STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated November 13, 2006, by and among AVEROX
INC. (formerly known as Flickering Star Financial Inc.), a Nevada corporation
having its business address at Suite Xx. 0, Xxxxxx Xxxxx, Xxxxxxx Xxxxx Xxxxxxx,
Xxxx Xxxx Rd., F 5/1 Islamabad, Pakistan (the "Company") and HALO Investments
Ltd., a Belize international business corporation having a registered address at
Jasmine Court, 00X Xxxxxx Xxxxxx, XX Xxx 0000, Xxxxxx Xxxx, Xxxxxx (the
"Purchaser").
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Agreement" means this Stock Purchase Agreement as from time to time
amended and in effect between the parties, including all Exhibits hereto.
"Board of Directors" or "Board" means the board of directors of the
Company as constituted from time to time.
"Claims Period" shall have the meaning assigned to that term in
Section 7.02.
"Closing" shall have the meaning assigned to that term in Section
2.02.
"Commission" shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
"Common Stock" includes (a) the Company's Common Stock, $0.004 par
value, as authorized on the date of this Agreement, (b) any other capital stock
of any class or classes (however designated) of the Company authorized on or
after the date hereof, the holders of which shall have the right, without
limitation as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to a preference, and the holders of which
shall ordinarily, in the absence of contingencies or in the absence of any
provision to the contrary in the Company's Certificate of Incorporation, be
entitled to vote for the election of a majority of directors of the Company
(even though the right so to vote has been suspended by the happening of such a
contingency or provision), and (c) any other securities into which or for which
any of the securities described in (a) or (b) may be converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger, sale of assets
or otherwise.
"Damages" shall have the meaning assigned to that term in Section
7.02.
"Equity Security" means any stock or similar security, including,
without limitation, securities containing equity features and securities
containing profit participation features, or any security convertible into or
exchangeable for, with or without consideration, any stock or similar security,
or any security carrying any warrant, right or option to subscribe for or
purchase any shares of capital stock, or any such warrant or right.
"Governmental Authority" means any federal, national, state,
provincial, municipal or local government, governmental authority, regulatory or
administrative agency, governmental commission, department, board, bureau,
agency or instrumentality, political subdivision, commission, court, tribunal,
official, arbitrator or arbitral body, in each case whether U.S. or non-U.S.
"Law(s)" means, with respect to any Person, any United States or
non-United States federal, national, state, provincial, local, municipal,
international, multinational or other law (including common law), constitution,
statute, code, ordinance, rule, regulation or treaty applicable to such Person.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind, including, without limitation, any conditional sale
or other title retention agreement, any lease in the nature thereof and the
filing of or agreement to give any financing statement under the U.S. Uniform
Commercial Code or similar type Law of any jurisdiction and including any Lien
arising by Law.
"Material Adverse Effect" means, when used with respect to the
Company or any Subsidiary, as the case may be, any change, effect or
circumstance which, individually or in the aggregate, would reasonably be
expected to (a) have a material adverse effect on the business, assets,
financial condition or results of operations of the Company or its Subsidiaries,
as the case may be, in each case taken as a whole, or (b) materially impair the
ability of the Company or its Subsidiaries, as the case may be, to perform their
obligations under this Agreement, excluding any change, effect or circumstance
resulting from (i) the announcement, pendency or consummation of the
transactions contemplated by this Agreement, (ii) changes in the United States
securities markets generally, or (iii) changes in general economic, currency
exchange rate, political or regulatory conditions in industries in which the
Company or its Subsidiaries, as the case may be, operate.
"Order" means any award, decision, injunction, judgment, order,
ruling, subpoena, or verdict entered, issued, made, or rendered by any
Governmental Authority.
"Organizational Documents" means (a) the articles or certificate of
incorporation, memorandum and articles of association and/or the by-laws or code
of regulations of a corporation; (b) the partnership agreement and any statement
of partnership of a general partnership; (c) the limited partnership agreement
and the certificate of limited partnership of a limited partnership; (d) the
articles or certificate of formation and operating agreement of a limited
liability company; (e) any other document performing a similar function to the
documents specified in clauses (a), (b), (c) and (d) adopted or filed in
connection with the creation, formation or organization of a Person; and (f) any
and all amendments to any of the foregoing.
