SECURITIES PURCHASE AGREEMENT
EX-10.2 3 exh10-2.htm SECURITIES PURCHASE AGREEMENT - FEBRUARY 18, 2014.
Exhibit 10.2
This SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of February 18, 2014, by and between HDS INTERNATIONAL CORP., a Nevada corporation, with headquarters located at 00 Xxxxxxxx Xxxxxx - Xxxxx 000, Xxxxxxxxxx, XX 00000 (the "Company"), and XXXXX ENTERPRISES, INC., a Delaware corporation, with its address at 0 Xxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxx, XX 00000 (the "Buyer").
WHEREAS:
A. The
Company and the Buyer are executing and delivering this Agreement in
reliance upon the exemption from securities registration afforded by the
rules and regulations as promulgated by the United States Securities
and Exchange Commission (the "SEC") under the Securities Act of 1933, as
amended (the "1933 Act");
B. Buyer
desires to purchase and the Company desires to issue and sell, upon the
terms and conditions set forth in this Agreement an 8% convertible note
of the Company, in the form attached hereto as Exhibit A, in the
aggregate principal amount of $32,500.00 (together with any note(s)
issued in replacement thereof or as a dividend thereon or otherwise with
respect thereto in accordance with the terms thereof, the "Note"),
convertible into shares of common stock, $0.001 par value per share, of
the Company (the "Common Stock"), upon the terms and subject to the
limitations and conditions set forth in such Note.
C.
The Buyer wishes to purchase, upon the terms
and conditions stated in this Agreement, such principal amount of Note
as is set forth immediately below its name on the signature pages
hereto; and
NOW THEREFORE, the Company and the Buyer severally (and not jointly) hereby agree as follows:
1. Purchase and Sale of Note.
a. Purchase of Note.
On the Closing Date (as defined below), the Company shall issue and
sell to the Buyer and the Buyer agrees to purchase from the Company such
principal amount of Note as is set forth immediately below the Buyer's
name on the signature pages hereto.
b. Form of Payment.
On the Closing Date (as defined below), (i) the Buyer shall pay the
purchase price for the Note to be issued and sold to it at the Closing
(as defined below) (the "Purchase Price") by wire transfer of
immediately available funds to the Company, in accordance with the
Company's written wiring instructions, against delivery of the Note in
the principal amount equal to the Purchase Price as is set forth
immediately below the Buyer's name on the signature pages hereto, and
(ii) the Company shall deliver such duly executed Note on behalf of the
Company, to the Buyer, against delivery of such Purchase Price.
c. Closing Date.
Subject to the satisfaction (or written waiver) of the conditions
thereto set forth in Section 6 and Section 7 below, the date and time of
the issuance and sale of the Note pursuant to this Agreement (the
"Closing Date") shall be 12:00 noon, Eastern Standard Time on or about
February 18, 2014, or such other mutually agreed upon time. The closing of
the transactions contemplated by this Agreement (the "Closing") shall
occur on the Closing Date at such location as may be agreed to by the
parties.
2. Buyer's Representations and Warranties. The Buyer represents and warrants to the Company that:
a. Investment Purpose.
As of the date hereof, the Buyer is purchasing the Note and the shares
of Common Stock issuable upon conversion of or otherwise pursuant to the
Note (including, without limitation, such additional shares of Common
Stock, if any, as are issuable (i) on account of interest on the Note or
(ii) as a result of the events described in Sections 1.3 and 1.4(g) of
the Note such shares of Common Stock being collectively referred to
herein as the "Conversion Shares" and, collectively with the Note, the
"Securities") for its own account and not with a present view towards
the public sale or distribution thereof, except pursuant to sales
registered or exempted from registration under the 1933 Act; provided,
however, that by making the representations herein, the Buyer does not
agree to hold any of the Securities for any minimum or other specific
term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption
under the 1933 Act.
b. Accredited Investor Status. The Buyer is an "accredited investor" as that term is defined in Rule 501(a) of Regulation D (an "Accredited Investor").
c. Reliance on Exemptions.
The Buyer understands that the Securities are being offered and sold to
it in reliance upon specific exemptions from the registration
requirements of United States federal and state securities laws and that
the Company is relying upon the truth and accuracy of, and the Buyer's
compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Buyer set forth herein in
order to determine the availability of such exemptions and the
eligibility of the Buyer to acquire the Securities.
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d. Information.
The Buyer and its advisors, if any, have been, and for so long as the
Note remain outstanding will continue to be, furnished with materials
relating to the business, finances and operations of the Company and
materials relating to the offer and sale of the Securities which have
been reasonably requested by the Buyer or its advisors and which have
been publicly disclosed via regulatory filings or press releases.
Electronic delivery of documents is acceptable The Buyer and its
advisors, if any, have been, and for so long as the Note remain
outstanding will continue to be, afforded the opportunity to ask
questions of the Company. Notwithstanding the foregoing, the Company has
not disclosed to the Buyer any material nonpublic information and will
not disclose such information unless such information is disclosed to
the public prior to or promptly following such disclosure to the Buyer.
Neither such inquiries nor any other due diligence investigation
conducted by Buyer or any of its advisors or representatives shall
modify, amend or affect Buyer's right to rely on the Company's
representations and warranties contained in Section 3 below. The Buyer
understands that its investment in the Securities involves a significant
degree of risk. The Buyer is not aware of any facts that may constitute
a breach of any of the Company's representations and warranties made
herein.
e. Governmental Review.
The Buyer understands that no United States federal or state agency or
any other government or governmental agency has passed upon or made any
recommendation or endorsement of the Securities.
f. Transfer or Re-sale.
