REGULATION S RESTRICTED STOCK PURCHASE AGREEMENT Dated: May 15, 2008
Exhibit 10.1
REGULATION
S
Dated:
May 15, 2008
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TABLE
OF CONTENTS
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| ARTICLE I. PURCHASE, SALE AND TERMS OF SHARES |
1
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| 1.1 | The Shares |
1
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| 1.2 | The Warrants |
1
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| 1.3 | Purchase and Sale |
2
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| 1.4 | Closing and Closing Agreements |
2
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| ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER |
2
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| 2.1 | Representations by the Purchaser |
2
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| ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
5
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| 3.1 | Organization and Standing of the Company |
5
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| 3.2 | Issuance of Shares |
6
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| 3.3 | Corporate Action |
6
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| 3.4 | Compliance with Material Documents |
6
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| 3.5 | No Orders |
6
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| 3.6 | Governmental Approvals |
6
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| 3.7 | No Solicitation |
6
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| 3.8 | Intellectual Property |
6
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| 3.9 | Litigation |
7
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| 3.10 | Authorized and Issued Capital |
7
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| 3.11 | Binding Agreements |
7
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| ARTICLE IV. COVENANTS OF THE COMPANY |
7
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| 4.1 | Board and Management Representation |
7
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| 4.2 | Set Aside Cash |
7
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| 4.3 | Registration Rights |
7
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| 4.4 | Nasdaq Listing |
7
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| 4.5 | Commercial Agreements |
8
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| 4.6 | Management Agreements |
8
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| 4.7 | Shareholder Agreements |
8
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| 4.8 | Exclusivity |
8
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| ARTICLE V. CONDITIONS TO THE CLOSING |
8
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| 5.1 | Conditions to the Obligations of Purchaser at the Closing |
8
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| 5.2 | Conditions to the Obligations of Company at the Closing |
9
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| ARTICLE VI. TERMINATION |
9
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| ARTICLE VII. CLOSING |
10
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| 7.1 | Obligations of the Company at Closing |
10
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| 7.2 | Obligations of the Purchaser at Closing |
10
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| ARTICLE VIII. INDEMNIFICATION |
10
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| 8.1 | Indemnification |
10
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| 8.2 | Indemnification Procedures; Third Party Claims |
10
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| ARTICLE IX. MISCELLANEOUS |
11
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9.1
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No
Waiver; Cumulative
Remedies
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11
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9.2
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Amendments;
Waivers and
Consents
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11
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9.3
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Addresses
for
Notices
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11
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9.4
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Costs;
Expenses and
Taxes
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12
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9.5
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Effectiveness;
Binding Effect;
Assignment
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12
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9.6
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Survival
of Representations and
Warranties
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12
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9.7
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Prior
Agreements
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12
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9.8
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Severability
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12
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9.9
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Governing
Law;
Venue
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12
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9.10
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Headings
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13
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9.11
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Counterparts
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13
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9.12
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Further
Assurances
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13
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ii
REG
S STOCK PURCHASE AGREEMENT
Stock
Purchase Agreement, dated as of May 15, 2008.
BETWEEN:
MY
SCREEN MOBILE, INC., a Delaware corporation having an office at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the
"Company")
AND:
WEATHER
INVESTMENTS S.P.A, a corporation having a registered address at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇
(the
"Purchaser")
WHEREAS
the Purchaser (directly or indirectly through an affiliated company)
wishes to purchase from the Company, and the Company is willing to sell to the
Purchaser 12,500,000 shares (the "Shares") of the outstanding common stock, par
value $0.001 per share, of the Company and issue share purchase warrants to the
Purchaser to acquire up to 20,000,000 Shares of the Company (the "Warrants"), in
consideration for the Purchase Price (as herein defined), subject to the terms
and conditions contained in this Agreement;
AND
WHEREAS all references herein to the Purchaser shall mean the Purchaser
or a company affiliated with or controlled by the Purchaser, directly or
indirectly;
NOW
THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
ARTICLE
I.
