SECURITIES PURCHASE AGREEMENT
Exhibit
10.17
This Securities Purchase Agreement
(this “Agreement”) is dated as of February 13, 2009, among Sino Charter, Inc., a
Nevada corporation (the “Company”), and __________ (the
“Purchaser”).
WHEREAS, subject to the terms and
conditions set forth in this Agreement and pursuant to Section 4(2) of the
Securities Act of 1933, as amended (the “Securities Act”) and Rule 504
promulgated thereunder, the Company desires to issue and sell to the Purchaser,
and the Purchaser desires to purchase from the Company, securities of the
Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the
mutual covenants contained in this Agreement, and for other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged, the
Company and the Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms have the meanings indicated in this
Section 1.1:
“Affiliate” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as such terms are
used in and construed under Rule 144. With respect to the Purchaser, any
investment fund or managed account that is managed on a discretionary basis by
the same investment manager as the Purchaser will be deemed to be an Affiliate
of the Purchaser.
“Business Day” means
any day except Saturday, Sunday and any day which shall be a federal legal
holiday or a day on which banking institutions in the State of Nevada are
authorized or required by law or other governmental action to
close.
“Closing” means the
closing of the purchase and sale of the Common Stock pursuant to
Section 2.1.
“Closing Date” means
the Business Day when this Agreement has been executed and delivered by the
applicable parties thereto, and all conditions precedent to the Purchaser’s
obligations to pay the Purchase Price have been satisfied or
waived.
“Commission” means the
Securities and Exchange Commission.
“Common Stock” means
the common stock of the Company, $0.00001 par value per share.
“Common Stock
Equivalents” means any securities of the Company which would entitle the
holder thereof to acquire at any time Common Stock, including without
limitation, any debt, preferred stock, rights, options, warrants or other
instrument that is at any time convertible into or exchangeable for, or
otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Liens” means a lien,
charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction.
“Losses” means a lien,
charge, security interest, encumbrance, rights of first refusal, preemptive
right or other restriction.
“Per Share Purchase
Price” equals $0.001.
“Person” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Proceeding” means an
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened.
“Purchase Price” means
_____
dollars.
“Rule 144” means Rule
144 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“Securities Act” means
the Securities Act of 1933, as amended.
“Shares” means the
_____ shares of Common Stock issued or issuable to the Purchaser pursuant to
this Agreement.
ARTICLE II
PURCHASE
AND SALE
2.1 Closing.
At the Closing, the Purchaser shall purchase from the Company, and the Company
shall issue and sell to the Purchaser, the Shares. Upon satisfaction of
the conditions set forth in Section 2.2, the Closing shall occur at the
offices of the Company, or such other location as the parties shall mutually
agree.
2.2 Closing
Conditions.
(a) At the Closing the
Company shall deliver to the Purchaser:
(i) this Agreement duly
executed by the Company; and
(ii) a certificate
evidencing the Shares registered in the name of the Purchaser.
(b) At the Closing the
Purchaser shall deliver or cause to be delivered to the Company the
following:
(i) this Agreement duly
executed by the Purchaser; and
(ii) the Purchase Price by
wire transfer to the account of the Company using the instructions attached
hereto as Exhibit A.
(c) All representations and
warranties of the other party contained herein shall remain true and correct as
of the Closing Date and all covenants of the other party shall have been
performed if due prior to such date.
2
ARTICLE III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and
Warranties of the Company. The Company hereby makes the following
representations and warranties set forth below to the Purchaser:
(a) Subsidiaries.
The Company has no direct or indirect subsidiaries.
(b) Organization and
Qualification. The Company is duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and to
carry on its business as currently conducted.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder or
thereunder. The execution and delivery of this Agreement by the Company
and the consummation by it of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of the Company and no
further consent or action is required by the Company. This Agreement has
been (or upon delivery will be) duly executed by the Company and, when delivered
in accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally and general principles of equity.
(d) Issuance of the
Shares. The Shares are duly authorized and, when issued and paid
for in accordance with this Agreement, will be duly and validly issued, fully
paid and nonassessable, free and clear of all Liens imposed by the Company other
than restrictions on transfer provided for in this Agreement.
