Exhibit 10.1
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STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of April
___, 2001, by and between ▇▇▇▇▇▇▇ Holdings, Inc., a Nevada corporation (the
"Company"), and the investors listed on Schedule A hereto, each of which is
herein referred to as the "Investor."
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
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1.1 Sale and Issuance of Stock. Subject to the terms and
conditions of this Agreement, each Investor agrees to purchase at the Closing
and the Company agrees to sell and issue to such Investor at the Closing that
number of shares of the Company's Common Stock (the "Stock") set forth opposite
such Investor's name on Schedule A hereto for the purchase price of $0.01 (1
cent) per share.
1.2 Closing. The purchase and sale of the Stock shall take
place at such time and place as the Company and Investors purchasing at least a
majority of the Stock mutually agree upon (which time and place are designated
as the "Closing"). At the Closing the Company shall deliver to each Investor a
certificate representing the Stock which such Investor is purchasing against
delivery to the Company by such Investor of a certified check or bank wire in
the amount of the purchase price therefor payable to the Company's order.
2. Representations and Warranties of the Company. Subject to
subsections 2(i) and 2(ii) below, the Company hereby represents and warrants to
Investors that:
2.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Nevada and has all requisite corporate power and authority
to carry on its business as now conducted and as proposed to be conducted. The
Company is qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on its business and properties.
2.2 Capitalization. The authorized capital of the Company
consists, or will consist prior to the Closing, of:
(i) Common Stock. 50,000,000 shares of
common stock (the "Common Stock"), $0.001 par value, of which 560,701 shares
will be issued and outstanding upon the effectiveness of the Certificate.
(ii) Outstanding Shares and Other
Securities. The outstanding shares of Common Stock are all duly and validly
authorized and issued, fully paid and nonassessable and all shares of Common
Stock to be issued upon the exercise of outstanding options or conversion of
convertible securities in accordance with their respective terms will be duly
and validly issued, fully paid and nonassessable and the outstanding Common
Stock and all other outstanding securities of the Company were issued in
accordance with the registration or qualification provisions of the Securities
Act of 1933, as amended (the "Securities Act"), and any relevant state
securities laws, or pursuant to valid exemptions therefrom.
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(iii) Agreements for Purchase of Shares.
There are no outstanding options, warrants, rights (including conversion or
preemptive rights) or agreements for the purchase or acquisition from the
Company of any shares of its capital stock.
2.3 Subsidiaries. The Company does not presently own or
control, directly or indirectly, any interest in any other corporation,
association, partnership or other business entity; provided, however that the
Company does have an interest in the following companies: Digital DJ, Inc.,
Domestic Transmission Technologies, Inc., European Licensing Group, Inc. and
Latin America Subcarrier Services Group, Inc.
2.4 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the performance of all
obligations of the Company hereunder and thereunder and the authorization,
issuance (or reservation for issuance), sale and delivery of the Stock being
sold hereunder has been taken or will be taken on or prior to the Closing, and
this Agreement constitutes the valid and legally binding obligations of the
Company except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies.
2.5 Valid Issuance of Common Stock. The Stock which is being
purchased by the Investors 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 non-assessable, will be subject to
restrictions on transfer under applicable federal and state securities laws and,
based in part upon the representations of the Investors in this Agreement, will
be issued in compliance with all applicable federal and state securities laws.
The Stock issuable under this Agreement has been reserved for issuance and, upon
issuance and in accordance with the terms of the Certificate, shall be duly and
validly issued, fully paid and non-assessable, and will be free of restrictions
on transfer other than restrictions on transfer under applicable federal and
state securities laws.
2.6 Governmental Consents. As of the Closing and subject to
the truth and accuracy of each Investor's representations set forth in Section 3
of this Agreement, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state, local or provincial governmental authority on the part of the
Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except for any filings pursuant to Regulation D
under the Act, pursuant to section 25102(f) of the California Corporate
Securities Law of 1968, as amended, and the rules thereunder, and pursuant to
other applicable blue sky laws and any rules thereunder.
2.7 Litigation. There is no action or suit or, to the
Company's knowledge, any proceeding or investigation pending or currently
threatened against the Company or any of its officers or directors which
questions the validity of this Agreement or the right of the Company to enter
into such agreements, or to consummate the transactions contemplated hereby or
thereby, or which might result, either individually or in the aggregate, in any
material adverse change in the assets, condition, affairs or prospects of the
Company, financially or otherwise, or any change in the current equity ownership
of the Company, nor is the Company aware that there is any basis for the
foregoing. The Company is not a party or subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality.
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2.8 Patents and Trademarks. The Company has no patents or
patents pending. To the best of its knowledge, the Company has sufficient title
and ownership of all trademarks, service marks, trade names, copyrights, trade
secrets, information, proprietary rights and processes necessary for its
business as now conducted and as proposed to be conducted without any conflict
with or infringement of the rights of others.
