STOCK PURCHASE AGREEMENT BY AND BETWEEN LOCATION BASED TECHNOLOGIES, INC. AND AFFINITAS CORPORATION Dated July 31, 2009
Exhibit
10.47
BY AND
BETWEEN
AND
AFFINITAS
CORPORATION
Dated July 31, 2009
TABLE OF CONTENTS
| 1. | Agreement to Sell and Agreement to Purchase | 1 | |
| 1.1 | Purchase of Shares | 1 | |
| 1.2 | Closing | 1 | |
| 2. | Consideration to be Paid by Buyer | 1 | |
| 2.1 | Purchase Price for Shares | 1 | |
| 2.2 | Payment of Purchase Price | 2 | |
| 3. |
Representations and Warranties of the Company
|
2 | |
|
3.1
|
Organization
and Good Standing
|
2
|
|
|
3.2
|
Authorization
of Agreement
|
2
|
|
|
3.3
|
Capitalization
|
2
|
|
|
3.4
|
Financial
Condition
|
2
|
|
|
3.5
|
Assets
of the Company
|
3
|
|
|
3.6
|
Material
Contracts
|
3
|
|
|
3.7
|
Labor
and Employment Matters
|
3
|
|
|
3.8
|
Litigation
|
4
|
|
|
3.9
|
No
Undisclosed Liabilities
|
4
|
|
|
3.10
|
Compliance
with Law
|
4
|
|
|
4.
|
Representations
and Warranties of Buyer
|
4 | |
|
4.1
|
Investment
Intent
|
4
|
|
|
4.2
|
Review
of SEC Filings
|
4
|
|
|
5.
|
Covenants
|
4 | |
|
5.1
|
Form
D
|
4
|
|
|
5.2
|
Reporting
Status
|
4
|
|
|
5.3
|
Schedule
13D
|
5
|
|
|
5.4
|
Use
of Proceeds
|
5
|
|
|
5.5
|
Financial
Information
|
5
|
|
|
5.6
|
Disclosure
of Transaction
|
5
|
|
|
5.7
|
Conduct
of the Business of the Company
|
5
|
|
|
6.
|
Indemnification
|
5 | |
|
6.1
|
Claims
for Indemnification
|
5
|
|
|
6.2
|
Manner
of Indemnification
|
6
|
|
|
6.3
|
Limitations
on Indemnification
|
6
|
|
|
6.4
|
Sole
Basis for Recovery
|
6
|
|
|
6.5
|
Insurance
|
6
|
|
i
| 7. | Miscellaneous | 6 | |
| 7.1 | Notices | 6 | |
| 7.2 | Governing Law | 6 | |
| 7.3 | Counterparts | 6 | |
| 7.4 | Indemnification for Brokerage | 6 | |
| 7.5 | Complete Agreement | 7 | |
| 7.6 | Interpretation | 7 | |
| 7.7 | Severability | 7 | |
| 7.8 | Knowledge; Due Diligence Investigation | 7 | |
| 7.9 | Expenses of Transactions | 7 | |
| 7.10 | Amendment | 7 | |
| 7.11 | Counterparts | 7 | |
SCHEDULES
|
Schedule
2.2
|
Instructions
for Payment of Purchase Price
|
|
Schedule
3.3
|
Obligations
of the Company
|
|
Schedule
3.4.1.1
|
Financial
Statements Delivered to Buyer
|
|
Schedule
3.4.2
|
Changes
in Financial Condition of the
|
|
Schedule
3.4.3
|
Company Defaults of the Company |
|
Schedule
3.5
|
Liens
of the Company
|
|
Schedule
3.8
|
Current
Litigation
|
|
Schedule
3.9
|
Undisclosed
Liabilities
|
|
Schedule
4.1
|
Stock
Certificate Legend
|
|
Schedule
5.4
|
Use
of
Proceeds
|
ii
This
STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into as of this
31st day of July, 2009 by and between the Location Based Technologies,
Inc., a Nevada corporation (the "Company") and Affinitas Corporation, a Nebraska
Corporation, 0000 Xx. 00xx Xxxxxx, Xxxxx 000, Xxxxx, XX 00000
("Buyer").
RECITALS
A. The
Company is in the business of developing, marketing and selling high quality
personal location devices through its Anaheim, California facility (the
"Business").