(e) Capitalization.
The authorized capital stock of the Company presently consists of 100,000,000
shares of Common Stock, $0.00001 par value, and 100,000,000 shares of preferred
stock, $0.00001 par value. The Company has 10,977,500 shares of
Common Stock, and no shares of preferred stock, issued and outstanding, prior to
giving effect of the recent 1-100 reverse split of the Company’s Common
Stock. There are no outstanding options, warrants, script rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exchangeable for, or
giving any Person any right to subscribe for or acquire, any shares of Common
Stock, or contracts, commitments, understandings or arrangements by which the
Company is or may become bound to issue additional shares of Common Stock, or
securities or rights convertible or exchangeable into shares of Common
Stock.
(f)
Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or
investigation pending or, to the knowledge of the Company, threatened against or
affecting the Company before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county, local or
foreign) which adversely affects or challenges the legality, validity or
enforceability of any of this Agreement or the Shares.
(g) Reports; Financial
Statements. The Company has filed all reports required to be
filed by it under the Securities Act and the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, for the twelve (12) months preceding the date
hereof, (the foregoing materials being collectively referred to herein as the
“SEC Reports”) on a timely basis or has timely filed a valid extension of such
time of filing and has filed any such SEC Reports prior to the expiration of any
such extension. As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or 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.
3
(h) Shell Company Status.
The Company is a “shell company” (as such term is defined in Rule 12b-2
under the Exchange, as amended (17 CFR 240.12b-2)).
(i)
Insurance. The
Company maintains no insurance.
(j)
Private
Placement. Assuming the accuracy of the Purchaser representations
and warranties set forth herein, no registration under the Securities Act is
required for the offer and sale of the Shares by the Company to the Purchaser as
contemplated hereby in accordance with the terms of this
Agreement.
3.2 Representations and
Warranties of the Purchaser. The Purchaser represents and warrants
as of the date hereof and as of the Closing Date to the Company as
follows:
(a) Organization;
Authority. If the Purchaser is an entity, the Purchaser is an
entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with full right, corporate or partnership
power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
thereunder. The execution, delivery and performance by the Purchaser of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of the Purchaser. This Agreement,
to which it is party has been duly executed by the Purchaser, and when delivered
by the Purchaser in accordance with the terms hereof, will constitute the valid
and legally binding obligation of the Purchaser, enforceable against it in
accordance with its terms except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
(b) Investment
Intent. The Purchaser understands that the Shares are “restricted
securities” and have not been registered under the Securities Act or any
applicable state securities law and is acquiring the Shares as principal for its
own account for investment purposes only and not with a view to or for
distributing or reselling such Shares or any part thereof, has no present
intention of distributing any of such Shares and has no arrangement or
understanding with any other persons regarding the distribution of such
Shares. The Purchaser is acquiring the Shares hereunder in the ordinary
course of its business. The Purchaser does not have any agreement or
understanding, directly or indirectly, with any Person to distribute any of the
Shares.
(c) Purchaser
Status. At the time the Purchaser was offered the Shares, it was,
and at the date hereof it is an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act. The
Purchaser is not required to be registered as a broker-dealer under
Section 15 of the Exchange Act.
(d) Experience of the
Purchaser. The Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Shares, and has so evaluated the merits and
risks of such investment. The Purchaser is able to bear the economic risk
of an investment in the Shares and, at the present time, is able to afford a
complete loss of such investment.
4
(e) General
Solicitation. The Purchaser is not purchasing the Shares as a
result of any advertisement, article, notice, general solicitation or other
communication regarding the Shares published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
(f)
Residence. The
office or offices of the Purchaser in which its investment decision was made is
located at the address or addresses of the Purchaser set forth on the signature
page hereto.
(g) Rule 144.
