INVESTMENT PURCHASE AGREEMENT
THIS
INVESTMENT PURCHASE AGREEMENT is dated and made for
reference
effective as of the
, 2010 (the "Effective
Date").
BETWEEN:
BRAND
NEUE CORP. with its
address for notices at c/o 1210 — ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇
(the
"Company");
OF THE FIRST
PART
AND:
with the address
for
notice hereunder at:
(the
"Investor");
OF
THE SECOND PART
(the
Investor and the Company being hereinafter singularly also referred
to as a "Party" and
collectively referred to as the "Parties" as the
context so requires).
WHEREAS:
|
A.
|
The
Company is in the business of new product innovation dedicated to
globally sourcing,
developing, marketing, licensing and distributing innovative new products
to global
food service, retail, manufacturing and industrial application
worldwide;
|
|
B.
|
The
Company desires investment and the Investor has determined that he will
participate with
the Company on the terms of this Agreement;
and
|
|
C.
|
The
Investor is a sophisticated and accredited
investor.
|
NOW
THEREFORE THIS AGREEMENT WITNESSETH that
in consideration of the mutual
promises, covenants and agreements herein contained, THE
PARTIES HERETO COVENANT
AND AGREE WITH EACH OTHER as
follows:
Article
1
INVESTMENT
PURCHASE
1.1
Investment
Purchase. The Investor hereby purchases and the Company hereby sells
and
agrees to deliver a certificate or certificates
for
common shares (the
"Purchased Shares") of the Company in consideration of the payment by the
Investor of $0.50US
per Purchased Share for an aggregate price
of
US (the
"Purchase
Price").
1.2
The Company hereby agrees to pay to the Investor certain fees from
revenue generated (the
"Fee") as
follows:
|
(a)
|
Upon the Company generating
revenue, the Fee payable by the Company to the Investor shall consist of 75% of Gross
Profit from Product Sales after Deduction of Direct Expenses (GPPSR), pro rated
subject to the portion of the Purchase Price relative to the entire
amount.
|
|
(b)
|
The
75% Fee shall be paid quarterly until such time as the Fee payments are
the equivalent
of the Purchase Price paid by the Investor, upon which the Fee
payments shall
be considered paid in
full.
|
1.3
Investor
Acknowledgment. None of the Purchased Shares to which this Investment
Purchase
Agreement relates have been registered under the United States Securities Act of
1933, as
amended (the "1933 Act"), or any U.S. State securities laws, and, unless so
registered, none may be
offered or sold in the United States or to U.S. Persons except pursuant to an
exemption from, or
in a transaction not subject to, the registration requirements of the 1933 Act
and in each case only
in accordance with applicable state securities laws.
1.4
Repurchase
Option. The Investor hereby grants to the Company the option (the
"Option")
to purchase, subject to the terms and conditions of this Agreement, up to
one-half of the
Investors Purchased Shares at $1.00 per share (the "Option
Price").
The term
(the "Option Term") of the Option shall commence on the date of this Agreement
and shall
expire on the first anniversary of the date of this Agreement (the "Expiration
Date").
On or
before the Expiration Date, the Option may be exercised, from time to time, in
whole or in part (but
for the purchase of whole shares only), by delivery of a written notice (the
"Notice") from the
Company to the Investor, which Notice shall:
|
(a)
|
state
that the Company elects to exercise the
Option;
|
-2-
|
(b)
|
state
the number of shares with respect to which the Option is being exercised
(the "Optioned Shares");
|
|
(c)
|
state
the date upon which the Company desires to consummate the purchase of
the Optioned
Shares (which date must be prior to the termination of such Option and no
later than
30 days from the delivery of such
Notice);
|
|
(d)
|
Payment
of the Option Price for the Optioned Shares shall be made by delivery of
cash, money
order or a certified check to the order of the Investor in an amount equal
to the Option
Price; and
|
|
(e)
|
The
Investor shall deliver stock certificate(s) duly endorsed for transfer in
the name of the Company (or their nominee or assigns) for the Optioned
Shares as soon as practicable after receipt of the Notice and payment of
the aggregate Option Price for such
Shares.
