Purchase Agreement
Exhibit 10.7
This Purchase Agreement dated as of February 23rd, 2012 (this “Agreement”) by and between Rig Support Services, Inc., a Texas corporation, with principal offices located at 0000 Xxxxxxx Xx., # X000 Xxxxxx, XX 00000 (the “Company”), and UMED Holdings, Inc., a Texas corporation (“Purchaser”).
WHEREAS, Purchaser and the Company desire to have Purchaser acquire from the Company the shares of its common stock set forth in Section A below, which will represent 50% of its issued and outstanding shares immediately after the shares are issued to Purchaser.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto, intending to be legally bound, hereby agree as follows:
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I. ACQUISTION OF SHAREHOLDER UNITS
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A.
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Stock Exchange. Purchaser hereby agrees to issue 500,000 shares of its restricted common stock to the Company in exchange for 500,000 shares of the Company’s common stock, which will represent 50% of the Company’s issued and outstanding shares of common stock immediately after the 500,000 shares are issued to Purchaser. This transaction shall be exempted from the registration and prospectus delivery requirements of the Securities and Exchange Act of 1933, as amended (the “Securities Act”), the Shareholder Units.
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The 500,000 shares of Purchaser’s restricted Common Stock to be issued to the Company shall be issued within 10 days after the first full month that the Company generates revenue.
After the 500,000 shares of Purchaser’s restricted Common Stock has been issued to the Company, the shares shall vest to the Company at the rate of 25% per year from the date of issuance.
B. Purchaser Option. On each anniversary date of this Agreement, Purchaser will have the option to purchase the 50% of the Company’s shares not owned by Purchaser from the Company’s shareholders at a price per share equal to 5 times earnings (before interest, taxes, depreciation and amortization (EBITDA) divided by the outstanding shares. The Purchaser’s calculated price for this option shall be shares of Purchaser’s common stock based on the average bid price over the 20 trading days preceding each anniversary date of this Agreement.
Purchaser agrees that on the date that it exercises this option, the shares issued to the Company in Section I.A above shall immediately vest to the Company if not already vested based on the vesting schedule in Section I.A above.
Purchaser shall have the option of opting out of this Agreement within the first twelve months from it execution if the Company has not met the vesting criteria in Section I.A above and the Company shall be issued 125,000 shares of Purchaser’s restricted common stock.
C. Software Purchase. Purchaser will issue 100,000 shares of restricted common stock to RSSI in lieu of RSSI purchasing proprietary software.
II. PURCHASER’S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants to and covenants and agrees with the Company as follows:
A. Purchaser is purchasing the Company’s common stock for its own account, for investment purposes only and not with a view towards or in connection with the public sale or distribution thereof.
B. Purchaser is (i) an “accredited investor” within the meaning of Rule 501 of Regulation D Act, (ii) experienced in making investments of the kind contemplated by this Agreement, (iii) capable, by reason of its business and financial experience, of evaluating the relative merits and risks of an investment in the Shareholder Units, and (iv) able to afford the loss of its investment in the Company’s common stock.
C. This Agreement has been duly and validly authorized, executed and delivered by Purchaser and is a valid and binding agreement of Purchaser enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such laws.
D. Purchaser represents that it has satisfactory information and data to move forward with the transaction.
E. The Purchaser (i) has duly and validly authorized and reserved for issuance shares of its common stock, which is a number sufficient for the issuance of the common stock due the Company as contemplated by this Acquisition Agreement. The Purchaser understands and acknowledges the potentially dilutive effect on the issuance of its common stock.
F. The Purchaser has the requisite corporate power and authority to enter into this Agreement (as such term is hereinafter defined) and to perform all of its obligations hereunder and thereunder (including the issuance and delivery to Company the shares of common stock contemplated by this Agreement. The execution, delivery and performance by the Purchaser of the Documents and the consummation by the Purchaser of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate actions on the part of the Purchaser and no further filing, consent, or authorization is required by the Purchaser. Each of the Documents has been duly and validly executed and delivered by the Purchaser and each Document constitutes a valid and binding obligation of the Purchaser enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such laws. The shares of common stock contemplated by this Agreement have been duly and validly authorized for issuance by the Purchaser. For purposes of this Agreement, the term “Documents” means (i) this Agreement.