PURCHASE,
SALE AND TERMS OF SHARES
1.1 The
Shares. In consideration of and in express reliance upon the
representations, warranties,
covenants, terms and conditions of this agreement, the Company agrees to sell to
the Purchaser in an offshore transaction negotiated outside the United States
12,500,000 Shares of its common stock and to issue Warrants to the Purchaser as
set forth in Section 1.1.A below, for a total purchase price of US$10,000,000
(the "Purchase Price"). The Purchaser understands and agrees that the Company in
its sole discretion reserves the right to accept or reject this subscription for
the Shares and to issue the related Warrants, in whole or in part, prior to
receipt
by the
Company of the Purchase Price, or any applicable portion thereof, as set forth
in Section 1.2.
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1.2 The
Warrants. In consideration of the purchase of the Shares by the
Purchaser,the
Company agrees to issue Warrants to the Purchaser to purchase up to 20,000,000
Shares of the Company (the "Warrant Shares") exercisable at a price of US$2.00
per share until May 23, 2012 in accordance with the terms of a Warrant
certificate in substantially the form attached as Schedule A
hereto.
1.3 Purchase
and Sale. On the Closing Date (as defined herein), in accordance with
Section
1.4 hereof, the Company shall sell, assign, transfer, convey and deliver the
Shares and Warrants to the Purchaser and the Purchaser shall deliver to the
Company the Purchase Price in full by wire transfer of immediately available
U.S. funds.
1.4 Closing
and Closing Agreements. The closing of the purchase and sale of the
Shares as
contemplated herein shall take place at 9:00 a.m. (EDT) on May 23, 2008 at the
offices of counsel for the Purchaser in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, or at such
other date or time or place as may be agreed to by the parties in
writing.
ARTICLE
II.
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
2.1 Representations
by the Purchaser. In order to induce the Company to enter into
this
Agreement and sell the Shares and issue the Warrants to the Purchaser, the
Purchaser makes the following representations and warranties to the Company,
which representations and warranties are true and correct as of the date hereof
and shall be true and correct as of the Closing Date:
(a) Access
to Information. The Purchaser, in making the decision to purchase the
Shares, has relied solely upon independent investigations made by the Purchaser
and/or its representatives, if any. The Purchaser and/or its representatives
during the course of this transaction, and prior to the purchase of any Shares,
has had the opportunity to ask questions of and receive answers from Company
concerning the terms and conditions of the purchase of the Shares and to review
any additional public information, documents, records and books relative to the
business and the operations of the Company.
(b) Sophistication
and Knowledge. The Purchaser has sufficient knowledge and experience in
financial and business matters that it can represent itself and is capable of
evaluating the merits and risks of the purchase of the Shares. The Purchaser is
not relying on the Company with respect to the tax and other economic
considerations of an investment in the Shares, and the Purchaser has relied on
the advice of, or has consulted with, only the Purchaser's own advisor(s). The
Purchaser represents that it has not been organized for the purpose of acquiring
the Shares. Purchaser understands that its investment in the Shares is extremely
speculative and involves a high degree of risk. Purchaser is ABLE TO BEAR THE
ECONOMIC RISK OF THIS INVESTMENT WITH FULL UNDERSTANDING THAT IT MAY LOSE ITS
ENTIRE INVESTMENT.
(c) Lack
of Liquidity. The Purchaser, after carefully reviewing the merits and
risks of an investment in the Shares, acknowledges that the purchase of the
Shares involves a high degree of risk and further acknowledges that it can bear
the economic risk of the purchase of the Shares, including the total loss of its
investment. The Purchaser has no present need for liquidity in connection with
its purchase of the Shares.
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(d) No
Public Solicitation. The Purchaser is not subscribing for the Shares as a
result of any "directed selling efforts", as such term is defined in Rule 902 of
Regulation S ("Regulation S") under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), in the United States by the Company or any of its
affiliates or any person acting on its behalf.
(e) Authority.
