EXHIBIT 10.7
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of March 16, 2005 (the "Effective Date"), by and
between Retail Pilot, Inc., a California corporation (the "Company"), and
Bridgetech International Holdings Inc., a Delaware corporation ("Purchaser").
The Company and the Purchaser are collectively referred to as the "parties," and
they are the only parties hereto, each of them being a "party."
WHEREAS, the Company desires to issue and sell to Purchaser and Purchaser
desires to purchase from the Company capital stock of the Company as described
herein according to the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration for the mutual promises and covenants set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Number of Shares and Price Per Share. Purchaser agrees to purchase from
the Company and the Company agrees to sell to Purchaser 800,000shares of the
Company's common stock, $1.00par value (the "Stock") (representing 80% of the
issued and outstanding shares of the Company), at a purchase price of
$1,000,000.00or $1.25 per share (the "Purchase Price"). The closing of such
purchase shall occur immediately upon execution of this Agreement. Payment of
the $1,000,000 shall be made in accordance with the time table mutually agreed
by Purchaser and Company including making available $840,000 on as requested
basis from the date of execution of this Agreement until June 10, 2005. Payment
of the $1,000,000 shall be made in accordance with the time table mutually
agreed by Purchaser and Company and attached hereto as Attachment A.
2. Legends. All certificates representing any shares of Stock subject to
the provisions of this Agreement shall have endorsed thereon the following
legends:
(a) "THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE
COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
(b) Any legend required to be placed thereon by the California
Commissioner of Corporations.
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3. Warranties and Representations. In connection with the proposed
purchase of the Stock, Purchaser hereby agrees, represents and warrants as
follows:
(a) Purchaser is purchasing the Stock solely for Purchaser's own
account for investment and not with a view to, or for resale in connection with,
any distribution thereof within the meaning of the Securities Act. Purchaser
further represents that Purchaser does not have any present intention of
selling, offering to sell or otherwise disposing of or distributing the Stock or
any portion thereof, and that the entire legal and beneficial interest of the
Stock Purchaser is purchasing is being purchased for, and will be held for the
account of, Purchaser only and neither in whole nor in part for any other
person.
(b) Purchaser has (i) a preexisting personal or business
relationship with the Company or one or more of its officers, directors, or
control persons or (ii) by reason of Purchaser's business or financial
experience, or by reason of the business or financial experience of Purchaser's
financial advisor who is unaffiliated with and who is not compensated, directly
or indirectly, by the Company or any affiliate or selling agent of the Company,
Purchaser is capable of evaluating the risks and merits of this investment and
of protecting Purchaser's own interests in connection with this investment.
Purchaser has had the opportunity to review its decision, consult with financial
and legal advisors and independently verify any pertinent information regarding
Retail Pilot before making its decision to purchase. Purchaser is not relying on
any representation made by any Retail Pilot representative as a basis for making
its investment.
(c) The Company has disclosed to Purchaser that:
(i) the sale of the Stock has not been registered under the
Securities Act, and the Stock must be held indefinitely unless a transfer of it
is subsequently registered under the Securities Act or an exemption from such
registration is available, and that the Company is under no obligation to
register the Stock;
(ii) the Company will make a notation in its records of the
aforementioned restrictions on transfer and legends; and
(iii) the Material Adverse Events set forth on Schedule 1
which is attached hereto and incorporated by reference
(d) Purchaser is aware of the provisions of Rule 144, promulgated
under the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or an affiliate of such issuer), in a non-public offering subject to
the satisfaction of certain conditions, including among other things: the resale
occurring not less than one year from the date Purchaser has purchased and paid
for the Stock; the availability of certain public information concerning the
Company; the sale being through a broker in an unsolicited "broker's
transaction" or in a transaction directly with a market maker (as such term is
defined under the Securities Exchange Act of 1934, as amended); and that any
sale of the Stock may be made by Purchaser only in limited amounts during any
three-month period not exceeding specified limitations. Purchaser further
represents that Purchaser understands that at the time Purchaser wishes to sell
the Stock there may be no public market upon which to make such a sale, and
that, even if such a public market then exists,
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the Company may not be satisfying the current public information requirements of
Rule 144, and that, in such event, Purchaser would be precluded from selling the
Stock under Rule 144 even if the one-year minimum holding period had been
satisfied. Purchaser represents that Purchaser understands that in the event all
of the requirements of Rule 144 are not satisfied, registration under the
Securities Act or compliance with an exemption from registration will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
staff of the Securities and Exchange Commission has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and other than pursuant to Rule 144 will have a substantial
burden of proof in establishing that an exemption from registration is available
for such offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk. Purchaser fully
acknowledges that there may be no market for sale of the stock acquired under
this Agreement.
