SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.45
This
SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of April 28, 2006, by
and among XL Generation International Inc. (the "Company") and the individuals
and entities listed on Exhibit A hereto as Purchasers (the "Purchasers"). In
consideration of the mutual promises and covenants contained in this Agreement,
the parties hereto agree as follows:
1. Sale
of
Shares.
1.1 Sale
of
Shares. Subject to the terms and conditions of this Agreement, at the Closing
(as defined in Section 2.1) the Company will sell to each of the Purchasers,
and
each of the Purchasers will purchase, the number of Company shares of common
stock (the "Common Stock"), set forth opposite such Purchaser's name on Exhibit
A, for the purchase price per share indicated on such Exhibit A (the "Purchase
Price"). The shares of Common Stock sold under this Agreement are referred
to as
the "Shares."
2. Closing.
2.1 The
Closing. The closing (the "Closing") of the sale and purchase of the Shares
under this Agreement shall take place at the offices of the Company or via
electronic exchange of documents and faxed signatures which shall be deemed
to
be effective as of the date of this Agreement (the "Closing Date"). At the
Closing:
(i) The
Company shall order and cause to be delivered to each of the Purchasers a
certificate for the number of Shares set forth opposite such Purchaser's name
on
Exhibit A, registered in the name of such Purchaser; and
(ii) Each
Purchaser shall pay by wire transfer of immediately available funds or other
method acceptable to the Company, the aggregate Purchase Price for the number
of
Shares such purchaser is purchasing hereunder as directed by the
Company.
3. Representations
and Warranties of the Company. The Company hereby represents and warrants to
each Purchaser that the statements contained in this Section 3 are complete
and
accurate as of the date of this Agreement and at Closing.
3.1 Organization
and Standing. The Company is a corporation duly organized, validly existing
and
in good standing under the laws of Nevada and has full corporate power and
authority to conduct its business as presently conducted and as proposed to
be
conducted by it and to enter into and perform this Agreement and to carry out
the transactions contemplated by this Agreement. The Company has at all times
complied with all provisions of its Certificate of Incorporation and By-laws
and
is not in default under, or in violation of, any such
provision.
3.2 Authority
for Agreement; No Conflict. The execution, delivery and performance by the
Company of this Agreement, and the consummation by the Company of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by the
Company and constitutes valid and binding obligations of the Company enforceable
in accordance with its terms, subject as to enforcement of remedies to
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting generally the enforcement of creditors' rights and subject to a
court's discretionary authority with respect to the granting of a decree
ordering specific performance or other equitable remedies. The execution and
delivery of this Agreement, the consummation of the transactions contemplated
hereby and the compliance with its provisions by the Company will not (a)
conflict with or violate any provision of the Certificate of Incorporation
or
By-laws of the Company, (b) require any filing with, or any permit, order,
authorization, consent or approval of, any United States court, arbitrational
tribunal, administrative agency or commission or other United States
governmental or regulatory authority or agency (each of the foregoing is
hereafter referred to as a "Governmental Entity").
3.3 Governmental
Consents. Based in part on the representations and warranties of the Purchasers
set forth in Section 4 of this Agreement, no consent, approval, order or
authorization of, or registration, qualification, designation, declaration
or
filing with, any Governmental Entity is required on the part of the Company
in
connection with the offer, issuance, sale and delivery of the Shares or the
other transactions contemplated by this Agreement (other than filings required
under the Exchange Act). In reliance on the representations and warranties
made
by each of the Purchasers in Section 4 of this Agreement, the offer and sale
of
the Shares to each of the Purchasers will be in compliance with applicable
United States federal and state securities laws.
4. Representations
and Warranties of the Purchasers. Each Purchaser hereby represents and warrants
to the Company that the statements contained in this Section 4 are complete
and
accurate as of the date of this Agreement and at Closing.
4.1 Authorization;
Enforceability.