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"Person" or "person" means an individual, corporation, partnership,
joint venture, trust, university, or unincorporated organization, or a
government, or any agency or political subdivision thereof.
"Proceeding" means any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal, administrative or
investigative) commenced, brought, conducted, or heard by or before, or
otherwise involving, any Governmental Authority.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission (or
of any other federal agency then administering the Securities Act) thereunder,
or any successor statute all as the same shall be in effect at the time.
"Survival Period" shall have the meaning assigned to that term in
Section 7.01.
"Transaction Documents" means, collectively, this Agreement, the
Notes and all agreements, instruments and other documents to be executed and
delivered in connection with the transactions contemplated by this Agreement.
"U.S." means the United States of America.
"U.S. Person" has the meaning set forth in Regulation S.
ARTICLE II
PURCHASE, SALE AND TERMS OF SHARES
2.01. The Shares. On the date hereof, the Purchaser agrees to purchase an
aggregate of 380,000 shares (the "Shares") of Common Stock of the Company for
the aggregate of $2,650,000 (the "Funds"). The Company has authorized the
issuance and sale of 380,000 shares of its Common Stock (such shares being
referred to as the "Shares"), subject to the terms and conditions hereof.
2.02. Closing. The Company agrees to issue, and sell to the Purchaser and,
in consideration of and in express reliance upon the representations,
warranties, covenants, terms and conditions of this Agreement, the Purchaser
agrees to purchase the Shares. The closing of the purchase and sale of the
Shares shall occur at such time and place specified by the Purchaser,
simultaneous with the closing of that certain Share Exchange Agreement dated
October 30, 2006 by and among the Company, certain shareholders of the Company,
Pearl Consulting FZ-LLC, a free zone limited liability company organized under
the Laws of Dubai, UAE, and Xxxxxx Xxxxxxx, or at such time and date thereafter
as the Purchaser and the Company may agree (the "Closing"). At the Closing, the
Purchaser shall pay $150,000 and deliver to the Company promissory notes in the
aggregate principal amount of $2,500,000 (the "Notes"), against delivery of
stock certificate(s) to the Purchaser evidencing the Shares. The obligations,
terms and conditions regarding payment of the funds shall be set forth in the
Notes.
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2.03. Representations by the Purchaser. The Purchaser makes the following
representations and warranties to the Company:
(i) The Purchaser is an international business corporation duly
incorporated and validly existing under the Laws of Belize and has all requisite
corporate power and authority to conduct its business in the manner in which it
is presently being conducted. The Purchaser have all requisite power and
authority to execute, deliver and perform this Agreement and the Transaction
Documents to consummate the transactions contemplated hereby. The execution
delivery and performance of this Agreement and the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors of the Purchaser, if applicable, and no
other corporate proceedings are necessary to authorize the execution, delivery
and performance of this Agreement and the Transaction Documents or the
consummation of the transactions contemplated hereby and thereby. Assuming the
due authorization, execution and delivery of this Agreement and the Transaction
Documents by the Company, this Agreement and the Transaction Documents
constitute, the valid and legally binding obligations of the Purchaser,
enforceable against the Purchaser in accordance with their terms, subject to the
effect of any applicable bankruptcy, moratorium, insolvency, reorganization or
other similar Law affecting the enforceability of creditors' rights generally
and to the effect of general principles of equity which may limit the
availability of remedies, whether in a proceeding at Law or in equity (the
"Bankruptcy Exception").
(ii) Neither the execution, nor delivery by the Purchaser of this
Agreement or any Transaction Document to which the Purchaser is a party, nor the
consummation or performance by the Purchaser of the transactions contemplated
hereby or thereby will, directly or indirectly, (a) contravene, conflict with,
or result in a violation of any provision of the Organizational Documents of the
Purchaser; (b) contravene, conflict with, constitute a default (or an event or
condition which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination or acceleration of, any agreement
or instrument to which the Purchaser is a party or by which the properties or
assets of the Purchaser are bound; or (c) contravene, conflict with, or result
in a violation of, any Law or Order to which the Purchaser, or any of the
properties or assets of the Purchaser, may be subject.
