SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
(the "Agreement"),
is made and entered into as of December ____ 2009, by and among Vanity
Events Holding, Inc., a Delaware corporation (the “Company”),
and each of the purchasers listed on Exhibit A attached hereto
(collectively, the “Purchasers”
and individually, a “Purchaser”).
WHEREAS, the Company and the
Buyer is executing and delivering this Agreement in reliance upon the exemption
from securities registration afforded by Section 4(2) of the Securities Act of
1933, as amended (the "Securities
Act"), and Rule 506 of Regulation D ("Regulation
D") as promulgated by the United States Securities and Exchange
Commission (the "SEC")
under the Securities Act;
WHEREAS, the Company desires
to issue and sell to the Purchasers, and the Purchasers desire to purchase from
the Company, up to _______________shares of common stock, par value $0.0001 per
share, of the Company (the “Securities”),
on the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and
for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and Purchaser agree as follows:
1. Agreement
to Purchase and Sell Securities. On the terms and
subject to the conditions contained in this Agreement, each Purchaser severally
agrees to purchase, and the Company agrees to sell and issue to each Purchaser,
at Closing (as defined below), that number of Securities set forth on Exhibit A attached
hereto. The purchase price of each share shall be $____.
2. Closing. The closing of
the purchase and sale of the Securities shall take place at the offices of the
Company at 10:00 a.m. Eastern time on December ___, 2009, or at such other time
and place as the Company and Purchasers representing a majority of the Common
Stock to be purchased mutually agree upon (which time and place are referred to
in this Agreement as the “Closing”). At
the Closing, the Company shall, against delivery of payment for the Purchased
Securities by wire transfer of immediately available funds in accordance with
the Company’s instructions, (a) authorize its transfer agent to issue to each
Purchaser one or more stock certificates (the “Certificates”)
registered in the name of each Purchaser (or in such nominee name(s) as
designated by such Purchaser), representing the appropriate number of Common
Stock purchased hereunder. Closing documents may be delivered by
facsimile with original signature pages sent by overnight
courier. The date of the Closing is referred to herein as the “Closing
Date.”
3. Representations
and Warranties of The Company. The Company
hereby represents and warrants to each Purchaser, as of the Closing Date, as
follows:
3.1 Organization and
Standing. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware, and has
full corporate power and authority to execute and deliver this Agreement and
perform its obligations hereunder.
3.2 Authority Relative to this Agreement;
No Conflict. The execution, delivery and performance of this
Agreement by the Company have been duly and validly authorized by all necessary
corporate proceedings and no other authorization or approval is required to
permit consummation of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will (a) violate or result in a breach of or default or acceleration
under (i) any provisions of the certificate of incorporation or by-laws (or
other governing instrument) of the Company, as currently in effect, or (ii) any
mortgage, indenture, contract, agreement, license, franchise, permit,
instrument, trust, power, judgment, decree, order, ruling or federal, state or
local statute or regulation to which the Company is presently a party or by
which it or its properties may be subject, (b) result in the creation or
imposition of any lien, claim, charge, restriction or encumbrance of any kind
whatsoever upon, or give to any other person any interest or right (including
any right of termination or cancellation) in or with respect to any properties,
assets, business, agreements or contracts of the Company, or (c) require any
consent, approval or waiver of, filing with, or notification to any person
(including, without limitation, any governmental or regulatory
authority).
3.3 Title to the
Securities. The Securities, when issued, sold and delivered by
the Company to Purchaser in accordance with the terms of this Agreement, will be
duly authorized, validly issued, fully paid and non-assessable, and will be free
and clear of all restrictions, claims, liens, charges and encumbrances
whatsoever, except as may exist under applicable federal and state securities
laws. Holders of Securities of Common Stock have no preemptive rights to
purchase any other Securities or securities of any class that may at any time be
sold or offered for sale by The Company. There are no options,
warrants, rights or other commitments relating to the sale of the
Securities.
3.4 Offering of Common Stock.
Neither The Company nor anyone acting on its behalf has in the past or will
hereafter take any action that would cause the issuance or sale of the
Securities to violate the registration requirements of the Securities
Act.
3.5 Consents. The company is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court, governmental agency or any regulatory or
self-regulatory agency or any other person in order for it to execute, deliver
or perform any of its obligations under or contemplated by this Agreement, in
each case in accordance with the terms hereof or thereof. All consents,
authorizations, orders, filings and registrations which the Company is required
to obtain pursuant to the preceding sentence have been obtained or effected on
or prior to the Closing, and the Company is unaware of any facts or
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circumstances
which might prevent the Company from obtaining or effecting any of the
registration, application or filings pursuant to the preceding
sentence.
