SECURITIES PURCHASE AGREEMENT ISLAND BREEZE INTERNATIONAL, INC.
EXHIBIT
4.10
SECURITIES PURCHASE
AGREEMENT (as amended or
supplemented from time to time, this "AGREEMENT"), dated as of April ___, 2010,
between Island Breeze International, Inc., a Delaware corporation (the
"COMPANY") with its principal offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and
the undersigned (the “Subscriber”).
WITNESSETH:
WHEREAS, the Company is
offering to sell shares of its Class A common stock, 0.001 par value for a
purchase price of $0.50 per share;
WHEREAS, the parties desire
that, upon the terms and subject to the conditions contained herein, the Company
shall issue and sell to the Subscriber, and the Subscriber shall purchase from
the Company, such number of shares of the Company’s Class A common stock as are
indicated on the signature page hereto (the “Common Stock” or the “Securities”);
and
WHEREAS, the Company and the
Subscriber are executing and delivering this Agreement in reliance upon an
exemption from the registration requirements of the Securities Act of 1933, as
amended (the “1933 ACT”) afforded by the provisions of Section 4(2) and/or Rule
506 of Regulation D ("REGULATION D") as promulgated by the United States
Securities and Exchange Commission (the "COMMISSION") under the 1933
Act.
NOW, THEREFORE, in
consideration of the mutual covenants and other agreements contained in this
Agreement the Company and the Subscriber hereby agree as follows:
1. SUBSCRIPTION FOR
SECURITIES.
(a) As
soon as possible after the execution and delivery of this Agreement, and subject
to the terms and conditions hereof, including the satisfaction of the conditions
described in subsection (b) below, the Company shall deliver the certificates
for the Common Stock to the Subscriber, each registered in the name of the
Subscriber, against receipt of an amount equal to the purchase price for the
Common Stock for which the Subscriber is subscribing.
(b) Subscriber’s
obligation to purchase the Common Stock is subject to the fulfillment (or
written waiver by the Subscriber) of each of the following
conditions:
(i) The
representations and warranties of the Company contained in this Agreement shall
be true and correct on and as of the date of such purchase;
(ii) The Company shall have
performed and complied with all covenants, conditions and agreements required by
this Agreement to be performed or complied with by them on or prior to the date
of such purchase;
(iii) There shall be in
effect no injunction, writ, preliminary restraining order or any order of any
nature directing that the transactions contemplated by this Agreement, including
without limitation the purchase of the Common Stock, not be
consummated as herein provided; and
2. COMPANY REPRESENTATIONS, WARRANTIES
AND COVENANTS. The Company represents and warrants to and agrees with
Subscriber that, except as set forth in the Company's periodic and current
reports filed with the Commission thereafter (hereinafter referred to
collectively as the "SEC REPORTS"),or as set forth on the disclosure schedule
dated the date hereof delivered by the Company to the Subscriber (the
“DISCLOSURE SCHEDULE”) :
(a) DUE INCORPORATION. The Company
and each of its Subsidiaries is a corporation (or in the case of a Subsidiary
the type of entity described in the Disclosure Schedule) duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has the requisite corporate or other power to
own its properties and to carry on its business as disclosed in the SEC Reports.
The Company and each of its Subsidiaries is duly qualified as a foreign
corporation (or in the case of a Subsidiary the type of entity described in the
Disclosure Schedule) to do business and is in good standing in each jurisdiction
where the nature of the business conducted or property owned by it makes such
qualification necessary, other than those jurisdictions in which the failure to
so qualify would not have a Material Adverse Effect. For purpose of this
Agreement, a "MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
the financial condition, results of operations, properties or business of the
Company and its Subsidiaries taken as a whole. For purposes of this Agreement,
"SUBSIDIARY" means, with respect to any entity at any date, any corporation,
limited or general partnership, limited liability company, trust, estate,
association, joint venture or other business entity) of which more than 50% of
(i) the outstanding capital stock having (in the absence of contingencies)
ordinary voting power to elect a majority of the board of directors or other
managing body of such entity, (ii) in the case of a partnership or limited
liability company, the interest in the capital or profits of such partnership or
limited liability company or (iii) in the case of a trust, estate, association,
joint venture or other entity, the beneficial interest in such trust, estate,
association or other entity business is, at the time of determination, owned or
controlled directly or indirectly through one or more intermediaries, by such
entity. The Company’s Subsidiaries are named in the SEC Reports.