B. The
Company desires to sell to Buyer 387,397 shares of its common
restricted stock (the "Shares"), and Buyer desires to acquire the Shares on the
terms and conditions hereinafter set forth.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants, agreements, representations
and warranties and subject to the conditions contained herein, the parties
hereto covenant and agree as follows:
1. Agreement to Sell and
Agreement to Purchase.
1.1 Purchase of Shares.
Simultaneously with the execution of this Agreement,on the
terms and subject to the conditions set forth herein, the Company shall issue
and sell to Buyer and Buyer shall purchase, acquire and accept from the Company,
all the Shares. The Company shall deliver to Buyer certificates representing the
Shares against receipt of the Purchase Price (hereafter defined).
1.2 Closing. The closing
of the transactions herein contemplated (the "Closing")
shall take place at the offices of the Company in Anaheim, California, and be
effective as of 5:00 p.m., local time, on the date hereof (the "Closing Date").
All actions taken and all documents delivered at the Closing shall be deemed to
have occurred simultaneously.
2. Consideration to be Paid by
Buyer.
2.1 Purchase Price for
Shares. The purchase price for the Shares ("Purchase Price") shall be
$ .7749 per share for an
aggregate of $ 300,000.00
. Warrant coverage will cover 25% of the aggregate value of the
Purchase Price based on the closing day's value of the market on the day good
funds are received ($ per share) with a three (3) year term.
1
2.2 Payment of Purchase
Price. At the Closing, Buyer shall pay to the Company
in immediately available funds by wire transfer (pursuant to the instructions
set forth on Schedule 2.2) the Purchase Price against receipt of the
Shares.
3. Representations and
Warranties of the Company. The Company represents and warrants
to Buyer that:
3.1 Organization and Good
Standing. The Company is duly organized, validly
existing and in good standing under the laws of Nevada (the jurisdiction in
which it was formed) with full power to carry on its business as it is now and
has since its organization been conducted, and to own, lease or operate its
assets. The Company is duly authorized to do business and is in good standing in
such other jurisdictions in which the Company is required to be so
authorized.
3.2 Authorization of
Agreement. The Company has all requisite power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement and all other agreements and instruments to be executed
by the Company has been duly executed and delivered by the Company, has been
effectively authorized by all necessary action, corporate or otherwise, and
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
3.3 Capitalization. The
authorized capital stock of the Company consists solely of
(i) 300,000,000 shares of voting common stock, $0.001 par value, of which
________ shares
are issued and outstanding and (ii) 30,000,000 shares of preferred stock, $0.001
par value, none of which shares are issued and outstanding. All of the
outstanding shares have been duly authorized, validly issued (free of all
preemptive rights), are fully paid and nonassessable. Any outstanding or
authorized options, warrants, subscriptions, calls, puts, conversion or other
rights, contracts, agreements, commitments or understandings of any kind
obligating the Company to issue, sell, purchase, return, redeem or pay any
distribution or dividend with respect to any shares of capital stock of the
Company or any other securities convertible into, exchangeable for or evidencing
the right to subscribe for any shares of capital stock of or other ownership
interest in the Company are listed on Schedule 3.3 hereof.
3.4 Financial
Condition.
3.4.1
Financial
Statements.
3.4.1.1
The Company has made available (see xxx.xxx.xxx) to Buyer the
financial statements (collectively, the "Financial Statements") listed on
Schedule 3.4.1.1, together with the report thereon of the Company's independent
certified public accountants where
applicable.
3.4.1.2
To the Company's best knowledge, the Financial Statements fairly present in all
respects the financial condition and the results of operations of the Company as
at the respective dates of and for the periods referred to in such financial
statements and reflect the consistent application of accounting principles
throughout the periods involved in accordance with generally accepted accounting
principles.