The Buyer understands that (i) the sale or re-sale of the Securities
has not been and is not being registered under the 1933 Act or any
applicable state securities laws, and the Securities may not be
transferred unless (a) the Securities are sold pursuant to an effective
registration statement under the 1933 Act, (b) the Buyer shall have
delivered to the Company, at the cost of the Buyer, an opinion of
counsel that shall be in form, substance and scope customary for
opinions of counsel in comparable transactions to the effect that the
Securities to be sold or transferred may be sold or transferred pursuant
to an exemption from such registration, which opinion shall be accepted
by the Company, (c) the Securities are sold or transferred to an
"affiliate" (as defined in Rule 144 promulgated under the 1933 Act (or a
successor rule) ("Rule 144")) of the Buyer who agrees to sell or
otherwise transfer the Securities only in accordance with this Section
2(f) and who is an Accredited Investor, (d) the Securities are sold
pursuant to Rule 144, or (e) the Securities are sold pursuant to
Regulation S under the 1933 Act (or a successor rule) ("Regulation S"),
and the Buyer shall have delivered to the Company, at the cost of the
Buyer, an opinion of counsel that shall be in form, substance and scope
customary for opinions of counsel in corporate transactions, which
opinion shall be accepted by the Company; (ii) any sale of such
Securities made in reliance on Rule 144 may be made only in accordance
with the terms of said Rule and further, if said Rule is not applicable,
any re-sale of such Securities under circumstances in which the seller
(or the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the 0000 Xxx) may require
compliance with some other exemption under the 1933 Act or the rules and
regulations of the SEC thereunder; and (iii) neither the Company nor
any other
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person
is under any obligation to register such Securities under the 1933 Act
or any state securities laws or to comply with the terms and conditions
of any exemption thereunder (in each case).
g. Legends.
The Buyer understands that the Note and, until such time as the
Conversion Shares have been registered under the 1933 Act may be sold
pursuant to Rule 144 or Regulation S without any restriction as to the
number of securities as of a particular date that can then be
immediately sold, the Conversion Shares may bear a restrictive legend in
substantially the following form (and a stop-transfer order may be
placed against transfer of the certificates for such Securities):
"NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL
SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT
TO RULE 144 OR RULE 144A UNDER SAID ACT. "
The
legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Security upon which
it is stamped, if, unless otherwise required by applicable state
securities laws, (a) such Security is registered for sale under an
effective registration statement filed under the 1933 Act or otherwise
may be sold pursuant to Rule 144 or Regulation S without any restriction
as to the number of securities as of a particular date that can then be
immediately sold, or (b) such holder provides the Company with an
opinion of counsel, in form, substance and scope customary for opinions
of counsel in comparable transactions, to the effect that a public sale
or transfer of such Security may be made without registration under the
1933 Act, which opinion shall be accepted by the Company so that the
sale or transfer is effected. The Buyer agrees to sell all Securities,
including those represented by a certificate(s) from which the legend
has been removed, in compliance with applicable prospectus delivery
requirements, if any. In the event that the Company does not accept the
opinion of counsel provided by the Buyer with respect to the transfer of
Securities pursuant to an exemption from registration, such as Rule 144
or Regulation S, at the Deadline, it will be considered an Event of
Default pursuant to Section 3.2 of the Note.
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h. Authorization; Enforcement.
This Agreement has been duly and validly authorized. This Agreement has
been duly executed and delivered on behalf of the Buyer, and this
Agreement constitutes a valid and binding agreement of the Buyer
enforceable in accordance with its terms.
i. Residency. The Buyer is a resident of the jurisdiction set forth immediately below the Buyer's name on the signature pages hereto.
3. Representations and Warranties of the Company. The Company represents and warrants to the Buyer that:
a. Organization and Qualification.
The Company and each of its Subsidiaries (as defined below), if any, is
a corporation duly organized and validly existing under the laws of the
jurisdiction in which it is incorporated, with full power and authority
(corporate and other) to own, lease, use and operate its properties and
to carry on its business as and where now owned, leased, used, operated
and conducted. Schedule 3(a) sets forth a list of all of the
Subsidiaries of the Company and the jurisdiction in which each is
incorporated. The Company and each of its Subsidiaries is duly qualified
as a foreign corporation to do business in every jurisdiction in which
its ownership or use of property or the nature of the business conducted
by it makes such qualification necessary except where the failure to be
so qualified would not have a Material Adverse Effect. "Material
Adverse Effect" means any material adverse effect on the business,
operations, assets, financial condition or prospects of the Company or
its Subsidiaries, if any, taken as a whole, or on the transactions
contemplated hereby or by the agreements or instruments to be entered
into in connection herewith. "Subsidiaries" means any corporation or
other organization, whether incorporated or unincorporated, in which the
Company owns, directly or indirectly, any equity or other ownership
interest.
b. Authorization; Enforcement.
(i) The Company has all requisite corporate power and authority to
enter into and perform this Agreement, the Note and to consummate the
transactions contemplated hereby and thereby and to issue the
Securities, in accordance with the terms hereof and thereof, (ii) the
execution and delivery of this Agreement, the Note by the Company and
the consummation by it of the transactions contemplated hereby and
thereby (including without limitation, the issuance of the Note and the
issuance and reservation for issuance of the Conversion Shares issuable
upon conversion or exercise thereof) have been duly authorized by the
Company's Board of Directors and no further consent or authorization of
the Company, its Board of Directors, or its shareholders is required,
(iii) this Agreement has been duly executed and delivered by the Company
by its authorized representative, and such authorized representative is
the true and official representative with authority to sign this
Agreement and the other documents executed in connection herewith and
bind the Company accordingly, and (iv) this Agreement constitutes, and
upon execution and delivery by the Company of the Note, each of such
instruments will constitute, a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms.
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c. Capitalization.
