STOCK PURCHASE AGREEMENT
Exhibit
10.5
THIS STOCK PURCHASE AGREEMENT
(this "Agreement") is made effective the 12th day of
August, 2009 by and between, Healthcare Corporation of America, a New Jersey
corporation
located at 00 Xxxxx Xxxxx Xxxxx 000, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Company")
and Xxxx
X. Xxxxxx located at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the
"Purchaser").
RECITALS
WHEREAS,
the Purchaser desires to purchase certain shares of the Company's common
stock
(the "Common Stock") on the terms and conditions set forth herein,
and
WHEREAS,
the Company desires to issue and sell shares of the Common Stock to the
Purchaser
on the terms and conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual
promises
hereinafter set forth, and, other good and valuable consideration, the parties
hereto
agree as
follows:
1. Authorization, Sale and
Issuance of Shares and Options
1.1 Authorization The
Company shall issue 10,000 shares of Common Stock (the "Shares")
no par value per share which shall be approximately equal to .0735% of the
Company's
issued and outstanding common stock, to the Purchaser at a purchase price of
$.50 per share
for an aggregate value of $5,000. The Company shall issue 4,000 Warrants to the
Purchaser
at a purchase price of $.50 per Warrant. The Purchaser may exercise these
Warrants at any time
during the Three Year Period. The Three Year Period is defined as the period
commencing
from the closing date of the filing of Form 15-C-211 with the SEC and ending
three years
from that date. At the end of the Three Year Period, any Warrants that are not
exercised will
expire. These Warrants may not be transferred.
1.2 Sale and Issuance of the
Shares Subject to the terms and conditions hereof the Company
shall sell and Purchaser shall purchase the Shares at the closing, as defined
below.
2. Closing The Closing
date appears on Page 8.
2.1 Delivery Subject to
the terms of this agreement, at Closing the Company will deliver
to the Purchaser the stock certificates representing the 10,000 shares purchased
by the Purchaser
from the Company.
3. Representations and
Warranties of the Company The Company hereby represents and
warrants to the Purchaser as of the Closing date as follows:
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3.1 Organization and Standing:
Articles and Bylaws The Company
is and will be a corporation
duly organized, validly existing, and in good standing under the laws of the
State of New
Jersey and will have all requisite corporate power and authority to carry on its
business as proposed
to be conducted.
3.2 Corporate Power The
Company will have at the Closing, requisite corporate power to
enter into this Agreement and to sell and issue the Shares. This Agreement shall
constitute
a valid and binding obligation of the Company enforceable in accordance with the
respective
terms, except as the same may be limited by bankruptcy, insolvency, moratorium,
and other
laws of general application affecting the enforcement of creditors'
rights.
3.3 Capitalization The
authorized capital stock of the Company is 25,000,000 shares of Common
Stock, no par value per share.
3.4 Authorization
(a) Corporate Action All
corporate action on the part of the Company necessary
for the authorization, execution and delivery of this agreement, the sale and
issuance
of the Shares and the performance of the Company's obligations hereunder will
be taken
prior to the Closing. This Agreement constitutes a valid and legally binding
obligation
of the Company, enforceable in accordance with its terms.
(b) Valid Issuance The
shares, when issued in compliance with the provisions of this
Agreement will be duly authorized, validly issued, fully paid and
non-assessable, and will
be free of any liens or encumbrances caused or created by the Company,
provided,
however, that all such shares may be subject to restrictions on transfer under
state and
federal securities laws as set forth herein, and as they may be required by
future changes
in such laws.
(c) No Preemptive Rights
Except as provided herein, no person currently has or will
have any right of first refusal or any preemptive rights in connection with the
issuance
of the Shares, or any future issuance of securities by the Company.
3.5 Compliance with Other
Instruments. The Company will not be in violation
of any term of the Company's Articles or Bylaws, nor will the Company be in
violation of or in
default in any material respect under the terms of any mortgage, indenture,
contract, agreement,
instrument, judgment or decree, the violation of which would have a material
adverse effect on
the Company as a whole, and to the knowledge of the Company, is not in violation
of any
order, statute, rule, or regulation applicable to the Company, the violation of
which would have a
material adverse effect on the Company. The execution, delivery and performance
of and compliance
with this Agreement and the issuance and sale of the Shares will not (a) result
in any such
violation, or (b) be in conflict with or constitute a default under any such
term, or (c) result in the
creation of any mortgage, pledge, lien, encumbrance, or charge upon any of the
properties or assets
of the Company pursuant to any such term.