(b) AUTHORITY. The Company
has the full right, power and authority to execute, deliver and perform under
this Agreement. This Agreement has been duly executed by the Company
and this Agreement and the transactions contemplated by this Agreement have been
duly authorized by all necessary corporate action and each constitute, the
legal, valid and binding obligations of the Company, enforceable in accordance
with their respective terms.
(c) OUTSTANDING SECURITIES. All of
the issued and outstanding shares of the Company’s Common Stock have been duly
and validly authorized and issued, are fully paid and nonassessable (with no
personal liability attaching to the holders thereof or to the Company) and are
free from preemptive rights or rights of first refusal held by any
person. All of the issued and outstanding shares of Common Stock have
been issued pursuant to either a current effective registration statement under
the 1933 Act or an exemption from the registration requirements thereof, and
were issued in accordance with all applicable United States Federal and state
securities laws.
(d) ENFORCEABILITY. This Agreement
and any other agreements delivered together with this Agreement or in connection
herewith (collectively "TRANSACTION DOCUMENTS") have been duly authorized,
executed and delivered by the Company and are valid and binding agreements,
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally and to general principles of equity regardless of whether enforcement
is sought in a court of law or equity). The Company has full corporate power and
authority necessary to enter into and deliver the Transaction Documents and to
perform its obligations thereunder.
(e) CONSENTS. No consent,
approval, authorization, filing with or notice to any person, entity or public
authority, or order of any court, governmental agency or body or arbitrator
having jurisdiction over the Company or any of its Subsidiaries, or the
Company's stockholders is required for the execution by the Company of the
Transaction Documents and compliance and performance by the Company of its
obligations under the Transaction Documents, including, without limitation, the
issuance and sale of the Securities, other than filings required by Federal or
state securities laws, which filings have been or will be made by the Company on
a timely basis.
(f) NO VIOLATION OR CONFLICT.
Assuming the representations and warranties of the Subscribers in Section 3 are
true and correct, neither the issuance and sale of the Securities nor the
performance of the Company's obligations under this Agreement and all other
agreements entered into by the Company relating thereto by the Company
will:
(i) violate,
conflict with, result in a breach of, or constitute a default (or an event which
with the giving of notice or the lapse of time or both would be reasonably
likely to constitute a default in any material respect) under (A) the
certificate of incorporation or bylaws of the Company, each as amended as of the
date hereof, (B) to the Company's knowledge, any decree, judgment, order, law,
treaty, rule, regulation or determination applicable to the Company or any of
its Subsidiaries of any court, governmental agency or body, or arbitrator having
jurisdiction over the Company or such Subsidiary or over the properties or
assets of the Company or such Subsidiary, or (C) the terms of any bond,
debenture, note or any other evidence of indebtedness, or any agreement, stock
option or other similar plan, indenture, lease, mortgage, deed of trust or other
instrument to which the Company or such Subsidiary is a party, or by which the
Company or such Subsidiary is bound, or to which any of the
properties of the Company or such Subsidiary is subject, except the violation,
conflict, breach, or default of which would not have a Material Adverse Effect;
or
(ii) result
in the creation or imposition of any lien, charge or encumbrance upon the
Securities or any of the assets of the Company or any of its
Subsidiaries.
(g) THE SECURITIES. The Securities
upon issuance:
(i) will
be free and clear of any security interests, liens, claims or other
encumbrances, subject to restrictions upon transfer under the 1933 Act and any
applicable state securities laws;
(ii) have
been duly and validly authorized and duly and validly issued, and will be fully
paid and non-assessable (with no personal liability attaching to the holders
thereof or to the Company) and will be free from preemptive rights or rights of
first refusal held by any person; provided Subscriber's representations herein
are true and accurate and Subscribers take no actions or fail to take any
actions required for their purchase of the Securities to be in compliance with
all applicable laws and regulations; and
(iii)
will have been issued in reliance upon an exemption from the registration
requirements of and will not result in a violation of Section 5 under the 1933
Act.
