USA TELCOM INTERNATIONALE
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made as of the 19th day
of March, 2004, by and among USA Telcom Internationale, a Nevada corporation
(the "Company"), and the purchaser listed on SCHEDULE A hereto (the
"Purchaser").
RECITALS
A. The Company desires to obtain funds from the Purchaser in order to
further the operations of the Company.
B. In order to obtain such funds, the Company is offering (the
"Offering") up to an aggregate of 13,000,000 shares (the "Shares") of common
stock, $.001 par value per share (the "Common Stock"), on the terms and subject
to the conditions set forth herein.
AGREEMENT
It is agreed as follows:
1. PURCHASE AND SALE OF SHARES.
1.1 Purchase and Sale of Shares. In reliance upon the
representations and warranties of the Company and the Purchaser contained herein
and subject to the terms and conditions set forth herein, at Closing, the
Company shall issue and sell to the Purchaser and the Purchaser shall purchase
from the Company, the number of Shares, set forth opposite each Purchaser's name
on SCHEDULE A hereto for U.S. $0.02 per Share (the "Purchase Price").
1.2 Deliveries by Purchaser. The Purchaser shall deliver a check
or wire transfer pursuant to the instructions set forth on Schedule 1.2 in the
amount of the Purchase Price for each Share purchased.
2. CLOSING(S).
2.1 Date and Time. Subject to all of the terms and conditions set
forth in this Agreement being satisfied, the closing of the sale of Shares
contemplated by this Agreement (the "Closing") shall take place at the offices
of the Company or at such other place as the Company and Purchasers shall agree
in writing, on or before March 19, 2004, unless otherwise extended by the
Company (the "Closing Date").
2.2 Deliveries. At the Closing, the Company will deliver the
following to the Purchaser
2.2.1 The certificates representing the Shares purchased by the
Purchaser against payment of the Purchase Price. Each such Share shall be in
definitive form and registered in the name of the Purchaser, as set forth on
-1-
SCHEDULE A, against delivery to the Company by the Purchaser of the items set
forth in paragraph 1.2 above.
2.2.2 The articles of incorporation, bylaws, minutes, and other
corporate books and records of the Company.
2.2.3 A certified list of stockholders from the transfer agent of
the Company, dated as of the date of Closing.
2.2.4 All accounting books and records for the Company for the
period commencing January 1, 2001 through the present.
2.2.5 A list of all SEC and XXXXX codes for the Company.
2.2.6 Resolutions of the board of directors appointing Xxxxxx
Xxxxxxx and Xxxxxx Xxxxxxxx as directors of the Company, to become effective at
the Closing.
2.2.7 Resignations of Xxxxx Xxxxx from his position as the sole
officer of the Company.
2.2.8 Resignations of Xxxxx Xxxxx and Xxxxxxx Xxxx from their
positions as directors of the Company.
2.2.9 A letter of instruction to the transfer agent of the Company
signed by Xxxxx Xxxxx on behalf of the Company advising the transfer agent of
the change of officers and directors contemplated by this Agreement.
2.2.10 A letter to the Company's current certifying accountants
signed by Xxxxx Xxxxx on behalf of the Company advising the certifying
accountants of the change of officers and directors contemplated by this
Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As a material inducement to the Purchasers to enter into this Agreement
and to purchase the Shares, the Company represents and warrants that the
following statements are true and correct in all material respects as of the
date hereof and will be true and correct in all material respects at Closing,
except as expressly qualified or modified herein.
3.1 Organization and Good Standing. The Company is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Nevada and has full corporate power and authority to enter into and
perform its obligations under this Agreement, and to own its properties and to
carry on its business as presently conducted and as proposed to be conducted.
The Company is duly qualified to do business as a foreign corporation in every
jurisdiction in which the failure to so qualify would have a material adverse
effect upon the Company.
3.2 Capitalization. The Company is authorized to issue 25,000,000
shares of Common Stock of which, as of the date hereof, 4,250,000 shares were
-2-
issued and outstanding. All outstanding shares of Common Stock have been duly
authorized and validly issued, and are fully paid, nonassessable, and free of
any preemptive rights.
3.3 Validity of Transactions. This Agreement, and each document
executed and delivered by the Company in connection with the transactions
contemplated by this Agreement, have been duly authorized, executed and
delivered by the Company and is each the valid and legally binding obligation of
the Company, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency reorganization and moratorium laws and other
laws affecting enforcement of creditor's rights generally and by general
principles of equity.
3.4 Valid Issuance of Shares. The Shares that are being issued
to the Purchasers hereunder, when issued, sold and delivered in accordance with
the terms hereof for the consideration expressed herein, will be duly and
validly issued, fully paid and nonassessable and free of restrictions on
transfer, other than restrictions on transfer under this Agreement and under
applicable federal and state securities laws, will be free of all other liens
and adverse claims.
