SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
THIS
SECURITIES PURCHASE AGREEMENT is entered into as of January
9,
2006
(the “Agreement”), by and by and among Commerce Development Corporation, Ltd., a
Maryland corporation (the “Company”), on the one hand, and each of the
undersigned buyers identified on the signature pages hereto and on Schedule
A
attached
hereto (collectively, the “Buyers”). Each party to this Agreement is referred to
herein as a “Party,” and they are all referred to collectively as “Parties.”
W
I T N E
S S E T H:
WHEREAS,
the Company wishes to issue and sell and the Buyers wish to purchase 72,001,735
shares of the Company’s common stock (the “Securities”);
WHEREAS,
in connection with this Agreement and as an inducement for the Buyers to
purchase the Shares herein, certain shareholders of the Company are selling
16,451,435 shares of the common stock of the Company pursuant to a Stock
Purchase Agreement entered into between the Buyers and such selling shareholders
which, along with the issuance and purchase of the Shares as set forth
in this
Agreement constitutes approximately 90% of the total outstanding shares
of
common stock of the Company;
NOW,
THEREFORE, in consideration of the premises and of the mutual representations,
warranties and agreements set forth herein, the Parties hereto agree as
follows:
ARTICLE
I
PURCHASE
OF SECURITIES
1.1 Incorporation
of Recitals.
The provisions and recitals set forth above are hereby referred to and
incorporated herein and made a part of this Agreement by reference.
1.2 Purchase
of Shares.
Subject to the terms and conditions of this Agreement, on the Closing Date
(as
hereinafter defined) the Company shall issue and each of the Buyers shall
purchase such amount of the Shares and for such consideration (the aggregate
purchase price referred to herein as the “Purchase Price”) as set forth on
Schedule
A
attached
hereto from the Sellers.
1.3 Closing.
The Closing shall take place on January 9, 2006 (the “Closing Date”). On the
Closing Date, the Company shall deliver to the Buyers stock certificate(s)
evidencing the Shares to be purchased in the name of the Buyers and/or
its
designees (the “Shares Certificates”). On the Closing Date, the Buyers shall
deliver to the Sellers to total cash consideration of $82,833 for the purchase
of the Shares.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to Buyer that now and/or as of the Closing
(for
purposes of this Article II, the Company shall referred to the Company
and all
of its subsidiaries):
2.1 Due
Organization and Qualification; Subsidiaries; Due Authorization.
(a) The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of formation, with full corporate
power and authority to own, lease and operate its respective business and
properties and to carry on its respective business in the places and in
the
manner as presently conducted. The Company is in good standing as a foreign
corporation in each jurisdiction in which the properties owned, leased
or
operated, or the business conducted, by it requires such qualification
except
for any failure, which when taken together with all other failures, is
not
likely to have a material adverse effect on the business of the Company,
taken
as a whole.
(b) The
Company does not have, and has never had, any subsidiaries and does not
own,
directly or indirectly, any capital stock, equity or interest in any
corporation, firm, partnership, joint venture or other entity.
(c) The
Company has all requisite corporate power and authority to execute and
deliver
this Agreement, and to consummate the transactions contemplated hereby
and
thereby. The Company has taken all corporate action necessary for the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby, and this Agreement constitutes the valid and binding
obligation of the Company, enforceable against the Company in accordance
with
its respective terms, except as may be affected by bankruptcy, insolvency,
moratoria or other similar laws affecting the enforcement of creditors’ rights
generally and subject to the qualification that the availability of equitable
remedies is subject to the discretion of the court before which any proceeding
therefore may be brought. This
Agreement, the Actions, and the transactions contemplated hereby have been
unanimously approved by the Board of Directors of the Company and by the
holders
of a majority of the outstanding shares of Common Stock of the Company.