(h) LITIGATION. There is no
pending or, to the best knowledge of the Company, threatened action, suit,
proceeding or investigation before any court, governmental agency or body, or
arbitrator having jurisdiction over the Company or any of its Subsidiaries that
would affect the execution by the Company or the performance by the Company of
its obligations under the Transaction Documents. There is no pending or, to the
knowledge of the Company, or threatened action, suit, proceeding or
investigation before any court, governmental agency or body, or arbitrator
having jurisdiction over the Company or any of its
Subsidiaries, which litigation if adversely determined would have a Material
Adverse Effect. There are currently pending suits for the collection
of sums owed by the Company as set forth on the Disclosure
Schedule.
(i) REPORTING COMPANY. The Company
is a publicly-held company subject to reporting obligations pursuant to Section
13 of the Securities Exchange Act of 1934 (the "1934 ACT") and the Common Stock
is registered pursuant to Section 12(g) of the 1934 Act.
(j) INFORMATION CONCERNING
COMPANY. The SEC Reports contain all material information relating to the
Company and its operations and financial condition as of their respective dates
and all the information required to be disclosed therein. Since the last day of
the fiscal year of the most recent audited financial statements included in the
SEC Reports ("LATEST FINANCIAL DATE"), and, there has been no Material Adverse
Event relating to the Company's business, financial condition or affairs not
disclosed in the SEC Reports. The SEC Reports do not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances in which made. The Company has not provided to the
Subscribers any material non-public information. Although there has
been no Material Adverse Event the Company’s financial condition has continued
to deteriorate since the Latest Financial date and the Company needs cash to
realize its business plan.
(k) FINANCIAL STATEMENTS. The
financial statements of the Company and its Subsidiaries included in the Reports
(hereinafter collectively, the “Financial Statements”), were prepared in
accordance with generally accepted accounting principles consistently applied
and present and reflect fairly the financial position of the Company and its
Subsidiaries at the respective balance sheet dates and the results of its
operations and cash flows for the periods then ended, provided, however, that the
financial statements included in the Form 10-Q’s are subject to normal year-end
adjustments and lack footnotes and other presentation items
(l) NO UNDISCLOSED LIABILITIES.
Except as set forth on the Disclosure Schedule, neither the
Company nor any of its Subsidiaries has any liabilities of any kind or nature,
whether accrued or contingent, matured or unmatured, known or unknown, which are
material, individually or in the aggregate, which are not disclosed in the SEC
Reports, other than those incurred in the ordinary course of the Company's or
such Subsidiary’s businesses since the Latest Financial Date, and which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
(m) NO UNDISCLOSED EVENTS OR
CIRCUMSTANCES. Since the Latest Financial Date, no event or circumstance
has occurred or exists with respect to the Company or any of its Subsidiaries or
their respective businesses, properties, operations or financial condition,
that, under applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company but which has not been so
publicly announced or disclosed in the SEC Reports.
(n) DEFAULTS. Neither the Company
nor any of its Subsidiaries is in violation of its certificate of incorporation
or bylaws To the best of the knowledge of the Company, no party to
any note, loan agreement, security agreement, mortgage, contract, franchise
agreement, distribution agreement, lease, alliance agreement, joint venture
agreement, other agreement, license, permit, consent, approval or instrument
with or given to the Company or any of its Subsidiaries is in default thereunder
and no event has occurred with respect to such party, which, with or without the
lapse of time or giving of notice, or both, would constitute a default by such
party or would cause acceleration of any obligations of such
party. The Company and its Subsidiaries are (i) not subject to nor in
default with respect to any order of any court, arbitrator or governmental body
or subject to or party to any order of any court or governmental authority
arising out of any action, suit or proceeding under any statute or other law
respecting
antitrust, monopoly, restraint of trade, unfair competition or similar matters,
or (ii) to the Company's knowledge not in violation of any statute, rule or
regulation of any governmental authority which violation would have a Material
Adverse Effect. There are no material (i.e., involving an
asserted liability in excess of fifty thousand dollars ($50,000)) claims,
actions, suits, proceedings or labor disputes, inquiries or investigations
(whether or not purportedly on behalf of the Company or such Subsidiary),
pending or, to the best of the Company's knowledge, threatened, against the
Company or such Subsidiary, at law or in equity or by or before any Federal,
state, county, municipal or other governmental department, the Commission, the
Financial Industry Regulatory Authority, board, bureau, agency or
instrumentality, domestic or foreign, whether legal or administrative or in
arbitration or mediation, nor is there any basis for any such action or
proceeding. Neither the Company, nor any of its assets are subject
to, nor is the Company in default with respect to, any order, writ,
injunction, judgment or decree that could adversely affect the financial
condition, business, assets or prospects of the Company.
