EXHIBIT 10.6
SUNGAME CORPORATION
SECURITIES PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of October 9th, 2008, is entered into
by and among Sungame Corporation, a Delaware corporation with headquarters
located at ___________________________________ (the "Company") and Mindzeye
Consulting Pte Ltd located at ___________________________________ and it's
clients (collectively, the "Purchasers").
W I T N E S S E T H:
WHEREAS, the Company and the Purchasers are executing and delivering
this Agreement in accordance with and in reliance upon the exemption from
securities registration for offers and sales to investors afforded, INTER ALIA,
by Rule 506 under Regulation D ("Regulation D") or Regulation S for non U.S.
Investors as promulgated by the United States Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended (the "1933 Act"),
and/or Section 4(2) and 4(6) of the 1933 Act and/or Regulation S; and
WHEREAS, the Purchasers wish to purchase common shares of the Company (
"Shares"), subject to and upon the terms and conditions of this Agreement and
acceptance of this Agreement by the Company, on the terms and conditions
referred to herein
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AGREEMENT TO PURCHASE; PURCHASE PRICE.
A. CASH PURCHASE. Subject to the terms and conditions of this
Agreement and the other Transaction Agreements, the Purchasers hereby
agree to purchase the Shares of the Company for the sum of $250,000
(the "Purchase Amount") in increments as follows:
(i) $125,000 in cash for 500,000 Shares plus 500,000
fully transferable warrants to purchase Shares at $0.80 per
share in the form of warrants attached as Exhibit A hereto.
This payment of $125,000 is due within 10 days of signing of
this agreement. These individual Shares and warrants shall be
assigned according to clause 1d.v and the warrants would be
treated and become at PAR with those warrants issued as part
of the IPO offerings and the provisions thereof.
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(ii) $125,000 in cash for 500,000 Shares plus fully
transferable warrants to purchase 500,000 Shares at $0.80 per
share in the form of warrant attached as Exhibit A hereto.
These individual Shares and warrants shall be assigned
according to clause 1d.v and the warrants would be treated and
become at PAR with those warrants issued as part of the the
IPO offerings and provisions thereof. This payment of $125,000
is due when the Company provides the Purchaser with a copy of
the Registration Statement on Form S-1 ready to file which is
expected to be no later than December 15, 2008.
B. SERVICES PURCHASE. $625,000 worth of services for 2.5
Million Shares pursuant to the separate Services Agreement attached
hereto as Exhibit B and incorporated herein by this reference.
C. CERTAIN DEFINITIONS. As used herein, each of the following
terms has the meaning set forth below, unless the context otherwise
requires:
"Affiliate" means, with respect to a specific Person referred
to in the relevant provision, another Person who or which
controls or is controlled by or is under common control with
such specified Person.
"Certificate" means the original ink-signed share and Warrant
duly executed by the Company.
"Closing Date" means the date of the closing of the
Transactions, as provided herein.
"Common Stock Equivalents" means any securities of the Company
or the Subsidiaries which would entitle the holder thereof to
acquire at any time common stock, including without
limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible
into or exchangeable for, or otherwise entitles the holder
thereof to receive, common stock.
"Company Control Person" means each director, executive
officer, promoter, and such other Persons as may be deemed in
control of the Company pursuant to Rule 405 under the 1933 Act
or Section 20 of the 1934 Act (as defined below).
"Disclosure Annex" means Exhibit D to this Agreement;
provided, however, that the Disclosure Annex shall be arranged
in sections corresponding to the identified Sections of this
Agreement, but the disclosure in any such section of the
Disclosure Annex shall qualify other provisions in this
Agreement to the extent that it would be readily apparent to
an informed reader from a reading of such section of the
Disclosure Annex that it is also relevant to other provisions
of this Agreement.
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"Holder" means the Person and/or the entity holding the
relevant Securities at the relevant time including but not
limited to the Purchasers for their respective Securities.
"Purchasers Control Person" means each director, executive
officer, promoter, and such other Persons as may be deemed in
control of the Purchasers pursuant to Rule 405 under the 1933
Act or Section 20 of the 1934 Act.
"Liens" means a lien, charge, security interest, encumbrance,
right of first refusal, preemptive right or other restriction.
"Material Adverse Effect" means an event or combination of
events, which individually or in the aggregate, would
reasonably be expected to (w) adversely affect the legality,
validity or enforceability of the Securities or any of the
Transaction Agreements, (x) have or result in a material
adverse effect on the results of operations, assets,
prospects, or condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole, (y) adversely
impair the Company's ability to perform fully on a timely
basis its obligations under any of the Transaction Agreements
or the transactions contemplated thereby, or (z) materially
and adversely affect the value of the rights granted to the
Purchasers in the Transaction Agreements.
"Person" means any living person or any entity, such as, but
not necessarily limited to, a corporation, partnership or
trust.
"Principal Trading Market" means the Over the Counter Bulletin
Board or such other market on which the common stock is
principally traded at the relevant time, but shall not include
the "pink sheets."
"Registrable Securities" means all of the following: (i) the
Warrant Shares, and (ii) any shares of the Company's common
stock that are issued to the Purchasers in connection with the
Transaction Agreements and any other agreements between the
parties hereto, except to the extent such shares can then be
sold by the Holder without volume or other restrictions or
limits.
"Registration Rights Provisions" means the piggy-back
registration rights, demand registration rights contemplated
by the terms of this Agreement, if any, including, but not
necessarily limited to, Section 4(g) hereof, and of the other
Transaction Agreements.
"Registration Statement" means an effective registration
statement covering the Registrable Securities.
"Securities" means the Shares, the Warrant, the shares
underlying the Warrant, and any shares of common stock of the
Company that may be issued to the Purchasers in connection
with any other agreements between the parties.
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"Pledged Shares" means the Shares or shares representing
Warrants and Warrant Shares that are to committed by the
Company against execution and completion of terms of this or
other agreements respectively.
"State of Incorporation" means Delaware.
"Subsidiary" means any subsidiary of the Company as set forth
on the Disclosure Annex.
"Trading Day" means any day during which the Principal Trading
Market shall be open for business.
"Transaction Fees" means legal and due diligence fees incurred
by the Purchasers.
"Transfer Agent" means, at any time, the transfer agent for
the Company's common stock.
