Exhibit 99.1
STOCK PURCHASE AGREEMENT
by and among
POWER DEVELOPMENTS PTY LTD.
and
WE SELL FOR YOU CORP.
and
CERTAIN STOCKHOLDERS LISTED ON EXHIBIT A
As of December 30, 2008
STOCK PURCHASE AGREEMENT, dated as of December 30, 2008 by and
among Power Developments Pty Ltd., an Australian corporation (hereinafter
referred to as the "'Buyer"), We Sell For U Corp., a Florida corporation (the
"Company"), and the stockholders listed on Exhibit A (the "Sellers").
WITNESSETH:
WHEREAS, Buyer desires to purchase (the "Purchase") in the aggregate
13,800,000 shares (the Shares") of common stock, par value $.0001 per share of
the Company (the "Common Stock"), from the Sellers, including 12,000,000 shares
of Common Stock owned by Xxxxxx X. Xxxxxx (the "Principal Seller"), for an
aggregate purchase price of $311,458 and the Sellers desire to sell the Shares
to the Buyer, and/or its designees;
WHEREAS, the Sellers (other than the Principal Seller) have executed
special powers of attorney (the "Powers of Attorney") appointing the Principal
Seller as their attorney in fact with the power to execute this Agreement on
behalf of the Sellers, to deliver the Shares to the Buyer and to receive the
Purchase Price therefore and to take any and all other actions and to execute
any and all other documents and instruments that are necessary or desirable to
carry out the terms of this Agreement;
WHEREAS, the Company is a corporation subject to the reporting
requirements of Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
WHEREAS, the shares of Common Stock are eligible for quotation on the
OTC Bulletin Board (the "OTCBB") under the symbol "WSFU;"
WHEREAS, immediately following the closing of the Purchase, the
outstanding securities of the Company shall be 14,400,000 shares of Common Stock
consisting of (a) 13,800,000 shares of Common Stock owned by the Buyer, and (b)
600,000 shares of Common Stock owned by the Company's other stockholders.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants, representations and warranties contained herein, the parties hereto
do hereby agree as follows:
1. SALE OF SECURITIES, ETC.
1.1 Share Purchase. Subject to the terms and conditions of
this Agreement, at the Closing (as defined in Section 2.1 below) to be held
pursuant to Section 2 below, the Sellers shall sell, assign, transfer, convey
and deliver to Buyer (and/or its designees), and Buyer (and/or its designees)
shall purchase and acquire from the Sellers, good and marketable title to the
Shares, free and clear of all mortgages, liens, encumbrances, claims, equities
and obligations to other persons of every kind and character, except that the
Shares will be "restricted securities" as defined in the Securities Act of 1933,
as amended (the "Securities Act"). The aggregate purchase price for the Shares
shall be $311,458, payable to the Sellers in the amounts set forth on Exhibit A
(the "Purchase Price").
1.2 Post-Closing Capital Structure. Immediately following
the Closing there shall be no outstanding securities of the Company except
14,400,000 shares of Common Stock consisting of (a) 13,800,000 owned by the
Buyer; and (b) 600,000 shares of Common Stock owned by at least 25 other
stockholders of the Company.
2. THE CLOSING
2.1 Place and Time. The closing of the sale and purchase of
the Shares (the "Closing") shall take place at the offices of Xxxxxxxx Xxxxx
LLP, 666 Fifth Avenue, New York, N.Y. 10103 on such date (the "Closing Date")
and time as the parties shall so agree. Except as agreed to by the parties, the
Closing shall occur on or before December 31, 2008.
2.2 Deliveries by the Sellers. At the Closing, the Sellers
shall deliver the following to Buyer:
(a) Certificates representing the 13,800,000 Shares,
duly registered in the name of the Buyer and evidence of the cancellation of the
certificates for the Shares that were previously registered in the names of the
Sellers;
(b) A certificate executed by the Principal Seller,
attesting to (i) the accuracy of the representations and warranties of the
Sellers made in this Agreement, and (ii) acknowledging receipt of the $311,458;
and
(c) The original Powers of Attorney and all other
documents, instruments and writings required (or reasonably requested by the
Buyer and/or its counsel), by this Agreement to be delivered by the Sellers at
the Closing.
2.3 Deliveries by the Company. At the Closing, the Company
shall deliver to the Buyer the following:
(a) A certificate executed by the Company, attesting
to the accuracy of the representations and warranties of the Company made in
this Agreement,
(b) A certificate issued by the Florida Secretary of
State as to the good standing of the Company as of the date of the Closing;
(c) A true and complete copy of the Articles of
Incorporation of the Company as in effect as of the date of the Closing,
certified by the Secretary of State of Florida;
(d) A true and correct copy of the By-Laws (as
amended) of the Company as in effect as of the date of the Closing, certified by
the Secretary of the Company;
(e) Board Resolutions authorizing all transactions
contemplated by this Agreement, including, without limitation with respect to
the appointment of the officers and directors provided for in Section 7.7 below;
and
(f) The Company's original minute books containing
the resolutions and actions by written consent of the directors and stockholders
of the Company and the Company's other original books and records, including the
Company's financial and accounting records (including the Company's general
ledger), all banking records and federal and state tax and other regulatory
filings and filing codes (including SEC XXXXX filing codes) in whatever media
they exist, including paper and electronic media.
(g) Duly executed resignations of all of the
Company's officers and directors.
(h) All other documents, instruments and writings
required by this Agreement to be delivered by the Company at the Closing, all of
the Company's original books of account and record, and any other documents or
records relating to the Company's business reasonably requested by Buyer in
connection with this Agreement.
