PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made as of the 29th day of
November, 2006 by and between Woize International, Ltd., a Nevada corporation
(the "Company"), and each of the purchasers listed on Exhibit A attached hereto
(collectively, the "Purchasers" and individually, a "Purchaser").
RECITALS
A. The Company and the Purchasers are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the U.S.
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended, and/or Regulation S promulgated under the Securities Act of 1933, as
amended ("Regulation S"); and
B. The Company desires to issue and sell to the Purchasers, and the
Purchasers desire to purchase from the Company, up to 11,000,000 units (each, a
"Unit"), each Unit consisting of one share of common stock, par value $0.001 per
share, of the Company (the "Common Stock"), and a one half of one five-year
warrant to purchase one share of Common Stock, on the terms and subject to the
conditions set forth in this Agreement.
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere in
this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly through one or more intermediaries Controls, is
controlled by, or is under common control with, such Person.
"Business Day" means a day, other than a Saturday or Sunday, on which banks
in New York City are open for the general transaction of business.
"Company's Knowledge" means the actual knowledge of the executive officers
(as defined in Rule 405 under the 0000 Xxx) of the Company, after due inquiry.
"Confidential Information" means trade secrets, confidential information
and know-how (including but not limited to ideas, formulae, compositions,
processes, procedures and techniques, research and development information,
computer program code, performance specifications, support documentation,
drawings, specifications, designs, business and marketing plans, and customer
and supplier lists and related information).
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"Control" (including the terms "controlling", "controlled by" or "under
common control with") means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Intellectual Property" means all of the following: (i) patents, patent
applications, patent disclosures and inventions (whether or not patentable and
whether or not reduced to practice); (ii) trademarks, service marks, trade
dress, trade names, corporate names, logos, slogans and Internet domain names,
together with all goodwill associated with each of the foregoing; (iii)
copyrights and copyrightable works; (iv) registrations, applications and
renewals for any of the foregoing; and (v) proprietary computer software
(including but not limited to data, data bases and documentation).
"Material Adverse Effect" means a material adverse effect on (i) the
assets, liabilities, results of operations, condition (financial or otherwise),
business, or prospects of the Company and its Subsidiaries taken as a whole, or
(ii) the ability of the Company to perform its obligations under the Agreement.
"Person" means an individual, corporation, partnership, limited liability
company, trust, business trust, association, joint stock company, joint venture,
sole proprietorship, unincorporated organization, governmental authority or any
other form of entity not specifically listed herein.
"Per Unit Price" means $0.05.
"Purchase Price" means Five Hundred and Fifty Thousand ($550,000) Dollars.
"SEC Filings" has the meaning set forth in Section 4.6.
"Units" means the shares of Common Stock and Warrants being purchased by
the Purchaser hereunder.
"U.S. Person" as defined in Section 902(k) of the 1933 Act.
"1933 Act" means the Securities Act of 1933, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, or any
successor statute, and the rules and regulations promulgated thereunder.
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2. Purchase and Sale of the Shares and Warrants.
2.1 Authorization. The Company's Board of Directors has authorized the
issuance and sale, pursuant to the terms and conditions of this Agreement, of up
to 10,000,000 Units, consisting of up to 10,000,000 shares of Common Stock (the
"Purchased Shares") and five-year warrants to purchase up to 5,000,000 shares,
substantially in the form attached hereto as Exhibit B. Each whole warrant
included in the Units shall be exercisable to purchase one share of Common Stock
at $0.40 per share (the "Purchased Warrants" and together with the Purchased
Shares, the "Purchased Securities").
2.2 Agreement to Purchase and Sell Securities. Subject to the terms and
conditions of this Agreement, on the Closing Date as defined in Section 3 below,
each Purchaser severally agrees to purchase, and the Company agrees to sell and
issue to each Purchaser, that number of Units set forth on such Purchaser's
signature page. The purchase price of each Unit (the "Per Unit Price") shall be
$0.05.
2.3 Use of Proceeds. The Company intends to apply the net proceeds from the
sale of the Units for working capital and general corporate purposes, as well as
for strategic purposes in connection with selected acquisitions that may be
considered in the future to expand its product and service offerings.
