Exhibit 10.4.4
THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES LAWS OF ANY STATE AND
WILL BE OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THESE LAWS BY VIRTUE OF THE COMPANY'S INTENDED COMPLIANCE WITH
SECTIONS 3(b), 4(2) AND 4(6) OF THE SECURITIES ACT OF 1933, THE PROVISIONS OF
REGULATION D UNDER SUCH ACT AND SIMILAR EXEMPTIONS UNDER STATE LAW. THE
SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY ANY REGULATORY AUTHORITY.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
STOCK PURCHASE AGREEMENT
FOR
RESTRICTED SHARES AND WARRANTS
(XXXXXXX X. XXXXXXXXX)
THIS AGREEMENT is made and entered into to be effective for all purposes
as of April 21 1997, by and between Newriders, Inc., a Nevada corporation
("Company") and Xxxxxxx X. Xxxxxxxxx, an individual ("Buyer"). For
convenience, Company and Buyer are sometimes collectively referred to herein
as the "Parties" and individually as a "Party".
In consideration of the mutual covenants herein contained, the parties
hereby agree as follows:
1. Purchase and Sale of Shares. On the Closing Date, and subject to the
terms and on the conditions set forth herein and in reliance upon
representations, warranties and agreements contained herein, the Company will
sell to Buyer and Buyer will purchase from the Company 192,300 Shares of the
Company's common stock (the "Shares"), for a total cash consideration (the
"Purchase Price") in the amount of Two Hundred Fifty Thousand Dollars
($250,000.00).
2. Warrants. In addition to the Shares, Company shall also issue to
Buyer in consideration of the Purchase Price as set forth in Paragraph 1
above, rights to purchase up to Two Hundred Fifty Thousand (250,000) Shares of
the Company's common stock (the "Warrants") at a price of $4.00 per share,
provided that such purchase is completed not later than the second anniversary
of the date of this Agreement. The Warrants may be exercised in increments of
not less than Ten Thousand Shares and on not less than three (3) business days
notice to the Company. In the event that before the Warrants are exercised,
the Company shall effect a split of outstanding stock, pay a stock dividend or
reclassify its shares, the number of Warrants and exercise price shall be
adjusted appropriately to prevent their dilution.
3. Closing Date. The sale and purchase of the Shares shall occur on April
18, 1997, (the "Closing Date"). On the Closing Date, the Company shall issue
and deliver the Shares and Buyer shall pay the Purchase Price in cash.
4. Company's Representation of the Warranties. The Company hereby
represents and Warrants to Buyer as follows:
A. The Company is validly existing in good standing under the laws
of its jurisdiction of incorporation and is qualified to transact business in
each jurisdiction in which its ownership of property or conduct of activities
requires such qualification, except where to failure to so qualify would not
materially adversely affect the operations of the Company. The Company has all
requisite corporate power and authority to enter into and carry out any
obligations required of it under this Agreement.
B. The execution and delivery of this Agreement and the issuance and
sale of the Shares and Warrants have been duly authorized and (and the shares
issued upon the exercise of the Warrants), the Shares will be validly issued
and fully paid nonassessable shares of the Company's common stock. Performance
by the Company of its obligations under this Agreement do not conflict with or
violate (i) the charter documents or bylaws of the Company (ii) any indenture,
loan agreement lease, mortgage or other material agreement binding on the
Company (iii) any order of court or administrative agency binding on the
Company or (iv) any applicable law or government regulation; except in the
case for any such conflicts or violations which would not have a material
affect on the Company and such performance does not and will not require the
permission or approval of any governmental agency and will not result in the
imposition or creation of any lien or charge against any assets of the
Company.
C. No material default on the part of the Company (including any
event which, with notice or passage of time would constitute default) exists
under any material indenture, loan agreement, lease, mortgage or other
material agreement to which the Company is a party.
D. To the best of Company's knowledge, all of the materials
delivered to Buyer in connection with the sale and purchase of the Shares,
including without limitation, the Form 10-SB (as defined below), are free of
material omissions or misstatements and accurately set forth the Company's
financial position.
E. Except with the consent of the Buyer which shall not be
unreasonably withheld, the Company will use the proceeds from the sale of the
Shares exclusively for costs and expenses directly related to the design,
planning, construction, development, completion, opening and operation of and
equipment and inventory for the Company's Easyrider Cafe and Apparel Store at
Broadway at the Beach in Myrtle Beach, South Carolina.
