STOCK PURCHASE AGREEMENT
NONE
OF
THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE
"SUBSCRIPTION AGREEMENT") RELATES HAVE BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY U.S. STATE
SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN
THE
UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS.
This
COMMON STOCK PURCHASE AGREEMENT (this “Agreement”),
dated
as of [-----] of August, 2008, is entered into by and between Royaltech, Inc.,
a
Delaware corporation (“Royaltech”),
and
FirsTrust
Group Inc.,
with an
address at 0000 Xxxxxxxxx Xx, Xxxxx 0000, Xxxxxxxx 000 Xxxxxxxxx, Xxxxxxx,
XX
00000 (the “Purchaser”).
RECITALS
WHEREAS,
the Purchaser desires to purchase and acquire, and Royaltech desires to issue
and sell to the Purchaser, 400,000 shares of common stock, par value $0.0001
of
Royaltech for a consideration of $150,000; and
WHEREAS,
the parties hereto desire to enter into this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Sale
of Common Stock.
A. Sale
and Issuance of Common Stock. Subject
to the terms and conditions of this Agreement, at the Closing, Royaltech will
sell and issue to the Purchaser, and the Purchaser will purchase from Royaltech,
400,000 shares of Common Stock (the “Shares”)
at the
purchase price of $0.375 per share for an aggregate purchase price of
$150,000.
II. Closing.
A. Closing
Date.
The
purchase and sale of the Shares hereunder shall take place at a closing
(the “Closing”),
which
shall be held simultaneously with the execution of the Share Exchange Agreement
by and among Royaltech, Densen Equipment Ltd. (“Densen”)
and
shareholders of Densen dated as of [-----] of August, 2008 (the “Share
Exchange Agreement”).
B. Actions
by Royaltech at the Closing.
Upon
receipt of the Subscription Amount, Royaltech shall issue
the
Shares to the Purchaser or its designees in the amounts as Purchaser shall
designate.
C. Actions
by the Purchaser at the Closing.
The
Purchaser shall deliver the $150,000
purchase price for the Shares (the “Subscription
Amount”)
to the
designated escrow agent under the Escrow Agreement by and among Purchaser,
Royaltech, Densen, and Xxxxx Xxxxxx LLP dated as of [-----] of August, 2008
(the
“Escrow
Agreement”)
to be
held by the escrow agent in escrow and disbursed pursuant to the Escrow
Agreement.
III. Representations
and Warranties of Royaltech.
Royaltech hereby represents and warrants to the Purchaser that:
A. Organization;
Good Standing; Qualification and Corporate Power.
(a)
Royaltech
is a corporation duly organized, validly existing and in good standing under
the
laws of Delaware and has all requisite corporate power and authority to carry
on
its business as now conducted and as proposed to be conducted. Royaltech is
duly
qualified to transact business and is in good standing in each jurisdiction(s)
in which the failure so to qualify would have a material adverse effect on
its
business or properties. True and correct copies of Royaltech Certificate of
Incorporation, as amended (the "Certificate
of Incorporation")
and
Bylaws have been provided to the Purchaser.
(b)
Royaltech
has all requisite legal and corporate power and authority to execute and deliver
this Agreement, to issue the Shares and to carry out and perform its obligations
under the terms of this Agreement and to consummate the transactions
contemplated hereby and thereby. All necessary corporate action has been taken
by Royaltech with respect to the execution, delivery and performance by
Royaltech of this Agreement and the consummation of the transactions
contemplated hereby and thereby. The Shares, when issued in
accordance pursuant to the terms of the Agreement,
will be
legally issued, fully paid and non assessable and free of pre-emptive rights
and
each Purchaser will own the Shares purchased by such Purchaser, free and clear
of all liens and encumbrances.
B. Capitalization
and Voting Rights.
The
entire authorized capital stock and other equity securities of Royaltech consist
of 50,000,000 authorized shares of common stock with a par value of $0.0001
(the
“Royaltech Common Stock”). As of the date of this Agreement, there are 1,190,185
shares of Royaltech Common Stock issued and outstanding. Royaltech will have
issued and outstanding no more than 18,310,538 shares of Royaltech Common Stock
immediately after the issuance of the Shares as contemplated by this Agreement
and the Royaltech Common Stock to be issued pursuant to the Share Exchange
Agreement.
