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EXHIBIT 10.1
THIS STOCK PURCHASE AGREEMENT is made as of the 10th day
of March, 2000 by and between Cathel Partners Ltd., a Delaware Corporation with
its principal offices in ▇▇▇▇▇▇▇▇▇▇ Park, New Jersey (the "Company") and HITK
Corporation, a Delaware Corporation with its executive offices in ▇▇▇▇▇▇▇▇▇▇
Park, New Jersey ("Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
Subject to the terms and conditions of this Agreement, Investor agrees to
purchase at the Closing and the Company agrees to sell and issue to Investor at
the Closing a total of 3,000,000 shares of the Company's Common Stock (the
"Shares") for a purchase price of $15,000.00.
1.2 Closing.
The purchase and sale of the Shares shall take place at the offices of the
Company at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ at 4:00 P.M., on
March 11, 2000 or at such other time and place as the Company and Investor
mutually agree (which time and place are designated as the "Closing"). At the
Closing the Company shall deliver to Investor a certificate representing the
Shares and Investor shall deliver to the Company payment of the purchase price
therefor by check, wire transfer, cancellation of indebtedness, or any
combination thereof. In the event that payment by Investor is made, in whole or
in part, by cancellation of indebtedness, then such Investor shall deliver to
the Company for cancellation at the Closing any evidence of such indebtedness or
shall execute an instrument of cancellation in form and substance acceptable.
2. Representations and Warranties of the Company.
The Company hereby represents and warrants to Investor that, except as set
forth in the Schedule A Exceptions (the "Schedule of Exceptions") furnished
Investor which exceptions shall be deemed to be representations and warranties
as if made hereunder:
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 Delaware and has all requisite corporate
power and authority to carry on its business as now conducted.
2.2 Capitalization and Voting Rights.
The authorized capital of the Company consists of 500,000,000 shares of
common stock of which 469,423 shares are issued and outstanding. The outstanding
shares of common stock are all duly and validly authorized and issued, fully
paid and non-assessable, and were issued in accordance with the registration or
qualification provisions of the Securities Act of 1933 (the "Act") and any
relevant state securities laws or pursuant to valid exemptions therefrom.
2.3 Agreements for Issuance of Stock
Except for the proposed granting of not more than 240,000 shares to the
Company's officers, there are not outstanding any options, warrants, rights
(including conversion of preemptive rights) or agreements for the purchase or
acquisition from the Company of any shares of its capital stock. The Company is
not a party or subject to any agreement or understanding, and to the best of the
Company's
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knowledge, there is no agreement or understanding between any person
or entities, which affects or relates to the voting or giving consents with
respect to any security or by a director of the Company.
2.4 Subsidiaries.
The Company does not presently own or control, directly or indirectly, any
interest in any other corporation or other business entity. The Company is not a
participant in any joint venture, partnership, or similar arrangement.
2.5 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 and the performance of all obligations of the Company hereunder and
the authorization, issuance (or reservation for issuance), sale and delivery of
the Shares being sold hereunder has been taken or will be taken prior to the
Closing and this Agreement constitutes a valid and legally binding obligation of
the Company, enforceable in accordance with terms.
2.6 Valid Issuance of Stock.
The Shares that are being purchased by Investor when issued, sold and
delivered in accordance with the terms of this Agreement for the consideration
expressed herein, will be duly and validly issued, fully paid, and
nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and under applicable state and
federal securities laws.
2.7. Offering
Subject in part to the truth and accuracy of Investor's
representations set forth in Section 3 of this Agreement and in the Investment
Letter attached hereto as Exhibit A, the offer, sale and issuance of the Shares
as contemplated by this Agreement are exempt from the registration requirements
of the 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.
2.8 Litigation.
There is no action, suit, proceeding or investigation pending or currently
threatened against the Company that questions the validity of this Agreement or
the right of the Company to enter into such agreements, or to consummate the
transaction contemplated herein, or that might result either individually or in
the aggregate, in any material adverse changes in the assets, equity ownership
of the Company or otherwise nor is the Company aware that there is any basis for
and of the foregoing. The foregoing includes without limitation any actions,
suits, pending or threatened (or any basis therefor known to the Company)
involving the prior employment of any of the Company's employees, their use in
connection with the Company business of any information or techniques, allegedly
proprietary to any of their former employers, or their obligations under any
agreements with prior employers. The Company is not a party or subject to the
provisions of any order, writ, injunction, judgment, or decree of any court or
governmental agency or instrumentality. There is no action, suit, proceeding or
investigation by the Company currently or that the Company intends to initiate.
2.9 Compliance with Other Instruments.
The Company is not in violation or default in any material respect of
any provision of its Certificate of Incorporation or Bylaws or of any contract,
agreement or other instrument. The execution,
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delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby 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 or contract or an
event that results in the creation of any lien, charge or encumbrance upon any
assets of the Company or the suspension, revocation, impairment, forfeiture, or
nonrenewal of my material permit, license, authorization, or approval applicable
to the Company, its business or operations or any of its assets or properties.
