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EXHIBIT 10.10
ICX ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "Agreement"), is entered into as of the 12th
day of November, 1999, by and between ICX ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, a corporation
organized and existing under the laws of the State of California (the "Company")
and VIOLO VENTURES LIMITED, a corporation organized and existing under the laws
of Hong Kong (the "Investor").
WHEREAS, the Company has authorized twenty million (20,000,000) shares of
capital common stock, having no par value (the "Common Stock") and ten million
shares of Preferred Stock, having no par value; and
WHEREAS, the Company has issued and outstanding, on a fully-diluted
basis, one million two hundred thousand (1,200,000)] shares of its Common Stock
and two hundred thousand (200,000) shares of its Preferred Stock, as of the date
hereof, and
WHEREAS, subject to the terms and conditions contained herein, the
Investor desires to purchase and the Company desires to sell to the Investor two
hundred eighty thousand (280,000) shares of Common Stock (the "Shares"), for the
purchase price recited herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. SHARE PURCHASE BY THE INVESTOR. Upon the execution of this Agreement, the
Investor hereby irrevocably agrees to purchase and subscribe for two
hundred eighty thousand (280,000) Shares to be issued by the Company in
accordance with the terms of this Agreement, which Shares shall be issued
to the Investor promptly against receipt of the appropriate Purchase
Price therefor as set forth in Section 2 below. Such Shares, once
delivered to the Investor as set forth herein, shall be validly issued,
fully paid and non-assessable, shall be free and clear of any and all
liens, charges, pledges, liabilities or other encumbrances, and shall be
inscribed in the books and records of the Company as issued to the
Investor under the specific terms and conditions herein contained.
2. CONSIDERATION FOR AND ISSUANCE OF THE SHARES. As consideration for the
Shares, the Investor shall pay to the Company the sum of Thirty-Six Cents
($0.36) per Share, or One Hundred Thousand Dollars ($100,000) in the
aggregate (the "Purchase Price"), in immediately available funds by check
or by federal wire transfer deposited into an account designated by the
Company. Payment of the Purchase Price shall be as follows:
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Payment Date Share To Be Issued
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November 12, 1999 140,000
(acknowledged as already
received by the Company)
On or before 70,000
November 30, 1999
On or before 70,000
December 10, 1999
Upon receipt of the funds, the Company shall cause the Investor to be
issued a stock certificate evidencing the Investors ownership of such
number of Shares as is appropriate in accordance with the purchase
schedule set forth above.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Investor, as of the date hereof, the
following:
(a) the Company is a corporation duly organized and validly existing
under the laws of the State of California, and has full power and
authority to enter into, execute and perform this Agreement, which
Agreement, once so executed by the Company, shall be the valid and
binding obligation of such party, enforceable against it by any
court of competent jurisdiction in accordance with its terms;
(b) the individuals signing this Agreement on behalf the Company are
the duly elected executive officers of the Company so indicated,
and have full power and authority to enter into and execute this
Agreement for and on behalf of the Company; and
(c) the Company is not bound by or subject to any contract, agreement,
court order or judgment, administrative ruling, law, regulation or
any other item which prohibits or restricts such party from
entering into and performing this Agreement in accordance with its
terms, or requiring the consent of any third party prior to the
entry into or performance of this Agreement in accordance with its
terms by such party.
(d) the financial statements of the Company previously provided to the
Investor fairly and accurately present the true financial
condition of the Company as of the dates, or for the periods, so
indicated in all material respects.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
represents and warrants to the Company, as of the date hereof, the
following:
(a) the Investor is a corporation duly organized and validly existing
under the laws of Hong Kong, and has full power and authority to
enter into, execute and perform this Agreement, which Agreement,
once executed by the Investor, shall be the valid and binding
obligation of such party, enforceable against such party by any
court of competent jurisdiction in accordance with its terms;
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(b) the individuals signing this Agreement on behalf the Investor are
the duly elected executive officers of the Investor so indicated,
and have full power and authority to enter into and execute this
Agreement for and on behalf of the Investor;
(c) the Investor is not bound by or subject to any contract,
agreement, court order or judgment, administrative ruling, law,
regulation or any other item which prohibits or restricts such
party from entering into and performing this Agreement in
accordance with its terms, or requiring the consent of any third
party prior to the entry into or performance of this Agreement in
accordance with its terms by such party.