2.4 Obligations Several Not Joint. The obligations of each Purchaser under
this Agreement are several and not joint with the obligations of any other
Purchaser, and no Purchaser shall be responsible in any way for the performance
of the obligations of any other Purchaser under this Agreement. Nothing
contained herein, and no action taken by any Purchaser pursuant hereto, shall be
deemed to constitute the Purchasers as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Purchasers
are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by this Agreement. Each Purchaser shall be
entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
3. Closing. The closing (the "Closing") of the purchase and sale of the
Units shall take place at the Company's offices on ________, 2006 (the "Closing
Date"), or at such other location and on such other date as the Company and the
Purchaser shall mutually agree. At the Closing, the Company shall, against
delivery of payment for the Shares by wire transfer of immediately available
funds in accordance with the Company's instructions authorize its transfer agent
to issue to the Purchaser one or more stock certificates (the "Certificates")
registered in the name of the Purchaser (or in such nominee name(s) as
designated by such Purchaser.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser that:
4. 1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite corporate power
and authority to carry on its business as now conducted and to own its
properties. The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property makes such qualification or
leasing necessary unless the failure to so qualify has not and could not
reasonably be expected to have a Material Adverse Effect.
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4.2 Authorization. The Company has full power and authority and has taken
all requisite action on the part of the Company, its officers, directors and
stockholders necessary for (i) the authorization, execution and delivery of the
Agreement, (ii) authorization of the performance of all obligations of the
Company hereunder or thereunder, and (iii) the authorization, issuance (or
reservation for issuance) and delivery of the Shares. The Agreement constitute
the legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability, relating to or affecting creditors' rights generally.
4.3 Capitalization.
The authorized capital stock of the Company consists of 150,000,000 shares
of Common Stock, par value $.001 and 1,000,000 shares of Preferred Stock, par
value $0.01 of which __________ shares of Common Stock and 0 shares of Preferred
Stock are issued and outstanding. As of the date hereof and except as disclosed
in the Company's SEC filings, 0 shares of our common stock were subject to
outstanding options to purchase our common stock, and 641,024 shares of our
common stock were subject to outstanding warrants to purchase our common stock.
All of the issued and outstanding shares of the Company's capital stock have
been duly authorized and validly issued and are fully paid, nonassessable and
free of pre-emptive rights and were issued in full compliance with applicable
state and federal securities law and any rights of third parties. Except as
disclosed herein and as described in the Company's SEC Filings, no Person is
entitled to pre-emptive or similar statutory or contractual rights with respect
to any securities of the Company. Except as disclosed herein and as described in
the Company's SEC Filings, there are no outstanding warrants, options,
convertible securities or other rights, agreements or arrangements of any
character under which the Company or any of its Subsidiaries is or may be
obligated to issue any equity securities of any kind and except as contemplated
by this Agreement, neither the Company nor any of its Subsidiaries is currently
in negotiations for the issuance of any equity securities of any kind. Except as
described in the Company's SEC Filings and except for the Registration Rights
Agreement, there are no voting agreements, buy-sell agreements, option or right
of first purchase agreements or other agreements of any kind among the Company
and any of the security holders of the Company relating to the securities of the
Company held by them.
The issuance and sale of the Units hereunder will not obligate the Company
to issue shares of Common Stock or other securities to any other Person (other
than the Purchaser) and will not result in the adjustment of the exercise,
conversion, exchange or reset price of any outstanding security.
The Company does not have outstanding stockholder purchase rights or
"poison pill" or any similar arrangement in effect giving any Person the right
to purchase any equity interest in the Company upon the occurrence of certain
events.
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4.4 Valid Issuance. The Purchased Shares have been duly and validly
authorized and, when issued and paid for pursuant to this Agreement, will be
validly issued, fully paid and nonassessable, and shall be free and clear of all
encumbrances and restrictions (other than those created by the Purchaser),
except for restrictions on transfer set forth in the Agreement or imposed by
applicable securities laws.
The Purchased Warrants will be, upon payment therefor by the Purchasers in
accordance with this Agreement, duly authorized and validly issued, free from
all taxes, liens, claims, encumbrances with respect to the issuance of such
Purchased Warrants and will not be subject to any pre-emptive rights or similar
rights.
The issuance of the shares of Common Stock issued or issuable from time to
time upon the exercise of the Purchased Warrants (the "Underlying Shares") will
be, and at all times prior to such exercise, will have been, duly authorized,
duly reserved for issuance upon such exercise and payment of the exercise price
of the Purchased Warrants, and will be, upon such exercise and payment, validly
issued, fully paid and non-assessable free from all taxes, liens, claim,
encumbrances with respect to the issuance of such shares and will not be subject
to any pre-emptive rights or similar rights.