2
3.4.2
Absence
of Certain Changes. Except as disclosed on Schedule 3.4.2, since November
30, 2008 (the "Balance Sheet Date") there has not been (i) any change in the
financial condition, results ofoperations, assets, business, or prospects of the
Company as described in its filings with the Securities and Exchange Commission
("SEC Filings") or otherwise that could have a material adverse effect on the
assets, results (financial or otherwise), business or prospects of the Company
(a "Material Adverse Effect"); (ii) any damage, destruction or loss, whether or
not covered by insurance, that could have a Material Adverse Effect; (iii) any
sale or transfer of any ofthe assets of the Company, except sales in the
ordinary course of the business of inventory or immaterial amounts of other
tangible personal property; (iv) any commitment by the Company to any capital
expenditure to be paid after the Closing in excess of S100,000 for any
individual commitment or $500,000 in the aggregate; (v) any incurrence
of additional indebtedness for borrowed money or entering into long term
contracts or commitments by the Company to be performed after the Closing Date;
(vi) any alteration in any respect of the Company's practices and policies
relating to the payment and collection of accounts receivable; (vii) any failure
to operate the Company in the ordinary course of business consistent with past
practice; (viii) any increase in, or commitment to increase, the compensation
payable or to become payable to any of the Company's executive employees or any
bonus payment (other than as included as an accrued liability on the Company's
balance sheet) or similar arrangement made to or with any of the Company's
executive employees; (ix) any adoption of a plan or agreement or amendment to
any plan or agreement providing any new or additional fringe benefits; (x) any
material alteration in the manner of keeping the Company's books, accounts or
records, (xi) any transaction with any affiliate of the Company; (xii) any
material tax election or establishment or increase in a reserve for taxes or
other liabilities on its books or otherwise provided therefore, except for taxes
or other liabilities relating to the ordinary course operations of the Company
since the Balance Sheet Date; (xiii) any liens claims or encumbrances placed
upon the Company's assets; or (xiv) any material transaction entered into by the
Company not in the ordinary course of business.
3.4.3
No
Default. Except as disclosed in the Company's balance sheet as of the
Balance Sheet Date, or on Schedule 3.4.3, the Company is not in default with
respect to any liabilities or obligations, and all such liabilities or
obligations shown and reflected in such balance sheet and such liabilities
incurred or accrued subsequent to such Balance Sheet Date have been, or are
being, paid or discharged as they become due, and all such liabilities and
obligations were incurred in the ordinary course of business.
3.5 Assets
of the Company. The Company owns, or has valid leasehold interests
in, or licenses to, all of the assets required or necessary to operate the
Business of the Company as it is now being conducted. Except for liens reflected
on the May 31, 2008 balance sheet, or on Schedule 3.5 hereof, the Company's
assets are free and clear of all liens.
3.6 Material
Contracts. The Company's SEC Filings contain copies of all material
contracts to which the Company is a party, and the Company has made copies of
such contracts available to Buyer as requested by Buyer.
3.7 Labor
and Employment Matters. No collective bargaining agreement exists
that is binding on the Company and no proceedings have been
instituted by an employee or group of employees seeking recognition of a
bargaining representative. No organizational effort
currently is being made or threatened by or on behalf of any labor union to
organize any employees of the Company. The employment arrangements for executive
management of the Company are set forth in the material contracts included with
the Company's SEC Filings.
3
3.8 Litigation.
Except as set forth in the Company's SEC Filings or on Schedule
3.8 hereof, there are no material claims or litigation pending against the
Company.
3.9 No
Undisclosed Liabilities. Except as and to the extent specifically
reflected
or reserved against in the Company's balance sheet as of the Balance Sheet Date
or on Schedule 3.9 hereof, the Company has no liabilities or obligations of any
kind, including, without limitation, environmental, employment, ERISA or income
tax obligations, whether absolute, accrued, contingent or
otherwise.
3.10
Compliance
with Law. To the Company's knowledge it has not violated and its business
as presently conducted does not violate, in any material respect any Federal,
state, local or foreign laws, regulations, permits, licenses, governmental
authorizations or orders, and the Company has not received any notice of any
such violation.
4.
Representations
and Warranties of Buyer.
Buyer represents and warrants to the Company that:
4.1 Investment
Intent. Buyer is acquiring the Shares with the intention as of
the date
hereof of holding the Shares for purposes of investment. Buyer acknowledges that
the Shares have not been, and will not be, registered under the Securities Act
of 1933, as amended (the "Act"), or any state securities laws, and Buyer has no
intention as of the date hereof of selling the Shares in a public distribution
in violation of Federal securities laws or any applicable state securities laws.