G. Validity of Issuance of the Shares of Common Stock. The Shares of common stock upon their issuance will be validly issued and outstanding, fully paid and nonassessable, and not subject to any preemptive rights, rights of first refusal, tag-along rights, drag-along rights or other similar rights.
III. THE COMPANY’S REPRESENTATIONS
The Company represents and warrants as of the date hereof to the Purchaser that, except as set forth in this Agreement, the statements contained in this Section 3 are complete and accurate as of the date of this Agreement. As used in this Section 3, the term “Knowledge” shall mean the knowledge of the members of the board of directors of the Company and/or the officers or employees of the Company after reasonable investigation.
A. Capitalization.
1. The authorized capital stock of the Company consists of 1,000,000 shares of common stock with no par value, of which 1,000,000 shares are issued and outstanding as of the date of this Agreement. The Company has no preferred stock authorized.
2. Except as disclosed herein by the Company, there are no preemptive, subscription, “call,” right of first refusal or other similar rights to acquire any shares of the Company’s common stock, that have been issued or granted to any person and no other obligations of the Company to issue, grant, extend or enter into any security, option, warrant, “call,” right, commitment, agreement, arrangement or undertaking with respect to any of their respective common stock.
B. Organization; Reporting Company Status.
1. The Company is duly organized, validly existing and in good standing under the laws of the state or jurisdiction in which it is incorporated and is duly qualified as a foreign corporation in all jurisdictions in which the failure so to qualify would reasonably be expected to have a material adverse effect on the business, properties, prospects, condition (financial or otherwise) or results of operations of the Company or on the consummation of any of the transactions contemplated by this Agreement (a “Material Adverse Effect”).
C. Full Disclosure. There is no fact known to the Company (other than general economic or industry conditions known to the public generally) that has not been fully disclosed in this Agreement that (i) reasonably could be expected to have a Material Adverse Effect or (ii) reasonably could be expected to materially and adversely affect the ability of the Company to perform its obligations pursuant to the Documents.
D. Absence of Events of Default. No “Event of Default” (as defined in any agreement or instrument to which the Company is a party) and no event which, with notice, lapse of time or both, would constitute an Event of Default (as so defined), has occurred and is continuing.
E. Registration Rights. Except as set forth in this Agreement, no Person has, and as of the Closing (as such term is hereinafter defined), no Person shall have, any demand, “piggy-back” or other rights to cause the Company to file any registration statement relating to its common stock or to participate in any such registration statement.
F. No Misrepresentation. No representation or warranty of the Company contained in this Agreement or any of the other Documents, any schedule, annex or exhibit hereto or thereto or any agreement, instrument or certificate furnished by the Company to Purchaser pursuant to this Agreement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
G. Finder’s Fee. There is no finder’s fee, brokerage commission or like payment in connection with the transactions contemplated by this Agreement for which Purchaser is liable or responsible.
H. Subsidiaries. The Company does not presently own or control, directly or indirectly, any interest in any other corporation, association, or other business entity
I. Litigation. Other than as disclosed in this Agreement and to Purchaser, there is no action, suit, proceeding or investigation pending or, to the Company’s knowledge, currently threatened against the Company that questions the validity of this Agreement, the Documents, or the right of the Company to enter into such agreements, or to consummate the transactions contemplated hereby or thereby, or that might result, either individually or in the aggregate, in any material adverse changes in the business, assets or condition of the Company, taken as a whole, financially or otherwise, or any change in the current equity ownership of the Company. The Company is not a party or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality. There is no action, suit, proceeding or investigation by the Company pending or that the Company intends to initiate.