2.9 Compliance with Other Instruments. The Company is not in
violation or default of any provisions of its Articles of Incorporation or
Bylaws or of any instrument, judgment, order, writ, decree or contract to which
it is a party or by which it is bound or, to its knowledge, of any provision of
federal or state statute, rule or regulation applicable to the Company, which
violation or default would be materially adverse to the Company. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby and thereby will not result in any such
violation or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event which results
in the creation of any material lien, charge or encumbrance upon any assets of
the Company or the suspension, revocation, impairment, forfeiture or non-renewal
of a material permit, license, authorization or approval applicable to the
Company, its business or operations or any of its properties.
2.10 Disclosure. The Company has fully provided each Investor
with all the information that such Investor has requested for deciding whether
to purchase the Stock.
2.11 Information. Neither this Agreement nor any other
statements or certificates made or delivered in connection herewith contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements herein or therein not misleading.
2.12 Registration Rights. The Company shall register each
share of the Stock at the Company's expense, upon demand by investors owning in
excess of 20% of the Stock, the Company will sign and abide by such Registration
Rights Agreements as may be requested by the investors from time to time.
2.13 Title to Property and Assets. The Company owns its
property and assets free and clear of all mortgages, liens, loans and
encumbrances, except such encumbrances and liens which arise in the ordinary
course of business and do not materially impair the Company's ownership or use
of such property or assets with a book value of $10,000 or more. With respect to
the property and assets it leases, the Company is in material compliance with
such leases and, to the best of its knowledge, holds a valid leasehold interest
free of any liens, claims or encumbrances.
2.14 Employee Benefit Plans. The Company does not have any
employee benefit plan described in section 3(2)(A) or section 3(2)(B) of the
Employee Retirement Income Security Act of 1974.
2.15 Minute Book. The minute book of the Company is available
to the Investors, contains a complete summary of all meetings of directors and
stockholders since the time of incorporation and reflects all transactions
referred to in such minutes accurately in all material respects.
2.16 Voting Arrangements. There are no outstanding stockholder
agreements, voting trusts, proxies or other arrangements among the stockholders
of the Company relating to the voting of their respective shares.
2.17 Offering. Subject in part to the truth and accuracy of
each Investor's representations set forth in Section 3 of this Agreement, the
offer, sale and issuance of the Stock as
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contemplated by this Agreement are exempt from the registration requirements of
the Securities Act, and neither the Company nor any authorized agent acting on
its behalf will take any action hereafter that would cause the loss of such
exemption.
2.18 Permits. The Company has all franchises, permits,
licenses, and any similar authority necessary for the conduct of its business as
now being conducted by it, the lack of which could materially and adversely
affect the business, properties, prospects, or financial condition of the
Company, and the Company believes it can obtain, without undue burden or
expense, any similar authority for the conduct of its business as planned to be
conducted. The Company is not in default in any material respect under any of
such franchises, permits, licenses, or other similar authority.
2.19 Employment Contracts. There are no side letters,
employment contracts, written or verbal understandings with regard to
employment, termination, severance, or the like in place.
3. Representations and Warranties of Investors. Each Investor
hereby represents and warrants that:
3.1 Authorization. Such Investor has full power and authority
to enter into this Agreement and that the Agreement constitutes its valid and
legally binding obligation except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally, and (ii) as limited by
laws relating to the availability of specific performance, injunctive relief or
other equitable remedies.
3.2 Purchase Entirely for Own Account. This Agreement is made
with Investor in reliance upon such Investor's representation to the Company,
which by such Investor's execution of this Agreement such Investor hereby
confirms, that the Stock to be received by such Investor will be acquired for
investment for such Investor's own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and that such
Investor has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, Investor further
represents that such Investor does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities.
3.3 Disclosure of Information. Investor believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Stock. Investor further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Stock.
3.4 Investment Experience. Investor is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Stock. If
other than an individual, Investor also represents it has not been organized
solely for the purpose of acquiring the Stock.
3.5 Restricted Securities. Investor understands that the
shares of Stock it is purchasing are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited circumstances. In
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this connection Investor represents that it is familiar with Securities and
Exchange Commission Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act.
3.6 Legends. It is understood that the certificates evidencing
the Stock may bear one or all of the following legends:
(a) "These securities have not been
registered under the Securities Act of 1933. They may not be sold, offered for
sale, pledged or hypothecated in the absence of a registration statement in
effect with respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or unless
sold pursuant to Rule 144 of such Act."
(b) "These securities are subject to a right
of first refusal and other restrictions on transfer as set forth in the
Company's Bylaws which restrictions are incorporated herein."
(c) Any legend required by the laws of the
State of California or other jurisdiction, including any legend required by the
California Department of Corporations and sections 417 and 418 of the California
Corporations Code.