(d) with respect to the Shares being acquired by the Investor:
(i) the Investor is acquiring the Shares for its own account,
and not with a view toward the subdivision, resale,
distribution, or fractionalization thereof; the Investor
has no contract, undertaking, or arrangement with any
person to sell, transfer, or otherwise dispose of the
Shares (or any portion thereof hereby subscribed for), and
has no present intention to enter into any such contract,
undertaking, agreement or arrangement;
(ii) the subscription for Shares by the Investor is not the
result of any form of general solicitation or general
advertising;
(iii) the Investor hereby acknowledges that: (A) the offering of
the Shares was made only through direct, personal
communication between the Investor and the Company; (B) the
Investor has had full access to material concerning the
Company's planned business and operations, which material
was furnished or made available to the Investor by officers
or representatives of the Company; (C) the Company has
given the Investor the opportunity to ask any questions and
obtain all additional information desired in order to
verify or supplement the material so furnished; and (D) the
Investor understands and acknowledges that a purchaser of
the Shares must be prepared to bear the economic risk of
such investment for an indefinite period because of: (I)
the heightened nature of the risks associated with an
investment in the Company due to its status as a
development stage company; (II) illiquidity of the Shares
due to the fact that (1) the Shares have not been
registered under the Securities Act of 1933 (the "Act") or
any state securities act (nor passed upon by the SEC or any
state securities commission), and (2) the Shares may not be
registered or qualified by the Investor under United States
federal or state securities laws solely in reliance upon an
available exemption from such registration or
qualification, and hence such Shares cannot be sold unless
they are subsequently so registered or qualified, or are
otherwise subject to any applicable exemption from such
registration requirements; and (3) substantial restrictions
on transfer of the Shares, as set forth by legend on the
face or reverse side of every certificate evidencing the
ownership of the Shares;
(e) the Investor is an "accredited investor" as such term is defined
in Rule 501 of Regulation D promulgated by the United States
Securities and Exchange Commission (the "SEC") under the Act, and
has such level of business knowledge and experience as to enable
it to evaluate the merits and risks of an investment in the
Shares; and
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(f) the Investor has been advised to consult with an attorney
regarding legal matters concerning the purchase and ownership of
the Shares, and with a tax advisor regarding the tax consequences
of purchasing such Shares.
5. OTHER AGREEMENTS. The parties hereby agree with each other that, for so
long as the Investor shall be an investor of the Company and until such
time as the Company may have a registration statement for the public sale
of shares declared effective by the SEC, the following shall occur:
(a) the Investor shall be entitled, and attached as Exhibit A to this
Agreement the controlling shareholder of the Company agrees by
side letter to cause the Investor, to have one (1) person
designated by it to serve as a director on the Board of Directors
of the Company for such period as it may desire consistent with
this Agreement; and
(b) the Investor shall be entitled, subject to compliance with all of
the requirements set forth in Section 6 below, to: (i) receive
copies of all financial statements and other communications
provided to the Directors of the Company from time to time by the
executive management of the Company; (ii) unless and until the
Investor shall elect to have a representative serve on the Board
of Directors as set forth above, request to attend any meeting of
the Board of Directors as an observer; and (iii) obtain, upon its
request, access to any and all documents to which it is entitled
as a shareholder of the Company pursuant to Section 1601(a) of the
California Corporations Code, as amended.
6. CONFIDENTIALITY. By its execution hereof, the Investor acknowledges to
and agrees with the Company that in the exercise of the several rights
granted to it pursuant to this Agreement, and as a shareholder of the
Company generally, it may be or become familiar with or aware of certain
Confidential Information (as such term is hereinafter defined) disclosed
by the Company or one or more of its officers, directors, employees,
shareholders, partners, agents or representatives (each of such
relationships being defined herein as an "Affiliate"). Accordingly, the
Investor hereby agrees that any and all Confidential Information
disclosed or furnished to it, or to any of its Affiliates, by the Company
or any of its Affiliates is and shall remain proprietary to the Company.
Neither the Investor, nor any Affiliate of the Investor, shall have any
rights to distribute or divulge any of such Confidential Information to
any third party without the Company's prior, written consent, or to use
any of such Confidential Information in any way detrimental to the
Company or any of its Affiliates, or in any way which would otherwise
destroy, injure or impair any of the Company's or its Affiliates' rights
in or in respect of any such Confidential Information including, without
limitation, by using any of such Confidential information to establish or
assist any person or entity which is, or will be, directly or indirectly
in competition with the Company. For purposes of this Agreement, the term
"Confidential Information" shall mean any and all proprietary information
belonging to the Company, whether tangible or intangible, written or
oral, including, without limitation, any intellectual property rights,
books and records, computer software and files, lists of (or proprietary
information concerning) its customers, suppliers, vendors and other
business relationships, and any other item which may properly be
classified as a protected trade secret under applicable law including,
without limitation, the California Trade Secrets Act, as amended. The
Investor expressly agrees and understands that its covenant to abide, and
to cause its Affiliates to abide, by the provisions of this Section 6
constitute a material part of the consideration inducing the Company to
make
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available the Shares hereunder, and that any violation of such provisions
could create immediate and irreparable harm to the Company.