4.5 Consents. The execution, delivery and performance by the Company of the
Agreement and the offer, issuance and sale of the Units require no consent of,
action by or in respect of, or filing with, any Person, governmental body,
agency, or official other than filings that have been made pursuant to
applicable state securities laws and post-sale filings pursuant to applicable
state and federal securities laws which the Company undertakes to file within
the applicable time periods. Subject to the accuracy of the representations and
warranties of each Purchaser set forth in Section 5 hereof, the Company has
taken all action necessary to exempt (i) the issuance and sale of the Shares
from the provisions of any shareholder rights plan or other "poison pill"
arrangement, any anti-takeover, business combination or control share law or
statute binding on the Company or to which the Company or any of its assets and
properties may be subject and any provision of the Company's Certificate of
Incorporation or By-laws that is or could reasonably be expected to become
applicable to the Purchaser s a result of the transactions contemplated hereby,
including without limitation, the issuance of the Shares and the ownership,
disposition or voting of the Shares by the Purchaser or the exercise of any
right granted to the Purchaser pursuant to this Agreement.
4.6 Delivery of SEC Filings; Business. The Company has made available to
the Purchaser through the XXXXX system, true and complete copies of the
Company's most recent Annual Report on Form 10-KSB for the fiscal year ended
March 31, 2006 (the "10-KSB"), and all other reports filed by the Company
pursuant to the 1934 Act since the filing of the 10-KSB and prior to the date
hereof (collectively, the "SEC Filings"). The SEC Filings are the only filings
required of the Company pursuant to the 1934 Act for such period. The Company is
engaged in all material respects only in the business described in the SEC
Filings and the SEC Filings contain a complete and accurate description in all
material respects of the business of the Company, taken as a whole.
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4.7 No Material Adverse Change. Since March 31, 2006, except as identified
and described in the SEC Filings, there has not been:
(i) any change in the consolidated assets, liabilities, financial
condition or operating results of the Company from that reflected in the
financial statements included in the 10-KSB, except for changes in the ordinary
course of business which have not and could not reasonably be expected to have a
Material Adverse Effect, individually or in the aggregate;
(ii) any declaration or payment of any dividend, or any authorization or
payment of any distribution, on any of the capital stock of the Company, or any
redemption or repurchase of any securities of the Company;
(iii) any material damage, destruction or loss, whether or not covered
by insurance to any assets or properties of the Company or its Subsidiaries;
(iv) any waiver, not in the ordinary course of business, by the Company
of a material right or of a material debt owed to it;
(v) any satisfaction or discharge of any lien, claim or encumbrance or
payment of any obligation by the Company, except in the ordinary course of
business and which is not material to the assets, properties, financial
condition, operating results or business of the Company and its Subsidiaries
taken as a whole (as such business is presently conducted and as it is proposed
to be conducted);
(vi) any change or amendment to the Company's Certificate of
Incorporation or by-laws, or material change to any material contract or
arrangement by which the Company is bound or to which any of its assets or
properties is subject;
(vii) any material labor difficulties or labor union organizing
activities with respect to employees of the Company;
(viii) any material transaction entered into by the Company other than
in the ordinary course of business;
(ix) the loss of the services of any key employee, or material change in
the composition or duties of the senior management of the Company;
(x) the loss or threatened loss of any customer which has had or could
reasonably be expected to have a Material Adverse Effect; or
(xi) any other event or condition of any character that has had or could
reasonably be expected to have a Material Adverse Effect.
4.8 SEC Filings. At the time of filing thereof, the SEC Filings complied as
to form in all material respects with the requirements of the 1934 Act and did
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading.
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4.9 No Conflict, Breach, Violation or Default. The execution, delivery and
performance of the Agreement by the Company and the issuance and sale of the
Shares will not conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under (i) the Company's
Certificate of Incorporation or the Company's Bylaws, both as in effect on the
date hereof (true and complete copies of which have been made available to the
Purchaser through the XXXXX system), or (ii)(a) any statute, rule, regulation or
order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any of its assets or properties, or (b)
any agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of its assets or properties is subject.