"Transaction Agreements" means this Agreement, Exhibits as
part of this agreement, the Warrant and includes all ancillary
documents referred to in those agreements along with any other
agreements executed by all parties hereto.
"Warrant Shares" means shares of common stock underlying the
Warrant.
"Financial Statement Date" means those dates for EXHIBIT E and
EXHIBIT G respectively on which the dates the current
shareholders and/or the Company have signed the respective
exhibits as certified and true as of that date.
"IPO" for this agreement refers to the first public offering
through which the Company intends to offer common stock or
shares to the common public through an initial SEC filing at
an issue price not less than $1 per share with no more than
one million shares in the offering.
D. FORM OF PAYMENT; DELIVERY OF CERTIFICATES.
(i) The Purchasers shall pay the cash Purchase Amount
by delivering immediately available good funds in United
States Dollars to the Company on the Closing Date.
(ii) On the Closing Date, the Company shall deliver
the Certificates, each duly executed on behalf of the Company
to the Purchasers for the cash purchase.
(iii) By signing this Agreement, each of the
Purchasers and the Company agree to all of the terms and
conditions of the Transaction Agreements, all of the
provisions of which are incorporated herein by this reference
as if set forth in full.
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(iv) Delivery of Certificates under the Services
Agreement shall be governed by the Terms thereof.
(v) Purchasers shall provide a list of names to whom
to issue each lot of Shares and Warrants at the time of issue
of these Shares and Warrants. Purchasers shall have the
unrestricted right to transfer their ownership interests,
along with all rights pertaining thereto, among any of its
affiliates.
(vi) The Company will include this agreement in a
resolution of the board of directors.
(vii) For purpose of this section, Purchase Amounts
shall be as per individual amounts and respective due dates
referred to in section 1.a of this agreement.
E. METHOD OF PAYMENT. Payment of the Purchase Amount shall be
made by wire transfer of funds to:
Beneficiary Name: Sungame Corp.
Beneficiary Account Number: 8 0 9 9 3 5 1 2
Bank Routing Number: (domestic wires) 3 | 2 | 2 | 0 | 7 | 0 | 3 | 8 | 1
Bank Routing/ Swift Code: ( Intl wires) ▇▇▇▇▇▇▇▇▇▇▇
Receiving Bank Name: East West Bank
Receiving Bank Address: (Branch Address) ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇.,
▇▇▇▇▇ ▇▇▇
Receiving Bank Address: (Branch City, State, Zip) ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
F. COMPENSATION TO MINDZEYE CONSULTING PTE LTD: In lieu of
facilitating this agreement and related business and management
consulting, the Company waives off all costs for the 100K shares
provided to Mindzeye Consulting Pte Ltd and to associates or
consultants thereof as part of this agreement
2. PURCHASERS REPRESENTATIONS, WARRANTIES, AND ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
The Purchasers represent and warrant to, and covenant and agree with,
the Company as follows:
A. Without limiting Purchasers' right to sell the Securities
pursuant to an effective registration statement or otherwise in
compliance with the 1933 Act, the Purchasers are purchasing the
Securities for their own accounts for investment only and not with a
view towards the public sale or distribution thereof and not with a
view to or for sale in connection with any distribution thereof.
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B. The Purchasers are (i) experienced in making investments of
the kind described in this Agreement and the related documents, (ii)
able, by reason of the business and financial experience of its
officers (if an entity) and professional advisors (who are not
affiliated with or compensated in any way by the Company or any of its
Affiliates or selling agents), to protect its own interests in
connection with the transactions described in this Agreement, and the
related documents, and to evaluate the merits and risks of an
investment in the Securities, and (iii) able to afford the entire loss
of its investment in the Securities.
C. All subsequent offers and sales of the Securities by the
Purchasers shall be made pursuant to registration of the relevant
Securities under the 1933 Act or pursuant to an exemption from
registration.
D. The Purchasers understand that the Securities are being
offered and sold to it in reliance on specific exemptions from the
registration requirements of the 1933 Act and state securities laws and
that the Company is relying upon the truth and accuracy of, and the
Purchasers' compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Purchasers set
forth herein in order to determine the availability of such exemptions
and the eligibility of the Purchasers to acquire the Securities.
E. The Purchasers and their advisors, if any, have been
furnished with or have been given access to all materials relating to
the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities which have been
requested by the Purchasers, including those set forth on in any annex
attached hereto. The Purchasers and their advisors, if any, have been
afforded the opportunity to ask questions of the Company and its
management and have received complete and satisfactory answers to any
such inquiries.
F. The Purchasers understand that their investment in the
Securities involves a high degree of risk.
G. The Purchasers hereby represent that, in connection with
their purchase of the Securities, they have not relied on any statement
or representation by the Company or any of its officers, directors and
employees or any of their respective attorneys or agents, except as
specifically set forth herein.
H. The Purchasers understand that no United States federal or
state agency or any other government or governmental agency has passed
on or made any recommendation or endorsement of the Securities.
I. This Agreement and the other Transaction Agreements to
which the Purchasers are a party, and the transactions contemplated
thereby, have been duly and validly authorized, executed and delivered
by the Purchasers and are valid and binding agreements of the
Purchasers enforceable in accordance with their respective terms,
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subject as to enforceability to general principles of equity and to
bankruptcy, insolvency, moratorium and other similar laws affecting the
enforcement of creditors' rights generally.
3. COMPANY REPRESENTATIONS, ETC. The Company represents and warrants to
the Purchasers as of the date hereof and as of the Closing Date that, except as
otherwise provided in the Disclosure Annex and other Exhibits therein, which the
Company represents and warrants to be true, correct and complete as of date of
signing of those exhibits:
A. RIGHTS OF OTHERS AFFECTING THE TRANSACTIONS. There are no
preemptive rights of any shareholder of the Company, as such, to
acquire the Shares, the Warrant or any Warrant Shares issued in
connection with any other agreements executed by the parties hereto. No
party other than Purchasers has a currently exercisable right of first
refusal which would be applicable to any or all of the transactions
contemplated by the Transaction Agreements.
