of Company’s capital stock
issued and outstanding;
(c) a
certificate of good standing of Company from the State of Delaware and any other
states where Company is qualified to do business, as of the most recent
practicable date;
(d)
written resignations of the officers and directors of Company, effective as of
the Closing, and evidence that prior to their resignations, the pre-Closing
directors of Company appointed to the board of directors of Company the persons
designated by the Purchaser, to be effective as of the Closing;
(e) a
copy of a written consent of the board of directors of Company regarding the
change of the list of authorized banking signatories for all bank and depositary
accounts of Company to persons nominated by the Company;
(f) all
books and records of Company;
(g) the
agreements and documents contemplated in Article 1 hereof;
(h) the
corporate recordbook and corporate deal of Company; and
(i) the
Xxxxx codes for SEC filings
6.5 Adverse
Changes. No Material Adverse Effect shall have occurred with
respect to Company since July 31, 2008.
6.6 No Proceeding or
Litigation. No suit, action, investigation, inquiry or other
proceeding by any Authority or other person or entity shall have been instituted
or threatened which delays or questions the validity or legality of the
transactions contemplated hereby or which, if successfully asserted, would, in
the reasonable judgment of the Company, individually or in the aggregate,
otherwise have a Material Adverse Effect on Company’s business, financial
condition, prospects, assets or operations or prevent or delay the consummation
of the transactions contemplated by this Agreement.
6.7 Legislation. No
Law shall have been enacted which prohibits, restricts or delays the
consummation of the transactions contemplated hereby or any of the conditions to
the consummation of such transaction.
6.8 Filings; Press
Releases. Company shall have made such filings and press
releases, in form and substance satisfactory to the Company, as may be requested
by the Purchaser to comply with any disclosure requirements under the U.S.
securities regulations or other applicable Laws.
6.9 Appropriate Documentation.
The Company shall have received, in a form and substance reasonably
satisfactory to Company, dated the Closing Date, copies of all documents,
instruments and writings to evidence the fulfillment of the conditions set forth
in this Article 6 as the Purchaser may reasonably request.
6.10 Charter
Documents. The charter documents of Company shall be, or shall
be amended to be, in form and substance, satisfactory to the
Purchaser.
6.11 SEC
Filings. Company shall have prepared a Form 8-K and all other
required filings with the SEC relating to the Closing and such filings shall be
in form and substance satisfactory to the Purchaser and ready for filing.
Company shall remain an Exchange Act reporting company and no action shall have
been taken by Company or any Authority to terminate Company's Exchange Act
registration of its common stock.
6.12
Resignation. Each of the officers and directors of Company
shall have tendered resignations in form and substance satisfactory to the
Company, effective at the Closing, and such resignations shall not have been
revoked or modified in any way.
ARTICLE
7
TERMINATION AND
ABANDONMENT
7.1 Termination by Either the Company
or Purchaser. This Agreement may be terminated by either the
Company or Purchaser at any time if there has been a breach by the other of any
representation, warranty, or covenant which breach remains uncured for a period
of 30 days following written notice thereof given in accordance with Section 8.6
hereof. This Agreement may be terminated at any time by the mutual consent of
the Company and Purchaser. This Agreement shall automatically terminate if the
Purchase has not been consummated by August 1, 2008. If this Agreement so
terminates, all parties hereto shall be absolved from any claims or liabilities
arising from and in connection with this Agreement.
7.2 Procedure and Effect of
Termination. If this Agreement is terminated as provided
herein:
(a) Each
of the parties shall, upon request, redeliver all documents, work papers and
other material of the other parties relating to the transactions contemplated
hereby, whether obtained before or after the execution hereof, to the party
furnishing the same;
(b) No
party shall have any liability for a breach of any representation, warranty,
agreement, covenant or the provision of this Agreement, unless such breach was
due to a willful or bad faith action or omission of such party or any
representative, agent, employee or independent contractor thereof;
and
(c) All
filings, applications and other submissions made pursuant to the terms of this
Agreement shall, to the extent practicable, be withdrawn from the agency or
other person to which made.