As of the date hereof, the authorized capital stock of the Company
consists of: (i) 2,000,000,000 shares of Common Stock, $0.001 par value
per share, of which 377,203,075 shares are issued and outstanding; (ii)
25,000,000 authorized shares of Series A Preferred Stock, $0.001 par value
per share, of which 7,500,000 shares are issued and outstanding; there are
three prior convertible promissory notes in favor of the Buyer: (1) dated
June 7, 2013 in the amount of $32,500.00 for which 113,750,000 shares of
Common Stock are presently reserved; (2) dated July 15, 2013 in the amount
of $27,500.00 for which 114,250,000 shares of Common Stock are presently
reserved and (3) dated October 4, 2013 in the amount of $32,500.00 for which
406,000,000 shares of Common Stock are presently reserved and 184,500,000
shares shall be reserved for issuance upon conversion of the Note. All of
such outstanding shares of capital stock
are, or upon issuance will be, duly authorized, validly issued, fully
paid and non-assessable. No shares of capital stock of the Company are
subject to preemptive rights or any other similar rights of the
shareholders of the Company or any liens or encumbrances imposed through
the actions or failure to act of the Company. As of the effective date
of this Agreement, (i) there are no outstanding options, warrants,
scrip, rights to subscribe for, puts, calls, rights of first refusal,
agreements, understandings, claims or other commitments or rights of any
character whatsoever relating to, or securities or rights convertible
into or exchangeable for any shares of capital stock of the Company or
any of its Subsidiaries, or arrangements by which the Company or any of
its Subsidiaries is or may become bound to issue additional shares of
capital stock of the Company or any of its Subsidiaries, other than as
set forth in public filings (ii) there are no agreements or arrangements
under which the Company or any of its Subsidiaries is obligated to
register the sale of any of its or their securities under the 1933 Act,
other than as set forth in public filings, and (iii) there are no
anti-dilution or price adjustment provisions contained in any security
issued by the Company (or in any agreement providing rights to security
holders) that will be triggered by the issuance of the Note or the
Conversion Shares. Upon request by the Buyer, the Company shall furnish
to the Buyer true and correct copies of the Company's Certificate of
Incorporation as in effect on the date hereof ("Certificate of
Incorporation"), the Company's By-laws, as in effect on the date hereof
(the "By-laws"), and the terms of all securities convertible into or
exercisable for Common Stock of the Company and the material rights of
the holders thereof in respect thereto as of the Closing Date.
d. Issuance of Shares.
The Conversion Shares are duly authorized and reserved for issuance
and, upon conversion of the Note in accordance with its respective
terms, will be validly issued, fully paid and non-assessable, and free
from all taxes, liens, claims and encumbrances with respect to the issue
thereof and shall not be subject to preemptive rights or other similar
rights of shareholders of the Company and will not impose personal
liability upon the holder thereof.
e. Acknowledgment of Dilution.
The Company understands and acknowledges the potentially dilutive
effect to the Common Stock upon the issuance of the Conversion Shares
upon conversion of the Note. The Company further acknowledges that its
obligation to issue Conversion Shares upon conversion of the Note in
accordance with this
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Agreement,
the Note is absolute and unconditional regardless of the dilutive
effect that such issuance may have on the ownership interests of other
shareholders of the Company.
f. No Conflicts.
The execution, delivery and performance of this Agreement, the Note by
the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance and reservation for issuance of the Conversion Shares) will not
(i) conflict with or result in a violation of any provision of the
Certificate of Incorporation or By-laws, or (ii) violate or conflict
with, or result in a breach of any provision of, or constitute a default
(or an event which with notice or lapse of time or both could become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture, patent,
patent license or instrument to which the Company or any of its
Subsidiaries is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including federal and state
securities laws and regulations and regulations of any self-regulatory
organizations to which the Company or its securities are subject)
applicable to the Company or any of its Subsidiaries or by which any
property or asset of the Company or any of its Subsidiaries is bound or
affected (except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually
or in the aggregate, have a Material Adverse Effect). Neither the
Company nor any of its Subsidiaries is in violation of its Certificate
of Incorporation, By-laws or other organizational documents and neither
the Company nor any of its Subsidiaries is in default (and no event has
occurred which with notice or lapse of time or both could put the
Company or any of its Subsidiaries in default) under, and neither the
Company nor any of its Subsidiaries has taken any action or failed to
take any action that would give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its Subsidiaries is a party or
by which any property or assets of the Company or any of its
Subsidiaries is bound or affected, except for possible defaults as would
not, individually or in the aggregate, have a Material Adverse Effect.
The businesses of the Company and its Subsidiaries, if any, are not
being conducted, and shall not be conducted so long as the Buyer owns
any of the Securities, in violation of any law, ordinance or regulation
of any governmental entity. Except as specifically contemplated by this
Agreement and as required under any applicable federal and state laws,
the Company is not required to obtain any consent, authorization or
order of, or make any filing or registration with, any court,
governmental agency, regulatory agency, self regulatory organization or
stock market or any third party in order for it to execute, deliver or
perform any of its obligations under this Agreement, the Note in
accordance with the terms hereof or thereof or to issue and sell the
Note in accordance with the terms hereof and to issue the Conversion
Shares upon conversion of the Note. All consents, authorizations,
orders, filings and registrations which the Company is required to
obtain pursuant to the preceding sentence have been obtained or effected
on or prior to the date hereof. The Company is not aware of being in
violation of the listing requirements of the exchange on which it is
traded (the "OTCQB") and does not reasonably anticipate that the Common
Stock will be delisted by the OTCQB in the foreseeable future. The
Company and its
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Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing.
g. SEC Documents; Financial Statements.