C. Subsidiaries;
Interests of Royaltech.
Royaltech does not currently own or control, directly or indirectly, any
interest in any other partnership, limited liability company, corporation,
joint
stock company, trust, estate, joint venture, association or unincorporated
organization, or any other form of business or professional entity.
D. Authorization.
This
Agreement and all other agreements executed and delivered by Royaltech in
connection therewith, have been duly authorized, executed and delivered by
Royaltech and constitute the legal, valid and binding obligations of Royaltech,
enforceable in accordance with their respective terms, subject to (i) applicable
bankruptcy, insolvency, reorganization and moratorium laws, (ii) other laws
of
general application affecting the enforcement of creditors' rights generally
and
general principles of equity, (iii) the discretion of the court before which
any
proceeding therefor may be brought, and (iv) as rights to indemnity may be
limited by federal or state securities laws or by public policy.
E. SEC
Documents.
Royaltech has filed all reports, schedules, forms, statements and other
documents required to be filed by it with the Securities and Exchange Commission
(the “Commission”)
pursuant to the Securities Act of 1933 (the “Securities
Act”)
and
the Securities Exchange Act of 1934 (the “Exchange
Act”)
(the
“SEC
Documents”),
and
during the 12 calendar months prior to the date hereof all such SEC Documents
have been filed in a timely manner. The SEC Documents have complied in all
material respects with the requirements of the Securities Act or the Exchange
Act, as the case may be, and the rules and regulations of the Commission
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the Commission, contained any untrue
statement of a material fact or 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. As of their
respective dates, to the best of Royaltech’s knowledge during those respective
dates, the financial statements of Royaltech included in the SEC Documents
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission with
respect thereto. Such financial statements have been prepared in accordance
with
accounting principles generally accepted in the United States as in effect
from
time to time (“GAAP”),
consistently applied, during the periods involved (except (a) as may be
otherwise indicated in such financial statements or the notes thereto, or (b)
in
the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in
all
material respects the financial condition of Royaltech as of the respective
dates thereof and the results of its operations and cash flows for the
respective periods then ended (subject, in the case of unaudited statements,
to
normal year-end audit adjustments).
F. Governmental
Consents.
No
consent, approval, order, or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state, local or provincial
governmental authority on the part of Royaltech is required in connection with
the consummation of the transactions contemplated by this Agreement. Royaltech
and each of its subsidiaries has obtained all federal, state, local and foreign
governmental licenses and permits material to and necessary in the conduct
of
its business, such licenses and permits are in full force and effect, no
material violations are or have been recorded in respect of any such licenses
or
permits, and no proceeding is pending or threatened to revoke or limit any
thereof. There are no consents or waivers necessary for the consummation of
the
transactions contemplated by this Agreement.
G. Litigation.
Except
as set forth in the SEC Documents, (i) there is no action, suit, proceeding,
or
investigation pending or currently threatened against Royaltech, and (ii) in
Royaltech’s reasonable judgment, none of such disclosures are likely to question
the validity of this Agreement, or the right of Royaltech to enter into such
agreements, or to consummate the transactions contemplated hereby or thereby,
or
which might result, either individually or in the aggregate, in any material
adverse change in the assets, condition, affairs, or property of Royaltech,
financially or otherwise, or any change in the current equity ownership of
Royaltech, including, without limitation, actions pending or to Royaltech’s
knowledge threatened involving the prior employment of any of Royaltech’s
employees, their use in connection with Royaltech’s business of any information
or techniques allegedly proprietary to any of their former employers, or their
obligations under any agreements with prior employers.
H. Compliance
with Other Instruments.
Royaltech is not in violation or default of any provisions of its Certificate
of
Incorporation or Bylaws or of any instrument, judgment, order, writ, decree,
or
contract to which it is a party or by which it is bound or, to its knowledge,
of
any provision of federal or state statute, rule or regulation, license, or
permit applicable to Royaltech, the violation or default of which would have
a
material adverse effect on Royaltech. The execution, delivery, and performance
of this Agreement and the consummation of the transactions contemplated hereby
and thereby will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either
a
default under any such provision, instrument, judgment, order, writ, decree,
or
material contract or an event which results in the creation of any lien, charge,
or encumbrance upon any assets of Royaltech.
