Exhibit 10.1
Form 10-QSB, May 2002
Ozolutions, Inc.
File No. 0-31343
These securities have not been registered with the United States Securities and
Exchange Commission or the securities commission of any state because they are
believed to be exempt from registration under Regulation D and/or Regulation S
promulgated under the Securities Act of 1933, as amended (the "Act"). The
foregoing authorities have not confirmed the accuracy or determined the adequacy
of this document. Any representation to the contrary is a criminal offense. This
subscription agreement shall not constitute an offer to sell nor a solicitation
of an offer to buy the securities in any jurisdiction in which such offer or
solicitation would be unlawful.
These securities are subject to restrictions on transferability and resale and
may not be transferred or resold except as permitted under the Securities Act,
and applicable state securities Laws, pursuant to registration or exemption
therefrom. Investors should be aware that they will be required to hear the
financial risks of this investment for an indefinite period of time. All offers
and sales of the herein-described securities by non-U.S. persons before the
expiration of a period commencing on the date of the closing of this offering
and ending one-year thereafter shall only he made in compliance with Regulation
S, pursuant to registration under the Act, or pursuant to an exemption from
registration, and all offers and sales after the expiration of the one-year
period shall be made only pursuant to registration or an exemption from
registration. Hedging transactions involving these securities may not he
conducted unless in compliance with the Act.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into this 1st day of
October, 2001 (the "Effective Date"), by and between THE OZOLUTIONS INC.
(OZOLUTIONS) and FIRST CHARTERED CAPITAL CORPORATION INC. (FIRST CAPITAL) a Laos
corporation.
WHEREAS, FIRST CAPITAL desires to purchase 1,200,000 shares of restricted common
stock of OZOLUTIONS, (the "OZOLUTION Shares") from OZOLUTIONS and,
WHEREAS, OZOLUTIONS agrees to deliver the OZOLUTIONS Shares for the
Consideration (as defined below) to be paid by FIRST CAPITAL, subject to the
terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the mutual promises herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Purchase and Sale. On the basis of the representations and warranties
herein contained, subject to the terms and conditions set forth herein, FIRST
CAPITAL hereby agrees to purchase the OZOLUTIONS Shares at a purchase price of
thirty percent (30%) of the daily market quotation bid price as listed on the
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NASDAQ Electronic Bulletin Board (the "Consideration"). The Consideration is
payable in biweekly installments. FIRST CAPITAL will be allowed to purchase and
OZOLUTJONS expressly agrees to sell FIRST CAPITAL, OZOLUTIONS Shares which FIRST
CAPITAL can prove it contracted to purchase at the time OZOLUTIONS terminates
this Agreement.
2. Closing. The closing of the purchase and sale contemplated by this
Agreement (the "Closing") shall occur upon the transfer of the Consideration to
OZOLUTIONS (the "Transfer Date"), but shall not be later than March 31,2002.
FIRST CAPITAL shall have purchased all shares by no liter than the March 31,
2002 date. OZOLUTIONS shall deliver the OZOLUTION shares within 14 days of
receiving partial or full payment from FIRST CAPITAL during the term of this
Agreement.
A. Transactions and Document Exchange at Closing. Prior to or at the
Closing, the following transactions shall occur and documents shall be
exchanged, all of which shall be deemed to occur simultaneously: (1) By FIRST
CAPITAL: FIRST CAPITAL will deliver, or cause to be delivered, to OZOLUTIONS:
(i) The balance of the Consideration, (ii) Such other documents, instruments,
and/or certificates, if any, as are required to be delivered pursuant to the
provisions of this Agreement, or which are reasonably determined by the parties
to be required to effectuate the transactions contemplated in this Agreement, or
as otherwise may be reasonably requested by OZOLUTIONS in furtherance of the
intent of this Agreement; (2) By OZOLUTIONS: OZOLUTIONS will deliver, or cause
the following to be delivered, to FIRST CAPITAL: (i) The OZOLUTION Shares, (ii)
Such other documents, instruments. and/or certificates, if any, as are required
to be delivered pursuant to the provisions of this Agreement, or which are
reasonably determined by the parties to be required to effectuate the
transactions contemplated in this Agreement, or as otherwise may be reasonably
requested by in furtherance of the intent of this Agreement.
