STOCK PURCHASE AGREEMENT made by and between HPIL Holding and July 27, 2013
Table of Contents
1. Sale And Purchase Of Shares. 2
2. Purchase Price And Payment 2
4. Representations, Warranties, And Covenants Of Seller 3
4.4. Compliance With Other Instruments. 4
5. Representations, Warranties, And Covenants Of Buyer 4
5.3. Compliance With Other Instruments. 4
5.5. Restrictions On Shares. 5
11. Additional Undertakings. 7
12. Compliance With The Foreign Corrupt Practices Act And Export Control And Antiboycott Laws. 7
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THIS STOCK PURCHASE AGREEMENT (“Agreement”) is signed and entered into this 27th day of July, 2013, (“Closing Date”) by and between HPIL Holding, a Nevada (USA) corporation (“Seller”), and O.R.C. SRL, a company organized in Italy (“Buyer”).
R E C I T A L S:
The following is a recital of facts underlying this Agreement:
A. Seller is the legal and beneficial owner of One Hundred and Sixty Five Thousand (165,000) treasury shares of Common Stock of the Seller (the “Shares”).
B. Seller has agreed to sell to Buyer, and Buyer has agreed to buy from Seller, all of the Shares, as well as all of Seller’s rights related thereto and any and all dividends now owing or hereafter to be declared thereon, on the terms and conditions set forth herein.
C. The parties believe that the Purchase Price, as defined below, is the fair market value of the Shares as of the date hereof. Seller desires to sell, and Buyer desires to purchase, the Shares at their fair market value.
NOW, THEREFORE, in consideration of and in reliance upon the representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows:
1. Sale And Purchase Of Shares
Seller hereby agrees to issue, sell and convey to Buyer, and Buyer hereby buys and accepts from Seller, the Shares, subject to the terms and conditions of this Agreement.
2. Purchase Price And Payment
The Purchase Price for the Shares shall be Dollar Eight Hundred Ninety Nine Thousand Two Hundred Fifty ($899,250), equal to Five Dollars and Forty-Five Cents ($5.45) per each Share. The Purchase Price shall be paid in cash.
3. Closing
The closing of the transactions contemplated by this Agreement shall take place at the offices of the Seller, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (United States), or other mutually agreed upon location.
3.1. Actions By Buyer
No later than Seven (7) business days after the Closing Date, Buyer shall deliver to Seller:
(a) The Payment from Buyer to Seller; and
(b) Those other closing documents which Seller may reasonably require.
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3.2. Actions By Seller
No later than Seven (7) business days after receiving the Payment, Seller shall deliver to Buyer:
(a) A stock certificate representing the Shares, with the following restrictive legend:
“The shares of stock represented by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be sold or otherwise transferred unless compliance with the registration provisions of such Act have been made, or unless availability of an exemption from such registration provisions has been established, or unless sold pursuant to Rule 144 of the Securities Act of 1933”; and
(b) Those other closing documents which the Buyer may reasonably require.
4. Representations, Warranties, And Covenants Of Seller
Seller hereby represents, warrants, and covenants to Buyer that as of the date of this Agreement:
4.1. Ownership Of Shares
Seller owns all right, title and interest (legal and beneficial) in and to all of the Shares being sold by Seller pursuant to this Agreement free and clear of all liens, including, but not limited to, any lien, pledge, claim, security interest, encumbrance, mortgage, assessment, charge, restriction or limitation of any kind, whether arising by agreement, operation of law or otherwise, except for those imposed by applicable federal and state securities laws. Seller has the full power and authority to issue, sell, transfer, convey, assign and deliver the Shares being sold by Seller to Buyer, and upon delivery and payment for such Shares at the closing, Buyer shall acquire valid and unencumbered title to such Shares to be delivered by Seller hereunder except as described in this Agreement.
4.2. Authorization
This Agreement constitutes a valid and legally binding obligation of Seller, enforceable in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
4.3. Consents
To Seller’s knowledge, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority on the part of Seller is required in connection with the consummation of the transactions contemplated by this Agreement.