Such
Purchaser has the full power and authority to enter into this Agreement and
to
perform his, her or its obligations thereunder. If such Purchaser is an entity,
such Purchaser has taken all corporate, partnership, limited liability, trust
or
similar action necessary to authorize its execution and delivery of this
Agreement. This Agreement have been duly executed and delivered by such
Purchaser and, assuming the due authorization, execution, and delivery by the
Company and the other Purchasers, constitutes his, her or its valid and binding
obligation, enforceable in accordance with the terms of this Agreement, subject
to applicable bankruptcy, reorganization, insolvency, and similar laws affecting
creditors' rights generally and to general principles of equity.
4.2 No
Conflict.
The
execution and delivery of this Agreement by such Purchaser and the performance
of his, her or its obligations thereunder will not (i) if such Purchaser is
an
entity, violate or conflict with any provision of its organizational documents,
(ii) violate, conflict with, or give rise to any right of termination,
cancellation, or acceleration under any material agreement or instrument to
which such Purchaser is a party, or by which he, it, or any of his, her or
its
assets is bound, (iii) result in the imposition of any lien on any Shares held
by such Purchaser, (iv) violate or conflict with any applicable laws, or (v)
require any consent, approval or other action of, notice to, or filing with
any
entity or person (governmental or private) other than the filing of a Form
3 or
a Schedule 13D if necessary in accordance with the Rules and Regulations
promulgated under the Exchange Act.
4.3 Investment
Representations and Warranties. Each Purchaser hereby represents and warrants
to
the Company the following:
(a) Such
Purchaser will acquire the Shares to be purchased by him, her or it for his,
her
or its own account, for investment and not with a view to the distribution
thereof, nor with any present intention of distributing the same.
(b) Such
Purchaser understands that the Shares to be purchased by him, her or it: (i)
will not be registered under the Securities Act or the securities laws of any
state, by reason of their issuance in a transaction exempt from the registration
or qualification requirements of the Securities Act (defined below) or such
securities laws, the availability of which depends upon, among other things,
the
bona fide nature of the investment intent and the accuracy of such Purchaser's
representations as expressed herein, and (ii) must be held indefinitely unless
a
subsequent disposition thereof is registered under the Securities Act or is
exempt from registration.
(c) The
Purchaser is an "accredited investor," as defined in Rule 501 (the provisions
of
which are known to such Purchaser) promulgated under the United States
Securities Act of 1933, as amended (the "Securities Act").
(d) The
Purchaser understands the Company has made no assurance that a public market
for
the Shares or any other class or series of Company capital stock will exist
in
the future.
(e) Based
on
such Purchaser's knowledge, experience and skill in evaluating and investing
in
securities derived from actual participation in financial, investment and
business matters, such Purchaser is capable of evaluating the merits and risks
of an investment in the Shares and the suitability of the Shares as an
investment for such Purchaser.
(f) The
Purchaser has had an opportunity to discuss the business, management and
financial affairs of the Company and the terms and conditions of an investment
in the Shares with, and has had access to, the management of the Company.
(g) The
Purchaser is aware that no guarantees have been or can be made respecting the
future value, if any, of the Shares or the profitability or success of the
business of the Company.
4.4 Brokers
and Finders. No person or entity acting on behalf or under the authority of
such
Purchaser is or will be entitled to any broker's, finder's, or similar fee
or
commission in connection with the transactions contemplated hereby.
4.5 Regulation
S Representations.
(a) The
Purchaser acknowledges and agrees that the Company shall, and shall instruct
its
transfer agent to, refuse to register any transfer of the Common Stock issued
hereunder not made in accordance with the provisions of Regulation S, pursuant
to registration under Securities Act or pursuant to an available exemption
from
registration.