5. Buyer's Representations and Warranties. Buyer hereby makes the
following representations and warranties to the Company and agrees to
indemnify and bold harmless and pay any and all judgments and claims against
the Company, its officers, employees and agents from and against any liability
or injury, including, but not limited to, that arising under any
misrepresentation of the Buyer, or failure of any warranty made by the Buyer
as follows:
A. Buyer has all power and authority to enter into this Agreement
and carry out his obligations hereunder and is not purchasing the Shares for
the benefit or account of any other person or entity.
B. Buyer is an "accredited investor" as that term is defined in Rule
501 of Regulation D, promulgated by the Securities and Exchange Commission
under the Securities Act of 1933 (the "Act") and as such, Buyer is a natural
person, (i) whose net worth, including that of his spouse at the time of the
purchase of the Shares is at least One Million Dollars ($(1,000,000.00), or
(ii) who had individual income in excess of Two Hundred Thousand Dollars
($200,000.00) (Three Hundred Thousand Dollars ($300,000.00) if the income of
the Buyer's spouse is included) in each of the two most recent fiscal years
and reasonably expects income in excess of such amounts in the current year.
C. Buyer has received and reviewed the draft Form 10-SB Registration
Statement dated April 1997, together with the Company's unaudited financial
statements dated November 30, 1996 (the "Form 10-SB").
D. Buyer has agreed to become a member of the Company's Board of
Directors and has had an adequate opportunity to ask questions of the
Company's senior management concerning the Memorandum, the Form 10-SB, the
Company, its financial condition, assets, liabilities and business plan and
understands the risks associated with making an investment in the Company and
that there is no guaranty that the Shares will appreciate or even maintain the
value that they had on the date of the Stock Purchase Agreement. All documents
and information requested by Buyer in order for him to evaluate his investment
in the Company that are available, have been delivered or otherwise made
available to Buyer or his investment advisor.
E. Buyer's investment background and experience and/or that of his
investment advisors who are not affiliated with the Company, has given Buyer
the capacity to protect his interest in connection with his investment in the
Company and Buyer has the financial net worth to afford a complete loss of his
investment in the Shares.
F. Buyer's acquisition of the Shares was not effected through the
publication of any advertisement.
G. Buyer represents that he is acquiring the Shares for his own
account as an investment and not with a view to the resale or direct or
indirect distribution of them or any interest therein.
H. Buyer acknowledges that neither the Shares, nor the Warrants nor
the securities covered by the Warrants have been approved by the Securities
and Exchange Commission nor the Nevada or California Departments of
Corporations, nor has any been registered under the Act or any other federal
or state security laws and as such, their sale, assignment or transfer is
subject to restriction. In particular, Buyer is aware of the provisions of
Rule 144 promulgated under the Act and that the Shares, Warrants and
securities represented by the Warrants are restricted securities under Rule
144. Buyer further acknowledges that the Shares, Warrants and securities
represented by the Warrants may not be sold, assigned or otherwise transferred
until such time as they have been registered under applicable state and
federal securities laws or that in the opinion of securities counsel
acceptable to the Company, an exemption from such registration or
qualification is available for their sale, assignment or transfer.
I. Buyer acknowledges that certificates representing the Shares will
be delivered to Buyer with the following restrictive legend or restrictive
legend substantially similar thereto:
"The shares covered by this certificate have not been registered under the
U.S. Securities Act of 1933 or any state securities laws. They may not be sold
or offered for sale in the absence of an effective registration statement as
to the securities law or an opinion of counsel satisfactory to the Company
that such registration is not required."
6. Conditions Precedent to Obligations of the Company. The Company's
obligations to sell the Shares is subject to the fulfillment on or prior to
the Closing Date of each of the following conditions:
A. The representation and warranties made by Buyer shall be true and
correct in all material respects on the Closing Date.
B. The Company shall have concurrently received payment of the
Purchase Price for the Shares in the amounts and at the times as provided in
Paragraphs I and 3 above.
7. Conditions Precedent to Buyer's Obligations. Buyer's obligation to
purchase the Shares is subject to the fulfillment on or prior to the Closing
Date of each of the following conditions precedent:
A. The representations and warranties of the Company shall be true
and correct in all material respects on the Closing Date.
B. All corporate actions and proceedings in connection of the
transactions contemplated hereby and all documents and instruments of such
transaction shall be reasonably satisfactory in form and substance to Buyer
and its counsel.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
9. Entire Agreement; Amendments. This Agreement constitutes the full and
entire understanding between the Parties with regard to the subject hereof.
Neither this Agreement or any terms hereof may be amended, waived, discharged
or terminated except by written instrument signed by both Parties.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized persons as of the day and year
first hereinabove written.
"Company" "Buyer"
NEWRIDERS, INC. /s/ X. X. Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxx XXXXXXX X. XXXXXXXXX
-------------------------
Xxxxxxx Xxxxxxx, President