4.10 Tax Matters. The Company has timely prepared and filed all tax returns
required to have been filed by the Company with all appropriate governmental
agencies and timely paid all taxes shown thereon or otherwise owed by it. The
charges, accruals and reserves on the books of the Company in respect of taxes
for all fiscal periods are adequate in all material respects, and there are no
material unpaid assessments against the Company nor, to the Company's Knowledge,
any basis for the assessment of any additional taxes, penalties or interest for
any fiscal period or audits by any federal, state or local taxing authority
except for any assessment which is not material to the Company. All taxes and
other assessments and levies that the Company is required to withhold or to
collect for payment have been duly withheld and collected and paid to the proper
governmental entity or third party when due. There are no tax liens or claims
pending or, to the Company's Knowledge, threatened against the Company or any
its assets or property. Except as disclosed in the SEC Filings, there are no
outstanding tax sharing agreements or other such arrangements between the
Company and any other corporation or entity. 4.11 Title to Properties. Except as
disclosed in the SEC Filings, the Company has good and marketable title to all
real properties and all other properties and assets owned by it, in each case
free from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or currently planned to be
made thereof by them; and except as disclosed in the SEC Filings, the Company
holds any leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or
currently planned to be made thereof by them.
4.12 Certificates, Authorities and Permits. The Company possess adequate
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by it, and the Company
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if determined
adversely to the Company, could reasonably be expected to have a Material
Adverse Effect, individually or in the aggregate.
4.13 No Labor Disputes. No material labor dispute with the employees of the
Company exists or, to the Company's Knowledge, is imminent.
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4.14 Intellectual Property.
(a) All Intellectual Property of the Company is currently in compliance
with all legal requirements (including timely filings, proofs and payments of
fees) and is valid and enforceable. No Intellectual Property of the Company
which is necessary for the conduct of Company's business as currently conducted
or as currently proposed to be conducted has been or is now involved in any
cancellation, dispute or litigation, and, to the Company's Knowledge, no such
action is threatened. No patent of the Company has been or is now involved in
any interference, reissue, re-examination or opposition proceeding.
(b) All of the licenses and sublicenses and consent, royalty or other
agreements concerning Intellectual Property which are necessary for the conduct
of the Company's and each of its Subsidiaries' respective businesses as
currently conducted or as currently proposed to be conducted to which the
Company is a party or by which any of its assets are bound (other than generally
commercially available, non-custom, off-the-shelf software application programs
having a retail acquisition price of less than $10,000 per license)
(collectively, "License Agreements") are valid and binding obligations of the
Company or its Subsidiaries that are parties thereto and, to the Company's
Knowledge, the other parties thereto, enforceable in accordance with their
terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting the enforcement of creditors' rights generally, and
there exists no event or condition which will result in a material violation or
breach of or constitute (with or without due notice or lapse of time or both) a
default by the Company or any of its Subsidiaries under any such License
Agreement.
(c) The Company owns or has the valid right to use all of the Intellectual
Property that is necessary for the conduct of the Company's business as
currently conducted or as currently proposed to be conducted and for the
ownership, maintenance and operation of the Company's properties and assets,
free and clear of all liens, encumbrances, adverse claims or obligations to
license all such owned Intellectual Property and Confidential Information, other
than licenses entered into in the ordinary course of the Company's business. The
Company has a valid and enforceable right to use all third party Intellectual
Property and Confidential Information used or held for use in the business of
the Company.
(d) The conduct of the Company's business as currently conducted does not
infringe or otherwise impair or conflict with (collectively, "Infringe") any
Intellectual Property rights of any third party or any confidentiality
obligation owed to a third party, and, to the Company's Knowledge, the
Intellectual Property and Confidential Information of the Company which are
necessary for the conduct of Company's business as currently conducted or as
currently proposed to be conducted are not being Infringed by any third party.
There is no litigation or order pending or outstanding or, to the Company's
Knowledge, threatened or imminent, that seeks to limit or challenge or that
concerns the ownership, use, validity or enforceability of any Intellectual
Property or Confidential Information of the Company and the Company's use of any
Intellectual Property or Confidential Information owned by a third party, and,
to the Company's Knowledge, there is no valid basis for the same.
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(e) The consummation of the transactions contemplated hereby and by the
other Agreement will not result in the alteration, loss, impairment of or
restriction on the Company's ownership or right to use any of the Intellectual
Property or Confidential Information which is necessary for the conduct of
Company's business as currently conducted or as currently proposed to be
conducted.