(b) The
Purchaser understands and acknowledges that the Shares have not been registered
under the Securities Act and are being offered in reliance upon the exemptions
provided in Regulation S of the Securities Act and the Rules and Regulations
adopted thereunder. Accordingly, the Shares may not be offered or sold in the
U.S. or to U.S. persons (as such term is used in Regulation S) unless the
securities are registered under the Securities Act, or an exemption for the
regulation requirements is available. Furthermore, hedging transactions
involving the Shares may not be conducted unless in compliance with the
Securities Act. The Purchaser makes the following representations and warranties
to the Company with the intent that the same may be relied upon in determining
the suitability of the Purchaser as a purchaser of securities:
(c) The
Purchaser did not receive the offer for the Company for the Shares (the
“Offer”), nor was he, she or it solicited to purchase the Shares, in the United
States; that this Agreement has not been executed or delivered by the Purchaser
in the United States, and neither the Purchaser nor any person acting on behalf
of the Purchaser has engaged, directly or indirectly, in any negotiations with
respect to the Offer or this Agreement in the United States;
(d) The
Purchaser is not a U.S. person (i.e., (i) not an individual resident in the
U.S.; (ii) a partnership or corporation organized or incorporated in the United
States; (iii) an estate of which any executor or administrator is a U.S. person;
(iv) a trust of which any trustee is a U.S. person; (v) a dealer holding an
account for a customer; (vi) an agency or branch of a foreign entity located
in
the U.S.; or (vii) a partnership or corporation (A) organized or incorporated
under the laws of any foreign jurisdiction and (B) formed by a U.S. person
principally for the purpose of investing in securities not registered under
the
Securities Act and is not acquiring the Shares for the account or benefit of
a
U.S. person;
(e) The
Purchaser is not purchasing the Shares as a result of or subsequent to (i)
any
advertisement, article, notice or other communication published in any
newspaper, magazine or other publication or broadcast over television or radio
in the U.S.; (ii) any promotional seminar or meeting in the U.S., or (iii)
any
solicitation by a person not previously known to him or it in connection with
investments in securities generally; and
(f) The
Shares have not been registered under the Securities Act or under any state
securities laws and that the Purchaser agrees to transfer his, her or its Shares
in the U.S. or to, or for the account or benefit of, U.S. persons only if (i)
the Shares are duly registered under the Securities Act and all applicable
state
securities laws; or (ii) there is an exemption from registration under the
Securities Act, including any exemption from the registration requirements
of
the Securities Act which may be available pursuant to Rule 903 or Rule 904
under
Regulation S, and all applicable state securities laws; that prior to any such
transfer the Company may require, as a condition affecting a transfer of the
Shares, an opinion of counsel in form and substance satisfactory to the Company
as to the registration or exemption therefrom under the Securities Act and
applicable state securities laws; that the Company is under no obligation to
register the Shares under the Securities Act or any applicable state securities
laws on its or his or her behalf or to assist it or him or her in complying
with
any exemption from such registration;
(g) Except
as
distributed by Purchaser in accordance with the requirements and provisions
of
Rule 903 of Regulation S (i.e., the Shares may be allocated and distributed
to
Purchaser’s managed accounts so long as such distribution is made by Purchaser
in the manner specified by Rule 903), the Shares will be acquired solely for
the
account of the Purchaser, for investment purposes only, and not with a view
to,
or for sale in connection with, any distribution thereof and with no present
intention of distributing or reselling any part of the Shares.
(h) The
Purchaser agrees not to sell, pledge, transfer, dispose of, or otherwise deal
with or engage in hedging transactions involving, his or her Shares or any
portion thereof except as otherwise permitted herein, unless and until counsel
for the Company shall have determined that the intended disposition or action
is
permissible and does not violate the Securities Act or any applicable state
securities laws, or the rules and regulations thereunder.
(i) The
Purchasers jurisdiction of residence as set forth on the signature page hereto
is true and correct.
(j) The
Purchaser hereby states that he/she is acquainted with the requirements of
Section 13(d) of the Securities Exchange Act of 1934 and the rules and
regulations issued thereunder. The Purchaser understands that, as a result
of
its acquisition of Shares, and in order to comply with Section 13(d) and the
rules and regulations issued thereunder, Purchaser may be required to file
a
Schedule 13D and hereby agrees to make such filing if so required.
5. Transfer
of Shares.