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4.4. Compliance With Other Instruments
The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby will not result in a violation of, or default under, any instrument, judgment, order, writ, decree or contract known to Seller, or an event that results in the creation of any lien, charge or encumbrance upon the Shares being sold by Seller. Seller shall receive, as of the closing, all consents or waivers necessary to transfer the Shares being sold by Seller (together with all associated rights) to Buyer and neither the transfer nor the Shares are subject to any right of first refusal, preemptive, tag-along or drag-along right, call right or other comparable obligations or restrictions that has not been waived in connection herewith.
4.5. Litigation
There is no action, suit, proceeding or investigation pending or, to Seller’s knowledge, currently threatened that questions the validity of this Agreement, or the right of Seller to enter into this Agreement, or to consummate the transactions contemplated hereby.
5. Representations, Warranties, And Covenants Of Buyer
Buyer hereby represents, warrants, and covenants to Seller that as of the date of this Agreement:
5.1. Authorization
This Agreement constitutes a valid and legally binding obligation of Buyer, enforceable in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
5.2. Consents
To Buyer’s knowledge, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority on the part of Buyer is required in connection with the consummation of the transactions contemplated by this Agreement.
5.3. Compliance With Other Instruments
The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not result in a violation of, or default under, any instrument, judgment, order, writ, decree or contract known to Buyer to which the assets of Buyer are subject. Buyer has received, as of the closing, all consents or waivers necessary to purchase the Shares being sold by Seller to Buyer.
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5.4. Litigation
There is no action, suit, proceeding or investigation pending or, to Buyer’s knowledge, currently threatened that questions the validity of this Agreement, or the right of Buyer to enter into this Agreement, or to consummate the transactions contemplated hereby.
5.5. Restrictions On Shares
Buyer acknowledges and agrees that the Shares are not registered and not freely tradable and may only be traded or sold pursuant to compliance with applicable United States of America federal and state securities laws including, but not limited to, the Securities Act of 1933, and Buyer is an Accredited Investor (as the term is defined in Rule 501(a) of Regulation D promulgated pursuant to the Securities Act of 1933, as amended).
6. Conditions Precedent
The following shall be conditions precedent to Seller’s and Buyer’s obligations to consummate the transactions contemplated by this Agreement (the fulfillment of which the parties shall pursue in good faith and with reasonable diligence):
6.1. Document Delivery
Each party shall have delivered to the other party the documents and effected the other deliveries contemplated by Section 3 of this Agreement.
7. Buyer’s Indemnity
7.1. Seller shall indemnify, defend, and hold harmless Buyer from, against and with respect to any claim, liability, obligations, loss, damage, assessment, judgment, cost and expense (including, without limitation, reasonable attorneys’ and accountants’ fees and costs and expenses reasonably incurred in investigating, preparing, defending against or prosecuting any litigation or claim, action, suit, proceeding or demand) or any kind or character (collectively, “Losses”) arising out of or in any manner, incident, relating or attributable to: (i) any inaccuracy in any representation or breach of warranty of Seller contained in this Agreement and (ii) any failure by Seller to perform or observe, or to have performed or observed, in full any covenant, agreement or condition to be performed or observed by Seller under this Agreement or any of the other agreements or instruments executed and delivered by Seller.
7.2. Buyer agrees that the sole and exclusive remedy for money damages related to this Agreement and the transactions contemplated hereby shall be the rights to indemnification set forth in this Section 7.
8. Seller’s Indemnity
8.1. Buyer shall indemnify, defend, and hold harmless Seller from, against and with respect to any Losses arising out of or in any manner, incident, relating or attributable to: (a) any inaccuracy in any representation or breach of warranty of Buyer contained in this Agreement and (b) any failure by Buyer to perform or observe, or to have performed or observed, in full any covenant, agreement or condition to be performed or observed by Buyer under this Agreement or any of the other agreements or instruments executed and delivered by Buyer.
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8.2. Seller agrees that the sole and exclusive remedy for money damages relating to this Agreement and the transactions contemplated hereby shall be the rights to indemnification set forth in this Section 8.
9. Payment Of Expenses
Each of the parties shall pay their own expenses associated with this Agreement and the transactions contemplated herein.