(f) The Company has taken reasonable steps to protect the Company's rights
in their Intellectual Property and Confidential Information. Each employee,
consultant and contractor who has had access to Confidential Information which
is necessary for the conduct of Company's business as currently conducted or as
currently proposed to be conducted has executed an agreement to maintain the
confidentiality of such Confidential Information and has executed appropriate
agreements that are substantially consistent with the Company's standard forms
thereof. Except under confidentiality obligations, there has been no material
disclosure of any of the Company's Confidential Information to any third party.
4.15 Environmental Matters. The Company is not in violation of any statute,
rule, regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "Environmental Laws"), owns or operates any real property
contaminated with any substance that is subject to any Environmental Laws, is
liable for any off-site disposal or contamination pursuant to any Environmental
Laws, and is subject to any claim relating to any Environmental Laws, which
violation, contamination, liability or claim has had or could reasonably be
expected to have a Material Adverse Effect, individually or in the aggregate;
and there is no pending or, to the Company's Knowledge, threatened investigation
that might lead to such a claim.
4.16 Litigation. Except as described in the SEC Filings, there are no
pending actions, suits or proceedings against or affecting the Company, its
Subsidiaries or any of its or their properties; and to the Company's Knowledge,
no such actions, suits or proceedings are threatened or contemplated.
4.17 Financial Statements. The financial statements included in each SEC
Filing present fairly, in all material respects, the consolidated financial
position of the Company as of the dates shown and its consolidated results of
operations and cash flows for the periods shown, and such financial statements
have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis ("GAAP") (except as may be
disclosed therein or in the notes thereto, and, in the case of quarterly
financial statements, as permitted by Form 10-QSB under the 1934 Act). Except as
set forth in the financial statements of the Company included in the SEC Filings
filed prior to the date hereof, neither the Company has incurred any
liabilities, contingent or otherwise, except those incurred in the ordinary
course of business, consistent (as to amount and nature) with past practices
since the date of such financial statements, none of which, individually or in
the aggregate, have had or could reasonably be expected to have a Material
Adverse Effect.
4.18 Insurance Coverage. The Company maintains in full force and effect
insurance coverage that is customary for comparably situated companies for the
business being conducted and properties owned or leased by the Company, and the
Company reasonably believes such insurance coverage to be adequate against all
liabilities, claims and risks against which it is customary for comparably
situated companies to insure.
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4.19 Brokers and Finders. No Person will have, as a result of the
transactions contemplated by the Agreement, any valid right, interest or claim
against or upon the Company, or an Purchaser for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of the Company.
4.20 No Directed Selling Efforts or General Solicitation. Neither the
Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation D) in
connection with the offer or sale of any of the Shares.
4.21 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 of any Company security or solicited any offers to buy any
security, under circumstances that would adversely affect reliance by the
Company on Section 4(2) for the exemption from registration for the transactions
contemplated hereby or would require registration of the Shares under the 1933
Act.
4.22 Private Placement. The offer and sale of the Shares to the Purchaser
as contemplated hereby is exempt from the registration requirements of the 1933
Act.
4.23 Questionable Payments. Neither the Company nor any of its Subsidiaries
nor, to the Company's Knowledge, any of their respective current or former
stockholders, directors, officers, employees, agents or other Persons acting on
behalf of the Company, has on behalf of the Company or in connection with its
businesses: (a) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity; (b)
made any direct or indirect unlawful payments to any governmental officials or
employees from corporate funds; (c) established or maintained any unlawful or
unrecorded fund of corporate monies or other assets; (d) made any false or
fictitious entries on the books and records of the Company; or (e) made any
unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful
payment of any nature.
4.24 Internal Controls. The Company is in material compliance with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 currently applicable to the
Company. The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company has established disclosure controls and
procedures (as defined in 1934 Act Rules 13a-14 and 15d-14) for the Company and
designed such disclosure controls and procedures to ensure that material
information relating to the Company, including the Subsidiaries, is made known
to the certifying officers by others within those entities, particularly during
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the period in which the Company's most recently filed period report under the
1934 Act, as the case may be, is being prepared. The Company's certifying
officers have evaluated the effectiveness of the Company's controls and
procedures as of a date within 90 days prior to the filing date of the most
recently filed periodic report under the 1934 Act (such date, the "Evaluation
Date"). The Company presented in its most recently filed periodic report under
the 1934 Act the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the
Evaluation Date. Since the Evaluation Date, there have been no significant
changes in the Company's internal controls (as such term is defined in Item
307(b) of Regulation S-K) or, to the Company's Knowledge, in other factors that
could significantly affect the Company's internal controls. The Company
maintains and will continue to maintain a standard system of accounting
established and administered in accordance with GAAP and the applicable
requirements of the 1934 Act.
