SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE
AGREEMENT (this
“Agreement”),
dated March 8, 2019 (the “Effective
Date”), by and
between Xxxxx Biocraft Laboratories, Inc., a Wyoming
corporation (the “Company”) with the address at 0000
Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 (the
“Company”)
and __________________ (the “Purchaser”).
Company and Purchaser are also hereinafter individually and
jointly referred to as “Party”
and/or “Parties.”
WHEREAS, the Company has determined to raise $1,000,000
(US Dollars) through the sale of shares of units, each consisting
of one share of its Class A common stock, no par value per share
(“Common
Stock”) and two warrants
to purchase shares of the Company’s Common Stock (the
“Warrants”
and, together with the Common Stock, the “Units”).
AGREEMENT
In consideration of the mutual promises herein contained and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties hereto agree as
follows:
1. Purchase and
Sale of Units.
(a) Upon
the following terms and conditions, the Company is offering to the
Purchaser and, in consideration of and in express reliance upon the
representations, warranties, covenants, terms and conditions of
this Agreement, the Purchaser agrees to purchase the Units for an
aggregate price of One Million US Dollars ($1,000,000) (the
“Purchase
Price”), at a price of
$0.06758 per Unit (the “Purchase Price Per
Unit”), for 14,797,278
Units. For the removal of doubt in acquiring 14,797,278 Units, the
Purchaser is purchasing 14,797,278 shares of the Company’s
Class A Common Stock (for purposes of this Agreement, the shares of
Class A Common Stock underlying the Unit are hereinafter referred
to as the “Unit
Shares”) and, for each
Unit purchased, the two Warrants described in clause 1(b)
herein.
(b) Each
Unit shall include two Warrants, substantially in the form set
forth in Exhibit
B, one of which entitles the
holder to purchase an amount of Common Stock equal to the number of
Unit Shares at an exercise price of $0.06 per share and one of
which entitles the holder to purchase an amount of Common Stock
equal to one-half the number of Unit Shares at an exercise price of
$0.08 per share. The Warrants shall be exercisable at any time from
the Effective Date until the following expiration
dates:
½
of all $0.06 warrant shares shall expire 24 months from
issuance
½
of all $0.06 warrant shares shall expire 36 months from
issuance
½
of all $0.08 warrant shares shall expire 36 months from
issuance
½
of all $0.08 warrant shares shall expire 48 months from
issuance
Consequently,
under the two Warrants, as the Purchaser is purchasing 14,797,278
Units, the Purchaser is entitled to purchase 14,797,278 shares of
Class A Common Stock at an exercise price of $0.06 per share and
7,398,639 shares of Class A Common Stock at an exercise price of
$0.08 per share.
2. Closing.
The closing of the purchase and sale of the Units (the
“Reg S
Closing”) shall take
place simultaneously with the execution of this Agreement via
e-mail by means of PDF copies of signed documents (with the
original signed documents to be delivered promptly after Reg S
Closing), or at such other time and by such other means as shall be
agreed to by the Company and the Purchaser. At the Reg S Closing,
the Purchaser shall have delivered the Purchase Price by wire
transfer or by check to the Company and the Company shall have
delivered a resolution of the Company’s Board of
Directors consistent with Section 5(b) hereof.
3. Restrictive
Legend. The Units, including
the shares of Common Stock and Warrants and shares of Common Stock
underlying the Warrants, (unless registered under the Act) shall be
stamped or imprinted with a legend in substantially the following
form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”). THE SHARES
HAVE BEEN ISSUED IN AN OFFSHORE TRANSACTION BY BIOCRAFT LABORATORIES,
INC., IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY REGULATION S. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED, EITHER DIRECTLY OR INDIRECTLY, IN THE UNITED STATES
(AS DEFINED IN REGULATION S) OR TO U.S. PERSONS EXCEPT IN
ACCORDANCE WITH REGULATION S, PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, THE AVAILABILITY OF WHICH IS
TO BE ESTABLISHED TO THE REASONABLE SATISFACTION OF BIOCRAFT LABORATORIES,
INC. HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT
4. Registration
Rights. The Company
hereby grants to the Purchaser the registration rights set forth on
Exhibit A
hereto.
5. Representations
and Warranties of the Company. The Company hereby represents
and warrants to the Purchaser on behalf of itself, its Subsidiaries
(as hereinafter defined), as of the date hereof (except as set
forth on the Schedule of Exceptions attached hereto with each
numbered Schedule corresponding to the section number herein), as
follows:
(a) Organization,
Good Standing and Power. The Company, and each of its
Subsidiaries, is a corporation or other entity duly incorporated or
otherwise organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization (as
applicable) and respectively, has the requisite corporate power to
own, lease and operate its properties and assets and to conduct its
business as it is now being conducted. The Company and each of its
Subsidiaries is duly qualified to do business and is in good
standing in every jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification
necessary except for any jurisdiction(s) (alone or in the
aggregate) in which the failure to be so qualified will not have a
Material Adverse Effect (as defined in Section 5(g)
hereof).