2.2 No
Conflicts or Defaults. The
execution and delivery of this Agreement by the Company and the consummation
of
the transactions contemplated hereby do not and shall not (a) contravene
the
Certificate of Incorporation or By-laws of the Company or (b) with or without
the giving of notice or the passage of time (i) violate, conflict with,
or
result in a breach of, or a default or loss of rights under, any material
covenant, agreement, mortgage, indenture, lease, instrument, permit or
license
to which the Company is a party or by which the Company is bound, or any
judgment, order or decree, or any law, rule or regulation to which the
Company
is subject, (ii) result in the creation of, or give any party the right
to
create, any lien, charge, encumbrance or any other right or adverse interest
(“Liens”) upon any of the assets of the Company, (iii) terminate or give any
party the right to terminate, amend, abandon or refuse to perform, any
material
agreement, arrangement or commitment to which the Company is a party or
by which
the Company’s assets are bound, or (iv) accelerate or modify, or give any party
the right to accelerate or modify, the time within which, or the terms
under
which, the Company is to perform any duties or obligations or receive any
rights
or benefits under any material agreement, arrangement or commitment to
which it
is a party.
2.3 Capitalization.
The authorized capital stock of the Company, on the Closing Date, shall
be
300,000,000 shares of Common Stock, par value $0.001 per share, of which
21,365,500 shares are as of the date hereof, issued and outstanding (the
“Company Shares”). The
Company has no issued and outstanding shares of preferred stock. All
of
the Company Shares are duly authorized, validly issued, fully paid and
nonassessable, and have not been issued in violation of any preemptive
right of
stockholders. The Company Shares are not, and those shares of Common Stock
when
issued in accordance with the terms hereof will not be, subject to any
preemptive or subscription right. There is no outstanding voting trust
agreement
or other contract, agreement, arrangement, option, warrant, call, commitment
or
other right of any character obligating or entitling the Company to issue,
sell,
redeem or repurchase any of its securities, and there is no outstanding
security
of any kind convertible into or exchangeable for the common stock of the
Company, nor has the Company, or any of its agents orally agreed to issue
any of
the foregoing. There
are
no declared or accrued unpaid dividends with respect to any shares of the
Company’s common stock. There are no agreements, written or oral, between the
Company and any of their shareholders or among any Company shareholders
relating
to the acquisition (including without limitation rights of first refusal
or
preemptive rights), or disposition, or registration under the Securities
Act or
voting of the capital stock of the Company. There are no outstanding shares
of
Company Common Stock that are subject to vesting. The Company has no other
capital stock authorized, issued or outstanding.
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2.4 Financial
Statements.
(a) SEC
Documents.
The Company hereby makes reference to the following documents filed with
the
United States Securities and Exchange Commission (the “SEC”), as posted on the
SEC’s website, xxx.xxx.xxx:
(collectively, the “SEC Documents”): (a) Annual Report on Form 10-KSB for the
fiscal year ended December 31, 2004, as amended; (b) Registration of Securities
Of Small Business Issuers on Form SB-2 as filed on April 21, 2003, and
all
amendments thereto; and (c) Quarterly Reports on Form 10-QSB for the periods
ended September 30, 2004 and 2005, March 31, 2005, and June 30, 2005, and
all
amendments thereto. The SEC Documents constitute all of the documents and
reports that the Company was required to file with the SEC pursuant to
the
Securities Exchange Act of 1934 (“Exchange Act”) and the rules and regulations
promulgated thereunder by the SEC since the effectiveness of the Company’s Form
SB-2 filed on April 21, 2003, as amended. The
financial statements included in the SEC Documents include copies of the
balance
sheets of the Company at December 31, 2003 and 2004, and the related statements
of operations and stockholders’ cash flows for the fiscal years then ended,
including the notes thereto, as audited by Xxxxxxxx Xxxxxxxxx & Co., CPA
P.A. Certified, independent accountants, and the balance sheet of the Company
at
September 30, 2005 and the related statements of operations and stockholders’
cash flows for the nine-month period then ended prepared by the Company’s
management (all such statements being referred to collectively as the “Company
Existing Financial Statements”). All the Company Existing Financial Statements,
together with the notes thereto, have been prepared in accordance with
U.S.
generally accepted accounting principles applied on a basis consistent
throughout all periods presented. These Company Existing Financial Statements
present fairly the financial position of the Company as of the dates and
for the
periods indicated. The books of account and other financial records of
the
Company have been maintained in accordance with good business practices.
(b) Since
the
date of the latest Company Existing Financial Statements (the “Most Recent
Date”), there has been no material adverse change in the condition, financial
or
otherwise, net worth, prospects or results of operations of the Company.