IV. Representations
and Warranties of the Purchaser.
The
Purchaser represents and warrants to Royaltech as follows:
A. Purchasing
for Own Account.
The
Purchaser is purchasing the Shares for its own account for investment purposes
only and not for the account of any other person and not for distribution,
assignment or resale to others, and other than affiliates of FirsTrust, no
other
person has a direct or indirect beneficial interest is such Shares, and the
Purchaser has not subdivided its interest in the Shares with any other
person.
B. Not
an Underwriter.
The
Purchaser is not an underwriter of, or dealer in, Royaltech Common Stock, nor
is
the Purchaser participating, pursuant to a contractual agreement or otherwise,
in the distribution of the Share.
C. Review
and Inspection.
The
Purchaser is relying on his own analysis regarding Royaltech’s operations,
financial condition, assets, liabilities and other relevant matters as the
Purchaser deemed necessary or desirable in order to evaluate the merits and
risks of the prospective investment contemplated herein. The
Purchaser acknowledges
that he has not relied upon any information given to the Purchaser, or any
statements made, by Royaltech or any officers or directors of Royaltech, except
for the representations and warranties of Royaltech expressly made
herein.
D. Purchaser
Due Diligence.
The
Purchaser and his representatives are solely responsible for the Purchaser’s own
“due diligence” investigation of Royaltech and its management and business and
for the Purchaser’s analysis of the financial future and viability of Royaltech
and desirability of the terms of this investment. The Purchaser acknowledges
that neither Royaltech nor any officer or director of Royaltech is making any
representation or warranty regarding any financial projections previously given
to the Purchaser or the assumptions underlying such financial projections,
as
such financial projections are subject to significant business, economic and
other uncertainties and contingencies. The Purchaser acknowledges that if
Royaltech is not able to operate profitably or generate positive cash flows,
Royaltech may have difficulty meeting its obligations and may not be able to
continue to operate its business, and the Purchaser could lose all of his
investment. The Purchaser has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of the
purchase of the Shares pursuant to the terms of this Agreement and of protecting
his interest in connection therewith.
E. Accredited
Investor Status.
The
Purchaser is an “Accredited Investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act and the Purchaser is able
to
bear the economic risk of the purchase of the Shares pursuant to the terms
of
this Agreement, including a complete loss of his investment in the
Shares.
F. Authority
for Agreement.
The
Purchaser has the full right, power and authority to enter into and perform
his
obligations under the Agreement, and the Agreement constitutes the valid and
binding obligations of the Purchaser enforceable in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency, reorganization and moratorium
laws, (ii) other laws of general application affecting the enforcement of
creditors' rights generally and general principles of equity, (iii) the
discretion of the court before which any proceeding therefor may be brought,
and
(iv) as rights to indemnity may be limited by federal or state securities laws
or by public policy.
G. Governmental
Consents.
To the
Purchaser’s knowledge, no consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of the
Purchaser is required in connection with the valid execution, delivery and
performance of the Agreement.
H. Taxes.
The
Purchaser has not relied on any statements or representations of Royaltech
or
any of its agents (other than the representations and warranties set forth
herein) with respect to the federal, state, local and foreign tax consequences
of this investment and the federal, state, local and foreign tax consequences
of
transactions contemplated by this Agreement. With respect to such matters,
the
Purchaser understands that he (and not Royaltech) shall be responsible for
his
own tax liability that may arise as a result of this investment or the
transactions contemplated by this Agreement.
I. Restricted
Securities.
The
Purchaser understands that the Shares have not been registered under the
Securities Act or the laws of any state and may not be sold or transferred,
or
otherwise disposed of, without registration under the Securities Act and
applicable state securities laws, or pursuant to an exemption therefrom. In
the
absence of an effective registration statement or an exemption therefrom
covering the Shares, the Purchaser will sell or transfer, or otherwise dispose
of, the Shares to be acquired by him only in a manner consistent with his
representations and agreements set forth herein and any applicable federal
and
state securities laws.
