SECURITIES PURCHASE AGREEMENT
SECURITIES
PURCHASE AGREEMENT (“Agreement”),
dated
as of August 13, 2007, by and among Xxxxxxxx.xxx., Inc., a Nevada corporation,
with headquarters at 0000 Xxxxx Xxx. Xxxxx 0000, Xxxxx Xxxxxx, Xxxxxxxxxx,
00000
(the “Company”),
and
Xxxxx and Xxxx Xxxxxxx, residing at 0000 00xx
Xxxxxx,
XxXxxxxxx, Xxxxxx 00000 (the “Purchaser”).
WHEREAS:
A. The
Company and the Purchaser are executing and delivering this Agreement in
reliance upon the exemption from securities registration afforded by the rules
and regulations as promulgated by the United States Securities and Exchange
Commission (the “SEC”) under the Securities Act of 1933, as amended (the “1933
Act”);
B. The
Purchaser desires to purchase and the Company desires to issue and sell, upon
the terms and conditions set forth in this Agreement (i) Seven Hundred
Sixty Nine Thousand Two Hundred Thirty (769,230) shares of common stock, par
value $.001 per share (the “Common
Stock”),
of
the Company (the “Shares”)
and
(ii) a warrant, in the form attached hereto as Exhibit
“A”,
to
purchase Seven Hundred Sixty Nine Thousand Two Hundred Thirty (769,230) shares
of Common Stock (the “Warrant”);
and
C. The
Purchaser wishes to purchase, upon the terms and conditions stated in this
Agreement, the Shares and the Warrant.
NOW
THEREFORE,
the
Company and the Purchaser hereby agree as follows:
1. PURCHASE
AND SALE OF SHARES AND WARRANT.
a. Purchase
of Shares and Warrant.
On the
Closing Date (as defined below), the Company shall issue and sell to the
Purchaser and the Purchaser agrees to purchase from the Company the Shares
and
the Warrant.
b. Form
of Payment.
On the
Closing Date (as defined below), (i) the Purchaser shall pay Fifty Thousand
Dollars ($50,000), the purchase price for the Shares and the Warrant to be
issued and sold to it at the Closing (as defined below) (the “Purchase
Price”),
by
wire transfer of immediately available funds to the Company, in accordance
with
the Company’s written wiring instructions, against delivery of the Shares and
the Warrant, and (ii) the Company shall deliver such Shares and the Warrant
duly executed on behalf of the Company, to such Purchaser, against delivery
of
such Purchase Price.
c. Closing
Date.
Subject
to the satisfaction (or written waiver) of the conditions thereto set forth
in
Section 7 and Section 8 below, the date and time of the issuance and sale of
the
Shares and the Warrant pursuant to this Agreement (the “Closing
Date”)
shall
be the date in which the Agreement is mutually executed by the parties, or
such
other mutually agreed upon time. The closing of the transactions contemplated
by
this Agreement (the “Closing”)
shall
occur on the Closing Date at such location as may be agreed to by the
parties.
2. BUYER’S
REPRESENTATIONS AND WARRANTIES.
The
Purchaser represents and warrants to the Company that:
a. Investment
Purpose.
As of
the date hereof, the Purchaser is purchasing the Shares and the Warrant and
the
shares of Common Stock issuable upon exercise thereof (the “Warrant
Shares”
and,
collectively with Shares, the “Securities”)
for
its own account and not with a present view towards the public sale or
distribution thereof, except pursuant to sales registered or exempted from
registration under the 1933 Act; provided,
however,
that by
making the representations herein, the Purchaser does not agree to hold any
of
the Securities for any minimum or other specific term and reserves the right
to
dispose of the Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the 1933 Act.
b. Accredited
Investor Status.
The
Purchaser is an “accredited investor” as that term is defined in Rule 501(a) of
Regulation D (an “Accredited
Investor”).
c. Reliance
on Exemptions.