(b) Corporate Power; Authority and
Enforcement. The Company has the requisite corporate power
and authority to enter into and perform its
obligations under this Agreement, and to issue and sell the
Units, including the Common Stock and Warrants contained therein,
in accordance with the terms hereof. The execution, delivery and
performance of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby and thereby have been
duly and validly authorized by all necessary corporate action, and
no further consent or authorization of the Company or its Board of
Directors or stockholders is required. This Agreement constitutes,
or shall constitute when executed and delivered, 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, conservatorship, receivership or similar
laws relating to, or affecting generally the enforcement of,
creditor’s rights and remedies or by other equitable
principles of general application.
(c) Capitalization. The authorized
capital stock of the Company and the shares thereof currently
issued and outstanding as of December
31, 2018 is 816,883,910 shares of common stock, no par value and 2
shares of Series A preferred stock. The Company has
furnished or made available to the Purchaser true and correct
copies of the Company’s Articles of Incorporation, as amended
and in effect on the date hereof (the “Articles”), and the
Company’s Bylaws, as amended and in effect on the date hereof
(the “Bylaws”).
(d) Issuance of Securities. The
Units, the shares of Common Stock and the Warrants included
therein, to be issued at the Reg S Closing have been duly
authorized by all necessary corporate action and such securities,
when paid for or issued in accordance with the terms hereof, shall
be validly issued and outstanding, fully paid and
non-assessable.
(e) Subsidiaries. The Company does
not own, directly or indirectly, any equity or other ownership
interest in any corporation, partnership, joint venture or other
entity or enterprise other than its Vietnamese subsidiary, Prodigy
Textile Ltd.
(f) Commission
Documents, Financial Statements. The Company has filed all
reports, schedules, forms, statements and other documents required
to be filed by it with the U.S. Securities and Exchange Commission
(the “Commission” or “SEC”) pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), including
the Form 10-Q for the period ended
September 30, 2018 and other material filed pursuant to
Section 13(a) or 15(d) of the Exchange Act (all of the foregoing
including filings incorporated by reference therein being referred
to herein as the “Commission Documents”).
The Company has not provided to the Purchaser any material
non-public information or other information which, according to
applicable law, rule or regulation, was required to have been
disclosed publicly by the Company but which has not been so
disclosed, other than (i) with respect to the transactions
contemplated by this Agreement, or (ii) pursuant to a
non-disclosure or confidentiality agreement signed by the
Purchaser. At the time of the respective filings, the Form
10-K’s and the Form 10-Q’s complied in all material
respects with the requirements of the Exchange Act and the rules
and regulations of the Commission promulgated thereunder and other
federal, state and local laws, rules and regulations applicable to
such documents. As of their respective filing dates, none of the
Form 10-K’s or Form 10-Q’s contained any untrue
statement of a material fact; and none 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. The financial statements of the
Company included in the Commission Documents (the “Financial
Statements”) comply as to form in all material respects with
applicable accounting requirements and the published rules and
regulations of the Commission or other applicable rules and
regulations with respect thereto. Such financial statements have
been prepared in accordance with United States generally accepted
accounting principles (“GAAP”) applied on a
consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes
thereto or (ii) 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 material respects
the consolidated 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).
(g) No Material Adverse Effect.
As of the date of this Agreement, the
Company, and its Subsidiaries
have not experienced or suffered any Material Adverse Effect. For
the purposes of this Agreement, “Material Adverse
Effect” shall mean
(i) any material adverse effect
upon the assets, properties, financial condition, business or prospects of the Company, and its Subsidiaries, when taken
as a consolidated whole, and/or (ii) any condition, circumstance,
or situation that would prohibit or otherwise materially interfere
with the ability of the Company to perform any of its
material covenants, agreements and
obligations under this Agreement.
(h) No Undisclosed Liabilities.
Other than as disclosed in the
Company’s Commission Documents or on Schedule 5(h) to the knowledge
of the Company, neither the Company, nor the Subsidiaries has any
liabilities, obligations, claims or losses (whether liquidated or
unliquidated, secured or unsecured, absolute, accrued, contingent
or otherwise) other than those incurred in the ordinary course of
the Company’s and the Subsidiaries’ respective
businesses and which, individually or in the aggregate, do not or
would not have a Material Adverse Effect.
(i) No Undisclosed Events or
Circumstances. To the Company’s knowledge, no event or
circumstance has occurred or exists with respect to the Company,
the Subsidiaries or their respective businesses, properties,
operations or financial condition, which, under applicable law,
rule or regulation, requires public disclosure or announcement by
the Company but which has not been so publicly announced or
disclosed.
