PURCHASE AGREEMENT
Exhibit
10.1
THIS
PURCHASE AGREEMENT (“Agreement”) is made as of the 25th day of August, 2006 by
and between Woize International, Ltd., a Nevada corporation (the “Company”), and
Xxx Xxxxxxxx (the “Investor”).
Recitals
A. The
Company and the Investor are executing and delivering this Agreement in reliance
upon the exemption from securities registration afforded by the provisions
of
Regulation D (“Regulation D”), as promulgated by the U.S. Securities and
Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended,
and/or Regulation S promulgated under the Securities Act of 1933, as amended
(“Regulation S”); and
B. The
Investor wishes to purchase from the Company, and the Company wishes to sell
and
issue to the Investor, upon the terms and conditions stated in this Agreement
166,667 shares of the Company’s Common Stock, $.001 par value (the
“Shares”);
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In
addition to those terms defined above and elsewhere in this Agreement, for
the
purposes of this Agreement, the following terms shall have the meanings set
forth below:
“Affiliate” means, with respect to any Person, any other Person which
directly or indirectly through one or more intermediaries Controls, is
controlled by, or is under common control with, such Person.
“Business Day” means a day, other than a Saturday or Sunday, on
which banks in New York City are open for the general transaction of
business.
“Company’s Knowledge” means the actual knowledge of the executive
officers (as defined in Rule 405 under the 0000 Xxx) of the Company, after
due
inquiry.
“Confidential Information” means trade secrets, confidential information
and know-how (including but not limited to ideas, formulae, compositions,
processes, procedures and techniques, research and development information,
computer program code, performance specifications, support documentation,
drawings, specifications, designs, business and marketing plans, and customer
and supplier lists and related information).
“Control” (including the terms “controlling”, “controlled by” or “under
common control with”) means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise.
“Intellectual Property” means all of the following: (i) patents, patent
applications, patent disclosures and inventions (whether or not patentable
and
whether or not reduced to practice); (ii) trademarks, service marks, trade
dress, trade names, corporate names, logos, slogans and Internet domain names,
together with all goodwill associated with each of the foregoing; (iii)
copyrights and copyrightable works; (iv) registrations, applications and
renewals for any of the foregoing; and (v) proprietary computer software
(including but not limited to data, data bases and documentation).
“Material Adverse Effect” means a material adverse effect on (i)
the assets, liabilities, results of operations, condition (financial or
otherwise), business, or prospects of the Company and its Subsidiaries taken
as
a whole, or (ii) the ability of the Company to perform its obligations under
the
Agreement.
“Person” means an individual, corporation, partnership, limited
liability company, trust, business trust, association, joint stock company,
joint venture, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed
herein.
“Per Share Purchase Price” means $0.30
“Purchase Price” means USD Fifty Thousand ($50,000)
“SEC Filings” has the meaning set forth in Section 4.6.
“Shares” means the shares of Common Stock being purchased by the Investor
hereunder.
“U.S. Person” as defined in Section 902(k) of the 1933 Act.
“1933 Act” means the Securities Act of 1933, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.
“1934 Act” means the Securities Exchange Act of 1934, as amended,
or any successor statute, and the rules and regulations promulgated
thereunder.
2. Purchase
and Sale of the Shares and Warrants. Subject to the terms and
conditions of this Agreement, on the Closing Date as defined in Section 3 below,
the Investor shall purchase, and the Company shall sell and issue to the
Investor, the Shares in the amount set forth opposite the Investor’s name on the
signature pages attached hereto in exchange for the Purchase Price as specified
in Section 3 below.
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3. Closing. The
closing (the “Closing”) of the purchase and sale of the Shares shall
take place at the Company’s offices on August 23, 2006 (the “Closing Date”), or
at such other location and on such other date as the Company and the Investor
shall mutually agree. At the Closing, the Company shall, against delivery of
payment for the Shares by wire transfer of immediately available funds in
accordance with the Company’s instructions authorize its transfer agent to issue
to the Investor one or more stock certificates (the
“Certificates”) registered in the name of the Investor
(or in such nominee name(s) as designated by such Investor.