(iii) The Purchaser has been supplied with or has had sufficient
access to all information, including financial statements and other financial
information of the Company, and has been afforded with an opportunity to ask
questions of and receive answers concerning information to which a reasonable
investor would attach significance in making investment decisions, so that as a
reasonable investor the Purchaser has been able to make the decision to purchase
the Shares.
(iv) The Purchaser, in making the decision to purchase the Shares,
has relied upon independent investigations of the Company made by it. The
Purchaser has such knowledge and experience in financial, tax and business
matters so as to enable the Purchaser to utilize the information made available
to the Purchaser in connection with the offering of the Shares to evaluate the
merits and risks of an investment in the Shares and to make an informed
investment decision with respect thereto.
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(v) The Purchaser understands that the Shares are being and will be
sold in reliance on an exemption from the registration requirements of U.S. and
foreign securities Laws, and that the Company is relying upon the truth and
accuracy of the representations, warranties, agreements, acknowledgments and
understandings of the Purchaser set forth herein in order to determine the
applicability of such exemptions and the suitability of the Purchaser to
purchase the Shares. The representations, warranties and agreements contained
herein are true and correct as of the date hereof and may be relied upon by the
Company, and the Purchaser will notify the Company immediately of any adverse
change in any such representations and warranties which may occur prior to the
Closing.
(vi) All offers and sales of the Shares prior to the registration of
the Shares under the Securities Act or pursuant to an exemption from
registration under the Securities Act shall be made only pursuant to such a
registration or such exemption from registration.
(vii) The Purchaser is acquiring the Shares for investment purposes.
(viii) The Purchaser is not a U.S. Person and further makes the
representations and warranties to the Company set forth on Schedule 2.3.
(ix) The Purchaser agree that the certificates representing the
Shares shall contain a legend to the following effect.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS
AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN
WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AN
OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE
COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR
OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. HEDGING TRANSACTIONS INVOLVING THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH
THE SECURITIES ACT.
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(x) Opinion. The Purchaser will not transfer any or all of the
Shares absent an effective registration statement under the Securities Act and
applicable state securities Law covering the disposition of the Shares, without
first providing the Company with an opinion of counsel (which counsel and
opinion are reasonably satisfactory to the Company) to the effect that such
transfer will be exempt from the registration and the prospectus delivery
requirements of the Securities Act and the registration or qualification
requirements of any applicable U.S. state securities Laws.
(xi) Brokers or Finders. No Person has or will have, as a result of
the transactions contemplated by this Agreement, any right, interest or valid
claim against or upon the Company for any commission, fee or other compensation
as a finder or broker because of any act or omission by the Purchaser or its
agents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser as follows:
3.01. Authorization. The Company has all requisite authority and power
(corporate and other), governmental licenses, authorizations, consents and
approvals to enter into this Agreement and each of the Transaction Documents to
which the Company is a party, to consummate the transactions contemplated by
this Agreement and each of the Transaction Documents to which the Company is a
party and to perform its obligations under this Agreement and each of the
Transaction Documents to which the Company is a party. The execution, delivery
and performance by the Company of this Agreement and each of the Transaction
Documents to which the Company is a party have been duly authorized by all
necessary corporate action and do not require from the Board of Directors or the
stockholders of the Company any consent or approval that has not been validly
and lawfully obtained. The execution, delivery and performance by the Company of
this Agreement and each of the Transaction Documents to which the Company is a
party requires no authorization, consent, approval, license, exemption of or
filing or registration with any Governmental Authority or other Person.
3.02. No Violation. Neither the execution nor the delivery by the Company
of this Agreement or any Transaction Document to which the Company is a party,
nor the consummation or performance by the Company of the transactions
contemplated hereby or thereby will, directly or indirectly, (a) contravene,
conflict with, or result in a violation of any provision of the Organizational
Documents of the Company; (b) contravene, conflict with, constitute a default
(or an event or condition which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination or acceleration of, or
result in the imposition or creation of any Lien under, any agreement or
instrument to which the Company is a party or by which the properties or assets
of the Company are bound; (c) contravene, conflict with, or result in a
violation of, any Law or Order to which the Company, or any of the properties or
assets owned or used by the Company, may be subject; or (d) contravene, conflict
with, or result in a violation of, the terms or requirements of, or give any
Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate
or modify, any licenses, permits, authorizations, approvals, franchises or other
rights held by the Company or that otherwise relate to the business of, or any
of the properties or assets owned or used by, the Company, except, in the case
of clause (b), (c), or (d) above, for any such contraventions, conflicts,
violations, or other occurrences as would not have a Material Adverse Effect.
