Exhibit 10.1
MICROISLET, INC.
A NEVADA CORPORATION
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") dated as of August 28,
2003 is entered into between MicroIslet, Inc., a Nevada corporation (the
"Company") and Investment Design Concepts (the "Purchaser").
1. PURCHASE. Subject to the terms and conditions of this Agreement, the
Purchaser hereby agrees to purchase and the Company hereby agrees to sell and
issue nine hundred seven thousand (907,000) shares of Common Stock of the
Company (the "Shares" or the "Securities") at fifty cents ($0.50) per Share, for
an aggregate purchase price of four hundred fifty-three thousand five hundred
dollars ($453,500) (the "Purchase Price").
2. CLOSING. The closing of the sale and purchase of the Securities
under this Agreement (the "Closing") shall take place at such time and place as
the Company and Purchaser may mutually agree.
3. DELIVERIES. At the Closing, subject to the terms and conditions
hereof, the Company will deliver to Purchaser a certificate representing the
number of Shares to be purchased, and Purchaser will deliver to the Company
payment of the Purchase Price in immediately available funds to a bank account
to be designated by the Company.
4. INFORMATION. The Purchaser has been furnished with and has been
given the opportunity to review all information regarding the Company which it
has requested and which it deemed necessary for an investment in the Company.
Without limiting the generality of the foregoing, the Purchaser has been given
access to and has reviewed the following documents:
(a) The Company's Registration Statement on Form SB-2 declared
effective by Securities Exchange Commission (the "SEC") on April 23, 2003 (the
"Form SB-2");
(b) The Company's Quarterly Report on Form 10-QSB for the
quarter ended March 31, 2003 (the "March 10-QSB");
(c) The Company's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 2003 (the "June 10-QSB"); and
(d) The Company's Current Report on Form 8-K dated May 13,
2003 (the "Form 8-K").
The Purchaser is aware that all of the Company's material public filings with
the SEC since November 14, 2001 are available via the Internet through the web
site maintained by the SEC at
▇▇▇.▇▇▇.▇▇▇. The Purchaser understands that: (i) the Form SB-2 and the
prospectus therein do not apply to the offer or sale of the Securities, and are
provided for information only, (ii) no federal or state agency has passed upon
the Securities or has made any finding or determination concerning the fairness
or value of the Securities, and (iii) the books and records of the Company are
and will continue to be available for inspection by the Purchaser, and any
purchaser representative of the Purchaser, at the Company's address listed
above.
5. ILLIQUIDITY OF INVESTMENT; SECURITIES LAWS. The Purchaser
understands that the Securities are not a liquid investment. In particular, the
Purchaser understands and acknowledges that:
(a) The offering and proposed sale of Securities herein have
not been registered or qualified under the Securities Act of 1933, as
amended (the "Act") nor under the securities laws of California or any
other state. This offering has not been reviewed by the SEC nor has the
SEC or any state securities commission or regulatory authority
approved, passed upon or endorsed the merits of this offering. The
offering and proposed sale of the Securities herein is being made in
reliance upon certain securities exemptions, including (i) SEC
Regulation D, Rule 506, promulgated under Section 4(2) of the Act, and
(ii) the exemption set forth in Section 25102(f) of the California
Corporate Securities Law of 1968, as amended, and the regulations
promulgated thereunder.
(b) It is believed that the offering and proposed sale of the
Securities currently qualifies and will continue to qualify under each
such claimed exemption. Because the availability of these exemptions is
based upon subjective factors, however, and because the criteria for
exemption are subject to interpretation by state or federal regulatory
agencies and courts, there is no assurance that such exemptions will be
available. If and to the extent that suits for rescission are brought
for failure to register this offering or for acts or omissions
constituting offenses under the Act or the securities laws of any
state, the capital and financial condition of the Company could be
adversely affected. In addition, the Company could be adversely
affected by need to defend any such private or governmental action even
where the Company ultimately is exonerated.
(c) The Purchaser will have no right to require registration
of the Securities offered and sold hereby under the Act, other than as
set forth in Section 10 below.
(d) The Purchaser's right to transfer the Securities offered
and sold hereby will be restricted. These restrictions will require the
Purchaser to hold the Securities indefinitely, unless the Securities
are subsequently registered under the Act and qualified or registered
under other applicable state laws, or unless an exemption from such
qualification or registration is available and confirmed by an opinion
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of counsel acceptable to the Company. After periods of time described
below, there may, but will not necessarily be, an exemption available
under Section 4(1) of the Act in accordance with SEC Rule 144. As of
the date of Agreement, Rule 144 allows for limited sales of restricted
securities pursuant to Section 4(1) of the Act after the securities
have been held for one year, provided certain conditions are satisfied,
including availability of public information about the issuer,
restrictions on the amount of securities sold within a three month
period, restrictions on the manner of sale, and the filing of a notice
with the SEC. Rule 144 currently provides that the foregoing
restrictions do not apply to a person who has held securities for two
years and who not been an "affiliate" of the issuer during the three
months preceding the sale. The term "affiliate" is defined in Rule 144
as a person who directly or indirectly controls, is controlled by or is
under common control with the issuer. Executive officers, directors and
persons who directly or indirectly own or control over 10% of the stock
of an issuer are often deemed to be affiliates. The Company is under no
obligation to take steps to ensure the availability of Rule 144, and
the Purchaser should not assume that the Securities may be resold at
any particular time in the future.