Other than Form 5, to the best of its knowledge the Company has filed
all reports, schedules, forms, statements and other documents required
to be filed by it with the SEC pursuant to the reporting requirements of
the Securities Exchange Act of 1934, as amended (the "1934 Act") (all
of the foregoing filed prior to the date hereof and all exhibits
included therein and financial statements and schedules thereto and
documents (other than exhibits to such documents) incorporated by
reference therein, being hereinafter referred to herein as the "SEC
Documents"). Upon written request the Company will deliver to the Buyer
true and complete copies of the SEC Documents, except for such exhibits
and incorporated documents. Electronic delivery of documents is
acceptable. As of their respective dates, the SEC Documents complied in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the SEC promulgated thereunder applicable to
the SEC Documents, and to the best of the Company's knowledge, none of
the SEC Documents, at the time they were filed with the SEC, contained
any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. None of the statements made in any such SEC
Documents is, or has been, required to be amended or updated under
applicable law (except for such statements as have been amended or
updated in subsequent filings prior the date hereof). As of their
respective dates, the financial statements of the Company included in
the SEC Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto to the best of the Company's
knowledge,. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles,
consistently applied, during the periods involved and fairly present in
all material respects the consolidated financial position of the Company
and its consolidated Subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). Except as set forth in the financial
statements of the Company included in the SEC Documents, the Company has
no liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to September 30, 2013,
and (ii) obligations under contracts and commitments incurred in the
ordinary course of business and not required under generally accepted
accounting principles to be reflected in such financial statements,
which, individually or in the aggregate, are not material to the
financial condition or operating results of the Company. The Company is
subject to the reporting requirements of the 1934 Act.
h. Absence of Certain Changes.
Since September, 2013, there has been no material adverse change and no
material adverse development in the assets, liabilities, business,
properties, operations, financial condition, results of operations,
prospects or 1934 Act reporting status of the Company or any of its
Subsidiaries.
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i. Absence of Litigation.
There is no action, suit, claim, proceeding, inquiry or investigation
before or by any court, public board, government agency, self-regulatory
organization or body pending or, to the knowledge of the Company or any
of its Subsidiaries, threatened against or affecting the Company or any
of its Subsidiaries, or their officers or directors in their capacity
as such, that could have a Material Adverse Effect. Schedule 3(i)
contains a complete list and summary description of any pending or, to
the knowledge of the Company, threatened proceeding against or affecting
the Company or any of its Subsidiaries, without regard to whether it
would have a Material Adverse Effect. The Company and its Subsidiaries
are unaware of any facts or circumstances which might give rise to any
of the foregoing.
j. Patents, Copyrights, etc.
To the best of its knowledge, the Company and each of its Subsidiaries
owns or possesses the requisite licenses or rights to use all patents,
patent applications, patent rights, inventions, know-how, trade secrets,
trademarks, trademark applications, service marks, service names, trade
names and copyrights ("Intellectual Property") necessary to enable it
to conduct its business as now operated (and, as presently contemplated
to be operated in the future); and there is no claim or action by any
person pertaining to, or proceeding pending, or to the Company's
knowledge threatened, which challenges the right of the Company or of a
Subsidiary with respect to any Intellectual Property necessary to enable
it to conduct its business as now operated (and, as presently
contemplated to be operated in the future). The Company and each of its
Subsidiaries have taken reasonable security measures to protect the
secrecy, confidentiality and value of their Intellectual Property.
k. No Materially Adverse Contracts, Etc.
Neither the Company nor any of its Subsidiaries is subject to any
charter, corporate or other legal restriction, or any judgment, decree,
order, rule or regulation which in the judgment of the Company's
officers has or is expected in the future to have a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries is a party to
any contract or agreement which in the judgment of the Company's
officers has or is expected to have a Material Adverse Effect.
l. [INTENTIONALLY DELETED}.
m. [INTENTIONALLY DELETED].
n. [INTENTIONALLY DELETED].
o. Acknowledgment Regarding Buyer' Purchase of Securities.
The Company acknowledges and agrees that the Buyer is acting solely in
the capacity of arm's length purchasers with respect to this Agreement
and the transactions contemplated hereby. The Company further
acknowledges that the Buyer is not acting as a financial advisor or
fiduciary of the Company (or in any similar capacity) with respect to
this Agreement and the transactions contemplated hereby and any
statement made by the Buyer or any of its respective
9
representatives
or agents in connection with this Agreement and the transactions
contemplated hereby is not advice or a recommendation and is merely
incidental to the Buyer' purchase of the Securities. The Company further
represents to the Buyer that the Company's decision to enter into this
Agreement has been based solely on the independent evaluation of the
Company and its representatives.
p. No Integrated Offering.
Neither the Company, nor any of its affiliates, nor any person acting
on its or their behalf, has directly or indirectly made any offers or
sales in any security or solicited any offers to buy any security under
circumstances that would require registration under the 1933 Act of the
issuance of the Securities to the Buyer. The issuance of the Securities
to the Buyer will not be integrated with any other issuance of the
Company's securities (past, current or future) for purposes of any
shareholder approval provisions applicable to the Company or its
securities.
q. No Brokers.
The Company has taken no action which would give rise to any claim by
any person for brokerage commissions, transaction fees or similar
payments relating to this Agreement or the transactions contemplated
hereby.
r. Permits; Compliance.
To the best of its knowledge, the Company and each of its Subsidiaries
is in possession of all franchises, grants, authorizations, licenses,
permits, easements, variances, exemptions, consents, certificates,
approvals and orders necessary to own, lease and operate its properties
and to carry on its business as it is now being conducted (collectively,
the "Company Permits"), and there is no action pending or, to the
knowledge of the Company, threatened regarding suspension or
cancellation of any of the Company Permits. Neither the Company nor any
of its Subsidiaries is in conflict with, or in default or violation of,
any of the Company Permits, except for any such conflicts, defaults or
violations which, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect. Since September 30, 2013,
neither the Company nor any of its Subsidiaries has received any
notification with respect to possible conflicts, defaults or violations
of applicable laws, except for notices relating to possible conflicts,
defaults or violations, which conflicts, defaults or violations would
not have a Material Adverse Effect.
s. Environmental Matters.