3.5 No Violation. The execution, delivery and performance of this
Agreement has been duly authorized by the Company's Board of Directors and will
not violate any law or any order of any court or government agency applicable to
the Company, as the case may be, or the Articles of Incorporation or Bylaws of
the Company, and will not result in any breach of or default under, or, except
as expressly provided herein, result in the creation of any encumbrance upon any
of the assets of the Company pursuant to the terms of any agreement or
instrument by which the Company or any of its assets may be bound. No approval
of or filing with any governmental authority is required for the Company to
enter into, execute or perform this Agreement.
3.6 SEC Reports and Financial Statements.
3.6.1 The Company has delivered or made available to the Purchaser
accurate and complete copies (excluding copies of exhibits) of each report,
registration statement and definitive proxy statement filed by the Company with
the SEC since January 1, 1999 (collectively, with all information incorporated
by reference therein or deemed to be incorporated by reference therein, the "SEC
Reports"). All statements, reports, schedules, forms and other documents
required to have been filed by the Company with the SEC have been so filed on a
timely basis, except as indicated in such SEC Reports. As of the time it was
filed with the SEC (or, if amended or superseded by a filing prior to the date
of this Agreement, then on the date of such filing): (i) each of the SEC Reports
complied in all material respects with the applicable requirements of the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934; and
(ii) none of the SEC Reports 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 the light of the circumstances under
which they were made, not misleading.
3.6.2 Except for the pro forma financial statements the
consolidated financial statements contained in the SEC Reports: (i) complied as
to form in all material respects with the published rules and regulations of the
-3-
SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a
consistent basis throughout the periods covered (except as may be indicated in
the notes to such financial statements and, in the case of unaudited statements,
as permitted by Form 10-QSB of the SEC, and except that unaudited financial
statements may not contain footnotes and are subject to normal and recurring
year-end audit adjustments which will not, individually or in the aggregate, be
material in amount); and (iii) fairly present, in all material respects, the
consolidated financial position of the Company and its consolidated subsidiaries
as of the respective dates thereof and the consolidated results of operations of
the Company and its consolidated subsidiaries for the periods covered thereby.
All adjustments considered necessary for a fair presentation of the financial
statements have been included.
3.7 Subsidiaries. Except as set forth in the SEC Reports, the
Company does not own, directly or indirectly, any equity or debt securities of
any corporation, partnership, or other entity.
3.8 Litigation. Except as set forth in the SEC Reports, there are
no suits or proceedings (including without limitation, proceedings by or before
any arbitrator, government commission, board, bureau or other administrative
agency) pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which, if adversely determined,
would have a material adverse effect on the consolidated financial condition,
results of operations, prospects or business of the Company, and neither the
Company nor any of its subsidiaries are subject to or in default with respect to
any order, writ, injunction or decree of any federal, state, local or other
governmental department.
3.9 Taxes. Federal income tax returns and state and local income
tax returns for the Company and its subsidiaries have been filed as required by
law; all taxes as shown on such returns or on any assessment received subsequent
to the filing of such returns have been paid, and there are no pending
assessments or adjustments or any income tax payable for which reserves, which
are reasonably believed by the Company to be adequate for the payment of any
additional taxes that may come due, have not been established. All other taxes
imposed on the Company and its Subsidiaries have been paid and any reports or
returns due in connection herewith have been filed.
3.10 Securities Law Compliance. Assuming the accuracy of the
representations and warranties of Purchasers set forth in Section 4 of this
Agreement, the offer, issue, sale and delivery of the Shares will constitute an
exempted transaction under the Securities Act of 1933, as amended and now in
effect ("Securities Act"), and registration of the Shares under the Securities
Act is not required. The Company shall make such filings as may be necessary to
comply with the Federal securities laws and the blue sky laws of any state,
which filings will be made in a timely manner.
3.11 Liabilities. Except for obligations disclosed in the SEC
Reports, the Company has no liabilities, contingent or otherwise. The Company
maintains and will continue to maintain a standard system of accounting
established and administered in accordance with generally accepted accounting
principles. The Company shall use the proceeds from the transactions
contemplated hereby solely to (a) make payments pursuant to the Consulting
-4-
Agreement described in Section 5.2.4 hereto, and (b) pay the liabilities
disclosed in the SEC Reports, and the Company will have settled all other
remaining liabilities as of the Closing.