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3.03. Binding Obligations. Assuming this Agreement and the Transaction
Documents have been duly and validly authorized, executed and delivered by the
parties thereto other than the Company, this Agreement and each of the
Transaction Documents to which the Company is a party are duly authorized,
executed and delivered by the Company and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to the Bankruptcy Exception.
3.04. Securities Laws. Assuming the accuracy of the representations and
warranties of the Purchaser contained in Section 2.03, the issuance of the
Shares pursuant to this Agreement is (a) exempt from the registration and
prospectus delivery requirements of the Securities Act, (b) have been registered
or qualified (or are exempt from registration and qualification) under the
registration permit or qualification requirements of all applicable U.S.
securities Laws, and (c) accomplished in conformity with all other applicable
U.S. federal and state securities Laws.
3.05. Capitalization and Related Matters.
(a) Capitalization. The authorized capital stock of the Company
consists of 25,000,000 shares of the Company's Common Stock, of which, after
giving effect to the transactions contemplated by the Exchange Agreement,
9,620,000 shares will be issued and outstanding. All issued and outstanding
shares of the Company's Common Stock are duly authorized, validly issued, fully
paid and nonassessable, and have not been issued in violation of any preemptive
or similar rights. There are no outstanding options, warrants, purchase
agreements, participation agreements, subscription rights, conversion rights,
exchange rights or other securities or contracts that could require the Company
to issue, sell or otherwise cause to become outstanding any of its authorized
but unissued Equity Securities or any securities convertible into, exchangeable
for or carrying a right or option to purchase Equity Securities or to create,
authorize, issue, sell or otherwise cause to become outstanding any new class of
Equity Securities. Except as provided for herein, there are no outstanding
stockholders' agreements, voting trusts or arrangements, registration rights
agreements, rights of first refusal or other contracts pertaining to the Equity
Securities of the Company. The issuance of all of the shares of Company's Common
Stock described in this Section 3.05 have been in compliance with U.S. federal
and state securities Laws.
(b) No Redemption Requirements. There are no outstanding contractual
obligations (contingent or otherwise) of the Company to retire, repurchase,
redeem or otherwise acquire any outstanding Equity Securities of, or other
ownership interests in, the Company or to provide funds to or make any
investment (in the form of a loan, capital contribution or otherwise) in any
other Person.
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(c) Duly Authorized. The issuance of the Shares has been duly
authorized and, upon delivery to the Purchaser of certificates therefor in
accordance with the terms of this Agreement, the Shares will have been validly
issued and fully paid, and will be nonassessable, have the rights, preferences
and privileges specified, will be free of preemptive rights and will be free and
clear of all Liens and restrictions, other than Liens created by the Purchaser
and restrictions on transfer imposed by this Agreement and the Securities Act.
3.06. Certain Proceedings. There is no pending Proceeding that has been
commenced against the Company and that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any of the
transactions contemplated by this Agreement. To the knowledge of the Company, no
such Proceeding has been threatened.
3.07. Disclosure. Neither the Transaction Documents nor any other
agreement, document, certificate, statement, whether oral or written, furnished
to any of the Purchaser or its counsel by or on behalf of the Company in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances in which made, not misleading. There is no fact within the
knowledge of the Company's executive officers which has not been disclosed
herein or in writing by them to the Purchaser and which materially adversely
affects, or in the future in their opinion may, insofar as they can now foresee,
materially adversely affect the business, operations, properties, assets or
condition, financial or other, of the Company or its Subsidiaries. Without
limiting the foregoing, the Company has no knowledge that there exists, or there
is pending or planned, any patent, invention, device, application or principle
or any statute, rule, Law, regulation, standard or code which would materially
adversely affect the business, operations, affairs or financial condition of the
Company or any Subsidiary of the Company.