|
Article
2
WARRANTIES
AND REPRESENTATIONS BY THE COMPANY
2.1
Warranties
and Representations by the Company. In order to induce the Investor
to enter into and consummate this Agreement, the Company hereby warrants
to, represents
to and covenants with the Investor, with the intent that the Investor will rely
thereon in entering
into this Agreement and in concluding the transactions contemplated herein,
that, to the best of
the Company's knowledge, information and belief, after making due
inquiry:
|
(a)
|
upon delivery of the
Purchased Shares the Investor will be the 100% percent owner
of the Purchased Shares without claim or lien by any other party and
the Purchased
Shares will be validly issued and outstanding and fully paid and non-
assessable
in the capital of the Company and the Purchased Shares will be
free and
clear of all liens, charges and encumbrances and delivered hereby to
the Investor
solely and to the exclusion of all other parties and
claims;
|
|
(b)
|
subject to the
Investor qualifying as an accredited investor, there are no claims of
any
nature whatsoever affecting the rights of the Company to transfer and
deliver the
Purchased Shares to the Investor and such sale will not impose
any restrictions,
penalties or other adverse effects on the Purchased Shares other
than as
apply by law of general application including any hold periods imposed
by applicable
legislation or regulator;
and
|
|
(c)
|
this Agreement
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its
terms.
|
Article
3
WARRANTIES
AND REPRESENTATIONS BY THE INVESTOR
3.1
Warranties
and Representations by the Investor. In order to induce the Company to
enter
into and consummate this Agreement, the Investor hereby warrants to, represents
to and covenants
with the Company, with the intent that the Company will rely thereon in entering
into this
Agreement and in concluding the transactions contemplated herein, that, to the
best of the Investor's knowledge,
information and belief, after making due inquiry:
-3-
|
(a)
|
The
Investor has full power and authority to enter into this Agreement and to
carry out
the transactions contemplated
hereby;
|
|
(b)
|
The
Investor realizes that the investment purchase is a speculative purchase
and that
the Investor is able, without impairing the Investor's financial
condition, to effect
the same. The Investor has such knowledge and experience in financial
and business
matters that the Investor is capable of evaluating the merits and risks
of the
prospective investment. The Investor is an accredited investor and has
no requirement
for regulatory approvals or over-sight for this investment.
The Investor
agrees that the Purchased Shares shall be subject to a one year hold
period;
and
|
|
(c)
|
the
Investor shall employ best efforts, due diligence, and good faith in
the performance
of this Agreement and shall conduct and conclude this
Agreement with
the intent of effecting the objectives hereof to the fullest extent and
in accordance
with the intention of this
Agreement.
|
Article
4
CONFIDENTIAL
INFORMATION AND INVESTOR QUALIFICATION
4.1
Confidential
Information. No information in respect to the Company, the Parties
or this Agreement shall be published or disclosed to third parties by any Party
without the prior
written consent of the other Party, but such consent in respect of the reporting
of factual data
shall not be unreasonably withheld, and shall not be withheld in respect of
information required
to be publicly disclosed pursuant to applicable securities or corporation laws
or as would be
required to acquire the approvals necessary or desirable to this
Agreement.
4.2
Investor
Qualification. The Investor represents, warrants, acknowledges and
agrees to
and with the Company that:
|
(a)
|
the
Investor is a U.S. Person;
|
|
(b)
|
the
Investor has such knowledge and experience in financial and business
matters as
to be capable of evaluating the merits and risks of the transactions
detailed in this
Investment Purchase Agreement and it is able to bear the economic risk
of loss
arising from such
transactions;
|
|
(c)
|
the
Investor is acquiring the Purchased Shares for investment only and not
with a view
to resale or distribution and, in particular, it has no intention to
distribute either
directly or indirectly any of the Purchased Shares in the United States or
to U.S.
