STOCK PURCHASE AGREEMENT
Exhibit
10.1
THIS
STOCK PURCHASE AGREEMENT (“Agreement”), dated as of April 1, 2008, is by and
between Xxxx X. Xxxxxxx,
an individual (“PURCHASER”), and Xxx Xxxxxx Trading Co., a Florida
corporation (“SELLER”) (collectively, the “PARTIES”).
W
I T N E S S E T H
WHEREAS,
SELLER has offered for sale to PURCHASER shares of common stock of SELLER (the
“Shares”) at a purchase price of $0.005 per Share.
WHEREAS,
SELLER desires to sell to PURCHASER and PURCHASER desires to purchase from
SELLER, 800,000 Shares upon the terms and conditions set forth
herein.
NOW
THEREFORE, in consideration of the promises and respective mutual agreements
herein contained, it is agreed by and between the PARTIES hereto as
follows:
ARTICLE
1
SALE
AND PURCHASE OF THE SHARES
1.1 Sale of the Shares.
Upon execution of this Agreement (the “Closing”), subject to the terms and
conditions herein set forth, and on the basis of the representations, warranties
and agreements herein contained, SELLER shall sell to PURCHASER, and PURCHASER
shall purchase from SELLER, the Shares.
1.2 Instruments of Conveyance
and Transfer. As soon as practicable after the Closing, SELLER
shall deliver a certificate or certificates representing the Shares of SELLER to
PURCHASER sufficient to transfer all right, title and interest in the Shares to
PURCHASER.
1.3 Consideration and Payment
for the Shares. In consideration for the Shares, PURCHASER has
paid a purchase price of a total of $4,000 ($0.005 per Share) (“Purchase
Price”).
ARTICLE
2
REPRESENTATIONS
AND COVENANTS OF SELLER AND PURCHASER
2.1 SELLER
hereby represents and warrants that:
(a) The
Shares issued hereunder (the “Shares”) have been duly authorized by the
appropriate corporate action of SELLER.
(b) SELLER
shall transfer title, in and to the Shares to PURCHASER free and clear of all
liens, security interests, pledges, encumbrances, charges, restrictions, demands
and claims, of any kind and nature whatsoever, whether direct or indirect or
contingent.
(c) As
soon as practicable after the Closing Date, SELLER shall deliver to PURCHASER a
certificate or certificates representing the Shares subject to no liens,
security interests, pledges, encumbrances, charges, restrictions, demands or
claims in any other party whatsoever, except as set forth in the legend on the
certificate, which legend shall provide substantially as follows:
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THE
SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
(d) PURCHASER
acknowledges that the Shares will initially be “restricted securities” (as such
term is defined in Rule 144 promulgated under the Securities Act of 1933, as
amended (“Rule 144”), that the Shares will include the foregoing restrictive
legend, and, except as otherwise set forth in this Agreement, that the Shares
cannot be sold unless registered with the United States Securities and Exchange
Commission (“SEC”) and qualified by appropriate state securities regulators, or
unless PURCHASER obtains written consent from SELLER and otherwise complies with
an exemption from such registration and qualification (including, without
limitation, compliance with Rule 144)).
(e) PURCHASER
acknowledges and agrees that SELLER makes no other representations or warranties
with respect to the Shares or the SELLER.
2.2 PURCHASER
represents and warrants to SELLER as follows:
(a) PURCHASER
has adequate means of providing for current needs and contingencies, has no need
for liquidity in the investment, and is able to bear the economic risk of an
investment in the Shares offered by SELLER of the size
contemplated. PURCHASER represents that PURCHASER is able to bear the
economic risk of the investment and at the present time could afford a complete
loss of such investment. PURCHASER has had a full opportunity to
inspect the books and records of the SELLER and to make any and all inquiries of
SELLER officers and directors regarding the SELLER and its business as PURCHASER
has deemed appropriate.
(b) PURCHASER
is an “Accredited Investor” as defined in Regulation D of the Securities Act of
1933 (the “Act”) or PURCHASER, either alone or with PURCHASER’s professional
advisers who are unaffiliated with, have no equity interest in and are not
compensated by SELLER or any affiliate or selling agent of SELLER, directly or
indirectly, has sufficient knowledge and experience in financial and business
matters that PURCHASER is capable of evaluating the merits and risks of an
investment in the Shares offered by SELLER and of making an informed investment
decision with respect thereto and has the capacity to protect PURCHASER’s own
interests in connection with PURCHASER’s proposed investment in the
Shares.