ARTICLE IV
[Intentionally Omitted]
ARTICLE V
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligation of the Purchaser to purchase and pay for the Shares at the
Closing, is subject to the following conditions:
5.01. Representations and Warranties. Each of the representations and
warranties of the Company set forth in Article III hereof shall be true,
accurate and correct on the date hereof.
5.02. Documentation at Closing. The Purchaser shall have received, prior
to or at the Closing, all of the following materials, each in form and substance
satisfactory to the Purchaser and its counsel, if any, and each of the following
events shall have occurred, or each of the following documents shall have been
delivered or otherwise have been made available, prior to or simultaneous with
the Closing:
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(a) Copies of (1) the Articles of Incorporation of the Company, as
amended or restated to date, together with such evidence as may be available of
the filing thereof; (2) the resolutions of the Board of Directors providing for
the approval of this Agreement, the issuance of the Shares, and all other
agreements or matters contemplated hereby or executed in connection herewith;
and (3) the By-laws of the Company, all of which shall have been certified by
the Secretary of the Company, as of the date of the Closing, to be true,
complete and correct; and certified copies of all documents evidencing other
necessary corporate or other action and governmental approvals, if any, required
to be obtained at or prior to the Closing with respect to this Agreement and the
issuance of the Shares.
(b) The Exchange Agreement shall be consummated in accordance with
its terms without amendment or other change and all conditions thereto have been
satisfied and not waived.
(c) The Company shall have delivered the other documents,
instruments or certificates to be delivered pursuant to this Agreement by the
Company or any of its officers, the incumbency of such officers, and the true
specimen signatures of such officers.
(d) A certificate of the President of the Company, dated the date of
the Closing, stating that the representations and warranties of the Company
contained in Article II hereof and otherwise made by the Company in writing in
connection with the transactions contemplated hereby are true and correct as of
the time of the Closing and that all obligations and covenants in this Agreement
required to be performed prior to or on the date of the Closing have been
performed as of the time of the Closing.
(e) The Company shall have obtained all consents or waivers
necessary to be obtained at or prior to the Closing to execute and deliver this
Agreement and the agreements and instruments executed and delivered by the
Company in connection herewith, to issue the Shares and to carry out the
transactions contemplated hereby and thereby, and such consents and waivers
shall be in full force and effect at the Closing. All corporate and other action
and governmental filings necessary to effectuate the terms of this Agreement and
the other agreements and instruments executed and delivered by the Company in
connection herewith and the issuance of the Shares shall have been made or
taken.
ARTICLE VI
RIGHT OF FIRST REFUSAL
6.01. Right of First Refusal. Before the Company shall issue, sell or
exchange, agree or obligate itself to issue, sell or exchange, or reserve or set
aside for issuance, sale or exchange , any (i) shares of Common Stock, (ii) any
other Equity Security of the Company, including without limitation, shares of
any series of the Company's class of preferred stock (iii) any convertible debt
security of the Company, including without limitation, any debt security which
by its terms is convertible into or exchangeable for any Equity Security of the
Company, or (iv) any security of the Company that is a combination of debt and
equity (the "Offered Securities"), the Company shall, in each case, first offer
to sell such Offered Securities to the Purchaser at a price and on such other
terms as shall have been specified by the Company in writing delivered to the
Purchaser (in each case, the "Offer") (which price and terms shall, unless
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otherwise consented to by the Purchaser in writing, be a price and on terms of a
bona fide third party offer (the "Third Party Offer") obtained by the Company),
which Offer by its terms shall remain open and irrevocable for a period of
twenty (20) days from the transmission of the Offer by the Company.
6.02. Notice of Acceptance. Notice of the Purchaser's intention to accept,
in whole or in part, any Offer made pursuant to Section 6.01 shall be evidenced
by a writing, signed by the Purchaser and delivered to the Company prior to the
end of the 20-day period of such Offer, setting forth the amount of such
Securities that the Purchaser elects to purchase (the "Notice of Acceptance").