3.12 Qualifications, Legal and Investment. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States including "blue sky" filings in any state that are required
in connection with the lawful sale of the Shares pursuant to this Agreement have
been or will be, on a timely basis, duly obtained and are effective. No stop
order or other order enjoining the sale of the Shares have been issued and no
proceedings for such purpose are pending or, to the knowledge of the Seller,
threatened by the SEC, or any commissioner of corporations or similar officer of
any state having jurisdiction over this transaction. The sale of the Shares is
legally permitted by all laws and regulations to which the Purchaser, the
Sellers, and the Company are subject.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
The Purchaser hereby represents, warrants and covenants with the
Company as follows:
4.1 Legal Power. The Purchaser has the requisite power to enter
into this Agreement, to purchase the Shares hereunder, and to carry out and
perform its obligations under the terms of this Agreement.
4.2 Due Execution. This Agreement has been duly executed and
delivered by Purchaser, and, upon due execution and delivery by the Company,
this Agreement will be a valid and binding agreement of Purchaser.
4.3 Receipt and Review of SEC Reports. Purchaser represents that
Purchaser has received and reviewed the SEC Reports and has been given full and
complete access to the Company for the purpose of obtaining such information as
the Purchaser or its qualified representative has reasonably requested in
connection with the decision to purchase Shares. The Purchaser represents that
he has been afforded the opportunity to ask questions of the officers of the
Company regarding its business prospects and the Shares, all as Purchaser or
Purchaser's qualified representative have found necessary to make an informed
investment decision to purchase the Shares.
4.4 Restricted Securities. Purchaser has been advised that the
Shares have not been registered under the Securities Act or any other applicable
securities laws and that the Shares are being offered and sold pursuant to
Section 4(2) of the Securities Act and Rule 506 thereunder, and that the
Company's reliance upon Section 4(2) and Rule 506 is predicated in part on
Purchasers' representations as contained herein.
4.4.1 Purchaser is an "accredited investor" as defined under Rule
501 under the Securities Act.
4.4.2 Purchaser acknowledges that the Shares have not been
registered under the Securities Act or the securities laws of any state and are
being offered, and will be sold, pursuant to applicable exemptions from such
registration for nonpublic offerings and will be issued as "restricted
securities" as defined by Rule 144 promulgated pursuant to the Securities Act.
-5-
The Shares may not be resold in the absence of an effective registration thereof
under the Securities Act and applicable state securities laws unless, in the
opinion of the Company's counsel, an applicable exemption from registration is
available.
4.4.3 Purchaser is acquiring the Shares for its own account, for
investment purposes only and not with a view to, or for sale in connection with,
a distribution, as that term is used in Section 2(11) of the Securities Act, in
a manner which would require registration under the Securities Act or any state
securities laws.
4.4.4 Purchaser understands and acknowledges that the Shares will
bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR
TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION THEREOF UNDER
THE SECURITIES ACT OF 1933 AND/OR THE SECURITIES ACT OF ANY STATE HAVING
JURISDICTION OR AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR ACTS.
4.4.5 Purchaser acknowledges that an investment in the Shares is
not liquid and is transferable only under limited conditions. Purchaser
acknowledges that such securities must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Purchaser is aware of the provisions of Rule 144
promulgated under the Securities Act, which permits limited resale of securities
purchased in a private placement subject to the satisfaction of certain
conditions and that such Rule is not now available and, in the future, may not
become available for resale of the Shares.
4.5 Purchaser Sophistication and Ability to Bear Risk of Loss.
Purchaser acknowledges that it is able to protect its interests in connection
with the acquisition of the Shares and can bear the economic risk of investment
in such securities without producing a material adverse change in Purchaser's
financial condition. Purchaser otherwise has such knowledge and experience in
financial or business matters that Purchaser is capable of evaluating the merits
and risks of the investment in the Shares.
4.6 Purchases by Groups. The Purchaser represents, warrants and
covenants that it is not acquiring the Shares as part of a group within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
5. CONDITIONS TO CLOSING.
5.1 Conditions to Obligations of the Purchaser. Each Purchaser's
obligation to purchase the Shares at the Closing is subject to the fulfillment,
at or prior to such Closing, of all of the following conditions:
5.1.1 Representations and Warranties True; Performance of
Obligations. The representations and warranties made by the Company in Section 3
hereof shall be true and correct in all material respects at the Closing with
-6-
the same force and effect as if they had been made on and as of said date; and
the Company shall have performed all obligations and conditions herein required
to be performed by it on or prior to the Closing.
5.1.2 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
hereby and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to the Purchaser.
5.1.3 Qualifications, Legal and Investment. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States including "blue sky" filings in any state that are required
in connection with the lawful sale and issuance of the Shares pursuant to this
Agreement shall have been duly obtained and shall be effective on and as of the
Closing. No stop order or other order enjoining the sale of the Shares shall
have been issued and no proceedings for such purpose shall be pending or, to the
knowledge of any Purchaser, threatened by the SEC, or any commissioner of
corporations or similar officer of any state having jurisdiction over this
transaction. At the time of the Closing, the sale and issuance of the Shares
shall be legally permitted by all laws and regulations to which the Purchasers
and the Company are subject.