4. Representations
and Warranties of the Company. The Company hereby represents and
warrants to the Investor that:
4. 1 Organization,
Good Standing and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to carry on its business as now conducted and to own its
properties. The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the conduct
of
its business or its ownership or leasing of property makes such qualification
or
leasing necessary unless the failure to so qualify has not and could not
reasonably be expected to have a Material Adverse Effect.
4.2 Authorization. The
Company has full power and authority and has taken all requisite action on
the
part of the Company, its officers, directors and stockholders necessary for
(i)
the authorization, execution and delivery of the Agreement, (ii) authorization
of the performance of all obligations of the Company hereunder or thereunder,
and (iii) the authorization, issuance (or reservation for issuance) and delivery
of the Shares. The Agreement constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability, relating
to or affecting creditors’ rights generally.
4.3 Capitalization.
The
authorized capital stock of the
Company consists of 150,000,000 shares of Common Stock, par value $.001 and
1,000,000 shares of Preferred Stock, par value $0.01 of which
47,805,280 shares of Common Stock and 0 shares of Preferred Stock are
issued and outstanding. As of the date hereof and except as disclosed
in the Company’s SEC filings, 0 shares of our common stock were subject to
outstanding options to purchase our common stock, and 641,024 shares of our
common stock were subject to outstanding warrants to purchase our common stock.
All of the issued and outstanding shares of the Company’s capital stock have
been duly authorized and validly issued and are fully paid, nonassessable and
free of pre-emptive rights and were issued in full compliance with applicable
state and federal securities law and any rights of third
parties. Except as disclosed herein and as described in the Company’s
SEC Filings, no Person is entitled to pre-emptive or similar statutory or
contractual rights with respect to any securities of the
Company. Except as disclosed herein and as described in the Company’s
SEC Filings, there are no outstanding warrants, options, convertible securities
or other rights, agreements or arrangements of any character under which the
Company or any of its Subsidiaries is or may be obligated to issue any equity
securities of any kind and except as contemplated by this Agreement, neither
the
Company nor any of its Subsidiaries is currently in negotiations for the
issuance of any equity securities of any kind. Except as described in
the Company’s SEC Filings and except for the Registration Rights Agreement,
there are no voting agreements, buy-sell agreements, option or right of first
purchase agreements or other agreements of any kind among the Company and any
of
the security holders of the Company relating to the securities of the Company
held by them.
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The issuance and sale of the Shares hereunder will not obligate the Company
to
issue shares of Common Stock or other securities to any other Person (other
than
the Investor) and will not result in the adjustment of the exercise, conversion,
exchange or reset price of any outstanding security.
The Company does not have outstanding stockholder purchase rights or “poison
pill” or any similar arrangement in effect giving any Person the right to
purchase any equity interest in the Company upon the occurrence of certain
events.
4.4 Valid
Issuance. The Shares have been duly and validly authorized and,
when issued and paid for pursuant to this Agreement, will be validly issued,
fully paid and nonassessable, and shall be free and clear of all encumbrances
and restrictions (other than those created by the Investor), except for
restrictions on transfer set forth in the Agreement or imposed by applicable
securities laws.
4.5 Consents. The
execution, delivery and performance by the Company of the Agreement and the
offer, issuance and sale of the Shares require no consent of, action by or
in
respect of, or filing with, any Person, governmental body, agency, or official
other than filings that have been made pursuant to applicable state securities
laws and post-sale filings pursuant to applicable state and federal securities
laws which the Company undertakes to file within the applicable time
periods. Subject to the accuracy of the representations and
warranties of each Investor set forth in Section 5 hereof, the Company has
taken
all action necessary to exempt (i) the issuance and sale of the Shares from
the
provisions of any shareholder rights plan or other “poison pill” arrangement,
any anti-takeover, business combination or control share law or statute binding
on the Company or to which the Company or any of its assets and properties
may
be subject and any provision of the Company’s Certificate of Incorporation or
By-laws that is or could reasonably be expected to become applicable to the
Investor s a result of the transactions contemplated hereby, including without
limitation, the issuance of the Shares and the ownership, disposition or voting
of the Shares by the Investor or the exercise of any right granted to the
Investor pursuant to this Agreement.