2.4 Deliveries by Buyer. At the Closing, the Buyer shall
deliver the following to the Sellers and the Company:
(a) The Purchase Price payable by wire transfer to
the account of the Sellers' counsel.
(b) A certificate executed by the Buyer, attesting
to the accuracy of the representations and warranties of Buyer made in this
Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL SELLER AND
THE COMPANY
The Principal Seller and the Company jointly and severally
represent, warrant and covenant to and with Buyer, both as of the date of this
Agreement and as of the date of Closing, as an inducement to Buyer to enter into
this Agreement and to consummate the transaction contemplated hereby as follows:
3.1 Authorization of Agreement. The Company and the Sellers
are fully able, authorized and empowered to execute and deliver this Agreement
and any other agreement or instrument contemplated by this Agreement and to
perform their respective covenants and agreements hereunder and thereunder. This
Agreement and any such other agreement or instrument, upon execution and
delivery by the Sellers and the Company (and assuming due execution and delivery
hereof and thereof by the other parties hereto and thereto), will constitute a
valid and legally binding obligation of the Sellers and the Company, in each
case enforceable against each of them in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws from time to time in effect which
affect creditors' rights generally and by legal and equitable limitations on the
availability of specific performance and other equitable remedies against the
Company and the Sellers under or by virtue of this Agreement or such other
agreement or instrument. Each of the Sellers (other than the Principal Seller)
has executed a Power of Attorney, substantially in the form attached hereto as
Exhibit B and such Powers of Attorney are valid, binding and legally enforceable
obligations of the Sellers that have not been modified or revoked and remain in
full force and effect.
3.2 Ownership of the Shares. The Sellers are the record and
beneficial owner of the Shares. The Sellers hold the Shares free and clear of
any lien, pledge, encumbrance, charge, security interest, claim or right of
another and have the absolute right to sell and transfer the Shares to the Buyer
as provided in this Agreement without the consent of any other person or entity.
Upon transfer of the Shares to Buyer hereunder, Buyer will acquire good and
marketable title to the Shares free and clear of any lien, pledge, encumbrance,
charge, security interest, claim or right of another.
3.3 No Breach. Neither the execution and delivery of this
Agreement nor compliance by the Company and/or the Sellers with any of the
provisions hereof nor the consummation of the transactions and actions
contemplated hereby will:
(a) violate or conflict with any provision of the
Articles of Incorporation or By-Laws of the Company;
(b) violate or, alone or with notice of the passage
of time, result in the material breach or termination of, or otherwise give any
contracting party the right to terminate, or declare a material default under,
the terms of any agreement or other document or undertaking, oral or written to
which the Sellers and/or the Company is a party or by which any of them or any
of their respective properties or assets may be bound;
(c) result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of the
Sellers and/or the Company pursuant to the terms of any such agreement or
instrument;
(d) violate any statute, ordinance, regulation
judgment, order, injunction, decree or award of any court or governmental or
quasi governmental agency against, or binding upon the Sellers and/or the
Company or upon any of their respective properties or assets; or
(e) violate any law or regulation of any
jurisdiction relating to the Sellers and/or the Company or any of their
respective assets or properties.
3.4 Obligations; Authorizations. Neither the Company nor
the Sellers are (i) in violation of any judgment, order, injunction, award or
decree which is binding on any of them or any of their assets, properties,
operations or business which violation, by itself or in conjunction with any
other such violation, would materially and adversely affect the consummation of
the transaction contemplated hereby; or (ii) in violation of any law or
regulation or any other requirement of any governmental body, court or
arbitrator relating to him, her or it, or to his, her or its assets, operations
or businesses which violation, by itself or in conjunction with other violations
of any other law, regulation or other requirement, would materially adversely
affect the consummation of the transaction contemplated hereby.
3.5 Consents. All requisite consents of third parties,
including, but not limited to, governmental or other regulatory agencies,
federal, state or municipal, required to be received by or on the part of the
Company and the Sellers for the execution and delivery of this Agreement and the
performance of their respective obligations hereunder have been obtained and are
in full force and effect. The Company and the Sellers have fully complied with
all conditions of such consents.
3.6 SEC Reports. The Company has filed in a timely manner
with the Securities and Exchange Commission (the "SEC"), all reports required to
be filed and is "current" in its reporting obligations. The Company has
delivered to Buyer a true and correct copy of all filings made by the Company
with the SEC since its inception (collectively, the "SEC Reports"). As of their
respective dates, the SEC Reports comply in all material respects with the
requirements of the Exchange Act and the rules and regulations promulgated
thereunder and none of the SEC Reports contained an untrue statement of a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
3.7 Financial Statements. The financial statements (the
"Financial Statements") of the Company included in the SEC Reports (including in
each case the related notes thereto) (i) are in accordance with the books and
records of the Company, (ii) are correct and complete in all material respects,
(iii) present fairly the financial position and results of operations of the
Company as of the respective dates indicated (subject, in the case of unaudited
statements, to normal, recurring adjustments, none of which were material) and
(iv) have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis ("GAAP").
3.8 Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and has full power and authority to own, lease and operate its
properties and to carry on its business as now being and as heretofore
conducted. The Company is not qualified or licensed to do business as a foreign
corporation in any other jurisdiction and neither the location of its assets nor
the nature of its business requires it to be so qualified.
3.9 Capitalization. The total authorized and issued capital
stock of the Company as of the date of this Agreement is 100,000,000 authorized
and 14,400,000 outstanding. There are no subscriptions, options, warrants,
convertible or exchangeable securities or other rights' agreements or
commitments (oral or otherwise) obligating the Company to issue any shares of
its capital stock or other securities.
