STOCK PURCHASE AGREEMENT
EXHIBIT
10.1
THIS
STOCK PURCHASE AGREEMENT (the “Agreement”) is made
and entered into as of this 5th day of March, 2010 (the “Effective Date”), by
and between Xxxxxxxx X. Xxxxxx, Xx. and EAU Technologies, Inc., a Delaware
corporation (the “Corporation”).
W I T N E S E T
H:
WHEREAS, the Corporation desires to
sell to Xxxxxxxx X. Xxxxxx, Xx.(the “Purchaser”), and Purchaser desires to
purchase from the Corporation, a total of 100,000 shares of the Common Stock of
the Corporation at a purchase price of $1.00 per share upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the
mutual covenants and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Purchase and Sale of
Shares. Subject to the terms of this Agreement, the
Corporation hereby agrees to sell to Purchaser, and Purchaser herby agrees to
purchase from the Corporation a total of 100,000 unregistered shares of the
Common Stock of the Corporation (the “Purchased Shares”) at
a purchase price of $1.00 per share.
2. Purchase Price; Issuance of
Shares. The aggregate cash consideration for the Purchased
Shares shall be $100,000 (the “Purchase Price”),
which shall be paid by Purchaser to the Corporation by wire transfer of
immediately available funds, on the following date: March __,
2010. Upon receipt by the Corporation of the Purchase Price, the
Corporation shall cause its transfer agent to issue in the name of, and deliver
to, Purchaser a certificate evidencing the number of Purchased Shares purchased
for the applicable Purchase Price payment.
3. Representations and
Warranties of the Corporation. The Corporation hereby
represents and warrants to Purchaser as follows:
3.1 Authority. The
Corporation has the corporate power and authority to execute and deliver the
Agreement, to sell the Purchased Shares to Purchaser, and to perform its
obligations hereunder, and such execution, delivery and performance will not
violate any agreement, contract, law, rule, decree or other legal restriction by
which the Corporation is bound. The execution of the Agreement and the issuance
of the Purchased Shares hereunder have been approved by the Board of Directors
of the Corporation.
3.2 Shares. Upon
payment of the applicable Purchase Price amount, the Purchased Shares for which
the Corporation has actually received payment shall be duly authorized, validly
issued, fully-paid and non-assessable.
4. Representations and
Warranties of Purchaser. Purchaser hereby represents and
warrants to the Corporation as follows:
4.1 Legal
Capacity. Purchaser has the company power and authority to
execute and deliver the Agreement, to purchase the Purchased Shares from the
Corporation, and to perform its obligations hereunder, and such execution,
delivery and performance will not violate any agreement, contract, law, rule,
decree or other legal restriction by which Purchaser is bound. The
execution of the Agreement by Purchaser and the performance of its obligations
hereunder has been approved by all company action and no further company action
is necessary for Purchaser to perform its obligations
hereunder. Purchaser has duly executed and delivered this
Agreement.
4.2 Information. Purchaser
has had a reasonable opportunity to conduct due diligence related to the
purchase of the Purchased Shares, including the opportunity to ask questions and
receive answers from the Corporation, and Purchaser has received all information
requested by it from the Corporation in connection with the purchase of the
Purchased Shares. Purchaser has had an opportunity to consult with
its own legal counsel, tax and financial advisors regarding the purchase of the
Purchased Shares.
4.3 Investment. (a)
Purchaser is acquiring the Purchased Shares solely for its own account for
investment purposes and not with a view or interest of participating, directly
or indirectly, in the resale or distribution of all or any part thereof;
(b) Purchaser acknowledges that all of the Purchased Shares acquired
by it are to be issued and sold to Purchaser without registration and in
reliance upon certain exemptions under the Federal Securities Act of l933, as
amended, and in reliance upon certain exemptions from registration requirements
under applicable state securities laws; (c) Purchaser will make no transfer or
assignment of any of the Purchased Shares except in compliance with the
Securities Act of l933, as amended, and any other applicable securities laws;
(d) Purchaser consents, agrees and acknowledges that the certificate or
certificates representing the Purchased Shares will be inscribed with the
following legend, or another legend to the same effect and agrees to the
restrictions set forth therein: “The shares represented by this
certificate have not been registered under the Securities Act of 1933, as
amended, or under the securities laws of any other jurisdiction, in reliance
upon exemptions from the registration requirements of such laws. The
shares represented by this certificate may not be sold or otherwise transferred,
nor will an assignee or endorsee hereof be recognized as an owner of the shares
by the issuer unless: (i) a registration statement under the
Securities Act of 1933 and other applicable securities laws with respect to the
shares and the transfer shall then be in effect; or (ii) in the opinion of
counsel satisfactory to the issuer, the shares are transferred in a transaction
which is exempt from the registration requirements of such laws.”; (e)
Purchaser is aware that no federal or state agency has made any recommendation
or endorsement of the Purchased Shares or any finding or determination as to the
fairness of the investment in such Purchased Shares; (f) neither the Corporation
nor any person acting on its behalf has offered the Purchased Shares to it by
means of general or public solicitation or general or public advertising, such
as by newspaper or magazine advertisements, by broadcast media, or at any
seminar or meeting whose attendees were solicited by such means; (g) Purchaser
hereby acknowledges and represents that no commission or other remuneration has
been paid or given directly or indirectly in connection with the offer or sale
of the Purchased Shares to him; (h) it acknowledges that no public or secondary
market exists or may ever exist for the Purchased Shares and, accordingly, it
may not be able to readily liquidate its investment in the Purchased Shares; and
(i) it acknowledges that the Purchased Shares are a speculative investment and
represents that it can bear the economic risks of such an investment for an
indefinite period of time.