10. Notices
All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) five (5) business days after being sent by registered or certified mail, return receipt requested, postage prepaid, (c) when dispatched by electronic facsimile transmission (with confirmation of successful transmission), or (d) one (1) business day after having been dispatched by an internationally recognized overnight courier service, in each case to the appropriate party at the address or facsimile number specified below:
If to Buyer:
O.R.C. SRL
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; and
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇/▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Facsimile No.: ▇▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to the following e-mail address: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇
If to Seller:
HPIL HOLDING
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, CFO, Corporate
Secretary and Treasurer
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to the following e-mail address: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Any party hereto may change its address or facsimile number for the purposes of this Section 10 by giving notice as provided herein.
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11. Additional Undertakings
Seller and Buyer shall hereafter each take those actions and execute and deliver those documents and instruments as shall be reasonably necessary in order to fulfill the intent and purpose of this Agreement, and shall cooperate in any filing, registration, investigation or other activity that shall be required or shall occur as a result of or in connection with these transactions.
12. Compliance With The Foreign Corrupt Practices Act And Export Control And Antiboycott Laws
Neither Buyer or Seller or any representative of Buyer or Seller in its capacity as such has violated the Foreign Corrupt Practices Act or the anticorruption laws of any jurisdiction where the Buyer or Seller does business. Each of Buyer and Seller has at all times complied with all legal requirements relating to export control and trade sanctions or embargoes. Neither Buyer or Seller have violated the antiboycott prohibitions contained in 50 U.S.C. Sections 2401 et seq. or taken any action that can be penalized under Section 999 of the Internal Revenue Code of 1986, as amended.
13. Arbitration
Any and all disputes or controversies between the parties arising out of or in connection with this Agreement shall be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce; provided, a party may seek a temporary restraining order, preliminary injunction, or other provisional judicial relief if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo. Despite any such action for provisional relief, the parties will continue to participate in good faith in the procedures specified in this Section 13. Each party shall appoint one arbitrator who shall mutually appoint a third arbitrator who shall be the sole arbitrator for the proceeding. The arbitration shall be held, and any award shall be rendered, in Paris (France), in the English language. The award may include reimbursement of the costs of the arbitration (including, without limitation, reasonable attorney fees) to the prevailing party or a portion of such costs as determined by the arbitrator. An award of the arbitrator shall be final and binding on the parties and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction.
14. Governing Law
This Agreement and its application and interpretation will be governed exclusively by its terms and the laws of the State of Nevada, and excluding any conflicts of law provisions which would require the application of any law other than Nevada.
15. Binding Effect
All of the terms and provisions of this Agreement by or for the benefit of the parties shall be binding upon and inure to the benefit of their successors, assigns, heirs and personal representatives. The rights and obligations provided by this Agreement shall not be assignable by any party without the express written permission of both parties. Except as expressly provided herein, nothing herein is intended to confer upon any person, other than the parties and their successors, any rights or remedies under or by reason of this Agreement.
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16. Counterparts
This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
17. No Reliance
No third party is entitled to rely on any of the representations, warranties and agreements contained in this Agreement. The parties assume no liability to any third party because of any reliance on the representations, warranties and agreements contained in this Agreement.
18. Captions
Captions to sections and subsections of this Agreement have been included solely for the sake of convenient reference and are entirely without substantive effect.
19. Entire Agreement
This Agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as set forth specifically herein. No amendment, supplement, modification, waiver or termination of this Agreement shall be implied or be binding (including, without limitation, any alleged waiver based on a party’s knowledge of any inaccuracy in any representation or warranty contained herein) unless in writing and signed by the party against which such amendment, supplement, modification, waiver or termination is asserted. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly therein provided.
THIS STOCK PURCHASE AGREEMENT has been entered into as of the date first set forth above.
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BUYER:
O.R.C. SRL, a company organized in Italy.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ _ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ As: Sole Administrator
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SELLER:
HPIL Holding, a Nevada (USA) corporation.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ _ ▇▇▇▇▇ ▇▇▇▇▇▇▇ As: CFO, Corporate Secretary and Treasurer |