STOCK PURCHASE AGREEMENT
Exhibit 10.2
THE
SECURITIES THAT ARE THE SUBJECT OF THIS STOCK PURCHASE AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE APPLICABLE
SECURITIES LAWS OF ANY STATE AND WILL BE OFFERED AND SOLD IN RELIANCE ON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THESE LAWS BY VIRTUE OF THE
INTENDED COMPLIANCE BY THE ISSUER WITH REGULATION S OF THE SECURITIES
ACT. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
U.S. SECURITIES AND EXCHANGE COMMISSION (THE “SEC”), ANY STATE SECURITIES
COMMISSION OR ANY OTHER REGULATORY AUTHORITY. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
THIS SUBSCRIPTION AGREEMENT
(the “Agreement”) is made and entered into as of this 15th day of
May, 2009, by and between Medical International Technology,
Inc. a Colorado corporation (the “Company”), with its offices located at
1872 Xxxxxxx Montreal (Saint-Laurent) QC Canada H4R 2E7 and with its
address located at (the
“Purchaser”).
RECITALS:
WHEREAS, the Company is
offering for sale______________ (_____) units (individually, a
“Unit” and, collectively, the “Units”), each Unit consisting of one share of
(POST REVERSE SPLIT) common stock, $0.0001 par value per share (the “Common
Stock”) at a per Unit price of $0.10, in a transaction exempt
from registration under Regulation S of the Securities Act of 1933, as amended
(the “Securities Act”), and the regulations promulgated thereunder.
NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION
1.0: PURCHASE AND SALE OF UNITS.
Section 1.1 Closing. The Company
agrees to issue, sell and deliver to the Purchaser, and the Purchaser agrees to
purchase and receive from the Company, _______(_______) Units upon the terms
and conditions set forth in this Agreement. The closing (the
“Closing”) of the sale and purchase of the Units shall take place at the
Company’s offices, at 12:00, local time, on May 15th , 2009, or at such other time
and place as may be agreed to by the parties (the “Closing
Date”). The Units, shall be restricted and the certificates
representing the securities shall bear the restrictive legend pursuant to Rule
144 of the General Rules and Regulations under the Securities Act.
Section 1.2 Purchase
Price. The total
purchase price for the Units (the “Purchase Price”) shall consist of cash in the
amount of ________(_____) US
DOLLARS.
SECTION
2.0: REPRESENTATIONS AND WARRANTIES.
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Section 2.1 Representations
and Warranties of the Purchaser. The Purchaser makes the following
representations and warranties to the Company.
(a) Speculative
Investment. The Purchaser is aware that an investment in the
Units is highly speculative and subject to substantial risks. The
Purchaser is capable of bearing the high degree of economic risk and the burden
of this venture, including, but not limited to, the possibility of complete loss
of the Purchaser’s investment in the Units that makes liquidation of this
investment impossible for the indefinite future.
(b) Privately
Offered. The offer to issue and sell the Units was
communicated directly to the Purchaser in such a manner that the Purchaser was
able to ask questions of and receive answers concerning the terms and conditions
of this transaction. At no time was the Purchaser presented with or
solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general advertising.
(c) Purchase for
Investment. The Units are being acquired solely for the
Purchaser’s own account, for investment purposes and are not being purchased
with a view to the resale, distribution, subdivision or fractionalization
thereof without proper registration with appropriate securities administrators
or an applicable exemption from such registration. The Purchaser will
comply with all applicable law with respect to any resale of the
Units.
(d) Access to
Information. The Purchaser or the Purchaser’s professional
advisor has been granted the opportunity to ask questions of and receive answers
from representatives of the Company and its officers, directors, employees and
agents concerning the terms and conditions of the offering of the Units, the
Company and its business and prospects, and to obtain any additional information
that the Purchaser or the Purchaser’s professional advisor deems necessary to
verify the accuracy and completeness of the information received.
(f) Reliance on Own
Advisors. The Purchaser has relied on the advice of, or has
consulted with, the Purchaser’s own tax, investment, legal or other advisors and
has not relied on the Company or any of it affiliates, officers, directors,
attorneys, accountants or any affiliates of any thereof and each other person,
if any, who controls any thereof, within the meaning of Section 15 of the
Securities Act, for any tax or legal advice. The foregoing, however,
does not limit or modify the Purchaser’s right to rely upon representations and
warranties of the Company in Section 2.2 of this Agreement and any
representations of any third parties acting as agents for or on the Company’s
behalf.