4.6 Delivery
of SEC Filings; Business. The Company has made available to the
Investor through the XXXXX system, true and complete copies of the Company’s
most recent Annual Report on Form 10-KSB for the fiscal year ended March 31,
2006 (the “10-KSB”), and all other reports filed by the Company pursuant to the
1934 Act since the filing of the 10-KSB and prior to the date hereof
(collectively, the “SEC Filings”). The SEC Filings are the only
filings required of the Company pursuant to the 1934 Act for such
period. The Company is engaged in all material respects only in the
business described in the SEC Filings and the SEC Filings contain a complete
and
accurate description in all material respects of the business of the Company,
taken as a whole.
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4.7 Use of
Proceeds. The net proceeds of the sale of the Shares and the
Warrants hereunder shall be used by the Company for working capital and general
corporate purposes.
4.8 No
Material Adverse Change. Since March 31, 2006, except as
identified and described in the SEC Filings, there has not been:
(i) any change
in the consolidated assets, liabilities, financial condition or operating
results of the Company from that reflected in the financial statements included
in the 10-KSB, except for changes in the ordinary course of business which
have
not and could not reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate;
(ii) any
declaration or payment of any dividend, or any authorization or payment of
any
distribution, on any of the capital stock of the Company, or any redemption
or
repurchase of any securities of the Company;
(iii) any material
damage, destruction or loss, whether or not covered by insurance to any assets
or properties of the Company or its Subsidiaries;
(iv) any waiver, not
in the ordinary course of business, by the Company of a material right or of
a
material debt owed to it;
(v) any
satisfaction or discharge of any lien, claim or encumbrance or payment of any
obligation by the Company, except in the ordinary course of business and which
is not material to the assets, properties, financial condition, operating
results or business of the Company and its Subsidiaries taken as a whole (as
such business is presently conducted and as it is proposed to be
conducted);
(vi) any change or
amendment to the Company's Certificate of Incorporation or by-laws, or material
change to any material contract or arrangement by which the Company is bound
or
to which any of its assets or properties is subject;
(vii) any material labor
difficulties or labor union organizing activities with respect to employees
of
the Company;
(viii) any material transaction
entered into by the Company other than in the ordinary course of
business;
(ix) the loss
of the services of any key employee, or material change in the composition
or
duties of the senior management of the Company;
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(x) the loss or
threatened loss of any customer which has had or could reasonably be expected
to
have a Material Adverse Effect; or
(xi) any other event
or condition of any character that has had or could reasonably be expected
to
have a Material Adverse Effect.
4.9 SEC
Filings. At the time of filing thereof, the SEC Filings complied as to form
in all material respects with the requirements of the 1934 Act and did not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of
the
circumstances under which they were made, not misleading.
4.10 No Conflict, Breach,
Violation or Default. The execution, delivery and performance of
the Agreement by the Company and the issuance and sale of the Shares will not
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under (i) the Company’s Certificate of
Incorporation or the Company’s Bylaws, both as in effect on the date hereof
(true and complete copies of which have been made available to the Investor
through the XXXXX system), or (ii)(a) any statute, rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any of its assets or properties, or (b) any
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of its assets or properties is subject.
4.11 Tax
Matters. The Company has timely prepared and filed all tax
returns required to have been filed by the Company with all appropriate
governmental agencies and timely paid all taxes shown thereon or otherwise
owed
by it. The charges, accruals and reserves on the books of the Company
in respect of taxes for all fiscal periods are adequate in all material
respects, and there are no material unpaid assessments against the Company
nor,
to the Company’s Knowledge, any basis for the assessment of any additional
taxes, penalties or interest for any fiscal period or audits by any federal,
state or local taxing authority except for any assessment which is not material
to the Company. All taxes and other assessments and levies that the Company
is
required to withhold or to collect for payment have been duly withheld and
collected and paid to the proper governmental entity or third party when
due. There are no tax liens or claims pending or, to the Company’s
Knowledge, threatened against the Company or any its assets or property. Except
as disclosed in the SEC Filings, there are no outstanding tax sharing agreements
or other such arrangements between the Company and any other corporation or
entity.