The
Purchaser understands that the Securities are being offered and sold to it
in
reliance upon specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying upon
the truth and accuracy of, and the Purchaser’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of
the Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of the Purchaser to acquire the
Securities.
d. Information.
The
Purchaser and its advisors, if any, have been furnished with all materials
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities which have been requested
by
the Purchaser or its advisors. The Purchaser and its advisors, if any, have
been
afforded the opportunity to ask questions of the Company. The Purchaser
understands that its investment in the Securities involves a significant degree
of risk.
e. Certain
Changes.
The
Purchaser understands that since March 31, 2007, there has been a material
adverse change in the assets, liabilities, business, properties, operations,
financial condition or results of operations of the Company. The Purchaser
has
reviewed and understands all of the Company’s reports, schedules, forms,
statements and other documents filed with the Securities and Exchange
Commission. The Purchaser understands that (i) the Company expects to continue
to require substantial capital following completion of this current offering
in
order to fund its operations, (ii) such additional capital may not be available
when needed on terms the Company considers reasonable, or at all, and (iii)
any
inability to raise sufficient additional capital could compel the Company to
discontinue some or all of its operations.
f. Governmental
Review.
The
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency has passed upon or made any recommendation
or
endorsement of the Securities.
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g. Transfer
or Re-sale.
The
Purchaser understands that (i) the sale or re-sale of the Securities has
not been and is not being registered under the 1933 Act or any applicable state
securities laws, and the Securities may not be transferred unless (a) the
Securities are sold pursuant to an effective registration statement under the
1933 Act, (b) the Purchaser shall have delivered to the Company an opinion
of counsel that shall be in form, substance and scope customary for opinions
of
counsel in comparable transactions to the effect that the Securities to be
sold
or transferred may be sold or transferred pursuant to an exemption from such
registration, which opinion shall be accepted by the Company, (c) the
Securities are sold or transferred to an “affiliate” (as defined in Rule 144
promulgated under the 1933 Act (or a successor rule) (“Rule
144”))
of
the Purchaser who agrees to sell or otherwise transfer the Securities only
in
accordance with this Section 2(f) and who is an Accredited Investor,
(d) the Securities are sold pursuant to Rule 144, or (e) the
Securities are sold pursuant to Regulation D under the 1933 Act (or a successor
rule) (“Regulation
D”);
(ii)
any sale of such Securities made in reliance on Rule 144 may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any re-sale of such Securities under circumstances in which the
seller (or the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the 0000 Xxx) may require compliance
with some other exemption under the 1933 Act or the rules and regulations of
the
SEC thereunder; and (iii) neither the Company nor any other person is under
any
obligation to register such Securities under the 1933 Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder. Notwithstanding the foregoing or anything else contained herein
to
the contrary, the Securities may be pledged as collateral in connection with
a
bona fide
margin
account or other lending arrangement.
h. Legends.
The
Purchaser understands that the Shares and the Warrant and, until such time
as
the Shares and Warrant Shares have been registered under the 1933 Act or
otherwise may be sold pursuant to Rule 144 or Regulation D without any
restriction as to the number of securities as of a particular date that can
then
be immediately sold, the Shares and Warrant Shares may bear a restrictive legend
in substantially the following form (and a stop-transfer order may be placed
against transfer of the certificates for such Securities):
“The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended. The securities may not be sold, transferred
or assigned in the absence of an effective registration statement for the
securities under said Act, or an opinion of counsel, in form, substance and
scope customary for opinions of counsel in comparable transactions, that
registration is not required under said Act or unless sold pursuant to Rule
144
or Regulation D under said Act.”
The
legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Security upon which it
is
stamped, if, unless otherwise required by applicable state securities laws,
(a)
such Security is registered for sale under an effective registration statement
filed under the 1933 Act or otherwise may be sold pursuant to Rule 144 or
Regulation D without any restriction as to the number of securities as of a
particular date that can then be immediately sold, or (b) such holder provides
the Company with an opinion of counsel, in form, substance and scope customary
for opinions of counsel in comparable transactions, to the effect that a public
sale or transfer of such Security may be made without registration under the
1933 Act, which opinion shall be accepted by the Company so that the sale or
transfer is effected or (c) such holder provides the Company with reasonable
assurances that such Security can be sold pursuant to Rule 144 or Regulation
D.
