EXHIBIT 10.13
THE SECURITIES THAT ARE THE SUBJECT OF THIS SECURITIES PURCHASE AGREEMENT, AS IT
MAY BE AMENDED FROM TIME TO TIME, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY STATE
AND WILL BE OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THESE LAWS BY VIRTUE OF THE INTENDED COMPLIANCE BY THE ISSUER
WITH SECTION 4(2) OF THE SECURITIES ACT AND SIMILAR EXEMPTIONS UNDER STATE LAW.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE U.S. SECURITIES
AND EXCHANGE COMMISSION (THE "SEC"), ANY STATE SECURITIES COMMISSION OR ANY
OTHER REGULATORY AUTHORITY. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
SECURITIES PURCHASE AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement") is made and entered into as
of this 12th day of November, 2004, by and between Savoy Resources Corp., a
Colorado corporation (the "Company"), with its United States offices located at
00000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, and EIB Capital Corp., with its
offices located at 0000 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Purchaser").
RECITALS:
WHEREAS, the Company is offering for sale up to 5,000,000 units
(individually, a "Unit" and, collectively, the "Units"), each Unit consisting of
one share of common stock, $0.001 par value per share (the "Common Stock"), one
series A warrant exercisable to purchase one share of Common Stock at an
exercise price of $0.20 per share through November 11, 2007 (individually, a
"Series A Warrant" and, collectively, the "Series A Warrants"), and one series B
warrant exercisable to purchase one-half share of Common Stock through November
11, 2008 (individually, a "Series B Warrant" and, collectively, the "Series B
Warrants"), of which two Series B Warrants are exercisable at an exercise price
of $0.40 to purchase one share of Common Stock, at a per Unit price of $0.12 in
a transaction exempt from registration under Section 4(2) of the Securities Act
of 1933, as amended (the "Securities Act"), and the regulations promulgated
thereunder, and applicable securities laws and regulations of the State of New
York (the "Offering").
NOW, THEREFORE, for and in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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SECTION 1.0: PURCHASE AND SALE OF UNITS.
Section 1.1 Closing. The Company agrees to issue, sell and deliver to the
Purchaser, and the Purchaser agrees to purchase and receive from the Company,
five million (5,000,000) Units upon the terms and conditions set forth in this
Agreement. The closing (the "Closing") of the sale and purchase of the Units
shall take place at the Company's offices, at 12:00, local time, on November 12,
2004, or at such other time and place as may be agreed to by the parties (the
"Closing Date"). The Units, including the Common Stock and the Series A and B
Warrants, shall be restricted and the certificates representing the securities
shall bear the restrictive legend pursuant to Rule 144 of the General Rules and
Regulations under the Securities Act.
Section 1.2 Purchase Price. The total purchase price for the Units (the
"Purchase Price") shall be six hundred thousand U.S. dollars (US$600,000.00).
SECTION 2.0: REPRESENTATIONS AND WARRANTIES.
Section 2.1 Representations and Warranties of the Purchaser. The Purchaser
makes the following representations and warranties to the Company.
(a) Speculative Investment. The Purchaser is aware that an investment in
the Units is highly speculative and subject to substantial risks. The Purchaser
is capable of bearing the high degree of economic risk and the burden of this
venture, including, but not limited to, the possibility of complete loss of the
Purchaser's investment in the Units that makes liquidation of this investment
impossible for the indefinite future.
(b) Privately Offered. The offer to issue and sell the Units was
communicated directly to the Purchaser in such a manner that the Purchaser was
able to ask questions of and receive answers concerning the terms and conditions
of this transaction. At no time was the Purchaser presented with or solicited by
or through any leaflet, public promotional meeting, television advertisement or
any other form of general advertising.
(c) Purchase for Investment. The Units are being acquired solely for the
Purchaser's own account, for investment purposes and are not being purchased
with a view to the resale, distribution, subdivision or fractionalization
thereof without proper registration with appropriate securities administrators
or an applicable exemption from such registration. The Purchaser will comply
with all applicable law with respect to any resale of the Units.