(j) Title to Assets. Except where non-compliance would not have a
Material Adverse Effect, each
of the Company and the Subsidiaries has good and marketable
title to (i) all properties and assets purportedly owned or used by
them as reflected in the Financial Statements, (ii) all properties
and assets necessary for the conduct of their business as currently
conducted, and (iii) all of the real and personal property
reflected in the Financial Statements free and clear of any Lien.
All leases are valid and subsisting and in full force and
effect.
(k) Actions Pending. There is no
action, suit, claim, investigation, arbitration, alternate dispute
resolution proceeding or any other proceeding pending or, to the
knowledge of the Company, threatened against or involving the
Company which questions the validity
of this Agreement or the transactions contemplated hereby or
thereby or any action taken or to be taken pursuant hereto or
thereto.
(l) Compliance with Law. The
Company has all material franchises, permits, licenses, consents
and other governmental or regulatory authorizations and approvals
necessary for the conduct of their respective business as now being
conducted by it unless the failure to possess such franchises,
permits, licenses, consents and other governmental or regulatory
authorizations and approvals, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse
Effect.
(m) No
Violation. The business of the Company is not knowingly
being conducted in violation of any Federal, state, local or
foreign governmental laws, or rules, regulations and ordinances of
any of any governmental entity, except for possible violations
which singularly or in the aggregate could not reasonably be
expected to have a Material Adverse Effect. The Company is not
required under Federal, state, local or foreign law, rule or
regulation 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,
including the shares of Common Stock and Warrants included therein,
in accordance with the terms hereof or thereof (other than (x) any
consent, authorization or order that has been obtained as of the
date hereof, (y) any filing or registration that has been made as
of the date hereof or (z) any filings which may be required to be
made by the Company with the Commission or state securities
administrators subsequent to the Reg S Closing.
(n) No Conflicts. The execution,
delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated herein
and therein do not and will not (i) violate any provision of the
Company’s Certificate or Bylaws, (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, mortgage, deed of trust, indenture, note, bond,
license, lease agreement, instrument or obligation to which the
Company is a party or by which it or its properties or assets are
bound, (iii) create or impose a lien, mortgage, security interest,
pledge, charge or encumbrance (collectively, “Lien”) of any nature on
any property of the Company under any agreement or any commitment
to which the Company is a party or by which the Company is bound or
by which any of its respective properties or assets are bound, or
(iv) result in a violation of any federal, state, local or foreign
statute, rule, regulation, order, judgment or decree (including
Federal and state securities laws and regulations) applicable to
the Company or any of its subsidiaries or by which any property or
asset of the Company or any of its subsidiaries are bound or
affected, provided,
however, that,
excluded from the foregoing in all cases are such conflicts,
defaults, terminations, amendments, accelerations, cancellations
and violations as would not, individually or in the aggregate, have
a Material Adverse Effect.
(o) Certain Fees. Except as set
forth on Schedule
5(o) hereto, no brokers
fees, finders fees or financial advisory fees or commissions will
be payable by the Company with respect to the transactions
contemplated by this Agreement.
(p) Books and Record. Except as may
have otherwise been disclosed in the Commission Documents, the
books and records of the Company accurately reflect in all material
respects the information relating to the business of the
Company.
(q) Material Agreements. Any and
all written or oral contracts, instruments, agreements,
commitments, obligations, plans or arrangements, the Company and
the Subsidiaries is a party to, that a copy of which would be
required to be filed with the Commission as an exhibit to a
registration statement on Form S-1 (collectively, the
“Material
Agreements”) if the Company or any subsidiary were
registering securities under the Securities Act has previously been
publicly filed with the Commission in the Commission
Documents.
(r) Transactions with Affiliates.
Except as set forth in the Financial Statements or in the
Commission Documents, there are no loans, leases, agreements,
contracts, royalty agreements, management contracts or arrangements
or other continuing transactions between (a) the Company or any
subsidiary on the one hand, and (b) on the other hand, any officer,
employee, consultant or director of the Company, or any of
Subsidiaries, or any person owning any capital stock of the Company
or any subsidiary or any member of the immediate family of such
officer, employee, consultant, director or stockholder or any
corporation or other entity controlled by such officer, employee,
consultant, director or stockholder, or a member of the immediate
family of such officer, employee, consultant, director or
stockholder.
6.
Representations and
Warranties of the Purchaser. The Purchaser hereby makes the
following representations and warranties to the Company as of the
date hereof:
(a) Intentionally
Omitted.
(b) Authorization and Power. The
Purchaser has the requisite power and authority to enter into and
perform this Agreement. The execution, delivery and performance of
this Agreement and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate, partnership or limited liability company
action, and no further consent or authorization of such Purchaser
or its Board of Directors, stockholders, partners, members, or
managers, as the case may be, is required. This Agreement has been
duly authorized, executed and delivered by such Purchaser and
constitutes, or shall constitute when executed and delivered, a
valid and binding obligation of such Purchaser enforceable against
such Purchaser in accordance with the terms hereof.