(g) Capability to
Evaluate. The Purchaser has such knowledge and experience in
financial and business matters so as to enable such Purchaser to utilize the
information made available to it in connection with the offer of the Securities
in order to evaluate the merits and risks of the prospective
investment.
(h) Authority. The
Purchaser (and each of its subsidiaries, if applicable) is a corporation duly
incorporated and existing in good standing under the laws of the State of New
York and has the requisite corporate power to own its properties and to carry on
its business as now being conducted. The Purchaser has full power and
authority to execute and deliver this Agreement and each other document included
herein (if any) for which a signature is required and to act in accordance with
the terms of this Agreement and such other documents (if any).
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(i) Non United States
Person. The Undersigned is not a US person under Rule 902 of
Regulation S under the Securities Act, and is not acquiring the Stock for the
account or benefit of any US person; and is, if a natural person, over 21 years
of age.
The
foregoing representations and warranties shall be true and accurate as of the
date hereof and as of the date of any acceptance of this Offer by the Company
and shall survive the date of such acceptance by the Company.
Section 2.2 Representations
and Warranties of the Company. The Company
hereby makes the following representations and warranties to the
Purchaser:
(a) Organization and
Qualification. The Company is a corporation duly incorporated
and existing in good standing under the laws of the state of Colorado and has
the requisite corporate power to own its properties and to carry on its business
as now being conducted.
(b) Authorization;
Enforcement. (i) The Company has the requisite corporate power
and authority to enter into and perform this Agreement and to issue and sell the
Units in accordance with the terms hereof; (ii) the execution and delivery of
this Agreement by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action,
and no further consent or authorization of the Company or its Board of Directors
or stockholders is required; (iii) this Agreement has been duly executed and
delivered by the Company; and (iv) this Agreement constitutes a valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of, creditors’ rights and
remedies or by other equitable principles of general application).
(c) Authorized Capital; Rights
or Commitments to Stock. As of April 1st 2009,
the authorized capital stock of the Company consists of 103,000,000 shares, of
which 100,000,000 shares are Common Stock, of which 53,058,663 shares are issued
and outstanding, and 3,000,000 shares are preferred stock, of which no shares
are issued and outstanding. All of the outstanding shares of the
Company’s Common Stock have been validly issued and are fully paid and
non-assessable.
(d) Issuance of
Securities. The issuance of the Units has been duly authorized
and, when paid for and issued in accordance with the terms hereof, the Units,
shall be validly issued, fully paid and non-assessable
and entitled to the rights inherent in the securities and as specified
herein.
(e) No
Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) result in a violation of the
Company’s Articles of Incorporation or Bylaws or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or 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 result
in a violation of any federal, state, local or foreign law, rule, regulation,
order, judgment or decree (including federal and state securities laws and
regulations) applicable to the Company its subsidiary or by which any property
or assets of the Company or its subsidiary 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); provided that, for purposes of such representation as to
federal, state, local or foreign law, rule or regulation, no representation is
made herein with respect to any of the same applicable solely to the Purchaser
and not to the Company. The business of the Company is not being
conducted in violation of any law, ordinance or regulations of any governmental
entity, except for violations that either singly or in the aggregate do not and
will not have a Material Adverse Effect. The Company is not required
under federal, state or local law, rule or regulation in the United States to
obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or issue and sell
the Units in accordance with the terms hereof, and the payment of any filing or
other fees required by such governing authority; provided that, for purposes of
the representation made in this sentence, the Company is assuming and relying
upon the accuracy of the relevant representations and agreements of the
Purchaser herein.
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(f) Reporting Status. The
Company is subject to the reporting requirements of Section 13 of the Securities
Exchange Act of 1934, as amended. The Company is not an investment
company or a developmental stage company that has no specific business plan or
purpose. No information or documentation provided to the Purchaser as
of the date hereof has contained any untrue statement of a material fact or has
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.
(g) No General
Solicitation. Neither the Company, nor any of its affiliates,
or, to the best of its knowledge, any person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising in connection
with the offer or sale of the Units.
(h) 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 of the Company’s securities or solicited any offers to
buy any of such securities, under circumstances that would prevent the Company
from offering the Units pursuant to Regulation S under the Securities
Act.
SECTION
3.0: COMPLIANCE AND INSTRUCTIONS.