(i) There
are, to the Company's knowledge, with respect to the Company or any of
its Subsidiaries or any predecessor of the Company, no past or present
violations of Environmental Laws (as defined below), releases of any
material into the environment, actions, activities, circumstances,
conditions, events, incidents, or contractual obligations which may give
rise to any common law environmental liability or any liability under
the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 or similar federal, state, local or foreign laws and neither
the Company nor any of its Subsidiaries has received any notice with
respect to any of the foregoing, nor is any action pending or, to the
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Company's
knowledge, threatened in connection with any of the foregoing. The term
"Environmental Laws" means all federal, state, local or foreign laws
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata), including, without limitation, laws
relating to emissions, discharges, releases or threatened releases of
chemicals, pollutants contaminants, or toxic or hazardous substances or
wastes (collectively, "Hazardous Materials") into the environment, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials, as well as all authorizations, codes, decrees, demands or
demand letters, injunctions, judgments, licenses, notices or notice
letters, orders, permits, plans or regulations issued, entered,
promulgated or approved thereunder.
(ii) Other
than those that are or were stored, used or disposed of in compliance
with applicable law, no Hazardous Materials are contained on or about
any real property currently owned, leased or used by the Company or any
of its Subsidiaries, and no Hazardous Materials were released on or
about any real property previously owned, leased or used by the Company
or any of its Subsidiaries during the period the property was owned,
leased or used by the Company or any of its Subsidiaries, except in the
normal course of the Company's or any of its Subsidiaries' business.
(iii) There are no
underground storage tanks on or under any real property owned, leased
or used by the Company or any of its Subsidiaries that are not in
compliance with applicable law.
t. [INTENTIONALLY DELETED].
u. [INTENTIONALLY DELETED].
v. [INTENTIONALLY DELETED].
w. Foreign Corrupt Practices.
Neither the Company, nor any of its Subsidiaries, nor any director,
officer, agent, employee or other person acting on behalf of the Company
or any Subsidiary has, in the course of his actions for, or on behalf
of, the Company, used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expenses relating to political
activity; made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; violated
or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended, or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or
domestic government official or employee.
x. [INTENTIONALLY DELETED}.
11
y. No Investment Company.
The Company is not, and upon the issuance and sale of the Securities as
contemplated by this Agreement will not be an "investment company"
required to be registered under the Investment Company Act of 1940 (an
"Investment Company"). The Company is not controlled by an Investment
Company.
z. Breach of Representations and Warranties by the Company.
If the Company breaches any of the representations or warranties set
forth in this Section 3, and in addition to any other remedies available
to the Buyer pursuant to this Agreement, it will be considered an Event
of default under Section 3.4 of the Note.
4. COVENANTS.
a. Best Efforts.
The parties shall use their best efforts to satisfy timely each of the
conditions described in Section 6 and 7 of this Agreement.
b. Form D; Blue Sky Laws.
The Company agrees to file a Form D with respect to the Securities as
required under Regulation D and to provide a copy thereof to the Buyer
promptly after such filing. The Company shall, on or before the Closing
Date, take such action as the Company shall reasonably determine is
necessary to qualify the Securities for sale to the Buyer at the
applicable closing pursuant to this Agreement under applicable
securities or "blue sky" laws of the states of the United States (or to
obtain an exemption from such qualification), and shall provide evidence
of any such action so taken to the Buyer on or prior to the Closing
Date.
c. Use of Proceeds. The Company shall use the proceeds for general working capital purposes or any other purpose as determined by the Company.
d. Right of First Refusal.
Unless it shall have first delivered to the Buyer, at least twenty four
(24) hours prior to the closing of such Future Offering (as defined
herein), written notice describing the proposed Future Offering,
including the terms and conditions thereof and proposed definitive
documentation to be entered into in connection therewith, and providing
the Buyer an option during the twenty four (24) hour period following
delivery of such notice to purchase the securities being offered in the
Future Offering on the same terms as contemplated by such Future
Offering (the limitations referred to in this sentence and the preceding
sentence are collectively referred to as the "Right of First Refusal")
(and subject to the exceptions described below), the Company will not
conduct any equity financing (including debt with an equity component)
("Future Offerings") during the period beginning on the Closing Date and
ending twelve (12) months following the Closing Date provided, however,
that the Right of First refusal shall apply solely to like transactions
(i.e. convertible debentures) that do not exceed $100,000.00 in the
aggregate. In the event the terms and conditions of a proposed Future
Offering are amended in any respect after delivery of the notice to the
Buyer concerning the proposed Future Offering, the Company shall deliver
a new notice to the Buyer
12
describing
the amended terms and conditions of the proposed Future Offering and
the Buyer thereafter shall have an option during the twenty four (24)
hour period following delivery of such new notice to purchase its pro
rata share of the securities being offered on the same terms as
contemplated by such proposed Future Offering, as amended. The foregoing
sentence shall apply to successive amendments to the terms and
conditions of any proposed Future Offering. The Right of First Refusal
shall not apply to any transaction involving (i) issuances of securities
in a firm commitment underwritten public offering (excluding a
continuous offering pursuant to Rule 415 under the 0000 Xxx) or (ii)
issuances of securities as consideration for a merger, consolidation or
purchase of assets, or in connection with any strategic partnership or
joint venture (the primary purpose of which is not to raise equity
capital), or in connection with the disposition or acquisition of a
business, product or license by the Company. The Right of First Refusal
also shall not apply to the issuance of securities upon exercise or
conversion of the Company's options, warrants or other convertible
securities outstanding as of the date hereof or to the grant of
additional options or warrants, or the issuance of additional
securities, under any compensation plan or Company stock option or
restricted stock
e. Expenses.