The Purchaser has the requisite power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby,
including, without limitation, making an investment in the Company. The
execution, delivery and performance of this Agreement by the Purchaser has been
duly authorized by all necessary corporate action on the part of the Purchaser
and the execution, delivery and performance of this Agreement by the Purchaser
and the consummation of the transactions contemplated hereby do not and will not
violate or conflict with any provision of the Purchaser's charter and other
governing documents to or by which the Purchaser is a party or bound. This
Agreement, when executed and delivered, constitutes the legal, valid and binding
obligations of the Purchaser, enforceable against the Purchaser in accordance
with its terms.
(f) Regulation
S Exemption. The Purchaser expressly agrees and acknowledges that the
Shares are being offered and sold to it in reliance on an exemption from the
registration requirements of United States federal and state securities laws
under Regulation S promulgated under the Securities Act and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set forth herein
in order to determine the applicability of such exemptions and the suitability
of the Purchaser to acquire the Shares. In this regard, the Purchaser
represents, warrants and agrees that:
(i) The
Purchaser will not resell, transfer or otherwise dispose of any of the Shares,
unless they are registered under the Securities Act and in accordance with
applicable foreign securities laws, or unless they are resold in an "offshore
transaction" (as defined in Rule 902 of Regulation S) in accordance with the
exemption from registration under U.S. securities laws provided by Regulation S
and no directed selling efforts are made in the United States by the Purchaser
or any of its affiliates or any person acting on its behalf in connection
therewith, or pursuant to another available exemption under U.S. federal and
state securities laws.
(ii) The
Purchaser is not a U.S. Person (as defined below), is not an affiliate (as
defined in Rule 501(b) under the Securities Act) of the Company and is not
acquiring the Shares for the account or benefit of a U.S. Person. For purposes
hereof, a "U.S. Person" means any one of the following:
(A) Any
U.S. citizen;
(B) Any
natural person resident in the United States of America;
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(C) Any
partnership or corporation organized or incorporated under the laws of the
United States of America;
(D) Any
estate of which any executor or administrator is a U.S. person;
(E) Any
trust of which any trustee is a U.S. person;
(F) Any
agency or branch of a foreign entity located in the United States of
America;
(G) Any
non-discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a U.S.
person;
(H) Any
discretionary account or similar account (other than an estate or trust) held by
a dealer or other fiduciary organized, incorporated or (if an individual)
resident in the United States of America; and
(I) Any
partnership or corporation if:
(1) organized
or incorporated under the laws of any foreign jurisdiction; and
(2) formed
by a U.S. person principally for the purpose of investing in securities not
registered under the Securities Act, unless it is organized or incorporated, and
owned, by accredited investors (as defined in Rule 501(a) under the Securities
Act) who are not natural persons, estates or trusts.
(iii) At
the time of the origination of contact between the parties concerning the Shares
and this Agreement and the date of the execution and delivery of this Agreement,
the Purchaser was outside of the United States.
(iv) The
Purchaser will not, during the period commencing on the date of the sale of the
Shares and ending on the one (1) year anniversary of such date, or such shorter
period as may be permitted by Regulation S or other applicable securities law
(the "Restricted Period"), offer, sell, pledge or otherwise transfer the Shares
in the United States, or to a U.S. Person for the account or benefit of a U.S.
Person, except in compliance with the Securities Act.
(v) The
Purchaser may, after expiration of the Restricted Period, offer, sell, pledge or
otherwise transfer the Shares to a U.S. Person or person in the United States
only pursuant to registration under the Securities Act or an available exemption
therefrom, and in accordance with the Securities Act and all applicable state
and foreign securities laws.
(vi) The
Purchaser has not in the United States, engaged in, and prior to the expiration
of the Restricted Period will not engage in, any short selling of or any hedging
transaction with respect to the Shares, including without limitation, any put,
call or other option transaction, option writing or equity swap.
4
(vii) The
transactions contemplated by this Agreement have not been pre-arranged by the
Purchaser with another buyer located in the United States or with a U.S. Person,
and are not part of a plan or scheme to evade the registration requirements of
the Securities Act.
