PENNY AUCTION SOLUTIONS, INC. STOCK PURCHASE AGREEMENT
Exhibit 10.1
▇▇▇▇▇ AUCTION SOLUTIONS, INC.
This Stock Purchase Agreement (“Agreement”) is made as of _________ __, 2012, but is only effective as of the date of acceptance of the “Purchaser Signature Page” by and between ▇▇▇▇▇ Auction Solutions, Inc., a Nevada corporation (the “Company”) and the purchaser listed on the Purchaser Signature Page hereto (the “Purchaser”).
R E C I T A L S
A. The Company desires to obtain funds from the Purchaser in order to provide working capital, to and further the operations of the Company.
B. In order to obtain such funds, the Company is offering up to 500,000 shares of the Company’s common stock, $.001 par value per share (the “Common Stock”) on the terms and subject to the conditions set forth herein.
AGREEMENT
It is agreed as follows:
1. PURCHASE AND SALE OF SHARES. In reliance upon the representations and warranties of the Company and the Purchaser contained herein and subject to the terms and conditions set forth herein, at Closing, the Purchaser shall purchase, and the Company shall sell and issue to the Purchaser that number of shares of Common Stock (the “Shares”) set forth on the Purchaser Signature Page at a price of $0.10 per share for the aggregate purchase price set forth on the Purchaser Signature Page (the “Purchase Price”).
2. CLOSING.
2.1 Date and Time. The closing of the sale of the Shares contemplated by this Agreement (the “Closing”) shall take place at the offices of the Company concurrently herewith.
2.2 Deliveries by Purchaser. Purchaser shall deliver the following at Closing:
2.2.1 a completed and executed Purchaser Signature Page; and
2.2.2 a check or wire transfer to the account specified in by the Company in the amount of the Purchase Price.
2.3 Deliveries by Company. The Company shall deliver the following at Closing:
2.3.1 a completed and executed copy of this Agreement;
2.3.2 the certificates representing the Shares purchased by Purchaser, with each certificate representing the Shares being in definitive form and registered in the name of Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As a material inducement to the Purchaser to enter into this Agreement and to purchase the Shares, the Company represents and warrants that the following statements are true and correct in all material respects as of the date hereof and will be true and correct in all material respects at Closing, except as expressly qualified or modified herein.
3.1 Organization and Good Standing. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada and has full corporate power and authority to enter into and perform its obligations under this Agreement, and to own its properties and to carry on its business as presently conducted and as proposed to be conducted.
3.2 Validity of Transactions. This Agreement, and each document executed and delivered by the Company in connection with the transactions contemplated by this Agreement, including this Agreement, have been duly authorized, executed, and delivered by the Company and is each the valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, and moratorium laws and other laws affecting enforcement of creditor’s rights generally and by general principles of equity.
3.3 Capitalization. The authorized capital stock of the Company consists of (i) 495,000,000 shares of Common Stock, of which 105,512,000 shares are issued and outstanding, and (ii) 5,000,000 shares of preferred stock, of which none of which are issued and outstanding.
3.4 Valid Issuance of Shares. The Shares that are being issued to Purchaser hereunder, when issued, sold and delivered in accordance with the terms hereof for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer, other than restrictions on transfer under this Agreement and under applicable federal and state securities laws, will be free of all other liens and adverse claims.
3.5 No Violation. The execution, delivery, and performance of this Agreement has been duly authorized by the Company’s Board of Directors and will not violate any law or any order of any court or government agency applicable to the Company, as the case may be, or the Articles of Incorporation or Bylaws of the Company.
3.6 Securities Law Compliance. Assuming the accuracy of the representations and warranties of Purchaser set forth in Section 4 of this Agreement, the offer, issue, sale and delivery of the Shares will constitute an exempted transaction under the Securities Act of 1933, as amended (the “1933 Act”), and registration of the Shares under the 1933 Act is not required. The Company shall make such filings as may be necessary to comply with the Federal securities laws, which filings will be made in a timely manner
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3.7 Brokers or Finders. The Company has not incurred nor will incur, directly or indirectly, any liability for any brokerage or finders’ fees or agent’s commissions or any similar charges (whether payable in cash, in equity securities or by a combination thereof) in connection with this Agreement or any transaction contemplated hereby.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents, warrants, and covenants with the Company as follows:
4.1 Legal Power. Each Purchaser has the requisite individual, corporate, partnership, limited liability company, trust or fiduciary power, as appropriate, and is authorized, if such Purchaser is a corporation, partnership, limited liability company, or trust, to enter into this Agreement, to purchase the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement.