J. Legends.
It is
understood that the certificates evidencing the Shares may bear the following
legend:
(a)
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES EVIDENCED BY THIS
CERTIFICATE, FILED AND MADE EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND
SUCH
APPLICABLE STATE SECURITIES LAWS OR, UNLESS REASONABLY REQUESTED BY THE COMPANY,
THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH ACT AND SUCH APPLICABLE
STATE
SECURITIES LAWS IS NOT REQUIRED.
(b)
Any
legend required by the securities (“Blue Sky”) laws of any state.
The
legend referred to in clause (a) above shall be removed by Royaltech from any
certificate at such time as the holder of the securities represented by the
certificate delivers an opinion of counsel reasonably satisfactory to Royaltech
to the effect that such legend is not required in order to establish compliance
with any provisions of the Securities Act, or at such time as the holder of
such
shares satisfies the requirements of Rule 144 or such other substantially
similar rule promulgated under the Securities Act then in effect under the
Securities Act; provided, that Royaltech has received from the holder a written
representation that (i) such holder is not an affiliate of Royaltech and has
not
been an affiliate during the preceding three months, (ii) such holder has
beneficially owned the shares represented by the certificate for a period of
at
least six months (or the period of time then required by Rule 144(d)(i) or
such
other substantially similar rule promulgated under the Securities Act then
in
effect), and (iii) such holder otherwise satisfies the requirements of Rule
144
as then in effect with respect to such shares.
K. Truthfulness
of Representations.
The
Purchaser understands and agrees that Royaltech will rely upon the truth and
accuracy of the acknowledgements, representations and agreements contained
in
this Agreement and the Questionnaire attached hereto as Schedule “A”, and agrees
that if prior to the delivery of the Shares any of such acknowledgements,
representations and agreements are no longer accurate or have been breached,
the
Purchaser shall promptly notify Royaltech.
V. Conditions
to the Obligations of the Purchaser.
The
obligation of the Purchaser to purchase the Shares at the Closing is subject
to
the fulfillment, or the written waiver, of each of the following conditions
on
or before the Closing:
A. Accuracy
of Representations and Warranties.
Each
representation and warranty of Royaltech contained in Section
3
hereof
shall be true on and as of the Closing Date with the same effect as though
such
representation and warranty had been made on and as of that date.
B. Performance.
Royaltech shall have performed and complied with all covenants, agreements
and
conditions contained in this Agreement and required to be performed or complied
with by Royaltech prior to or at the Closing.
C. Proceedings
and Documents.
All
documents and instruments incident to the transactions contemplated at the
Closing shall be reasonably satisfactory in substance and form to the
Purchaser.
D. Transmittal
Letter.
Royaltech shall deliver an irrevocable letter of transmittal to its transfer
agent authorizing and instructing the transfer agent to issue the Shares to
the
Purchaser or its designees in the amounts as Purchaser shall
designate.
VI. Condition
to the Obligations of Royaltech.
The
obligation of Royaltech to sell the Shares at the Closing is subject to
fulfillment, or the written waiver, of each of the following conditions on
or
before the Closing:
A. Accuracy
of Representations and Warranties.
Each
representation and warranty of the Purchaser contained in Section
4
hereof
shall be true on and as of the Closing Date with the same effect as though
such
representation and warranty had been made on and as of that date.
B. Performance.
All
covenants, agreements and conditions contained in this Agreement and required
to
be performed by the Purchaser on or prior to the Closing Date shall have been
performed or complied within all material respects.
C. Accredited
Investor Questionnaire.
The
Purchase has delivered to Royaltech a fully completed and executed copy of
the
Accredited Investor Questionnaire attached hereto as Schedule “A”.