ARTICLE
8
MISCELLANEOUS
PROVISIONS
8.1 Survival of Representations,
Warranties and Covenants. All of the representations,
warranties and covenants of the Company and the Shareholder in this Agreement in
Articles 3, 4 and 5 or in any instrument delivered pursuant to this Agreement
shall survive the Closing hereof.
8.2 Expenses. Company,
Shareholder, and the Purchaser shall each bear their own costs and expenses
relating to the transactions contemplated hereby, including fees and expenses of
legal counsel, accountants, investment bankers, brokers or finders, printers,
copiers, consultants or other representatives for the services used, hired or
connected with the transactions contemplated hereby.
8.3 Amendment; Waivers. No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company, the Shareholder
and the Purchaser; or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought.
8.4 Waiver of Compliance; Consents.
Any failure of a party to comply with any obligation, covenant, agreement
or condition herein may be expressly waived in writing by the Purchaser, but
such waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. No single or partial exercise
of a right or remedy shall preclude any other or further exercise thereof or of
any other right or remedy hereunder. Whenever this Agreement requires or permits
the consent by or on behalf of a party, such consent shall be given in writing
in the same manner as for waivers of compliance.
8.5 “Piggy-back” Registration
Rights. If at any time during the six-month period following
the Closing Date there is not an effective registration statement (other than on
Form S-4 or Form S-8, each as promulgated under the Securities Act) covering any
of Company’s shares, the Shareholder may determine to prepare and file with the
SEC a registration statement relating to an offering for her own account under
the Securities Act of any of her equity securities, relating to Shareholder’s
securities issued or to be issued in connection with this Agreement. Further any
acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans, then Company shall
send to Shareholder written notice of such determination and, if within fifteen
days after receipt of such notice, Shareholder shall so request in writing, and
Company shall include in such registration statement all or any part of such the
Shareholder Shares such holder requests to be registered. If, in connection with
any underwritten offering for the account of Company the managing underwriter(s)
thereof shall impose a limitation on the number of shares of Common Stock which
may be included in the registration statement because, in such underwriter(s)'
judgment, such limitation is necessary to effect an orderly public distribution
of securities covered thereby, then Company shall be obligated to include in
such registration statement only such limited portion of Shareholder
Shares
for which Shareholder has requested inclusion hereunder as such underwriter(s)
shall permit. Other than this piggy-back registration obligation, nothing in
this Agreement shall entitle any party hereto to any claim, cause of action,
remedy or right of any kind with respect to the registration
rights.
8.6 Notices. All
notices, requests, demands and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
and effective: (i) on the date of delivery, if delivered personally; (ii) on the
date of transmission, if sent by facsimile, telecopy, telex or other similar
telegraphic communications equipment; (iii) one business day after delivery to
an overnight delivery courier service for next-business day delivery; or (iv) on
the fifth business day following the date of mailing, if sent by registered
mail, return receipt requested, postage prepaid, and in each case addressed to
such party at the following address:
If to the Purchaser or, following the
Closing, to Company, at:
To
Purchasers:
Xxxxx
Xxxxxxx
000
Xxxxx Xxx.
Xxxxxx
Xxxxxx, XX 00000
Phone:
(000) 000-0000
Xxx
XxXxxxxxx
0000
Xxxxxxx Xxxxxx
Xxxxx,
XX 00000
Phone:
(000) 000-0000
Xxxxx
Xx
00 Xxxxx
Xxx.
Xxxxxx
Xxxxxx, XX 00000
To
Company:
Xxx XX,
Inc.
000 Xxxxx
Xxxx,
Xxxxxx
Xxxxxx, XX 00000
If to
Company (prior to Closing) or Shareholder:
To
Company:
0000
Xxxxxx Xxxx, Xxxxx X
Xxxxxxxxx,
Xxx Xxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
To
Shareholder:
Xxxx
Xxxxxxxxxx
0000
Xxxxxx Xxxx, Xxxxx X
Xxxxxxxxx,
Xxx Xxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
8.7 Assignment. This
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned (whether voluntarily, involuntarily, by
operation of law or otherwise) by any of the parties hereto without the prior
written consent of the other parties. The Shareholder prior to the Closing shall
be a third party beneficiary of this Agreement.
