EXHIBIT 10.1
COMMON STOCK PURCHASE AGREEMENT
This AGREEMENT, entered into as of the 20th day of September, 2006 (the
"Agreement"), by and between XXXX, LLC, an Illinois limited liability company,
with an address at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the
"Purchaser"), and R&R ACQUISITION II, INC., a Delaware corporation, with an
address c/o Xxxx X. Xxxxxxx, 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the
"Seller" or the "Company").
WHEREAS, the Seller has authorized the sale and issuance of an aggregate of
10,000,000 shares (the "Shares") of the Seller's common stock, $0.0001 par
value, ("Common Stock") to the Purchaser representing 80% of the issued and
outstanding Common Stock as of the Closing (as defined below); and
WHEREAS, Purchaser desires to purchase the Shares on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, and the mutual covenants
and agreements herein contained, the Purchaser and the Seller hereby agree as
follows:
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
Section 1.1 AUTHORIZATION OF SHARES. The Seller has authorized the sale and
issuance to Purchaser of the Shares.
Section 1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof,
at the Closing (as hereinafter defined) the Seller hereby agrees to issue and
sell to Purchaser and Purchaser agrees to purchase from the Seller the Shares
for an aggregate purchase price of sixty thousand ($60,000) dollars (the
"Purchase Price") according to the terms set forth in Section 2.2 below.
ARTICLE 2
CLOSING AND DELIVERY
Section 2.1 CLOSING DATE. Upon the terms and subject to the conditions set
forth herein, the consummation of the purchase and sale of the Shares (the
"Closing") shall be held on September 30, 2006 (the "Closing Date") at such time
as may be determined in the mutual discretion of the Seller and the Purchaser.
The Closing shall take place at the offices of Seller's Counsel, Xxxxx Xxxxxxx
Xxxx & Xxxxxx, LLP, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, or by
the exchange of documents and instruments by mail, courier, telecopy and wire
transfer to the extent mutually acceptable to the parties hereto.
Section 2.2 DELIVERY AT CLOSING. At the Closing, subject to the terms and
conditions hereof, the Seller will deliver to Purchaser certificates
representing the Shares to be purchased at the Closing by Purchaser, against
payment of the Purchase Price by wire transfer at the time of Closing.
Section 2.3 PAYMENTS AT CLOSING. On or before the Closing Date, the Company
shall pay and discharge all outstanding liabilities, including any outstanding
loans payable to Current Record Stockholders (collectively, "Company
Liabilities"). Such payments shall be made utilizing cash on hand on the Closing
Date and the Purchase Price. Giving effect to these payments, it is the parties
intent that the Company shall, on the Closing Date have no liabilities and no
assets, other than $10,000.00 in cash.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth under the corresponding section of the disclosure
schedules (the "DISCLOSURE SCHEDULES") attached hereto as EXHIBIT A, which
Disclosure Schedules shall be deemed a part hereof, the Seller hereby represents
and warrants to the Purchaser as of the Closing Date that:
Section 3.1 EXISTENCE AND POWER. The Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted, except where a failure to so possess would not result
in a Material Adverse Effect upon the Seller. The Seller has heretofore
delivered to the Purchaser true and complete copies of its Certificate of
Incorporation, as amended, and By-laws, each as currently in effect.
Section 3.2 AUTHORIZATION; NO AGREEMENTS. Subject to the satisfaction of
the terms and conditions set forth herein, the execution, delivery and
performance by the Seller of this Agreement, the performance of its obligations
hereunder, and the consummation of the transactions contemplated hereby are
within the Seller's powers. This Agreement has been duly and validly executed
and delivered by the Seller and is a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms. The execution,
delivery and performance by the Seller of this Agreement does not violate any
contractual restriction contained in any agreement which binds or affects or
purports to bind or affect the Seller. The Seller is not a party to any
agreement, written or oral, creating rights in respect of any of such Shares in
any third party or relating to the voting of its Common Stock. Seller is not a
party to any outstanding or authorized options, warrants, rights, calls,
commitments, conversion rights, rights of exchange or other agreements of any
character, contingent or otherwise, providing for the purchase, issuance or sale
of any of the Shares, and there are no restrictions of any kind on the transfer
of any of the Shares other than (a) restrictions on transfer imposed by the
Securities Act of 1933, as amended (the "Securities Act") and (b) restrictions
on transfer imposed by applicable state securities or "blue sky" laws.