4.12 Title to
Properties. Except as disclosed in the SEC Filings, the Company
has good and marketable title to all real properties and all other properties
and assets owned by it, in each case free from liens, encumbrances and defects
that would materially affect the value thereof or materially interfere with
the
use made or currently planned to be made thereof by them; and except as
disclosed in the SEC Filings, the Company holds any leased real or personal
property under valid and enforceable leases with no exceptions that would
materially interfere with the use made or currently planned to be made thereof
by them.
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4.13 Certificates,
Authorities and Permits. The Company possess adequate
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by it, and the Company
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if determined
adversely to the Company, could reasonably be expected to have a Material
Adverse Effect, individually or in the aggregate.
4.14 No
Labor Disputes. No material labor dispute with the employees of
the Company exists or, to the Company’s Knowledge, is imminent.
4.15 Intellectual
Property.
(a) All
Intellectual Property of the Company is currently in compliance with all legal
requirements (including timely filings, proofs and payments of fees) and is
valid and enforceable. No Intellectual Property of the Company which
is necessary for the conduct of Company’s business as currently conducted or as
currently proposed to be conducted has been or is now involved in any
cancellation, dispute or litigation, and, to the Company’s Knowledge, no such
action is threatened. No patent of the Company has been or is now
involved in any interference, reissue, re-examination or opposition
proceeding.
(b) All of the
licenses and sublicenses and consent, royalty or other agreements concerning
Intellectual Property which are necessary for the conduct of the Company’s and
each of its Subsidiaries’ respective businesses as currently conducted or as
currently proposed to be conducted to which the Company is a party or by which
any of its assets are bound (other than generally commercially available,
non-custom, off-the-shelf software application programs having a retail
acquisition price of less than $10,000 per license) (collectively, “License
Agreements”) are valid and binding obligations of the Company or its
Subsidiaries that are parties thereto and, to the Company’s Knowledge, the other
parties thereto, enforceable in accordance with their terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting the enforcement of creditors’ rights generally, and there exists no
event or condition which will result in a material violation or breach of or
constitute (with or without due notice or lapse of time or both) a default
by
the Company or any of its Subsidiaries under any such License
Agreement.
(c) The Company
owns or has the valid right to use all of the Intellectual Property that is
necessary for the conduct of the Company’s business as currently conducted or as
currently proposed to be conducted and for the ownership, maintenance and
operation of the Company’s properties and assets, free and clear of all liens,
encumbrances, adverse claims or obligations to license all such owned
Intellectual Property and Confidential Information, other than licenses entered
into in the ordinary course of the Company’s business. The Company
has a valid and enforceable right to use all third party Intellectual Property
and Confidential Information used or held for use in the business of the
Company.
(d) The conduct
of the Company’s business as currently conducted does not infringe or otherwise
impair or conflict with (collectively, “Infringe”) any Intellectual Property
rights of any third party or any confidentiality obligation owed to a third
party, and, to the Company’s Knowledge, the Intellectual Property and
Confidential Information of the Company which are necessary for the conduct
of
Company’s business as currently conducted or as currently proposed to be
conducted are not being Infringed by any third party. There is no
litigation or order pending or outstanding or, to the Company’s Knowledge,
threatened or imminent, that seeks to limit or challenge or that concerns the
ownership, use, validity or enforceability of any Intellectual Property or
Confidential Information of the Company and the Company’s use of any
Intellectual Property or Confidential Information owned by a third party, and,
to the Company’s Knowledge, there is no valid basis for the same.
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(e) The
consummation of the transactions contemplated hereby and by the other Agreement
will not result in the alteration, loss, impairment of or restriction on the
Company’s ownership or right to use any of the Intellectual Property or
Confidential Information which is necessary for the conduct of Company’s
business as currently conducted or as currently proposed to be
conducted.
(f) The Company
has taken reasonable steps to protect the Company’s rights in their Intellectual
Property and Confidential Information. Each employee, consultant and
contractor who has had access to Confidential Information which is necessary
for
the conduct of Company’s business as currently conducted or as currently
proposed to be conducted has executed an agreement to maintain the
confidentiality of such Confidential Information and has executed appropriate
agreements that are substantially consistent with the Company’s standard forms
thereof. Except under confidentiality obligations, there has been no
material disclosure of any of the Company’s Confidential Information to any
third party.