3.10 Articles of Incorporation, and By-Laws; Amendment to
Charter Document. Annexed hereto as Exhibit 3.10 is a true and complete copy of
the Articles of Incorporation and By-Laws of the Company as in effect on the
date hereof, certified by the Secretary of the Company in the case of the
By-Laws and by the Secretary of State of the State of Florida in the case of the
Articles of Incorporation.
3.11 Officers and Directors. The Secretary's Certificate
provided therewith identifies all of the current officers and directors of the
Company.
3.12 Liabilities Etc.
(a) The Company has filed all federal, state and
local tax returns which are required to be filed by it, through and including
the date hereof and as of the Closing date, including, but not limited to, its
Federal Income Tax Returns and Florida Franchise Tax Returns and all taxes shown
to be due thereon (together with any applicable penalties and interest) have
been paid. The Company has not incurred any liability for taxes except in the
ordinary course of business. The Company has paid or provided adequate reserves
for all taxes which have become due for all periods prior to the date of this
Agreement or pursuant to any assessments received by it or which the Company is
obligated to withhold from amounts owing to any employee, creditor or other
third party as at or with respect to any period prior to the date of this
Agreement. The federal Income tax Returns of the Company have never been audited
by the Internal Revenue Service. The Company has not waived any statute of
limitations in respect of taxes, nor agreed to any extension of time with
respect to a tax assessment or deficiency.
(b) On the date hereof and as of the Closing date,
there are no liabilities, debts or obligations of the Company, whether accrued,
absolute, contingent or otherwise (the "Liabilities") that are not reflected in
the Financial Statements, except as incurred in the ordinary course of business
and not exceeding $5,000 in the aggregate.
3.13 Adverse Developments. Since December 31, 2007, there
has been no material adverse change in the business, operations or condition
(financial or otherwise) of the Company; nor has there been since such date, any
damage, destruction or loss, whether covered by insurance or not, materially or
adversely affecting the business, properties or operations of the Company.
3.14 Actions and Proceedings. Neither the Sellers nor the
Company is a subject to any outstanding orders, writs, injunctions or decrees of
any court or arbitration tribunal or any governmental department, commission,
board, agency or instrumentality, domestic or foreign, against, involving or
affecting the business, properties or employees of the Company or the Seller'
right to enter into, execute and perform this Agreement (or any of the
transactions contemplated hereby). There are no actions, suits, claims or legal,
administrative or arbitration proceedings or investigations, including any
warranty or product liability claims (whether or not the defense thereof or
liabilities in respect thereof are covered by policies of insurance) relating to
or arising out of the business, properties or employees of the Company pending
or, to the best knowledge of the Company and the Sellers, threatened against or
affecting the Company.
3.15 Compliance with Laws. The Company has complied in all
material respects with all laws, ordinances, regulations and orders applicable
to the conduct of its business, including all laws relating to environmental
matters, employees and working conditions.
3.16 Bank Accounts and Credit Cards. Except as set forth on
Exhibit 3.17 hereto, as of the date hereof, the Company does not have any bank
account, safe deposit box or credit or charge cards.
3.17 Stockholders. Attached hereto as Exhibit 3.18 is a
current stockholder list as provided by the Company's transfer agent.
Immediately following the Closing, the Company shall continue to have at least
25 stockholders other than the Buyer.
3.18 Capitalization; No Preemptive Rights, Etc. As of the
date of this Agreement, the Company has authorized 100,000,000 shares of Common
Stock. All of the issued and outstanding shares of Common Stock are duly
authorized and validly issued and outstanding, fully paid and non-assessable.
There are no pre-emptive rights (or other similar rights, including any rights
of first refusal) outstanding relating to the Shares.
3.19 Subsidiaries. There are no corporations, partnerships
or other business entities controlled by the Company. As used herein,
"controlled by" means (i) the ownership of not less than fifty (50%) percent of
the voting securities or other interests of a corporation, partnership or other
business entity, or (ii) the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a corporation,
partnership or other business entity, whether through the ownership of voting
shares, by contract or otherwise. The Company has not made any investments in,
nor does it own, any of the capital stock of, or any other proprietary interest
in, any other corporation, partnership or other business entity.
3.20 Environmental. As used in this Agreement, the term
"Hazardous Materials" shall mean any waste material which is regulated by any
state or local governmental authority in the states in which the Company
conducts business, or the United States Government, including, but not limited
to, any material or substance which is (i) defined as "hazardous waste,"
"hazardous material," "hazardous substance," "extremely hazardous waste" or
"restricted hazardous waste" under any provision of Florida law, (ii) petroleum,
(iii) asbestos, (iv) designated as a "hazardous substance" pursuant to Section
311 of the Clean Water Act, 33 U.S.C. 1251 et seq. (33 U.S.C. 1321) or listed
pursuant to Section 307 of the Clean Water Act (33 U.S.C. 1317), (v) defined as
a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq. (42 U.S.C. 6901), or (vi) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. 9601 et seq. (42 U.S.C.
9601). The current operations of the Company and its current and, to the best of
its knowledge, its past use comply and then complied in all material respects
with all applicable laws and governmental regulations including all applicable
federal, state and local laws, ordinances, and regulations pertained to air and
water quality. Hazardous Materials, waste, disposal or other environmental
matters, including the Clean Water Act, the Clean Air Act, the Federal Water
Pollution Control Act, the Solid Waste Disposal Act, the Resource Conservation
Recovery Act, and the statutes, rules and regulations and ordinances or the
state, city and country in which the Company's property is located.