Section 3.3 CAPITALIZATION.
(a) The Company is authorized by its Certificate of Incorporation to issue
an aggregate of 85,000,000 shares of capital stock, of which 75,000,000 are
shares of common stock, par value $.0001 per share (the "Common Stock") and
10,000,000 are shares of preferred stock, par value $.0001 per share (the
"Preferred Stock"). As of the date hereof, and as of the Closing Date, 2,500,000
shares of Common Stock and no shares of Preferred Stock are, and will be, issued
and outstanding, and there will be three (3) stockholders of record holding the
Common Stock. All of the issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable. All of the issued and outstanding shares of capital stock of the
Company have been offered, issued and sold by the Company in compliance with all
applicable federal and state securities laws. No securities of the Company are
entitled to preemptive or similar rights, and no Person has any right of first
refusal, preemptive right, right of participation, or any similar right to
participate in the transactions contemplated hereby. Except as a result of the
purchase and sale of the Shares, there are no outstanding options, warrants,
script rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company is or may become bound to issue additional
shares of Common Stock, or securities or rights convertible or exchangeable into
shares of Common Stock. The issuance and sale of the Shares will not obligate
the Company to issue shares of Common Stock or other securities to any Person
(other than the Purchaser) and shall not result in a right of any holder of
securities of the Company to adjust the exercise, conversion, exchange or reset
price under such securities.
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(b) Subject to the satisfaction of the terms and conditions set forth
herein, the Shares shall be duly authorized for issuance, when delivered in
accordance with the terms of this Agreement, and shall be validly issued, fully
paid and non-assessable and the sale thereof shall not be subject to any
preemptive or other similar right.
Section 3.4 SEC REPORTS; FINANCIAL STATEMENTS. The Seller has filed all
reports required to be filed by it under the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including pursuant to
Section 13(a) or 15(d) thereof, since January 19, 2006 (the foregoing materials
being collectively referred to herein as the "SEC Reports") on a timely basis or
has received a valid extension of such time of filing and has filed any such SEC
Reports prior to the expiration of any such extension. The Seller has identified
and made available to the Purchaser a copy of all filed SEC Reports including
the Exchange Act Registration Statement on Form 10-SB filed by it on January 19,
2006. As of their respective dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act and the Exchange Act and
the rules and regulations of the Securities and Exchange Commission (the
"Commission") promulgated thereunder, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Seller included in the SEC Reports
comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the
time of filing. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved ("GAAP"), except as may be otherwise specified in such
financial statements or the notes thereto, and fairly present in all material
respects the financial position of the Seller and its consolidated subsidiaries
as of and for the dates thereof and the results of operations and cash flows for
the periods then ended, subject, in the case of unaudited statements, to normal,
year-end audit adjustments.
Section 3.5 NO CONFLICTS. Subject to the satisfaction of the terms and
conditions set forth herein, the execution, delivery and performance of this
Agreement and the transactions contemplated hereby do not and will not: (i)
conflict with or violate any provision of the Company's Certificate of
Incorporation, By-laws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of any agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other understanding to
which the Company is a party or by which any property or asset of the Company is
bound or affected or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including federal and
state securities laws and regulations), or by which any property or asset of the
Company is bound or affected.
Section 3.6 FILINGS, CONSENTS AND APPROVALS. Other than any applicable
Current Report on Form 8-K under the Exchange Act of 1934, as amended, and the
Information Statement contemplated by Section 5.3(b) hereof, the Seller is not
required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal,
state, local or other governmental authority or other Person in connection with
the execution, delivery and performance of this Agreement.
Section 3.7 COMPLIANCE. To the knowledge of the Seller, the Seller: (i) is
not in default under or in violation of (and no event has occurred that has not
been waived that, with notice or lapse of time or both, would result in a
default by the Seller under), nor has the Seller received notice of a claim
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that it is in default under or that it is in violation of, any indenture, loan
or credit agreement or any other agreement or instrument to which it is a party
or by which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is not in violation of any order of any court,
arbitrator or governmental body and (iii) is not and has not been in violation
of any statute, rule or regulation of any governmental authority.