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4. Representations and
Warranties of Purchaser and Restrictions on Transfer Imposed by the Securities
Act.
4.1 Representations and
Warranties by the Purchaser. The Purchaser
represents and warrants
to the Company as follows:
(a) Investment Intent This Agreement is
made with the Purchaser in reliance upon the
Purchaser's representations to the Company, evidenced by the Purchaser's
execution
of this Agreement, that the Purchaser is acquiring the Shares for investment for
the
Purchaser's own account, not as nominee or agent, and not with a view to or for
resale in
connection with, any distribution or public offering thereof within the meaning
of the
Securities Act and applicable law. The Purchaser has the full right, power, and
authority
to enter into and perform this agreement.
(b) Shares not Registered
The Purchaser understands and acknowledges that the
offering of the shares pursuant to this Agreement will not be registered under
the Securities
Act on the grounds that the offering and sale of securities contemplated by this
Agreement
are exempt from the registration under the Securities Act pursuant to Section
4(2)
thereof and exempt from registration pursuant to applicable state securities of
blue sky laws,
and that the Company's reliance upon such exemptions is predicated upon such
Purchaser's
representations set forth in this Agreement. The Purchaser acknowledges
and
understands that the Shares must be held indefinitely unless the Shares are
subsequently
registered under the Securities Act and qualified under state law or unless
an
exemption from such registration and such qualification is available. The
Company intends
to file an S-l Registration and will include the Purchaser's shares in said
filing.
(c) No Transfer Except as
set forth in Section 4.4 hereunder, the Purchaser covenants
that in no event will the Purchaser dispose of any of the Shares (other than in
conjunction
with an effective registration statement for the Shares under the Securities
Act in
compliance with Rule 144 promulgated under the Securities Act) unless and until
(i) the
Purchaser shall have notified the Company of the proposed disposition and shall
have
furnished the Company with a statement of the circumstances surrounding the
proposed
disposition, and (ii) if reasonable required by the Company, the Purchaser shall
have
furnished the Company an opinion of counsel satisfactory in form and substance
to the
Company to the effect that (x) such disposition will not require registration
under the Securities
Act, and (y) appropriate action necessary for compliance with the Securities
Act and
any other applicable state, local, or foreign law has been taken, and (iii) the
Company
has consented, which consent shall not be unreasonably withheld.
(d) Knowledge and
Experience The Purchaser (i) has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of
the Purchaser's prospective investment in the Shares; (ii) has the ability to
bear the
economic risks of the Purchaser's prospective investment; (iii) has been
furnished with and
had access to such information as the Purchaser has considered necessary to
make a
determination as to the purchase of the Shares together with such additional
information
a is necessary to verify the accuracy of the information supplied; (iv) has
had
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all
questions which have been asked by the Purchaser satisfactorily answered by the
Company;
(v) has not been offered the Shares by any form of advertisement, article,
notice,
or other communication published in any newspaper, magazine, or similar
medium;
or broadcast over television, or radio; or any seminar or meeting whose
attendees
have been invited by any such medium and (vi) I am an accredited
investor.
(e) Not Organized to
Purchase. The Purchaser has not been organized for the purpose
of purchasing the Shares.
4.2 Legends Each
certificate representing the Shares shall be endorsed with the
following legends:
(a) Federal Legend. The
securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act") and are
"restricted
securities" as defined in rule 144 promulgated under the Act. The securities
may not
be sold or offered for sale or otherwise distributed except (i) in conjunction
with an
effective registration statement for the shares under the Act, of (ii) pursuant
to an opinion
of counsel, satisfactory to the company, that such registration or compliance is
not
required as to said sale, offer, or distribution.
(b) Other Legends. With respect to any
other legends required by applicable law, the
Company need not register a transfer of legend Shares, and may also instruct the
transfer
agent not to register the transfer of the Shares, unless the conditions
specified in such
legend is satisfied.