B. Post-Closing Documents. From time to time after the Closing, upon the
reasonable request of any party, the party to whom the request is made shall
deliver such other and further documents, instruments, and/or certificates as
may be necessary to more fully vest in the requesting party the Consideration or
the OZOLUTION Shares as provided for in this Agreement, or to enable the
requesting party to obtain the rights and benefits contemplated by this
Agreement.
3. Private Offering. FIRST CAPITAL and OZOLUTIONS understand each that the
sale and exchange of securities contemplated herein constitutes a private,
arms-length transaction between a willing seller and a willing buyer without the
use or reliance upon a broker, distributor or securities underwriter.
X. Xxxxxxxx for Investment Neither FIRST CAPITAL nor OZOLUTIONS are
underwriters of, or dealers in the securities to be sold and exchanged
hereunder.
B. Investment Risk. Because of OZOLUTIONS' financial position and other
factors, the transaction contemplated by this Agreement may involve a high
degree of financial risk, including the risk that one or both parties may lose
its entire investment, and both parties hereby agree that they have each
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undertaken an independent evaluation of the risks associated with the OZOLUTIONS
Shares, and both parties understand those risks and are willing to accept the
risk that they may have to bear the financial risks of this investment for an
indefinite period of time.
C. Access to Information: FIRST CAPITAL and OZOLUTIONS and their advisors
have been afforded the opportunity to discuss the transaction with legal and
accounting professionals and to examine and evaluate the financial impact of the
sale and exchange contemplated herein. FIRST CAPITAL has received and reviewed
OZOLUTIONS' Form 10-SB as amended, and quarterly report on Form 10-QSB for the
quarter ended May 31, 2001, all as filed with the SEC.
4. Representation and Warranties of First Capital. FIRST CAPITAL hereby
covenants with and represents and warrants to OZOLUTIONS that:
A. Organization. FIRST CAPITAL is a corporation validly existing and in
good standing under the laws of Laos with the power and authority to carry on
its business as now being conducted. The execution and delivery of this
Agreement and the consummation of the transaction contemplated in this Agreement
have been, or will be prior to Closing, duly authorized by all requisite
corporate action on the part of FIRST CAPITAL. This Agreement has been duly
executed and delivered by FIRST CAPITAL and constitutes a binding and
enforceable obligation of FIRST CAPITAL.
B. Third Party Consent No authorization, consent, or approval of, or
registration or filing with any governmental authority or any other person is
required to be obtained or made by FIRST CAPITAL in connection with the
execution, delivery, or performance of this Agreement or the transfer of the
securities, or if required FIRST CAPITAL will have or will obtain the same prior
to Closing;
C. Litigation. FIRST CAPITAL is not a defendant against whom a claim has
been made or a judgment rendered in any litigation or proceedings before any
local state or federal government, including but not limited to the United
States, or any department, board, body or agency thereof.
D. Authority. This Agreement has been duly executed by FIRST CAPITAL and
die execution and performance of this Agreement will not violate, or result in a
breach of, or constitute a default in any agreement, instrument, judgment, order
or decree to which FIRST CAPITAL is a party or to which the Consideration is
subject.
E. Offshore Transaction. FIRST CAPITAL represents and warrants that (i)
FIRST CAPITAL is not a "U.S. person" as that term is defined in Rule 902 of
Regulation S; (ii) FIRST CAPITAL is not, and on the Closing Date will not be, an
affiliate of the Company; (iii) at the execution of this Subscription Agreement,
FIRST CAPITAL was outside the United States, and no offer to purchase the
OZOLUTIONS shares was made in the United States; (iv) FIRST CAPITAL agrees that
all offers and sales of the OZOLUTIONS Shares shall not be made to U.S. persons
unless the OZOLUTION shares are registered or a valid execution can be relied on
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under applicable U.S. state and federal securities laws; (v) FIRST CAPITAL is
not a distributor or dealer; (vi) the transactions contemplated hereby have not
been and will not be pre-arranged by FIRST CAPITAL with a purchaser located in
the United States or a purchaser which is a U.S. person, and are not and will
not be part of a plan or scheme by FIRST CAPITAL to evade the registration
provisions of the Act.