(viii) The
Shares have not been registered under the Securities Act and may not be offered
or sold in the U.S. or to a U.S. Person unless registered or an exemption from
registration under the Securities Act is available. Each certificate
representing the Shares shall be endorsed with the following
legends:
"THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR UNDER THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY
PURCHASING
SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY: (A) TO THE COMPANY, (B) OUTSIDE
THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT; OR (C) WITHIN THE UNITED STATES IN ACCORDANCE WITH AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT, INCLUDING THE EXEMPTION PROVIDED BY
RULE 144 THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS".
and any
other legend deemed by the Company to be required to be placed thereon in order
to comply with applicable federal, state and other securities laws.
(ix) The
Purchaser consents to the Company making a notation on its records or giving
instructions to any transfer agent of the Company in order to implement the
restrictions on transfer of the Shares set forth in this Section
2.1.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
In order
to induce the Purchaser to enter into this Agreement and purchase the Shares,
the Company makes the following representations and warranties, which
representations and warranties are true and correct as of the date hereof and
shall be true and correct as of the Closing Date:
3.1 Organization
and Standing of the Company. The Company is a duly organized and
validly existing corporation in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority for the ownership
and operation of its properties and for the carrying on of its business as now
conducted and as now proposed to be conducted and the Company has power and
authority to execute and deliver this Agreement, to sell and deliver the Shares
and Warrants and Warrant Shares and to perform its other obligations pursuant
hereto. The Company is duly licensed or qualified and in good standing as a
foreign corporation authorized to do business in all jurisdictions wherein the
character of the property owned or leased or the nature of the activities
conducted by it makes such licensing or qualification necessary, except where
the failure to be so licensed or qualified would not have a material adverse
effect on the business, operations or financial condition of the
Company.
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3.2 Issuance
of Shares. Upon payment of the Purchase Price, the Shares and
Warrants
issuable to the Purchaser at the Closing, and upon exercise of the Warrants in
accordance with the terms thereof, the Warrant Shares issuable to the Purchaser,
when issued and delivered in accordance with the terms and provisions of this
Agreement, will be (a) duly authorized and validly issued, fully paid and
non-assessable, (b) except as otherwise provided in this Agreement (including,
without limitation, the restrictions on transfer imposed under the Securities
Act), free and clear of any liens, charges, restrictions, claims and
encumbrances imposed by or through the Company, and (c) issued in compliance
with all applicable federal and state securities laws. The Company will reserve
sufficient Warrant Shares to issue to the Purchaser pursuant to the exercise of
the Warrants.
3.3 Corporate
Action. This Agreement has been duly authorized, executed and
delivered
by the Company and constitutes the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with its terms. The sale
and delivery of the Shares and Warrants and Warrant Shares has been duly
authorized by all required corporate action on the part of the Company and its
shareholders.
3.4 Compliance
with Material Documents. The creation, issuance and sale of the
Shares
and Warrants and Warrant Shares by the Company does not and will not conflict
with and does not and will not result in a breach of any of the terms,
conditions or provisions of its constating documents or any agreement or
instrument to which the Company is a party.
3.5 No
Orders. No order ceasing or suspending trading in the securities of the
Company
nor prohibiting sale of such securities has been issued to or against the
Company or its directors, officers or promoters and to the best of the Company's
knowledge no investigations or proceedings for such purposes are pending or
threatened.
3.6 Governmental
Approvals. No authorization, consent, approval, license, exemption
of or filing or registration with any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, is or
will be necessary for, or in connection with, the execution and delivery by the
Company of this Agreement, for the offer, sale, execution or delivery of the
Shares or Warrants or Warrant Shares, or for the performance by the Company of
its obligations under this Agreement except for any filings required by
applicable securities laws or as otherwise provided herein.
3.7 No
Solicitation. Neither the Company, its affiliates nor any person acting
on its behalf
has engaged in any "directed selling efforts" in the United States with respect
to the Shares that could reasonably be expected to have the effect of
conditioning the market in the United States for any of the securities
contemplated hereby, including placing an advertisement in a publication with a
general circulation in the United States that refers to the offering of the
securities being made hereunder in reliance upon Regulation S.