Buyer is an Accredited Investor (as defined in Rule 501 promulgated under the
Act) and is able to bear the risk of an investment in the Shares including risks
associated with holding the Shares for an extended period of time. Buyer
understands that the certificates representing the Shares will bear the legend
set forth on Schedule 4.1 hereof.
4.2 Investigation.
Buyer, or its representatives, have reviewed the Company's SEC
Filings and other business records or information deemed necessary and have had
an opportunity to ask questions of, and receive answers or requested
documentation from, such officers of the Company as it deems necessary to
undertake the investment in the Company contemplated by this
Agreement.
5. Covenants.
5.1 Form
D. The Company shall make its best efforts to timely file a Form D
to the
Shares as required under Regulation D promulgated by the Securities and Exchange
Commission ("SEC") and provide a copy thereof to Buyer. The Company shall also
make all filings and reports relating to the offer and sale of the Shares
acquired under applicable securities laws of the United States following the
Closing Date.
5.2 Reporting
Status. The Company shall use its commercially reasonable best
efforts to timely file all reports required to
be filed by the SEC pursuant to the Securities Exchange Act of 1934, as amended
("34 Act"), and the Company shall not terminate its status as an issuer
required to file reports under the 34 Act even if the 34 Act or the rules and
regulations thereunder would otherwise permit such termination.
4
5.3 Schedule 13D. Buyer
agrees to file a Schedule 13D, if applicable, with the SEC
in a timely manner, and agrees to keep it current.
5.4 Use of Proceeds. The
Company will use the proceeds ftom the sale of the Shares
for working capital purposes as more particularly described and in the amounts
indicated in Schedule 5.4 attached hereto and incorporated herein by this
reference.
5.5 Disclosure of
Transaction. As soon as reasonably possible following the Closing
Date, the Company shall file a Form 8-K with the SEC describing the terms of the
transactions contemplated herein.
5.6 Conduct of the Business of
the Company. After the Closing Date, the Company
will continue to conduct the operations of the business of the Company in the
ordinary course and will maintain the assets, properties and rights of the
Company in at least as good order and condition as exists on the date hereof,
subject to ordinary wear and tear.
6. Indemnification. In
consideration of Buyer's execution and delivery of this Agreement
and acquiring the Shares thereunder, and in addition to all of the Company's
other obligations under the Agreement, the Company shall defend, protect,
indemnify and hold harmless Buyer from and against any and all actions, causes
of action, suits, claims, losses, costs, penalties, fees, liabilities and
damages, and expenses in connection therewith (irrespective of whether Buyer is
a party to the action for which indemnification hereunder is sought), and
including reasonable attorneys' fees and disbursements (the "Indemnified
Liabilities"), incurred by Buyer as a result of or arising out of or relating to
(a) any misrepresentation or breach of any representation or warranty made by
the Company in the Agreement or any other certificate, instrument or document
contemplated hereby, (b) any breach of any covenant, agreement or obligation of
the Company contained in this Agreement or any other certificate, instrument or
document contemplated hereby, (c) any cause of action, suit or claim brought or
made against Buyer and arising out of or resulting from the execution, delivery,
performance or enforcement of the Agreement in accordance with the terms hereof
or any other certificate, instrument or document contemplated hereby, or (d) any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of the issuance of the Shares. To the extent that
the foregoing undertaking by the Company may be unenforceable for any reason,
the Company shall make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities that is permissible under applicable
law.
6.1 Claims for
Indemnification. Whenever any claim shall arise for indemnification
hereunder, Buyer shall promptly notify the Company ofthe claim and, when known,
the facts constituting the basis for such claim; provided however, that a
failure to provide such notice will not reduce the indemnification obligation
hereunder unless, and only to the extent that, such failure to deliver notice
materially prejudices the Company. In the event of any claim for indemnification
hereunder resulting from or in connection with any claim or legal proceedings by
a third party, the notice to the Company shall specify, if known, the amount or
an estimate ofthe amount of the liability potentially arising therefrom. The
Buyer shall not settle or compromise
any claim by a third party for which it is entitled to indemnification
hereunder, without the prior written consent of the Company, which will not be
unreasonably withheld.
5
6.2 Manner
of Indemnification. Any indemnification by the Company of the
Buyer
shall be effected by payment of cash, wire transfer or delivery of a certified
or official bank check in immediately available funds in the amount of the
Indemnification Liability.