ARTICLE 4
REPRESENTATIONS OF THE PURCHASERS
The Purchaser represents and warrants to the Seller, as follows:
Section 4.1 EXECUTION AND DELIVERY. The execution, delivery and performance
by the Purchaser of this Agreement is within the Purchaser's powers and does not
violate any contractual restriction contained in any agreement which binds or
affects or purports to bind or affect the Purchaser. The Purchaser's financial
resources are sufficient to enable it to purchase the Shares upon the
satisfaction of the terms and conditions set forth herein, and the Purchaser has
provided the Seller with such evidence thereof as was reasonably requested by
the Seller.
Section 4.2 BINDING EFFECT. This Agreement, when executed and delivered by
the Purchaser shall be irrevocable and will constitute the legal, valid and
binding obligations of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium and other laws of general application affecting
enforcement of creditors' rights generally or general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 4.3 INVESTMENT PURPOSE. The Purchaser hereby represents that it is
purchasing the Shares for its own account, with the intention of holding the
Shares, with no present intention of dividing or allowing others to participate
in this investment or of reselling or otherwise participating, directly or
indirectly, in a distribution of the Shares, and shall not make any sale,
transfer, or pledge thereof without registration under the Securities Act and
any applicable securities laws of any state unless an exemption from
registration is available under those laws. The Shares delivered to the
Purchaser shall bear a restrictive legend indicating that they have not been
registered under the Securities Act of 1933 and are "restricted securities" as
that term is defined in Rule 144 under the Act.
Section 4.4 INVESTMENT REPRESENTATION. The Purchaser represents that it has
adequate means of providing for its current needs and has no need for liquidity
in this investment in the Shares. The Purchaser represents that it is an
"accredited investor" as defined in Rule 501(a) of Regulation D promulgated
under the Securities Act. The Purchaser has no reason to anticipate any material
change in its financial condition for the foreseeable future. The Purchaser is
financially able to bear the economic risk of this investment, including the
ability to hold the Shares indefinitely or to afford a complete loss of its
investment in the Shares.
Section 4.5 INVESTMENT EXPERIENCE. The Purchaser has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Shares.
Section 4.6 OPPORTUNITY TO ASK QUESTIONS. The Purchaser has had a full and
fair opportunity to make inquiries about the terms and conditions of this
Agreement, to discuss the same and all related matters with its own independent
counsel, accountants and tax advisers. The Purchaser has been given the
opportunity to ask questions of, and receive answers from the Seller concerning
the terms and
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conditions of this Agreement and to obtain such additional written information
about the Seller to the extent the Seller possesses such information or can
acquire it without unreasonable effort or expense. Notwithstanding the
foregoing, the Purchaser has had the opportunity to conduct its own independent
investigation. The Purchaser acknowledges and agrees that the Seller has (i) has
identified and made available to the Purchaser a copy of all filed SEC Reports
including the Exchange Act Registration Statement on Form 10-SB filed by it on
January 19, 2006; and (ii) not made, nor is the Seller making, any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth herein.
Section 4.7 BROKERS. The Purchaser has not retained any broker or finder in
connection with any of the transactions contemplated by this Agreement, and the
Purchaser has not incurred or agreed to pay, or taken any other action that
would entitle any Person to receive, any brokerage fee, finder's fee or other
similar fee or commission with respect to any of the transactions contemplated
by this Agreement.
ARTICLE 5
COVENANTS OF THE COMPANY
Section 5.1 REGISTRATION RIGHTS. If at any time following the Closing Date,
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 (a
"Registration Statement"), other than on Form S-4 or Form S-8 (each as
promulgated under the Securities Act), then the Company shall include in such
Registration Statement the shares of the Current Record Stockholders set forth
on Schedule 5.1 hereto. If the Registration Statement is being filed pursuant to
a third-party written agreement obligating the Company to file the same (a
"Registration Agreement"), the Current Record Stockholders shall be entitled to
receive all notices and documents sent by the Company to the third-party whose
securities are being registered pursuant to such Registration Agreement. The
Shares purchased hereunder shall also be included in such Registration
Statement. In addition, the Purchaser shall have two demand registration rights,
at the Company's expense, after a Corporate Event and the Current Record
Stockholders shall be entitled to piggyback on any such demand registration.
