EXHIBIT 10.3
STOCK ISSUANCE AGREEMENT
THIS STOCK ISSUANCE AGREEMENT (this "Agreement"), dated as of September
8, 2005 ("Effective Date"), is entered into by and between Chartwell
International, Inc., a Nevada corporation (the "Company"), and Xxxxx X. Xxxxx,
an individual (the "Investor").
RECITALS
WHEREAS, the Company has entered into that certain Agreement and Plan
of Merger ("Merger Agreement") by and amongst the Company, E-Rail Acquisition
Sub, a Nevada corporation and wholly-owned subsidiary of the Company ("Merger
Sub"), and E-Rail Logistics, Inc., a New York corporation ("E-Rail")and
wholly-owned subsidiary of Real Waste Holdings, LLC, a New York limited
liability company ("RWH"), dated as of even date herewith, whereupon Merger Sub
shall be merged with and into E-Rail, and E-Rail shall survive as a wholly-owned
subsidiary of the Company (the "Merger");
WHEREAS, the Investor has entered into that certain Agreement by and
among RWH, E-Rail, Starbank Group Ltd., Investor, Xxxxxx Xxxxxxx, Xxxxx Xxxxxx
and Xxxxxxx Xxxxxxx (collectively, the "Members") dated as of September 2, 2005
whereby the Members agreed to issue 232,500 shares of Common Stock of the
Company to Investor upon closing of the Merger and 300,000 shares of Common
Stock of the Company pursuant to that certain Note Purchase Agreement by and
among Investor, the Company and RWH dated of even date herewith (the "Shares");
WHEREAS, the Company desires, and Investor agrees to, through this
Agreement, provide for certain of Investor's rights and restrictions with
respect to the Shares;
NOW, THEREFORE, in consideration of the foregoing, and the
representations, warranties, covenants and conditions set forth below, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Registration Statement.
1.1 On or before a date that is twelve (12) months after the
Effective Date, the Company shall file with the Securities and Exchange
Commission ("SEC") a registration statement on Form S-3 (or, if such form is not
available to the Company, any such other form as may be available to the
Company) to register for resale pursuant to Section 5 of the Securities Exchange
Act of 1933, as amended (the "Act"), 429,500 of the Shares ("Registrable
Securities") transferred to Investor by RWH after the Merger. The Company shall
use reasonable best efforts to cause such registration statement to be declared
effective within ninety (90) days of filing and to remain available for the
resale of such shares and securities for a period of up to twenty four (24)
months from the Effective Date, provided, however, that the Company may suspend
the use of the prospectus constituting part of the registration statement (i)
for up to two periods of sixty (60) days each in the event the Company
determines, in its sole judgment, that such prospectus is incomplete, inaccurate
or omits to disclose any information required to be included therein, and
further provided, that the period during which the registration statement will
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remain available shall be extended by any period in which the Company invoked
its right to suspend the use of the prospectus, or (ii) if it shall receive
notice or obtain knowledge of the issuance of any stay order by the SEC delaying
or suspending the effectiveness of the registration statement or the initiation
of any proceeding for that purpose. In the event of any such suspension, the
Company will promptly notify the Investor of the suspension and use its
reasonable best efforts to amend or supplement the registration statement, and
the prospectus constituting a part thereof, within said 60-day period to enable
the use of the amended or supplemented prospectus for the resale of the shares
and securities covered thereby or to prevent the issuance of any stop order or
obtain its withdrawal. The Company will promptly notify the Investor of the
effectiveness of the registration statement or of any amendment or supplement
thereto. The Company will provide the Investor with such copies of the
prospectus, or any amended or supplemented prospectus, as the Investor may
reasonable request.
1.2 Investor agrees to cooperate with the Company in preparing
and filing the aforesaid registration statement, and any amendment or supplement
thereto, and to provide the Company with such information and documentation as
the Company may reasonably request.
1.3 Notwithstanding anything to the contrary contained herein,
the Company shall not be obligated to maintain the effectiveness of any
registration statement, or to update, amend or supplement such registration
statement or any prospectus constituting a part thereof, after the Investor
shall become eligible to sell all of its shares, or remaining shares, pursuant
to Rule 144 of the Act, for any three month period, without volume limitations,
or under Rule 144(k) thereunder.