4.16 Environmental
Matters. The Company is not in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous
or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, “Environmental
Laws”), owns or operates any real property contaminated with any substance that
is subject to any Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, and is subject to any claim
relating to any Environmental Laws, which violation, contamination, liability
or
claim has had or could reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate; and there is no pending or, to the Company’s
Knowledge, threatened investigation that might lead to such a
claim.
4.17 Litigation. Except
as described in the SEC Filings, there are no pending actions, suits or
proceedings against or affecting the Company, its Subsidiaries or any of its
or
their properties; and to the Company’s Knowledge, no such actions, suits or
proceedings are threatened or contemplated.
4.18 Financial
Statements. The financial statements included in each SEC Filing
present fairly, in all material respects, the consolidated financial position
of
the Company as of the dates shown and its consolidated results of operations
and
cash flows for the periods shown, and such financial statements have been
prepared in conformity with United States generally accepted accounting
principles applied on a consistent basis (“GAAP”) (except as may be disclosed
therein or in the notes thereto, and, in the case of quarterly financial
statements, as permitted by Form 10-QSB under the 1934 Act). Except
as set forth in the financial statements of the Company included in the SEC
Filings filed prior to the date hereof, neither the Company has incurred any
liabilities, contingent or otherwise, except those incurred in the ordinary
course of business, consistent (as to amount and nature) with past practices
since the date of such financial statements, none of which, individually or
in
the aggregate, have had or could reasonably be expected to have a Material
Adverse Effect.
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4.19 Insurance
Coverage. The Company maintains in full force and effect
insurance coverage that is customary for comparably situated companies for
the
business being conducted and properties owned or leased by the Company, and
the
Company reasonably believes such insurance coverage to be adequate against
all
liabilities, claims and risks against which it is customary for comparably
situated companies to insure.
4.20 Brokers and
Finders. No Person will have, as a result of the transactions
contemplated by the Agreement, any valid right, interest or claim against or
upon the Company, or an Investor for any commission, fee or other compensation
pursuant to any agreement, arrangement or understanding entered into by or
on
behalf of the Company.
4.21 No Directed
Selling Efforts or General Solicitation. Neither the Company nor
any Person acting on its behalf has conducted any general solicitation or
general advertising (as those terms are used in Regulation D) in connection
with
the offer or sale of any of the Shares.
4.22 No Integrated
Offering. Neither the Company nor any of its Affiliates, nor any
Person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any Company security or solicited any offers to buy any
security, under circumstances that would adversely affect reliance by the
Company on Section 4(2) for the exemption from registration for the transactions
contemplated hereby or would require registration of the Shares under the 1933
Act.
4.23 Private
Placement. The offer and sale of the Shares to the Investor as
contemplated hereby is exempt from the registration requirements of the 1933
Act.
4.24 Questionable
Payments. Neither the Company nor any
of its Subsidiaries nor, to the Company’s Knowledge, any of their respective
current or former stockholders, directors, officers, employees, agents or other
Persons acting on behalf of the Company, has on behalf of the Company or in
connection with its businesses: (a) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity; (b) made any direct or indirect unlawful payments to any
governmental officials or employees from corporate funds; (c) established or
maintained any unlawful or unrecorded fund of corporate monies or other assets;
(d) made any false or fictitious entries on the books and records of the
Company; or (e) made any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment of any nature.
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4.25 Internal
Controls. The Company is in material compliance with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 currently applicable to the
Company. The Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that
(i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared
with
the existing assets at reasonable intervals and appropriate action is taken
with
respect to any differences. The Company has established disclosure controls
and
procedures (as defined in 1934 Act Rules 13a-14 and 15d-14) for the Company
and
designed such disclosure controls and procedures to ensure that material
information relating to the Company, including the Subsidiaries, is made known
to the certifying officers by others within those entities, particularly during
the period in which the Company’s most recently filed period report under the
1934 Act, as the case may be, is being prepared. The Company's
certifying officers have evaluated the effectiveness of the Company's controls
and procedures as of a date within 90 days prior to the filing date of the
most
recently filed periodic report under the 1934 Act (such date, the "Evaluation
Date"). The Company presented in its most recently filed periodic
report under the 1934 Act the conclusions of the certifying officers about
the
effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date,
there have been no significant changes in the Company's internal controls (as
such term is defined in Item 307(b) of Regulation S-K) or, to the Company's
Knowledge, in other factors that could significantly affect the Company's
internal controls. The Company maintains and will continue to
maintain a standard system of accounting established and administered in
accordance with GAAP and the applicable requirements of the 1934
Act.