B. STATUS. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power to own its properties
and to carry on its business as now being conducted. The Company is
duly qualified as a foreign corporation to do business and is in good
standing in each jurisdiction where the nature of the business
conducted or property owned by it makes such qualification necessary,
other than those jurisdictions in which the failure to so qualify would
not have or result in a Material Adverse Effect. The Company intends to
registered its stock and then be obligated to file reports pursuant to
Section 12 or Section 15(d) of the Securities and Exchange Act of 1934,
as amended (the "1934 Act"). The Company intends to file, upon
Registration, a 15c211 through an NASD Broker for its common stock to
be quoted on the OTCBB. The Company has received no notice, either oral
or written, with respect to the eligibility of the common stock for
such quotation on the OTCBB.
C. AUTHORIZED SHARES.
(i) The authorized capital stock of the Company
consists of 100,000,000 shares of common stock, $0.001 par
value, of which 5,000,000 are issued and outstanding as of the
date hereof.
(ii) All issued and outstanding shares of common
stock have been duly authorized and validly issued and are
fully paid and non-assessable. The Company has sufficient
authorized and un-issued shares of common stock as may be
necessary to affect the issuance of the shares on the Closing
Date.
(iii) As of the Closing Date, the shares shall have
been duly authorized by all necessary corporate action on the
part of the Company, and, when issued on the Closing Date or
pursuant to other relevant provisions of the Transaction
Agreements, in each case in accordance with their respective
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terms, will be duly and validly issued, fully paid and
non-assessable and will not subject the Holder thereof to
personal liability by reason of being such Holder.
(iv) As of the Closing date, all shares issued and
pledged to current and future shareholders are of the nature
of common shares and there are no other types of shares
including but not limited to preferential shares that have
been issued or pledged to any shareholders
D. TRANSACTION AGREEMENTS AND STOCK. This Agreement and each
of the other Transaction Agreements, and the transactions contemplated
thereby, have been duly and validly authorized by the Company, this
Agreement has been duly executed and delivered by the Company and this
Agreement is, and the shares and each of the other Transaction
Agreements, when executed and delivered by the Company, will be, valid
and binding agreements of the Company enforceable in accordance with
their respective terms
E. NON-CONTRAVENTION. The execution and delivery of this
Agreement and each of the other Transaction Agreements by the Company,
the issuance of the Securities, and the consummation by the Company of
the other transactions contemplated by this Agreement, each of the
shares and the other Transaction Agreements do not and will not
conflict with or result in a breach by the Company of any of the terms
or provisions of, or constitute a default under (i) the certificate of
incorporation or by-laws of the Company, each as currently in effect,
(ii) any indenture, mortgage, deed of trust, or other material
agreement or instrument to which the Company is a party or by which it
or any of its properties or assets are bound, including any listing
agreement for the common stock except as herein set forth, or (iii) to
its knowledge, any existing applicable law, rule, or regulation or any
applicable decree, judgment, or order of any court, United States
federal or state regulatory body, administrative agency, or other
governmental body having jurisdiction over the Company or any of its
properties or assets, except such conflict, breach or default which
would not have or result in a Material Adverse Effect.
F. APPROVALS. No authorization, approval or consent of any
court, governmental body, regulatory agency, self-regulatory
organization, or stock exchange or market or the shareholders of the
Company is required to be obtained by the Company for the issuance and
sale of the Securities to the Purchasers as contemplated by this
Agreement, except such authorizations, approvals and consents that have
been obtained and have been provided as part of this agreement.
G. ABSENCE OF CERTAIN CHANGES. Since the Financial Statement
Date, there has been no material adverse change and no Material Adverse
Effect, except as disclosed herein. Since the Financial Statement Date,
the Company has not (i) incurred or become subject to any material
liabilities (absolute or contingent) except the declared liabilities
herein; (ii) discharged or satisfied any material lien or encumbrance
or paid any material obligation or liability (absolute or contingent),
other than the declared liabilities herein; (iii) declared or made any
payment or distribution of cash or other property to shareholders with
respect to its capital stock, or purchased or redeemed, or made any
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agreements to purchase or redeem, any shares of its capital stock; (iv)
sold, assigned or transferred any other tangible assets, or canceled
any debts owed to the Company by any third party or claims of the
Company against any third party, except as declared herein; (v) waived
any rights of material value, whether or not in the ordinary course of
business, or suffered the loss of any material amount of existing
business; (vi) made any increases in employee compensation; or (vii)
experienced any material problems with labor or management in
connection with the terms and conditions of their employment.
H. FULL DISCLOSURE. There is no fact known to the Company that
has not been disclosed in writing to the Purchasers that would
reasonably be expected to have or result in a Material Adverse Effect.
Furthermore a summary of all financial budgets, committed and projected
are attached herewith as EXHIBIT G and is represented and warranted by
the Company as true, correct and complete as of date
I. ABSENCE OF LITIGATION. 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 before or by any governmental
authority or nongovernmental department, commission, board, bureau,
agency or instrumentality or any other person, 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 to perform its obligations under,
any of the Transaction Agreements. The Company is not aware of any
valid basis for any such claim that (either individually or in the
aggregate with all other such events and circumstances) could
reasonably be expected to have a Material Adverse Effect. There are no
outstanding or unsatisfied judgments, orders, decrees, writs,
injunctions or stipulations to which the Company is a party or by which
it or any of its properties is bound, that involve the transaction
contemplated herein or that, alone or in the aggregate, could
reasonably be expect to have a Material Adverse Effect.
J. ABSENCE OF EVENTS OF DEFAULT. Except as set forth in
Section 3(e) and 3(g) hereof, (i) neither the Company nor any of its
subsidiaries is in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
material indenture, mortgage, deed of trust or other material agreement
to which it is a party or by which its property is bound, and (ii) no
Event of Default (or its equivalent term), as defined in the respective
agreement to which the Company or its subsidiary is a party, and no
event which, with the giving of notice or the passage of time or both,
would become an Event of Default (or its equivalent term) (as so
defined in such agreement), has occurred and is continuing, which would
have a Material Adverse Effect.
