PURCHASE AND SALE AGREEMENT
Exhibit
10.1
This
purchase
and sale agreement (this
“Agreement”), entered
into as of the 9th day of July, 2008, is made by and between Xxxxx Xxxxx (the
“Seller”) and Xxxxxxxx
Investment Limited, a limited company having an address at Jasmine Court, 00X
Xxxxxx Xxxxxx, X.X. Xxx 0000 Xxxxxx Xxxx, Xxxxxx (the
“Buyer”).
Whereas,
Seller
owns in the aggregate four million shares of common stock of Cardio Vascular
Medical Device Corp., a Delaware corporation (the “Company”); and
Whereas,
Seller
wishes to sell to Buyer, and Buyer wishes to purchase from Seller, three million
six hundred thousand shares of the Company he owns (the “Shares”) for such
consideration and on such terms as set out below;
NOW
THEREFORE,
in
consideration of the above premises and the mutual representations, warranties,
covenants and agreements hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties agree as follows:
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1.
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Purchase
and Sale; Purchase Price; Closing.
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(a) Purchase
and Sale.
Upon
the terms and subject to the conditions of this Agreement, at the Closing
(hereafter defined), Seller shall sell, transfer and assign to Buyer, and Buyer
shall purchase from Seller, the Shares and any and all rights in the Shares
to
which Seller is entitled, and by doing so Seller shall be deemed to have
assigned all of Seller’s right, title and interest in and to the Shares to
Buyer. Such sale of the Shares shall be evidenced by stock certificates, duly
endorsed in blank or accompanied by stock powers duly executed in blank, or
other instruments of transfer in form and substance reasonably satisfactory
to
Buyer.
(b)
Purchase
Price.
The
purchase price for the Shares is $100,000 (the “Purchase Price”) and shall be
paid in six payments of $16,666.65 each on the following dates:
August
1,
2008
October
1, 2008
December
1, 2008
February
1, 2009
April
1,
2009
June
1,
2009
All
payments shall be made by cashier’s check, bank check or wire transfer of
immediately available funds or bank or certified check.
(c)
Closing.
(1)
The
Closing of the transactions contemplated under this Agreement (the "Closing")
shall take place no later than July 20, 2008. The closing will take at such
place as the
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Seller
and Buyer may mutually agree upon.
(2)
The
Buyer’s obligation to purchase the Shares and to take the other actions required
to be taken by the Buyer at the Closing is subject to the satisfaction, at
or
prior to the Closing, of each of the following conditions (any of which may
be
waived by the Buyer in whole or in part):
(a)
All
of the Seller's representations and warranties in this Agreement shall have
been
accurate in all respects as of the date of this Agreement and shall be accurate
in all respects as of the time of the Closing as if then made; and
(b)
Seller shall have complied with all terms of this Agreement.
(3)
At
the
Closing:
(a)
Buyer
shall pay to Seller the Purchase Price by cashiers’ or bank check or wire
transfer of immediately available funds, and
(b)
Sellers
shall deliver to Buyer (A) stock certificates evidencing the Shares, duly
endorsed in blank or accompanied by stock powers duly executed in blank, or
other instruments of transfer in form and substance reasonably satisfactory
to
Buyer, (B) any documentary evidence of the due recordation in the Company’s
share register of Buyer’s full and unrestricted title to the Shares, and (C)
such other documents as may be required under applicable law or reasonably
requested by Purchaser.
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2.
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Representations
of Seller.
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As
an
inducement to Buyer to enter into this Agreement and to consummate the
transaction contemplated herein, the Seller hereby represents and warrants
to
the Buyer the following:
(a)
Authority.
Seller
has the absolute and unrestricted right, power, legal capacity and authority
to
enter into and perform his obligations under this Agreement, to carry out his
obligations hereunder and to consummate the transactions contemplated hereby.