6.03. Conditions to Acceptances and Purchase.
(a) Permitted Sales of Refused Securities. In the event that a
Notice of Acceptance is not given in respect of all the Offered Securities, the
Company shall have one hundred thirty five (135) days from the end of said
20-day period to sell any such Offered Securities as to which a Notice of
Acceptance has not been given by the Purchaser (the "Refused Securities") to the
Person or Persons specified in the Third Party Offer, but only for an amount and
kind (or the cash equivalent thereof) of consideration and otherwise in all
respects upon the terms and conditions, including, without limitation, price and
interest rates, which are no more favorable, in the aggregate, to such other
Person or Persons or less favorable to the Company (as determined in good faith
by the Board of Directors) than those set forth in the Third Party Offer.
(b) Reduction in Amount of Offered Securities. In the event the
Company shall propose to sell less than all of the Refused Securities (any such
sale to be in the manner and on the terms specified in Section 6.03(a) above),
then the Purchaser may reduce the number of Offered Securities specified in its
Notice of Acceptance accordingly. In the event that the Purchaser so elects to
reduce the number or amount of Offered Securities specified in its Notice of
Acceptance, the Company may not sell or otherwise dispose of more than the
reduced amount of the Offered Securities until such securities have again been
offered to the Purchaser in accordance with Section 6.01.
(c) Closing. At the closing of the sale to such other Person or
Persons of all or less than all of the Refused Securities, which closing shall
include payment of the purchase price therefor as set forth in the Offer, the
Purchaser shall purchase from the Company, and the Company shall sell to the
Purchaser, the number of Offered Securities specified in the Notice of
Acceptance, as reduced pursuant to Section 6.03(b) if the Purchaser has so
elected, upon the terms and conditions specified in the Offer, including,
without limitation, payment in full for such Offered Securities. The purchase by
the Purchaser of any Offered Securities is subject in all cases to the
preparation, execution and delivery by the Company and the Purchaser of a
purchase agreement relating to such Offered Securities in form and substance as
offered to the purchaser or proposed purchaser of the Offered Securities who are
not the Purchaser.
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6.04. Further Sale. In each case, any Offered Securities not purchased by
the Purchaser or other Person or Persons in accordance with Section 6.03 may not
be sold or otherwise disposed of until they are again offered to the Purchaser
under the procedures specified in Section 6.01, 6.02 and 6.03.
6.05. Exceptions. The rights of the Purchaser under this Article VI shall
not apply to:
(a) A reservation or issuance of shares pursuant to a Company stock option
plan;
(b) The issuance of shares in connection with the purchase by the Company
of the stock or assets of, or the merger or consolidation with, another Person
not otherwise formed for the purpose of evading the provisions of Section 6.01);
(c) Common Stock issued as a stock dividend to holders of Common Stock or
upon any subdivision or combination of shares of Common Stock; or
(d) the Shares or the shares of Common Stock to be issued pursuant to the
Exchange Agreement.
ARTICLE VII
INDEMNIFICATION; REMEDIES
7.01. Survival. All representations, warranties, including those
incorporated by reference, together with the Schedules thereto, and covenants,
and obligations in this Agreement shall survive the Closing and expire one year
from the date hereof (the "Survival Period").
7.02. Indemnification by the Company. From and after the Closing until (1)
the expiration of the Survival Period, or (2) with respect to a specific claim
made by the Purchaser against the Company prior to the expiration of the
Survival Period, until a court of competent jurisdiction renders a final
nonappealable decision (or appeals of a decision are not taken within the time
period permitted for filing same) (the "Claims Period"), the Company shall
indemnify and hold harmless the Purchaser from and against any liabilities,
loss, claims, damages (excluding consequential, punitive and other similar
damages), fines, penalties, expenses (including costs of investigation and
defense and reasonable attorneys' fees) or diminution of value (collectively,
"Damages") arising, directly or indirectly, from or in connection with:
(i) any misrepresentation or breach of any warranty made by the
Company in this Agreement or in any certificate delivered by the Company
pursuant to this Agreement; or
(ii) any breach by the Company of any covenant or obligation of the
Company in this Agreement required to be performed by the Company on or prior to
the Closing.