4.2 Due Execution. This Agreement has been duly authorized, if such Purchaser is a corporation, partnership, limited liability company, trust or fiduciary, executed and delivered by such Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of Purchaser.
4.3 Access to Information. Purchaser represents that such Purchaser has been given full and complete access to the Company for the purpose of obtaining such information as such Purchaser or its qualified representative has reasonably requested in connection with the decision to purchase the Shares. Purchaser represents that it has received and reviewed copies of the Financial Statements. Purchaser represents that it has been afforded the opportunity to ask questions of the officers of the Company regarding its business prospects and the Shares, all as Purchaser or Purchaser’s qualified representative have found necessary to make an informed investment decision to purchase the Shares.
4.4 Restricted Securities.
4.4.1 Purchaser has been advised that the Shares have not been registered under the 1933 Act or any other applicable securities laws and that Shares are being offered and sold pursuant to Rule 504 and/or Section 4(2) of the 1933 Act, and that the Company’s reliance upon Rule 504 and/or Section 4(2) is predicated in part on Purchaser representations as contained herein. Purchaser acknowledges that the Shares will be issued as “restricted securities” as defined by Rule 144 promulgated under the 1933 Act (“Rule 144”). The Shares may not be resold in the absence of an effective registration thereof under the 1933 Act and applicable state securities laws unless, in the opinion of the Company’s counsel, an applicable exemption from registration is available.
4.4.2 Purchaser represents that it is acquiring the Shares for Purchaser’s own account, and not as nominee or agent, for investment purposes only and not with a view to, or for sale in connection with, a distribution, as that term is used in Section 2(11) of the 1933 Act, in a manner which would require registration under the 1933 Act or any state securities laws.
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4.4.3 Purchaser understands and acknowledges that the Shares, when issued, may bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION THEREOF UNDER THE SECURITIES ACT OF 1933 AND/OR THE SECURITIES ACT OF ANY STATE HAVING JURISDICTION OR AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR ACTS.
4.4.4 Purchaser acknowledges that an investment in the Shares is not liquid and the Shares are transferable only under limited conditions. Purchaser acknowledges that such securities must be held indefinitely unless they are subsequently registered under the 1933 Act or an exemption from such registration is available. Purchaser is aware of the provisions of Rule 144, which permits limited resale of restricted securities subject to the satisfaction of certain conditions and that such Rule is not now available and, in the future, may not become available for resale of the Shares.
4.5 Purchaser Sophistication and Ability to Bear Risk of Loss. Purchaser acknowledges that it is able to protect its interests in connection with the acquisition of the Shares and can bear the economic risk of investment in such securities without producing a material adverse change in such Purchaser’s financial condition. Purchaser, either alone or with such Purchaser’s representative(s), otherwise has such knowledge and experience in financial or business matters that such Purchaser is capable of evaluating the merits and risks of the investment in the Shares.
4.6 Preexisting Relationship. Purchaser has a preexisting personal or business relationship with the Company, one or more of its officers, directors, or controlling persons.
4.7 Purchases by Groups. Purchaser represents, warrants, and covenants that it is not acquiring the Shares as part of a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (“1934 Act”).
5. MISCELLANEOUS.
5.1 Indemnification. Each Purchaser agrees to defend, indemnify and hold the Company harmless against any liability, costs or expenses arising as a result of any dissemination of the Shares by such Purchaser in violation of the 1933 Act or applicable state securities law.
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5.2 Governing Law; Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of Nevada. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in either the county of San Diego, State of California or the county of Orange, State of California, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
5.3 Specific Enforcement, Consent to Jurisdiction. The Company and the Purchaser acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement are not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to one or more preliminary and final injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which any of them may be entitled by law or equity. Subject to Section 5.2 hereof, each of the Company and the Purchaser hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction in California of such court, that the suit, action or proceeding is brought in an inconvenient forum, or that the venue of the suit, action, or proceeding is improper. Nothing in this Section shall affect or limit any right to serve process in any other manner permitted by law.
5.4 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto.
5.5 Entire Agreement. This Agreement and the Exhibits hereto and thereto, and the other documents delivered pursuant hereto and thereto, constitute the full and entire understanding and agreement among the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants, or agreements except as specifically set forth herein or therein. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto and their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided herein.