The Purchaser agrees to sell all Securities, including those represented by a
certificate(s) from which the legend has been removed, in compliance with
applicable prospectus delivery requirements, if any.
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i. Authorization;
Enforcement.
This
Agreement has been duly and validly authorized. This Agreement has been duly
executed and delivered on behalf of the Purchaser, and this Agreement
constitutes a valid and binding agreement of the Purchaser enforceable in
accordance with its terms.
j. Residency.
The
Purchaser is a resident of the jurisdiction set forth immediately below such
Purchaser’s name on the signature pages hereto.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to the Purchaser that:
a. Organization
and Qualification.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is incorporated, with full power
and authority (corporate and other) to own, lease, use and operate its
properties and to carry on its business as and where now owned, leased, used,
operated and conducted. The Company is duly qualified as a foreign corporation
to do business and is in good standing in every jurisdiction in which its
ownership or use of property or the nature of the business conducted by it
makes
such qualification necessary except where the failure to be so qualified or
in
good standing would not have a Material Adverse Effect. “Material
Adverse Effect”
means
any of (i) a material and adverse effect on the legality, validity or
enforceability of any document executed in connection with this financing,
or
(ii) a material and adverse effect on the results of operations, assets,
business or financial condition of the Company.
b. Authorization;
Enforcement.
(i) The
Company has all requisite corporate power and authority to enter into and
perform this Agreement and the Warrant and to consummate the transactions
contemplated hereby and thereby and to issue the Securities, in accordance
with
the terms hereof and thereof, (ii) the execution and delivery of this Agreement
and the Warrant by the Company and the consummation by it of the transactions
contemplated hereby and thereby (including without limitation, the issuance
of
the Shares and the Warrant and the issuance and reservation for issuance of
the
Warrant Shares issuable upon conversion or exercise thereof) have been duly
authorized by the Company’s Board of Directors and no further consent or
authorization of the Company, its Board of Directors, or its shareholders is
required, (iii) this Agreement has been duly executed and delivered by the
Company by its authorized representative, and such authorized representative
is
the true and official representative with authority to sign this Agreement
and
the other documents executed in connection herewith and bind the Company
accordingly, and (iv) this Agreement constitutes, and upon execution and
delivery by the Company of the Warrant, each of such instruments will
constitute, a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
4
c. Capitalization.
As of
the date hereof, the authorized capital stock of the Company consists of (i)
975,000,000 shares of Common Stock, par value $.001 per share, of which
96,729,557 shares are issued and outstanding and (ii) [4,815,000] shares of
preferred stock, of which none are issued and outstanding. All of such
outstanding shares of capital stock are, or upon issuance will be, duly
authorized, validly issued, fully paid and nonassessable. No shares of capital
stock of the Company are subject to preemptive rights or any other similar
rights of the shareholders of the Company or any liens or encumbrances imposed
through the actions or failure to act of the Company. Except as disclosed in
Schedule
3(c),
as of
the effective date of this Agreement, (i) there are no outstanding options,
warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal,
agreements, understandings, claims or other commitments or rights of any
character whatsoever relating to, or securities or rights convertible into
or
exchangeable for any shares of capital stock of the Company, or arrangements
by
which the Company is or may become bound to issue additional shares of capital
stock of the Company, (ii) there are no agreements or arrangements under which
the Company is obligated to register the sale of any of its or their securities
under the 1933 Act and (iii) there are no anti-dilution or price adjustment
provisions contained in any security issued by the Company (or in any agreement
providing rights to security holders) that will be triggered by the issuance
of
the Shares, the Warrant or Warrant Shares. The Company has furnished to the
Purchaser true and correct copies of the Company’s Certificate of Incorporation
as in effect on the date hereof (“Certificate
of Incorporation”),
the
Company’s By-laws, as in effect on the date hereof (the “By-laws”),
and
the terms of all securities convertible into or exercisable for Common Stock
of
the Company and the material rights of the holders thereof in respect thereto.
d. Issuance
of Shares.