4.25 Listing. The Common Stock is quoted on the Over the Counter Bulletin
Board (the "OTCBB"). The Company has not received any oral or written notice
that its Common Stock is not eligible nor will become ineligible for quotation
on the OTCBB nor that its Common Stock does not meet all requirements for the
continuation of such quotation, and the Company satisfies, and as of the Closing
Date the Company will satisfy, all the requirements for the continued quotation
of its common stock on the OTCBB.
4.26 Disclosures. Neither the Company nor any Person acting on its behalf
has provided the Purchaser or this agents or counsel with any information that
constitutes or might constitute material, non-public information. The written
materials delivered to the Purchaser in connection with the transactions
contemplated by the Agreement do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
5. Representations and Warranties of the Purchaser. Each Purchaser hereby
represents and warrants to the Company, severally and not jointly, and agrees
that:
5.1 Organization and Existence. Such Purchaser is a validly existing
corporation, limited partnership or limited liability company and has all
requisite corporate, partnership or limited liability company power and
authority to invest in the Shares pursuant to this Agreement. In addition to the
foregoing, to the extent such Purchaser is not incorporated or organized in the
United States, such Purchaser hereby certifies that it is not a U.S. Person, and
is not acquiring the securities for the account or benefit of any U.S. Person.
5.2 Authorization. The execution, delivery and performance by such
Purchaser of the Agreement to which such Purchaser is a party have been duly
authorized and will each constitute the valid and legally binding obligation of
such Purchaser, enforceable against such Purchaser in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability, relating
to or affecting creditors' rights generally.
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5.3 Purchase Entirely for Own Account. The shares of Common Stock to be
received by such Purchaser hereunder will be acquired for such Purchaser's own
account, not as nominee or agent, and not with a view to the resale or
distribution of any part thereof in violation of the 1933 Act, and such
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the same in violation of the 1933 Act without prejudice,
however, to such Purchaser's right at all times to sell or otherwise dispose of
all or any part of such Shares in compliance with applicable federal and state
securities laws. Nothing contained herein shall be deemed a representation or
warranty by such Purchaser to hold the Shares for any period of time. Such
Purchaser is not a broker dealer registered with the SEC under the 1934 or an
entity engaged in a business that would require it to be so registered.
5.4 Investment Experience. Such Purchaser acknowledges that it
can bear the economic risk and complete loss of its investment in the Shares and
has such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment contemplated
hereby.
5.5 Disclosure of Information. Such Purchaser has had an opportunity to
receive all additional information related to the Company requested by it and to
ask questions of and receive answers from the Company regarding the Company, its
business and the terms and conditions of the offering of the Shares. Such
Purchaser acknowledges receipt of copies of the SEC Filings. Neither such
inquiries nor any other due diligence investigation conducted by such Purchaser
shall modify, amend or affect such Purchaser's right to rely on the Company's
representations and warranties contained in this Agreement.
5.6 Restricted Securities. Such Purchaser understands that the Shares are
characterized as "restricted securities" under the U.S. federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the 1933 Act only in
certain limited circumstances. Such Purchaser agrees to resell such Shares only
in accordance with the provisions of Regulation S, pursuant to registration
under the 1933 Act, or pursuant to an available exemption from registration, and
agrees not to engage in hedging transactions with regard to such securities
unless in compliance with the 1933 Act.
5.7 Legends. It is understood that, except as provided below, certificates
evidencing the Shares may bear the following or any similar legend:
(a) "The securities represented hereby may not be transferred unless (i)
such securities have been registered for sale pursuant to the Securities Act of
1933, as amended, (ii) such securities may be sold pursuant to Rule 144(k),
(iii) such Securities may be sold pursuant to Regulation S, or (iv) the Company
12
has received an opinion of counsel reasonably satisfactory to it that such
transfer may lawfully be made without registration under the Securities Act of
1933 or qualification under applicable state securities laws. Hedging
transactions involving the securities represented hereby may not be conducted
unless in compliance with the 0000 Xxx."
(b) If required by the authorities of any state in connection with the
issuance of sale of the Shares, the legend required by such state authority.