(c) PURCHASER
is acquiring the Shares solely for PURCHASER’S own account as principal, for
investment purposes only and not with a view to the resale or distribution
thereof, in whole or in part, and no other person or entity has a direct or
indirect beneficial interest in such Shares.
(d) PURCHASER
will not sell or otherwise transfer the Shares without registration under the
Act or an exemption therefrom and fully understands and agrees that PURCHASER
must bear the economic risk of PURCHASER’S purchase for an indefinite period of
time because, among other reasons, the Shares have not been registered under the
Act or under the securities laws of any state and, therefore, cannot be
resold, pledged, assigned or otherwise disposed of unless they are
subsequently registered under the Act and under the applicable securities laws
of such states or unless an exemption from such registration is
available.
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ARTICLE
3
MISCELLANEOUS
3.1 Entire
Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No
understanding, promise, inducement, statement of intention, representation,
warranty, covenant or condition, written or oral, express or implied, whether by
statute or otherwise, has been made by any party hereto which is not embodied in
this Agreement or the written statements, certificates, or other documents
delivered pursuant hereto or in connection with the transactions contemplated
hereby, and no party hereto shall be bound by or liable for any alleged
understanding, promise, inducement, statement, representation, warranty,
covenant or condition not so set forth.
3.2 Notices. Any
notice, request, instruction, or other document required by the terms of this
Agreement, or deemed by any of the parties hereto to be desirable, to be given
to any other party hereto shall be in writing and shall be given by facsimile,
personal delivery, overnight delivery, or mailed by registered or certified
mail, postage prepaid, with return receipt requested. If notice is
given by facsimile, personal delivery, or overnight delivery in accordance with
the provisions of this Section, said notice shall be conclusively deemed given
at the time of such delivery. If notice is given by mail in
accordance with the provisions of this Section, such notice shall be
conclusively deemed given seven days after deposit thereof in the United States
mail.
3.3 Waiver and
Amendment. Any term, provision, covenant, representation,
warranty or condition of this Agreement may be waived, but only by a written
instrument signed by the party entitled to the benefits thereof. The
failure or delay of any party at any time or times to require performance of any
provision hereof or to exercise its rights with respect to any provision hereof
shall in no manner operate as a waiver of or affect such party's right at a
later time to enforce the same. No waiver by any party of any
condition, or of the breach of any term, provision, covenant, representation or
warranty contained in this Agreement, in any one or more instances, shall be
deemed to be or construed as a further or continuing waiver of any such
condition or breach or waiver of any other condition or of the breach of any
other term, provision, covenant, representation or warranty. No
modification or amendment of this Agreement shall be valid and binding unless it
be in writing and signed by all parties hereto.
3.4 Choice of
Law. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
California including all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of conflict of
laws.
3.5 Jurisdiction. The
parties submit to the jurisdiction of the Courts of the County of Orange, State
of California or a Federal Court empanelled in the State of California for the
resolution of all legal disputes arising under the terms of this Agreement,
including, but not limited to, enforcement of any arbitration
award.
3.6 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which shall together constitute one and the same
instrument.
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3.7 Attorney’s
Fees. Except as otherwise provided herein, if a dispute should
arise between the parties including, but not limited to arbitration, the
prevailing party shall be reimbursed by the non-prevailing party for all
reasonable expenses incurred in resolving such dispute, including reasonable
attorneys' fees exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee
arrangement.
3.8 Taxes. Any
income taxes required to be paid in connection with the payments due hereunder,
shall be borne by the party required to make such payment. Any
withholding taxes in the nature of a tax on income shall be deducted from
payments due, and the party required to withhold such tax shall furnish to the
party receiving such payment all documentation necessary to prove the proper
amount to withhold of such taxes and to prove payment to the tax authority of
such required withholding.
SIGNATURES
ON NEXT PAGE
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the date
first written hereinabove.
SELLER
a Florida
corporation
/s/ Xxxxxx X.
Xxxxxx
By:
Xxxxxx X. Xxxxxx
Its:
Executive Vice President
PURCHASER
Xxxx X.
Xxxxxxx
/s/ Xxxx X.
Xxxxxxx
Xxxx X.
Xxxxxxx
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