Exhibit 10.1
AGREEMENT
This AGREEMENT (the "Agreement") is made as of the 4th day of September,
2008, by and between:
XXXXX XXXX, a businessman having an address for notice and delivery
located at 15 Zichron Ya'akov, Suite 23 Entrance B. Xxxxxxxxx 00000,
Xxxxxx.
(the "Seller" )
and
XXXXX X. MAZ, a businessman having an address for notice and delivery
located at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx, 00000 (the
"Purchaser").
R E C I T A L S:
FIRST, Seller is the owner of an aggregate of 500,000 shares (the "Shares")
of common stock of Your Digital Memories, Inc., a Nevada corporation ("YDM", or
the "Company");
SECOND, Seller desires to sell the Shares to Purchaser on the terms and
conditions provided for in this Agreement.
THRID, Purchaser desires to purchase the Shares from the Seller on the
terms and conditions provided for in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
I. SALES OF THE SHARES.
1.01 SHARES BEING SOLD. Subject to the terms and conditions of this
Agreement, the Seller is selling, assigning, and delivering the Shares to the
Purchaser at the closing provided for in Section 1.03 hereof (the "Closing"),
free and clear of all liens, charges, or encumbrances of whatsoever nature.
1.02 CONSIDERATION. Seller acknowledges that Purchaser is purchasing the
Shares for consideration of US$100,000, which shall be delivered to Seller.
1.03 CLOSING. The Closing of the transactions provided for in this
Agreement is taking place on or before September 14, 2008 and no sooner than
after the tenth day after the filing of a Schedule 14F with the SEC on XXXXX.
II. REPRESENTATIONS AND WARRANTIES BY THE SELLER.
The Seller hereby represents and warrants to the Purchaser that to the best
of the Seller's knowledge, with the intent that the Purchaser will rely on these
representations and warranties in entering into this Agreement, and in
concluding the purchase and sale contemplated by this Agreement, that:
2.01 ORGANIZATION, CAPITALIZATION, ETC.
(a) The Company is a corporation duly organized, validly existing, and
in good standing under the laws of the state of Nevada, and is qualified in
no other state.
(b) The authorized capital stock of the Company consists of
100,000,000 shares of common stock with a par value of $0.0001 per share.
As of the date of this Agreement, 9,022,600 common shares are validly
issued and outstanding, fully paid and non-assessable. There are no
outstanding options or other agreements of any nature whatsoever relating
to the issuance by the Company of any shares of its capital stock.
(c) The Company has the corporate power and authority to carry on its
business as presently conducted.
2.02 NO VIOLATION. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will constitute a
violation or default under any term or provision of the Certificate of
Incorporation or Bylaws of the Company, or of any contract, commitment,
indenture, other agreement or restriction of any kind or character to which the
Company or the Seller is a party or by which the Company or the Seller is bound.
2.03 AUTHORITY. The Seller has the power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Seller and constitutes a valid and binding instrument,
enforceable in accordance with its terms.
2.04 TITLE TO THE SHARES. The Seller is the sole legal and beneficial owner
of the Shares in YDM and has good and marketable title thereto. All of the
Shares owned by the Seller are owned free and clear of any liens, claims,
options, charges, or encumbrances of whatsoever nature. The Seller has the
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unqualified right to sell, assign, and deliver the Shares, and, upon
consummation of the transactions contemplated by this Agreement, the Purchaser
will acquire good and valid title to the Shares, free and clear of all liens,
claims, options, charges, and encumbrances of whatsoever nature. The Purchaser
acknowledges that the Shares being acquired from the Seller are restricted
securities so that such Shares will have trading restrictions.
2.05 CONTROL SHARES. The Certificates representing the Shares delivered
pursuant to this Agreement are owned by an affiliate of the Company and
accordingly are restricted securities as that term is defined in Rule 144 of the
Securities Act of 1933 (the "Act"). As such, upon transfer of the Shares to the
Purchaser, the Purchaser will begin a new holding period as set forth in Rule
144 and the Shares may not be resold without registration or pursuant to an
exemption from registration for the holding period set forth in Rule 144.
Accordingly, certificates issued to the Purchaser will contain an appropriate
restrictive legend.
2.07 NO CLAIMS; INDEMNITY. There are currently no claims or lawsuits
threatened or pending against the Seller as the owner of its shares, and Seller
is unaware of any conditions or circumstances that would lead to or justify the
filing of any claim or lawsuit. If, after the consummation of this transaction
and the transfer of the Shares from the Seller to the Purchaser any claim or
lawsuit shall be filed against YDM or the Purchaser (as the owner of the
Shares), arising out of any circumstances whatsoever prior to transfer of the
shares, the Seller shall defend, indemnify and hold the Purchaser harmless from
and against any and all such claims or lawsuits or any awards or judgments
granted thereunder.