Section 5.2 ISSUANCE OF ADDITIONAL SECURITIES AFTER CLOSING. Prior to any
Corporate Event, the Company shall not either (a) issue or sell any of its
securities (including, but not limited to, derivative securities and options and
warrants to acquire securities), or (b) effect an corporate action, including
but not limited to an amendment to any of its organizational documents, that
would in any way have a dilutive effect on the Current Record Stockholders'
ownership interest in the Company; in each instance, without the prior written
consent of the Current Record Stockholders holding at least a majority of the
issued and outstanding shares of Common Stock on the date hereof.
Section 5.3 RESIGNATION AND APPOINTMENT OF THE COMPANY'S OFFICERS AND
DIRECTORS.
(a) Effective as of the Closing Date, or such later date as agreed to
between the Company and its current officers, (i) the Company's officers shall
resign and be duly replaced by the Purchaser's designees; and (ii) the Company
will cause the Purchaser's director designee to be duly appointed.
(b) The Seller will use its best efforts to ensure that the Company's
current director will remain a director of the Company until the expiration of
the 10-day period beginning on the date of the filing of the Information
Statement relating to a change in majority of directors of the Company with the
Commission pursuant to Rule 14f-1 promulgated under the Exchange Act
("Information Statement").
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Section 5.4 RESPONDING TO CURRENT RECORD STOCKHOLDERS' REQUEST. So long as
the Current Record Stockholders continue to own at least 50% of the shares of
Common Stock collectively owned by them on the Closing Date (as adjusted for
stock splits, stock dividends and other recapitalizations), the Company shall
reasonably and timely respond to any all requests for information from the
Current Record Stockholders relating to any prospective business combination and
financing activities by the Company; provided that the Current Record
Stockholders shall keep such information confidential to the extent that it is
not otherwise available in the public domain. Further, in the event that a
Current Record Stockholder requests and receives any material non-public
information with respect to the Company pursuant to this provision, it will
refrain from engaging in market transactions of the Company's securities that
would violate Federal Securities laws.
Section 5.5 EXCHANGE ACT FILINGS. The Company shall file, in a timely
manner, all required SEC Reports.
Section 5.6 DUTY TO NOTIFY CURRENT RECORD STOCKHOLDERS. Upon the Company's
receipt of any correspondence or inquiry from any State, Federal, or Local,
governmental or regulatory, agency or authority, the Company shall provide
copies of any such correspondence to Xxxxxx Xxxxx, R&R Investment, II, LLC and
its counsel.
ARTICLE 6
COVENANTS OF THE PARTIES
The parties hereto agree that:
Section 6.1 PUBLIC ANNOUNCEMENTS. Except as required by applicable law, the
Seller and the Purchaser shall consult with each other before issuing any press
release or making any public statement with respect to this Agreement or the
transactions contemplated hereby and will not issue any such press release or
make any such public statement prior to such consultation and without the
consent of the other parties.
Section 6.2 NOTICES OF CERTAIN EVENTS. In addition to any other notice
required to be given by the terms of this Agreement, each of the parties shall
promptly notify the other party hereto of:
(a) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with any of the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or regulatory
agency or authority in connection with the transactions contemplated by
this Agreement; and
(c) any actions, suits, claims, investigations or proceedings commenced or,
to its knowledge threatened against, relating to or involving or otherwise
affecting such party that, if pending on the date of this Agreement, would
have been required to have been disclosed pursuant to Section 3 or Section
4 (as the case may be) or that relate to the consummation of the
transactions contemplated by this Agreement.
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Section 6.3 ACCESS TO INFORMATION. Following the date hereof, until
consummation of all transactions contemplated hereby, the Seller shall give to
the Purchaser, their counsel, financial advisers, auditors and other authorized
representatives reasonable access to the offices, properties, books and records,
financial and other data and information as the Purchaser and its
representatives may reasonably request.
ARTICLE 7
CONDITIONS PRECEDENT
Section 7.1 CONDITIONS OF OBLIGATIONS OF THE PURCHASER. The obligations of
the Purchaser are subject to the satisfaction of the following conditions, any
or all of which may be waived in whole or in part by the Purchaser:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Seller set forth in this Agreement shall be true and correct
in all material respects as of the Closing Date, as though made on and as of
such date.