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3.8 Intellectual
Property. ▇▇▇▇ ▇▇▇▇▇ has filed patent applications in Canada, USA
and WIPO
entitled System and Method of Mobile Device Advertising in 2007. ▇▇. ▇▇▇▇▇ sold
the intellectual property rights related to the patent applications to the
Company in June 2007 and the Company is the owner of such intellectual property
free and clear of any encumbrances. The Company has not received and is not
aware of any challenges, oppositions, protests or other actions taken by any
third parties against the patent applications.
3.9 Litigation.
There are no lawsuits or pending litigation against the Company and none is
threatened or contemplated, to the knowledge of the Company.
3.10
Authorized
and Issued Capital. The Company has 200,000,000 authorized shares of
capitalization and has issued capital of 109,071,526 shares as of the date
hereof.
3.11
Binding
Agreements. The Company has no binding obligations or agreements that
commit the Company to any financial obligations above $100,000.
ARTICLE
IV.
COVENANTS
OF THE COMPANY
The
Company hereby covenants and agrees as follows:
4.1 Board
and Management Representation. The Company covenants and agrees to
appoint
at least two representatives of the Purchaser to the Board of Directors of the
Company at or prior to Closing such that the Purchaser representatives on the
Board of Directors of the Company reflect a minimum of 33% of the total number
of the Board Members of the Company at the time of Closing. In addition, the
Company covenants and agreements to appoint a Chief Financial Officer of the
Company as instructed by the Purchaser at or prior to Closing.
4.2 Set
Aside Cash. The Company covenants and agrees to set aside US$3 million at
Closing
in a separate bank account, in accordance with the terms of an Escrow Agreement
to be entered into by the parties at or prior to Closing, to fund agreed upon
technical expenditures as set out in Schedule B hereto. The set aside bank
account will have signatory control by the Purchaser Board Members and oversight
by ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇, or another representative named by Weather
Investments.
4.3 Registration
Rights. The Company covenants and agrees that it shall register for
resale
with the United States Securities and Exchange Commission ("SEC") all of the
Shares to be issued hereunder and Warrant Shares issuable upon exercise of the
Warrants, upon the terms and subject to the conditions set forth in a
Registration Rights Agreement to be entered into by the parties at or prior to
Closing.
4.4 Nasdaq
Listing. The Company covenants and agrees to make application to list
the
Company's shares of common stock on a market maintained by Nasdaq or the
American Stock
Exchange, or such other national securities exchange in the United States as may
be agreed to by the
parties, within 60 days after the Shares and Warrant Shares have been registered
for resale
with the SEC pursuant to an effective registration statement as contemplated
in Section 4.3, and shall use its best efforts to ensure that the listing is
completed within a reasonable time thereafter.
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4.5 Commercial
Agreements. The Company covenants and agrees at or prior to Closing
to deliver executed commercial agreements relating to the business of the
Company and the Purchaser, to the satisfaction of the Purchaser.
4.6 Management
Agreements. The Company covenants and agrees at or prior to Closing
to deliver executed management agreements with certain key officers and
employees of the Company, as determined by the Purchaser in its sole discretion,
to the satisfaction of the Purchaser.
4.7 Shareholder
Agreements. The Company covenants and agrees at or prior to Closing
to deliver to the Purchaser executed copies of agreements, undertakings and
covenants of the key shareholders of the Company, representing in aggregate not
less than 50.1% of the outstanding Shares of the Company at the time of Closing,
to support and vote in favor of the transactions contemplated hereby at a
meeting of shareholders to be held in that regard pursuant to applicable law
subsequent to Closing, to the satisfaction of the Purchaser in its sole
discretion.
4.8 Exclusivity.
The Company covenants and agrees to give the Purchaser and related
companies to the Purchaser exclusive access to the technology of the Purchaser
in perpetuity in countries where the Purchaser and related companies have
operations and in addition in Canada, and to deliver an execute agreement in
that regard to the Purchaser at or prior to Closing to the satisfaction of the
Purchaser.
ARTICLE
V.