VII. Indemnity.
A. Royaltech
Indemnification. Royaltech
shall, with respect to the representations, warranties, covenants and agreements
made by it herein indemnify, defend and hold the Purchaser and its employees,
partners, agents, counsel and affiliates (each, an “Purchaser
Indemnified Party”)
harmless from and against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including legal and accounting
fees and expenses), arising from the untruth, inaccuracy or breach of any such
representations, warranties, covenants or agreements of Royaltech contained
in
this Agreement or the assertion of any claims relating to the foregoing. Without
limiting the generality of the foregoing, each Purchaser Indemnified Party
shall
be deemed to have suffered liability, loss or damage as a result of the untruth,
inaccuracy or breach of any such representations, warranties, covenants or
agreements if such liability, loss or damage shall be suffered by the Purchaser
Indemnified Party as a result of, or in connection with, such untruth,
inaccuracy or breach or any facts or circumstances constituting such untruth,
inaccuracy or breach. Royaltech shall indemnify and hold harmless each Purchaser
Indemnified Party against any losses, claims, damages or liabilities, joint
or
several, to which any of the foregoing persons may become subject, insofar
as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any violations by Royaltech of the Securities
Act
or state Blue Sky laws applicable to Royaltech relating to action or inaction
required of Royaltech in connection with the Securities Act or registration
or
qualification under such state Blue Sky laws; and shall reimburse each such
Purchaser Indemnified Party for any legal or any other expenses reasonably
incurred by any of them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided,
however,
that no
indemnification shall be required hereunder for the gross negligence or willful
misconduct of any Purchaser Indemnified Party or material breach by Purchaser
of
any of the representations and warranties set forth in Section
4
hereof.
In case any such action is brought against an Purchaser Indemnified Party,
Royaltech will be entitled to participate in and assume the defense thereof
with
counsel reasonably satisfactory to such Purchaser Indemnified Party, and after
notice from Royaltech to such Purchaser Indemnified Party of its election to
assume the defense thereof, Royaltech shall be responsible for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof. Royaltech shall not make any settlement of any claims
indemnified against hereunder without the written consent of the Purchaser
Indemnified Party or Parties, which consent shall not be unreasonably withheld.
Any claim for indemnification under this Section
7.1
with
respect to representations and warranties must be made not later than the end
of
the 12-month survival period set forth in Section
8.2.
B. Purchaser
Indemnification. The
Purchaser shall, with respect to the representations, warranties, covenants
and
agreements made by it herein indemnify, defend and hold Royaltech and its
employees, partners, agents, counsel and affiliates harmless from and against
all liability, loss or damage, together with all reasonable costs and expenses
related thereto (including legal and accounting fees and expenses), arising
from
the untruth, inaccuracy or breach of any such representations, warranties,
covenants or agreements of the Purchaser contained in this Agreement or the
assertion of any claims relating to the foregoing. Without limiting the
generality of the foregoing, Royaltech shall be deemed to have suffered
liability, loss or damage as a result of the untruth, inaccuracy or breach
of
any such representations, warranties, covenants or agreements if such liability,
loss or damage shall be suffered by Royaltech as a result of, or in connection
with, such untruth, inaccuracy or breach or any facts or circumstances
constituting such untruth, inaccuracy or breach. The Purchaser shall indemnify
and hold harmless Royaltech against any losses, claims, damages or liabilities,
joint or several, to which any of the foregoing persons may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any violations by Royaltech of the
Securities Act or state Blue Sky laws applicable to Royaltech relating to action
or inaction required of the Purchaser in connection with the Securities Act
or
registration or qualification under such state Blue Sky laws; and shall
reimburse Royaltech for any legal or any other expenses reasonably incurred
by
any of them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided,
however,
that no
indemnification shall be required hereunder for the gross negligence or willful
misconduct of Royaltech or material breach by Royaltech of any of the
representations and warrants set forth in Section
5
hereof.
. In case any such action is brought against an Purchaser Indemnified Party,
Royaltech will be entitled to participate in and assume the defense thereof
with
counsel reasonably satisfactory to such Purchaser Indemnified Party, and after
notice from Royaltech to such Purchaser Indemnified Party of its election to
assume the defense thereof. Any claim for indemnification under this
Section
7.2
with
respect to representations and warranties must be made not later than the end
of
the 12-month survival period set forth in Section
8.2.