5.8 Accredited Purchaser. Such Purchaser is an accredited Purchaser as
defined in Rule 501(a) of Regulation D, as amended, under the 0000 Xxx.
5.9 No General Solicitation. Such Purchaser did not learn of the investment
in the Shares as a result of any public advertising or general solicitation.
5.10 Brokers and Finders. No Person will have, as a result of the
transactions contemplated by the Agreement, any valid right, interest or claim
against or upon the Company, or an Purchaser for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of such Purchaser.
6. Covenants and Agreements of the Company.
Transfers. The Company shall refuse to register any transfer of Securities
originally issued pursuant to Regulation S, where the transfer is not made in
accordance with the provisions of Regulation S (Rule 901 through Rule 905, and
Preliminary Notes), pursuant to registration under the 1933 Act or pursuant to
an available exemption from such registration.
7. Survival and Indemnification.
7.1 Survival. The representations, warranties, covenants and agreements
contained in this Agreement shall survive the Closing of the transactions
contemplated by this Agreement.
7.2 Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Purchaser and its Affiliates and their respective directors,
officers, employees and agents from and against any and all losses, claims,
damages, liabilities and expenses (including without limitation reasonable
attorney fees and disbursements and other expenses incurred in connection with
investigating, preparing or defending any action, claim or proceeding, pending
or threatened and the costs of enforcement thereof) (collectively, "Losses") to
which such Person may become subject as a result of any breach of
representation, warranty, covenant or agreement made by or to be performed on
the part of the Company under the Agreement, and will reimburse any such Person
for all such amounts as they are incurred by such Person.
13
7.3 Indemnification by the Purchaser. Each Purchaser hereby represents and
warrants to the Company, severally and not jointly, and agrees to indemnify and
hold harmless the Company, and its directors, officers, employees, stockholders
and each person who controls the Company (within the meaning of the 0000 Xxx)
from and against any and all losses, claims, damages, liabilities and expenses
(including without limitation reasonable attorney fees and disbursements and
other expenses incurred in connection with investigating, preparing or defending
any action, claim or proceeding, pending or threatened and the costs of
enforcement thereof) (collectively, "Losses") to which such Person may become
subject as a result of any breach of representation, warranty, covenant or
agreement made by or to be performed on the part of the Purchaser under the
Agreement, and will reimburse any such Person for all such amounts as they are
incurred by such Person.
7.4 Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder shall (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided that any person entitled to
indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such person unless (a) the indemnifying party
has agreed to pay such fees or expenses, or (b) the indemnifying party shall
have failed to assume the defense of such claim and employ counsel reasonably
satisfactory to such person or (c) in the reasonable judgment of any such
person, based upon written advice of its counsel, a conflict of interest exists
between such person and the indemnifying party with respect to such claims (in
which case, if the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such person); and provided, further, that the failure of
any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations hereunder, except to the extent that such
failure to give notice shall materially adversely affect the indemnifying party
in the defense of any such claim or litigation. It is understood that the
indemnifying party shall not, in connection with any proceeding in the same
jurisdiction, be liable for fees or expenses of more than one separate firm of
attorneys at any time for all such indemnified parties. No indemnifying party
will, except with the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation.
8. Miscellaneous.
8.1 Successors and Assigns. This Agreement may not be assigned by a party
hereto without the prior written consent of the Company or the Purchaser, as
applicable, provided, however, that an Purchaser may assign its rights and
delegate its duties hereunder in whole or in part to an Affiliate or to a third
party acquiring some or all of its Shares in a private transaction without the
prior written consent of the Company or the other Purchaser, after notice duly
given by such Purchaser to the Company and the other Purchaser, provided, that
no such assignment or obligation shall affect the obligations of such Purchaser
14
hereunder. The provisions of this Agreement shall inure to the benefit of and be
binding upon the respective permitted successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
8.2 Counterparts; Faxes. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may also
be executed via facsimile, which shall be deemed an original.