The
Shares and Warrant Shares are duly authorized and reserved for issuance and,
upon exercise of the Warrant in accordance with their respective terms, will
be
validly issued, fully paid and non-assessable, and free from all taxes, liens,
claims and encumbrances with respect to the issue thereof and shall not be
subject to preemptive rights or other similar rights of shareholders of the
Company and will not impose personal liability upon the holder
thereof.
e. No
Conflicts.
The
execution, delivery and performance of this Agreement and the Warrant by the
Company and the consummation by the Company of the transactions contemplated
hereby and thereby (including, without limitation, the issuance and reservation
for issuance of the Shares and Warrant Shares) will not (i) conflict with or
result in a violation of any provision of the Certificate of Incorporation
or
By-laws or (ii) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws and regulations
and regulations of any self-regulatory organizations to which the Company or
its
securities are subject) applicable to the Company or by which any property
or
asset of the Company is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect). The
Company is not in violation of its Certificate of Incorporation, By-laws or
other organizational documents and the Company is not in default (and no event
has occurred which with notice or lapse of time or both could put the Company)
under, and the Company has not taken any action or failed to take any action
that would give to others any rights of termination, amendment, acceleration
or
cancellation of, any agreement, indenture or instrument to which the Company
is
a party or by which any property or assets of the Company is bound or affected,
except for possible defaults as would not, individually or in the aggregate,
have a Material Adverse Effect. The businesses of the Company are not being
conducted, and shall not be conducted so long as a Purchaser owns any of the
Securities, in violation of any law, ordinance or regulation of any governmental
entity. Except as specifically contemplated by this Agreement and as required
under the 1933 Act and any applicable state securities laws, the Company is
not
required to obtain any consent, authorization or order of, or make any filing
or
registration with, any court, governmental agency, regulatory agency, self
regulatory organization or stock market or any third party in order for it
to
execute, deliver or perform any of its obligations under this Agreement or
the
Warrant in accordance with the terms hereof or thereof or to issue and sell
the
Shares and Warrant in accordance with the terms hereof and to issue the Shares
and the Warrant Shares upon exercise of the Warrant.
5
f. No
Brokers.
Except
as set forth in Schedule
3(j),
the
Company has taken no action which would give rise to any claim by any person
for
brokerage commissions, transaction fees or similar payments relating to this
Agreement or the transactions contemplated hereby.
g. Permits;
Compliance.
The
Company is in possession of all franchises, grants, authorizations, licenses,
permits, easements, variances, exemptions, consents, certificates, approvals
and
orders necessary to own, lease and operate its properties and to carry on its
business as it is now being conducted (collectively, the “Company
Permits”),
and
there is no action pending or, to the knowledge of the Company, threatened
regarding suspension or cancellation of any of the Company Permits. The Company
is not in conflict with, or in default or violation of, any of the Company
Permits, except for any such conflicts, defaults or violations which,
individually or in the aggregate, would not reasonably be expected to have
a
Material Adverse Effect.
4. COVENANTS.
a. Form
D; Blue Sky Laws.
The
Company agrees to file a Form D with respect to the Securities as required
under
Regulation D and to provide a copy thereof to each Purchaser promptly after
such
filing. The Company shall, on or before the Closing Date, take such action
as
the Company shall reasonably determine is necessary to qualify the Securities
for sale to the Purchaser at the applicable closing pursuant to this Agreement
under applicable securities or “blue sky” laws of the states of the United
States (or to obtain an exemption from such qualification), and shall provide
evidence of any such action so taken to each Purchaser on or prior to the
Closing Date.
b. Authorization
and Reservation of Shares.