F. Accredited Investor. FIRST CAPITAL is an accredited investor as that
term is defined in Rule 501(a) of Regulation D promulgated under the Act. FIRST
CAPITAL further warrants and represents that the information as disclosed in
Exhibit "A" attached hereto is true and correct.
G. Beneficial Owner. FIRST CAPITAL is purchasing stock for its own account
or for the account of beneficiaries for whom FIRST CAPITAL has full investment
discretion with respect to stock and whom FIRST CAPITAL has all authority to
bind, so that each beneficiary is bound hereby as if such beneficiary were a
direct signatory hereunder, and all representations, warranties and agreements
herein were made directly by such beneficiary.
H. Directed Selling Efforts. FIRST CAPITAL will not engage in any activity
for the purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States for any of the stock sold
hereunder. To the best of its knowledge, neither FIRST CAPITAL nor any person
acting for FIRST CAPITAL has conducted any "directed selling efforts" as that
term is defined in Rule 902 of Regulation S.
I. Independent Investigation. FIRST CAPITAL, in electing to purchase stock
hereunder, has relied solely upon independent investigation made by it and its
representatives. FIRST CAPITAL has been given no oral or written representation
or warranty from OZOLUTIONS other than as set forth in this Agreement.
J. No Government Recommendation or Approval FIRST CAPITAL understands that
no United States federal or state agency, or similar agency of any other
country, has passed upon or made any recommendation or endorsement of the
OZOLUTIONS shares or this transaction.
K. No Formation or Membership in "Group." FIRST CAPITAL is not part of a
"group" as that term is defined under the Act. FIRST CAPITAL is not, and does
not intend to become, included with two or more persons acting as a partnership,
syndicate, or other group for the purpose of acquiring, holding or disposing of
securities of the Company.
L. Hedging Transactions. FIRST CAPITAL hereby agrees not to engage in any
hedging transactions involving the securities described herein unless in
compliance with the Act.
5. Conditions Precedent to OZOLUTIONS Closing. All obligations of
OZOLUTIONS under this Agreement, and as an inducement to OZOLUTIONS to enter
into this Agreement, are subject to FIRST CAPITALS covenants and agreement to
each of the following:
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A. Acceptance of Documents. All instruments and documents delivered to
OZOLUTIONS pursuant to this Agreement or reasonably requested by OZOLUTIONS to
verify the representations and warranties of FIRST CAPITAL herein, shall be
satisfactory to OZOLUTIONS and its legal counsel.
B. Representations and Warranties. The representations and warranties by
FIRST CAPITAL set forth in this Agreement shall be true and correct at and as of
the Closing Date, with the same force and effect as though made at and as of the
date hereof, except for changes permitted or contemplated by this Agreement
C. No Breach or Default. FIRST CAPITAL shall have performed and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
6. Termination. This Agreement may be terminated at any time prior to the
date of Closing by either party if (a) there shall be any actual or threatened
action or proceeding by or before any court or any other governmental body which
shall seek to restrain, prohibit, or invalidate the transaction contemplated by
this Agreement, and which in the judgment of such party giving notice to
terminate and based upon the advice of legal counsel makes it inadvisable to
proceed with the transaction contemplated by this Agreement, or (b) if this
Agreement has not been approved and properly executed by the parties by October
5,200 1.
7. Restrictive Legend. FIRST CAPITAL agrees that the OZOLUTIONS Shares
shall bear a restrictive legend to the effect that transfer is prohibited except
in accordance with the provisions of Regulation S, pursuant to registration
under the Act, or pursuant to an available exemption from registration, and that
hedging transactions involving those securities may not be conducted unless in
compliance with the Act.