Persons; provided, however, that the Investor may sell or otherwise
dispose of
any of the Purchased Shares pursuant to registration thereof pursuant to
the 1933
Act, and any applicable State securities laws or if an exemption from
such registration
requirements is available or registration is otherwise not
required under
this 1933 Act;
|
-4-
|
(d)
|
the
Investor satisfies one or more of the categories indicated below
(check
appropriate box):
|
|
|
Category 1: An
organization described in Section 501(c)(3) of the United States Internal
Revenue Code, a corporation, a Massachusetts or
similar business trust or partnership, not formed for the
specific purpose
of acquiring the Purchased Shares, with total assets in excess of
US $5,000,000;
|
|
|
Category 2: A
natural person whose individual net worth, or joint net
worth with that person's spouse, on the date of purchase
exceeds US
$1,000,000;
|
|
|
Category 3: A
natural person who had an individual income in excess of
US $200,000 in each of the two most recent years or joint
income with
that person's spouse in excess of US $300,000 in each of those years
and has a reasonable expectation of reaching the same income level
in the current
year;
|
|
|
Category 4: A "bank"
as defined under Section (3)(a)(2) of the 1933 Act
or savings and loan association or other institution as defined
in Section
3(a)(5)(A) of the 1933 Act acting in its individual or
fiduciary capacity;
a broker dealer registered pursuant to Section 15 of the Securities
Exchange Act of ▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇); an insurance company
as defined in Section 2(13) of the 1933 Act; an investment company
registered under the Investment Company Act of 1940 (United
States) or a business development company as defined in Section
2(a)(48) of such Act; a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of ▇▇▇▇ (▇▇▇▇▇▇
▇▇▇▇▇▇); a plan with total assets in excess of $5,000,000 established
and maintained by a state, a political subdivision thereof, or
an agency or instrumentality of a state or a political
subdivision thereof,
for the benefit of its employees; an employee benefit plan within
the meaning of the Employee Retirement Income Security Act of
1974 (United States) whose investment decisions are made by a plan
fiduciary, as defined in Section 3(21) of such Act, which is
either a
bank, savings and loan association, insurance company or
registered investment
adviser, or if the employee benefit plan has total assets in excess
of $5,000,000, or, if a self-directed plan, whose investment decisions
are made solely by persons that are accredited
investors;
|
|
|
Category 5: A
private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of ▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇);
|
|
|
Category
6: A director or executive officer of the
Company;
|
-5-
|
|
Category 7: A trust
with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the Purchased Shares, whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) under the 1933 Act;
or
|
|
|
Category 8: An
entity in which all of the equity owners satisfy the requirements
of one or more of the foregoing categories;
and
|
|
(e)
|
the Investor is not
acquiring the Purchased Shares as a result of any form of general
solicitation or general advertising including advertisements,
articles, notices
or other communications published in any newspaper, magazine or
similar media
or broadcast over radio, or television, or any seminar or meeting
whose attendees
have been invited by general solicitation or general
advertising.
|
4.3.