The
Company shall at all times have authorized, and reserved for the purpose of
issuance, a sufficient number of shares of Common Stock to provide for the
full
exercise of the outstanding Warrant and issuance of the Warrant Shares in
connection therewith (based on the Exercise Price of the Warrant in effect
from
time to time). The Company shall not reduce the number of shares of Common
Stock
reserved for issuance upon exercise of the Warrant without the consent of the
Purchaser.
5. OPTIONAL
REDEMPTION.
Prior
to the third anniversary of the Closing Date, the Company shall have the right,
exercisable on not less than ten (10) business dates prior written notice to
the
Purchaser, to redeem all or a portion of the outstanding Shares issued pursuant
to this Agreement in accordance with this Section 5. Any notice of redemption
hereunder shall be delivered to the Purchaser at its registered addresses
appearing on the books and records of the Company and shall state (1) that
the
Company is exercising its right to redeem all or a portion of the Shares issued
to the Purchaser, (2) the date of redemption and (3) the amount of the
redemption. On the date fixed for redemption (the “Optional
Redemption Date”),
the
Company shall make payment of the Optional Redemption Amount (as defined below)
to or upon the order of the Purchaser as specified by the Purchaser in writing
to the Company at least one (1) business day prior to the Optional Redemption
Date. If the Company exercises its right to redeem the Shares, the Company
shall
make payment to the Purchaser of an amount in cash (the “Optional
Redemption Amount”)
equal
to 200% multiplied by the Purchase Price. If the Company exercises its right
to
redeem a portion of the Shares, the Company shall make payment to the Purchaser
of an amount in cash equal to $0.26 per share (as adjusted for any stock splits,
dividends, recapitalizations and the like) of Common Stock to be so
redeemed.
6
6. Anti-Dilution
Protection.
In the
event that the Company consummates a sale of equity securities (a “Financing”),
and
the price per share of such equity securities sold in such Financing is less
than $0.065 per share (as adjusted for stock splits, dividends,
recapitalizations and the like), the Purchaser who purchased Shares hereunder
shall receive such additional number of Shares so that the Purchase Price shall
equal the price per share in the Financing.
a. Exceptions
to Anti-Dilution Protection.
No
Shares will be granted to the Purchaser pursuant to this Section 6 (i) upon
the
exercise of any warrants, options or convertible securities granted, issued
and
outstanding on the Closing Date; (ii) upon the grant or exercise of any stock
or
options which may hereafter be granted or exercised under any employee benefit
plan, stock option plan or restricted stock plan of the Company now existing
or
to be implemented in the future, so long as the issuance of such stock or
options is approved by a majority of the independent members of the Board of
Directors of the Company or a majority of the members of a committee of
independent directors established for such purpose; (iii) upon the issuance
of
any securities in connection with an acquisition by the Company, so long as
such
acquisition is approved by a majority of the independent members of the Board
of
Directors of the Company or a majority of the members of a committee of
independent directors established for such purpose; (iv) upon the issuance
of
any securities pursuant to a commitment by the Company that has been previously
disclosed to the holder prior to the date hereof; or (v) upon the exercise
of
the Warrant.
7. CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.
The
obligation of the Company hereunder to issue and sell the Shares and the Warrant
to a Purchaser at the Closing is subject to the satisfaction, at or before
the
Closing Date of each of the following conditions thereto, provided that these
conditions are for the Company’s sole benefit and may be waived by the Company
at any time in its sole discretion:
a. The
applicable Purchaser shall have executed this Agreement and delivered the same
to the Company.
b. The
applicable Purchaser shall have delivered the Purchase Price in accordance
with
Section 1(b) above.
c. The
representations and warranties of the applicable Purchaser shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date), and the applicable Purchaser shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the applicable Purchaser at or prior to the Closing Date.
7
8. CONDITIONS
TO THE BUYER’S OBLIGATION TO PURCHASE.