At the Closing, the Company shall reimburse Buyer for expenses incurred
by them in connection with the negotiation, preparation, execution,
delivery and performance of this Agreement and the other agreements to
be executed in connection herewith ("Documents"), including, without
limitation, reasonable attorneys' and consultants' fees and expenses,
transfer agent fees, fees for stock quotation services, fees relating to
any amendments or modifications of the Documents or any consents or
waivers of provisions in the Documents, fees for the preparation of
opinions of counsel, escrow fees, and costs of restructuring the
transactions contemplated by the Documents. . The Company's obligation
with respect to this transaction shall not exceed $500.
f. Financial Information.
Upon written request the Company agrees to send or make available the
following reports to the Buyer until the Buyer transfers, assigns, or
sells all of the Securities: (i) within ten (10) days after the filing
with the SEC, a copy of its Annual Report on Form 10-K its Quarterly
Reports on Form 10-Q and any Current Reports on Form 8-K; (ii) within
one (1) day after release, copies of all press releases issued by the
Company or any of its Subsidiaries; and (iii) contemporaneously with the
making available or giving to the shareholders of the Company, copies
of any notices or other information the Company makes available or gives
to such shareholders; provided, however that the Company shall have
five days to cure any breach of this covenant.
g. [INTENTIONALLY DELETED]
h. Listing.
The Company shall continue to ensure that the Common Stock is listed or
quoted upon each national securities exchange or automated quotation
system, if any, upon which shares of Common Stock are currently listed
(subject to official notice of issuance) and, so long as the Buyer owns
any of the Securities,. The Company will obtain and,
13
so
long as the Buyer owns any of the Securities, maintain the listing and
trading of its Common Stock on the OTCQB or comparable replacement
exchange, the pink sheets, the Nasdaq National Market ("Nasdaq"), the
Nasdaq SmallCap Market ("Nasdaq SmallCap"), the New York Stock Exchange
("NYSE"), or the American Stock Exchange ("AMEX") and will comply in all
respects with the Company's reporting, filing and other obligations
under the bylaws or rules of the Financial Industry Regulatory Authority
("FINRA") and such exchanges, as applicable. The Company shall promptly
provide to the Buyer copies of any notices it receives from the OTCQB
and any other exchanges or quotation systems on which the Common Stock
is then listed regarding the continued eligibility of the Common Stock
for listing on such exchanges and quotation systems.
i. Corporate Existence.
So long as the Buyer beneficially owns any Note, the Company shall
maintain its corporate existence and shall not sell all or substantially
all of the Company's assets, except in the event of a merger or
consolidation or sale of all or substantially all of the Company's
assets, where the surviving or successor entity in such transaction (i)
assumes the Company's obligations hereunder and under the agreements and
instruments entered into in connection herewith and (ii) is a publicly
traded corporation whose Common Stock is listed for trading on the
OTCQB, pink sheets, Nasdaq, Nasdaq SmallCap, NYSE or AMEX.
j. No Integration.
The Company shall not make any offers or sales of any security (other
than the Securities) under circumstances that would require registration
of the Securities being offered or sold hereunder under the 1933 Act or
cause the offering of the Securities to be integrated with any other
offering of securities by the Company for the purpose of any stockholder
approval provision applicable to the Company or its securities.
k. Breach of Covenants.
If the Company breaches any of the covenants set forth in this Section
4, and in addition to any other remedies available to the Buyer pursuant
to this Agreement, it will be considered an event of default under
Section 3.4 of the Note.
l. Failure to Comply with the 1934 Act.
So long as the Buyer beneficially owns the Note, the Company shall
comply with the reporting requirements of the 1934 Act, as applicable;
and the Company shall continue to be subject to the reporting
requirements of the 1934 Act, as applicable.
m. Trading Activities.
Neither the Buyer nor its affiliates has an open short position in the
common stock of the Company and the Buyer agree that it shall not, and
that it will cause its affiliates not to, engage in any short sales of
or hedging transactions with respect to the common stock of the Company.