3.7 Accredited Investor. Investor is an accredited investor as
defined in Rule 501(a) of Regulation D of the SEC under the Securities Act, as
presently in effect.
4. California Commissioner of Corporations.
4.1 Corporate Securities Law. THE SALE OF THE SECURITIES WHICH
ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES
OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO
SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
5. Conditions of Investors' Obligations at Closing. The
obligations of each Investor under subsection 1.1(b) of this Agreement are
subject to the fulfillment on or before the Closing of each of the following
conditions, the waiver of which shall not be effective unless Investor consents
in writing thereto:
5.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2, subject in all cases to the
standard set forth in Section 2(i) shall be true on and as of the Closing with
the same effect as though such representations and warranties had been made on
and as of the date of such Closing (except that representations and warranties
that by their terms speak as of the date of this Agreement or some other date
shall be true and correct as of such date).
5.2 Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing.
5.3 Qualifications. All authorizations, approvals, or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in
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connection with the lawful issuance and sale of the Stock to Investors pursuant
to this Agreement shall be duly obtained and effective as of the Closing.
5.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto, shall be reasonably satisfactory in form and
substance to Investors, and Investors shall have received all such counterpart
original and certified or other copies of such documents as such Investors may
reasonably request.
6. Conditions of the Company's Obligations at Closing. The
obligations of the Company to Investors under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by such
Investors:
6.1 Representations and Warranties. The representations and
warranties of Investors contained in Section 3 hereof shall be true on and as of
the Closing with the same effect as though such representations and warranties
had been made on and as of the Closing.
6.2 Payment of Purchase Price. Investors shall have delivered
the purchase price specified in Section 1.2.
6.3 Qualification. All authorizations, approvals, or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Stock to Investors pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
7. Miscellaneous.
7.1 Survival of Warranties. The warranties, representations
and covenants of the Company contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the Closing for a
period of eighteen (18) months (except for covenants herein which by their terms
extend beyond said period) and shall in no way be affected by any investigation
of the subject matter thereof made by or on behalf of Investors or the Company.
7.2 Successors and Assigns. Except as otherwise provided in
this Agreement, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
7.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, without reference to California conflict of laws provisions.
7.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.4 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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7.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified (or upon
the date of attempted delivery where delivery is refused) or, if sent by
telecopier, telex, telegram, or other facsimile means, upon receipt of
appropriate confirmation of receipt, or five days after deposit with the United
States Postal Service, by registered or certified mail, or one day after deposit
with next day air courier, with postage and fees prepaid and addressed to the
party entitled to such notice at the address indicated for such party on the
signature page hereof, or at such other address as such party may designate by
ten days' advance written notice to the other parties to this Agreement.
7.6 Expenses. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
7.7 Amendments and Waivers. 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
and either retroactively or prospectively), only with the written consent of the
Company. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any securities purchased under this
Agreement at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities, and the
Company; provided, however, that no condition set forth in Section 5 hereof may
be waived with respect to any Investor who does not consent thereto.
7.8 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
7.9 Choice of Forum. Each of the parties hereto by execution
hereof (i) hereby irrevocably submits to the jurisdiction of the federal and
state courts of the State of California located in the County of San Francisco
for the purpose of any action, suit or proceeding arising out of or based upon
this Agreement or the subject matter hereof and (ii) hereby waives to the extent
not prohibited by applicable law, and agrees not to assert, by way of motion, as
a defense or otherwise, in any such action, suit or proceeding, any claim that
it is not subject personally to the jurisdiction of the above-named courts, that
it is immune from extraterritorial injunctive relief or other injunctive relief,
that its property is exempt or immune from attachment or execution, that any
such action, suit or proceeding may not be brought or maintained in one of the
above-named courts, that any such action, suit or proceeding brought or
maintained in one of the above-named courts should be dismissed on grounds of
forum non conveniens, should be transferred to any court other than one of the
above-named courts, should be stayed by virtue of the pendency of any other
action, suit or proceeding in any court other than one of the above-named
courts, or that this agreement or the subject matter hereof may not be enforced
in or by any of the above- named courts.
7.10 Entire Agreement. This Agreement, the Exhibits hereto and
other documents delivered expressly hereby constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and no party shall be liable or bound to any other in any manner by any
representations, warranties, covenants or agreements except as specifically set
forth herein and therein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
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▇▇▇▇▇▇▇ HOLDINGS, INC.
By: ____________________________
Title: _________________________
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▇▇▇▇▇▇▇ HOLDINGS, INC.
STOCK PURCHASE AGREEMENT
COUNTERPART SIGNATURE PAGE
[INVESTOR]
By:_______________________________
[INVESTOR]
By:_______________________________
[INVESTOR]
By:_______________________________
[INVESTOR]
By:_______________________________
[INVESTOR]
By:_______________________________
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