THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE. THERE ARE FURTHER
RESTRICTIONS ON THE TRANSFERABILITY OF SUCH SECURITIES DESCRIBED HEREIN. THE
PURCHASE OF THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK AND SHOULD BE
CONSIDERED ONLY BY PERSONS WHO CAN BEAR THE RISK OF THE LOSS OF THEIR ENTIRE
INVESTMENT. THIS OFFERING IS BEING MADE ONLY TO "ACCREDITED INVESTORS,"AS
SUCH TERM IS DEFINED IN REGULATION D AS PROMULGATED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.
PURCHASE AGREEMENT
International Capital Funding, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
September 1, 1999
Xxxxxxxx Xxxxx
00 Xxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xx. Xxxxx:
International Capital Funding, Inc., a Colorado corporation (the
"Company"), agrees with you (the "Purchaser") as follows:
1. OFFERING OF WARRANT. The Company is offering for sale warrants on the
form of Appendix A hereto (the "Warrants") to purchase shares of its common
stock, par value $.0001 per share (the "Common Stock"). The offering is being
made without registration under the Securities Act of 1933, as amended (the
"Act"), or the securities laws of any state, and is being made only to
"accredited investors" (as defined in Rule 501 of Regulation D under the
Securities Act).
2. SUBSCRIPTION FOR WARRANT. Subject to the terms and conditions hereof,
the Purchaser hereby irrevocably subscribes for and agrees to purchase a
Warrant at the total price of $1,000.00 (the "Purchase Price"), payable as
described in Section 4 hereof, and the Company accepts such subscription. The
Purchaser acknowledges that the Warrant and the shares of Common Stock
issuable upon exercise of the Warrant (the "Warrant Shares", and together with
the Warrant, the "Securities") will be subject to restrictions on transfer as
set forth in this Agreement and under the Securities Act.
3. THE CLOSING. The closing of the purchase and sale of the Warrant (the
"Closing") shall take place at the offices of the Company at 10:00 a.m., New
York time, on the third business day after the date of this agreement or at
such other time and place as the parties may agree upon. At the Closing, the
Company and the Purchaser shall enter into a Registration Rights Agreement in
the form of Appendix B hereto.
4. PAYMENT FOR AND DELIVERY OF WARRANT. Payment of the Purchase Price shall
be received by the Company from the Purchaser at or prior to the Closing by
check or wire transfer to an account designated by the Company. The Company
shall deliver the Warrant at the Closing, if the Purchaser or an authorized
representative attends the Closing, or by courier service or registered mail
promptly thereafter to the address set forth on the signature page of this
Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As of the Closing, the
Company represents and warrants that:
(a) The Company is duly incorporated, validly existing and in good
standing under the laws of the State of Colorado, with full power and
authority to conduct its business as it is currently being conducted and to
own its assets; and has secured any other authorizations, approvals, permits
and orders required by law for the conduct by the Company of its business as
it is currently being conducted.
(b) Of the 100,000,000 shares of authorized Preferred Stock of the
Company, par value $.01 per share (the "Preferred Stock"), none are issued and
outstanding. Of the 500,000,000 shares of authorized Common Stock of the
Company, par value $.0001 per share (the "Common Stock"), 19,830,000 shares
are issued and outstanding. All of the issued shares of Common Stock have
been duly and validly authorized and issued, and are fully paid and
nonassessable. There are outstanding no rights, options or warrants to
subscribe for or purchase Common Stock or Preferred Stock, and no securities
convertible into or exchangeable for Common Stock or Preferred Stock.
(c) The Company has duly authorized the issuance and sale of the
Securities by all requisite corporate action.
(d) The Company has duly reserved, out of its authorized and unissued
Common Stock, solely for the purpose of providing for the exercise of the
rights to purchase Warrant Shares pursuant to the Warrant, such number of
shares of Common Stock as are sufficient therefor. The Warrant Shares, when
issued and paid for, will be duly and validly authorized and issued and will
be fully paid and nonassessable, and the issuance thereof will not conflict
with the certificate of incorporation or bylaws of the Company.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER. The
Purchaser hereby represents and warrants to and covenants with the Company and
each officer, director, and agent of the Company that:
(a) The Purchaser has all requisite capacity to enter into this
Agreement and to perform all the obligations required to be performed by the
Purchaser hereunder.
(b) The execution and delivery of this Agreement by the Purchaser, and
the performance by the Purchaser of its obligations hereunder, will not
conflict with any agreement to which the Purchaser is a party.
(c) The Purchaser has such knowledge, skill and experience in business,
financial and investment matters so that the Purchaser is capable of
evaluating the merits and risks of an investment in the Securities. To the
extent necessary, the Purchaser has retained, at the Purchaser's own expense,
and relied upon, appropriate professional advice regarding the investment, tax
and legal merits and consequences of this Agreement and owning Securities.