J. Agreements. Except for agreements explicitly contemplated hereby, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, Affiliates, or any affiliate thereof.
K. Tax Returns. The Company has made and filed all federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject and (unless and only to the extent that the Company has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know of no basis for any such claim.
IV. CERTAIN COVENANTS AND ACKNOWLEDGMENTS
A. Stockholder Listing. The Company will provide Purchaser with a current share holder listing upon the signing of this Agreement.
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V. ISSUANCE OF SHAREHOLDER UNITS
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A. The Purchaser undertakes and agrees that no instruction other than the instructions referred to in this Article V shall be given to its transfer agent for the common stock to be issued to the Company and that they shall be freely transferable on the books and records of the Purchaser as and to the extent provided in this Agreement and applicable law. Nothing contained in this Section V.A. shall affect in any way the Company’s obligations and agreement to comply with all applicable Securities laws upon resale of common stock received per this Agreement.
B. The Purchaser shall, at its own cost and expense, take all necessary action to assure that the Purchaser's transfer agent shall issue stock certificates in the name of the Company representing the number of shares of common stock issuable by this Agreement.
VI. CLOSING DATE
The “Closing” shall be on or before Thirty (30) days from the date of the execution of this Agreement by the Parties hereto, and the date on which the Closing occurs shall be referred to herein as the “Closing Date ”.
| VII. CONDITIONS TO THE COMPANY’S OBLIGATIONS |
Agreement is conditioned upon:
A. Delivery by Purchaser of a copy of its letter of instruction to its Stock Transfer Agent, Transfer OnLine, for the issuance of 500,000 shares of Purchaser’s common stock to the Company as set forth in Section I.A.
B. The accuracy on the Closing Date of the representations and warranties of Purchaser contained in this Agreement as if made on the Closing Date (except for representations and warranties which, by their express terms, speak as of and relate to a specified date, in which case such accuracy shall be measured as of such specified date) and the performance by Purchaser in all material respects on or before the Closing Date of all covenants and agreements of Purchaser required to be performed by it pursuant to this Agreement on or before the Closing Date; and
C. There shall not be in effect any law or order, ruling, judgment or writ of any court or public or governmental authority restraining, enjoining or otherwise prohibiting any of the transactions contemplated by this Agreement.
| VIII. CONDITIONS TO PURCHASER’S OBLIGATIONS |
The Company understands that Purchaser’s obligation to purchase the Company’s common stock on the Closing Date pursuant to this Agreement is conditioned upon:
Delivery by the Company of 500,000 shares of its common stock to Purchaser to be exchanged for Purchaser common stock Shares as set forth in I.(A) above.
B. The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date (except for representations and warranties which, by their express terms, speak as of and relate to a specified date, in which case such accuracy shall be measured as of such specified date) and the performance by the Company in all respects on or before the Closing Date of all covenants and agreements of the Company required to be performed by it pursuant to this Agreement on or before the Closing Date, all of which shall be confirmed to Purchaser by delivery of the certificate of the chief executive officer of the Company to that effect;
C. The Company shall have delivered to the Purchaser unanimous resolutions of the Company’s Board of Directors and the Company’s members and partners executed by the Company’s Directors and Shareholders, respectively, authorizing and approving the execution of the Documents and the transactions contemplated by this Agreement;
D. There not having occurred any event or development, and there being in existence no condition, having or which reasonably and foreseeably could have a Material Adverse Effect;
E. There shall not be in effect any law, order, ruling, judgment or writ of any court or public or governmental authority restraining, enjoining or otherwise prohibiting any of the transactions contemplated by this Agreement;
F. The Company shall have obtained all consents, approvals or waivers from governmental authorities and third persons necessary for the execution, delivery and performance of the Documents and the transactions contemplated thereby, all without material cost to the Company;
G. Purchaser shall have received such additional documents, certificates, payment, assignments, transfers and other deliveries as it or its legal counsel may reasonably request and as are customary to effect a closing of the matters herein contemplated;
H. The Company shall have received a consent of its shareholders to make their shares available for purchase by Purchaser according to the Purchase Option set forth in Section I.B above.