The
obligation of the Purchaser hereunder to purchase the Shares and the Warrant
at
the Closing is subject to the satisfaction, at or before the Closing Date of
each of the following conditions, provided that these conditions are for such
Purchaser’s sole benefit and may be waived by such Purchaser at any time in its
sole discretion:
a. The
Company shall have executed this Agreement and delivered the same to the
Purchaser.
b. The
Company shall have delivered to such Purchaser duly executed the Warrant in
accordance with Section 1(b) above.
c. The
representations and warranties of the Company shall be true and correct in
all
material respects as of the date when made and as of the Closing Date as though
made at such time (except for representations and warranties that speak as
of a
specific date) and the Company shall have performed, satisfied and complied
in
all material respects with the covenants, agreements and conditions required
by
this Agreement to be performed, satisfied or complied with by the Company at
or
prior to the Closing Date.
9. GOVERNING
LAW; MISCELLANEOUS.
a. Governing
Law.
THIS
AGREEMENT SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEVADA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF
LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
UNITED STATES FEDERAL COURTS LOCATED IN LOS ANGELES COUNTY, CALIFORNIA WITH
RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED
INTO
IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
BOTH
PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE
OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY’S RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE
AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER
LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER
THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING
ATTORNEYS’ FEES, INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH
DISPUTE.
8
b. Counterparts;
Signatures by Facsimile.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which shall constitute 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 party hereto by facsimile transmission of a copy of
this
Agreement bearing the signature of the party so delivering this
Agreement.
c. Headings.
The
headings of this Agreement are for convenience of reference only and shall
not
form part of, or affect the interpretation of, this Agreement.
d. Entire
Agreement; Amendments.
This
Agreement and the instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and,
except as specifically set forth herein or therein, neither the Company nor
the
Purchaser makes any representation, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be waived or amended
other than by an instrument in writing signed by the party to be charged with
enforcement.
e. Notices.
Any
notices required or permitted to be given under the terms of this Agreement
shall be sent by certified or registered mail (return receipt requested) or
delivered personally or by courier (including a recognized overnight delivery
service) or by facsimile and shall be effective five days after being placed
in
the mail, if mailed by regular United States mail, or upon receipt, if delivered
personally or by courier (including a recognized overnight delivery service)
or
by facsimile, in each case addressed to a party. The addresses for such
communications shall be:
If
to the
Company:
Xxxxxxxx.xxx,
Inc.
0000
Xxxxx Xxx., Xxxxx 0000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention:
Chief Executive Officer
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
With
a
copy to:
Xxxxxx
Xxxxx & Xxxxx LLP
0000
00xx
Xxxxxx
Xxxxx
Xxxxx, Xxxxx Xxxxx
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxxxx Xxxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
If
to a
Purchaser: To the address set forth immediately below such Purchaser’s name on
the signature pages hereto.
Each
party shall provide notice to the other party of any change in
address.
9
f. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and assigns. Neither the Company nor any Purchaser shall assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the other. Notwithstanding the foregoing, subject to
Section 2(f), any Purchaser may assign its rights hereunder to any person
that purchases Securities in a private transaction from a Purchaser or to any
of
its “affiliates,” as that term is defined under the 1934 Act, without the
consent of the Company.
g. Third
Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
h. Further
Assurances.
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
i. No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
10
IN
WITNESS WHEREOF,
the
undersigned Purchaser and the Company have caused this Agreement to be duly
executed as of the date first above written.
XXXXXXXX.XXX,
INC.
________________________________
Xxxx
Xxxxxxxx
Chief
Executive Officer
XXXXX
AND XXXX XXXXXXX
______________________________________
______________________________________
RESIDENCE:
Kansas, USA
ADDRESS: 0000
00xx
Xxxxxx
XxXxxxxxx,
Xxxxxx 00000
Telephone:
(000) 000-0000
AGGREGATE
SUBSCRIPTION AMOUNT:
|
Aggregate
Purchase Price:
|
$
|
50,000
|
||
|
Number
of Shares of Common Stock:
|
769,230
|
|||
|
Number
of Shares Purchasable under Warrant:
|
769,230
|
11