Without
limiting the foregoing, since the Most Recent Date:
(i) the
Company has not sold, leased, transferred or assigned any of their assets,
tangible or intangible, other than in the ordinary course of
business;
(ii) the
Company has not entered into any agreement, contract, commitment, lease
or
license (or series of related agreements, contracts, commitments, leases
and
licenses);
(iii) no
party
(including the Company) has accelerated, terminated, modified or canceled
any
agreement, contract, lease or license (or series of related agreements,
contracts, leases and licenses) to which the Company is a Party or by which
the
Company or its assets are bound;
(iv) the
Company has not made any capital expenditure (or series of related capital
expenditures) of whatever nature;
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(v) the
Company has not made any capital investments in, any loans to, or any
acquisitions of the securities or assets of any other Person (or a series
of
related capital investments, loans and acquisitions);
(vi) the
Company has not issued any notes, bonds or other debt securities, or created,
incurred, assumed or guaranteed any indebtedness for borrowed money or
capitalized lease obligation;
(vii) the
Company has not canceled, compromised, waived or released any right or
claim (or
series of related rights and claims);
(viii) the
Company has not made any loans to, or entered into any other transactions
with,
any of their respective directors, officers, or employees; and
(ix) the
Company has committed to do any of the foregoing.
2.5 Further
Financial Matters.
The Company does not have any (a) assets of any kind or (b) liabilities
or
obligations, whether secured or unsecured, accrued, determined, absolute
or
contingent, asserted or unasserted or otherwise, which are required to
be
reflected or reserved in a balance sheet or the notes thereto under generally
accepted accounting principles, and which are not reflected in the Company
Financial Statements.
2.6 Taxes.
The Company has filed all United States federal, state, county, local and
foreign, national, provincial and local returns and reports which were
required
to be filed on or prior to the Closing Date hereof in respect of all income,
withholding, franchise, payroll, excise, property, sales, use, value-added
or
other taxes or levies, imposts, duties, license and registration fees,
charges,
assessments or withholdings of any nature whatsoever (together, “Taxes”), and
has paid all Taxes (and any related penalties, fines and interest) which
have
become due pursuant to such returns or reports or pursuant to any assessment
which has become payable, or, to the extent its liability for any Taxes
(and any
related penalties, fines and interest) has not been fully discharged, the
same
have been properly reflected as a liability on the books and records of
the
Company and adequate reserves therefore have been established. All such
returns
and reports filed on or prior to the date hereof have been properly prepared
and
are true, correct (and to the extent such returns reflect judgments made
by the
Company, as the case may be, such judgments were reasonable under the
circumstances) and complete in all material respects. The amount shown
on the
Company’s most recent balance sheet as provision for taxes is sufficient in all
material respects to pay all accrued and unpaid federal, state, local and
foreign taxes for the period then ended and all prior periods. No tax return
or
tax return liability of the Company has been audited or, presently under
audit.
The Company has not given or been requested to give waivers of any statute
of
limitations relating to the payment of any Taxes (or any related penalties,
fines and interest). There are no claims pending or, to the knowledge of
the
Company, threatened, against the Company for past due Taxes. All payments
for
withholding taxes, unemployment insurance and other amounts required to
be paid
for periods prior to the date hereof to any governmental authority in respect
of
employment obligations of the Company, including, without limitation, amounts
payable pursuant to the Federal Insurance Contributions Act, have been
paid or
shall be paid prior to the Closing and have been duly provided for on the
books
and records of the Company and in the Financial Statements. All such amounts
and
penalties are set forth in the Company’s balance sheet.
2.7 Indebtedness;
Contracts; No Defaults; Liabilities.
(a) The
Company has no instruments, agreements, indentures, mortgages, guarantees,
notes, commitments, accommodations, letters of credit or other arrangements
or
understandings, whether written or oral, to which the Company is a party,
all of
which will be extinguished shortly after the Closing.