(c) No Conflicts. The execution,
delivery and performance of this Agreement and the consummation by
such Purchaser of the transactions contemplated hereby and thereby
or relating hereto do not and will not (i) result in a violation of
such Purchaser’s charter documents, bylaws, operating
agreement, partnership agreement or other organizational documents
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 or obligation to which such Purchaser is a party or by
which its properties or assets are bound, or result in a violation
of any law, rule, or regulation, or any order, judgment or decree
of any court or governmental agency applicable to such Purchaser or
its properties (except for such conflicts, defaults and violations
as would not, individually or in the aggregate, have a material
adverse effect on such Purchaser). Such Purchaser is not required
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, provided, that for purposes of the
representation made in this sentence, such Purchaser is assuming
and relying upon the accuracy of the relevant representations and
agreements of the Company herein.
(d) Status of Purchaser. The
Purchaser is not required to be registered as a broker-dealer under
Section 15 of the Exchange Act and such Purchaser is not a
broker-dealer, nor an affiliate of a broker-dealer.
(e) Reliance
on Exemptions. The Purchaser
understands that the Units, including the shares of Common Stock
and Warrants included therein, are being offered and sold to it in
reliance upon specific exemptions from the registration
requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and the
Purchaser’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set
forth herein in order to determine the availability of such
exemptions and the eligibility of the Purchaser to acquire the
Units.
(f) Information.
The Purchaser and its advisors, if any, have had the opportunity to
ask questions of management of the Company and its Subsidiaries and
have been furnished with all information relating to the business,
finances and operations of the Company and information relating to
the offer and sale of the Units, including the shares of Common
Stock and Warrants included therein, which have been requested by
the Purchaser or its advisors. Neither such inquiries nor any other
due diligence investigation conducted by the Purchaser or any of
its advisors or representatives shall modify, amend or affect the
Purchaser’s right to rely on the representations and
warranties of the Company contained herein. The Purchaser
understands that its investment in the Units, including the shares
of Common Stock and Warrants included therein, involves a
significant degree of risk. The Purchaser is aware that the Company
regularly file reports with the Securities and Exchange Commission
including, without limitation, 10Q and 10K filings, which the
Company has done since 2008. The Purchaser acknowledges having
access to those reports and represents that they has review all
such filings to their satisfaction including, the financial
statements, statements of auditors, management disclosures, and
history of operations. The
Purchase is aware that the company is currently traded on the OTC
markets and is aware of the risks associated with small cap
companies. The Purchaser
further represents to the Company that the Purchaser’s
decision to enter into this Agreement has been based solely on the
independent evaluation of the Purchaser and its
representatives.
(g) Governmental
Review. The Purchaser
understands that no United States federal or state agency or any
other government or governmental agency has passed upon or made any
recommendation or endorsement of the Units or the shares of Common
Stock and Warrants included therein.
(h) Intent. The
Purchaser is purchasing the Units solely for investment purposes,
for the Purchaser’s own account and not for the account or
benefit of any U.S. Person (as defined below) or any other person
or entity, and not with a view towards the distribution or
dissemination thereof. The Purchaser has no present
arrangement to sell the Units or the
shares of Common Stock and Warrants included therein to or
through any person or entity. The Purchaser understands
that the Units, including the shares
of Common Stock and Warrants included therein and the shares of
Common Stock issuable upon exercise of the Warrants, must be
held indefinitely unless such securities are resold in accordance
with the provisions of Regulation S, are subsequently registered
under the Securities Act or an exemption from registration is
available.
(i) Investment
Experience. The Purchaser, or the
Purchaser’s professional advisors, have such knowledge and
experience in finance, securities, taxation, investments and other
business matters as to evaluate investments of the kind described
in this Agreement. The Purchases has such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of the investment. By reason of the
business and financial experience of the Purchaser or his or her
professional advisors (who are not affiliated with or compensated
in any way by Company or any of its affiliates or selling agents),
the Purchaser can protect his or her own interests in connection
with the transactions described in this Agreement. The
Purchaser is able to afford the loss of his, her or its entire
investment in the Units.
(j) Independent
Investigation. The Purchaser, in making the
decision to purchase the Units, has relied upon an independent
investigation of Company, including but not limited to reviewing
the Company’s 10K, 10Q, X-0, X-0, and 8K filings, and has not
relied upon any information or representations made by any third
parties or upon any oral or written representations or assurances
from Company, its officers, directors or employees or any other
representatives or agents of Company, other than as set forth in
this Agreement. The Purchaser is familiar with the
business, operations and financial condition of Company and has had
an opportunity to ask questions of, and receive answers from,
Company’s officers and directors concerning Company and the
terms and conditions of the offering of the Units and has had full
access to such other information concerning Company as the
Purchaser has requested.