14
5. Transfer Agent Instructions.
The Company shall issue irrevocable instructions to its transfer agent
to issue certificates, registered in the name of the Buyer or its
nominee, for the Conversion Shares in such amounts as specified from
time to time by the Buyer to the Company upon conversion of the Note in
accordance with the terms thereof (the "Irrevocable Transfer Agent
Instructions"). In the event that the Borrower proposes to replace its
transfer agent, the Borrower shall provide, prior to the effective date
of such replacement, a fully executed Irrevocable Transfer Agent
Instructions in a form as initially delivered pursuant to the Purchase
Agreement (including but not limited to the provision to irrevocably
reserve shares of Common Stock in the Reserved Amount) signed by the
successor transfer agent to Borrower and the Borrower. Prior to
registration of the Conversion Shares under the 1933 Act or the date on
which the Conversion Shares may be sold pursuant to Rule 144 without any
restriction as to the number of Securities as of a particular date that
can then be immediately sold, all such certificates shall bear the
restrictive legend specified in Section 2(g) of this Agreement. The
Company warrants that: (i) no instruction other than the Irrevocable
Transfer Agent Instructions referred to in this Section 5, and stop
transfer instructions to give effect to Section 2(f) hereof (in the case
of the Conversion Shares, prior to registration of the Conversion
Shares under the 1933 Act or the date on which the Conversion Shares may
be sold pursuant to Rule 144 without any restriction as to the number
of Securities as of a particular date that can then be immediately
sold), will be given by the Company to its transfer agent and that the
Securities shall otherwise be freely transferable on the books and
records of the Company as and to the extent provided in this Agreement
and the Note; (ii) it will not direct its transfer agent not to transfer
or delay, impair, and/or hinder its transfer agent in transferring (or
issuing)(electronically or in certificated form) any certificate for
Conversion Shares to be issued to the Buyer upon conversion of or
otherwise pursuant to the Note as and when required by the Note and this
Agreement; and (iii) it will not fail to remove (or directs its
transfer agent not to remove or impairs, delays, and/or hinders its
transfer agent from removing) any restrictive legend (or to withdraw any
stop transfer instructions in respect thereof) on any certificate for
any Conversion Shares issued to the Buyer upon conversion of or
otherwise pursuant to the Note as and when required by the Note and this
Agreement. Nothing in this Section shall affect in any way the Buyer's
obligations and agreement set forth in Section 2(g) hereof to comply
with all applicable prospectus delivery requirements, if any, upon
re-sale of the Securities. If the Buyer provides the Company, at the
cost of the Buyer, with (i) an opinion of counsel in form, substance and
scope customary for opinions in comparable transactions, to the effect
that a public sale or transfer of such Securities may be made without
registration under the 1933 Act and such sale or transfer is effected or
(ii) the Buyer provides reasonable assurances that the Securities can
be sold pursuant to Rule 144, the Company shall permit the transfer,
and, in the case of the Conversion Shares, promptly instruct its
transfer agent to issue one or more certificates, free from restrictive
legend, in such name and in such denominations as specified by the
Buyer. The Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the Buyer, by vitiating the
intent and purpose of the transactions contemplated hereby. Provided
that the Company will have a 24 hour window to question the calculations
regarding the amount of shares owed to the Buyer under this agreement,
which will be calculated using a Bloomberg closing bid snapshot,
15
the
Company acknowledges that the remedy at law for a breach of its
obligations under this Section 5 may be inadequate and agrees, in the
event of a breach or threatened breach by the Company of the provisions
of this Section, that the Buyer shall be entitled, in addition to all
other available remedies, to an injunction restraining any breach and
requiring immediate transfer, without the necessity of showing economic
loss and without any bond or other security being required.
6. Conditions to the Company's Obligation to Sell.
The obligation of the Company hereunder to issue and sell the Note to
the Buyer at the Closing is subject to the satisfaction, at or before
the Closing Date of each of the following conditions thereto, provided
that these conditions are for the Company's sole benefit and may be
waived by the Company at any time in its sole discretion:
a. The
Buyer shall have executed this Agreement and delivered the same to the
Company.
b. The
Buyer shall have delivered the Purchase Price in accordance with
Section 1(b) above.
c. The
representations and warranties of the Buyer shall be true and correct
in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and
warranties that speak as of a specific date), and the Buyer shall have
performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Buyer at or prior to the
Closing Date.
d. No
litigation, statute, rule, regulation, executive order, decree, ruling
or injunction shall have been enacted, entered, promulgated or endorsed
by or in any court or governmental authority of competent jurisdiction
or any self-regulatory organization having authority over the matters
contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
7. Conditions to The Buyer's Obligation to Purchase.
The obligation of the Buyer hereunder to purchase the Note at the
Closing is subject to the satisfaction, at or before the Closing Date of
each of the following conditions, provided that these conditions are
for the Buyer's sole benefit and may be waived by the Buyer at any time
in its sole discretion:
a. The
Company shall have executed this Agreement and delivered the same to
the Buyer.
b. The
Company shall have delivered to the Buyer the duly executed Note (in
such denominations as the Buyer shall request) in accordance with
Section 1(b) above.
16
c. The
Irrevocable Transfer Agent Instructions, in form and substance
satisfactory to a majority-in-interest of the Buyer, shall have been
delivered to and acknowledged in writing by the Company's Transfer
Agent.
d. The
representations and warranties of the Company shall be true and correct
in all material respects as of the date when made and as of the Closing
Date as though made at such time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the
Closing Date. The Buyer shall have received a certificate or
certificates, executed by the chief executive officer of the Company,
dated as of the Closing Date, to the foregoing effect and as to such
other matters as may be reasonably requested by the Buyer including, but
not limited to certificates with respect to the Company's Certificate
of Incorporation, By-laws and Board of Directors' resolutions relating
to the transactions contemplated hereby.
e. No
litigation, statute, rule, regulation, executive order, decree, ruling
or injunction shall have been enacted, entered, promulgated or endorsed
by or in any court or governmental authority of competent jurisdiction
or any self-regulatory organization having authority over the matters
contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
f. No
event shall have occurred which could reasonably be expected to have a
Material Adverse Effect on the Company including but not limited to a
change in the 1934 Act reporting status of the Company or the failure of
the Company to be timely in its 1934 Act reporting obligations.
g. The
Common Stock shall be authorized for quotation on the OTCQB and trading
in the Common Stock on the OTCQB shall not have been suspended by the
SEC or the OTCQB.
h. The
Buyer shall have received an officer's certificate described in Section
3(c) above, dated as of the Closing Date.
8. Governing Law; Miscellaneous.
a. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of
conflicts of laws. Any action brought by either party against the other
concerning the transactions contemplated by this Agreement shall be
brought only in the state courts of New
17
York
or in the federal courts located in the state and county of Nassau. The
parties to this Agreement hereby irrevocably waive any objection to
jurisdiction and venue of any action instituted hereunder and shall not
assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens.
The Company and Buyer waive trial by jury. The prevailing party shall
be entitled to recover from the other party its reasonable attorney's
fees and costs. In the event that any provision of this Agreement or any
other agreement delivered in connection herewith is invalid or
unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or
rule of law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of any
other provision of any agreement. Each party hereby irrevocably waives
personal service of process and consents to process being served in any
suit, action or proceeding in connection with this Agreement or any
other Transaction Document by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such
party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any other
manner permitted by law.
b. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which shall constitute one
and the same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party.
c. Headings.