8.8
Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Agreement. Any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.9
Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed execution page(s)
hereof to be physically delivered to the other party within five days of the
execution hereof, provided that the failure to so deliver any manually executed
execution page shall not affect the validity or enforceability of this
Agreement.
8.10
Headings. The headings herein are inserted for convenience
only and do not constitute a part of this Agreement. Unless the context
otherwise requires, all references to articles and sections refer to articles
and sections of this Agreement, and all references to schedules are to schedules
attached hereto, each of which is made a part hereof for all purposes. The
descriptive headings of the several articles and sections of this Agreement are
inserted for purposes of reference only, and shall not affect the meaning or
construction of any of the provisions hereof.
8.11 Entire
Agreement. This Agreement, and any schedules and exhibits
hereto and other writings referred to in this Agreement or any such exhibit or
other writing are part of this Agreement, together they embody the entire
agreement and understanding of the parties hereto in respect of the transactions
contemplated by this Agreement and together they are referred to as this
“Agreement” or the “Agreement.” There are no restrictions, promises, warranties,
agreements, covenants or undertakings, other than those expressly set forth or
referred to in this Agreement. This Agreement supersedes all prior agreements
and understandings between the parties with respect to the transaction or
transactions contemplated by this Agreement.
8.12 Indemnification Obligations in
favor of the Purchaser. From and after the Closing Date, the
Shareholder shall reimburse, indemnify and hold harmless the Purchaser, (his
heirs, executors, administrators, agents, successors and assigns is referred to
herein as an “Indemnified Party ”) against and in respect of any and all
damages, losses, settlement payments, in respect of deficiencies, liabilities,
costs, expenses and claims suffered, sustained, incurred or required to be paid
by any Indemnified Party, and any and all actions, suits, claims, or legal,
administrative, arbitration, governmental or other procedures or investigation
against any Indemnified Party, in respect of any breach of any representation,
warranty, covenant, or other agreement made by the Company (prior to Closing) or
the Shareholder.
8.13 Remedies and Injunctive
Relief. It is expressly agreed among the parties hereto that
monetary damages would be inadequate to compensate a party hereto for any breach
b any other party of its covenants in Article 6 hereof. Accordingly, the parties
agree and acknowledge that any such violation or threatened violation shall
cause irreparable injury to the other and that, in addition to any other
remedies which may be available, such party shall be entitled to injunctive
relief against the threatened breach of Article 6 hereof or the continuation of
any such breach without the necessity of proving actual damages and may seek to
specifically enforce the terms thereof.
8.14 Definition of Material Adverse
Effect. “Material Adverse Effect ” with respect to a party
means a material adverse change in or effect on the business, operations,
financial condition, properties or liabilities of the party taken as a whole;
provided, however, that a Material Adverse Effect shall not be deemed to include
(i) changes as a result of the announcement of this transaction, (ii) events or
conditions arising from changes in general business or economic conditions or
(iii) changes in generally accepted accounting principles.
8.15
Severability. The provisions of this Agreement will be deemed
severable and the invalidity or unenforceability of any provision will not
affect the validity or enforceability of the other provisions hereof; provided
that if any provision of this Agreement, as applied to any party hereto or to
any circumstance, is adjudged by an Authority, arbitrator, or mediator not to be
enforceable in accordance with its terms, the parties hereto agree that the
Authority, arbitrator, or mediator making such determination will have the power
to modify the provision in a manner consistent with its objectives such that it
is enforceable, and/or to delete specific words or phrases, and in its reduced
form, such provision will then be enforceable and will be enforced.
8.16
Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement will be construed as if drafted
jointly by the parties hereto and no presumption or burden of proof will arise
favoring or disfavoring any party hereto because of the authorship of any
provision of this Agreement. The words “include,” “includes,” and “including”
will be deemed to be followed by “without limitation.” Pronouns in masculine,
feminine, and neuter genders will be construed to include any other gender, and
words in the singular form will be construed to include the plural and vice
versa, unless the context otherwise requires.
8.17 Governing
Law. The corporate laws of the State of Delaware shall govern
all issues concerning the relative rights of the Company and its shareholders.
All other questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal laws of the
State of Florida, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the
State of Florida. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City and County of
Orange, Florida for the adjudication of any dispute hereunder or in connection
herewith or therewith, or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the day and
year first above
written.
