EXHIBIT 10.01
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("Agreement"), dated as of August 21,
2006, among, Intercell International Corporation ("IIC"), and NewMarket
Technology, Inc. (the "Buyer").
W I T N E S S E T H:
A. WHEREAS, IIC is a corporation duly organized under the laws of the State
of Nevada.
B. WHEREAS, Buyer wishes to purchase an aggregate of 250,000 shares of
Series A Preferred stock of IIC (collectively, the "Purchase Shares"), and IIC
desires to sell the Purchase Shares to Buyer free and clear of liens and
encumbrances.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
The Consideration
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1.1 Subject to the conditions set forth herein, IIC shall sell to Buyer and
Buyer shall purchase an aggregate of 250,000 shares of Series A Preferred stock
of IIC from IIC. The purchase price for the shares to be paid by Buyer to IIC is
$250,000 advanced to escrow (the "Consideration") which is herewith assigned by
Buyer to and for the benefit of IIC.
ARTICLE II
Closing and Issuance of Shares
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2.1 The Purchase Shares shall be issued by IIC to Buyer fully paid and
nonassessable free and clear of any liens or encumbrances upon receipt of the
Consideration by IIC, and satisfaction of a) the conditions precedent in Article
VI, and b) procedures in Article 5.
2.2 Closing hereunder shall be completed by delivery of the requisite
closing documents, consideration and share certificates on or before August 21,
2006 at 5:00 p.m. PST ("Closing Date") subject to satisfaction of the terms and
conditions set forth herein. Consideration may be delivered by Federal Express
and any closing documents may be delivered by facsimile, Federal Express or
other appropriate means.
ARTICLE III
Representations, Warranties and Covenants of IIC
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IIC hereby represents, warrants and covenants to Buyer as follows:
3.1 IIC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, and has the corporate power and
authority to own or lease its properties and to carry on its business as it is
now being conducted. The Articles of Incorporation and Amendments and Bylaws of
IIC, are complete and accurate, and the minute books of IIC, copies of which
have also been made available to Buyer, contain a record, which is complete and
accurate in all material respects, of all meetings, and all corporate actions of
the shareholders and Board of Directors of IIC.
3.2 The authorized capital stock of IIC consists of 200,000,000 shares of
common stock; and 10 million shares of preferred is authorized of which 250,000
shares have been designated as Series A Preferred with the Rights and Privileges
as contained on Exhibit A hereto. There are 23,836,323 shares of Common Stock of
IIC issued and outstanding and no shares of Preferred of any series are
currently outstanding. All such shares of capital stock of IIC are validly
issued, fully paid, non-assessable and free of preemptive rights except as
previously disclosed. IIC has no outstanding options, warrants, or other rights
to purchase, or subscribe to, or other securities convertible into or
exchangeable for any shares of capital stock of IIC, or contracts or
arrangements of any kind relating to the issuance, sale or transfer of any
capital stock or other equity securities of IIC.
3.3 This Agreement has been duly authorized, validly executed and delivered
on behalf of IIC and is a valid and binding agreement and obligation of IIC
enforceable in accordance with its terms, subject to limitations on enforcement
by general principles of equity and by bankruptcy or other laws affecting the
enforcement of creditors' rights generally, and IIC have complete and
unrestricted power to enter into and, upon the appropriate approvals as required
by law, to consummate the transactions contemplated by this Agreement.
3.4 Neither the making of nor the compliance with the terms and provisions
of this Agreement and consummation of the transactions contemplated herein by
IIC will conflict with or result in a breach or violation of the Articles of
Incorporation or Bylaws of IIC, or of any material provisions of any indenture,
mortgage, deed of trust or other material agreement or instrument to which IIC
is a party, or of any material provision of any law, statute, rule, regulation,
or any existing applicable decree, judgment or order by any court, federal or
state regulatory body, administrative agency, or other governmental body having
jurisdiction over IIC, or any of its material properties or assets, or will
result in the creation or imposition of any material lien, charge or encumbrance
upon any material property or assets of IIC pursuant to the terms of any
agreement or instrument to which IIC is a party or by which IIC may be bound or
to which any of IIC property is subject and no event has occurred with which
lapse of time or action by a third party could result in a material breach or
violation of or default by IIC or Sellers.