6. REPRESENTATIONS AND WARRANTIES. The Purchaser hereby represents and
warrants as follows (INITIAL EACH ONE):
(a) _______ The Purchaser confirms that all
documents, records, and books pertaining to the
investment in the Company and its proposed business,
including without limitation the Form SB-2, the March
10-QSB, the June 10-QSB and Form 8-K, have been made
available to the Purchaser for review.
(b) _______ The Purchaser, or the
representatives or advisors of the Purchaser, have
had the opportunity to ask questions of and receive
answers from the officers of the Company, or persons
acting on its behalf, concerning the terms and
conditions of this investment, and all such questions
have been answered to the full satisfaction of the
Purchaser or the representatives or advisors of the
Purchaser.
(c) _______ The Purchaser has not been
presented with or solicited by any leaflet, public
promotional meeting, circular, newspaper or magazine
article, radio, television or internet advertisement,
or any other form of advertising concerning the
Securities or the Company.
(d) _______ The Purchaser has received no
representations or warranties from the Company, or
from any directors, officers, agents, or employees of
the Company, and in purchasing the Securities, the
Purchaser is relying solely on the investigations
made by the Purchaser.
(e) ______ The Purchaser acknowledges that
neither the SEC nor any other state or federal agency
has made any determination as to the merits of
purchasing the Securities or as to the value of the
Securities, and that the purchase of the Securities
involves a high degree of risk.
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(f) ______ The Purchaser is acquiring the
Securities for investment and for the Purchaser's own
account or in the capacity set forth on the signature
page hereof, and not with a view to any distribution
thereof.
(g) _______ The Purchaser understands that
the Securities must be held indefinitely unless
subsequently registered under the Act and qualified
or registered under other applicable state laws
(which is highly unlikely) or unless an exemption
from such qualification or registration is available.
The Purchaser agrees that a notation of these
restrictions shall be placed upon the Securities and
in the appropriate records of the Company. The
Purchaser understands that the Company has made no
commitment to take actions to register the Securities
or to make available the safe harbor of SEC Rule 144.
(h) _______ The Purchaser understands the
risks and other considerations related to the
purchase by the Purchaser of the Securities,
including without limitation the risk factors set
forth in the Form SB-2 and the June 10-QSB under the
heading "Risk Factors," and the Purchaser has such
knowledge and experience in financial and business
matters that the Purchaser (alone or with the aid of
the investment advisors of the Purchaser) is capable
of evaluating the merits and risks of purchasing the
Securities.
(i) _______ The Purchaser has consulted with
and relied entirely on the Purchaser's business,
financial, and tax advisors in purchasing the
Securities and in evaluating the merits and risks of
an investment in the Company.
(j) _______ The Purchaser understands that
Regulation D under the Act defines an "accredited
investor" as any person coming within any of the
following categories:
i. Any director or executive
officer of the Company;
ii. Any natural person whose
individual net worth, or joint net worth
with the person's spouse, at the time of his
purchase exceeds $1,000,000;
iii. Any natural person who had an
individual income in excess of $200,000 in
each of the two most recent years or joint
income with that person's spouse in excess
of $300,000 in each of those years, and who
has a reasonable expectation of reaching the
same income level in the current year;
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iv. A revocable trust, the grantor
of which qualifies under (ii) or (iii)
above; or
v. Any entity in which all
of the equity owners are accredited
investors.
(k) The Purchaser hereby represents to the
Company that the Purchaser is an "accredited
investor" within the meaning of Regulation D, and is
included within the following accredited investor
category or categories defined above [INITIAL THE
APPLICABLE CATEGORY]:
(i) _____
(ii) _____
(iii) _____
(iv) _____
(v) _____
(None) _____
If the Purchaser belongs to accredited investor category "(v)" only, a
list of the shareholders, partners or beneficiaries of the Purchaser,
and the "accredited investor" category which each such shareholder,
partner or beneficiary satisfies, is attached to this Agreement.