VIII. Miscellaneous.
A. Assignment.
This
Agreement and all of the provisions hereof will be binding upon and inure to
the
benefit of the parties hereto and their respective successors and permitted
assigns. Except as provided in Section
8,
neither
this Agreement nor any of the rights, interests or obligations hereunder may
be
assigned by any party without prior written consent of the other
party.
B. Survival
of Representations and Warranties.
The
warranties, representations and covenants of Royaltech and the Purchaser
contained in or made pursuant to this Agreement shall survive the execution
and
delivery of this Agreement and the Closing for a period of 12 months and shall
in no way be affected by any investigation of the subject matter thereof made
by
or on behalf of the Purchaser or Royaltech.
C. Notices.
Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given (i) upon personal
delivery to the party to be notified, (ii) four days after deposit with the
United States Post Office, by registered or certified mail, postage prepaid,
or
(iii) one day after deposit with a reputable overnight courier service and
addressed to the party to be notified:
If
to
Royaltech:
0000
Xxxxxxxxxx, Xxxxx 000X,
Xxxxxxxxxx,
XX, X0X 0X0
Xxxxxx
with
a
copy to:
Xxxxx
Xxxxxx LLP
800
- 000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX, X0X 0X0
Xxxxxx
Attention:
Xxxxx Xxx
If
to the
Purchaser:
FirsTrust
Group, Inc.
0000
Xxxxxxxxx Xxxx, Xxxxx 0000,
Xxxxxxxx
000 Xxxxxxxxx
Xxxxxxx,
XX 00000
with
a
copy to:
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxxx
D. Expenses.
Royaltech and the Purchaser shall bear their own expenses incurred with respect
to this Agreement and the transactions contemplated hereby except that Royaltech
shall pay the reasonable fees and expenses incurred by the Purchaser for the
legal services rendered to him with respect to this Agreement and the
transactions contemplated hereby.
E. Entire
Agreement.
This
Agreement and the other documents delivered pursuant to the Agreement at the
Closing embody the entire agreement and understanding between the parties hereto
with respect to the subject matter hereof and supersede all prior agreements
and
understandings relating to such subject matter.
F. Amendments
and Waivers.
Any
term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of Royaltech
and
the Purchaser. No waivers of or exceptions to any term, condition or provision
of this Agreement, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
G. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which shall be one and the same
document.
H. Section
Headings.
The
Section headings are for the convenience of the parties and in no way alter,
modify, amend, limit, or restrict the contractual obligations of the
parties.
I. Severability.
Any
part, provision, representation or warranty of this Agreement that is prohibited
or that is held to be void or unenforceable shall be ineffective solely to
the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
J. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York (without regard to its conflict of laws principles). The
parties hereto irrevocably consent to the exclusive personal jurisdiction of
the
federal and state courts located in the New York County, New York, as
applicable, for any matter arising out of or relating to this
Agreement.
[Signatures
on the following page]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
ROYALTECH,
CORP.
Per:
/s/
Chenxi Shi
Name: Chenxi
Shi
Title: President
and Chief Executive Officer
FIRSTRUST
GROUP INC.
Per:
/s/
Xxxxxxx Xx
Name:
Xxxxxxx Xx
Title:
Chairman & CEO
|
SCHEDULE
“A”
UNITED
STATES
ACCREDITED
INVESTOR QUESTIONNAIRE
All
capitalized terms herein, unless otherwise defined, have the meanings ascribed
thereto in the Stock Purchase Agreement.
This
Questionnaire is for use by each Purchaser who is a US person (as that term
is
defined Regulation S of the United States Securities Act of 1933 (the “1933
Act”)) and has indicated an interest in purchasing the securities of Royaltech.
The purpose of this Questionnaire is to assure Royaltech that the Purchaser
will
meet the standards imposed by the 1933 Act and the appropriate exemptions of
applicable state securities laws. Royaltech will rely on the information
contained in this Questionnaire for the purposes of such determination. The
securities will not be registered under the 1933 Act in reliance upon the
exemption from registration afforded by Section 3(b) and/or section 4(2) and
Regulation D of the 1933 Act. This Questionnaire is not an offer of the
Securities or any other securities of the Issuer in any state other than those
specifically authorized by Royaltech.
All
information contained in this Questionnaire will be treated as confidential.