Section 3.1 Securities
Compliance. The Company
shall, to the extent required, notify the SEC and the NASD Over-the-Counter Pink
sheet, in accordance with their requirements, of the transactions contemplated
by this Agreement, and shall take all other necessary action and proceedings, as
may be required by applicable law, rule and regulation, for the legal and valid
issuance of the Units to the Purchaser.
Section 3.2 Transfer
Agent Instructions.
a. Common Stock to be Issued With
Restrictive Legend. Upon the Closing, the Company shall
instruct its transfer agent to issue certificates for _________(_____) shares of Common Stock
to be received by the Purchaser pursuant to this Agreement, with a restrictive
legend pursuant to Rule 144 under the Securities Act, in the name of the
Purchaser and in such denominations to be specified by the
Purchaser.
SECTION 4.0: GENERAL
CONDITIONS.
Section 4.1 General
Conditions Precedent to the Obligation of the Company to Sell the
Shares. The obligation
hereunder of the Company to issue and/or sell the Units to the Purchaser is
subject to the satisfaction, at the Closing, of each of the conditions set forth
below. These conditions may be waived by the Company at any time in
its sole discretion.
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(a) Accuracy of the Purchaser’s
Representations and Warranties. The representations and
warranties of the Purchaser 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 any representations and warranties that are effective as of a
particular, specified date).
(b) Performance by the
Purchaser. The Purchaser shall have performed all agreements
and satisfied all conditions required to be performed or satisfied by the
Purchaser at or prior to the Closing.
(c) No Injunction, No Legal
Action. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction that prohibits
the consummation of any of the transactions contemplated by this
Agreement. No legal action, suit or proceeding shall be pending or
threatened that seeks to restrain or prohibit the transactions contemplated by
this Agreement.
(d) Purchase
Price. The Purchaser shall have delivered the applicable
Purchase Price for the Units to be purchased, in accordance with Section 1.2
above.
Section 4.2 General
Conditions Precedent to the Obligation of the Purchaser to Purchase the
Shares. The obligation
hereunder of the Purchaser to purchase and pay for the Units is subject to the
satisfaction, at the Closing, of each of the conditions set forth
below. These conditions may be waived by the Purchaser at any time in
its sole discretion.
(a) Accuracy of the Company’s
Representations and Warranties. 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 that time
(except for representations and warranties that are effective as of a
particular, specified date).
(b) Performance by the
Company. The Company shall have performed all agreements and
satisfied all conditions required to be performed or satisfied by the Company
pursuant to this Agreement at or prior to the Closing, unless any such agreement
or condition is waived by the Purchaser in writing at or prior to
Closing.
(c) Trading and
Listing. The Company shall not have received notice of, and
trading in the Company’s Common Stock shall not have been, suspended by the SEC
or a national securities exchange (currently the Over-the-Counter Pink sheet)
(except for any suspension of trading of limited duration agreed to between the
Company and the principal exchange on which the Common Stock is traded solely to
permit dissemination of material information regarding the Company) or de-listed
by such exchange, and trading in securities generally as reported by such
exchange shall not have at any prior time been suspended or limited, or minimum
prices shall not have been established on securities whose trades are reported
by such exchange.
(d) No
Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction that
prohibits the consummation of any of the transactions contemplated by this
Agreement.
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SECTION
5.0: TERMINATION.
Section 5.1 Termination. This Agreement
may be terminated at any time prior to the Closing by the mutual written consent
of the Company and the Purchaser. This Agreement may be terminated by
action of the respective Board of Directors or other governing body of the
Purchaser or the Company at any time if the Closing shall not have been
consummated by the fifth (5th) business day following the date of this
Agreement, provided that the party seeking to terminate the Agreement is not in
breach of the Agreement. This Agreement shall automatically terminate
without any further action of either party hereto if the Closing shall not have
occurred by the seventh (7th) business day following the date of this Agreement,
provided, however, that any such
termination shall not terminate the liability of any party that is then in
breach of the Agreement.
SECTION
6.0: MISCELLANEOUS.
Section 6.1 Fees and
Expenses. The parties shall
each pay the fees, commissions and expenses of its respective advisers, brokers,
finders, counsel, accountants and other experts, if any, and all other expenses
associated therewith, in accordance with their respective
agreements.
Section
6.2 Specific Enforcement,
Consent to Jurisdiction.
(a) The
Company and the Purchaser acknowledge and agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which either of them may be entitled by
law or equity.