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(b) Neither
the Company, nor, to the Company’s knowledge, any other person or entity is in
breach, or in default under any contract, agreement, arrangement, commitment
or
plan to which the Company is a party, and no event or action has occurred,
is
pending or is threatened, which, after the giving of notice, passage of
time or
otherwise, would constitute or result in such a breach or default by the
Company
or, to the knowledge of the Company, any other person or entity. The Company
has
not received any notice of default under any contract, agreement, arrangement,
commitment or plan to which it is a party, which default has not been cured
to
the satisfaction of, or duly waived by, the party claiming such default
on or
before the date hereof.
(c) Other
than the liabilities set forth on Schedule
B
which
shall be paid off immediately upon the closing, the Company shall have
no
liabilities.
2.8 Real
Property.
The Company does not own or lease any real property.
2.9 Compliance.
(a) The
Company is not conducting its respective business or affairs in violation
of any
applicable federal, state or local law, ordinance, rule, regulation, court
or
administrative order, decree or process, or any requirement of insurance
carriers. The Company has not received any notice of violation or claimed
violation of any such law, ordinance, rule, regulation, order, decree,
process
or requirement.
(b) The
Company is in compliance with all applicable federal, state, local and
foreign
laws and regulations. There are no claims, notices, actions, suits, hearings,
investigations, inquiries or proceedings pending or, to the knowledge of
the
Company, threatened against the Company, and there are no past or present
conditions that the Company has reason to believe are likely to give rise
to any
material liability or other obligations of the Company under any
circumstances.
2.10 Permits
and Licenses.
The Company has all certificates of occupancy, rights, permits, certificates,
licenses, franchises, approvals and other authorizations as are reasonably
necessary to conduct its respective business and to own, lease, use, operate
and
occupy its assets, at the places and in the manner now conducted and operated,
except those the absence of which would not materially adversely affect
its
respective business. The Company has not received any written or oral notice
or
claim pertaining to the failure to obtain any material permit, certificate,
license, approval or other authorization required by any federal, state
or local
agency or other regulatory body, the failure of which to obtain would materially
and adversely affect its business.
2.11 Litigation.
(a) There
is
no claim, dispute, action, suit, inquiry, proceeding or investigation pending
or, to the knowledge of the Company, threatened, against or affecting the
business of the Company, or challenging the validity or propriety of the
transactions contemplated by this Agreement, at law or in equity or admiralty
or
before any federal, state, local, foreign or other governmental authority,
board, agency, commission or instrumentality, nor has any such claim, dispute,
action, suit, proceeding or investigation been pending or threatened, during
the
12 month period preceding the date hereof;
(b) There
is
no outstanding judgment, order, writ, ruling, injunction, stipulation or
decree
of any court, arbitrator or federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, against or affecting
the business of the Company; and
(c) The
Company has not received any written or verbal inquiry from any federal,
state,
local, foreign or other governmental authority, board, agency, commission
or
instrumentality concerning the possible violation of any law, rule or regulation
or any matter disclosed in respect of its business.
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2.12 Insurance.
The Company does not currently maintain any form of insurance.
2.13 Articles
of Incorporation and By-laws; Minute Books.
Certified copies of the Company’s Articles of Incorporation and its by-laws have
been forwarded to the Buyer. Such copies of the Articles of Incorporation
and
By-laws (or similar governing documents) of the Company, and all amendments
to
each are true, correct and complete. The minute books of the Company as
forwarded to the Buyer contain true and complete records of all meetings
and
consents in lieu of meetings of their respective Board of Directors (and
any
committees thereof), or similar governing bodies, since the time of their
respective organization. The stock books of the Company as forwarded to
the
Buyer are true, correct and complete.
2.14 Employee
Benefit Plans.
The Company does not maintain, nor has the Company maintained in the past,
any employee benefit plans (“as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”)), or any plans,
programs, policies, practices, arrangements or contracts (whether group
or
individual) providing for payments, benefits or reimbursements to employees
of
the Company, former employees, their beneficiaries and dependents under
which
such employees, former employees, their beneficiaries and dependents are
covered
through an employment relationship with the Company, any entity required
to be
aggregated in a controlled group or affiliated service group with the Company
for purposes of ERISA or the Internal Revenue Code of 1986 (the “Code”)
(including, without limitation, under Section 414(b), (c), (m) or (o) of
the
Code or Section 4001 of ERISA, at any relevant time (“Benefit
Plans”).
2.15 Patents;
Trademarks and Intellectual Property Rights.