K. ABSENCE OF CERTAIN COMPANY CONTROL PERSON ACTIONS OR
EVENTS. None of the following has occurred during the past five (5)
years with respect to a Company Control Person:
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(1) A petition under the federal bankruptcy laws or
any state insolvency law was filed by or against, or a
receiver, fiscal agent or similar officer was appointed by a
court for the business or property of such Company Control
Person, or any partnership in which he was a general partner
at or within two years before the time of such filing, or any
corporation or business association of which he was an
executive officer at or within two years before the time of
such filing;
(2) Such Company Control Person was convicted in a
criminal proceeding or is a named subject of a pending
criminal proceeding (excluding traffic violations and other
minor offenses);
(3) Such Company Control Person was the subject of
any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining him from, or otherwise
limiting, the following activities:
(i) acting, as an investment advisor,
underwriter, broker or dealer in securities, or as an
affiliated person, director or employee of any
investment company, bank, savings and loan
association or insurance company, as a futures
commission merchant, introducing broker, commodity
trading advisor, commodity pool operator, floor
broker, any other Person regulated by the Commodity
Futures Trading Commission ("CFTC") or engaging in or
continuing any conduct or practice in connection with
such activity;
(ii) engaging in any type of business
practice; or
(iii) engaging in any activity in connection
with the purchase or sale of any security or
commodity or in connection with any violation of
federal or state securities laws or federal
commodities laws;
(4) Such Company Control Person was the subject of
any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any federal or state authority
barring, suspending or otherwise limiting for more than 60
days the right of such Company Control Person to engage in any
activity described in paragraph (3) of this item, or to be
associated with Persons engaged in any such activity; or
(5) Such Company Control Person was found by a court
of competent jurisdiction in a civil action or by the CFTC or
SEC to have violated any federal or state securities law, and
the judgment in such civil action or finding by the CFTC or
SEC has not been subsequently reversed, suspended, or vacated.
L. NO UNDISCLOSED LIABILITIES OR EVENTS. The Company has no
liabilities or obligations other than those disclosed in the
Transaction Agreements or those incurred in the ordinary course of the
Company's business since the Financial Statement Date, or which
individually or in the aggregate, do not or would not have a Material
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Adverse Effect. No event or circumstances has occurred or exists with
respect to the Company or its properties, business, operations,
condition (financial or otherwise), or results of operations, which,
under applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company but which has not
been so publicly announced or disclosed. There are no proposals
currently under consideration or currently anticipated to be under
consideration by the Board of Directors or the executive officers of
the Company which proposal would (x) change the articles or certificate
of incorporation or other charter document or by-laws of the Company,
each as currently in effect, with or without shareholder approval,
which change would reduce or otherwise adversely affect the rights and
powers of the shareholders of the common stock or (y) materially or
substantially change the business, assets or capital of the Company,
including its interests in subsidiaries. Furthermore a summary of all
financial budgets, committed and projected are attached herewith as
EXHIBIT G and is represented and warranted by the Company as true,
correct and complete as of date
M. NO INTEGRATED OFFERING. Neither the Company nor any of its
Affiliates nor any Person acting on its or their behalf has, directly
or indirectly, at any time since inception, made any offer or sales of
any security or solicited any offers to buy any security under
circumstances that would eliminate the availability of the exemption
from registration under Regulation D or Regulation S in connection with
the offer and sale of the Securities as contemplated hereby.
N. DILUTION. Any securities issued to Purchasers in connection
with any agreements executed by the parties hereto may have a dilutive
effect on the ownership interests of the other shareholders (and
Persons having the right to become shareholders) of the Company. The
Company's executive officers and directors have studied and fully
understand the nature of the Securities being sold hereby and recognize
that they have such a potential dilutive effect. The board of directors
of the Company has concluded, in its good faith business judgment, that
such issuance is in the best interests of the Company.
O. FEES TO BROKERS, FINDERS AND OTHERS. The Company has taken
no action which would give rise to any claim by any Person for
brokerage commission, finder's fees or similar payments by Purchasers
relating to this Agreement or the transactions contemplated hereby.
Purchasers shall have no obligation with respect to such fees or with
respect to any claims made by or on behalf of other Persons for fees of
a type contemplated in this paragraph that may be due in connection
with the transactions contemplated hereby. The Company shall indemnify
and hold harmless each of Purchasers, its employees, officers,
directors, agents, and partners, and their respective Affiliates, from
and against all claims, losses, damages, costs (including the costs of
preparation and attorney's fees) and expenses suffered in respect of
any such claimed or existing fees, as and when incurred.
P. CONFIRMATION. The Company confirms that all statements of
the Company contained herein shall survive acceptance of this Agreement
by the Purchasers. The Company agrees that, if any events occur or
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circumstances exist prior to the Closing Date or the release of the
Purchase Amount to the Company which would make any of the Company's
representations, warranties, agreements or other information set forth
herein materially untrue or materially inaccurate as of such date, the
Company shall immediately notify the Purchasers (directly or through
its counsel, if any) in writing prior to such date of such fact,
specifying which representation, warranty or covenant is affected and
the reasons therefore.
Q. AUTHORIZATION; ENFORCEMENT. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Agreements and
otherwise to carry out its obligations there under. The execution and
delivery of each of the Transaction Agreements by the Company and the
consummation by it of the transactions contemplated thereby have been
duly authorized by all necessary action on the part of the Company and
no further action is required by the Company in connection therewith
other than in connection with the Required Approvals. Each Transaction
Agreement has been (or upon delivery will have been) duly executed by
the Company and, when delivered in accordance with the terms hereof,
will constitute the valid and binding obligation of the Company
enforceable against the Company
R. LABOR RELATIONS. No material labor dispute exists or is
imminent with respect to any of the employees of the Company which
could reasonably be expected to result in a Material Adverse Effect.
S. COMPLIANCE. Neither the Company nor any Subsidiary (i) is
in default under or in violation of (and no event has occurred that has
not been waived that, with notice or lapse of time or both, would
result in a default by the Company or any Subsidiary under), nor has
the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or
credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not
such default or violation has been waived), (ii) is in violation of any
order of any court, arbitrator or governmental body, or (iii) is or has
been in violation of any statute, rule or regulation of any
governmental authority, including without limitation all foreign,
federal, state and local laws applicable to its business except in each
case as could not have a Material Adverse Effect. The Company and its
shareholders, comprising of all shareholders that have more than 1%
shareholding of the Company, represent and warrant that the
transactions contemplated in the Transaction Agreements are in
compliance and shall be completed in accordance with all applicable
laws, rules, and regulations of all applicable governing bodies,
including, but not limited to, all federal, state and local security
laws
T. REGULATORY PERMITS. The Company and the Subsidiaries
possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities
necessary to conduct their respective businesses, except where the
failure to possess such permits could not have or reasonably be
expected to result in a Material Adverse Effect ("MATERIAL PERMITS"),
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and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material
Permit.