(e) Without in any way limiting Purchaser's representations and
warranties set forth above, Purchaser further agrees that Purchaser shall in no
event make any disposition of all or any portion of the Stock which he or she is
purchasing unless and until:
(i) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(ii) Purchaser shall have (1) notified the Company of the
proposed disposition and furnished the Company with a detailed statement of the
circumstances surrounding the proposed disposition, and (2) furnished the
Company with an opinion of Purchaser's own counsel to the effect that such
disposition will not require registration of such shares under the Securities
Act, and such opinion of Purchaser's counsel shall have been concurred in by
counsel for the Company, and the Company shall have advised Purchaser of such
concurrence.
(f) Purchaser acknowledges that investment in Retail Pilot is a very
risky investment and it is possible Purchaser could lose its entire investment
without any recourse.
(g) The Board of Directors of Purchaser has approved the transaction
contemplated by this Agreement and has authorized its officers and directors to
execute and complete the transaction by unanimous written consent or at properly
convened Board of Directors meeting
(h) Bridgetech is a company in good standing under laws of the
State of Delaware and consummation of this transaction is permissible under
applicable laws and its charter.
4. Conditions to the Company's Obligation to Sell.
The Purchaser understands that the Company's obligation to sell the Stock to
the Purchaser pursuant to this Agreement on the Closing Date is conditioned
upon:
(a) The execution and delivery of this Agreement by the Purchaser;
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(b) Delivery by the Purchaser to the Company of good funds as
payment in full of an amount equal to the Purchase Price for the Stock in
accordance with this Agreement;
(c) The accuracy on the Closing Date of the representations and
warranties of the Purchaser contained in this Agreement, each as if made on such
date, and the performance by the Purchaser on or before such date of all
covenants and agreements of the Purchaser required to be performed on or before
such date;
(d) There are no material adverse events to the Purchaser. "Material
Adverse Event" means any set of one or more circumstances or events which,
individually or collectively, could reasonably be expected to result in any (a)
material impairment of the ability of the Purchaser to fulfill any of its
obligations under this Agreement, or for the Company to enforce any such
obligations or any of their respective rights under this Agreement, or (b)
material and adverse effect on the business, properties, condition (financial or
otherwise) or results of the Purchaser;
(e) There is no action, suit, proceeding, inquiry or investigation
before or by any court, public board or body pending or, to the knowledge of the
Purchaser, threatened against or affecting the Purchaser, wherein an unfavorable
decision, ruling or finding would have a Material Adverse Effect or which would
adversely affect the validity or enforceability of, or the authority or ability
of the Purchaser taken as a whole to perform its obligations under this
Agreement; and
(f) There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby, or requiring
any consent or approval that shall not have been obtained, including but not
limited to, approval of the Stockholders" Agreement between the parties as of
this date.
5. Conditions to the Purchaser's Obligation to Purchase.
The Company understands that the Purchaser's obligation to purchase the Stock
on the Closing Date is conditioned upon:
(a) The execution and delivery of this Agreement by the Company;
(b) Delivery by the Company of the number of Shares of Common Stock
purchased under this Agreement;
(c) The accuracy in all material respects on the Closing Date of the
representations and warranties of the Company contained in this Agreement, each
as if made on such date, and the performance by the Company on or before such
date of all covenants and agreements of the Company required to be performed on
or before such date;
(d) Except as set forth in Schedule 1, there are no material adverse
events to the Company. "Material Adverse Event" means any set of one or more
circumstances or events which, individually or collectively, could reasonably be
expected to result in any (a) material impairment of the ability of the Company
to fulfill any of its obligations under this Agreement,
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or for the Purchaser to enforce any such obligations or any of their respective
rights under this Agreement, or (b) material and adverse effect on the business,
properties, condition (financial or otherwise) or results of the Company;
(e) Except as set forth in Schedule 1, there is no action, suit,
proceeding, inquiry or investigation before or by any court, public board or
body pending or, to the knowledge of the Company, threatened against or
affecting the Company, wherein an unfavorable decision, ruling or finding would
have a Material Adverse Effect or which would adversely affect the validity or
enforceability of, or the authority or ability of the Company taken as a whole
to perform its obligations under this Agreement; and
(f) Except as set forth in Schedule 1,there shall not be in effect
any law, rule or regulation prohibiting or restricting the transactions
contemplated hereby, or requiring any consent or approval that shall not have
been obtained, including but not limited to, approval of the Stockholders"
Agreement between the parties as of this date.
6. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
7. Notice. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given (a) upon personal delivery or (b)
three (3) days after deposit in the United States Post Office, by registered or
certified mail with postage and fees prepaid, addressed to the other party
hereto at the address hereinafter shown below Purchaser's signature or at such
other address as such party may designate by ten (10) days' advance written
notice to the other party hereto.
8. Successors and Assigns. This Agreement shall inure to the benefit of
the successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon Purchaser, Purchaser's successors and
assigns.
9. Entire Agreement; Amendments. This Agreement shall be construed under
the laws of the State of California (as it applies to agreements between
California residents, entered into and to be performed entirely within
California), and constitutes the entire agreement of the parties with respect to
the subject matter hereof superseding all prior written or oral agreements, and
no amendment or addition hereto shall be deemed effective unless agreed to in
writing by the parties hereto.
10. Separability. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way and shall be construed in accordance with the
purposes and tenor and effect of this Agreement.
11. Counterparts. This Agreement may be signed 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.
12. Dispute Resolution
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A. The Parties agree to resolve all claims, disputes and controversies past,
present or future arising out of or related to, this Agreement against each and
against respective employees, officers, directors, agents and employees in final
and binding arbitration in San Diego, California under the rules of the Judicial
Arbitration and Mediation Service ("JAMS") for commercial arbitration.
B. The Parties agree to waive any rights to trial by jury, adjudication in a
different venue and notice requirements.
C. The arbitrator will be an individual knowledgeable about the subject matter
of the dispute mutually agreed upon by the Parties from a JAMS panel. If the
Parties cannot agree on an arbitrator, each Party will select an individual from
the JAMS list, and the two so selected will choose the arbitrator from another
JAMS panel.
D. The arbitrator will apply the substantive law of California without regard to
the principles of conflicts of law or U.S. law, as applicable. The arbitrator
will have the exclusive authority to resolve disputes relating to
interpretation, applicability and enforcement of this Agreement.
E. The arbitration process, including selection of the arbitrator, exchange of
requests for information and the arbitration hearing will be completed within 60
days following the institution of the arbitration by a party, and the actual
arbitration hearing shall be limited to 1 day.
F. The arbitrator will provide a written opinion setting forth the reasons for
the decision within ten (10) days of the arbitration hearing. The Parties may
enter judgment on any arbitration award in any court having jurisdiction.
G. This Article shall survive termination of this Agreement.
H. The arbitrator shall award all costs (excluding arbitration costs) and
reasonable attorney fees to the prevailing party in any arbitration or
litigation. Each Party agrees to split the cost of arbitration excluding legal
fees.
I. The Arbitrator shall have not have the authority to award special,
consequential or punitive damages.
J. The arbitrator shall have the authority to grant injunctive relief and other
equitable remedies if money damages are insufficient.
K. Any claim must be submitted to arbitration within earlier of twelve months of
the termination of this Agreement or twelve months from discovery of the claim.
IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase
Agreement as of the date first written above.
COMPANY: Retail Pilot, Inc.,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
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Print Name: Xxxxxxx X. Xxxxxxx
Title: CEO/President
Address:
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
PURCHASER: Bridgetech International Holdings Inc.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Print Name: Xxxxx Xxxxxx
Title: CEO
Address:
000 Xxxxx Xxxxxxx 000, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
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Schedule A
Anticipated Financing Schedule Subject to Mutual Agreement
Date Amount
------ ----------
3/4 $ 80,000
3/11 $ -
3/18 $ 75,000
3/25 $ 30,000
4/1 $ 85,000
4/8 $ 35,000
4/15 $ 50,000
4/22 $ 95,000
4/29 $ 40,000
5/6 $ 90,000
5/13 $ 55,000
5/20 $ 80,000
5/27 $ 40,000
6/4 $ 85,000
Totals $ 840,000
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