The Company does not own or possess any patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information, Internet
web
site(s) or proprietary rights of any nature. The business conducted by
the
Company has not and will not cause the Company to infringe or violate any
of the
patents, trademarks, service marks, trade names, copyrights, mask-works,
licenses, trade secrets, processes, data, know-how or other intellectual
property rights of any other Person.
2.16 Brokers.
The Company has not agreed to or incurred any obligation or other liability
that
could be claimed against the Company or Buyer or any other person for any
finder’s fee, brokerage commission or similar payment.
2.17 Affiliate
Transactions.
Neither the Company nor any officer, director or employee of the Company
(or any
of the relatives or Affiliates of any of the aforementioned Persons) is
a party
to any agreement, contract, commitment or transaction with the Company
or
affecting the business of the Company, or has any interest in any property,
whether real, personal or mixed, or tangible or intangible, used in or
necessary
to the Company which will subject the Company to any liability or obligation
from and after the Closing Date.
2.18 Trading.
The Company Common Stock is currently listed for trading on the OTC
Bulletin Board (the “Bulletin Board”), and the Company has not received any
notices that its common stock is subject to being delisted
therefrom.
2.19 Compliance.
The Company has complied with the requirements of the Securities Exchange
Act of
1934, as amended (the “Exchange Act”) and the Securities Act of 1933, as amended
(the “Securities Act”), and is current in its filings under the Exchange Act and
the Securities Act.
6
2.20 Filings.
To the knowledge of the Company, none of the filings made by the Company
under the Securities Act or the Exchange Act make any untrue statement
of a
material fact or omit to state a material fact necessary in order to make
the
statements made, in light of the circumstances under which they were made,
not
misleading.
2.21 Consents.
No consent, waiver, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission
or
other federal, state, county, local or other foreign governmental authority,
instrumentality, agency or commission (“Governmental Entity”) is required by or
with respect to the Company in connection with the execution and delivery
of
this Agreement and any related agreements to which the Company is a party
or the
consummation of the transactions contemplated hereby and thereby, except
for
such consents, waivers, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable securities
laws.
2.22 Schedules.
All
lists
or other statements, information or documents set forth in, attached to
any
Schedule provided pursuant to this Agreement or delivered hereunder shall
be
deemed to be representations and warranties by the Company with the same
force
and effect as if such lists, statements, information and documents were
set
forth herein. Any list, statement, document or any information set forth
in,
attached to any Schedule provided pursuant to this Agreement or delivered
hereunder shall not be deemed to constitute disclosure for any other Schedule
provided pursuant to this Agreement unless specific cross reference is
made and
shall survive after closing.
2.23 Environmental
Matters.
The Company has never: (i) operated any underground storage tanks at any
property that the Company has at any time owned, operated, occupied or
leased;
or (ii) illegally released any material amount of any substance that has
been designated by any Governmental Entity or by applicable foreign, federal,
state, or local law to be radioactive, toxic, hazardous or otherwise a
danger to
health or the environment, including, without limitation, PCBs, asbestos,
petroleum, and urea-formaldehyde and all substances listed as hazardous
substances pursuant to the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, or defined as a hazardous waste
pursuant
to the United States Resource Conservation and Recovery Act of 1976, as
amended,
and the regulations promulgated pursuant to said laws), but excluding office
and
janitorial supplies properly and safely maintained.
2.24. Subsidiaries.
The Company does have any subsidiaries and does not own any securities
of
another corporation, partnership, limited liability company or other forms
of
business entities.
2.25 Representations
and Warranties.
The representations and warranties of the Company included in this Agreement
and
any list, statement, document or information set forth in, attached to
any
Schedule provided pursuant to this Agreement or delivered hereunder, are
true
and complete in all material respects and do not contain any untrue statement
of
a material fact or omit to state a material fact required to be stated
therein
or necessary to make the statements contained therein not misleading, under
the
circumstance under which they were made and shall survive after closing
as set
forth herein.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE BUYERS
Each
of
the Buyer hereby represents and warrants to the Company that now and/or
as of
the Closing:
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3.1 Authority
Relative to this Agreement.