(l) _______ If the Purchaser has initialed
category (ii) of Section 6(k) above, the Purchaser
acknowledges that the term "net worth" means the
excess of total assets over total liabilities. In
computing net worth for the purposes of category (v)
above, the Purchaser's principal residence must be
valued either at (A) cost, including the cost of
improvements, net of current encumbrances upon the
property or (B) the appraised value of the property
as determined upon a written appraisal used by an
institutional lender making a loan to the individual
secured by the property, including the cost of
subsequent improvements, net of current encumbrances
upon the property. In determining income, the
Purchaser should add to the Purchaser's adjusted
gross income any amounts attributable to tax exempt
income received, losses claimed as a limited partner
in any limited partnership, deductions claimed for
depletion, contributions to an ▇▇▇ or ▇▇▇▇▇
retirement plan, alimony payments, and any amount by
which income from long-term capital gains has been
reduced in arriving at adjusted gross income.
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(m) _______ The Purchaser (jointly with
spouse) has a net worth inclusive of his residence
of:
[ ] More than $500,000
[ ] More than $1,000,000
[ ] More than $2,000,000
(n) _______ The Purchaser is able to bear
the economic risk of an investment in the Company,
has the ability to hold the Securities indefinitely,
the Purchaser's overall commitment to investments
which are not readily marketable (such as the
Securities) is not disproportionate to the
Purchaser's net worth, and the Purchaser has the
financial ability to suffer a complete loss of the
Purchaser's investment in the Securities.
(o) _______ The Purchaser has all requisite
power, authority, and capacity to purchase and hold
the Securities and to execute, deliver, and comply
with the terms of this Agreement, and such execution,
delivery, and compliance does not conflict with or
constitute a default under any instruments governing
the Purchaser, any law, regulation, or order, or any
agreement to which the Purchaser is a party or by
which the Purchaser may be bound.
(p) _______ The Purchaser understands the
meaning and legal consequences of the
representations, warranties, covenants, and other
agreements contained in this Agreement, and the
Purchaser understands that the Company has relied
upon such representations, warranties, covenants, and
agreements, including those with respect to
compliance with applicable securities laws, rules,
and regulations, and the Purchaser hereby agrees to
indemnify and hold harmless the Company and its
respective directors, officers, agents, attorneys,
and employees, from and against any and all loss,
damage, or liability, together with all costs and
expenses (including attorneys' fees and
disbursements), which any of them may incur by reason
of (i) any breach of the representations, warranties,
covenants, or agreements of the Purchaser contained
in this Agreement executed by the Purchaser, or (ii)
any false, misleading, incomplete, or inaccurate
information contained in this Agreement executed by
the Purchaser. All representations, warranties, and
covenants contained in this Agreement, and the
indemnification contained in this Section, shall
survive the acceptance of this Agreement.
(q) _______ The Purchaser further represents
and warrants the following information for the
purpose of assisting the Company in its evaluation of
the suitability of the Purchaser of an investment in
the Company. If there should be any material change
in any of the following information prior to the
Closing, the Purchaser agrees to immediately furnish
in writing to the Company accurate and complete
information concerning such change.
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(r) _______ The Purchaser understands that
the Company will require substantially more capital
than the amount raised in this offering in order to
complete the steps necessary to bring any products to
market and generate revenues. The Purchaser
acknowledges that these matters are discussed in more
detail in the Form SB-2 under the heading "Plan of
Operation." The Company has no current commitment for
such additional capital, and funds may not be
available on terms and conditions acceptable to the
Company, or at all. The Purchaser understands that
any additional capital raised by the Company may be
on terms similar to or different from the terms of
this offering, and such terms may be more or less
favorable to investors than the terms of this
offering.
(s) If Purchaser is an entity, Purchaser
represents that it was not formed for the sole
purpose of making an investment in the Shares.
THE PURCHASER HEREBY SWEARS AND AFFIRMS THAT THE REPRESENTATIONS AND
STATEMENTS OF THE PURCHASER CONTAINED HEREIN ARE TRUE AND ACCURATE.
7. CONDITIONS TO CLOSING.
(a) The obligation of Purchaser to purchase the Securities is
subject to the satisfaction, on or prior to the Closing, of the following
conditions:
(i) The Company shall have performed all obligations
and conditions herein required to be performed or observed by it on or prior to
the Closing; and
(ii) The Company shall have obtained any and all
consents, permits and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement (except for such as may be properly
obtained subsequent to the Closing).
(b) The obligation of the Company to sell the Securities is
subject to the satisfaction, on or prior to the Closing, of the following
conditions:
(i) The representations and warranties of Purchaser
contained in Section 6, shall be true on and as of the Closing with the same
effect as though such representations and warranties have been made on and as of
the Closing; and Purchaser shall have performed and complied with all agreements
and conditions herein required to be performed or complied with by Purchaser on
or before the Closing; and
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(ii) Purchaser shall have obtained any and all
consents, permits and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement (except for such as may be properly
obtained subsequent to the Closing).