CONDITIONS
TO THE CLOSING
5.1 Conditions
to the Obligations of Purchaser at the Closing. The obligations of
Purchaser
at the Closing are subject to the fulfillment or waiver by Purchaser in its sole
discretion, prior to or at the Closing, of the following
conditions:
(a) Representations
and Warranties. The representations and warranties of Company contained
in this Agreement shall be true and correct in all material espects when made,
and at the time of the Closing.
(b) Performance.
The Company shall have performed and complied with all of its obligations under
this Agreement.
(c) No
Order. There shall not (i) be in effect any statute, regulation, order,
decree or judgment of any governmental authority which makes illegal or enjoins
or prevents the consummation of the transactions contemplated by this Agreement
or (ii) have been commenced or threatened any action or proceeding by any
governmental authority which seeks to prevent or enjoin the transactions
contemplated by this Agreement.
(d) Board
Representation. The Company shall have appointed representatives of the
Purchaser to the Board of Directors of the Company as contemplated in Section
4.1.
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(e) Appointment
of Chief Financial Officer. The Company shall have appointed a Chief
Financial Officer for the Company, as determined by the Purchaser as
contemplated in Section 4.1.
(f) Escrow
Agreement. The Company shall have executed and delivered the Escrow
Agreement as contemplated in Section 4.2.
(g) Registration
Rights. The Company shall have executed and delivered the Registration
Rights Agreement as contemplated in Section 4.3.
(h) Commercial
Agreements. The parties shall have executed and delivered the commercial
agreements as contemplated in Section 4.5.
(i) Management
Agreements. The Company shall have executed and delivered the Management
Agreements, as contemplated in Section 4.6.
(j) Shareholder
Agreements. The shareholders of the Company shall have executed and the
Company shall have delivered the shareholder agreements as contemplated in
Section 4.7.
(k) Exclusivity
Agreements. The Company shall have executed and delivered the exclusivity
agreements as contemplated in Section 4.8.
5.2 Conditions
to the Obligations of Company at the Closing. The obligations
of
Company
at the Closing are subject to the fulfillment or waiver by Company in its sole
discretion, prior to or at the Closing, of the following
conditions:
(a) Representations
and Warranties. The representations and warranties of the Purchaser
contained in this Agreement shall be true and correct in all material respects
when made and at the time of the Closing.
(b) Performance.
Purchaser shall have performed and complied with all of its obligations under
this Agreement.
(c) No
Order. There shall not (i) be in effect any statute, regulation, order,
decree or judgment of any governmental authority which makes illegal or enjoins
or prevents the consummation of the transactions contemplated by this Agreement
or (ii) have been commenced or threatened any action or proceeding by any
governmental authority which seeks to prevent or enjoin the transactions
contemplated by this Agreement.
ARTICLE
VI.
TERMINATION
This
Agreement may be terminated by either party without notice in the event of a
breach of any of the terms, conditions or covenants of this Agreement by the
other party as contemplated herein.
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ARTICLE
VII.
CLOSING
7.1 Obligations
of the Company at Closing. At Closing, the Company shall deliver to
the
Purchaser the Shares and Warrants and such other documents and agreements as are
contemplated hereby, including the documents and agreements contemplated by
Article IV and Article V hereof, and such other documents as may be reasonably
requested by the Purchaser.
7.2 Obligations
of the Purchaser at Closing. At Closing, the Purchaser shall deliver to
the
Company the Purchase Price for the Shares and Warrants, and such other documents
and agreements as are contemplated hereby, and such other documents as may be
reasonably requested by the parties.
ARTICLE
VIII.