3.6 Acknowledgment Regarding Purchaser's
Purchase of Securities. The Company acknowledges and agrees that the
Purchaser is acting solely in the capacity of arm's length purchaser with
respect to this Agreement and the transactions contemplated hereby and thereby
and that the Purchaser is not (i) an officer or director of the Company, (ii) an
"affiliate" of the Company or any of its subsidiaries (as defined in Rule 144)
or (iii) to the knowledge of the Company, a "beneficial owner" of more than 10%
of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the
Securities Exchange Act of 1934, as amended (the "1934
Act")). The Company further acknowledges that the Purchaser is not acting
as a financial advisor or fiduciary of the Company or any of its subsidiaries
(or in any similar capacity) with respect to this Agreement and the transactions
contemplated hereby and thereby, and any advice given by the Purchaser or any of
its representatives or agents in connection with this Agreement and the
transactions contemplated hereby and thereby is merely incidental to the
Purchaser 's purchase of the Securities. The Company further represents to the
Purchaser that the Company's decision to enter into this Agreement has been
based solely on the independent evaluation by the Company and its
representatives.
3.7 No General Solicitation; Placement
Agent. Neither the Company, nor any of its subsidiaries or
affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offer or sale of the Securities. The
Company shall pay, and hold the Purchaser harmless against, any liability, loss
or expense (including, without limitation, reasonable attorney's fees and
out-of-pocket expenses) arising in connection with any such claim. The Company
has not engaged any placement agent or other agent in connection with the sale
of the Securities.
3.8 Absence of
Litigation. There is no action, suit, proceeding, inquiry or
investigation before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its subsidiaries,
the Common Stock or any of the Company's subsidiaries or any of the Company's or
its subsidiaries' officers or directors in their capacities as
such.
4. Representations
and Warranties of Purchaser. Purchaser hereby
represents and warranties to Seller as follows:
4.1 Accredited Investor Status.
The Purchaser, if an individual, is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D.
4.2 Organization; Authority. The
Purchaser, if an entity, is an entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization with the
requisite power and authority to enter into and perform under this Agreement.
The execution, delivery and performance of this Agreement by such Purchaser have
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been duly
authorized and executed by all necessary action by such Purchaser. This
Agreement, when delivered in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable against
it in accordance with its terms, except (a) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights
generally, (b) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (c) insofar as
indemnification and contribution provisions may be limited by applicable
law
4.3 No Public Sale or
Distribution. The Purchaser is acquiring the Securities for its own
account and not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales registered or
exempted under the 1933 Act; provided, however, that by
making the representations herein, the Purchaser does not agree to hold any of
the Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the Securities Act. The Purchaser
is acquiring the Securities hereunder in the ordinary course of its business.
The Purchaser does not presently have any agreement or understanding, directly
or indirectly, with any person or entity to distribute any of the
Securities.
4.4 Transfer or Resale. The
Purchaser understands that: (i) the Securities have not been and are not being
registered under the Securities Act or any state securities laws, and may not be
offered for sale, sold, assigned or transferred unless (A) subsequently
registered thereunder, (B) the Purchaser shall have delivered to the Company an
opinion of counsel, in a generally acceptable form, to the effect that such
Securities to be sold, assigned or transferred may be sold, assigned or
transferred pursuant to an exemption from such registration, or (C) the
Purchaser provides the Company with reasonable assurance that such Securities
can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A
promulgated under the Securities Act, as amended, (or a successor rule thereto)
(collectively, "Rule
144"); (ii) any sale of the Securities made in reliance on Rule 144 may
be made only in accordance with the terms of Rule 144 and further, if Rule 144
is not applicable, any resale of the Securities under circumstances in which the
seller may be deemed to be an underwriter (as that term is defined in the
Securities Act) may require compliance with some other exemption under the
Securities Act or the rules and regulations of the SEC thereunder; and (iii)
neither the Company nor any other person is under any obligation to register the
Securities under the Securities Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder. The Securities may be
pledged in connection with a bona fide margin account or other loan or financing
arrangement secured by the Securities and such pledge of Securities shall not be
deemed to be a transfer, sale or assignment of the Securities hereunder, and no
Purchaser effecting a pledge of Securities shall be required to provide the
Company with any notice thereof or otherwise make any delivery to the Company
pursuant to this Agreement.