(k) Authority. This
Agreement has been validly authorized, executed and delivered by
the Purchaser and is a valid and binding agreement enforceable in
accordance with its terms, subject to the general principles of
equity and to bankruptcy or other laws affecting the enforcement of
creditors’ rights generally. The execution, delivery and
performance of this Agreement by the Purchaser does not and will
not conflict with, violate or cause a breach of any agreement,
contract or instrument to which the Purchaser is a
party.
(l) No
Advice from Company. The Purchaser acknowledges
that he, she or it has had the opportunity to review this
Agreement, the exhibit(s) hereto and the transactions contemplated
by this Agreement with the Purchaser’s own legal counsel and
investment and tax advisors. Except for any statements
or representations of Company made in this Agreement, the Purchaser
is relying solely on such counsel and advisors and not on any
statements or representations of Company or any of its
representatives or agents for legal, tax or investment advice with
respect to this investment, the transactions contemplated by this
Agreement or the securities laws of any jurisdiction.
(m) Reliance
on Representations and Warranties. The Purchaser
understands that the Units are being offered and sold to the
Purchaser in reliance on exemptions contained in specific
provisions of United States federal and state securities laws and
that Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and
understandings of the Purchaser set forth in this Agreement in
order to determine the applicability of the exemptions contained in
such provisions.
(n) Regulation
S Exemption. The Purchaser acknowledges and
agrees that none of the or the shares
of Common Stock and Warrants included therein have been
registered under the Securities Act, or under any state securities
or "blue sky" laws of any state of the United States, and are being
offered only in a transaction not involving any public offering
within the meaning of the Securities Act, and, unless so
registered, may not be offered or sold in the United States or to
U.S. Persons (as defined herein), except pursuant to an effective
registration statement under the Securities Act, or pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, and in each case
only in accordance with applicable state and provincial securities
laws. The Purchaser understands that the Units are being offered
and sold to him, her or it in reliance on an exemption from the
registration requirements of United States federal and state
securities laws under Regulation S promulgated under the Securities
Act and that Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and
understandings of the Purchaser set forth herein in order to
determine the applicability of such exemptions and the suitability
of the Purchaser to acquire the Units. In this regard,
the Purchaser represents, warrants and agrees that:
(i) The
Purchaser is not a U.S. Person and is not an affiliate (as
defined in Rule 501(b) under the Securities Act) of Company and is
not acquiring the Units for the account or benefit of a U.S.
Person. A “U.S. Person” means any one of the
following:
(A)
any natural person
resident in the United States of America;
(B)
any partnership,
limited liability Company, corporation or other entity organized or
incorporated under the laws of the United States of
America;
(C)
any estate of which
any executor or administrator is a U.S. Person;
(D)
any trust of which
any trustee is a U.S. Person;
(E)
any agency or
branch of a foreign entity located in the United States of
America;
(F)
any
non-discretionary account or similar account (other than an estate
or trust) held by a dealer or other fiduciary for the benefit or
account of a U.S. person;
(G)
any discretionary
account or similar account (other than an estate or trust) held by
a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States of America;
and
(H)
any partnership,
Company, corporation or other entity if:
(1)
organized or
incorporated under the laws of any foreign jurisdiction;
and
(2)
formed by a U.S.
person principally for the purpose of investing in securities not
registered under the Securities Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined in Rule 501(a) under
the Securities Act) who are not natural persons, estates or
trusts.
(ii) At
the time of the origination of contact concerning this Agreement
and the date of the execution and delivery of this Agreement, the
Purchaser was outside of the United States.
(iii) The
Purchaser realizes that the basis for the exemption may not be
present if, notwithstanding such representations, the Purchaser has
in mind merely acquiring the Units,
including the shares of Common Stock and Warrants included
therein, for a fixed or determinable period in the future,
or for a market rise, or for sale if the market does not rise. The
Purchaser does not have any such intention.
(iv)
The
Purchaser will not, during the period commencing on the date of
issuance of the Units and ending on the first anniversary of such
date, or such shorter period as may be permitted by Regulation S or
other applicable securities law (the “Restricted
Period”), offer, sell, pledge or otherwise transfer the
Units or the shares of Common Stock
and Warrants included therein, in the United States, or to a
U.S. Person for the account or for the benefit of a U.S. Person, or
otherwise in a manner that is not in compliance with Regulation
S.
(v) The
Purchaser will, after expiration of the Restricted Period, offer,
sell, pledge or otherwise transfer the Units, including the shares of Common Stock and
Warrants included therein, only pursuant to registration
under the Securities Act or an available exemption therefrom and,
in accordance with all applicable state and foreign securities
laws.