The Buyers have the requisite power and/or authority to enter into this
Agreement and carry out his/her obligations hereunder. This Agreement has
been
duly and validly executed and delivered by the Buyers and constitutes a
valid
and binding obligation of the Buyers, enforceable in accordance with its
terms,
except as such enforcement may be limited by bankruptcy, insolvency or
other
similar laws affecting the enforcement of creditors' rights generally or
by
general principles of equity.
3.2 Buyer
Representation Regarding the Securities.
The Buyers understand that the Securities are “restricted securities” and
have not been registered under the Securities Act or any applicable state
securities law and is acquiring the Securities as principal for its own
account
and not with a view to or for distributing or reselling such Securities
or any
part thereof, has no present intention of distributing any of such Securities
and has no arrangement or understanding with any other persons regarding
the
distribution of such Securities (this representation and warranty not limiting
such Buyer’s right to sell the Securities pursuant to the Registration Statement
or otherwise in compliance with applicable federal and state securities
laws).
The Buyers are acquiring the Shares hereunder in the ordinary course of
its
business. The Buyers do not have any agreement or understanding, directly
or
indirectly, with any Person to distribute any of the Securities.
3.3 Buyer
Status.
At the time the Buyers receive any of the Securities, the Buyers will be
an
“accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or
(a)(8) under the Securities Act.
3.4 Experience
of the Buyers. The
Buyers, either alone or together with its representatives, have such knowledge,
sophistication and experience in business and financial matters so as to
be
capable of evaluating the merits and risks of the prospective investment
in the
Securities, and has so evaluated the merits and risks of such investment.
The
Buyers are able to bear the economic risk of an investment in the Securities
and, at the present time, is able to afford a complete loss of such
investment.
3.5 General
Solicitation.
The Buyers are not receiving the Securities as a result of any
advertisement, article, notice or other communication regarding the Shares
published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other general
solicitation or general advertisement.
ARTICLE
IV
DELIVERIES
& CONDITIONS
4.1 Items
to be delivered to the Buyers at the Closing by the Company.
The Buyers’ obligation to purchase the Securities is conditioned on the
following closing conditions and deliveries:
(a) A
copy of
this Agreement duly executed has been delivered to the Escrow
Agent;
(b) Share
Certificates issued in the name of the Buyer or its designee or
assignee;
(c) Any
other
document reasonably requested by Buyer that Buyer deems necessary for the
consummation of this transaction;
(d) The
Buyers are satisfied with its due diligence investigation of the Company,
in its
sole discretion; and
(e) the
representations and warranties set forth in Articles 2 of this Agreement
shall
be true and correct in all material respects.
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4.2 Items
to be delivered at Closing by Buyer.
(a) All
applicable exhibits and schedules hereto;
(b) A
copy of
this Agreement duly executed;
(c) Any
other
document reasonably requested by the Company that it deems necessary for
the
consummation of this transaction.
ARTICLE
V
TERMINATION
5.1 Termination.
This Agreement may be terminated:
(a) at
any
time before, or at, Closing by written notice of the Buyers;
(b) prior
to
the Closing by any Party at any time if
any
provision (including, but not limited to, the representations and warranties)
of
this Agreement that is applicable to or required to be performed by the
other
Party shall be materially untrue or fail to be accomplished or if any conditions
set forth in Article 4 hereof have not been fully satisfied;
(c) Upon
termination of this Agreement for any reason, in accordance with the terms
and
conditions set forth in this paragraph, each Party shall bear all costs
and
expenses as that Party has incurred.
ARTICLE
VI
MISCELLANEOUS
6.1 Survival
of Representations, Warranties and Agreements.
All representations, warranties and statements made by a Party to in this
Agreement or in any document or certificate delivered pursuant hereto shall
survive the Closing Date. Each of the Parties hereto is executing and carrying
out the provisions of this Agreement in reliance upon the representations,
warranties and covenants and agreements contained in this agreement or
at the
closing of the transactions herein provided for and not upon any investigation
which it might have made or any representations, warranty, agreement, promise
or
information, written or oral, made by the other Party or any other person
other
than as specifically set forth herein.
6.2 Access
to Books and Records.