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4.4 Indemnification. Each
party hereby agrees to indemnify the other and hold harmless each other and all
of its affiliates, attorneys, accountants, employees, officers, directors,
shareholders and agents from any liability, claims, costs, damages, losses or
expenses incurred or sustained by them as a result of either party’s
representations and warranties being untrue or inaccurate, or because of a
breach of this Agreement by either party.
4.5 Brokers. Purchaser
has not retained or utilized the services of any broker, finder, intermediary,
or paid or agreed to pay any fee or commission to any person or entity for or on
account of the transactions contemplated hereby, or had any communications with
any person or entity thereto which would obligate Purchaser or the Corporation
to pay any such fees or commissions.
5. Survival of Representations
and Warranties. All representations and warranties of the
parties contained in this Agreement shall survive the execution and delivery of
this Agreement.
6. Amendment and
Modification. Subject to applicable law, this Agreement may be
amended, modified and supplemented in any and all respects, only by written
agreement signed by Purchaser and the Corporation.
7. Notices. All
notices, consents and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand or by Federal
Express or a similar overnight courier to the party for whom intended, at the
address for such party set forth below (or at such other address for a party as
shall be specified by like notice, provided, however, that any
notice of change of address shall be effective only upon receipt):
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if
to Purchaser:
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Xxxxxxxx
X. Xxxxxx, Xx.
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0000
Xxxxxx Xxxxx Xxxxx
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Xx.
Xxxxx, XX 00000
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If
to the Corporation:
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0000
Xxxx Xxxxxxxxxxxxx Xxxx., Xxxxx X
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Xxxxxxxx,
Xxxxxxx 00000
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Attention:
Xxxx X. Xxxxxxx, President and CEO
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The
parties hereto agree that notices or other communications that are sent in
accordance herewith (i) by personal delivery will be deemed received on the day
sent or on the first business day thereafter if not sent on a business day, (ii)
by overnight delivery, will be deemed received on the first business day
immediately following the date sent, and (iii) by U.S. mail, will be deemed
received three (3) business days immediately following the date
sent.
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8. Counterparts. This
Agreement may be executed in multiple counterparts, all of which shall together
be considered one and the same agreement.
9. Entire Agreement; Third
Party Beneficiaries. This Agreement and any exhibits thereto
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede and terminate all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
10. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void,
unenforceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated.
11. Governing
Law. This Agreement and the rights and obligations of the
parties under this Agreement shall be governed by, and construed and interpreted
in accordance with, the law of the State of Georgia.
12. Assignment. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective permitted successors and assigns.
13. Expenses. Except
as otherwise provided herein, all costs and expenses incurred in connection with
this Agreement and the consummation of the transactions contemplated herein
shall be paid by the party incurring such costs and expenses, whether or not the
transactions contemplated hereby are consummated.
14. Headings. Headings
of the articles and sections of this Agreement are for convenience of the
parties only, and shall be given no substantive or interpretative effect
whatsoever.
15. Waivers. Except
as otherwise provided in this Agreement, any failure of any of the parties to
comply with any obligation, covenant, agreement or condition herein may be
waived by the party or parties entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
[Signatures begin on following
page.]
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IN WITNESS WHEREOF, the
parties have executed and delivered this Stock Purchase Agreement on the date
first written above.
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CORPORATION:
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By:
/s/ Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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Chief
Executive Officer
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PURCHASER:
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/s/
Xxxxxxxx X. Xxxxxx, Xx.
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Xxxxxxxx
X. Xxxxxx, Xx.
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