(d) Access to Information. The Purchaser or the Purchaser's professional
advisor has been granted the opportunity to ask questions of and receive answers
from representatives of the Company and its officers, directors, employees and
agents concerning the terms and conditions of the offering of the Units, the
Company and its business and prospects, and to obtain any additional information
that the Purchaser or the Purchaser's professional advisor deems necessary to
verify the accuracy and completeness of the information received.
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(f) Reliance on Own Advisors. The Purchaser has relied on the advice of, or
has consulted with, the Purchaser's own tax, investment, legal or other advisors
and has not relied on the Company or any of it affiliates, officers, directors,
attorneys, accountants or any affiliates of any thereof and each other person,
if any, who controls any thereof, within the meaning of Section 15 of the
Securities Act, for any tax or legal advice. The foregoing, however, does not
limit or modify the Purchaser's right to rely upon representations and
warranties of the Company in Section 2.2 of this Agreement and any
representations of any third parties acting as agents for or on the Company's
behalf.
(g) Capability to Evaluate. The Purchaser has such knowledge and experience
in financial and business matters so as to enable such Purchaser to utilize the
information made available to it in connection with the offer of the Securities
in order to evaluate the merits and risks of the prospective investment.
(h) Authority. The Purchaser (and each of its subsidiaries, if applicable)
is a corporation duly incorporated and existing in good standing under the laws
of the State of New York and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. The Purchaser
has full power and authority to execute and deliver this Agreement and each
other document included herein (if any) for which a signature is required and to
act in accordance with the terms of this Agreement and such other documents (if
any).
Section 2.2 Representations and Warranties of the Company. The Company
hereby makes the following representations and warranties to the Purchaser:
(a) Organization and Qualification. The Company is a corporation duly
incorporated and existing in good standing under the laws of the state of
Colorado and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. The Company is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted or property owned by it makes such
qualification necessary other than those in which the failure so to qualify
would not have a Material Adverse Effect. "Material Adverse Effect," for
purposes of this Agreement, means any adverse effect on the business,
operations, properties, prospects or financial condition of the entity with
respect to which such term is used and that is material to such entity and other
entities controlled by such entity taken as a whole.
(b) Authorization; Enforcement. (i) The Company has the requisite corporate
power and authority to enter into and perform this Agreement and to issue and
sell the Units in accordance with the terms hereof; (ii) 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
corporate action, and no further consent or authorization of the Company or its
Board of Directors or stockholders is required; (iii) this Agreement has been
duly executed and delivered by the Company; and (iv) this Agreement constitutes
a valid and binding obligation of the Company enforceable against the Company in
accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of, creditors'
rights and remedies or by other equitable principles of general application).
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(c) Authorized Capital; Rights or Commitments to Stock. As of November 10,
2004, the authorized capital stock of the Company consists of 110,000,000
shares, of which 100,000,000 shares are Common Stock, of which 48,539,750 shares
are issued and outstanding, and 10,000,000 shares are preferred stock, of which
no shares are issued and outstanding. All of the outstanding shares of the
Company's Common Stock have been validly issued and are fully paid and
non-assessable.
(d) Issuance of Securities. The issuance of the Units has been duly
authorized and, when paid for and issued in accordance with the terms hereof,
the Units, including the Common Stock and the Series A and B Warrants, shall be
validly issued, fully paid and non-assessable and entitled to the rights
inherent in the securities and as specified herein.