5.1.4 Principal Stockholder and Officer Indemnification. Xxxxx
Xxxxx, the Company's President and principal stockholder, shall have executed
and delivered the Letter of Indemnification attached hereto as Schedule 5.1.4.
5.1.5 Lock-Up/Leak-Out Agreements. Xxxxx Xxxxx and AMVI
(collectively, the "LOCK-UP STOCKHOLDERS") the shall have executed and delivered
a Lock-Up/Leak-Out Agreement attached hereto as Schedule 5.1.5, and the Lock-Up
Stockholders shall have delivered for inspection the certificates representing
all shares of Common Stock held by such Lock-Up Stockholders to verify that the
legends referenced in the Lock-Up/Leak-Out Agreements have been placed upon such
certificates.
5.1.6 Filing of Annual Report on Form 10-KSB. The Company shall
have filed an Annual Report on Form 10-KSB for the year ended December 31, 2003
with the SEC prior to the Closing, and such Annual Report shall be deemed an
"SEC Report" under Section 3.7 of this Agreement.
5.1.7 Satisfaction of Liabilities. The Company shall deliver
evidence satisfactory to the Purchaser or its counsel that all liabilities of
the Company have been satisfied, compromised, or otherwise extinguished.
5.2 Conditions to Obligations of the Company. The Company's
obligation to issue and sell the Shares at the Closing is subject to the
fulfillment to the Company's satisfaction, on or prior to the Closing, of the
following conditions:
5.2.1 Representations and Warranties True. The representations and
warranties made by each Purchaser in Section 4 hereof shall be true and correct
at the Closing with the same force and effect as if they had been made on and as
of the Closing.
-7-
5.2.2 Performance of Obligations. Each Purchaser shall have
performed and complied with all agreements and conditions herein required to be
performed or complied with by them on or before the Closing, and each Purchaser
shall have delivered payment to the Company in respect of its purchase of
Shares.
5.2.3 Qualifications, Legal and Investment. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States including "blue sky" filings in any state that are required
in connection with the lawful sale and issuance of the Shares pursuant to this
Agreement shall have been duly obtained and shall be effective on and as of the
Closing. No stop order or other order enjoining the sale of the Shares shall
have been issued and no proceedings for such purpose shall be pending or, to the
knowledge of the Company, threatened by the SEC, or any commissioner of
corporations or similar officer of any state having jurisdiction over this
transaction. At the time of the Closing, the sale and issuance of the Shares
shall be legally permitted by all laws and regulations to which each Purchaser
and the Company are subject.
5.2.4 Consulting Agreement. The Company shall have executed and
delivered the Consulting Agreement attached hereto as Schedule 5.2.4.
6. MISCELLANEOUS.
6.1 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Nevada.
6.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto.
6.3 Entire Agreement. This Agreement and the Exhibits hereto and
thereto, and the other documents delivered pursuant hereto and thereto,
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and no party shall be liable or bound to any
other party in any manner by any representations, warranties, covenants, or
agreements except as specifically set forth herein or therein. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than
the parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
6.4 Separability. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, it shall to the extent practicable, be
modified so as to make it valid, legal and enforceable and to retain as nearly
as practicable the intent of the parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
6.5 Amendment and Waiver. Except as otherwise provided herein, any
term of this Agreement may be amended, and the observance of any term of this
Agreement may be waived (either generally or in a particular instance, either
retroactively or prospectively, and either for a specified period of time or
indefinitely), with the written consent of the Company and the Purchasers, or,
-8-
to the extent such amendment affects only one Purchaser, by the Company and such
individual Purchaser. Any amendment or waiver effected in accordance with this
Section shall be binding upon each future holder of any security purchased under
this Agreement (including securities into which such securities have been
converted) and the Company.
6.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be effective when delivered
personally, or sent by telex or telecopier (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt requested, or when
received by the addressee, if sent by Express Mail, Federal Express or other
express delivery service (receipt requested) in each case to the appropriate
address set forth below:
If to the Company: USA Telcom Internationale
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 00
Xxx Xxxxx, XX 00000
If to a Purchaser: At the address set forth on the Signature Page
6.7 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-9-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
USA TELCOM INTERNATIONALE
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: President
Address: 0000 X. Xxxxxxxx Xxx.,
Xxxxx 00
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
PURCHASER:
XXXXXX XXXXXXX
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title:
Address: 0000 X. Xxxxx Xx.
Xxxxx X-0000
Xxxxxx, XX 00000
Facsimile:
-10-