2.10 Agreements: Action
Except for agreements explicitly referenced in this Agreement:
(a) There are no agreements, understandings or proposed
transactions between the Company and any of its officers,
directors or affiliates;
(b) There are no agreements, understandings, instruments,
contracts, proposed transactions, judgments, orders, writs or
decrees to which the Company is a party or by which it is
bound that may involve (i) obligations (contingent or
otherwise) of, or payments to the Company in excess of,
$5,000.00 or (ii) the license of any patent, copyright, trade
secret or other proprietary right to or from the Company, or
(iii) provisions restricting or affecting the development,
manufacture. or distribution of the Company's products or
services.
(c) The Company has not declared or paid any dividends or
authorized or incurred any indebtedness for money borrowed or
any other liabilities in the aggregate in excess of
$15,000.00.
2.10 Information Provided Investor
The Company has provided Investor with all information that Investor
has requested for the purpose of making a decision whether to purchase the
Shares and all information that the Company believes is reasonably necessary to
enable Investor to make such decision. To the best of its knowledge, neither
this Agreement nor any other statements or certificates made or delivered in
connection herewith contain any untrue statements of a material fact nor omits
to state a material fact necessary to make the statements contained herein not
misleading.
2.11 Financial Statements.
The Company will deliver to Investor its audited financial statements,
balance sheet and profit and loss statement, statement of stockholders' equity
and statement of cash flows, including notes thereto as of December 31, 1999 and
for the fiscal year then ended (the "Financial Statements"). The Financial
Statements will have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the period
indicated. The Financial Statements will fairly present the financial condition
and operating results of the Company as of the date and for the period indicated
therein. Except as set forth in the Financial Statements, the Company has no
material liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to date of the Financial
Statements and (ii) obligations under contracts and commitments incurred in the
ordinary course of business and not required under generally accepted accounting
principles to he reflected in the Financial Statements, which, in both cases,
individually or in the aggregate, are not material to
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the financial condition or operating results of the Company. Except as disclosed
in the Financial Statements, the Company is not a guarantor or indemnitor of any
indebtedness of any other person, firm or corporation. The Company maintains and
will continue to maintain a standard system of accounting established and
administered in accordance with generally accepted accounting principles. Since
the date of the Financial Statements, there has not been:
(a) any change in the assets, liabilities, financial condition or operating
results of the Company from that reflected in the Financial Statements, except
changes in the ordinary course of business that have not been, in the aggregate,
materially adverse;
(b) any damage, destruction or loss, whether or not covered by insurance,
materially and adversely affecting the assets, properties, financial condition
or operating results of the Company.
2.12 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 that arise in
the ordinary course of business and do not materially impair the Company's
ownership or use of such property or assets. With respect to the property and
assets it leases, the Company is in compliance with such leases and, to the best
of its knowledge holds a valid leasehold interest free of any liens, claims or
encumbrances.
3.0 Representations and Warranties of the Investor.
Investor hereby represents and warrants that:
3.1 Authority
Investor has full power and authority to enter into this Agreement
and such Agreement constitutes its valid and legally binding obligation,
enforceable in accordance with its terms.
3.2 Purchasing Entirely for Own Account.
This Agreement is made with such Investor in reliance upon such Investor's
representation to the Company, which by such Investor's execution of this
Agreement and execution of the Investment Letter attached hereto, such Investor
hereby confirms, that the Shares to be received by Investor will he acquired for
investment for 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 Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, Investor further represents
that Investor does not have any contract, undertaking or other arrangement with
any person to sell, transfer or grant participations to such person or to any
third person with respect to any of the Shares.
3.3 Disclosure of Information.
Investor believes it has received all the information it considers
necessary or appropriate for deciding whether to purchase the Shares. Investor
further represents that it has had an opportunity to ask questions and receive
answers from the Company regarding the business, properties, prospects and
financial condition of the Company and has had access to all of the books and
records of the Company in the Company's possession or under its control. The
foregoing, however, does not limit or modify the representations and warranties
of the Company in Section 2 of this Agreement or the right of the Investor to
rely thereon.
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3.4 lnvestment 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 Shares.
3 5 Restricted Securities.
Investor understands that the Securities 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 Act, only in certain limited
circumstances. In this connection. such Investor represents that it is familiar
with SEC Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Act.