7.03. Limitations on Amount. Notwithstanding anything to the contrary
contained herein, the maximum amount which the Purchaser may recover from the
Company for a breach of any representation, warranty, covenant or obligation
under this Agreement required to be performed by the Company on or prior to
Closing shall not exceed in the aggregate the amounts actually paid by the
Purchaser for the Shares pursuant to the terms of this Agreement.
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ARTICLE VIII
MISCELLANEOUS
8.01. No Waiver: Cumulative Remedies. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
Law.
8.02. Amendments. Waivers and Consents. Any provision in the Agreement to
the contrary notwithstanding, and except as hereinafter provided, changes in,
termination or amendments of or additions to this Agreement may be made, and
compliance with any covenant or provision set forth herein may be omitted or
waived, if the Company (i) shall obtain consent thereto in writing from the
holder or holders of at least a majority in interest of the Shares and (ii)
shall deliver copies of such consent in writing to any holders who did not
execute such consent; provided that no consents shall be effective to reduce the
percentage in interest of the Shares the consent of the holders of which is
required under this Section 8.02. Any waiver or consent may be given subject to
satisfaction of conditions stated therein and any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
8.03. Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), or (c) when received
by the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by written notice to the other parties):
If to the Company: with a copy to:
--------------------------------------------- Xxxxxx Xxxxxx Xxxxxxxx LLP
c/o Pearl Consulting (Private) Limited 000 Xxxxxxx Xxxxxx
Xxxxx 0, Xxxxxx Xxxxx Xxxxxxx Trust Complex USA
X-0/0, Xxxx Xxxx Xxxx Xxx Xxxx, XX 00000
Islamabad, Pakistan
Attention: Xxxxxx Xxxxxxx, President and Attention: Xxxx X. Xxxxxxx, Esq.
Chief Executive Officer Telephone No.: 000-000-0000
Telephone No. +92 -51-2875737 Facsimile No.: 000-000-0000
Facsimile No. x00-00-0000000
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If to the Purchaser, to the address set forth in the first paragraph of this
Agreement.
8.04. Expenses. Each party to this Agreement will bear its respective
expenses incurred in connection with the preparation, execution and performance
of this Agreement and the transactions contemplated by this Agreement, including
all fees and expenses of agents, representatives, counsel and accountants.
8.05. Effectiveness: Binding Effect: Assignment. This Agreement shall be
binding upon and inure to the benefit of the Company, the Purchaser and the
respective successors and assigns; provided, that, the Company may not assign
any of its rights or obligations under this Agreement without the prior written
consent of Purchaser. The Purchaser may assign all or any part of its rights and
obligations hereunder to any Person who acquires the Shares. Any such assignment
shall operate to release the Purchaser from its liabilities and obligations
under this Agreement with respect to the Shares, as applicable, so sold or
assigned. A person to whom all or a part of the Purchaser's rights are so
assigned, whether by the Purchaser or by a subsequent person, may, if so agreed
to by the Purchaser, become a party to this Agreement, entitled to those rights
and benefits set forth herein applicable to the Purchaser or such Shares and
shall acquire the Shares subject to the representations and warranties of the
Purchaser set forth in Section 2.04, and subject to any restrictions on transfer
of Shares under applicable securities Laws. The foregoing is in addition to, and
not in limitation of; all other rights, powers and privileges of the Purchaser.
8.06. Prior Agreements. The Transaction Documents executed and delivered
in connection herewith constitute the entire agreement among the parties hereto
and supersede any prior understandings or agreements concerning the subject
matter hereof.
8.07. Severability. The provisions of the Transaction Documents are
severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of a provision
contained therein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of such Transaction
Document and the terms of the Shares shall be reformed and construed as if such
invalid or illegal or unenforceable provision, or part of a provision, had never
been contained herein, and such provisions or part reformed so that it would be
valid, legal and enforceable to the maximum extent possible.
8.08. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal Laws of the State of New York, and without giving
effect to choice of laws provisions.