8.3 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
8.4 Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given as hereinafter described (i) if given by personal delivery, then such
notice shall be deemed given upon such delivery, (ii) if given by telex or
telecopier, then such notice shall be deemed given upon receipt of confirmation
of complete transmittal, (iii) if given by mail, then such notice shall be
deemed given upon the earlier of (A) receipt of such notice by the recipient or
(B) three (3) days after such notice is deposited in first class mail, postage
prepaid, and (iv) if given by an internationally recognized overnight air
courier, then such notice shall be deemed given one business day after delivery
to such carrier. All notices shall be addressed to the party to be notified at
the address as follows, or at such other address as such party may designate by
ten days' advance written notice to the other party:
If to the Company:
Woize International, Ltd
0 Xxxxxxxx
Xxxxxx XXX 0XX
Xxxxxxxxx: Xxxxxx Xxxxxxx
Fax: x00 00 0000 0000
With a copy to:
Sichenzia, Ross, Xxxxxxxx Xxxxxxx LLP
1065 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: x0 (000) 000-0000
If to the Purchaser:
to the addresses set forth on the signature pages hereto.
15
8.5 Expenses. The parties hereto shall pay their own costs and expenses in
connection herewith. In the event that legal proceedings are commenced by any
party to this Agreement against another party to this Agreement in connection
with this Agreement or the other Agreement, the party or parties which do not
prevail in such proceedings shall severally, but not jointly, pay their pro rata
share of the reasonable attorneys' fees and other reasonable out-of-pocket costs
and expenses incurred by the prevailing party in such proceedings.
8.6 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the Purchaser.
8.7 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof but shall be interpreted as if it were written so as
to be enforceable to the maximum extent permitted by applicable law, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which
renders any provision hereof prohibited or unenforceable in any respect.
8.8 Entire Agreement. This Agreement constitutes the entire agreement among
the parties hereof with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof and thereof.
8.9 Further Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
8.10 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by, and construed in accordance with the laws of the
State of Nevada without regard to the choice of law principles thereof. Each of
the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of Nevada for the purpose of any suit, action, proceeding or
judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Service of process in connection with any such suit, action
or proceeding may be served on each party hereto anywhere in the world by the
same methods as are specified for the giving of notices under this Agreement.
Each of the parties hereto irrevocably consents to the jurisdiction of any such
court in any such suit, action or proceeding and to the laying of venue in such
court. Each party hereto irrevocably waives any objection to the laying of venue
of any such suit, action or proceeding brought in such courts and irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO
THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO
THIS WAIVER.
[SIGNATURE PAGE FOLLOWS]
16
IN WITNESS WHEREOF, the parties have executed this Agreement or caused
their duly authorized officers to execute this Agreement as of the date first
above written.
Woize International Ltd
By: Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
[PURCHASER SIGNATURE PAGES TO FOLLOW]
17
SIGNATURE PAGE TO
PURCHASE AGREEMENT
DATED AS OF _____________, 2006
BY AND AMONG
WOIZE INTERNATIONAL LTD.
AND EACH PURCHASER NAMED THEREIN
The undersigned hereby executes and delivers to Woize International, Ltd., the
Purchase Agreement (the "Agreement") to which this signature page is attached,
which Agreement and signature page, together with all counterparts of such
Agreement and signature pages of the other Purchasers named in such Agreement,
shall constitute one and the same document in accordance with the terms of such
Agreement.
Number of Units:________________________________________________
NAME OF PURCHASER
Signature:______________________________________________________
By: ____________________________________________________________
Title: _________________________________________________________
Address: _______________________________________________________
Telephone: _____________________________________________________
Fax: ___________________________________________________________
Tax ID Number:__________________________________________________
18
EXHIBIT A
SCHEDULE OF PURCHASERS
Number of Purchased Number of Purchased
Purchaser Name Shares Warrants Purchase Price
------------------------------------------------- ----------------- ------------------ ---------------
GERMINIS LTD. MAURITIUS 1,000,000 500,000 50,000 USD
Xxxx XXXXX SWITZERLAND 800,000 400,000 40,000 USD
SANIBEL INTERTRADE CORP. BVI 1,000,000 500,000 50,000 USD
WELL ALLIANCE CONSULTANTS LTD Hong Kong 400,000 200,000 20,000 USD
ALTERNATIVE FINANCIAL SERVICES LTD 500,000 250,000 25,000 USD
Xxxxxxxx Islands
FUTUROLOGY LIMITED 2,500,000 1,250,000 125,000 USD
Xxxxxxxx Islands
ANTICIPATED INVESTMENT Co. 2,500,000 1,250,000 125,000 USD
Xxxxxxxx Islands
ALTERNATIVE FINANCIAL SERVICES LTD Xxxxxxxx Islands 2,000,000 1,000,000 100,000 USD
Xxxxxx XXXXXX 300,000 150,000 15,000 USD
Switzerland
Totals: 11,000,000 5,500,000 550,000 USD