However, by signing and returning this Questionnaire, the Purchaser agrees
that,
if necessary, this Questionnaire may be presented to such parties as Royaltech
deems appropriate to establish the availability, under the 1933 Act or
applicable state securities law, of exemption from registration in connection
with the sale of the Securities hereunder.
The
Purchaser covenants, represents and warrants to Royaltech that it satisfies
one
or more of the categories of “Accredited Investors”, as defined by Regulation D
promulgated under the 1933 Act, as indicated below: (Please initial in the
space
provide those categories, if any, of an “Accredited Investor” which the
Purchaser satisfies.)
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Category
1
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An
organization described in Section 501(c)(3) of the United States
Internal
Revenue Code, a corporation, a Massachusetts or similar business
trust or
partnership, not formed for the specific purpose of acquiring the
Securities, with total assets in excess of
US $5,000,000.
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Category
2
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A
natural person whose individual net worth, or joint net worth with
that
person’s spouse, on the date of purchase exceeds
US $1,000,000.
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Category
3
|
A
natural person who had an individual income in excess of US $200,000
in each of the two most recent years or joint income with that person’s
spouse in excess of US $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current
year.
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Category
4
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A
“bank” as defined under Section (3)(a)(2) of the 1933 Act or savings
and loan association or other institution as defined in
Section 3(a)(5)(A) of the 1933 Act acting in its individual or
fiduciary capacity; a broker dealer registered pursuant to Section 15
of the Securities
Exchange Act of 0000
(Xxxxxx Xxxxxx); an insurance company as defined in Section 2(13) of
the 1933 Act; an investment company registered under the Investment
Company Act of 1940
(United States) or a business development company as defined in
Section 2(a)(48) of such Act; a Small Business Investment Company
licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small
Business Investment Act of 0000
(Xxxxxx Xxxxxx); a plan with total assets in excess of $5,000,000
established and maintained by a state, a political subdivision thereof,
or
an agency or instrumentality of a state or a political subdivision
thereof, for the benefit of its employees; an employee benefit plan
within
the meaning of the Employee
Retirement Income Security Act of 1974
(United States) whose investment decisions are made by a plan fiduciary,
as defined in Section 3(21) of such Act, which is either a bank,
savings and loan association, insurance company or registered investment
adviser, or if the employee benefit plan has total assets in excess
of
$5,000,000, or, if a self-directed plan, whose investment decisions
are
made solely by persons that are accredited
investors.
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Category
5
|
A
private business development company as defined in Section 202(a)(22)
of the Investment
Advisers Act of 1940
(United States).
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Category
6
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A
director or executive officer of the
Royaltech.
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|
Category
7
|
A
trust with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the securities, whose purchase is directed
by a sophisticated person as described in Rule 506(b)(2)(ii) under
the 1933 Act.
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Category
8
|
An
entity in which all of the equity owners satisfy the requirements
of one
or more of the foregoing
categories.
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Note
that
prospective Purchasers claiming to satisfy one of the above categories of
Accredited Investor may be required to supply Royaltech with a balance sheet,
prior years’ federal income tax returns or other appropriate documentation to
verify and substantiate the Purchaser’s status as an Accredited
Investor.
If
the
Purchaser is an entity which initialled Category 8 in reliance upon the
Accredited Investor categories above, state the name, address, total personal
income from all sources for the previous calendar year, and the net worth
(exclusive of home, home furnishings and personal automobiles) for each equity
owner of said entity:
The
Purchaser hereby certifies that the information contained in this Questionnaire
is complete and accurate and the Purchaser will notify Royaltech promptly of
any
change in any such information prior to the Closing Date. If this Questionnaire
is being completed on behalf of a corporation, partnership, trust or estate,
the
person executing on behalf of the Purchaser represents that it has the authority
to execute and deliver this Questionnaire on behalf of such entity.
IN
WITNESS WHEREOF, the undersigned has executed this Questionnaire as of the
___
day of _______________, 2008.
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If
a Corporation, Partnership or Other Entity:
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If
an Individual:
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X
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Print
or Type Name of Entity
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Signature
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X
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Signature
of Authorized Signatory
|
Print
or Type Name
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Type
of Entity
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