4.26 Listing. The
Common Stock is
quoted on the Over the Counter Bulletin Board (the “OTCBB”). The
Company has not received any oral or written notice that its Common Stock is
not
eligible nor will become ineligible for quotation on the OTCBB nor that its
Common Stock does not meet all requirements for the continuation of such
quotation, and the Company satisfies, and as of the Closing Date the Company
will satisfy, all the requirements for the continued quotation of its common
stock on the OTCBB.
4.27 Disclosures. Neither
the Company nor any Person acting on its behalf has provided the Investor or
this agents or counsel with any information that constitutes or might constitute
material, non-public information. The written materials delivered to
the Investor in connection with the transactions contemplated by the Agreement
do not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein,
in
light of the circumstances under which they were made, not
misleading.
5. Representations
and Warranties of the Investor. Each of the Investor represents
and warrants to the Company that:
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5.1 Organization
and Existence. Such Investor is a validly existing corporation,
limited partnership or limited liability company and has all requisite
corporate, partnership or limited liability company power and authority to
invest in the Shares pursuant to this Agreement. In addition to the
foregoing, to the extent such Investor is not incorporated or organized in
the
United States, such Investor hereby certifies that it is not a U.S. Person,
and
is not acquiring the securities for the account or benefit of any U.S.
Person.
5.2 Authorization. The
execution, delivery and performance by such Investor of the Agreement to which
such Investor is a party have been duly authorized and will each constitute
the
valid and legally binding obligation of such Investor, enforceable against
such
Investor in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of
general applicability, relating to or affecting creditors’ rights
generally.
5.3 Purchase
Entirely for Own Account. The Shares to be received by such
Investor hereunder will be acquired for such Investor’s own account, not as
nominee or agent, and not with a view to the resale or distribution of any
part
thereof in violation of the 1933 Act, and such Investor has no present intention
of selling, granting any participation in, or otherwise distributing the same
in
violation of the 1933 Act without prejudice, however, to such Investor’s right
at all times to sell or otherwise dispose of all or any part of such Shares
in
compliance with applicable federal and state securities
laws. Nothing contained herein shall be deemed a
representation or warranty by such Investor to hold the Shares for any period
of
time. Such Investor is not a broker dealer registered with the SEC
under the 1934 or an entity engaged in a business that would require it to
be so
registered.
5.4 Investment
Experience. Such Investor acknowledges that it can bear the
economic risk and complete loss of its investment in the Shares and has such
knowledge and experience in financial or business matters that it is capable
of
evaluating the merits and risks of the investment contemplated
hereby.
5.5 Disclosure
of Information. Such Investor has had an opportunity to receive
all additional information related to the Company requested by it and to ask
questions of and receive answers from the Company regarding the Company, its
business and the terms and conditions of the offering of the
Shares. Such Investor acknowledges receipt of copies of the SEC
Filings. Neither such inquiries nor any other due diligence
investigation conducted by such Investor shall modify, amend or affect such
Investor’s right to rely on the Company’s representations and warranties
contained in this Agreement.
5.6 Restricted
Securities. Such Investor understands that the Shares are
characterized as “restricted securities” under the U.S. federal securities laws
inasmuch as they are being acquired from the Company 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 1933 Act only
in
certain limited circumstances. Such Investor agrees to resell such
Shares only in accordance with the provisions of Regulation S, pursuant to
registration under the 1933 Act, or pursuant to an available exemption from
registration, and agrees not to engage in hedging transactions with regard
to
such securities unless in compliance with the 1933 Act.