3.21 Litigation, Compliance with Law. There are no actions,
suits, proceedings, or governmental investigations (or any investigation of any
self-regulatory organization) relating to the Company or to any of its
properties, assets or businesses pending or, to the best of its knowledge,
threatened, or any order, injunction, award or decree outstanding against the
Company or against or relating to any of its properties, assets or businesses.
The Company is not in violation of any law, regulation, ordinance, order,
injunction, decree, award or other requirements of any governmental body, court
or arbitrator relating to its properties, assets or business.
3.22 Agreements and Obligations; Performance. Other than
pursuant to this Agreement and the agreements and other relationships listed on
Exhibit 3.23 attached hereto, the Company is not a party to, or bound by any:
(i) contract, arrangements, commitment or understanding which involves aggregate
payments or receipts in excess of $1,000; (ii) contractual obligation or
contractual liability of any kind to any Company stockholder; (iii) contract,
arrangement, commitment or understanding with its customers or any officer,
employee, stockholder, director, representative or agent thereof for the
repurchase of products, sharing of fees, the rebating of charges to such
customers, bribes, kickbacks from such customers or other similar arrangements;
(iv) contract for the purchase or sale of any materials, products or supplies
which contain, or which commits or will commit it for a fixed term; (v) contract
of employment with any officer or employee not terminable at will without
penalty or premium or any continuing obligation of liability; (vi) deferred
compensation, bonus or incentive plan or agreement not cancelable at will
without penalty or premium or any continuing obligation or liability: (vii)
management or consulting agreement not terminable at will without penalty or
premium or any continuing obligation or liability; (viii) lease for real or
personal property (including borrowings thereon), license or royalty agreement;
(ix) union or other collective bargaining agreement; (x) agreement, commitment
or understanding relating to the indebtedness for borrowed money; (xi) contract
involving aggregate payments or receipts of $1,000 or more which, by its terms,
requires the consent of any party thereto to the consummation of the
transactions contemplated hereby; (xii) contract containing covenants limiting
the freedom of the Company to engage or compete in any line of business or with
any person in any geographic area; (xiii) contract or opinion relating to the
acquisition or sale of any business; (xiv) voting trust agreement or similar
stockholders' agreement; and/or (xiv) other contract, agreement, commitment or
understanding which materially affects any of its properties, assets or
business, whether directly or indirectly, or which was entered into other than
in the ordinary course of business.
3.23 Permits and Licenses. The Company is in compliance in
all material respects with all requirements, standards and procedures of the
federal, state, local and foreign governmental bodies which issued such permits,
licenses, orders, franchises and approvals.
3.24 Employee Benefit Plans. The Company does not maintain
and is not required to make contributions to any "pension" and "welfare" benefit
plans (within the respective meanings of Sections 4(2) and 4(1) of the Employee
Retirement Income Security Act of 1974, as amended).
3.25 Trading. The shares of Common Stock are quoted on the
OTCBB under the symbol "WSFU." The Company has not received any correspondence
and/or notice (nor has any reason to believe it will in the future receive)
regarding the continued eligibility of the Common Stock to be quoted on the
OTCBB.
3.26 Insurance. The Company has no insurance policies.
The Company does provide health insurance for its sole employee.
3.27 Xxxxxxxx-Xxxxx
The Company (i) makes and keeps accurate books and records and
(ii) maintain and has maintained effective internal control over financial
reporting as defined in Rule 13a-15 under the Securities Exchange Act of 1934,
as mended (the "Exchange Act") and a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorization, (B) transactions
are recorded as necessary to permit preparation of the Company's financial
statements in conformity with accounting principles generally accepted in the
United States and to maintain accountability for its assets, (C) access to the
Company's assets is permitted only in accordance with management's general or
specific authorization and (D) the recorded accountability for the Company's
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15 under the Exchange Act),
(ii) such disclosure controls and procedures are designed to ensure that the
information required to be disclosed by the Company in the reports it will file
or submit under the Exchange Act is accumulated and communicated to management
of the Company, including its principal executive officer and principal
financial officer, as appropriate, to allow timely decisions regarding required
disclosure to be made and (iii) such disclosure controls and procedures are
effective in all material respects to perform the functions for which they were
established.
Since December 31, 2007, (i) the Company has not been advised
of (A) any significant deficiencies in the design or operation of internal
controls that could adversely affect the ability of the Company and each of its
subsidiaries to record, process, summarize and report financial data, or any
material weaknesses in internal controls and (B) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the internal controls of the Company and each of its subsidiaries, and
(ii) since that date, there have been no significant changes in internal
controls or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies and
material weaknesses.
There is and has been no failure on the part of the Company
and any of the Company's directors or officers, in their capacities as such, to
comply with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith.
3.27 Disclosure. Neither this Agreement, nor any
certificate, exhibit, or other written document or statement, furnished to the
Buyer by the Sellers and/or the Company in connection with the transactions
contemplated by this Agreement contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary to be
stated in order to make the statements contained herein or therein not
misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Company and the Sellers,
both as of the date of this Agreement and as of the date of the Closing, as
follows:
4.1 Authorization of Agreement. The Buyer is fully able,
authorized and empowered to execute and deliver this Agreement, and any other
agreement or instrument contemplated by this Agreement, and to perform his, her
or its obligations contemplated hereby and thereby. This Agreement, and any such
other agreement or instrument, upon execution and delivery by Buyer (and
assuming due execution and delivery hereof and thereof by the other parties
hereto and thereto), will constitute the legal, valid and binding obligation of
each of the Buyer, in each case enforceable against each of them in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws from time to
time in effect which affect creditors' rights generally and by legal and
equitable limitations on the availability of specific performance and other
equitable remedies against the Buyer under or by virtue of this Agreement or
such other agreement or instrument.