U. TITLE TO ASSETS. The Company has good and marketable title
in fee simple to all real property owned that is material to the
business of the Company and good and marketable title in all personal
property owned that is material to the business of the Company, in each
case free and clear of all Liens, except for Liens as do not materially
affect the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the Company
and Liens for the payment of federal, state or other taxes, the payment
of which is neither delinquent nor subject to penalties. Any real
property and facilities held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable
leases of which the Company and the Subsidiaries are in compliance.
V. PATENTS AND TRADEMARKS. The Company and the Subsidiaries
have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names,
copyrights, licenses and other similar rights necessary or material for
use in connection with their respective businesses and which the
failure to so have could have a Material Adverse Effect (collectively,
the "INTELLECTUAL PROPERTY RIGHTS"). Neither the Company nor any
Subsidiary has received a written notice that the Intellectual Property
Rights used by the Company or any Subsidiary violates or infringes upon
the rights of any Person. To the knowledge of the Company, all such
Intellectual Property Rights are enforceable and there is no existing
infringement by another Person of any of the Intellectual Property
Rights of others.
W. INSURANCE. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which the Company and the Subsidiaries are engaged, at
least equal to the Purchase Amount. All insurance contracts and
policies are accurate and complete. Neither the Company nor any
Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost.
X. TRANSACTIONS WITH AFFILIATES AND EMPLOYEES. None of the
officers or directors of the Company and none of the employees of the
Company is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental
of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the
knowledge of the Company, any entity in which any officer, director, or
any such employee has a substantial interest or is an officer,
director, trustee or partner, in each case in excess of $50,000 other
than (i) for payment of salary or consulting fees for services
Page 13
rendered, (ii) reimbursement for expenses incurred on behalf of the
Company and (iii) for other employee benefits, including stock option
agreements under any stock option plan of the Company.
Y. TAX STATUS. Except for matters that would not, individually
or in the aggregate, have a Material Adverse Effect, the Company and
each Subsidiary has filed all necessary federal, state and foreign
income and franchise tax returns and has paid or accrued all taxes
shown as due thereon, and the Company has no knowledge of a tax
deficiency which has been asserted or threatened against the Company or
any Subsidiary.
AA. NO DISAGREEMENTS WITH ACCOUNTANTS AND LAWYERS. There are
no disagreements of any kind presently existing, or reasonably
anticipated by the Company to arise, between the accountants and
lawyers formerly or presently employed by the Company, and the Company
is current with respect to any fees owed to its accountants and
lawyers. By making this representation, the Company does not, in any
manner, waive the attorney/client privilege or the confidentiality of
the communications between the Company and its lawyers.
4. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
A. TRANSFER RESTRICTIONS. The Purchasers acknowledges that (1)
the Securities have not been and are not being registered under the
provisions of the 1933 Act and, except as provided in the Registration
Rights Provisions or otherwise included in an effective registration
statement, the Shares have not been and are not being registered under
the 1933 Act, and may not be transferred unless (A) subsequently
registered there under or (B) the Purchasers shall have delivered to
the Company an opinion of counsel, reasonably satisfactory in form,
scope and substance to the Company, to the effect that the Securities
to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration; (2) any sale of the Securities made
in reliance on Rule 144 promulgated under the 1933 Act ("Rule 144") may
be made only in accordance with the terms of said Rule and further, if
said Rule is not applicable, any resale of such Securities under
circumstances in which the seller, or the Person through whom the sale
is made, may be deemed to be an underwriter, as that term is used in
the 1933 Act, may require compliance with some other exemption under
the 1933 Act or the rules and regulations of the SEC there under; and
(3) neither the Company nor any other Person is under any obligation to
register the Securities (other than pursuant to the Registration Rights
Provisions) under the 1933 Act or to comply with the terms and
conditions of any exemption there under.
B. RESTRICTIVE LEGEND. The Purchasers acknowledges and agrees
that, until such time as the relevant shares have been registered under
the 1933 Act, as contemplated by the Registration Rights Provisions and
sold in accordance with an effective Registration Statement or
otherwise in accordance with another effective registration statement,
the certificates and other instruments representing any of the
Securities shall bear a restrictive legend in substantially the
following form (and a stop-transfer order may be placed against
transfer of any such Securities):
Page 14
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL OR OTHER EVIDENCE
ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
C. FILINGS. The Company undertakes and agrees to make all
necessary filings in connection with the sale of the Securities to the
Purchasers under any United States laws and regulations applicable to
the Company, or by any domestic securities exchange or trading market,
and to provide a copy thereof to the Purchasers promptly after such
filing.
D. REPORTING STATUS. After the Company becomes a reporting
Company under the '34 Act, so long as the Purchasers beneficially own
any of the shares of its common stock, the Company shall file all
reports required to be filed with the SEC pursuant to Section 13 or
15(d) of the 1934 Act, shall take all reasonable action under its
control to ensure that adequate current public information with respect
to the Company, as required in accordance with Rule 144(c)(2) of the
1933 Act, is publicly available, and shall not terminate its status as
an issuer required to file reports under the 1934 Act even if the 1934
Act or the rules and regulations thereunder would permit such
termination. The Company will take all reasonable action under its
control to maintain the continued listing and quotation and trading of
its common stock (including, without limitation, all Registrable
Securities) on the Principal Trading Market or a listing on the
NASDAQ/Small Cap or National Markets and, to the extent applicable to
it, will comply in all material respects with the Company's reporting,
filing and other obligations under the by-laws or rules of the
Principal Trading Market and/or the National Association of Securities
Dealers, Inc., as the case may be, applicable to it for so long as the
Holders beneficially owns any of the shares or has a security interest
in the Pledged Shares.
E. USE OF PROCEEDS. The Company will use the proceeds received
hereunder and from IPO for working capital, pursuant to its business
plan and budget, and not for payment of any antecedent debt of the
Company.