11
5.7 Legends. It
is understood that, except as provided below, certificates evidencing the Shares
may bear the following or any similar legend:
(a) “The securities represented hereby may not be
transferred unless (i) such securities have been registered for sale pursuant
to
the Securities Act of 1933, as amended, (ii) such securities may be sold
pursuant to Rule 144(k), (iii) such Securities may be sold pursuant to
Regulation S, or (iv) the Company has received an opinion of counsel reasonably
satisfactory to it that such transfer may lawfully be made without registration
under the Securities Act of 1933 or qualification under applicable state
securities laws. Hedging transactions involving the securities
represented hereby may not be conducted unless in compliance with the 1933
Act.”
(b) If required by the authorities of any state in
connection with the issuance of sale of the Shares, the legend required by
such
state authority.
5.8 Accredited
Investor. Such Investor is an accredited investor as defined in
Rule 501(a) of Regulation D, as amended, under the 0000 Xxx.
5.9 No
General Solicitation. Such Investor did not learn of the
investment in the Shares as a result of any public advertising or general
solicitation.
5.10 Brokers
and Finders. No Person will have, as a result of the transactions
contemplated by the Agreement, any valid right, interest or claim against or
upon the Company, or an Investor for any commission, fee or other compensation
pursuant to any agreement, arrangement or understanding entered into by or
on
behalf of such Investor.
6. Covenants
and Agreements of the Company.
6.1 Piggyback
Registration Rights. If at any time after the date hereof, the
Company shall determine to prepare and file with the Commission a registration
statement relating to an offering for its own account or the account of others
under the Securities Act of any of its equity securities, other than on Form
S-8
(as promulgated under the Securities Act), then the Company shall use its best
efforts to include in such registration statement all of such Shares to the
extent the Company may do so without violating registration rights of others
which exist as of the date of this Agreement, subject to customary underwriter
cutbacks applicable to all holders of registration rights and subject to
obtaining any required the consent of any selling stockholder(s) to such
inclusion under such registration statement. The Company shall have a
right to postpone, delay or withdraw any registration pursuant to this Section
61 without obligation to the Holder.
6.2. Transfers. The
Company shall refuse to register any transfer of Securities originally issued
pursuant to Regulation S, where the transfer is not made in accordance with
the
provisions of Regulation S (Rule 901 through Rule 905, and Preliminary Notes),
pursuant to registration under the 1933 Act or pursuant to an available
exemption from such registration.
12
7. Survival
and Indemnification.
7.1
Survival. The representations, warranties, covenants and
agreements contained in this Agreement shall survive the Closing of the
transactions contemplated by this Agreement.
7.2
Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Investor and its Affiliates and their
respective directors, officers, employees and agents from and against any and
all losses, claims, damages, liabilities and expenses (including without
limitation reasonable attorney fees and disbursements and other expenses
incurred in connection with investigating, preparing or defending any action,
claim or proceeding, pending or threatened and the costs of enforcement thereof)
(collectively, “Losses”) to which such Person may become subject as a result of
any breach of representation, warranty, covenant or agreement made by or to
be
performed on the part of the Company under the Agreement, and will reimburse
any
such Person for all such amounts as they are incurred by such
Person.
7.3
Indemnification by the Investor. The Investor agrees to
indemnify and hold harmless the Company, and its directors, officers, employees,
stockholders and each person who controls the Company (within the meaning of
the
0000 Xxx) from and against any and all losses, claims, damages, liabilities
and
expenses (including without limitation reasonable attorney fees and
disbursements and other expenses incurred in connection with investigating,
preparing or defending any action, claim or proceeding, pending or threatened
and the costs of enforcement thereof) (collectively, “Losses”) to which such
Person may become subject as a result of any breach of representation, warranty,
covenant or agreement made by or to be performed on the part of the Investor
under the Agreement, and will reimburse any such Person for all such amounts
as
they are incurred by such Person.
7.4 Conduct of
Indemnification Proceedings. Any person
entitled to indemnification hereunder shall (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim
with
counsel reasonably satisfactory to the indemnified party; provided that
any person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless
(a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party
with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided, further, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of
its
obligations hereunder, except to the extent that such failure to give notice
shall materially adversely affect the indemnifying party in the defense of
any
such claim or litigation. It is understood that the indemnifying
party shall not, in connection with any proceeding in the same jurisdiction,
be
liable for fees or expenses of more than one separate firm of attorneys at
any
time for all such indemnified parties. No indemnifying party will,
except with the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or
litigation.