The Investor acknowledges and agrees that:
|
(a)
|
if the Investor
decides to offer, sell or otherwise transfer any of the Purchased Shares,
it will not offer, sell or otherwise transfer any of such securities,
directly or
indirectly,
unless:
|
|
(i)
|
the
sale is to the Company;
|
|
(ii)
|
the
sale is made pursuant to the exemption from the registration requirements
under the 1933 Act provided by Rule 144 there under if available
and in accordance with any applicable state securities or
"Blue Sky"
laws; or
|
|
(iii)
|
the
Purchased Shares are sold in a transaction that does not
require registration
under the 1933 Act or any applicable U.S. state laws and regulations
governing the offer and sale of securities, and it has prior
to such
sale furnished to the Company an opinion of counsel reasonably satisfactory
to the Company;
|
|
(b)
|
the Investor has not
acquired the Purchased Shares as a result of, and will not itself engage
in any activities undertaken for the purpose of, or that could reasonably
be expected
to have the effect of, conditioning the market in the United States for
the resale
of any of the Purchased Shares; provided, however, that the Investor
may sell
or otherwise dispose of any of the Purchased Shares pursuant to
registration of any
of the Purchased Shares pursuant to the 1933 Act and any applicable
state securities
laws or under an exemption from such registration requirements and
as otherwise
provided
herein;
|
|
(d)
|
upon the issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the 1933 Act or applicable U.S. State laws and
regulations, the certificates representing any of the Purchased Shares
will bear a
legend in substantially the following
form:
|
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE AND HAVE BEEN
ISSUED IN RELIANCE UPON AN EXEMPTION FROM
-6-
REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
|
(e)
|
the
Company may make a notation on its records or instruct the registrar
and transfer
agent of the Company in order to implement the restrictions on
transfer set
forth and described
herein;
|
|
(f)
|
commencing
on the first anniversary of the Closing one-quarter of the
Purchased Shares
shall be released to the Investor, and an additional one-quarter released
at the
end of each three month period thereafter, until all Purchased Shares
have been
released.
|
|
(g)
|
the
Investor, if an individual, is a resident of the state or other
jurisdiction disclosed
as its address in the recitals of this Investment Purchase Agreement,
or if
the Investor is not an individual, the office of the Investor at which the
Investor received
and accepted the offer to acquire the Purchased Shares is the
address listed
in the recitals of this Investment Purchase
Agreement.
|
Article
5
NOTICE
5.1
Notice.
Each notice, demand or other communication required or permitted to be
given
under this Agreement shall be in writing and shall be delivered to the Party or
Parties entitled
to receive the same, at the address for such Party or Parties specified above.
The date of receipt
of such notice, demand or other communication shall be the date of delivery
thereof.
5.2
Change
of Address. Any Party may at any time and from time to time notify the
other
Party in writing of a change of address and the new address to which notice
shall be given to it
thereafter until further change.
Article
6
GENERAL
PROVISIONS
6.1
Entire
Agreement. This Agreement constitutes the entire agreement between
the
Parties hereto and supersedes every previous agreement, communication,
expectation, negotiation,
representation or understanding, whether oral or written, express or
implied, statutory
or otherwise, between the Parties with respect to the subject matter of this
Agreement.
-7-
6.2
Enurement.
This Agreement will enure to the benefit of and will be binding upon the
Parties, their respective heirs, executors, administrators and permitted
assigns.
6.3
Time
of the Essence. Time will be of the essence of this
Agreement.
6.4
Further
Assurances. The Parties hereto hereby, jointly and severally, covenant
and agree
to forthwith, upon request, execute and deliver, or cause to be executed and
delivered, such
further and other deeds, documents, assurances and instructions as may be
required by the Parties
hereto or their respective counsel in order to carry out the true nature and
intent of this Agreement.
6.5
Invalid
Provisions. If any provision of this Agreement is
at any time unenforceable
or invalid for any reason it will be severable from the remainder of this
Agreement and, in
its application at that time, this Agreement will be construed as though such
provision was not
contained herein and the remainder will continue in full force and effect and
be construed
as if this Agreement had been executed without the invalid or unenforceable
provision.
6.6
Counterparts.
This Agreement may be signed by the Parties hereto in as many counterparts
as may be necessary and may be signed by facsimile, each of which so signed
shall be deemed
to be an original, and such counterparts together shall constitute one and the
same instrument
and notwithstanding the date of execution will be deemed to bear the Effective
Date as set
forth on the front page of this Agreement.
IN
WITNESS WHEREOF the Parties have hereunto set their hands and seals in
as of the
Effective Date.