| IX. SURVIVAL; INDEMNIFICATION |
A. The representations, warranties and covenants made by each of the Company and Purchaser in this Agreement, the annexes, schedules and exhibits hereto and in each instrument, agreement and certificate entered into and delivered by them pursuant to this Agreement shall survive the Closing and the consummation of the transactions contemplated hereby. In the event of a breach or violation of any of such representations, warranties or covenants, the party to whom such representations, warranties or covenants have been made shall have all rights and remedies for such breach or violation available to it under the provisions of this Agreement or otherwise, whether at law or in equity, irrespective of any investigation made by or on behalf of such party on or prior to the Closing Date.
B. The Company hereby agrees to indemnify and hold harmless Purchaser, its affiliates and their respective officers, directors, employees, consultants, partners, members and attorneys (collectively, the “Purchaser Indemnities”) from and against any and all losses, claims, damages, judgments, penalties, liabilities and deficiencies (collectively, “Losses”) and agrees to reimburse Purchaser Indemnities for all reasonable out-of-pocket expenses (including the reasonable fees and expenses of legal counsel), in each case promptly as incurred by Purchaser Indemnities and to the extent arising out of or in connection with:
1. any misrepresentation, omission of fact or breach of any of the Company’s representations or warranties contained in this Agreement or the other Documents, or the annexes, schedules or exhibits hereto or thereto or any instrument, agreement or certificate entered into or delivered by the Company pursuant to this Agreement or the other Documents;
2. any failure by the Company to perform any of its covenants, agreements, undertakings or obligations set forth in this Agreement or the other Documents or any instrument, certificate or agreement entered into or delivered by the Company pursuant to this Agreement or the other Documents; or
C. Promptly after receipt by a party seeking indemnification pursuant to this Article VIII (an “Indemnified Party”) of written notice of any investigation, claim, proceeding or other action in respect of which indemnification is being sought (each, a “Claim”), the Indemnified Party promptly shall notify the Company against whom indemnification pursuant to this Article VIII is being sought (the “Indemnifying Party”) of the commencement thereof, but the omission so to notify the Indemnifying Party shall not relieve it from any liability that it otherwise may have to the Indemnified Party except to the extent that the Indemnifying Party is materially prejudiced and forfeits substantive rights or defenses by reason of such failure. In connection with any Claim as to which both the Indemnifying Party and the Indemnified Party are parties, the Indemnifying Party shall be entitled to assume the defense thereof. Notwithstanding the assumption of the defense of any Claim by the Indemnifying Party, the Indemnified Party shall have the right to employ separate legal counsel and to participate in the defense of such Claim, and the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs and expenses of such separate legal counsel to the Indemnified Party if (and only if): (x) the Indemnifying Party shall have agreed to pay such fees, out-of-pocket costs and expenses, (y) the Indemnified Party and the Indemnifying Party reasonably shall have concluded that representation of the Indemnified Party and the Indemnifying Party by the same legal counsel would not be appropriate due to actual or, as reasonably determined by legal counsel to the Indemnified Party, potentially differing interests between such parties in the conduct of the defense of such Claim, or if there may be legal defenses available to the Indemnified Party that are in addition to or disparate from those available to the Indemnifying Party or (z) the Indemnifying Party shall have failed to employ legal counsel reasonably satisfactory to the Indemnified Party within a reasonable period of time after notice of the commencement of such Claim. If the Indemnified Party employs separate legal counsel in circumstances other than as described in clauses (x), (y) or (z) above, the fees, costs and expenses of such legal counsel shall be borne exclusively by the Indemnified Party. Except as provided above, the Indemnifying Party shall not, in connection with any Claim in the same jurisdiction, be liable for the fees and expenses of more than one firm of legal counsel for the Indemnified Party (together with appropriate local counsel). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not unreasonably be withheld), settle or compromise any Claim or consent to the entry of any judgment that does not include an unconditional release of the Indemnified Party from all liabilities with respect to such Claim or judgment.