(vi) The
Purchaser was not in the United States engaged in, and prior to the
expiration of the Restricted Period will not engage in, any short
selling of or any hedging transaction with respect to the
Units, including the shares of Common
Stock and Warrants included therein, including without
limitation, any put, call or other option transaction, option
writing or equity swap. This Agreement and the transactions
contemplated herein are not part of a plan or scheme to evade the
registration provisions of the Securities Act, and the Units and
Securities are being acquired for investment purposes by the
Purchaser.
(vii) Neither
the Purchaser nor or any person acting on his behalf has engaged,
nor will engage, in any directed selling efforts to a U.S. Person
with respect to the Units, including
the shares of Common Stock and Warrants included therein,
and the Purchaser and any person acting on his or her behalf have
complied and will comply with the “offering
restrictions” requirements of Regulation S under the
Securities Act.
(viii) The
transactions contemplated by this Agreement have not been
pre-arranged with a buyer located in the United States or with a
U.S. Person, and are not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(ix) Neither
the Purchaser nor any person acting on its behalf has undertaken or
carried out any activity for the purpose of, or that could
reasonably be expected to have the effect of, conditioning the
market in the United States, its territories or possessions, for
any of the Units or the shares of
Common Stock and Warrants included therein,. The
Purchaser agrees not to cause any advertisement of the Units or the shares of Common Stock and Warrants
included therein, to be published in any newspaper or
periodical or posted in any public place and not to issue any
circular relating to such securities, except such advertisements
that include the statements required by Regulation S under the
Securities Act, and only offshore and not in the U.S. or its
territories, and only in compliance with any local applicable
securities laws.
(o) No
Advertisements or Direct Selling Effort. The
Purchaser is not receiving the Units as a result of or subsequent
to any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media or broadcast
over television or radio or via the Internet, or presented at any
seminar or meeting. The Purchaser has not acquired the Units as a
result of, and will not itself engage in, any "directed selling
efforts" (as defined in Regulation S) in the United States in
respect of any of the Units, including
the shares of Common Stock and Warrants included therein,
which would include any activities undertaken for the purpose of,
or that could reasonably be expected to have the effect of,
conditioning the market in the United States for the resale of any
of the Units or the shares of Common
Stock and Warrants included therein; provided, however, that
the Purchaser may sell or otherwise dispose of any of such
securities pursuant to registration of any of the Shares pursuant
to the Securities Act and any applicable state securities laws or
under an exemption from such registration requirements and as
otherwise provided herein.
(p) Legend. The
Purchaser acknowledges and agrees that the Units, including the
shares of Common Stock and Warrants included therein, shall bear a
restricted legend (the “Legend”), in the form and
substance as set forth in Section 3 hereof, prohibiting the offer,
sale, pledge or transfer of the securities, except (i) pursuant to
an effective registration statement filed under the Securities Act,
(ii) in accordance with the applicable provisions of Regulation S,
promulgated under the Securities Act, (iii) pursuant to an
exemption from registration provided by Rule 144 under the
Securities Act (if available), and (iv) pursuant to any other
exemption from the registration requirements of the Securities Act
or for estate planning purposes.
(q) Compliance
with Laws. Any resale of the Units, including the shares of Common Stock and
Warrants included therein, during the “distribution
compliance period” as defined in Rule 902(f) to Regulation S
shall only be made in compliance with exemptions from registration
afforded by Regulation S. Further, any such sale of such
securities in any jurisdiction outside of the United States will be
made in compliance with the securities laws of such
jurisdiction. The Purchaser will not offer to sell or
sell the Units or the shares of Common
Stock and Warrants included therein, in any jurisdiction
unless the Purchaser obtains all required consents, if
any.
7. Further
Assurances. Each
Party to this Agreement will use its best efforts to take all
action and to do all things necessary, proper, or advisable in
order to consummate and make effective the transactions
contemplated by this Agreement.
8. Entire Agreement;
Amendments. This
Agreement contains the entire understanding of the Parties with
respect to the matters covered herein and therein and, except as
specifically set forth herein, neither Company nor the Purchaser
makes any representation, warranty, covenant or undertaking with
respect to such matters. No amendment, modification, termination or
waiver of any provision of this Agreement, and no consent to any
departure therefrom, shall in any event be effective unless the
same shall be in writing and signed by both Parties. Any such
waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was
given.
9. Survival of
Agreements, Representations and Warranties, etc. All representations and warranties
contained herein shall survive the execution and delivery of this
Agreement.
10. Successors and
Assigns. This
Agreement shall bind and inure to the benefit of and be enforceable
by the Parties and their respective successors and
assigns.
11. Governing
Law. This Agreement and the
obligations, rights and remedies of the Parties hereto are to be
construed in accordance with and governed by the laws of the State
of New York, with any action/dispute concerning this Agreement to
be commenced exclusively in the state and federal courts sitting in
New York.