8. OZOLUTIONS'S Obligation to Refuse Transfer. Pursuant to Regulation S
promulgated under the Act, OWLUTIONS hereby agrees to refuse to register any
transfer of the OZOLUTIONS Shares not made in accordance with the provisions of
Regulation S, pursuant to registration under the Act, or pursuant to an
available exemption from registration.
9. Miscellaneous.
A. Authority. The officers of FIRST CAPITAL and OZOLUTIONS executing this
Agreement are duly authorized to do so and each party has taken ail action
required by law or otherwise properly and legally execute this Agreement,
B. Notices. Any notice under this Agreement shall be deemed to have been
sufficiently given if sent by registered or certified mail, postage prepaid,
addressed as follows:
To First Capital: First Chartered Capital Corporation Inc.
P.O. Box 8296
Vientiane, Laos PDR
Telephone: 000.000.000.0000
Facsimile: 011.856.212.17368
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To Ozolutions: OZOLUTIONS Inc.
00 Xxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0
Phone: (000) 000-0000
Facsimile: (000) 000-0000
or to any other address which may hereafter be designated by either party by
notice given in such manner. All notices Xxxxx be deemed to have been given as
of the date of receipt.
C. Entire Agreement. This Agreement sets forth the entire understanding
between the parties hereto and no other prior written or oral statement or
agreement shall be recognized or enforced.
D. Severability. If a court of competent jurisdiction determines that any
clause or provision of this Agreement is invalid, illegal or unenforceable, the
other clauses and provisions of the Agreement shall remain in full force and
effect and the clauses and provision which are determined to be void, illegal or
unenforceable shall be limited so that they shall remain in effect to the extent
permissible by law,
E. Assignment None of the parties hereto may assign this Agreement without
the express written consent of the other parties and any approved assignment
shall be binding on and inure to the benefit of such successor or, in the event
of death or incapacity, on assignor's heirs, executors, administrators and
successors.
F. Applicable Law. This Agreement has been negotiated and is being
contracted for in the United States, The State of Delaware it shall be governed
by the laws of the United States, The State of Delaware notwithstanding any
conflict-of-law provision to the contrary.
G. Attorney's Fees. If any legal action or other proceeding
(non-exclusively including arbitration) is brought for the enforcement of or to
declare any right or obligation under this Agreement or as a result of a breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, or otherwise because of a dispute among the parties hereto, the
prevailing party will be entitled to recover actual attorney's fees (including
for appeals and collection) and other expenses incurred in such action or
proceeding, in addition to any other relief to which such party may he entitled.
H. No Third Party Beneficiary. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the parties hereto
and their successors, any rights or remedies under or by reason of this
Agreement, unless this Agreement specifically states such intent.
I. Counterpart It is understood and agreed that this Agreement may be
executed in any number of identical counterparts, each of which may be deemed an
original for all purposes.
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J. Further Assurances. At any time, and from time to time after the
Closing, each party hereto will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm or
perfect title to the Consideration and OZOLUTJON Shares to be transferred
hereunder, or otherwise to carry out the intent and purposes of this Agreement.
K. Amendment or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
party of the performance of any obligation by the other shall be consumed as a
waiver of the same or any other default then, thereinfore, or thereafter
occurring or existing. At any time prior to Closing, this Agreement may be
amended by a writing signed by all parties hereto.
L. Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
X. Xxxxxxxxx. A fax, telecopy or other reproduction of this instrument may
be executed by one or more parties hereto and such executed copy may be
delivered by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties agree to execute
an original of this instrument as well as any facsimile, telecopy or other
reproduction hereof.
IN WITNESS THEREOF, the parties have executed this Agreement below:
First Chartered Capital Corporation, Inc. Ozolutions, Inc.