F. WARRANT. The Company agrees to issue a warrant (the
"Warrant") to the Purchasers on the Closing Date. The terms relating to
the Warrant are provided in EXHIBIT A annexed hereto, the terms of
which are incorporated herein by reference. All of the Warrant Shares
shall have Registration Rights Provisions.
G. PIGGY-BACK RIGHTS; RULE 144; DEMAND REGISTRATION RIGHTS.
(i) The Purchasers shall have piggy-back registration
rights with respect to the Registerable Securities subject to
the conditions set forth below. If the Company participates
(whether voluntarily or by reason of an obligation to a third
Page 15
party) in the registration of any shares of the Company's
stock, NOT including an Initial Public Offering, the Company
shall give written notice thereof to the Holder and the Holder
shall have the right, exercisable within ten (10) Trading Days
after receipt of such notice, to demand inclusion of all or a
portion of the Holder's Registerable Securities in such
registration statement (a "Subsequent Registration
Statement"), without any cutbacks, except that Purchasers,
collectively, may not require Registration of more than 10% of
the total issued and outstanding common stock. If the Holder
exercises such election, the Registerable Securities so
designated shall be included in the registration statement
(without any holdbacks) at no cost or expense to the Holder
(other than any commissions, if any, relating to the sale of
Holder's shares). Each Holder's rights under this Section
4(g)(i) shall expire at such time as such Holder can sell all
of such Holder's remaining Registerable Securities under Rule
144 (as defined below) without volume or other restrictions or
limit.
(ii) The parties acknowledge that the damages which
may be incurred by the Holder if the Company does not fulfill
its obligations under subparagraph (i) above, which will
affect the Holder's ability to sell the shares, may be
difficult to ascertain.
(iii) With a view to making available to the Holder
the benefits of Rule 144 promulgated under the 1933 Act or any
other similar rule or regulation of the SEC that may at any
time permit Holder to sell securities of the Company to the
public without registration (collectively, "Rule 144"), the
Company agrees to:
(a) Make and keep public information
available, as those terms are understood and defined
in Rule 144;
(b) when Registered, to file with the SEC in
a timely manner all reports and other documents
required of the Company under the 1933 Act and the
1934 Act; and
(c) after Registration of the common shares,
furnish to the Holder so long as such party owns
Registerable Securities, promptly upon request, (i) a
written statement by the Company that it has complied
with the reporting requirements of Rule 144, the 1933
Act and the 1934 Act, (ii) if not available on the
SEC's ▇▇▇▇▇ system, a copy of the most recent annual
or quarterly report of the Company and such other
reports and documents so filed by the Company and
(iii) such other information as may be reasonably
requested to permit the Holder to sell such
securities pursuant to Rule 144 without registration;
and
Page 16
(d) At the request of any Holder then
holding Registerable Securities, give the Transfer
Agent instructions (supported by an opinion of
Company counsel, if required or requested by the
Transfer Agent) to the effect that, upon the Transfer
Agent's receipt from such Holder of
(i) a certificate (a "Rule 144
Certificate") certifying (A) that the
Holder's holding period (as determined in
accordance with the provisions of Rule 144)
for the shares which the Holder proposes to
sell (the "Securities Being Sold") is not
less than (1) year and (B) as to such other
matters as may be appropriate in accordance
with Rule 144 under the Securities Act, and
(ii)an opinion of counsel
acceptable to the Company that, based on the
Rule 144 Certificate, Securities Being Sold
may be sold pursuant to the provisions of
Rule 144, even in the absence of an
effective registration statement, the
Transfer Agent is to effect the transfer of
the Securities Being Sold and issue to the
Purchaser(s) or transferee(s) thereof one or
more stock certificates representing the
transferred Securities Being Sold without
any restrictive legend and without recording
any restrictions on the transferability of
such shares on the Transfer Agent's books
and records (except to the extent any such
legend or restriction results from facts
other than the identity of the relevant
Holder, as the seller or transferor thereof,
or the status, including any relevant
legends or restrictions, of the shares of
the Securities Being Sold while held by the
Purchasers). If the Transfer Agent
reasonably requires any additional
documentation at the time of the transfer,
the Company shall deliver or cause to be
delivered all such reasonable additional
documentation as may be necessary to
effectuate the issuance of an unlegended
certificate.
(iv)Notwithstanding the foregoing, if at any time or
from time to time after the date of effectiveness of the
registration statement, the Company notifies the Holder in
writing of the existence of a Potential Material Event (as
defined below), the Holder shall not offer or sell any
Registerable Securities, or engage in any other transaction
involving or relating to the Registerable Securities, from the
time of the giving of notice with respect to a Potential
Material Event until the Holder receives written notice from
the Company that such Potential Material Event either has been
disclosed to the public or no longer constitutes a Potential
Material Event; PROVIDED, HOWEVER, that the Company may not so
suspend such right other than during a reasonable suspension
period according to then industry standards and practices. The
term "Potential Material Event" means any of the following:
(i) the possession by the Company of material information not
ripe for disclosure in a registration statement, which shall
be evidenced by determinations in good faith by the Board of
Directors of the Company that disclosure of such information
in the registration statement would be detrimental to the
Page 17
business and affairs of the Company; or (ii) any material
engagement or activity by the Company which would, in the good
faith determination of the Board of Directors of the Company,
be adversely affected by disclosure in a registration
statement at such time, which determination shall be
accompanied by a good faith determination by the Board of
Directors of the Company that the registration statement would
be materially misleading absent the inclusion of such
information.
(v) At any time ninety (90) days following the
Company's IPO, if the Company shall receive a written request
(specifying that it is being made pursuant to this SECTION
4.G.(V)) from Purchasers that the Company file a registration
statement under the 1933 Act, or a similar document pursuant
to any other statute then in effect corresponding to the 1933
Act, covering the registration of the Registrable Securities,
then the Company shall promptly, and in any case not later
than 90 days after receipt by the Company of a written request
for a demand registration pursuant to this SECTION 4.G.(V)
(except that such filing may be coordinated with the close of
the fiscal year of the Company), file a registration statement
with the SEC relating to such Registrable Securities as to
which such request for a demand registration relates and the
Company shall use its best efforts to cause all the
Registrable Securities, to be registered under the 1933 Act
H. PUBLICITY, FILINGS, RELEASES, ETC. Each of the parties
agrees that it will not disseminate any information relating to the
Transaction Agreements or the transactions contemplated thereby,
including issuing any press releases, holding any press conferences or
other forums, or filing any reports (collectively, "Publicity"),
without giving the other party reasonable advance notice and an
opportunity to comment on the contents thereof. Neither party will
include in any such Publicity any statement or statements or other
material to which the other party reasonably objects, unless in the
reasonable opinion of counsel to the party proposing such statement,
such statement is legally required to be included. Notwithstanding the
foregoing, each of the parties hereby consents to the inclusion of the
text of the Transaction Agreements in filings made with the SEC as well
as any descriptive text accompanying or part of such filing which is
accurate and reasonably determined by the Company's counsel to be
legally required.