12. Severability.
In the event that any provision of this Agreement is invalid
or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any provision hereof which may
prove invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision
hereof.
13. Miscellaneous.
This Agreement embodies the entire agreement and
understanding between the Parties hereto and supersedes all prior
agreements and understandings relating to the subject matter
hereof. If any provision of this Agreement shall be
held invalid or unenforceable for whatever reason, the remainder of
this Agreement shall not be affected thereby and every remaining
provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. This Agreement may be executed in
any number of counterparts and by the Parties hereto on separate
counterparts but all such counterparts shall together constitute
but one and the same instrument.
14. All communications
hereunder shall be in writing and shall be mailed, hand delivered,
delivered by reputable overnight courier (i.e., Federal Express) or
delivered by e-mail transmission to the parties hereto as
follows:
If
to the Company:
The
address first written above, attention Xxx Xxxxxxxx,
CEO
With
a copy (which shall not constitute notice) to:
Xxxxxx
Xxxxxxx Xxxxxxx & Li LLC
0000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxx Xxxxxxx, Esq.
Fax
No.: (000) 000-0000
If
to the Purchaser:
Attn:
With
a copy (which shall not constitute notice) to:
Any
party hereto may change the address for receipt of communications
by giving written notice to the others.
[Signature
Page Follows]
IN WITNESS WHEREOF, the Parties
hereto have executed this Share Purchase Agreement as of the date
first above written.
Xxxxx Biocraft Laboratories, Inc. (the
“Company”):
By:_______________________
Name:
Title:
Purchaser:
EXHIBIT A
Piggy-Back
Registration Rights
The
shares of Common Stock included in the Units and the shares of
Common Stock issuable upon exercise of the Warrants will be deemed
“Registrable Securities” subject to the provisions of
this Exhibit A. All capitalized terms used but not defined in this
Exhibit A shall have the meanings ascribed to such terms in the
Securities Purchase Agreement to which this Exhibit is
attached.
1.
Piggy-Back
Registration.
1.1 Piggy-Back
Rights. If at any time on or after the date of the Reg S
Closing the Company proposes to file any Registration Statement
under the 1933 Act (a “Registration Statement”) with
respect to any offering of equity securities, or securities or
other obligations exercisable or exchangeable for, or convertible
into, equity securities, by the Company for its own account or for
shareholders of the Company for their account (or by the Company
and by shareholders of the Company), other than a Registration
Statement (i) filed in connection with any employee stock option or
other benefit plan, (ii) for a dividend reinvestment plan or (iii)
in connection with a merger or acquisition, then the Company shall
(x) give written notice of such proposed filing to the holders of
Registrable Securities appearing on the books and records of the
Company as such a holder as soon as practicable but in no event
less than ten (10) days before the anticipated filing date of the
Registration Statement, which notice shall describe the amount and
type of securities to be included in such Registration Statement,
the intended method(s) of distribution, and the name of the
proposed managing underwriter or underwriters, if any, of the
offering, and (y) offer to the holders of Registrable Securities in
such notice the opportunity to register the sale of such number of
Registrable Securities as such holders may request in writing
within ten (10) days following receipt of such notice (a
“Piggy-Back Registration”). The Company shall cause
such Registrable Securities to be included in such registration and
shall cause the managing underwriter or underwriters of a proposed
public offering (inclusive of best efforts and firm commitment
offerings) to permit the Registrable Securities requested to be
included in a Piggy-Back Registration on the same terms and
conditions as any similar securities of the Company and to permit
the sale or other disposition of such Registrable Securities in
accordance with the intended method(s) of distribution thereof. All
holders of Registrable Securities proposing to distribute their
securities through a Piggy-Back Registration that involves an
underwriter or underwriters shall enter into an underwriting
agreement in customary form with the underwriter or underwriters
selected for such Piggy-Back Registration.
1.2 Withdrawal.
Any holder of Registrable Securities may elect to withdraw such
holder’s request for inclusion of Registrable Securities in
any Piggy-Back Registration by giving written notice to the Company
of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company (whether on its own
determination or as the result of a withdrawal by persons making a
demand pursuant to written contractual obligations) may withdraw a
Registration Statement at any time prior to the effectiveness of
such Registration Statement. Notwithstanding any such withdrawal,
the Company shall pay all expenses incurred by the holders of
Registrable Securities in connection with such Piggy-Back
Registration as provided in Section 1.5 below.
1.3 The
Company shall notify the holders of Registrable Securities at any
time when a prospectus relating to such holder’s Registrable
Securities is required to be delivered under the 1933 Act, upon
discovery that, or upon the happening of any event as a result of
which, the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing. At the request of such holder, the
Company shall also prepare, file and furnish to such holder a
reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of the Registrable Securities, such
prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing. The holders of Registrable
Securities shall not to offer or sell any Registrable Securities
covered by the Registration Statement after receipt of such
notification until the receipt of such supplement or
amendment.