INDEMNIFICATION
8.1 Indemnification.
The Company shall indemnify, defend and hold harmless the Purchaser,
its employees, affiliates, controlling persons, agents and representatives
thereof and their respective successors and assigns (collectively, the
"Purchaser Indemnified Parties") from and against any and all losses, claims,
damages, liabilities, obligations, penalties, judgments, awards, costs, expenses
and disbursements (and any and all actions, suits, proceedings and
investigations in respect thereof and any and all reasonable legal and other
costs, reasonable expenses or disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise) (collectively, "Losses"),
including, without limitation, the reasonable costs, expenses and disbursements
as and when incurred, of defending any such action, suit, proceeding or
investigation (collectively, "Expenses"), directly or indirectly, caused by,
relating to, based upon, arising out of or in connection with the Company's
breach in any material respect of any of its representations, warranties,
covenants or agreements as set forth in this Agreement. The Purchaser shall
indemnify, defend and hold harmless the Company, its shareholders, directors,
officers, employees, affiliates, controlling persons, agents and representatives
and their respective successors and assigns (collectively, the "Company
Indemnified Parties" and which along with the Purchaser Indemnified Parties, may
be referred to as the "Indemnified Parties") from and against any and all Losses
and Expenses, directly or indirectly, caused by, relating to, based upon,
arising out of or in connection with the Purchaser's breach in any material
respect of any of its representations, warranties, covenants or agreements as
set forth in this Agreement. No
election by an Indemnified Party or commencement or completion of any action by
an Indemnified Party shall act as a bar or a defense to be Indemnified Party
proceeding to seek indemnification from any other Person pursuant to this
section.
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8.2 Indemnification
Procedures; Third Party Claims. An Indemnified Party shall give
the party
from which indemnification under this Article VIII is sought (the "Indemnifying
Party") prompt written notice following actual knowledge of the existence or
commencement of any claim, assertion, event or proceeding concerning any
liability or damage as to which the Indemnified Party may request
indemnification from the Indemnifying Parties hereunder; provided,
however, that any failure by the Indemnified Party to notify the
Indemnifying Parties shall not relieve the Indemnifying Parties
from their respective obligations hereunder, or from any other obligation or
liability that the Indemnifying Parties may have to the Indemnified Party unless
such failure materially prejudices the Indemnifying Parties. Upon such written
notice of any such claim, action or proceeding, the Indemnifying Parties may
assume the defense thereof at their own expense with counsel chosen by such
Indemnifying Parties; provided,
however, such counsel shall be subject to the prior reasonable approval
of the Indemnified Party. If the Indemnifying Parties fails to elect to defend
any such claim, action or proceeding within 30 days after notice thereof shall
have been deemed given, such indemnifying party shall be deemed to have waived
its right to defend any such claim, action, suit, proceeding or investigation to
which any Indemnified Party is also a party, the Indemnified Party may assume
the defense thereof with counsel chosen by the Indemnified Party, at the
reasonable expense of the Indemnifying Party. In the
circumstances referred to in the immediately preceding sentence, if the
Indemnified Party does not assume such defense, the Indemnifying Parties, shall
not, without the prior written consent of the Indemnified Party, settle or
compromise any claim, or permit a default or consent to the entry of any
judgment in respect thereof, unless such settlement, compromise or consent
includes, as an unconditional term thereof, the giving by the claimant to the
Indemnified Parties of an unconditional and general release from all liability
in respect of such claim
ARTICLE
IX.
MISCELLANEOUS
9.1 No
Waiver; Cumulative Remedies. No failure or delay on the part of any party
to this
Agreement in exercising any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
9.2 Amendments;
Waivers and Consents. Except for the representations and warranties
of the Purchaser contained in Section 2.1(f) hereof, of which compliance may not
be waived, changes in, termination or amendments of or additions to this
Agreement may be made, and compliance with any covenant or provision set forth
herein may be omitted or waived, if made in writing and consented to in writing
by the parties hereto. Any waiver or consent may be given subject to
satisfaction of conditions stated therein and any waiver or consent shall be,
when signed by the party granting the waiver and delivered to the other party
hereto in the manner provided for hereunder in Section 9.3, effective only in
the specific instance and for the specific purpose for which given.