3.6 Further Limitations on Disposition.
Without in any way limiting the representations set forth above, Investor
further agrees not to make any disposition of all or any portion of the
Securities unless and until the transferee has agreed in writing for the benefit
of the Company to be bound by this Section 3 provided and to the extent this
Section and such agreement are then applicable; and
(a) There is then in effect a Registration Statement under the Act covering
such proposed disposition and such disposition is made in accordance with such
Registration Statement; or
(b) (i) Such investor shall have notified the Company of the proposed
disposition and shall have provided the Company with a detailed statement of the
circumstances surrounding the Proposed disposition, and (ii) if reasonably
requested by the Company, such Investor shall have furnished the Company with an
opinion of counsel, reasonably satisfactory to the Company that such disposition
will not require registration of such shares under the Act It is agreed that the
Company will not require opinions of counsel for transactions made pursuant to
Rule 144 except in unusual circumstances.
3.7 Restrictive Legend.
It is understood that the certificates evidencing the Shares may bear the
following or substantially similar legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN PURCHASED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY OTHER
APPLICABLE STATE SECURITIES LAWS. THE SHARES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR PURSUANT TO AN EXEMPTION UNDER SAID ACT
AND/OR UNDER SAID STATE SECURITIES LAWS.
4. Conditions of Investor's Obligations at Closing.
The obligations of Investor under subsection 1.2 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 he effective against Investor who does
not consent in writing thereto:
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4.1 The representations and warranties of the Company contained in
Section 2 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.
4 2 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.
4.3 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 Securities
pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
5.1 Survival of Warranties. The warranties, representations and covenants
of the Company and Investor contained in or made pursuant to this Agreement
shall survive the execution and. delivery of this Agreement and the Closing and
shall in no way be affected by any investigation of the subject matter thereof
made by or on behalf of the Investor or the Company.
5.2 Successors and Assigns. Except as otherwise provided herein, 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 (including
transfers of any Shares). Nothing in this Agreement, express or implied, is
intended to confer upon any ▇▇▇▇▇ other than the patties hereto or their
respective successors and assigns any rights, remedies. obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
5.3 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.
5.4 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New Jersey as applied to agreements among New
Jersey residents entered into and to be performed entirely within New Jersey.
5.5 Captions. The captions used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
5.6 Notice. 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 deposit with
the United States Post Office, by registered or certified mail sent prepaid and
addressed to the ▇▇▇▇▇ to be notified at the address indicated for such ▇▇▇▇▇ on
the signature page hereof. or at such other address as such party may designate
by ten (10) days' advance written notice to the other party.
5.7 Finder's Fee. Each party represents that it neither is nor will be
obligated for any finders' fee or commission in connection with this
transaction. Investor agrees to indemnify and to hold harmless the Company from
any liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability for which such Investor or any of its officers, partners, employees,
or representatives is responsible. The Company agrees to indemnify and hold
harmless Investor from any liability for any commission or compensation in the
nature of a finders' fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Company or any of its officers,
employees or representatives is responsible.
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5.8 Amendment. 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 party being requested to amend or to waive any provision
contained in the Agreement.
5.9 Enforceability 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 the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
5.10 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be liable
or bound to any other ▇▇▇▇▇ in any manner by any warranties, representations, or
covenants except as specifically set forth herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
HITK CORPORATION CATHEL PARTNERS, LTD.
By: /S/ By: /S/
------------------------------ ------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Vice President Its: President
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INVESTMENT LETTER
HITK Corporation ("HITK") represents and warrants pursuant to the
Agreement dated March 10, 2000 by and between Cathel Partners Ltd. ("Cathel" or
the "Company") and HITK (the "Agreement") the following:
(a) HITK is acquiring Cathel Stock (the "Cathel Shares") for its own
account for the purpose of investment, and not with a view to, or for sale in
connection with, any distribution thereof; and
(b) HITK has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of its proposed
investment in the Company and has been a major shareholder of Cathel for more
than ten years and therefore is fully knowledgeable regarding the Company and
its business affairs.
(c) HITK understands and acknowledges that the Cathel Shares to be
delivered to it pursuant to the provisions of the Agreement will be "restricted
securities" within the meaning of the Securities Act of 1933, as amended (the"
'33 Act"), and agrees that the certificates therefore shall bear the following
legend or substantially similar legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN PURCHASED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY OTHER
APPLICABLE STATE SECURITIES LAWS. THE SHARES MAY NOT SE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR PURSUANT TO AN EXEMPTION UNDER SAID ACT
AND/OR UNDER SAID STATE SECURITIES LAWS.
(d) HITK understands and acknowledges that the Cathel Shares to be
delivered pursuant to the provisions of the Agreement will not be registered
under the 1933 Act and, accordingly, HITK recognizes that it may be required to
bear the economic risk of its investment until such shares are registered. HITK
agrees on behalf of itself, and its successors and assigns, that it will only
sell, transfer, pledge or hypothecate any of the Cathel Shares to be acquired by
it pursuant to an effective registration statement under the '33 Act or in a
transaction wherein registration under the '33 Act is not required. HITK
understands that Cathel has no obligation to register the Cathel Shares under
the '33 Act.
HITK CORPORATION
__________/s/________________________
By: ▇▇▇▇ ▇▇▇▇▇▇
Its: Vice President