4.2 No Buyer Defaults. Neither the execution and delivery
of this Agreement, nor the consummation of the transaction contemplated hereby,
will (i) violate, conflict with or result in the breach or termination of, or
otherwise give any other contracting party the right to terminate, or constitute
a default under the terms of, any mortgage, bond, indenture or material
agreement to which the Buyer is a party or by which the Buyer or any of their
property or assets may be bound or materially affected, (ii) violate any
judgment, order, injunction, decree or award of any court, administrative agency
or governmental body against, or binding upon, the Buyer or upon the property of
the Buyer, or (iii) constitute a violation by the Buyer of any applicable law or
regulation of any jurisdiction as such law or regulation relates to Buyer or to
the property of the Buyer.
4.3 No Litigation, Etc. There is no material suit, action,
or legal, administrative, arbitration or other proceeding or governmental
investigation pending or, to Buyer's best knowledge, threatened against,
materially affecting or which will materially affect, the property of the Buyer.
4.4 Investment Intent. The Buyer is acquiring the
securities being purchased pursuant to this Agreement for its own account and
for investment purposes and not with a view to distribution or resale, nor with
the intention of selling, transferring or otherwise disposing of all or any part
of the Shares except in compliance with all applicable provisions of the
Securities Act, the rules and regulations promulgated by the SEC thereunder, and
applicable state securities laws.
4.5 Legend. The Buyer understands that all certificates
representing securities of the Company received by it pursuant to this Agreement
shall bear the following legend, or one substantially similar thereto:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933. The shares have been acquired for
investment and may not be sold, transferred or assigned in the absence of an
effective registration statement for those shares under the Securities Act of
1933, as amended, or an opinion satisfactory to the Company's counsel that
registration is not required under said Act."
5. PRE-CLOSING COVENANTS AND AGREEMENTS OF THE PARTIES.
The Sellers and the Company and the Buyer (as to covenants
they expressly are providing below in this Section 5 hereby covenant and agree
that, from the date hereof and until the Closing:
5.1 Access. The Company (and its subsidiaries) shall afford
to the officers, attorneys, accountants and other authorized representatives of
the Buyer free and full access, during regular business hours and upon
reasonable notice, to the Company's books, records, personnel and properties
(including, without limitation, the work papers prepared by its auditors) so
that the Buyer may have full opportunity to make such review, examination and
investigation as it may desire of the Company's business and affairs. The
Company will cause its employees, accountants and attorneys to cooperate fully
with said review, examination and investigation and to make full disclosure to
the Buyer of all material facts affecting the Company's financial conditions and
business operations.
5.2 Conduct of Business. The Company shall each conduct its
business only in the ordinary and usual course and make no material change
thereto.
5.3 Liabilities. Neither the Company shall incur any
obligation or liability, absolute and continent, except as in the ordinary
course of its business.
5.4 No Breach. Each of the parties hereto will (i) use its
best efforts to assure that all of its respective representations and warrants
contained herein are true in all material respects at and as of the date hereof,
and as of the Closing no breach shall occur with respect to any of the parties'
covenants, representations or warranties contained herein that has not been
cured by the Closing; (ii) not voluntarily take any action or do anything which
will cause a material breach of or default respecting such covenants,
representations or warranties; and (iii) promptly notify the other of any event
or fact which represents a breach or default.
5.5 Other SEC/FINRA Filings. The Company shall file with
the SEC and the FINRA (if required) all required forms and disclosure items in a
timely manner (which forms and disclosure items must be approved by legal
counsel to the Company and the Buyer prior to filing and/or disclosure) required
and/or relating to this Agreement or otherwise.
5.6 Public Announcements. No party hereunder shall, without
the express prior written consent of the Company and the Buyer make any
announcement or otherwise disclose any information regarding this Agreement
and/or the transactions contemplated hereby other than as required by law or
otherwise deemed advisable in counsel's opinion to ensure compliance with public
disclosure requirements under the federal securities laws; provided, however,
that the parties hereto agree that the Company, following the closing of the
Purchase, shall file a Current Report on Form 8-K with the SEC in the period
proscribed by applicable law.
5.7 Brokers. Each of the Company and the Sellers on the one
hand, and the Buyer on the other hand represent and warrant to the other that
neither has employed any broker, finder or similar agent and no person or entity
with which each has had any dealings or communications of any kind is entitled
to any brokerage, finder's or placement fee or any similar compensation in
connection with this Agreement or the transaction contemplated hereby.
5.8 Expenses. Each of the parties hereto agrees to bear its
own expenses in connection with the negotiation, preparation, execution and
delivery of this Agreement and the consummation of the transaction contemplated
hereby.
5.9 Further Assurances. Each of the parties shall execute
such documents or other papers and take such further actions as may be
reasonably required or desirable to carry out the provisions hereof and the
transactions contemplated in this Agreement.
6. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
6.1 Nature of Statements. All statements contained in any
Exhibit, certificate or other instruments delivered by or on behalf of any party
hereto pursuant to this Agreement, shall be deemed representations and
warranties by such party.
6.2 Survival of Representations and Warranties. Regardless
of any investigation at any time made by or on behalf of any party hereto or of
any information any party may have in respect thereof, all covenants,
agreements, representations and warranties made hereunder or pursuant hereto or
in connection with the transaction contemplated hereby shall survive the Closing
and continue in effect through the third anniversary of the Closing except that
the representations and warranties set forth in Section 3.2 (with respect to
environmental law only) shall continue in effect until the expiration of the
applicable statute of limitations, and the agreements of indemnity for claims
set forth in Sections 9 and 10 shall survive the Closing and continue in effect
for the period during which such claims are enforceable.