4.3 Rule 144. The
Purchaser is aware of the adoption of Rule 144 by the SEC promulgated
under the Securities Act, which permits limited public resale of securities
acquired in a
nonpublic offering, subject to the satisfaction of certain conditions. The
Purchaser understands
that under Rule 144, the conditions include, among other things: the
availability of certain,
current public information about the issuer and the resale occurring not less
than six months
after the party has purchased and paid for the securities to be
sold.
5. Conditions to
Closing
5.1 Conditions to the
PARTIES Obligations The
obligations of the PARTIES at the
Closing are subject to the fulfillment to their satisfaction, on or prior to the
Closing, of the following
conditions, any of which may be waived in accordance with the provisions
hereof.
(a) Representations and
Warranties Correct: Performance of Obligations The representations
and warranties made by the PARTIES in Section 3 hereof shall be true
and
correct when made and at the Closing. The PARTIES business and assets shall not
have been
adversely affected in any material way prior to the Closing. The PARTIES
shall
have performed in all material respects all obligations and conditions herein
required
to be performed or observed by it on or prior to closing.
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(b) Consents
and Waivers The Company shall have obtained in a timely fashion
any and all consents, permits, and waivers necessary or appropriate for the
consummation
of the transactions contemplated by this Agreement.
5.2 Conditions to Obligations of
the Company The Company's obligation to sell the
Shares at the closing is subject to the condition that the representations and
warranties made by
the Purchaser in Section 4 hereof shall be true and correct when made, and on
the Closing.
6. Affirmative Covenants of the
Company The Company hereby covenants and
agrees as follows:
6.1 Financial Information
The Company will furnish holders of the Shares with
annual audited financial statements together with such notes and commentary by
the management
as is usual and customary.
7. Registration
Rights
The
Purchaser is not entitled to any registration rights under this Agreement or
associated
with the purchase of the Shares. The purchase shall be subject to such private
restrictions
on the transfer of the Shares as are designated from time to time by the Company
or its
investment bankers or underwriters.
8. Risk
Factors
The
securities offered hereby are speculative in nature and involve a high degree
of risk.
They should be purchased only by purchasers who can afford to lose their entire
investment
in the company, therefore, each prospective investor should, prior to purchase,
consider
very carefully the following risk factors.
8.1 Arbitrary Determination of
Stock Price The price of the Shares has been determined
arbitrarily by the Company. The price should not be regarded as an indication of
any future
market price of the Company's stock and has no relation to the value of the
Company's stock.
8.2
Dependence on Key
Personnel The success of the Company is dependen on the
efforts and abilities of its current officers and directors. If the Company were
to lose th services
of such officers, it business could be materially and adversely
affected.
8.3 Audited Financial
Statements The Company has prepared or will cause to be
prepared current financial statements through the period ending December 31,
2008. The balance
sheet and income statement included therein have been prepared in accordance
with generally
accepted accounting principles and can access these statements on the SEC
website on the Form
S-1 filing.
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8.4 Discretion in Application of
Proceeds In order to accommodate changing circumstances,
the Company's management may allocate the proceeds of this financing in
accordance
with its needs and operation. Subject to the supervision of the Board of
Directors, the
Company's management will be give discretion in the application of the
proceeds.
8.5 Restrictions on
Transfer The Shares may not be resold unless such sale is registered
or qualifies for an exemption from registration under the Act and all applicable
state securities
laws. The Shares should be considered a suitable investment only for purchasers
whose
financial position is such that they will be able to hold the Shares for an
indefinite period. Some
state laws may impose additional restrictions on transfer of the
Shares.
For all
of the reasons state in the risk factors and others, including, without
limitation,
those set forth herein, these shares involve a high degree of risk. Any
purchaser considering
an investment in the Securities offered should be aware of these factors. These
securities
should only be purchased by purchasers who can afford a total loss of their
investment in the
company and have no immediate need for a return of or on their
investment.
9. Officers and
Directors
9.1 Directors of the
Company. Xxxx Xxxxxxxx and Xxxxxx Xxxxxxx are the solemembers
of the Board of Directors of the Company.