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3.5 There is no claim, legal action, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order, decree
or judgment in progress, pending or in effect, or to the best knowledge of the
Sellers threatened against or relating to IIC or affecting any of its assets,
properties, business or capital stock except the outstanding judgment of Xxxxxxx
Xxxxxxxx. There is no continuing order, injunction or decree of any court,
arbitrator or governmental authority to which IIC is a party or by which IIC or
its assets, properties, business or capital stock are bound.
3.6 IIC has accurately prepared and filed all federal, state and other tax
returns required by law, domestic and foreign, to be filed by it, has paid or
made provisions for the payment of all taxes shown to be due and all additional
assessments, and adequate provisions have been and are reflected in the
financial statements of IIC for all current taxes and other charges to which IIC
is subject and which are not currently due and payable. None of the Federal
income tax returns of IIC have been audited by the Internal Revenue Service or
other foreign governmental tax agency. IIC has no knowledge of any additional
assessments, adjustments or contingent tax liability (whether federal or state)
pending or threatened against IIC for any period, nor of any basis for any such
assessment, adjustment or contingency.
3.7 IIC has delivered to Buyer audited financial statements for the fiscal
year ended September 30, 2005 and unaudited financial statements for the nine
months ended June 30, 2006. All such statements, herein sometimes called "IIC
Financial Statements" are complete and correct in all material respects and,
together with the notes to these financial statements, present fairly the
financial position and results of operations of IIC for the periods indicated.
All financial statements of IIC have been prepared in accordance with generally
accepted accounting principles.
3.8 Since the dates of the IIC Financial Statements, there have not been
any material adverse changes in the business or condition, financial or
otherwise, of IIC. IIC does not have any liabilities, commitments or
obligations, secured or unsecured except as shown on updated financials (whether
accrued, absolute, contingent or otherwise).
3.9 The representations and warranties of the IIC shall be true and correct
as of the date hereof.
3.10 IIC has no employee benefit plan in effect at this time.
3.11 No representation or warranty by IIC or the Sellers in this Agreement,
or any certificate delivered pursuant hereto contains any untrue statement of a
material fact or omits to state any material fact necessary to make such
representation or warranty not misleading.
3.12 Buyer has received copies of the Annual Report on Form 10KSB for the
fiscal year ended September 30, 2005 as filed with the Securities and Exchange
Commission ("SEC") which included audits for the year ended September 30, 2005
and each of its other reports to shareholders filed with the SEC through the
period ended June 30, 2006. IIC is a registered company under the Securities
Exchange Act of 1934, as amended.
3.13 IIC has filed reports required to be filed by it under the Securities
Exchange Act of 1934, as amended (the "Federal Securities Laws".) No such
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reports, or any reports sent to the shareholders of IIC generally contained any
untrue statement of material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements in such report, in
light of the circumstances under which they were made, not misleading.
3.14 The Buyer has not received any general solicitation or general
advertising regarding the shares of Sellers's common stock.
ARTICLE IV
Procedure for Closing
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4.1 At the Closing Date, the purchase and sale shall be consummated after
satisfaction of all conditions precedent set forth in Article V, by Series A
Preferred stock certificates for the Purchase Shares being delivered, duly
issued, for 250,000 shares of Series A Preferred stock to Buyer, and the
delivery of the Consideration for share purchase from the Buyer to seller,
together with delivery of all other items, agreements, stock powers, warranties,
and representations set forth in this Agreement.
ARTICLE V
Conditions Precedent to the
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Consummation of the Purchase
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The following are conditions precedent to the consummation of the Agreement
on or before the Closing Date:
5.1 IIC shall have performed and complied with all of it's respective
obligations hereunder which are to be complied with or performed on or before
the Closing Date.
5.2 No action, suit or proceeding shall have been instituted or shall have
been threatened before any court or other governmental body or by any public
authority to restrain, enjoin or prohibit the transactions contemplated herein,
or which might subject any of the parties hereto or their directors or officers
to any material liability, fine, forfeiture or penalty on the grounds that the
transactions contemplated hereby, the parties hereto or their directors or
officers, have violated any applicable law or regulation or have otherwise acted
improperly in connection with the transactions contemplated hereby, and the
parties hereto have been advised by counsel that, in the opinion of such
counsel, such action, suit or proceeding raises substantial questions of law or
fact which could reasonably be decided adversely to any party hereto or its
directors or officers.