9.3 Addresses
for Notices. Any notice or other communication required or permitted
to be
given hereunder shall be in writing and shall be deemed to be delivered and
received by the intended recipient as follows: (a) if personally delivered, on
the business day of such delivery (as evidenced by the receipt of the personal
delivery service), (b) if mailed certified or registered mail return receipt
requested, four (4) business days after being mailed, (c) if delivered by
overnight courier (with all charges having been prepaid), on the business day of
such delivery (as evidenced by the receipt of the overnight courier service of
recognized standing), or (d) if delivered by facsimile transmission, on the
business day of such delivery if sent by 6:00 p.m. in the time zone of the
recipient, or if sent after that time, on the next succeeding business day (as
evidenced by the printed confirmation of delivery generated by the sending
party's telecopier machine). If any notice, demand, consent, request,
instruction or other communication cannot be delivered because of a changed
address of which no notice was given (in accordance with this section), or the
refusal to accept same, the notice, demand, consent, request, instruction or
other communication shall be deemed received on the second business day the
notice is sent (as evidenced by a sworn affidavit of the sender). All such
notices, demands, consents, requests, instructions and other communications will
be sent to the addresses or facsimile numbers of the parties as first set forth
in this Agreement or to such other address as any party may specify by notice
given to the other party in accordance with this
section.
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9.4 Costs;
Expenses and Taxes. Except as otherwise expressly provided in this
Agreement,
each party hereto shall pay its own costs and expenses incurred in connection
with or incidental to the preparation and negotiations of this Agreement, the
carrying out of the provisions of this Agreement and the consummation of the
transactions contemplated hereby (including, without limitation, attorneys' fees
and expenses).
9.5 Effectiveness;
Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the Company, the Purchaser and the respective successors
and permitted assigns.
9.6 Survival
of Representations and Warranties. All representations and warranties
made in
this Agreement, the Shares, or any other instrument or document delivered in
connection herewith, shall survive the execution and delivery hereof or
thereof.
9.7 Prior
Agreements. This Agreement and the instruments and other documents
delivered
pursuant to this Agreement, constitutes the entire agreement between the parties
with respect to the subject matter set forth herein and supersede any prior
understandings or agreements concerning the subject matter hereof, all of which
are merged herein.
9.8 Severability.
Except for the Purchaser's representations and warranties contained in
Section 2.1(f) hereof, the provisions of this Agreement are severable and, in
the event that any court of competent jurisdiction shall determine that any one
or more of the provisions or part of a provision contained therein shall, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
or part of a provision of
this Agreement and the terms of this Agreement shall be reformed and construed
as if such invalid or illegal or unenforceable provision, or part of a
provision, had never been contained herein, and such provisions or part reformed
so that it would be valid, legal and enforceable to the maximum extent
possible.
9.9 Governing
Law; Venue.
(a)This
Agreement shall be enforced, governed and construed in accordance with the
laws of the State of Delaware without giving effect to choice of laws principles
or conflict of laws provisions. Any suit, action or proceeding pertaining to
this Agreement or any transaction relating hereto shall be brought to the
federal district court for the Central District of Delaware, United
States of America, and the undersigned hereby irrevocably consents and
submits to the jurisdiction of such courts for the purpose of any such suit,
action, or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
Purchaser acknowledges and agrees that venue hereunder shall lie exclusively in
Delaware, United
States of America.
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(b)
Purchaser hereby unconditionally and irrevocably waives, and agrees not
to assert
against the Company, or any successor assignee thereof, by way of motion, as a
defense, or otherwise, in any such suit, action or proceeding, (i) any claim
that the Purchaser is not personally subject to the jurisdiction of the
above-named courts, and (ii) to the extent permitted by applicable law, any
claim that such suit, action or proceeding is brought in an inconvenient forum
or that the venue is improper or that this Agreement may not be enforced in or
by such courts, and (iii) that service of any summons, complaint, notice or
other process relating to such suit, action or other proceeding may be effected
in the manner provided in Section 9.3.
9.10
Headings.
Article, section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
9.11
Counterparts.
This Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
9.12
Further
Assurances. From and after the date of this Agreement, upon the request
of the Purchaser or the Company, the Company and the Purchaser shall execute and
deliver such instruments, documents and other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement and the Shares.
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IN
WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement to
be executed
as of the date first above written.
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Weather
Invest ents S.p.A (Purchaser).
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By:
|
/s/ | |
| Name | |||
| Date 05/15/2008 | |||
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Accepted
on Behalf of the Company
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| By: ▇▇▇▇▇▇▇▇▇, President Date |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President |
| Date 05/15/2008 |
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