8.09. JURISDICTION; SERVICE; WAIVERS. ANY ACTION OR PROCEEDING IN
CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT IN A COURT OF RECORD OF THE STATE
OF NEW YORK IN THE COUNTY OF NEW YORK. THE PARTIES TO THIS AGREEMENT HEREBY
CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS OF THE STATE OF NEW YORK,
AND SERVICE OF PROCESS MAY BE MADE UPON THE PARTIES TO THIS AGREEMENT BY MAILING
A COPY OF THE SUMMONS AND ANY COMPLAINT TO SUCH PERSON, BY REGISTERED OR
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CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS TO BE USED FOR THE
GIVING OF NOTICES UNDER THIS AGREEMENT. BY ACCEPTANCE HEREOF, THE PARTIES HERETO
EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OR
MAINTAINING OF ANY SUCH ACTION OR PROCEEDING IN SUCH JURISDICTION.
8.10. Headings. Article, section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
8.11. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.12. Further Assurances. From and after the date of this Agreement, upon
the request of the Purchaser or the Company, the Company and the Purchaser shall
execute and deliver such instruments, documents and other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of the Transaction Documents and the Shares.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed and delivered this Share
Exchange Agreement as of the date first written above.
AVEROX INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Xxxxxx Xxxxxxx
President and Chief Executive Officer
HALO INVESTMENTS LTD.
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: Authorized Signatory
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Schedule 2.03
NON US PERSON REPRESENTATIONS
1. At the time of (a) the offer by the Company and (b) the acceptance of
the offer by the Purchaser, of the Shares, the Purchaser was outside the United
States.
2. No offer to acquire the Shares or otherwise to participate in the
transactions contemplated by this Agreement was made to the Purchaser or its
representatives inside the United States.
3. The Purchaser is not purchasing the Shares for the account or benefit
of any U.S. Person, or with a view towards distribution to any U.S. Person, in
violation of the registration requirements of the Securities Act.
4. The Purchaser will make all subsequent offers and sales of the Shares
either (x) outside of the United States in compliance with Regulation S; (y)
pursuant to a registration under the Securities Act; or (z) pursuant to an
available exemption from registration under the Securities Act. Specifically,
the Purchaser will not resell the Shares to any U.S. Person or within the United
States prior to the expiration of a period commencing on the Closing Date and
ending on the date that is one year thereafter (the "Distribution Compliance
Period"), except pursuant to registration under the Securities Act or an
exemption from registration under the Securities Act.
5. The Purchaser is acquiring the Shares for the Purchaser's own account,
for investment and not for distribution or resale to others.
6. The Purchaser has no present plan or intention to sell the Shares in
the United States or to a U.S. Person at any predetermined time, has made no
predetermined arrangements to sell the Shares and is not acting as a Distributor
of such securities.
7. Neither the Purchaser, its affiliates nor any Person acting on the
Purchaser's behalf, has entered into, has the intention of entering into, or
will enter into any put option, short position or other similar instrument or
position in the United States with respect to the Shares at any time after the
Closing Date through the Distribution Compliance Period except in compliance
with the Securities Act.
8. The Purchaser is not acquiring the Shares in a transaction (or an
element of a series of transactions) that is part of any plan or scheme to evade
the registration provisions of the Securities Act.
9. The Purchaser understands the various risks of an investment in the
Shares and can afford to bear such risks for an indefinite period of time,
including, without limitation, the risk of losing its entire investment in the
Shares.
10. The Purchaser has had access to the Company's publicly filed reports
with the SEC.
11. The Purchaser has been furnished during the course of the transactions
contemplated by this Agreement with all other public information regarding the
Company that the Purchaser has requested and all such public information is
sufficient for the Purchaser to evaluate the risks of investing in the Shares.
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12. The Purchaser is not relying on any representations and warranties
concerning the Company made by the Company or any officer, employee or agent of
the Company, other than those contained in this Agreement.
13. The Purchaser understands and acknowledges that the Company is under
no obligation to register the Shares for sale under the Securities Act.
14. The Purchaser represents that the address furnished by the Purchaser
in this Agreement is its principal business address if it is a corporation or
other entity.
15. The Purchaser understands and acknowledges that the Shares have not
been recommended by any federal or state securities commission or regulatory
authority, that the foregoing authorities have not confirmed the accuracy or
determined the adequacy of any information concerning the Company that has been
supplied to the Purchaser and that any representation to the contrary is a
criminal offense.
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