During the course of this transaction through Closing, each Party agrees
to make
available for inspection all corporate books, records and assets, and otherwise
afford to each other and their respective representatives, reasonable access
to
all documentation and other information concerning the business, financial
and
legal conditions of each other for the purpose of conducting a due diligence
investigation thereof. Such due diligence investigation shall be for the
purpose
of satisfying each Party as to the business, financial and legal condition
of
each other for the purpose of determining the desirability of consummating
the
proposed transaction. The Parties further agree to keep confidential and
not use
for their own benefit, except in accordance with this Agreement any information
or documentation obtained in connection with any such
investigation.
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6.3 Further
Assurances.
If, at any time after the Closing, the Parties hereby mutually agree
that any further deeds, assignments or assurances in law or that any other
things are necessary, desirable or proper to complete the transactions
contemplated hereby in accordance with the terms of this agreement or to
vest,
perfect or confirm, of record or otherwise, the title to any property or
rights
of the Parties hereto, the Parties agree that their proper officers and
directors shall execute and deliver all such proper deeds, assignments
and
assurances in law and do all things necessary, desirable or proper to vest,
perfect or confirm title to such property or rights and otherwise to carry
out
the purpose of this Agreement, and that the proper officers and directors
the
Parties are fully authorized to take any and all such action.
6.4 Notice.
All
communications, notices, requests, consents or demands given or required
under
this Agreement shall be in writing and shall be deemed to have been duly
given
when delivered to, or received by prepaid registered or certified mail
or
recognized overnight courier addressed to, or upon receipt of a facsimile
sent
to, the Party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by that Party by notice in the manner
provided herein:
If
to the
Company:
Xxxxxx
Xxxxxx
0000
Xxx
Xxx Xxxxx Xxxxx
0xx
Xxxxx
Xxx
Xxxxx, XX 00000
If
to
Buyer:
Xxxxx
X.
Xxxxx, Esq.
Xxxxxxxxxx
& Xxxxx LLP
00000
Xxxxxxxx Xxxx. Xxxxx 000
Xxx
Xxxxxxx, XX 00000
6.5 Entire
Agreement.
This Agreement, the Exhibits and Schedules hereto and any instruments and
agreements to be executed pursuant to this Agreement, set forth the entire
understanding of the Parties hereto with respect to its subject matter,
merges
and supersedes all prior and contemporaneous understandings with respect
to its
subject matter and may not be waived or modified, in whole or in part,
except by
a writing signed by each of the Parties hereto. No waiver of any provision
of
this Agreement in any instance shall be deemed to be a waiver of the same
or any
other provision in any other instance. Failure of any party to enforce
any
provision of this Agreement shall not be construed as a waiver of its rights
under such provision.
6.6 Successors
and Assigns.
This Agreement shall be binding upon, enforceable against and inure to
the
benefit of, the Parties hereto and their respective heirs, administrators,
executors, personal representatives, successors and assigns, and nothing
herein
is intended to confer any right, remedy or benefit upon any other person.
This
Agreement may not be assigned by the Corporation except with the prior
written
consent of the Buyer. This Agreement and all of the obligations of the
Company
may be assigned by the Buyer without the prior notice to the Company or
written
consent of the Company and upon assignment, all of the rights and obligations
of
Buyer shall be the rights and obligations of the Buyer’s designated
assignee.
10
6.7 Governing
Law.
This Agreement shall in all respects be governed by and construed in accordance
with the laws of the State of California, USA that are applicable to agreements
made and fully to be performed in such state, without giving effect to
conflicts
of law principles.
6.8 Counterparts.
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and
the same instrument.
6.9 Construction.
Headings contained in this Agreement are for convenience only and shall
not be
used in the interpretation of this Agreement. References herein to Articles,
Sections and Exhibits are to the articles, sections and exhibits, respectively,
of this Agreement. The Schedules hereto are hereby incorporated herein
by
reference and made a part of this Agreement. As used herein, the singular
includes the plural, and the masculine, feminine and neuter gender each
includes
the others where the context so indicates.
6.10 Severability.
If any provision of this Agreement is held to be invalid or unenforceable
by a
court of competent jurisdiction, this Agreement shall be interpreted and
enforceable as if such provision were severed or limited, but only to the
extent
necessary to render such provision and this Agreement enforceable.