1.4 The
Company may request a holder of Registrable Securities to furnish
the Company such information with respect to such holder and such
holder’s proposed distribution of the Registrable Securities
pursuant to the Registration Statement as the Company may from time
to time reasonably request in writing or as shall be required by
law or by the SEC in connection therewith, and such holders shall
furnish the Company with such information.
1.5 All
fees and expenses incident to the performance of or compliance with
this Exhibit A by the Company shall be borne by the Company whether
or not any Registrable Securities are sold pursuant to a
Registration Statement. The fees and expenses referred to in the
foregoing sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees
and expenses of the Company’s counsel and independent
registered public accountants) (A) with respect to filings made
with the SEC, (B) with respect to filings required to be made with
any trading market on which the Common Stock is then listed for
trading, (C) in compliance with applicable state securities or Blue
Sky laws reasonably agreed to by the Company in writing (including,
without limitation, fees and disbursements of counsel for the
Company in connection with Blue Sky qualifications or exemptions of
the Registrable Securities) and (D) with respect to any filing that
may be required to be made by any broker through which a holder of
Registrable Securities intends to make sales of Registrable
Securities with the FINRA, (ii) printing expenses, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) 1933 Act liability insurance, if the
Company so desires such insurance, (vi) fees and expenses of all
other persons or entities retained by the Company in connection
with the consummation of the transactions contemplated by this
Exhibit A and (vii) reasonable fees and disbursements of a single
special counsel for the holders of Registrable Securities (selected
by holders of the majority of the Registrable Securities requesting
such registration), up to $10,000 for each registration. In
addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual
audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as
required hereunder. In no event shall the Company be responsible
for any broker or similar commissions of any holder of Registrable
Securities.
1.6 The
Company and its successors and assigns shall indemnify and hold
harmless the Purchaser, each holder of Registrable Securities, the
officers, directors, members, partners, agents and employees (and
any other individuals or entities with a functionally equivalent
role of a person holding such titles, notwithstanding a lack of
such title or any other title) of each of them, each individual or
entity who controls the Purchaser or any such holder of Registrable
Securities (within the meaning of Section 15 of the 1933 Act or
Section 20 of the 0000 Xxx) and the officers, directors, members,
stockholders, partners, agents and employees (and any other
individuals or entities with a functionally equivalent role of a
person holding such titles, notwithstanding a lack of such title or
any other title) of each such controlling individual or entity
(each, an “Indemnified Party”), to the fullest extent
permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation,
reasonable attorneys’ fees) and expenses (collectively,
“Losses”), as incurred,
arising out of or relating to (1) any untrue or alleged untrue
statement of a material fact contained in a Registration Statement,
any related prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus,
or arising out of or relating to any omission or alleged omission
of a material fact required to be stated therein or necessary to
make the statements therein (in the case of any such prospectus or
supplement thereto, in light of the circumstances under which they
were made) not misleading or (2) any violation or alleged violation
by the Company of the 1933 Act, the 1934 Act or any state
securities law, or any rule or regulation thereunder, in connection
with the performance of its obligations under this Exhibit A,
except to the extent, but only to the extent, that (i) such untrue
statements or omissions are based upon information regarding the
Purchaser or such holder of Registrable Securities furnished to the
Company by such party for use therein. The Company shall notify the
Purchaser and each holder of Registrable Securities promptly of the
institution, threat or assertion of any proceeding arising from or
in connection with the transactions contemplated by this Exhibit A
of which the Company is aware.
1.7 If
the indemnification under Section 1.6 is unavailable to an
Indemnified Party or insufficient to hold an Indemnified Party
harmless for any Losses, then the Company shall contribute to the
amount paid or payable by such Indemnified Party, in such
proportion as is appropriate to reflect the relative fault of the
Company and Indemnified Party in connection with the actions,
statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of the
Company and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by,
or relates to information supplied by, the Company or the
Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or
prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to
include any reasonable attorneys’ or other fees or expenses
incurred by such party in connection with any proceeding to the
extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in Section 1.6 was
available to such party in accordance with its terms. It is agreed
that it would not be just and equitable if contribution pursuant to
this Section 1.7 were determined by pro rata allocation or by any
other method of allocation that does not take into account the
equitable considerations referred to in the immediately preceding
sentence. Notwithstanding the provisions of this Section 1.7,
neither the Purchaser nor any holder of Registrable Securities
shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the net proceeds actually received by
such party from the sale of all of their Registrable Securities
pursuant to such Registration Statement or related prospectus
exceeds the amount of any damages that such party has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
[End of Exhibit A]
EXHIBIT B
Form of
Stock Purchase Warrant