(e) No Conflicts. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) result in a violation of the
Company's Articles of Incorporation or Bylaws or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party, or result
in a violation of any federal, state, local or foreign law, rule, regulation,
order, judgment or decree (including federal and state securities laws and
regulations) applicable to the Company its subsidiary or by which any property
or assets of the Company or its subsidiary is bound or affected (except for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a Material
Adverse Effect); provided that, for purposes of such representation as to
federal, state, local or foreign law, rule or regulation, no representation is
made herein with respect to any of the same applicable solely to the Purchaser
and not to the Company. The business of the Company is not being conducted in
violation of any law, ordinance or regulations of any governmental entity,
except for violations that either singly or in the aggregate do not and will not
have a Material Adverse Effect. The Company is not required under federal, state
or local law, rule or regulation in the United States to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or issue and sell the Units in accordance with
the terms hereof, except the filing with the New York Bureau of Investor
Protection and Securities, and the payment of any filing or other fees required
by such governing authority; provided that, for purposes of the representation
made in this sentence, the Company is assuming and relying upon the accuracy of
the relevant representations and agreements of the Purchaser herein.
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(f) Reporting Status. The Company is subject to the reporting requirements
of Section 13 of the Securities Exchange Act of 1934, as amended. The Company is
not an investment company or a developmental stage company that has no specific
business plan or purpose. No information or documentation provided to the
Purchaser as of the date hereof has contained any untrue statement of a material
fact or has 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.
(g) No General Solicitation. Neither the Company, nor any of its
affiliates, or, to the best of its knowledge, any person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising
in connection with the offer or sale of the Units.
(h) No Integrated Offering. Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any of the Company's securities or solicited any offers
to buy any of such securities, under circumstances that would prevent the
Company from offering the Units pursuant to Section 4(2) under the Securities
Act.
SECTION 3.0: COMPLIANCE AND INSTRUCTIONS.
Section 3.1 Securities Compliance. The Company shall, to the extent
required, notify the SEC, the New York Bureau of Investor Protection and
Securities and the NASD Over-the-Counter Bulletin Board, in accordance with
their requirements, of the transactions contemplated by this Agreement, and
shall take all other necessary action and proceedings, as may be required by
applicable law, rule and regulation, for the legal and valid issuance of the
Units to the Purchaser.
Section 3.2 Transfer Agent Instructions.
a. Common Stock and Series A and B Warrants to be Issued With Restrictive
Legend. Upon the Closing, the Company shall instruct its transfer agent to issue
certificates for 5,000,000 shares of Common Stock to be received by the
Purchaser pursuant to this Agreement, with a restrictive legend pursuant to Rule
144 under the Securities Act, in the name of the Purchaser and in such
denominations to be specified by the Purchaser. Further, upon the Closing, the
Company shall issue the Series A and B Warrants, in the form attached hereto and
incorporated herein by this reference, to and in the name of the Purchaser with
a restrictive legend pursuant to Rule 144 under the Securities Act.
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b. Registration. The Company shall be required, at the request of Purchaser
and at the Company's expense, to effectuate the registration of the shares of
Common Stock included in the Units and the shares of Common Stock underlying the
Series A and B Warrants under the Securities Act and all relevant "blue sky"
laws as promptly as is practicable but in any event within the time limits
specified in this paragraph 3.2,b. The Company and the Purchaser shall cooperate
in good faith in connection with the furnishing of information required for such
registration and the taking of such other actions as may be legally or
commercially necessary in order to effectuate such registration. The Company
shall file a registration statement within seventy-five (75) days after the
Purchaser's demand therefor and shall use its best efforts to cause such
registration statement to become effective as soon as practicable thereafter and
in any event within one hundred eighty (180) days from the initial filing
thereof. Such best efforts shall include, without limitation, promptly
responding to all comments received from the SEC and providing the Purchaser's
counsel with a contemporaneous copy of all written correspondence with the SEC.
Once declared effective by the SEC, the Company shall cause such registration
statement to remain effective until the earlier of: (i) the sale by the
Purchaser of all the shares of Common Stock registered; or (ii) one hundred
eighty (180) days after the effective date of such registration statement. In
the event that the Company undertakes to file a registration statement on Form
S-3 in connection with the Common Stock, upon the effectiveness of such
registration, the Purchaser shall have the option to sell its shares of Common
Stock pursuant thereto. The foregoing shall not in any way limit the Purchaser's
rights in connection with the Common Stock.