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE BUYER
The obligations of the Buyer to effectuate the Closing is
subject to the fulfillment, prior to the date of Closing, of each of the
following conditions (any one or more of which may be waived by the Buyer unless
such condition is a requirement of law).
7.1 Representations and Warranties. All representations and
warranties of the Company and the Sellers contained in this Agreement and in any
written statement, Exhibit or other documents delivered pursuant hereto or in
connection with the transactions contemplated hereby shall be true and correct
in all material respects as of the date hereof and as of the Closing Date.
7.2 Covenants. The Company and the Sellers shall have
performed and complied in all material respects with all covenants and other
agreements required by (or contained in) this Agreement to be performed or
complied with or by them prior to or at the Closing Date.
7.3 No Actions. No action, suit, proceeding or
investigation shall have been instituted against the Sellers or the Company, and
be continuing before a court or before or by a governmental body or agency, and
be unresolved, to restrain or to prevent or to obtain damages in respect of, the
carrying out of the transactions contemplated hereby or which might materially
and adversely affect the rights of the Buyer to consummate the transactions
contemplated hereby.
7.4 Approvals. The Sellers and the Company shall have
obtained all approvals and consents to consummate this Agreement and the
transactions to be consummated at or immediately following the Closing, in
accordance with all applicable laws, rules and regulations.
7.5 Due Diligence. The Buyer shall have completed to its
sole satisfaction its due diligence of the Company, the Sellers and all other
items it deems necessary and/or advisable, and shall be satisfied with the
results thereof.
7.6 Closing Documents. The Buyer shall receive all of the
documents (executed where applicable) set forth in Section 2.2 and Section 2.3
of this Agreement, which documents shall be in form and substance reasonably
satisfactory to Buyer and its legal counsel.
7.7 Resignation of Officers and Directors. Effective on the
Closing Date, all officers and directors of the Company shall have resigned as
officers and directors of the Company and they shall have appointed Xx. Xxxxxx
Xxxxxxx as the President, Chief Executive Officer and sole director of the
Company and Mr. Xxxxx Xxx as the Chief Financial Officer and Secretary of the
Company.
7.8 Amendment of By-laws. The By-laws of the Company shall
have been amended prior to the Closing Date to expressly elect that the Company
shall not be subject to Florida Business Corporation Act Section 607.0901
(Affiliated Transactions) and the amendment shall be approved by the vote of the
holders of a majority of the outstanding shares of Common Stock, excluding
shares owned by the Principal Seller.
8. CONDITIONS PRECEDENT TO THE OBLIGATION TO THE COMPANY AND THE
SELLERS TO CLOSE
The obligations of the Company and the Sellers to effectuate
the Closing is subject to the fulfillment, prior to the date of Closing, of each
of the following conditions (any one or more of which may be waived by the Buyer
unless such condition is a requirement of law).
8.1 Representations and Warranties. All representations and
warranties of the Buyer contained in this Agreement and in any written
statement, Exhibit or other documents delivered pursuant hereto or in connection
with the transactions contemplated hereby shall be true and correct in all
material respects as of the date hereof. and as of the Closing Date.
8.2 Covenants. The Buyer shall have performed and complied
in all material respects with all covenants and other agreements required by (or
contained in) this Agreement to be performed or complied with by it prior to or
at the Closing.
8.3 No Actions. No action, suit, proceeding or
investigation shall have been instituted against the Buyer, and be continuing
before a court or before or by a governmental body or agency, and be unresolved,
to restrain or to prevent or to obtain damages in respect of, the carrying out
of the transactions contemplated hereby, or which might materially and adversely
affect the rights of the Sellers and the Company to consummate the transactions
contemplated hereby.
8.4 Approvals. The Buyer shall have obtained all required
consents and approvals to this Agreement and the transactions to be consummated
at or immediately following the Closing, in accordance with all applicable laws,
rules and regulations.
8.5 Closing Documents. The Sellers and/or the Company shall
receive all of the documents set forth in Section 2.4 of this Agreement, which
documents shall be in form and substance reasonably satisfactory to such parties
and their legal counsel.
9. INDEMNIFICATION BY THE COMPANY AND THE PRINCIPAL SELLER
9.1 Claims Against the Company and the Principal Seller.
(a) The Company and the Principal Seller, jointly
and severally, shall indemnify and hold the Buyer harmless from and against any
loss, damage or expense (including reasonable attorneys' fees) caused by or
arising out of any claim made against the Company:
(i) for any broker's or finder's fee or any
similar fee, charge or commission incurred by the Company and/or the Sellers
prior to or in connection with this Agreement or the transaction contemplated
hereby;
(ii) for any foreign, Federal, state or local
tax of any kind arising out of or by reason of the existence or operations of
the Company and/or the Sellers prior to the Closing, including, without
limitation, any payroll taxes owed by the Company on account of compensation
paid to any employee of the Company prior to such date;
(iii) in respect of any salary, bonus, wages or
other compensation of any kind owed by the Company to its employees for services
rendered on or prior to the Closing;
(iv) for any damages to the environment caused
by or arising out of any pollution resulting from or otherwise attributable to
the operation of the business of the Company prior to the Closing;
(v) in respect of any payable of the Company
incurred prior to the Closing;
(vi) in respect of any liability or
indebtedness for borrowed money or otherwise incurred on or before the Closing,
including, without limitation, with respect to the execution and performance of
this Agreement; and
(vii) for expenses required to be borne by the
Company and/or the Sellers under the provisions of this Agreement.