6.3 Limitations
on Indemnification. All representations and warranties made by the
Company herein or in any instrument or document furnished in connection herewith
shall survive the Closing only for a period of 12 months, except for the
representations and warranties contained in Sections 3.2 and 3.3, which shall
not expire. Buyer shall not be entitled to assert a claim for indemnification
under this Section 6 unless (i) such claim is asserted in writing prior to 12
months following the Closing Date, or (ii) such claim relates to any of the
matters set forth in the first sentence of this Section 6.3, which may be
asserted at any time prior to the expiration of such
representations.
6.4 Sole
Basis for Recovery. The parties intend Article 6 to be the exclusive
method
for compensating Buyer for claims relating to the Company and the transactions
contemplated by this Agreement.
6.5 Insurance.
With respect to any matter covered by this Article 6, the Company
shall use reasonable efforts to assert a claim under any applicable insurance
policy and any indemnification claim shall be net of any insurance proceeds
received by the Buyer.
7. Miscellaneous.
7.1 Notices.
All notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or sent by
fax during normal business hours of the recipient, the next business day if sent
by a national overnight delivery service, charges prepaid, or three days after
mailed by certified or registered mail, postage prepaid, return receipt
requested, to the parties, their successors in interest or their assignees at
the following addresses, or at such other addresses as the parties may designate
by written notice in the manner aforesaid.
7.2 Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE.
7.3 Counterparts.
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute but one and the same instrument.
7.4 Indemnification
for Brokerage. Buyer and the Company each represent and
warrant that no broker or finder has acted on its behalf in connection with this
Agreement or the transactions contemplated hereby. In addition to the
indemnification obligations contained in Section 6, each party hereto agrees to
indemnify and hold harmless the others from any claim or demand
for commissions or other compensation by any broker, finder or similar agent who
is or claims to have been employed by or on behalf of such ply.
6
7.5 Complete
Agreement. This Agreement, the Schedules hereto and the documents
delivered pursuant to this Agreement form or will form the entire agreement
between the parties hereto with respect to the transactions contemplated herein
and shall supersede all previous oral and written and all contemporaneous oral
negotiations, commitments, and understandings.
7.6 Interpretation.
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.
7.7 Severability.
Any provision of this Agreement which is invalid, illegal, or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity, illegality, or unenforceability, without affecting in any
way the remaining provisions hereof in such jurisdiction or rendering that or
any other provision of this Agreement invalid, illegal, or unenforceable in any
other jurisdiction.
7.8 Knowledge:
Due Diligence Investigation. All representations and
warranties
contained herein which are made to the knowledge of the Company shall mean to
the knowledge of Xxxxx X. Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx ("Executive
Officers"). The Executive Officers shall be deemed to have "knowledge" of a
matter for purposes of the warranties and representations contained herein if
such matter has come, or should reasonably be expected to have come, to the
attention of the Executive Officers of the Company after conducting a reasonable
investigation.
7.9 Expenses
of
Transactions.
All fees, costs and expenses incurred by Buyer or the
Company in connection with the transactions contemplated by this Agreement shall
be borne by the party incurring the same.
7.10
Amendment.
The terms of this Agreement can be amended only by a written agreement of the
Buyer and the Company.
7.11
Counterparts.
This Agreement may be executed in two or more identical counterparts, all of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to each other
party; provided that a facsimile signature shall be considered due execution and
shall be binding upon the signatory thereto with the same force and effect as if
the signature were an original, not a facsimile signature.
7
IN WITNESS WHEREOF, the
undersigned duly execute this Agreement as of the date first
written above.
| COMPANY | ||||
|
LOCATION
BASED TECHNOLOGIES, INC
a
Nevada corporation
|
||||
|
/s/
Xxxxx X. Xxxxx
|
|
|||
|
Xxxxx
X.Xxxxx, Chief Executive Officer
|
|
|
/s/Xxxxxxx
Xxxxx
|
|
|||
|
Xxxxxxx
Xxxxx, Secretary
|
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| BUYER | ||||
| AFFINITAS CORPORATION | ||||
|
/s/ M.
Xxxxx Xxxxxx
|
|
|||
|
Xxxxx
Xxxxxx, CFO
|
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8