/s/ Xxxxxxx Xxxxxx /s/ Xxx Xxxxxxxxxxxxx
By: Xxxxxxx Xxxxxx, By: Xxx Xxxxxxxxxxxxx,
Chief Executive Officer President
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EXHIBIT A
OFFEREE QUESTIONNAIRE
Dear Sirs
The information contained herein is being submitted by me pursuant to Sections
4(2) and/or 4(6) of the Securities Act of 1933 (the "Act") and Regulation D
promulgated thereunder I understand that you will rely upon the information
contained herein since the Company's Common Shares ("Shares") will not be
registered under the Act or any State Securities Act, in reliance upon the
exemptions from registration provided by Sections 4(2) and/or 4(6) of the Act,
Regulation D1 Regulation S, and corresponding provisions of relevant State
Securities Acts. I understand that (i) you will rely upon the information
contained herein for purposes of such determination, and (ii) this questionnaire
has been requested by you so that you may better assess the suitability of the
undersigned as a prospective purchaser of the Shares.
I hereby provide you with following information and information:
1. I represent that I either:
a) Have such knowledge and experience in financial and business matters
that I am capable of evaluating the merits and risks of an investment in the
Shares. I am not utilizing any other person to be my Purchaser Representative in
connection with evaluating such merits and risks l offer as evidence of my
knowledge and experience in these matters the information requested in this
Purchaser Questionnaire. Or
b) Have obtained the services of a Purchaser Representative in connection
herewith who is_____________________________________. My Purchaser
Representative submits herewith for your files a copy of the attached Purchaser
Representative Information that was furnished to the undersigned, and I will
furnish such Purchaser Representative with a copy of this Questionnaire as
acknowledgment of his serving as my Purchaser Representative. The undersigned
and/or the above named Purchaser Representative together have such knowledge and
experience in financial and business matters that they are capable of evaluating
the merits and risks of an investment in the Shares.
2. I am a person who is able to bear the economic risk of an investment in the
Shares in the amount which you intend to offer. In making this statement,
consideration has been given to whether I could afford to hold the Shares for an
indefinite period of time and whether, at this time, I could afford a complete
loss. I offer as evidence of my ability to bear the economic risk, the
information in this Purchaser Questionnaire.
3. Except as indicated below, any purchases of the Shares will be solely for my
account, and not for the account of any other person or with a view to any
resale or distribution thereof.
4. I represent to you that information contained herein is complete and accurate
and may be relied upon by you, and that I will notify you immediately of any
material change in any of such information occurring prior to the closing of the
purchase of the Shares, if any by me.
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Date; October 1, 2001
By: First Chartered Capita1 Corporation, Inc.
Name:
Position:
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INVESTOR INFORMATION
1. Name: ___________________________________________ Age: _________________
2. Residence Address and Telephone Number: __________________________________
________________________________________________________________________________
3. Social Security Number: _________________________________________________
4. Employer and Position: __________________________________________________
5. Business Address and Telephone Number: __________________________________
________________________________________________________________________________
6. Business or Professional Degrees: _______________________________________
________________________________________________________________________________
7. Prior Employment (Position, Nature of Duties, Dates of Employment (Past
5 years): ________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
8. Prior Investments (amount cumulative):
Up to $50,000 _______ $50,000-$150,000 ________ Over $150,000 ________
9. Financial Information:
(A) In each of your two preceding tax years, did you individually report
for federal tax purposes more than $200,000 of gross income, or, when
combined with the income of your spouse, if any, $300,000 of gross
income? Yes ___ No ___
(B) If the answer to (A) is Yes1 do you presently expect to have mere than
$200,000 of gross income, or, when combined with your spouse, if any,
$300,000 of gross income in the current taxable year? Yes ___ No ___
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(C) Do you have net worth of at least $1,000,000? Yes ___ No ___
(D) Net worth (exclusive of home, home furnishings and personal
automobiles).
$250,000-$500,000 _______ $500,000-$1,000,000 _______ Over $1,000,000 _______
I hereby certify that the foregoing is true and correct.
Dated: October 1, 2001
By: First Chartered Capita1 Corporation, Inc.
Name:
Position:
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