(b) COMPLIANCE CERTIFICATE. The President of the Seller shall deliver to
the Purchaser at the Closing a certificate certifying: (i) that there has been
no material adverse change in the business, affairs, prospects, operations,
properties, assets or conditions of the Seller since the date of this Agreement;
(ii) that attached thereto is a true and complete copy of the Seller's
Certificate of Incorporation, as amended, as in effect at the Closing; (iii)
that attached thereto is a true and complete copy of its By-laws as in effect at
the Closing; and (iv) each of the representations and warranties of the Seller
set forth in this Agreement are true and correct in all material respects as of
the Closing Date as though made on and as of the Closing Date.
(c) GOOD STANDING CERTIFICATE. The Seller shall have furnished the
Purchaser with good standing and existence certificates for the Seller from the
State of Delaware.
(d) BOARD OF DIRECTORS RESOLUTIONS. The Purchaser shall have received
executed resolutions of the Board of Directors of the Seller approving this
Agreement and the transactions contemplated herein.
(e) PERFORMANCE. The Seller shall have materially performed and materially
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
(f) RESIGNATION OF OFFICERS AND DIRECTORS. The officers and director of the
Seller shall have resigned from their positions as of the Closing Date with the
resignation of the director to take effect on the expiration of the 10-day
period beginning on the date of the filing of the Information Statement;
(g) APPOINTMENT OF THE PURCHASER'S DESIGNEES. The Purchaser's designees for
the officers and director positions of the Company shall have been duly
appointed.
(h) NO INJUNCTION. There shall not be in effect, at the Closing Date, any
injunction or other binding order of any court or other tribunal having
jurisdiction over the Seller that prohibits the sale of the Shares to the
Purchaser.
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(i) NO LIABILITIES. The Company shall have no material liabilities as of
the Closing Date, including accrued or contingent liabilities and at least
$10,000 in cash.
Section 7.2 CONDITIONS OF OBLIGATIONS OF THE SELLER. The obligations of the
Seller to effect the sale of the Shares are subject to the following conditions,
any or all of which may be waived in whole or in part by the Seller:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Purchaser set forth in this Agreement shall be true and
correct in all material respects as of the Closing Date.
(b) COMPLIANCE CERTIFICATE. An authorized officer of the Purchaser shall
deliver to the Seller at the Closing a certificate certifying each of the
representations and warranties of such the Purchaser set forth in this Agreement
are true and correct in all material respects as of the Closing Date as though
made on and as of the Closing Date.
(c) PERFORMANCE. The Purchaser shall have materially performed and
materially complied with all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by it or him
on or before the Closing.
(d) NO INJUNCTION. There shall not be in effect, at the Closing Date, any
injunction or other binding order of any court or other tribunal having
jurisdiction over the Seller that prohibits the sale of the Shares to the
Purchaser.
(e) PAYMENT OF COMPANY LIABILITIES. All Company Liabilities shall have been
paid or discharged.
ARTICLE 8
TERMINATION
Section 8.1 TERMINATION. This Agreement may be terminated and the purchase
and sale of the Shares may be abandoned at any time prior to the Closing:
(a) by mutual written consent of the parties hereto;
(b) by either the Seller or the Purchaser if the Closing shall not have
occurred on or before October 1, 2006 (unless the failure to consummate the
transactions by such date shall be due to the action or failure to act of the
party seeking to terminate this Agreement);
(c) by the Purchaser if (i) the Seller shall have failed to timely comply
in any material respect with any of the covenants, conditions, terms or
agreements contained in this Agreement to be complied with or performed by it
prior to the Closing Date, which breach is not cured within ten (10) days if
capable of cure; or (ii) any representations and warranties of the Seller
contained in this Agreement shall have been materially false when made or on and
as of the Closing Date as if made on and as of Closing Date (except to the
extent it relates to a particular date); or
(d) by the Seller if (i) the Purchaser shall have failed to timely comply
in any material respect with any of the covenants, conditions, terms or
agreements contained in this Agreement to be complied with or performed by it
prior to the Closing Date, which breach is not cured within ten (10)
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days if capable of cure; or (ii) any representations and warranties of the
Purchaser contained in this Agreement shall have been materially false when made
or on and as of the Closing Date.
Section 8.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement pursuant to this Article 8, all further obligations of the parties
under this Agreement shall forthwith be terminated without any further liability
of any party to the other parties; provided, however, that nothing contained in
this Section 8.2 shall relieve any party from liability for any breach of this
Agreement. Upon termination of this Agreement for any reason, the Purchaser
shall promptly cause to be returned to Seller all documents and information
obtained in connection with this Agreement and the transactions contemplated by
this Agreement and all documents and information obtained in connection with the
Purchaser's investigation of the Seller's business, operations and legal
affairs, including any copies made by the Purchaser of any such documents or
information.