(b) The
Company and the Purchaser each (i) hereby irrevocably submits to the
jurisdiction of the United States District Court and other courts of the United
States sitting in the State of Colorado for the purposes of any suit, action or
proceeding arising out of or relating to this Agreement and (ii) hereby waives,
and agrees not to assert in any such suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of such court, that the suit,
action or proceeding is brought in an inconvenient forum or that the venue of
the suit, action or proceeding is improper. The Company and the
Purchaser each consents to process being served in any such suit, action or
proceeding by mailing a copy thereof 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 in
this paragraph shall affect or limit any right to serve process in any other
manner permitted by law.
Section 6.3 Entire
Agreement: Amendment. This Agreement contains the
entire understanding of the parties with respect to the matters covered hereby
and, except as specifically set forth herein, neither the Company nor the
Purchaser 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 a written instrument signed by the party against whom
enforcement of any such amendment or waiver is sought.
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Section 6.4 Notices. Any notice or
other communication required or permitted to be given hereunder shall be in
writing and shall be effective (a) upon hand delivery or delivery by telex (with
correct answer back received), telecopy or facsimile 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 (2nd) 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:
To the
Company: Medical International
Technology, Inc.
1872
Xxxxxxx
Montreal
(Saint-Laurent) QC
Canada H4R
2E7
Attention: Xx.
Xxxxx Xxxxxxx, Chairman President & Director
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To
the Purchaser:
|
At
the address set forth in the first paragraph of this Agreement or as
specified hereafter in writing by the
Purchaser.
|
Either
party hereto may from time to time change its address for notices by giving at
least ten (10) days’ written notice of such changed address to the other party
hereto.
Section 6.5 Waivers. No waiver by
either party of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the
future or a waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of either party to exercise any right hereunder in
any manner impair the exercise of any such right accruing to it
thereafter.
Section 6.6 Headings. The headings
herein are for convenience only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions
hereof.
Section 6.7 Governing
Law. This Agreement is
deemed made, and the transactions contemplated herein are deemed to have taken
place in, the State of Colorado. This Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Colorado without regard to such state’s principles of conflict of
laws.
Section 6.8 Survival. The
representations and warranties of the Company and the Purchaser contained in
herein and the agreements and covenants set forth in Sections 1.1 and 1.2, 2.1
and 2.2 and 4.1 and 4.2 shall survive for a period of three (3) years after the
Closing Date.
Section 6.9 Publicity. The Company
agrees that it will not disclose, and will not include in any public
announcement, the name of the Purchaser without its consent, unless and until
such disclosure is required by law or applicable regulation, and then only to
the extent of such requirement.
Section 6.10 NASD. The term “NASD” or “NASD
Over-the-Counter Pink sheet” herein refers to the principal market on which the
Common Stock of the Company is traded. If the Common Stock is listed
on a securities exchange, or if another market becomes the principal market on
which the Common Stock is traded or through which price quotations for the
Common Stock are reported, the term “NASD” or “NASD Over-the-Counter Pink sheet”
shall be deemed to refer to such exchange or other principal
market.
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Section 6.11 Acceptance. Execution and
delivery of this Agreement by the Purchaser shall constitute an offer to
purchase the Units, which offer, unless previously revoked by the Purchaser, may
be accepted or rejected by the Company, in its sole discretion for any cause or
for no cause and without liability to the Purchaser. The Company
shall indicate acceptance of this Agreement by signing as indicated on the
signature page hereof.
Section 6.12 Binding
Agreement. Upon
acceptance of this Agreement by the Company, the Purchaser agrees that it may
not cancel, terminate or revoke any agreement of the Purchaser made hereunder,
and that this Agreement shall be binding upon the successors and assigns of the
Purchaser.
Section 6.13 Counterparts. This Agreement
may be signed in multiple counterparts, which counterparts shall constitute one
and the same original instrument.
Section
6.14 Severability. If any portion of this Agreement
shall be held illegal, unenforceable, void or voidable by any court, each of the
remaining terms hereof shall nevertheless remain in full force and effect as a
separate contract.
Section 6.15 Successors
and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
IN WITNESS WHEREOF, the
parties hereto have duly executed and delivered this Agreement as of the day and
year first above written.
Dated:
May 15th
2009
THE
COMPANY
_____________________________________
Xxxxx
Xxxxxxx, Chairman, President, Director
On Behalf
Of the Board
THE
PURCHASER:
_____________________________________
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