D. In the event one party hereunder should have a claim for indemnification that does not involve a claim or demand being asserted by a third party, the Indemnified Party promptly shall deliver notice of such claim to the Indemnifying Party. If the Indemnified Party disputes the claim, such dispute shall be resolved by mutual agreement of the Indemnified Party and the Indemnifying Party or by binding arbitration conducted in accordance with the procedures and rules of the American Arbitration Association. Judgment upon any award rendered by any arbitrators may be entered in any court having competent jurisdiction thereof.
| X. GOVERNING LAW |
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, without regard to the conflicts of law principles of such state.
| XI. SUBMISSION TO JURISDICTION |
Each of the parties hereto consents to the exclusive jurisdiction of the federal courts whose districts encompass any part of Tarrant County or the state courts of the State of Texas sitting in the City of Fort Worth, Texas in connection with any dispute arising under this Agreement and the other Documents. Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may effectively do so, any defense of an inconvenient forum or improper venue to the maintenance of such action or proceeding in any such court and any right of jurisdiction on account of its place of residence or domicile. Each party hereto irrevocably and unconditionally consents to the service of any and all process in any such action or proceeding in such courts by the mailing of copies of such process by registered or certified mail (return receipt requested), postage prepaid, at its address specified in Article XVII. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
| XII. WAIVER OF JURY TRIAL |
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER DOCUMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND OTHER DOCUMENTS. EACH PARTY HERETO (i) CERTIFIES THAT NEITHER OF THEIR RESPECTIVE REPRESENTATIVES, AGENTS OR ATTORNEYS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.
| XIII. COUNTERPARTS; EXECUTION |
This Agreement may be executed in counterparts, each of which when so executed and delivered shall be an original, but both of which counterparts shall together constitute one and the same instrument. A facsimile transmission of this signed Agreement shall be legal and binding on both parties hereto.
| XIV. HEADINGS |
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.
| XV. SEVERABILITY |
In the event any one or more of the provisions contained in this Agreement or in the other Documents should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
| XVI. ENTIRE AGREEMENT; REMEDIES, AMENDMENTS AND WAIVERS |
This Agreement and the Documents constitute the entire agreement between the parties hereto pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of such parties. No supplement, modification or waiver of this Agreement shall be binding unless executed in writing by both parties. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
| XVII. NOTICES |
Except as may be otherwise provided herein, any notice or other communication or delivery required or permitted hereunder shall be in writing and shall be delivered personally, or sent by telecopy machine or by a nationally recognized overnight courier service, and shall be deemed given when so delivered personally, or by telecopy machine or overnight courier service as follows:
A. If to the Company, to:
Rig Support Services, Inc.
0000 Xxxxxxx Xx.
# X000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx, CEO
B. If to Purchaser, to:
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx, CEO
The Company or Purchaser may change the foregoing address by notice given pursuant to this Article XVII.
| XVIII. CONFIDENTIALITY |
Each of the Company and Purchaser agrees to keep confidential and not to disclose to or use for the benefit of any third party the terms of this Agreement or any other information which at any time is communicated by the other party as being confidential without the prior written approval of the other party; provide, however, that this provision shall not apply to information which, at the time of disclosure, is already part of the public domain (except by breach of this Agreement) and information which is required to be disclosed by law (including, without limitation, pursuant to Item 601(b)(10) of Regulation S-K under the common stock Shares Act and the Exchange Act).
| XIX. ASSIGNMENT |
This Agreement shall not be assignable by the Company or Purchaser without the prior written consent of the Other Party.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be executed and delivered on the date first above written.
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Rig Support Services, Inc.
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By: /s/Xxxx Xxxxxx
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By: /s/ Xxxxx Xxxxxxx
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Name: Xxxx Xxxxxx
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Name: Xxxxx Xxxxxxx
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Title: CEO
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Title: CEO
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