9.2 Officers of the
Company Xxxx Xxxxxxxx is Chief Executive Officer an President
and Xxxxxx Xxxxxxx is Secretary and Corporate Counsel and Xxx Xxxxxxxx, Executiv
Vice
President, Administration .
10. Miscellaneous
10.1
Governing Law
This Agreement shall be governed in all respects by the laws of
the State of New Jersey as such laws are applied to agreements between residents
entered into and
to be performed entirely within New Jersey.
10.2
Survival The
representations, warranties, covenants and agreements made herein
shall survive the Closing of the Transactions contemplated hereby,
notwithstanding any investigation
made by the Purchaser. All statements as to factual matters contained in any
certificate
or other instrument delivered by or on behalf of the Company pursuant hereto or
in connection
with the transactions contemplated hereby shall be deemed to be representations
and warranties
by the Company hereunder as of the date of such certificate or
instrument.
10.3
Successors and
Assigns Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns heirs,
executors, and administrators of the parties hereto.
10.4
Entire
Agreement This Agreement and the other documents delivered pursuant
hereto constitute the full and entire understanding and agreement between the
parties
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with
regard to the subjects hereof and thereof and they supersede, merge, and render
void every other
prior written and/or oral understanding or agreement among or between the
parties hereto.
10.5
Notices, Etc. All notices and
other communications required or permitted hereunder
shall be in writing and shall be delivered personally, mailed by first class
mail, postage
prepaid, or delivered by courier or overnight delivery, addressed )a_ if to a
Purchaser, at such
Purchaser's address set forth above, or at such other address as such Purchaser
shall have furnished
to the Company in writing, or (b) if so the Company, at its address set forth at
the beginning
of this Agreement, or at such other address as the Company shall have furnished
to the Purchaser
in writing. Notices that are mailed shall be deemed received five (5) days after
deposit in the
United States mail. Notices sent by courier or overnight delivery shall be
deemed received tow (2)
days after they have been so sent.
10.6
Severability In case any
provision of this Agreement shall be found by a court of
law to be invalid, illegal, or unenforceable, the validity, legality and
enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
10.7
Finder's Price and
Other Fees
(a) The
Company (i) represents and warrants that it has retained no finder or
broker in connection with the transactions contemplated by
this Agreement,
and (ii)
hereby
agrees to indemnify and to hold Purchaser harmless from and against any
liability for
commissions or compensation in the nature of a finder's fee to any broker or
other person or
firm and the costs and expenses of defending against such liability or asserted
liability)
for which the Company, or any of its employees or representatives, is
responsible.
(b) The
Purchaser (i) represents and warrants that the Purchaser has retained
no finder
or broker in connection with the transactions contemplated by this Agreement,
and (ii)
hereby agrees to indemnify and to hold the Company harmless from and against
any
liability for any commission or compensation in the nature of a finder's fee to
any broker or
other person or firm (and the costs and expenses of defending against such
liability
or asserted liability) for which such Purchaser is responsible.
10.8
Expenses the
Company and the Purchaser shall each bear their own expenses
and legal fees in connection with the consummation of this
transaction.
10.9
Titles and
Subtitles The titles of the sections and subsections of this Agreement
are for convenience of reference and are not to be considered in construing this
Agreement.
10.10
Counterparts
This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
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10.11
Delays or Omissions No
delay or omission to exercise any right, power, or remedy
accruing to the Company or to any holder of any securities issued or to be
issued hereunder
shall impair any such right, poser, or remedy of the Company or such holder, nor
shall it be
construed to be a waiver of any breach or default under this Agreement, or an
acquiescence therein,
or of or in any similar breach or default thereafter occurring; not shall any
failure to exercise
any right, power, or remedy or any waiver of any single breach or a waiver of
any other right,
power or remedy or breach or default theretofore or thereafter occurring. An
remedies, either
under this Agreement, or by law or otherwise afforded to the Company or any
holder, shall be
cumulative ant not alternative.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement this 12th day
of August, 2009.
COMPANY;
HEALTHCARE
CORPORATION OF AMERCA
/S/ XXXX
XXXXXXXX
XXXX XXXXXXXX, CEO AND
PRESIDENT
PURCHASER
/S/ XXXX X.
XXXXXX
XXXX X. XXXXXX