5.1 Restricted
Shares. "Restricted Shares" means (a) the Shares and (b) any other shares of
capital stock of the Company issued in respect of such shares (as a result
of
stock splits, stock dividends, reclassifications, recapitalizations or similar
events); provided, however, that shares of Common Stock which are Restricted
Shares shall cease to be Restricted Shares (x) upon any sale pursuant to a
registration statement under the Securities Act, Section 4(1) of the Securities
Act or Rule 144 under the Securities Act or (y) at such time as they become
eligible for sale under Rule 144(k) under the Securities Act.
5.2 Transfers.
Restricted Shares shall not be sold or transferred unless either (i) they first
shall have been registered under the Securities Act, or (ii) such sale or
transfer is exempt from the registration requirements of the Securities
Act.
5.3 Legend.
Each certificate representing Restricted Shares shall bear a legend
substantially in the following form:
THE
SECURITY OR SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD TO ANY PERSON EXCEPT
AS
SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT: (1) IT
WILL
NOT RESELL OR OTHERWISE TRANSFER THE SHARES EVIDENCED HEREBY EXCEPT (A) IN
AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S OR
(B)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR ANOTHER THEN AVAILABLE EXEMPTION UNDER THE
SECURITIES ACT AND STATE SECURITIES LAWS OR, (C) IN A TRANSACTION THAT DOES
NOT
REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE LAWS,
OR
(D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER
THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER); (2) PRIOR TO ANY SUCH TRANSFER, IT WILL FURNISH TO XL GENERATION
INTERNATIONAL INC. AND THE TRANSFER AGENT FOR THE COMMON STOCK SUCH
CERTIFICATIONS, LEGAL OPINIONS, OR OTHER INFORMATION AS XL GENERATION
INTERNATIONAL INC. OR SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR STATE
SECURITIES LAWS; AND (3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON
STOCK
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. FURTHERMORE, HEDGING TRANSACTIONS INVOLVING THE SECURITIES EVIDENCED
HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT.
The
foregoing legend shall be removed from the certificates representing any
Restricted Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Securities
Act.
6. Miscellaneous.
6.1 Exchange
Act Filings. As soon as practicable after the Closing, the Company will make
all
finings with the U.S. Securities and Exchange Commission as required under
the
Exchange Act in connection with the transactions contemplated by this Agreement
and the Purchasers
hereby
consent to all disclosures required thereunder in respect of such filings as
determined by the Company in its sole discretion.
6.2 Successors
and Assigns. This Agreement, and the rights and obligations of each Purchaser
hereunder, may be assigned by such Purchaser to (a) any person or entity to
which Shares are transferred by such Purchaser, or (b) to any to any affiliate,
partner, member, stockholder or subsidiary of such Purchaser, and, in each
case,
such transferee shall be deemed a "Purchaser" for purposes of this Agreement;
provided that each such assignment of rights shall be contingent upon the
transferee providing a written instrument to the Company notifying the Company
of such transfer and assignment and agreeing in writing to be bound by the
terms
of this Agreement. The Company may not assign its rights under this
Agreement.
6.3 Severability;
Survival. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement. The representations and warranties of the Company and the Purchasers
shall survive the execution and delivery hereof and the Closing.
6.4 Specific
Performance. In addition to any and all other remedies that may be available
at
law in the event of any breach of this Agreement, each Purchaser shall be
entitled to specific performance of the agreements and obligations of the
Company hereunder and to such other injunctive or other equitable relief as
may
be granted by a court of competent jurisdiction.
6.5 Governing
Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York (without regard to conflicts of laws
provisions).
6.6 Notices.
All notices, requests, consents and other communications under this Agreement
shall be in writing and shall be deemed delivered (a) three business days after
being sent by registered or certified mail, return receipt requested, postage
prepaid or (b) one business day after being sent via a reputable nationwide
overnight courier service guaranteeing next business day delivery, in each
case
to the intended recipient as set forth below:
If
to the
Company, at the address of record as on file with the U.S. Securities and
Exchange Commission or at such other address as may have been furnished in
writing by the Company to the other parties hereto; or
If
to a
Purchaser, at the address set forth below or at such other address as may have
been furnished in writing by such Purchaser to the other parties
hereto.