I. CURRENT SHAREHOLDERS SALE RIGHTS. The current shareholders,
according to the shareholding structure as in EXHIBIT F, of the company
as of date hereof, agree that they as well as the Service Provider
shall execute separate Lockup Agreements EXHIBIT H, in the form
attached hereto, which will provide that they agree to refrain from
selling any of their stock into public market other than defined in
this Lockup Agreements.
Page 18
5. TRANSFER AGENT INSTRUCTIONS.
A. The Company warrants that, with respect to the Securities,
other than the stop transfer instructions to give effect to Section
4(a) hereof, it will give its transfer agent no instructions
inconsistent with instructions to issue common stock to the Holder as
contemplated in the Transaction Agreements. Except as so provided, the
shares shall otherwise be freely transferable on the books and records
of the Company as and to the extent provided in this Agreement and the
other Transaction Agreements. Nothing in this Section shall affect in
any way the Purchasers' obligations and agreement to comply with all
applicable securities laws upon resale of the Securities. If the
Purchasers provides the Company with an opinion of counsel reasonably
satisfactory to the Company that registration of a resale by the
Purchasers of any of the Securities in accordance with clause (1)(B) of
Section 4(a) of this Agreement is not required under the 1933 Act, the
Company shall (except as provided in clause (2) of Section 4(a) of this
Agreement) permit the transfer or reissue of the shares represented by
one or more certificates for common stock without legend (or where
applicable, by electronic registration) in such name and in such
denominations as specified by the Purchasers.
B. The Company will authorize the Transfer Agent to give
information relating to the Company directly to the Holder or the
Holder's representatives upon the request of the Holder or any such
representative, to the extent such information relates to (i) the
status of shares of common stock issued or claimed to be issued to the
Holder in connection with a Notice of Exercise or transfer of Pledged
Shares to the Holder, or (ii) the aggregate number of outstanding
shares of common stock of all shareholders (as a group, and not
individually) as of a current or other specified date. At the request
of the Holder, the Company will provide the Holder with a copy of the
authorization so given to the Transfer Agent.
6. CLOSING DATE.
A. The Closing Date shall occur on the date which is the first
Trading Day after each of the Conditions contemplated by Sections 7 and
8 hereof shall have either been satisfied or been waived by the party
in whose favor such conditions run.
B. The closing of the Transactions shall occur on the Closing
Date at the offices of the Purchasers and shall take place no later
than 3:00 P.M., PDT time, on such day or such other time as is mutually
agreed upon by the Company and the Purchasers.
7. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The Purchasers understand that the Company's obligation to sell the
Shares, the Warrant and any securities in connection with any other
agreement executed by the parties hereto is conditioned upon:
A. The execution and delivery of this Agreement by the
Purchasers;
Page 19
B. Delivery by the Purchasers to the Company of good funds as
payment in full of an amount equal to the Purchase Amount in accordance
with this Agreement;
C. The accuracy on such Closing Date of the representations
and warranties of the Purchasers contained in this Agreement, each as
if made on such date, and the performance by the Purchasers on or
before such date of all covenants and agreements of the Purchasers
required to be performed on or before such date; and
D. There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby, or
requiring any consent or approval which shall not have been obtained.
8. CONDITIONS TO THE PURCHASERS' OBLIGATION TO PURCHASE.
The Company understands that the Purchasers' obligation to purchase the
Pledged Shares on the Closing Date is conditioned upon:
A. The execution and delivery of this Agreement and the other
Transaction Agreements by the Company;
B. Delivery by the Company to the Purchasers of the
Certificates in accordance with this Agreement or any other agreements
between the parties;
C. The execution and delivery of the Services Agreement by and
between Company and Purchasers (Exhibit B);
D. The execution and delivery of the Employment Agreements by
the principal officers containing covenants not to compete within a
period of 30 days from signing of this agreement
E. The execution and delivery of the Warrant;
F. 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;
K. The Company shall provide consolidated pro forma and 3 year
projected financial statements (income statement, balance sheet, and
cash flow) including acquisitions and total capital requirements within
a period of 30 days from signing of this agreement.
M. A complete list of shareholders of the Company as EXHIBIT F
Page 20
O. Due Diligence report titled "Sungame Due Diligence
September 2008" ( as submitted in EXIBIT E),and submitted by the
Company, being self attested as "Certified True as on Date" by all
current shareholdersAdversor Inc.
P. Summary of Agreements titled "SUMMARY OF AGREEMENTS,
FINANCIAL COMMITMENTS AND PROJECTED UTILIZATION OF FUNDS BY SUNGAME",
and submitted by the Company, being self attested as "Certified True as
on Date" by the Company.
Q. Current and future validity of representations as made in
Section 3, titled "COMPANY REPRESENTATIONS, ETC" and EXHIBIT C
9. BOARD OF DIRECTORS.
For a period not to exceed one year after the Company becomes a full
reporting company under Section 12(g) of the Securities Exchange Act of
1934, the shareholders of the Company and the Company agree to nominate
and maintain a Board of Directors constituting five persons. Further,
the parties agree:
A. ▇▇▇ ▇▇▇▇▇▇ shall appoint two directors to the Board of
Directors;
B. Purchasers have the right, upon signing of this agreement
and completion of first payment to Sungame as part of this agreement,
to appoint two Directors to the Board of Directors
C. The four directors, appointed as set forth above, shall
seek, agree upon, and appoint a fifth independent director within
fifteen days after the acceptance of the Directors appointed under
sub-paragraph (b) above.