4.5 Authority Relative to this Agreement.
The Purchaser further represents and warrants to, and covenants with, the
Company that (i) the Purchaser has full right, power, authority and capacity to
enter into this Agreement and to consummate the transactions contemplated hereby
and has taken all necessary action to authorize the execution, delivery and
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performance
of this Agreement, and (ii) this Agreement constitutes a valid and binding
obligation of the Purchaser enforceable against the Purchaser in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
the indemnification agreements of the Purchasers herein may be legally
unenforceable.
4.6 Knowledge and Access to
Information. i) Purchaser has made such
investigation into the financial condition, earnings, prospects and affairs of
Seller as Purchaser deems appropriate to make an informed decisions as to
whether to subscribe to the Securities and, except for the
specific representations and warranties contained in this Agreement, is not
relying on any representation or warranty by Seller or any other person in
entering into this Agreement, and ii) Purchaser has been offered the
opportunity to ask questions of any officer of Seller or any other person
responsible for the management of Seller relating to the financial condition,
earnings, prospects and affairs of Seller.
4.7 Restricted
Securities. The Purchaser understands that the certificates or
other instruments representing the Securities, except as set forth below, shall
bear any legend as required by the "blue sky" laws of any state and a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of such stock certificates):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION
OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID
ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY THE SECURITIES.
The
legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of the Securities upon which it is
stamped or issue to such holder by electronic delivery at the applicable balance
account at DTC (as defined below), unless otherwise required by state securities
laws, when (i) such Securities are registered for resale under the Securities
Act, (ii) in connection with a sale, assignment or other transfer, such holder
provides the Company with an opinion of counsel, in a generally acceptable form,
to the effect that such sale, assignment or transfer of the Notes may be made
without registration under the applicable requirements of the Securities Act, or
(iii) such holder provides the Company with
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reasonable
assurance that the Securities can be sold, assigned or transferred pursuant to
Rule 144 or Rule 144A.
4.8 No Conflicts. The
execution, delivery and performance by the Purchaser of this Agreement and the
consummation by the Purchaser of the transactions contemplated hereby and
thereby will not (i) result in a violation of the organizational documents of
the Purchaser or (ii) conflict with, or constitute a default (or an event which
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 Purchaser is a party, or
(iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws)
applicable to the Purchaser, except in the case of clauses (ii) and (iii) above,
for such conflicts, defaults, rights or violations which would not, individually
or in the aggregate, reasonably
be expected to have a material adverse effect on the ability of the Purchaser to
perform its obligations hereunder.
5. Miscellaneous.
5.1 Governing Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York applicable to agreements made and to be performed
therein.
5.2 Binding
Effect. This Agreement and all of the provisions hereof shall
be binding upon and inure only to the benefit of the parties hereto and their
respective heirs, executors and personal representatives, and successors to the
business and assets of such parties.
5.3 Additional
Acts. Each of the parties hereto shall hereafter,
at the reasonable request of the other party hereto, execute and deliver such
further documents and agreements, and do such further acts and things as may be
necessary or expedient to carry out the provisions of this
Agreement.
5.4 Entire Agreement;
Amendments. This Agreement constitutes a complete statement of
all of the arrangements between the parties with respect to the transactions
contemplated by this Agreement, and supersedes all prior agreements and
understandings with respect to such transactions between them. This
Agreement cannot be changed or terminated except by an instrument in writing
signed by the parties hereto.
5.5 Brokers. Each party
hereto represents and warrants to the other party that neither such party nor
any director, officer, partner, agent or employee of such party has employed any
broker or finder, or, directly or indirectly, incurred any liability for any
brokerage or finder's fees or commissions or similar payments in connection with
the transactions contemplated by this Agreement.
5.6 Counterparts. 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.
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[Signature
page follows]
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IN WITNESS WHEREOF, the undersigned
have executed this Agreement on the date first above written.
By: /s/ Xxxxxx Xxxxxxxxx
Xxxxxx
Xxxxxxxxx
Chief
Executive Officer
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SIGNATURE
PAGE TO
DATED
AS OF DECEMBER ___, 2009
BY
AND AMONG
AND
EACH PURCHASER NAMED THEREIN
The
undersigned hereby executes and delivers to Vanity Events Holding, Inc., the
Securities 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.
o By checking this box, Purchaser
hereby represents that he or she is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D.
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Subscription
Price:
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Address:
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Fax:
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SS/Tax
ID Number:
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EXHIBIT
A
Schedule
of Purchasers
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