The headings of this Agreement are for convenience of reference only
and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability.
In the event that any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or
rule of law. Any provision hereof which may prove invalid or
unenforceable under any law shall not affect the validity or
enforceability of any other provision hereof.
e. Entire Agreement; Amendments.
This Agreement and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein
and therein and, except as specifically set forth herein or therein,
neither the Company nor the Buyer makes any representation, warranty,
covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by an instrument in
writing signed by the majority in interest of the Buyer.
18
f. Notices.
All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) personally served, (ii)
deposited in the mail, registered or certified, return receipt
requested, postage prepaid, (iii) delivered by reputable air courier
service with charges prepaid, or (iv) transmitted by hand delivery,
telegram, or facsimile, addressed as set forth below or to such other
address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or
delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated
below (if delivered on a business day during normal business hours where
such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second
business day following the date of mailing by express courier service,
fully prepaid, addressed to such address, or upon actual receipt of such
mailing, whichever shall first occur. The addresses for such
communications shall be:
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If to the Company, to:
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||
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00 Xxxxxxxx Xxxxxx - Xxxxx 000
|
||
|
Xxxxxxxxxx, XX 00000
|
||
|
Attn: XXXXXX XXXXXXXXXX, Chief Executive Officer/President
|
||
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facsimile:
|
||
|
000-000-0000
|
||
|
|
||
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With a copy by fax only to (which copy shall not constitute notice):
|
||
|
The Law Office of Xxxxxx X. Xxxxxx, P.S.
|
||
|
ATTN: Xxxxxx X. Xxxxxx, Esq.
|
||
|
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
|
||
|
Xxxxxxx, XX 00000
|
||
|
facsimile: 000-000-0000
|
||
|
|
||
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If to the Buyer:
|
||
|
XXXXX ENTERPRISES, INC.
|
||
|
0 Xxxxxx Xx., Xxxxx 000
|
||
|
Xxxxx Xxxx, XX. 00000
|
||
|
Attn: Xxxx Xxxxxx, President
|
||
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facsimile: 000-000-0000
|
||
|
|
||
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With a copy by fax only to (which copy shall not constitute notice):
|
||
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Naidich Wurman Xxxxxxxx & Xxxxx LLP
|
||
|
00 Xxxxxxxxxx Xxxx, Xxxxx 000
|
||
|
Xxxxx Xxxx, XX 00000
|
||
|
Attn: Xxxxxxx X. Xxxxxxx, Esq.
|
||
|
facsimile: 000-000-0000
|
||
19
Each party shall provide notice to the other party of any change in address within 24 hours of such change in address.
g. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties and their successors and assigns. Neither the Company nor the
Buyer shall assign this Agreement or any rights or obligations hereunder
without the prior written consent of the other. Notwithstanding the
foregoing, subject to Section 2(f), the Buyer may assign its rights
hereunder to any person that purchases Securities in a private
transaction from the Buyer or to any of its "affiliates," as that term
is defined under the 1934 Act, without the consent of the Company.
h. Third Party Beneficiaries.
This Agreement is intended for the benefit of the parties hereto and
their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other
person.
i. Survival.
The representations and warranties of the Company and the agreements
and covenants set forth in this Agreement shall survive the closing
hereunder notwithstanding any due diligence investigation conducted by
or on behalf of the Buyer. The Company agrees to indemnify and hold
harmless the Buyer and all their officers, directors, employees and
agents for loss or damage arising as a result of or related to any
breach or alleged breach by the Company of any of its representations,
warranties and covenants set forth in this Agreement or any of its
covenants and obligations under this Agreement.
j. Publicity.
The Company, and the Buyer shall have the right to review a reasonable
period of time before issuance of any press releases, SEC, OTCQB or
FINRA filings, or any other public statements with respect to the
transactions contemplated hereby; provided, however, that the Company
shall be entitled, without the prior approval of the Buyer, to make any
press release or SEC, OTCQB (or other applicable trading market) or
FINRA filings with respect to such transactions as is required by
applicable law and regulations (although the Buyer shall be consulted by
the Company in connection with any such press release prior to its
release and shall be provided with a copy thereof and be given an
opportunity to comment thereon).
k. Further Assurances.
Each party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such
other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
20
l. No Strict Construction.
The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.
m. Remedies.
The Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the Buyer by vitiating the
intent and purpose of the transaction contemplated hereby. Accordingly,
the Company acknowledges that the remedy at law for a breach of its
obligations under this Agreement will be inadequate and agrees, in the
event of a breach or threatened breach by the Company of the provisions
of this Agreement, that the Buyer shall be entitled, in addition to all
other available remedies at law or in equity, and in addition to the
penalties assessable herein, to an injunction or injunctions
restraining, preventing or curing any breach of this Agreement and to
enforce specifically the terms and provisions hereof, without the
necessity of showing economic loss and without any bond or other
security being required.
IN
WITNESS WHEREOF, the undersigned Buyer and the Company have caused this
Agreement to be duly executed as of the date first above written.
By: XXXXXX XXXXXXXXXX
XXXXXX XXXXXXXXXX
Chief Executive Officer/President
XXXXX ENTERPRISES, INC.
By: __________________________
Name: Xxxx Xxxxxx
Title: President
0 Xxxxxx Xx., Xxxxx 000
Xxxxx Xxxx, XX. 00000
AGGREGATE SUBSCRIPTION AMOUNT:
|
Aggregate Principal Amount of Note:
|
$15,500.00
|
|
Aggregate Purchase Price:
|
$15,500.00
|
3938(4) 2-8-14
xxx@xxxxxxxx.xxx
21