ARTICLE 9
MISCELLANEOUS
Section 9.1 NOTICES. All notices, requests and other communications
hereunder shall be in writing and either delivered personally, telecopied or
sent by certified or registered mail, postage prepaid,
IF TO PURCHASERS:
XXXX, LLC
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxx Xxxxxxx, Managing Member
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx & Xxxxx, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxx Xxxx, Esq.
Fax: 000-000-0000
IF TO SELLER:
R&R Acquisition II, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxx X. Xxxxxxx
Fax: (000) 000-0000
WITH A COPY TO:
Morse, Zelnick, Rose and Lander, LLP
000 Xxxx Xxx. Xxxxx 0000
Xxx Xxxx, Xxx Xxxx, 00000
Attn.: Xxxxxxx X. Xxxx, Esq.
Fax: 000-000-0000
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IF TO CURRENT RECORD STOCKHOLDER:
to each Current Record Stockholder's addresses set forth on
Schedule 5.1 to this Agreement
WITH A COPY TO:
Morse, Zelnick, Rose and Lander, LLP
000 Xxxx Xxx. Xxxxx 0000
Xxx Xxxx, Xxx Xxxx, 00000
Attn.: Xxxxxxx Xxxx, Esq.
Fax: 000-000-0000
or such other address or fax number as any of the foregoing Persons may
hereafter specify for the purpose by notice to the parties hereto and the
Current Record Stockholders. All such notices, requests and other communications
shall be deemed received on the date delivered personally or by overnight
delivery service or telecopied or, if mailed, five business days after the date
of mailing if received prior to 5 p.m. in the place of receipt and such day is a
business day in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding business day in the place of receipt.
Section 9.2 AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement with respect to transactions
contemplated hereby may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by the Seller
and the Purchaser; or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 9.3 FEES AND EXPENSES. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
Section 9.4 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that the Purchaser shall have the
right to assign this Agreement to an affiliate or assignee of the Purchaser
reasonably acceptable to the Seller and no other party hereto may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto, but any such transfer
or assignment will not relieve the appropriate party of its obligations
hereunder.
Section 9.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
Section 9.6 JURISDICTION. Any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby may be brought in any
federal or state court located in New York, New York, and each of the parties
hereby consents to the jurisdiction of such courts (and of the appropriate
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appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
which is brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process
on such party as provided in Section 9.1 shall be deemed effective service of
process on such party. Each party hereto (including its affiliates, agents,
officers, directors and employees) hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section 9.7 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.
Section 9.8 ENTIRE AGREEMENT. This Agreement and the Exhibits and Schedules
hereto constitute the entire agreement between the parties with respect to the
subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter hereof.
Section 9.9 CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
Section 9.10 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any parties. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
Section 9.11 DEFINITION AND USAGE.
For purposes of this Agreement:
"Affiliate" means, with respect to any Person, any other Person, directly
or indirectly controlling, controlled by, or under common control with such
Person.
"Corporate Event" means the acquisition of an operating business or
material assets by the Company coupled with a financing transaction yielding
gross proceeds of at least $10 million.
"Current Record Stockholders" means the stockholders of record on the date
hereof, as set forth on Schedule 5.1 hereto, and their respective successors and
assigns.
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"Material Adverse Effect" means any effect or change that is or would be
materially adverse to the business, operations, assets, prospects, condition
(financial or otherwise) or results of operations of the Company and any of its
subsidiaries, taken as a whole.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this Stock
Purchase Agreement to be executed as of as of the day and year first above
written.
SELLER:
R&R ACQUISITION II, INC.
By: /s/ XXXXXX X. XXXXX
-----------------------
Name: Xxxxxx X. Xxxxx
Title: President
PURCHASER:
XXXX, LLC
By: /s/ XXXXXX XXXXXXX
-----------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Member
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EXHIBIT A
SELLER DISCLOSURE SCHEDULES
None.
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Schedule 5.1
CURRENT RECORD STOCKHOLDERS
Xxxxxx X. Xxxxx 400,000
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxx Xxxxxxx 100,000
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
R&R Investments II, LLC 2,000,000
0000 Xxxxxx xx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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