Assuming the due authorization, execution and delivery by Buyer, this Agreement,
when executed and delivered by Buyer, will be a valid and binding obligation
of
Seller, enforceable against Seller in accordance with its terms. Neither the
execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will conflict with, or (with or without notice
or lapse of time, or both) result in a termination, breach or violation of
(i)
any instrument, contract or agreement to which Seller is a party or by which
he
or she is bound, or (ii) any federal, state, local or foreign law, ordinance,
judgment, decree, order, statute, or regulation, or that of any other
governmental body or authority, applicable to the Company or Seller or his
or
her respective assets or properties.
(b) Capitalization.
Seller
is the sole record and beneficial owner of the Shares and has good and
marketable title to the Shares, free and clear of any liens, pledges,
hypothecations, charges, adverse claims, options, preferential arrangements
or
restrictions of any kind, including, without limitation, any restriction of
the
use, voting, transfer, receipt of income or other exercise of any attributes
of
ownership (collectively, “Encumbrances”), other than any
Encumbrance
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expressly
created by applicable federal and state securities laws. Upon the execution
and
delivery of this Agreement and payment of the purchase price, Buyer shall be
the
lawful record and beneficial owner of the Shares, free and clear of all
Encumbrances, other than any Encumbrances expressly created by applicable
federal and state securities laws.
There
are no stockholders’ agreements, voting trust, proxies, options, rights of first
refusal or any other agreements or understandings with respect to the
Shares.
(c)
Valid
Issuance.
All of
the Shares are duly authorized, validly issued, fully paid and non-assessable,
and were not issued in violation of any preemptive or similar rights. There
are
no outstanding subscriptions, options, warrants, puts, calls, agreements or
other rights of any type or other securities, including without limitation,
any
agreements or securities (1) requiring the issuance, sale, transfer, repurchase,
redemption or other acquisition of any shares of capital stock of the Company,
(2) restricting the transfer of any shares of capital stock of the Company,
or
(3) relating to the voting of any shares of capital stock of the Company. There
are no issued or outstanding indebtedness of the Company having the right to
vote (or convertible into, or exchangeable for, securities having the right
to
vote), upon the happening of a certain event or otherwise, on any matters on
which the equity holders of the Company may vote.
(d)
SEC
Documents.
All
reports and other documents filed by the Company with the SEC (the “SEC
Documents”) complied, as of their respective dates, in all material respects
with the requirements of the Securities Act of 1933, as amended (the “Securities
Act”) or the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
as the case may be, and other federal, state and local laws, rules and
regulations applicable to such SEC Documents, and none of the SEC Documents
contained any untrue statement of a fact or omitted to state a 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. The financial
statements of the Company included in the SEC Documents comply as to form and
substance in all respects with applicable accounting requirements and the
published rules and regulations of the SEC or other applicable rules and
regulations with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may be otherwise
indicated in such financial statements or the notes thereto or in the case
of
unaudited interim statements, to the extent they may not include footnotes
or
may be condensed or summary statements) and fairly present in all respects
the
financial position of the Company as of the dates thereof and the results of
operations and cash flows for the periods then ended (subject, in the case
of
unaudited statements, to normal year-end audit adjustments). The Company has
not
received any letters, notices or any notifications from the SEC, FINRA or NASAQ
with respect to the Company or any of its officers or directors.
(e)
No
Undisclosed Events or Circumstances.
No
event or circumstance has occurred or exists with respect to the Company or
its
businesses, properties, prospects, operations or financial condition, that,
under applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company but which has not been
so
publicly announced or disclosed in the SEC Documents.
(g) Full
Disclosure.
No
representation or warranty or other statement made by the Seller in this
Agreement or otherwise in connection with the transactions contemplated herein
contains any untrue statement or omits to state a fact necessary to make any
of
them, in light of the circumstances in which it was made, not misleading.
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3.
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Buyers’
Representations.
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As
an
inducement to Seller to enter into this Agreement and to consummate the
transaction contemplated herein, the Buyer hereby represents and warrants to
each Seller the following:
(a) Authority.