8. USE OF PROCEEDS. The proceeds from the transactions contemplated by
the Agreement will be used for working capital.
9. BROKER'S FEES. Each party hereto represents and warrants that,
except for a commission of 11% payable to ASA Investment Company, no agent,
broker, investment banker, person or firm acting on behalf of or under the
authority of such party hereto is or will be entitled to any other broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein. Each party hereto further agrees to
indemnify each other party for any claims, losses or expenses incurred by such
other party as a result of the representation in this Section 9 being untrue.
10. REGISTRATION RIGHTS.
(a) Within thirty (30) days after the Closing, the
Company shall use commercially reasonable efforts to file a Registration
Statement under the Act (the "Registration Statement") with the SEC covering the
registration of the Shares. In the event the Registration Statement is not filed
within such thirty (30) day period, the Company shall issue to the Purchaser
3,334 additional shares of the Company's common stock for each day after such
thirty (30) day period prior to the date of filing of the Registration
Statement. The Company shall issue the Purchaser such additional shares
immediately prior to the filing of the Registration Statement, or such earlier
date as specified in the next paragraph.
(b) In the event that the Company has not filed the
Registration Statement within sixty (60) days after the Closing, the Purchaser
may rescind its purchase of the Shares pursuant to this Agreement by delivering
written notice to the Company of rescission, together with all original
certificate(s) issued to the Purchaser for the Shares, duly endorsed for
transfer to the Company. The rescission shall not be effective if the Company
has filed the Registration Statement prior to its receipt of both such written
notice and the original certificate(s) described above, duly endorsed for
transfer to the Company. Upon such rescission, the Company shall return the
Purchase Price to the Purchaser without interest, and shall issue to the
Purchaser number of shares to which the Purchaser would be entitled under
paragraph (a) above if the Registration Statement had been filed on the
effective date of the Purchaser's rescission.
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(c) The provisions of this Section 10 shall be the
sole and exclusive remedies of the Purchaser for the Company's failure to file
the Registration Statement within the time frames set forth above, or otherwise
with respect to the registration of the Shares.
(d) The Company may require Purchaser to furnish to
the Company a certified statement as to the number of Shares beneficially owned
by Purchaser and the natural person or persons who has or have voting and
dispositive control over the Shares held by Purchaser, within three business
days of the Company's request. During any periods that the Company is unable to
meet its obligations hereunder with respect to the registration of the Shares
because the Purchaser has failed to furnish such information within three
business days of the Company's request, any additional shares to be issued to
Purchaser in accordance with paragraph (a) above that are accruing at such time
shall be tolled and the obligation to issue such shares shall be suspended,
until such information is delivered to the Company, and the sixty (60) day
period set forth in paragraph (b) above shall be tolled by one day for each day
that the Purchaser has not furnished such information, beginning with such third
business day.
11. GOVERNING LAW. This Agreement is made in San Diego, California and
it shall be construed in accordance with and governed in all respects by the
laws of the State of California.
12. CORPORATE SECURITIES LAW. THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), NOR HAVE THEY BEEN
QUALIFIED UNDER CALIFORNIA OR ANY OTHER STATE SECURITIES LAWS, RULES, OR
REGULATIONS, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION UNDER THE ACT AND QUALIFICATION OR REGISTRATION UNDER OTHER
APPLICABLE SECURITIES LAWS, RULES, AND REGULATIONS, OR AN OPINION OF COUNSEL
ACCEPTABLE TO THE CORPORATION THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED.
13. 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 and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Securities from time to time.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof.
16. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
or waived only with the written consent of the Company and the Purchaser.
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17. NOTICES. Any notice required or authorized to be given hereunder or
any other communications between the parties provided for under the terms of
this Agreement shall be in writing and shall be served personally, or by
reputable express courier service, or by facsimile transmission addressed to the
relevant party at the address stated below or at any other address provided by
that party to the other as its address for service. Any notice so given
personally shall be deemed to have been served on delivery, any notice so given
by express courier service shall be deemed to have been served two (2) business
days after the same shall have been delivered to the relevant courier, and any
notice so given by facsimile transmission shall be deemed to have been received
on dispatch. In proving such service, it shall be sufficient to produce the
receipt of a reputable courier company showing the correct address of the
addressee or prove that the facsimile transmission was followed by an activity
report showing the correct facsimile number of the party on whom notice is
served and the correct number of pages transmitted.
IN WITNESS WHEREOF, the parties hereto have executed the STOCK PURCHASE
AGREEMENT as of the date first above written.
COMPANY: PURCHASER:
MicroIslet, Inc., a [__________________________________]
Nevada corporation
By:
By: Printed Name:
Printed Name: Its:
Its:
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Address:_______________________
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ _____________________________
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