6.11 Arbitration.
Any controversy arising out of, connected to, or relating to any matters
herein of the transactions with the Parties hereto on behalf of the undersigned,
or this Agreement, or the breach thereof, including, but not limited to
any
claims of violations of federal and/or state securities laws, banking statutes,
consumer protection statutes, federal and/or state anti-racketeering (e.g.
RICO)
claims as well as any common law claims and any state law claims of fraud,
negligence, negligent misrepresentations, and/or conversion, or the laws
of any
territory, country or jurisdiction, shall be settled by arbitration; and
in
accordance with this paragraph any judgment on the arbitrator’s award may be
entered in any court having jurisdiction thereof. In the event of such
a
dispute, each party agrees to arbitration conducted through the auspices
of
American Arbitration Association. Venue for any action shall lie in Nevada,
USA.
6.12 [intentionally
omitted.]
6.13 Confidentiality;
Public Disclosure.
Each of the parties hereto hereby agrees that the information obtained
pursuant to the negotiation and execution of this Agreement shall be treated
as
confidential and not be disclosed to third parties who are not agents of
one of
the Parties to this Agreement.
6.14 Notification
of Certain Matters.
Each
Party shall give prompt notice to the other of (i) the occurrence or
non-occurrence of any event, the occurrence or non-occurrence of which
is likely
to cause any representation or warranty of such party contained in this
Agreement to be untrue or inaccurate and (ii) any failure of such party
to
comply with or satisfy any covenant, condition or agreement to be complied
with
or satisfied by it hereunder; provided,
however,
that
the delivery of any notice pursuant to this Section shall not limit or
otherwise affect any remedies available to the party receiving such notice.
Further, disclosure pursuant to this Section shall not be deemed to amend
or supplement the Schedules hereto or prevent or cure any
misrepresentations, breach of warranty or breach of covenant.
6.15 Currency.
The parties hereto agree that all monetary amounts set forth herein are
referenced in United States dollars, unless otherwise stated.
6.16 Rules
of Construction.
The
parties hereto agree that they have been represented by counsel during
the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against
the
party drafting such agreement or document.
11
6.17 Counterparts.
This Agreement may be executed in counterparts and by facsimile
signatures. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation
of the
party executing (or on whose behalf such signature is executed) with the
same
force and effect as if such facsimile signature page were an original thereof.
All such counterparts shall together constitute one and the same
instrument.
[Signatures
to Follow]
12
IN
WITNESS WHEREOF, each of the Parties hereto has executed this Agreement
as of
the date first set forth above.
| COMPANY: | ||
|
|
Commerce
Development Corporation, Ltd,
a
Maryland corporation
|
|
|
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
|
|
|
Xxxxxx
X. Xxxxxx
Chief
Executive Officer
|
| BUYERS: | ||
|
|
[Signatures
set forth in Schedule A]
|
|
13
Schedule
A
Buyers
|
Buyers:
Shares
|
Shares
|
|
|
Consideration
|
|
|
Signature
|
|||
|
Xxxx
X. Xxxxx
|
10,289,048
|
$
|
11,838
|
/s/
Xxxx X. Xxxxx
|
||||||
|
Xxxxxxx
Xxxxx
|
5,140,924
|
$
|
5,914
|
/s/
Xxxxxxx Xxxxx
|
||||||
|
Corporate
Capital Partners
|
2,059,250
|
$
|
2,369
|
By:
/s/ Xxxxxxx Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
General Partner
|
||||||
|
Xxxx
Xxxx
|
3,088,874
|
$
|
3,554
|
/s/
Xxxx Xxxx
|
||||||
|
RP
Capital LLC
|
41,141,792
|
$
|
47,330
|
By:
/s/ Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Chief Executive Officer
|
||||||
|
Xxxx
Xxxx
|
5,140,924
|
$
|
5,914
|
/s/
Xxxx Xxxx
|
||||||
|
Xxxxx
Xxxxxxxx
|
5,140,924
|
$
|
5,914
|
/s/
Xxxxx Xxxxxxxx
|
||||||
|
TOTAL:
|
72,001,735
|
$
|
82,833
|
Schedule
B
Schedule
of Liabilities
$62,833
payable to Xxxx Xxxxxx