13
8. Miscellaneous.
8.1 Successors
and Assigns. This Agreement may not be assigned by a party hereto
without the prior written consent of the Company or the Investor, as applicable,
provided, however, that an Investor may assign its rights and delegate its
duties hereunder in whole or in part to an Affiliate or to a third party
acquiring some or all of its Shares in a private transaction without the prior
written consent of the Company or the other Investor, after notice duly given
by
such Investor to the Company and the other Investor, provided, that no such
assignment or obligation shall affect the obligations of such Investor
hereunder. The provisions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.2 Counterparts;
Faxes. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
may also be executed via facsimile, which shall be deemed an
original.
8.3 Titles
and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
8.4 Notices. Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given as hereinafter
described (i) if given by personal delivery, then such notice shall be deemed
given upon such delivery, (ii) if given by telex or telecopier, then such notice
shall be deemed given upon receipt of confirmation of complete transmittal,
(iii) if given by mail, then such notice shall be deemed given upon the earlier
of (A) receipt of such notice by the recipient or (B) three (3) days after
such
notice is deposited in first class mail, postage prepaid, and (iv) if given
by
an internationally recognized overnight air courier, then such notice shall
be
deemed given one business day after delivery to such carrier. All
notices shall be addressed to the party to be notified at the address as
follows, or at such other address as such party may designate by ten days’
advance written notice to the other party:
14
If
to the Company:
Woize
International, Ltd
0
Xxxxxxxx
Xxxxxx
XXX 0XX
Xxxxxxxxx:
Xxxxxx Xxxxxxx
Fax:
With
a copy to:
Sichenzia,
Ross, Xxxxxxxx Xxxxxxx LLP
1065
Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
X. Xxxxxxxx
Fax: (000)
000-0000
If
to the Investor:
to
the
addresses set forth on the signature pages hereto.
9.5 Expenses. The
parties hereto shall pay their own costs and expenses in connection herewith.
In
the event that legal proceedings are commenced by any party to this Agreement
against another party to this Agreement in connection with this Agreement or
the
other Agreement, the party or parties which do not prevail in such proceedings
shall severally, but not jointly, pay their pro rata share of the reasonable
attorneys’ fees and other reasonable out-of-pocket costs and expenses incurred
by the prevailing party in such proceedings.
9.6 Amendments
and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or
in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Investor.
9.7 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 but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, the parties hereby waive any provision
of
law which renders any provision hereof prohibited or unenforceable in any
respect.
9.8 Entire
Agreement. This Agreement constitutes the entire agreement among
the parties hereof with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof and
thereof.
15
9.9 Further
Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and
to
evidence the fulfillment of the agreements herein contained.
9.10 Governing Law;
Consent to Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by, and construed in accordance with the laws of the State
of
Nevada without regard to the choice of law principles thereof. Each
of the parties hereto irrevocably submits to the exclusive jurisdiction of
the
courts of the State of Nevada for the purpose of any suit, action, proceeding
or
judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Service of process in connection with any such
suit, action or proceeding may be served on each party hereto anywhere in the
world by the same methods as are specified for the giving of notices under
this
Agreement. Each of the parties hereto irrevocably consents to the
jurisdiction of any such court in any such suit, action or proceeding and to
the
laying of venue in such court. Each party hereto irrevocably waives
any objection to the laying of venue of any such suit, action or proceeding
brought in such courts and irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO
REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS
WAIVER.
[signature page follows]
16
IN
WITNESS WHEREOF, the parties have executed this Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
The
Company: Woize
International
By:_/s/_Anders
Halldin_________________
Name: Xxxxxx
Xxxxxxx
Title: Chief
Executive Officer
The
Investor: Xxx
Xxxxxxxx
By:__/s/_Jan
Orrenius__________________
Name:
Xxx Xxxxxxxx
Title:
Aggregate
Purchase Price: USD 50,000
Number
of Shares: 166,667