D. All existing shareholders shall vote in a way to facilitate
and provision this section including but not limited to appointment of
two directors nominated by Purchasers.
E. After one year following effectiveness of the Registration
of the Company with the SEC, those procedures set forth in Section 14
of the Securities Exchange Act of 1934 shall be followed for election
of directors. The Company agrees that it shall nominate Diamond Star's
nominees for director as part of the management slate of Directors for
annual election of directors for so long as Diamond Star is a
beneficial owner of at least 10% of the outstanding common stock of the
Company.
10. ROLE OF MINDZEYE CONSULTING:INDEMNITY
a. All parties herewith agree and confirm that the role of
Mindzeye Consulting in context of this Agreement has been that of the
advisor and third party observer to the transactions between the
Page 21
Company and the Purchasers. And that participation in this Agreement
cannot be construed by anyone as Mindzeye Consulting being one of the
Purchasers.
b. Both Parties, the Purchasers and the Company, hereby
automatically indemnify and hold harmless Mindzeye Consulting, it's
officers, directors, employees, agents and representatives from and
against any and all claims, damages, costs, judgments, penalties and
expenses of any kind (including reasonable legal fees and
disbursements) which may be obtained against, imposed upon or suffered
by any of them, due to breach or termination or misrepresentation by
either the Company or the Purchasers as part of this Agreement.
11. GOVERNING LAW: MISCELLANEOUS.
A. (i) This Agreement shall be governed by and
interpreted in accordance with the laws of the State of
Delaware for contracts to be wholly performed in such state
and without giving effect to the principles thereof regarding
the conflict of laws. Each of the parties consents to the
exclusive jurisdiction of the federal courts whose districts
encompass any part of the County of Delaware or the state
courts of the State of Delaware sitting in the County of
Delaware in connection with any dispute arising under this
Agreement or any of the other Transaction Agreements and
hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on FORUM NON
CONVENIENS, to the bringing of any such proceeding in such
jurisdictions or to any claim that such venue of the suit,
action or proceeding is improper. To the extent determined by
such court, the Company shall reimburse the Purchasers for any
reasonable legal fees and disbursements incurred by the
Purchasers in enforcement of or protection of any of its
rights under any of the Transaction Agreements. Nothing in
this Section shall affect or limit any right to serve process
in any other manner permitted by law.
(ii)The Company and the Purchasers acknowledge and
agree that irreparable damage would occur in the event that
any of the provisions of this Agreement or the other
Transaction Agreements were not performed in accordance with
their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement and the other Transaction
Agreements and to enforce specifically the terms and
provisions hereof and thereof, this being in addition to any
other remedy to which any of them may be entitled by law or
equity.
B. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such
right or remedy, shall not operate as a waiver thereof.
Page 22
C. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties hereto.
D. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may
require.
E. A facsimile transmission of this signed Agreement shall be
legal and binding on all parties hereto.
F. This Agreement may be signed in one or more counterparts,
each of which shall be deemed an original.
G. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of,
this Agreement.
H. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of
this Agreement or the validity or enforceability of this Agreement in
any other jurisdiction.
I. This Agreement may be amended only by an instrument in
writing signed by the party to be charged with enforcement thereof.
J. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject
matter hereof.
K. In the event that a party to this Agreement seeks to
enforce this Agreement alleging a default, in any legal action, the
prevailing party in such action shall be entitled to an award of all
reasonable legal fees and costs.
12. NOTICES. Any notice required or permitted hereunder shall be given
in writing (unless otherwise specified herein) and shall be deemed effectively
given on the earliest of
A. The date delivered, if delivered by personal delivery as
against written receipt therefor or by confirmed facsimile
transmission,
B. The fifth Trading Day after deposit, postage prepaid, in
the United States Postal Service by registered or certified mail, or
C. The third Trading Day after mailing by domestic or
international express courier, with delivery costs and fees prepaid, in
each case, addressed to each of the other parties thereunto entitled at
the following addresses (or at such other addresses as such party may
designate by ten (10) days' advance written notice similarly given to
each of the other parties hereto):
Page 23
COMPANY: At the address set forth at the head of this Agreement.
Sungame Corporation
Attn: ▇▇▇ ▇▇▇▇▇▇
▇▇@▇▇▇▇▇▇.▇▇▇
PURCHASERS: MINDZEYE CONSULTING PTE LTD
Attn: ▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The Company's and the
Purchasers' representations and warranties herein shall survive the execution
and delivery of this Agreement and the delivery of the Certificates and the
payment of the Purchase Amount, and shall inure to the benefit of the Purchasers
and the Company and their respective successors and assigns.
[Balance of page intentionally left blank]
Page 24
IN WITNESS WHEREOF, this Agreement has been duly executed by the
following parties as of the date set first above written.
SUNGAME CORPORATION MINDZEYE CONSULTING PTE LTD
By: ______________________________ By: _________________________________
Name: Name: Amit ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President and CEO Title: CEO
For ADVERSOR INC
By:_______________________________
Name:_____________________________
Title:____________________________
For ▇▇▇▇▇▇▇▇▇ Global Capital Markets LLC
By: ______________________________
Name: ____________________________
Title: ___________________________
For Ranulf ▇▇▇▇
By:_______________________________
Name: ____________________________
Title: ___________________________
For ▇▇▇▇▇ ▇▇▇▇▇
By:_______________________________
Name: ____________________________
Title: ___________________________
For ▇▇ ▇▇▇▇ Investments
By:_______________________________
Name: ____________________________
Title: ___________________________
For Global Investments Advisors LLC
By:_______________________________
Name: ____________________________
Title: ___________________________
Page 25
EXHIBIT A FORM OF WARRANT
EXHIBIT B FORM OF SERVICES AGREEMENT
EXHIBIT C OFFICERS CERTIFICATE
EXHIBIT D COMPANY DISCLOSURE MATERIALS
EXHIBIT E COMPANY DUE DILLIGENCE SEPTEMBER 2008
EXHIBIT F COMPANY SHAREHOLDING STRUCTURE AS ON DATE OF AGREEMENT
EXHIBIT G SUMMARY OF AGREEMENTS, FINANCIAL COMMITMENTS AND
PROJECTED UTILIZATION OF FUNDS BY SUNGAME
EXHIBIT H LOCK UP AGREEMENTS
Page 26