5.6 Severability. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall to the extent practicable, be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
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5.7 Amendment and Waiver. Except as otherwise provided herein, 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, either retroactively or prospectively, and either for a specified period of time or indefinitely), with the written consent of the Company and the Purchasers, or, to the extent such amendment affects only one Purchaser, by the Company and such Purchaser. Any amendment or waiver effected in accordance with this Section shall be binding upon each future holder of any security purchased under this Agreement (including securities into which such securities have been converted) and the Company.
5.8 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be effective when delivered personally, or sent by telex or telecopier (with receipt confirmed), provided that a copy is mailed by registered mail, return receipt requested, or when received by the addressee, if sent by Express Mail, Federal Express or other express delivery service (receipt requested) in each case to the appropriate address set forth below:
| If to the Company: | ▇▇▇▇▇ Auction Solutions, Inc.. | |
| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇ | ||
| ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Fax: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| If to the Purchaser: | At the address set forth on the Purchaser’s Signature Page |
5.9 Faxes and Counterparts. This Agreement may be executed in one or more counterparts. Delivery of an executed counterpart of the Agreement or any exhibit attached hereto by facsimile transmission shall be equally as effective as delivery of an executed hard copy of the same. Any party delivering an executed counterpart of this Agreement or any exhibit attached hereto by facsimile transmission shall also deliver an executed hard copy of the same, but the failure by such party to deliver such executed hard copy shall not affect the validity, enforceability or binding nature effect of this Agreement or such exhibit.
5.10 Titles and Subtitles. The titles of the paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth on the Purchase Signature Page hereto.
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PURCHASER
(By Counterpart Form - SP Pages) |
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COMPANY
▇▇▇▇▇ AUCTION SOLUTIONS, INC. |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | ||
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▇▇▇▇▇▇▇ ▇▇▇▇, President |
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PURCHASER SIGNATURE PAGE
The undersigned Purchaser has read the Stock Purchase Agreement dated as of ___________ __, 2012 and acknowledges that execution of this Purchaser Signature Page shall constitute the undersigned’s execution of such agreement.
I hereby subscribe for __________ Shares for a purchase price of $________ and hereby deliver good funds with respect to this subscription for the Shares.
I am a resident of _______________________.
Please print above the exact name(s) in which the Shares are to be held
| My address is: | |||
| SP-1 |
Executed this __th day of _____________________, 2012 at _____________________
SIGNATURES
INDIVIDUAL
| Name | ||
| Signature (Individual) | Street address | |
| Address to Which Correspondence Should be Directed |
| Signature (All record holders should sign) | City, State and Zip Code | |
| Name(s) Typed or Printed | Tax Identification or Social Security Number | |
| ( ) | ||
| Telephone Number | ||
| Name(s) Typed or Printed (All recorded holders should sign) |
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| SP-2 |
CORPORATION, PARTNERSHIP, TRUST ENTITY OR OTHER
| Name of Entity | Address to Which Correspondence Should be Directed: | ||
| Type of Entity (i.e., corporation, partnership, etc.) | Street Address | ||
| By: | |||
| *Signature | Tax Identification or Social Security Number | ||
| Jurisdiction of Formation of Entity | City, State and Zip Code | ||
| Name Typed or Printed | |||
| Its: | |||
| Title | Telephone Number; Fax Number | ||
*If Shares are being subscribed for by an entity, the Certificate of Signatory must also be completed.
| SP-3 |
CERTIFICATE OF SIGNATORY
To be completed if the Shares is being subscribed for by an entity.
I, ______________, am the ______________ of __________________________ (the “Entity”).
I certify that I am empowered and duly authorized by the Entity to execute and carry out the terms of the Stock Purchase Agreement and to purchase and hold the Shares. The Stock Purchase Agreement has been duly and validly executed on behalf of the Entity and constitutes a legal and binding obligation of the Entity.
IN WITNESS WHEREOF, I have hereto set my hand this ____th day of _________________ 2012
| Signature |
| SP-4 |
ACCEPTANCE
AGREED AND ACCEPTED:
▇▇▇▇▇ AUCTION SOLUTIONS, INC.
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |
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▇▇▇▇▇▇▇ ▇▇▇▇, President |
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Date: ____________ __, 2012
| SP-5 |