(b) Other Matters. The Company and the Principal
Seller, jointly and severally, shall also indemnify and hold the Buyer harmless
from and against any loss, damage or expense (including reasonable attorneys'
fees) caused by or arising out of (i) any breach or default in the performance
by the Company and the Sellers of any covenant or agreement of the Company and
the Sellers contained in this Agreement, (ii) any breach of warranty or
inaccurate or erroneous representation made by the Company and the Sellers
herein or in any Exhibit, certificate or other instrument delivered by or on
behalf of the Company and the Sellers pursuant hereto, and (iii) any and all
actions, suits, proceedings, claims, demands, judgments, costs and expenses
(including reasonable legal and accounting fees) incident to any of the
foregoing.
10. THE INDEMNIFICATION BY BUYER.
The Buyer shall indemnify and hold harmless the Sellers from
and against all loss, damage or expense (including reasonable attorneys' fees)
caused by or arising out of (i) any breach or default in the performance by the
Buyer of any covenant or agreement of the Buyer contained in this Agreement,
(ii) any breach of warranty or inaccurate or erroneous representation made by
the Buyer herein or in any certificate or other instrument delivered by or on
behalf of the Buyer pursuant hereto and (iii) any and all actions, suits,
proceedings, claims, demands, judgments, costs and expenses (including
reasonable legal and accounting fees) incident to the foregoing.
11. NOTICE AND OPPORTUNITY TO DEFEND
Promptly after the receipt by Buyer or the Company and/or the
Sellers of notice of any action, proceeding, claim or potential claim (any of
which is hereinafter individually referred to as a "Circumstance") which could
give rise to a right to indemnification under this Agreement, such party (the
"Indemnified Party") shall give prompt written notice to the party or parties
who may become obligated to provide indemnification hereunder (the "Indemnifying
Party"). Such notice shall specify in reasonable detail the basis and amount, if
ascertainable, of any claim that would be based upon the Circumstance. The
failure to give such notice promptly shall relieve the Indemnifying Party of its
indemnification obligations under this Agreement, unless the Indemnified Party
establishes that the Indemnifying Party either had knowledge of the Circumstance
or was not prejudiced by the failure to give notice of the Circumstance. The
Indemnifying Party shall have the right, at its option, to compromise or defend
the claim, at its own expense and by its own counsel, and otherwise control any
such matter involving the asserted liability of the Indemnified Party, provided
that any such compromise or control shall be subject to obtaining the prior
written consent of the Indemnified Party which shall not be unreasonably
withheld. An Indemnifying Party shall not be liable for any costs of settlement
incurred without the written consent of the Indemnifying Party. If any
Indemnifying Party undertakes to compromise or defend any asserted liability, it
shall promptly notify the Indemnified Party of its intention to do so, and the
Indemnified Party agrees to cooperate fully with the Indemnifying Party and its
counsel in the compromise of or defense against any such asserted liability. All
costs and expenses incurred in connection with such cooperation shall be borne
by the Indemnifying Party, provided such costs and expenses have been previously
approved by the Indemnifying Party. In any event, the Indemnified Party shall
have the right at its own expense to participate in the defense of an asserted
liability.
12. MISCELLANEOUS
12.1 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, successors and assigns. No assignment of this Agreement or of any rights
hereunder shall relieve the assigning party of any of its obligations or
liabilities hereunder; provided, however, Buyer may assign the securities it
receives pursuant to this Agreement.
12.2 Notices. All notices or other communications required
or permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given if delivered by hand, overnight courier, facsimile
transmission or prepaid cable or telegram and confirmed in writing, or mailed
first class, postage prepaid, by registered or certified mail, return receipt
requested (mailed notices and notices sent by facsimile transmission, cable or
telegram shall be deemed to have been given on the date sent) as follows:
If to the Sellers, to the Principal Seller at the address set
forth on Exhibit A, and if to the Company, as follows:
We Sell For U Corp.
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn. Xxxxxx X. Xxxxxx
With a copy to:
Xxxxxxxxx Xxxxxxxxxx & Beilly LLP
0000 X. X. Xxxxxxxxx Xxxx. Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn. Xxxxx Xxxxxxxxx, Esq.
If to the Buyer, as follows:
Power Developments Pty Ltd.
Xxxxx 0, 000 Xx. Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 0000 Xxxxxxxxx
Attn: Xxxxxx Xxxxxxx
With a copy to:
Xxxxxxxx Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn. Xxxxx Xxxxxxxx, Esq.
or in any case to such other address or addresses as hereafter shall be
furnished as provided in this Section 12.2 by either of the parties hereto to
the other party hereto.
12.3 Waiver: Remedies. No delay on the part of any of the
Sellers, the Company or Buyer in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
the Sellers, the Company or Buyer of any right, power or privilege hereunder
operate as a waiver of any other right, power or privilege hereunder, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise of any other right, power or privilege
hereunder. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies which the parties hereto may otherwise have
at law or in equity.
12.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements or understandings (in writing, oral or
otherwise) of the parties relating thereto.
12.5 Amendment. This Agreement may be modified or amended
only by written agreement of the parties hereto.
12.6 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original but all of
which together shall constitute a single instrument.
12.7 Governing Law. This Agreement shall be governed by and
construed exclusively in accordance with the internal laws of the State of New
York without regard to the conflicts of laws principles thereof. The parties
hereto hereby expressly and irrevocably agree that any suit or proceeding
arising directly and/or indirectly pursuant to, arising out of or under this
Agreement, shall be brought solely and exclusively in a federal or state court
located in the City of New York. By its execution hereof, the parties hereby
expressly covenant and irrevocably submit to the in personam jurisdiction of the
federal and state courts located in the City of New York and agree that any
process in any such action may be served upon any of them personally, or by
certified mail or registered mail upon them or their agent, return receipt
requested, with the same full force and effect as if personally served upon them
in the City of New York. The parties hereto expressly and irrevocably waive any
claim that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of in personam jurisdiction with respect
thereto. In the event of any such action or proceeding, the party prevailing
therein shall be entitled to payment from the other party hereto of its
reasonable counsel fees and disbursements in an amount judicially determined.