(d) The Purchaser is an "accredited investor" as defined in Rule 501(a)
under the Securities Act. The Purchaser agrees to furnish any additional
information requested to assure compliance with applicable federal and state
securities laws in connection with the purchase and sale of the Securities.
(e) The Purchaser is acquiring the Securities solely for his own
account, for investment purposes, and not with a view to, or for resale in
connection with, any distribution thereof. The Purchaser understands that the
Securities have not been registered under the Securities Act or any state
securities laws by reason of specific exemptions under the provisions thereof
which depend in part upon the investment intent of the Purchaser and of the
other representations made by the Purchaser in this Agreement. The Purchaser
understands that the Company is relying upon the representations and
agreements contained in this Agreement (and any supplemental information) for
the purpose of determining whether this transaction meets the requirements for
such exemptions.
7. TRANSFER RESTRICTIONS.
(a) The Purchaser is aware that the Securities have not been registered
under the Securities Act and agrees that such Securities shall not be sold,
assigned, pledged, hypothecated, gifted or otherwise transferred or disposed
of (collectively, "Transferred", each such event being a "Transfer") in the
absence of such registration unless such contemplated transfer is exempt from
the registration requirements of the Securities Act and the Company is
provided with an opinion of counsel to the effect that registration under the
Securities Act is not required, or other evidence satisfactory to the Company.
(b) The Purchaser acknowledges that the certificate(s) for the
Securities will bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS INSTRUMENT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR TRANSFERRED OR OFFERED FOR SALE OR
TRANSFER IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND OTHER APPLICABLE SECURITIES LAWS, OR AN
OPINION OF COUNSEL OR SUCH OTHER EVIDENCE
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION UNDER THE SECURITIES ACT AND OTHER
APPLICABLE SECURITIES LAWS IS NOT REQUIRED.
THESE SECURITIES ARE ALSO RESTRICTED BY THE
TERMS OF A PURCHASE AGREEMENT, DATED AS OF
SEPTEMBER 1, 1999, A COPY OF WHICH IS AVAILABLE
AT THE OFFICES OF THE COMPANY."
8. BROKERS. The Purchaser represents and warrants that the Purchaser has
not entered into any agreement to pay any broker's or finder's fee to any
person, and that no fee or other compensation will be payable by the Company
to any affiliate of the Purchaser, with respect to this Agreement or the
transactions contemplated hereby.
9. WAIVER, AMENDMENT. Neither this Agreement nor any provisions hereof
shall be modified, changed, discharged or terminated except by an instrument
in writing, signed by the party against whom any waiver, change, discharge or
termination is sought.
10. ASSIGNABILITY. Neither this Agreement nor any right, remedy, obligation
or liability arising hereunder or by reason hereof shall be assignable by
either the Company or the Purchaser without the prior written consent of the
other party.
11. APPLICABLE LAW; ARBITRATION. This Agreement is to be construed in
accordance with and governed by the laws of the State of New York without
giving effect to any choice of law rule that would cause the application of
the laws of any jurisdiction other than the internal laws of the State of New
York to the rights and duties of the parties. Any dispute arising out of this
Agreement or the transactions contemplated hereby that the parties cannot
settle amicably shall be resolved exclusively by arbitration before one
neutral arbitrator in the City of New York and administered by the American
Arbitration Association ("AAA") in accordance with its Commercial Arbitration
Rules. The arbitrator shall be an attorney selected by mutual agreement of
the parties; provided, that if the parties cannot agree on the selection of an
arbitrator within 15 days following the delivery by either party to the other
of a demand for arbitration, the arbitrator shall be selected by or in
accordance with the Commercial Arbitration Rules of the AAA.
12. SECTION AND OTHER HEADINGS. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which together shall be deemed to be one and the
same agreement.
14. NOTICES. All notices and other communications provided for herein shall
be in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt requested,
or via internationally recognized courier service, postage prepaid:
If to the Company, to it at the following address:
International Capital Funding, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx, Chief Executive Officer
If to the Purchaser, to the Purchaser at the address set forth on
the first page hereof; or at such other address as either party shall have
specified by notice in writing to the other.
15. BINDING EFFECT. The provisions of this Agreement shall be binding upon
and accrue to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns.
16. SURVIVAL. All representations, warranties and covenants contained in
this Agreement shall survive the Closing.
17. ENTIRE UNDERSTANDING. This Agreement sets forth the entire agreement and
understanding of the parties hereto and supersedes any and all prior
agreements, arrangements and understandings among the parties.
IN WITNESS WHEREOF, the Company has executed this Purchase Agreement as
of the 1st day of September, 1999.
INTERNATIONAL CAPITAL FUNDING, INC.
By:______________________________________
Xxxxx Xxxxxxx, Chief Executive Officer
ACCEPTED AS OF SEPTEMBER 1, 1999:
________________________
Xxxxxxxx Xxxxx
________________________
SS Number
APPENDIX A
FORM OF WARRANT