SECTION 4.0: GENERAL CONDITIONS.
Section 4.1 General Conditions Precedent to the Obligation of the Company
to Sell the Shares. The obligation hereunder of the Company to issue and/or sell
the Units to the Purchaser is subject to the satisfaction, at the Closing, of
each of the conditions set forth below. These conditions may be waived by the
Company at any time in its sole discretion.
(a) Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties of the Purchaser shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for any representations and warranties that are
effective as of a particular, specified date).
(b) Performance by the Purchaser. The Purchaser shall have performed all
agreements and satisfied all conditions required to be performed or satisfied by
the Purchaser at or prior to the Closing.
(c) No Injunction, No Legal Action. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction that prohibits the consummation of any of the transactions
contemplated by this Agreement. No legal action, suit or proceeding shall be
pending or threatened that seeks to restrain or prohibit the transactions
contemplated by this Agreement.
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(e) Execution. The Purchaser shall have executed two (2) originals of this
Agreement and delivered the same to the Company.
(f) Purchase Price. The Purchaser shall have delivered the applicable
Purchase Price for the Units to be purchased, in accordance with Section 1.2
above.
Section 4.2 General Conditions Precedent to the Obligation of the Purchaser
to Purchase the Shares. The obligation hereunder of the Purchaser to purchase
and pay for the Units is subject to the satisfaction, at the Closing, of each of
the conditions set forth below. These conditions may be waived by the Purchaser
at any time in its sole discretion.
(a) Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that are effective
as of a particular, specified date).
(b) Performance by the Company. The Company shall have performed all
agreements and satisfied all conditions required to be performed or satisfied by
the Company pursuant to this Agreement at or prior to the Closing, unless any
such agreement or condition is waived by the Purchaser in writing at or prior to
Closing.
(c) Trading and Listing. The Company shall not have received notice of, and
trading in the Company's Common Stock shall not have been, suspended by the SEC
or a national securities exchange (currently the Over-the-Counter Bulletin
Board) (except for any suspension of trading of limited duration agreed to
between the Company and the principal exchange on which the Common Stock is
traded solely to permit dissemination of material information regarding the
Company) or de-listed by such exchange, and trading in securities generally as
reported by such exchange shall not have at any prior time been suspended or
limited, or minimum prices shall not have been established on securities whose
trades are reported by such exchange.
(d) No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction that prohibits
the consummation of any of the transactions contemplated by this Agreement.
(e) Execution. The Company shall have executed two (2) originals of this
Agreement and delivered the same to the Purchaser.
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SECTION 5.0: TERMINATION.
Section 5.1 Termination. This Agreement may be terminated at any time prior
to the Closing by the mutual written consent of the Company and the Purchaser.
This Agreement may be terminated by action of the respective Board of Directors
or other governing body of the Purchaser or the Company at any time if the
Closing shall not have been consummated by the fifth (5th) business day
following the date of this Agreement, provided that the party seeking to
terminate the Agreement is not in breach of the Agreement. This Agreement shall
automatically terminate without any further action of either party hereto if the
Closing shall not have occurred by the seventh (7th) business day following the
date of this Agreement, provided, however, that any such termination shall not
terminate the liability of any party that is then in breach of the Agreement.
SECTION 6.0: MISCELLANEOUS.
Section 6.1 Fees and Expenses. The parties shall each pay the fees,
commissions and expenses of its respective advisers, brokers, finders, counsel,
accountants and other experts, if any, and all other expenses associated
therewith, in accordance with their respective agreements.
Section 6.2 Specific Enforcement, Consent to Jurisdiction.
(a) The Company and the Purchaser acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent or cure breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which either of them may be entitled by
law or equity.