Buyer
has the absolute and unrestricted right, power, legal capacity and authority
to
enter into and perform his obligations under this Agreement, to carry out his
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Buyer. No filing with,
authorization from or consent or approval of any governmental body, agency,
official or authority or any other third party is necessary or required to
be
made or obtained to enable Buyer to enter into, and to perform his respective
obligations under, this Agreement. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
conflict with, or (with or without notice or lapse of time, or both) result
in a
termination, breach or violation of (i) any instrument, contract or agreement
to
which either Buyer is a party or by which he is bound, or (ii) any federal,
state, local or foreign law, ordinance, judgment, decree, order, statute, or
regulation, or that of any other governmental body or authority, applicable
to
either Buyer or his respective assets or properties.
(b) Investment
Purpose.
Buyer
is acquiring the Shares for his own account, for investment purposes only and
not with a view to the resale or distribution of any part thereof. The Buyer
understands that the Shares are restricted securities and can not be offered
for
sale, sold, transferred or otherwise disposed of without an effective
registration statement pursuant to the Securities Act of 1933, as amended,
or an
applicable exemption therefrom.
(c) Accredited
Investor.
Buyer
is an “accredited investor” as that term is defined in Rule 501(a) of Regulation
D promulgated under the Securities Act of 1933, as amended (the “Securities
Act”), and has been provided with all materials and information requested by
Buyer, including any information requested to verify any information furnished,
and the Buyer has been provided the opportunity for direct communication between
Seller and its representatives and the Buyer regarding the purchase contemplated
by this Agreement, including the opportunity to ask questions and receive
answers from Seller.
(d) Exemption
from Registration.
Buyer
understands that the Shares are being offered and sold to it in reliance upon
specific exemptions from the registration requirements of United States federal
and state securities laws.
4.
Indemnification.
The
Buyer shall indemnify and hold harmless the Seller and his respective employees,
trustees, agents, beneficiaries, affiliates, representatives and their
successors and assigns from and against any and all damages, losses,
liabilities, taxes and costs and expenses (including, without limitation,
attorneys’ fees and costs) resulting directly or indirectly from any
misrepresentation, breach of warranty or nonfulfillment of any covenant or
agreement on the part of the Buyer.
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5.
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Miscellaneous.
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(a) This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York without regard to principles of conflicts of
laws.
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(b) If
any
covenant or agreement contained herein, or any part hereof, is held to be
invalid, illegal or unenforceable for any reason, such provision will be deemed
modified to the extent necessary to be valid, legal and enforceable and to
give
effect of the intent of the parties hereto.
(c) This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof. This Agreement supersedes all prior agreements
between the parties with respect to the subject matter hereof or thereof. There
are no representations, warranties, covenants or undertakings with respect
to
the subject matter hereof other than those expressly set forth herein or in
the
other agreements referenced herein.
(d) This
Agreement may not be amended or modified except by the express written consent
of the parties hereto. Any waiver by the parties of a breach of any provision
of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach thereof or of any other provision.
(e) This
Agreement shall be binding upon, inure to the benefit of, and be enforceable
by
the parties hereto and their respective successors and permitted assignees
and
heirs and legal representatives.
(f) The
parties hereto intend that this Agreement shall not benefit or create any right
or cause of action in or on behalf of any person other than the parties
hereto.
(g) The
parties agree that this Agreement shall be deemed to have been jointly and
equally drafted by them, and that the provisions of this Agreement therefore
shall not be construed against a party or parties on the ground that such party
or parties drafted or was more responsible for the drafting of any such
provision(s). The parties further agree that they have each carefully read
the
terms and conditions of this Agreement, that they know and understand the
contents and effect of this Agreement, and that each was represented by counsel
of its own choosing or had the opportunity to be represented by counsel of
its
own choosing.
(h) The
parties hereto agree to execute and deliver such further documents and
instruments and to do such other acts and things any of them, as the case may
be, may reasonably request in order to effectuate the transactions contemplated
by this Agreement.
(i) This
Agreement may be executed in counterparts and by facsimile, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.
[Remainder
of Page Intentionally Omitted; Signature Page to Follow]
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IN
WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
executed by its duly authorized officer or representative as of the date first
above written.
SELLER:
/s/
Xxxxx Xxxxx
Xxxxx
Xxxxx
00
Xxxxx
Xxxxx, Xxxxx, Xxxxxx
BUYER:
Xxxxxxxx
Investment Limited
________________________________
Name:
Address:
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