1.4 The Company shall bear all expenses in connection with the
registration of the shares pursuant to this Agreement, other than fees and
expenses, if any, of counsel or other advisers to the Investor or underwriting
discounts, brokerage fees and commissions incurred by the Investor.
2. Market Stand-Off. Investor hereby agrees that it will not sell, make
any short sale of, loan, grant any option for the purchase of, or otherwise
transfer or dispose of the Shares, excluding the Registrable Securities without
the prior written consent of the Company, which shall not be unreasonably
withheld, for a period of two (2) years from the Effective Time.
3. Investor Representations and Obligations. Investor acknowledges and
agrees to the terms and conditions set forth on Exhibit A and Annex I to such
exhibit, attached hereto and incorporated herein by reference as if fully set
forth herein.
4. Confidentiality. Investor, its affiliates and any representative of
Investor will agree, to hold in confidence and trust and not use or disclose any
confidential information provided to or learned by it in connection with its
rights under this Agreement; provided, however, that, notwithstanding anything
to the contrary herein, Investor may use or disclose any confidential
information to its directors, officers or employees that have a need to know
such information.
5. Miscellaneous.
a. Notices. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be
notified; (b) when sent by confirmed facsimile if sent during normal business
hours of the recipient, if not, then on the next business day; (c) five days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid; or (d) two days after deposit with a nationally
recognized overnight courier, specifying two day delivery, with written
verification of receipt. All communications shall be sent to the parties at the
following addresses or facsimile numbers specified below (or at such other
address or facsimile number for a party as shall be designated by ten days
advance written notice to the other parties hereto):
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If to the Company:
Chartwell International, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx Xxxxxxx
Ph:(000) 000-0000
Fax:(000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxx, Eng & Xxxxxxxx
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Ph: (000) 000-0000
Fax: (000) 000-0000
If to the Investor:
Xxxxx Xxxxx
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Ph:
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Fax:
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with a copy to (which shall not constitute notice):
[ ]
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Attn:
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Ph:
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Fax:
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b. Amendment. To the extent permitted by law, this Agreement may be amended by a
subsequent writing signed by each of the parties hereto.
c. Waiver. The waiver of one breach or default or any delay in exercising any
rights will not constitute a waiver of any subsequent breach or default. No term
of this Agreement shall be considered waived and no breach excused by either
party unless made in writing. No consent, waiver, or excuse by either party,
express or implied, unless in writing, shall constitute a subsequent consent,
waiver or excuse.
d. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on
the part of any party hereto in the exercise of any right hereunder shall impair
such right or be construed to be a waiver of, or acquiescence in, any breach of
any representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise thereof or
of any other rights. Except as otherwise provided hereunder, all rights and
remedies existing under this Agreement are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
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e. Headings. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
f. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible, in a mutually acceptable manner, to the end that
transactions contemplated hereby are fulfilled to the extent possible.
g. Entire Agreement. This Agreement (including the exhibits and annex attached
hereto and thereto referenced herein) constitutes the entire agreement and
supersedes all prior agreements and undertakings both oral and written, among
the parties, or any of them, with respect to the subject matter hereof and,
except as otherwise expressly provided herein.
h. Assignment. No party may assign this Agreement or assign its respective
rights or delegate their duties (by operation of law or otherwise), without the
prior written consent of the other party. This Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
i. Parties In Interest. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement,
including, without limitation, by way of subrogation.
j. Governing Law. This Agreement will be governed by, and construed and enforced
in accordance with the laws of the State of Nevada as applied to contracts that
are executed and performed in Nevada, without regard to the principles of
conflicts of law thereof. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in Kanawha County, West
Virginia, for the adjudication of any dispute hereunder or in connection
herewith 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 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 in effect for 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.
k. Counterparts. This Agreement may be executed in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. This Agreement shall become effective
when counterparts have been signed by each of the parties and delivered by
facsimile or other means to the other party. Any party who delivers a signature
page via facsimile agrees to later deliver an original counterpart to all other
parties.
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l. Attorneys Fees. If any action or proceeding relating to this Agreement, or
the enforcement of any provision of this Agreement is brought by a party hereto
against any party hereto, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date and year first written above.
CHARTWELL INTERNATIONAL, INC.
By:
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Name:
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Title:
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XXXXX X. XXXXX
By:
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