5.3 The representations and warranties made by IIC in this Agreement shall
be true as though such representations and warranties had been made or given on
and as of the Closing Date, except to the extent that such representations and
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warranties may be untrue on and as of the Closing Date because of changes caused
by transactions suggested or approved in writing by the Buyer.
ARTICLE VI
Termination and Abandonment
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6.1 Anything contained in this Agreement to the contrary notwithstanding,
the Agreement may be terminated and abandoned at any time prior to or on the
Closing Date:
(a) By mutual consent of parties;
(b) By IICor Buyer, if any condition set forth in Article V relating
to the other party has not been met or has not been waived;
(c) By IIC or Buyer, if any suit, action, or other proceeding shall
be pending or threatened by the federal or a state government
before any court or governmental agency, in which it is sought to
restrain, prohibit, or otherwise affect the consummation of the
transactions contemplated hereby;
(d) By IIC or Buyer, if there is discovered any material error,
misstatement or omission in the representations and warranties of
another party; or
(e) By the IIC, if the Closing does not occur, through no failure to
act by IIC, on August 21, 2006, or if Buyer fails to deliver the
consideration required herein.
6.2 Any of the terms or conditions of this Agreement may be waived at any
time by the party which is entitled to the benefit thereof, by action taken by
its Board of Directors provided; however, that such action shall be taken only
if, in the judgment of the Board of Directors taking the action, such waiver
will not have a materially adverse effect on the benefits intended under this
Agreement to the party waiving such term or condition.
ARTICLE VII
Continuing Representations and
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Warranties and Covenants
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7.1 The respective representations, warranties, and covenants of the
parties hereto and the covenants and agreements of the parties hereto shall
survive after the closing under this Agreement in accordance with the terms
thereof.
7.2 There are no representations whatsoever about any matter relating to
IIC or any item contained in this Agreement, except as is contained in the
express language of this Agreement.
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ARTICLE VIII
Miscellaneous
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8.1 This Agreement embodies the entire agreement between the parties, and
there have been and are no agreements, representations or warranties among the
parties other than those set forth herein or those provided for herein, except
that a companion document, the Reorganization Agreement, has been executed
previously which contains numerous warranties and representations.
8.2 To facilitate the execution of this Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument.
8.3 All parties to this Agreement agree that if it becomes necessary or
desirable to execute further instruments or to make such other assurances as are
deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
8.4 This Agreement may not be amended except by written consent of both
parties.
8.5 Any notices, requests, or other communications required or permitted
hereunder shall be delivered personally or sent by overnight courier service,
prepaid, addressed as follows:
To IIC: Intercell International Corporation
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
To Buyer: New Market Technology, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
8.6 No press release or public statement will be issued relating to the
transactions contemplated by this Agreement without prior approval of the Buyer
and IIC. However, IIC may issue at any time any press release or other public
statement it believes on the advice of its counsel it is obligated to issue to
avoid liability under the law relating to disclosures, but the party issuing
such press release or public statement shall make a reasonable effort to give
the other party prior notice of and opportunity to participate in such release
or statement.
8.7 This Agreement shall be governed by and construed in accordance with
and enforced under the laws of the state of Colorado applicable to all
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agreements made hereunder. Venue and jurisdiction for any legal actions
hereunder shall be District Court in and for Jefferson County, Colorado.
8.8 Buyer understands and agrees that the Purchase Shares have not been
registered under the Securities Act of 1933, and shall be issued with the
customary "restrictive legend" restricting transfer except in the event of an
exemption from Registration being available.
8.9 Buyer represents that IIC and its officers and directors have made
available all information, without limitation, to it, so that Buyer has made a
fully informed investment decision, accepting full risk, to purchase the
Purchase Shares as an investment and not with any view to distribution as that
term is defined and understood under the Securities Act of 1933.
IN WITNESS WHEREOF, the parties have executed this Agreement this 21st day
of August, 2006.
Intercell International Corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: CFO
BUYER: New Market Technology, Inc.
/s/ Xxxxxx X. Xxxxx
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By:_________________________
Name: Xxxxxx X. Xxxxx
Title: CFO
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