(b) The Company and the Purchaser each (i) hereby irrevocably submits to
the jurisdiction of the United States District Court and other courts of the
United States sitting in the State of Colorado for the purposes of any suit,
action or proceeding arising out of or relating to this Agreement and (ii)
hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of such court,
that the suit, action or proceeding is brought in an inconvenient forum or that
the venue of the suit, action or proceeding is improper. The Company and the
Purchaser each consents to process being served in any such suit, action or
proceeding by mailing a copy thereof 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 in this
paragraph shall affect or limit any right to serve process in any other manner
permitted by law.
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Section 6.3 Entire Agreement: Amendment. This Agreement contains the entire
understanding of the parties with respect to the matters covered hereby and,
except as specifically set forth herein, neither the Company nor the Purchaser
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by a
written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought.
Section 6.4 Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be effective (a)
upon hand delivery or delivery by telex (with correct answer back received),
telecopy or facsimile at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to be received)
or the first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second (2nd) business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur.
The addresses for such communications shall be:
To the Company: Savoy Resources Corp.
00000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx, President
With a copy to: Xxxx & Associates
00000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxx, Esq.
To the Purchaser: At the address set forth in the first paragraph of this
Agreement or as specified hereafter in writing by the
Purchaser.
Either party hereto may from time to time change its address for notices by
giving at least ten (10) days' written notice of such changed address to the
other party hereto.
Section 6.5 Waivers. No waiver by either party 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 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 accruing to it thereafter.
Section 6.6 Headings. 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.
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Section 6.7 Governing Law. This Agreement is deemed made, and the
transactions contemplated herein are deemed to have taken place in, the State of
Colorado. This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Colorado without regard to
such state's principles of conflict of laws.
Section 6.8 Survival. The representations and warranties of the Company and
the Purchaser contained in herein and the agreements and covenants set forth in
Sections 1.1 and 1.2, 2.1 and 2.2 and 4.1 and 4.2 shall survive for a period of
three (3) years after the Closing Date.
Section 6.9 Publicity. The Company agrees that it will not disclose, and
will not include in any public announcement, the name of the Purchaser without
its consent, unless and until such disclosure is required by law or applicable
regulation, and then only to the extent of such requirement.
Section 6.10 NASD. The term "NASD" or "NASD Over-the-Counter Bulletin
Board" herein refers to the principal market on which the Common Stock of the
Company is traded. If the Common Stock is listed on a securities exchange, or if
another market becomes the principal market on which the Common Stock is traded
or through which price quotations for the Common Stock are reported, the term
"NASD" or "NASD Over-the-Counter Bulletin Board" shall be deemed to refer to
such exchange or other principal market.
Section 6.11 Acceptance. Execution and delivery of this Agreement by the
Purchaser shall constitute an offer to purchase the Units, which offer, unless
previously revoked by the Purchaser, may be accepted or rejected by the Company,
in its sole discretion for any cause or for no cause and without liability to
the Purchaser. The Company shall indicate acceptance of this Agreement by
signing as indicated on the signature page hereof.
Section 6.12 Binding Agreement. Upon acceptance of this Agreement by the
Company, the Purchaser agrees that it may not cancel, terminate or revoke any
agreement of the Purchaser made hereunder, and that this Agreement shall be
binding upon the successors and assigns of the Purchaser.
Section 6.13 Counterparts. This Agreement may be signed in multiple
counterparts, which counterparts shall constitute one and the same original
instrument.
Section 6.14 Severability. If any portion of this Agreement shall be held
illegal, unenforceable, void or voidable by any court, each of the remaining
terms hereof shall nevertheless remain in full force and effect as a separate
contract.
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Section 6.15 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
THE COMPANY: THE PURCHASER:
SAVOY RESOURCES CORP. EIB CAPITAL CORP.
By: /s/ X X Xxxxxx By: /s/ Xxxxxx Xxxxxx
-------------- -----------------
Xxxxxx Xxxxxx, President and CEO Xxxxxx Xxxxxx, President
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