Subject to Section 4.1(a), the Purchaser acknowledges and agrees that the
Shares are “restricted securities” as defined in Rule 144 promulgated under the
Securities Act as in effect from time to time and must be held indefinitely
unless they are subsequently registered under the Securities Act or an exemption
from such registration is available. The Purchaser has been advised or is
aware of the provisions of Rule 144, which permits limited resale of shares
purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things: the availability of certain current
public information about the Company, the resale occurring following the
required holding period under Rule 144 and the number of shares being sold
during any three-month period not exceeding specified
limitations.
ARTICLE IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Shares may only be disposed of in compliance with state and federal securities
laws. In connection with any transfer of Shares other than pursuant to an
effective registration statement or Rule 144, to the Company or to an Affiliate
of the Purchaser, the Company may require the transferor thereof to provide to
the Company an opinion of counsel selected by the transferor and reasonably
acceptable to the Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such transfer does
not require registration of such transferred Shares under the Securities
Act. As a condition of transfer, any such transferee shall agree in
writing to be bound by the terms of this Agreement and shall have the rights of
the Purchaser under this Agreement.
(b) The
Purchaser agrees to the imprinting, so long as is required by this
Section 4.1(b), of the following legend on any certificate evidencing
Shares:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.
(c) The
Purchaser agrees that the removal of the restrictive legend from certificates
representing Shares as set forth in this Section 4.1 is predicated upon the
Company’s reliance that the Purchaser will sell any Shares pursuant to either
the registration requirements of the Securities Act, including any applicable
prospectus delivery requirements, or an exemption therefrom.
5
ARTICLE V
MISCELLANEOUS
5.1 Fees and
Expenses. Except as otherwise set forth in this Agreement, each
party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all stamp and other taxes and duties
levied in connection with the sale of the Shares.
5.2 Entire
Agreement. This Agreement, together with the exhibits and schedules
thereto, contain the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge
have been merged into such documents, exhibits and schedules.
5.3 Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto prior to 5:00 p.m. (New York time) on a
Business Day, (b) the next Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number set
forth on the signature pages attached hereto on a day that is not a Business Day
or later than 6:00 p.m. (New York time) on any Business Day, (c) the second
Business Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service, or (d) upon actual receipt by the party to
whom such notice is required to be given. The address for such notices and
communications shall be as set forth on the signature pages attached
hereto.
5.4 Amendments;
Waivers. No provision of this Agreement may be waived or amended
except in a written instrument signed, in the case of an amendment, by the
Company and the Purchaser or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of either party to exercise any right hereunder in
any manner impair the exercise of any such right.
5.5 Construction.
The headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.
5.6 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. The
Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchaser. The Purchaser may
assign its rights under this Agreement to any Person to whom the Purchaser
assigns or transfers any Shares.
5.7 No Third-Party
Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not
for the benefit of, nor may any provision hereof be enforced by, any other
Person, except as otherwise set forth in Section 4.5.
6
5.8 Governing Law; Venue; Waiver
of Jury Trial. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the County of New York, New York, for the adjudication
of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the
enforcement of this Agreement), and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper or inconvenient venue for such proceeding. Each
party hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with
evidence of delivery) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by law. The parties hereby waive all rights to a trial by
jury. If either party shall commence an action or proceeding to enforce
any provisions of this Agreement, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its attorney’s fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such action or proceeding.
5.9 Survival. The
representations, warranties and covenants contained herein shall survive the
Closing and delivery and/or exercise of the Shares, as applicable.
5.10 Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original
thereof.
5.11 Severability.
If any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
IN WITNESS WHEREOF, the parties hereto
have caused this Securities Purchase Agreement to be duly executed by their
respective authorized signatories as of the date first indicated
above.
|
Sino
Charter, Inc.
|
|||
|
By:
|
|||
|
Name:
Xxxxxxx Xxxxxx
|
|||
|
Title:
President
|
|||
|
Address for
Notice:
|
|||
[SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
7
[PURCHASER’S
SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has
caused this Securities Purchase Agreement to be duly executed by its authorized
signatories as of the date first indicated above.
|
[PURCHASER]
|
Address for Notice:
|
||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Subscription
Amount: $
|
|||
|
Shares:
|
|||
8