Any
party
may give any notice, request, consent or other communication under this
Agreement using any other means (including, without limitation, personal
delivery, messenger service, telecopy, first class mail or electronic mail),
but
no such notice, request, consent or other communication shall be deemed to
have
been duly given unless and until it is actually received by the party for whom
it is intended. Any party may change the address to which notices, requests,
consents or other communications hereunder are to be delivered by giving the
other parties notice in the manner set forth in this Section.
6.7 Complete
Agreement. This Agreement (including its Exhibits) constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating
to
such subject matter.
6.8 Third
Party Beneficiaries. This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns and is not for
the
benefit of, nor may any provision hereof be enforced by, any other
person.
6.9 Amendments
and Waivers. This Agreement may be amended or terminated and the observance
of
any term of this Agreement may be waived with respect to all parties to this
Agreement (either generally or in a particular instance and either retroactively
or prospectively), with the written consent of the Company and the holders
of a
majority of the Shares then held by all Purchasers. The Company shall give
prompt written notice of any amendment or termination hereof or waiver hereunder
to any party hereto that did not consent in writing to such amendment,
termination or waiver. Any amendment, termination or waiver effected in
accordance with this Section 6.9 shall be binding on all parties hereto, even
if
they do not execute such consent; provided, that any amendment, termination
or
waiver of any provision of this Agreement that does not affect all Purchasers
in
the same way shall require the prior written consent of all Purchasers who
would
be subject to such disparate treatment. No waivers of or exceptions to any
term,
condition or provision of this Agreement, in any one or more instances, shall
be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
6.10 Fees
and
Expenses. Each party shall pay the fees and expenses of its advisors, counsel,
accountants and other experts, if any, and all other expenses, incurred by
such
party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement.
6.11 Validity
of Representations. The Company offer and sale of the Shares has been
conditioned on exemptions from registration based upon the validity of the
representations, warranties and covenants of each Purchaser. Each Purchaser
severally but not jointly agrees to indemnify and hold harmless the Company
and
its directors, officers, affiliates, agents, successors and assigns from and
against any and all losses, liabilities, deficiencies, costs, damages and
expenses (including, without limitation, reasonable attorneys’ fees, charges and
disbursements) incurred by the Company as result of any inaccuracy in or breach
of the representations, warranties or covenants made by such Purchaser herein.
The agreement hereby with each Purchaser is deemed to be a separate agreement,
and the sale of Shares to each such Purchaser is a separate sale.
6.12 Section
Headings and References; Construction. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties. Any reference in this agreement
to a
particular section or subsection shall refer to a section or subsection of
this
Agreement, unless specified otherwise. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.
6.13 Counterparts;
Facsimile Signatures. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute one and the same document. This Agreement may be executed
by
facsimile signatures.
-9-
XL
Generation International Inc. - Securities Purchase
Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
written.
XL
GENERATION INTERNATIONAL INC.
|
By:
|
/s/ Xxxxx Xxxxxxx | ||||
|
Name: Xxxxx Xxxxxxx |
|||||
|
Title:
President and CEO
|
PURCHASER:
|
By:
|
/s/ Pablo Xxxxxx Xxxxxx |
By:
|
/s/
Xxxxxxx X. Xx Xxxxxxx
|
||
|
Name: Pablo Xxxxxx Xxxxxx |
Name: Xxxxxxx X. Xx Xxxxxxx |
||||
|
Title:
President
|
Title:
Secretary
|
-10-
XL
Generation International Inc. - Securities Purchase
Agreement
EXHIBIT
A
LIST
OF PURCHASERS
|
Name
of Purchasers
|
Investment
Amount, Number of Shares
|
|
Address:
|
|
|
Price
Per Share US$2.50
|
|
|
Investment
Amount: US$500,000.00
|
|
|
Shares
Purchased 200
000
|
|
|
Jurisdiction
of Residence/Corporate Domicile:
|
-11-