7. MISCELLANEOUS PROVISIONS.
(a) NOTICES. All notices, requests, demands and other communications
to be given hereunder shall be in writing and shall be deemed to
have been duly given on the date of personal service or
transmission by fax if such transmission is received during the
normal business hours of the addressee, or on the first business
day after sending the same by overnight courier service or by
telegram, or on the third business day after mailing the same by
first class mail, or on the day of receipt if sent by certified or
registered mail, addressed as set forth below, or at such other
address as any party may hereafter indicate by notice delivered as
set forth in this Section 7(a):
If to the Company: ICX ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attn: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
President and CEO
With a copy (which shall
Not constitute notice) to: ▇▇▇▇▇▇▇▇, August & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attn: ▇▇▇▇▇▇▇ ▇. August
Esquire Partner
If to the Investor: Violo Ventures Limited
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ Au
Chief Executive Officer
(b) BINDING AGREEMENT; ASSIGNMENT. This Agreement shall constitute the
binding agreement of the parties hereto, enforceable against each
of them in accordance with its terms. This Agreement shall inure
to the benefit of each of the parties hereto, and their respective
successors and permitted assigns; provided, however, that this
Agreement may not be assigned (whether by contract or by operation
of law) by the Investor without the prior written consent of the
Company.
(c) ENTIRE AGREEMENT. This Agreement constitutes the entire and final
agreement and understanding between the parties with respect to
the subject matter hereof and the transactions contemplated
hereby, and supersedes any and all prior oral or written
agreements, statements, representations, warranties or
understandings between the parties, all of which are merged herein
and superseded hereby.
(d) WAIVER. No waiver of any provision of this Agreement shall be
deemed to be or shall constitute a waiver of any other provision,
whether or not similar, nor shall any
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waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
(e) HEADINGS. The headings provided herein are for convenience only
and shall have no force or effect upon the construction or
interpretation of any provision hereof
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(g) FURTHER DOCUMENTS AND ACTS. Each party agrees to execute such
other and further documents and to perform such other and further
acts as may be reasonably necessary to carry out the purposes and
provisions of this Agreement.
(h) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California
applicable to the performance of such contracts wholly within the
State, without giving effect to the principles of conflicts of
laws applied thereby. In the event of any dispute between the
parties arising out of or resulting from this Agreement, the
parties hereby agree to accept the exclusive jurisdiction of the
Courts of the State of California sitting in and for the County of
Orange. Notwithstanding the foregoing, any such dispute (or any
judgment rendered by a United States Court in connection with any
such dispute) may also be submitted by the Company for enforcement
by any court of competent jurisdiction sitting in Singapore. In
the event either party shall be forced to bring any legal action
to protect or defend its rights hereunder, then the prevailing
party in such proceeding shall be entitled to reimbursement from
the non-prevailing party of all fees, costs and other expenses
(including, without limitation, the reasonable expenses of its
attorneys) in bringing or defending against such action.
(i) SPECIFIC PERFORMANCE; REMEDIES CUMULATIVE. The parties hereby
agree with each other that, in the event of any breach of this
Agreement by any party where such breach may cause irreparable
harm to any other party, or where monetary damages may not be
sufficient or may not be adequately quantified, then the affected
party or parties shall be entitled to specific performance,
injunctive relief or such other equitable remedies as may be
available to it, which remedies shall be cumulative and
non--exclusive, and in addition to such other remedies as such
party may otherwise have at law or in equity.
(j) SURVIVAL. The parties hereby agree with each other that the
provisions of Sections 5, 6, and 7 shall expressly survive the
closing of the purchase and share transaction contemplated herein,
and shall be enforceable against the parties thereafter, whether
or not any such transaction shall be consummated as contemplated
herein.
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(k) SEVERABLE PROVISIONS. The provisions of this Agreement are
severable, and if any one or more provisions is determined to be
illegal, indefinite, invalid or otherwise unenforceable, in whole
or in part, by any court of competent jurisdiction, then the
remaining provisions of this Agreement and any partially
unenforceable provisions to the extent enforceable in the
pertinent jurisdiction, shall continue in full force and effect
and shall be binding and enforceable on the parties.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
THE COMPANY:
ICX ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ATTEST:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By:
------------------------- ---------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President and CEO Secretary
THE INVESTOR:
VIOLO VENTURES LIMITED ATTEST:
By: /s/ ▇▇▇▇▇▇ AU By:
--------------------------- ------------------------------
▇▇▇▇▇▇ Au
Chief Executive Officer Corporate Secretary
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