12.8 Captions. All Section titles or captions contained in
this Agreement, in any Exhibit referred to herein or in any Exhibit annexed
hereto are for convenience only, shall not be deemed a part of this Agreement
and shall not affect the meaning or interpretation of this Agreement.
12.9 Confidential Information. Each party agrees that such
party and its representatives will hold in strict confidence all information and
documents received from the other parties and, if the transactions herein
contemplated shall not be consummated, each party will continue to hold such
information and documents in strict confidence and will return to such other
party all such documents (including the documents annexed to this Agreement)
then in such receiving party's possession without retaining copies thereof,
provided, however, that each party's obligations under this Section 12.9 to
maintain such confidentiality shall not apply to any information or documents
that are in the public domain at the time furnished by the others or that become
in the public domain thereafter through any means other than as a result of any
act of the receiving party or of its agents, officers, directors or stockholders
which constitutes a breach of this Agreement, or that are required by applicable
law to be disclosed.
13. TERMINATION AND WAIVER.
13.1 Termination. Notwithstanding anything herein or
elsewhere to the contrary; this Agreement may be terminated and the transactions
provided for herein abandoned at any time prior to the Closing as follows:
(a) By mutual written consent of the Buyer, Company
and the Sellers; or
(b) By the Company, the Sellers or the Buyer on
January 31, 2009, if the Closing does not occur prior to such date (unless
extended by the parties or unless the failure to close is the result of the
actions of the Company or the Sellers, in which case, Buyer shall have the
option of terminating this Agreement on such date).
13.2 Waiver. Any condition to the performance of any party
hereto which legally may be waived on or prior to the Closing may be waived at
any time by the party entitled to the benefit thereof by action taken or
authorized by an instrument in writing executed by the relevant party or
parties. The failure of any party at any time or times to require performance of
any provision hereof shall in no manner affect the right of such party at a
later time to enforce the same. No waiver by any party of the breach of any
term, covenant, representation or warranty contained in this Agreement as a
condition to such party's obligations hereunder shall release or affect any
liability resulting from such breach, and no waiver of any nature, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such condition or of any
breach of any other term, covenant, representation or warranty of this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered on the day and year first above written.
WE SELL FOR U CORP.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxx
BUYER:
POWER DEVELOPMENTS PTY LTD.
/s/ Xxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxx Xxxxxxx, Director
SELLERS:
/s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxx, individually and as
attorney-in-fact for the Sellers listed on
Exhibit A
Exhibit A
---------
WE SELL FOR U CORP.
SCHEDULE A
Shares sold to Power Developments Pty Ltd.
12,000,000 from Xxxxxx X. Xxxxxx
1,800,000 24 current shareholders sold 75,000 shares each
================================================================================
13,800,000 shares
Exhibit B
---------
Power of Attorney
SPECIAL POWER OF ATTORNEY
The undersigned, ______________________, residing at
________________________ ________________________________________, constitutes
and appoints Xxxxxx X. Xxxxxx ("Xxxxxx"), the undersigned's true and lawful
attorney-in-fact to:
(1) execute for and on behalf of the undersigned, in the undersigned's
capacity as a shareholder of We Sell For U Corp. (the "Company") a Stock
Purchase Agreement (the "Agreement") between a purchaser to be designated in the
Agreement and the shareholders of the Company as described in the Agreement and
any and all related undertakings, certificates and other documents required or
contemplated by the Agreement;
(2) execute any and all documents and perform any and all acts related
to the disbursal of funds to the stockholders as contemplated by the Agreement;
(3) take any other action of any type whatsoever in connection with
the foregoing which, in the opinion of such attorney-in-fact, may be of benefit
to, in the best interest of, or legally required by, the undersigned, it being
understood that the documents executed by such attorney-in-fact on behalf of the
undersigned pursuant to this Special Power of Attorney shall be in such form and
shall contain such terms and conditions as such attorney-in-fact may approve in
such attorney-in-fact's discretion; and
(4) execute on behalf of the undersigned an amendment to the By-Laws
of the Company negating application of Florida BCA Section 607.0901 regarding
Affiliated Transactions.
The undersigned grants to such attorney-in-fact full power and
authority to do and perform any and every act and thing whatsoever requisite,
necessary or proper to be done in the exercise of any of the rights and powers
granted, as fully to all intents and purposes as the undersigned might or could
do if personally present, with full power of substitution or revocation, hereby
ratifying and confirming all such attorney-in-fact shall lawfully do or cause to
be done by virtue of this power of attorney and the rights and powers herein
granted.
This Special Power of Attorney shall remain in force and effect until
February 28, 2009 with such additional extensions not to exceed a total of sixty
(60) days as determined by Xxxxxx as may be necessary or appropriate in order to
effectuate the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Special Power of
Attorney to be executed this _______________ day of ____________________ 200__.
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Print Name:
-----------------------------------
STATE OF )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this ______________
day of _____________________ 200__ by _________________________________, who is
personally known to me or who has produced _________________________________ as
identification and who did/did not take an oath.
NOTARY PUBLIC:
----------------------------------------------
Print Name:
-----------------------------------
State of at Large (Seal)
-----------------------
My Commission Expires:
------------------------