III. REPRESENTATIONS AND WARRANTIES BY THE PURCHASER.
The Purchaser hereby represents and warrants to the Seller that to the best
of the Purchaser's knowledge, with the intent that the Seller will rely on these
representations and warranties in entering into this Agreement, and in
concluding the purchase and sale contemplated by this Agreement, that:
3.01 REPRESENTATIONS REGARDING THE ACQUISITION OF THE SHARES.
(a) The undersigned Purchaser understands that the SHARES HAVE NOT
BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE OR FOREIGN SECURITIES AGENCIES;
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(b) The Purchaser is not an underwriter and is acquiring the Seller's
Shares solely for investment for the account of the Purchaser and not with
a view to, or for, resale in connection with any distribution within the
meaning of the federal securities act, the state securities acts or any
other applicable laws;
(c) The Purchaser understands the speculative nature and risks of
investments associated with the Company and confirms that the Shares are
suitable and consistent with his investment program and that his financial
position enables him to bear the risks of this investment;
3.02 AUTHORITY. The Purchaser has the power and authority to execute and
deliver this Agreement, to perform his obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Purchaser and constitutes a valid and binding instrument,
enforceable in accordance with its terms.
3.03 NO VIOLATION. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will constitute a
violation or default under any term or provision of any contract, commitment,
indenture, other agreement or restriction of any kind or character to which the
Purchaser is a party or by which the Purchaser is bound.
3.04 RULE 144 RESTRICTION. The Purchaser hereby agrees that such shares are
restricted pursuant to Rule 144 and therefore subject to Rule 144 resale
requirements.
IV. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.
4.01 SURVIVAL OF REPRESENTATIONS. All representations, warranties, and
agreements made by any party in this Agreement or pursuant hereto shall survive
the execution and delivery hereof for a period of one (1) year from and after
the Closing.
4.02 INDEMNIFICATION. The Seller agrees to indemnify the Purchaser and hold
him harmless from and in respect of any assessment, loss, damage, liability,
cost, and expense (including, without limitation, interest, penalties, and
reasonable attorneys' fees) in excess of $10,000.00 in the aggregate, imposed
upon or incurred by the Purchaser resulting from a breach of any agreement,
representation, or warranty of the Seller. Assertion by a party to their right
to indemnification under this Section 5.02 shall not preclude the assertion by
the parties of any other rights or the seeking of any other remedies against the
opposing party.
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V. MISCELLANEOUS.
5.01 EXPENSES. All fees and expenses incurred by the Purchaser and Seller
in connection with the transactions contemplated by this Agreement shall be
borne by the respective parties hereto.
5.02 FURTHER ASSURANCES. From time to time, at the Purchaser's request and
without further consideration, the Seller, at his expense, will execute and
transfer such documents and will take such action as the Purchaser may
reasonably request in order to effectively consummate the transactions herein
contemplated.
5.03 ENTIRE AGREEMENT. This Agreement contains all of the terms agreed upon
by the parties with respect to the subject matter hereof. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to the subject matter hereof. This Agreement may be amended only by a
written instrument duly executed by the parties hereto or their respective
successors or assigns.
5.04 NO ASSIGNMENTS. Neither party may assign nor delegate any of its
rights or obligations hereunder without first obtaining the written consent of
the other party.
5.05 HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretations of this Agreement.
5.06 SEVERABILITY. In the event that any term, covenant, condition or other
provision contained herein is held to be invalid, void or otherwise
unenforceable by any court of competent jurisdiction, the invalidity of any such
term, covenant, condition, provision or Agreement shall in no way affect any
other term, covenant, condition or provision or Agreement contained herein,
which shall remain in full force and effect.
5.07 GOVERNING LAW. The situs of this Agreement is Florida, USA, and for
all purposes this Agreement will be governed exclusively by and construed and
enforced in accordance with the laws and Courts prevailing in the Province of
British Columbia, without regard to its conflict-of-laws rules.
5.08 NOTICES. All notices, requests, demands, and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed (registered or certified mail, postage prepaid, return
receipt requested) as follows:
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If to the Seller: Xxxxx Xxxx
Address:
Zichron Ya'akov, Suite 23 Entrance B. Xxxxxxxxx
00000, Xxxxxx.
If to the Purchaser: Xxxxx X. Maz
Address:
0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx,
00000
5.09 EFFECT. In the event any portion of this Agreement is deemed to be
null and void under any state, provincial, or federal law, all other portions
and provisions not deemed void or voidable shall be given full force and effect.
5.10 GENDER AND NUMBER. Words importing a particular gender mean and
include the other gender and words importing a singular number mean and include
the plural number and vice versa, unless the context clearly indicated to the
contrary.
5.11 COUNTERPARTS. This Agreement may be executed simultaneously in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures are
acceptable and deemed original signatures.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the Seller and the Purchaser, on the date first above written.
SELLER:
/s/ Xxxxx Xxxx
-----------------------------
Xxxxx Xxxx
PURCHASER:
/s/ Xxxxx X. Maz
----------------------------
Xxxxx X. Maz
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