(o) COMPLIANCE WITH LAWS. To its
knowledge, the Company and each of its Subsidiaries is in compliance with all
laws, rules and regulations of all Federal, state, local and foreign government
agencies having jurisdiction over the Company or affecting the business, assets
or properties of the Company, except where the failure to comply has not and
will not have a Material Adverse Effect.
(p)
NOT AN INTEGRATED
OFFERING. Neither the Company, nor any person acting on its behalf, has
knowingly, either directly or indirectly made any offers or sales of any
security or solicited any offers to buy any security under circumstances that
would cause the offer of the Securities pursuant to this Agreement to be
integrated with prior offerings by the Company for purposes of the 1933 Act or
any applicable stockholder approval provisions, including, without limitation,
under the rules and regulations of the OTC Bulletin Board ("BULLETIN BOARD")
which would impair the exemptions relied upon in for the offer and sale of the
Securities to Subscriber or the Company's ability to timely comply with its
obligations hereunder. Nor will the Company take any action or steps that would
knowingly cause the offer or issuance of the Securities to be integrated with
other offerings which would impair the exemptions relied upon for the offer and
sale of the Securities to Subscriber or the Company's ability to timely comply
with its obligations hereunder. The Company will not knowingly conduct any
offering other than the transactions contemplated hereby that will be integrated
with the offer or issuance of the Securities, which would impair the exemptions
relied upon for the offer and sale of the Securities to Subscriber or the
Company's ability to timely comply with its obligations hereunder.
(q)
NO GENERAL
SOLICITATION. Neither the Company, nor to its knowledge, any person
acting on its or their behalf, has engaged in any form of general solicitation
or general advertising (within the meaning of Regulation D under the ▇▇▇▇ ▇▇▇)
in connection with the offer or sale of the Securities.
(r)
LISTING. The
Company's common stock is quoted on the Bulletin Board under the symbol IBII.OB.
The Company has not received any oral or written notice that the Common Stock is
not eligible nor will become ineligible for quotation on the Bulletin Board nor
that the Common Stock does not meet all requirements for the continuation of
such quotation. The Company satisfies all the requirements for the continued
quotation of the Common Stock on the Bulletin Board.
(s)
STOP TRANSFER. The
Company will not issue any stop transfer order or other order impeding the sale,
resale or delivery of any of the Securities, except as may be required by any
applicable federal or state securities laws and unless contemporaneous notice of
such instruction is given to the Subscriber.
(t)
INVESTMENT COMPANY. The
Company is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
3. SUBSCRIBER'S REPRESENTATIONS AND
WARRANTIES. Subscriber hereby represents and warrants to and agrees with
the Company that:
(a) ORGANIZATION AND STANDING. If
the Subscriber is an entity, such Subscriber is a corporation, partnership or
other entity duly incorporated or organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization
and has the requisite corporate power to own its assets and to carry on its
business.
(b) AUTHORIZATION AND POWER.
Subscriber has the requisite power and authority to enter into and perform this
Agreement and to purchase the Securities. The execution, delivery and
performance of this Agreement by Subscriber and the consummation by Subscriber
of the transactions contemplated hereby and have been duly authorized by all
necessary corporate or partnership action, and no further consent or
authorization of Subscriber or its Board of Directors, stockholders, partners,
members, as the case may be, is required. This Agreement has been duly
authorized, executed and delivered by Subscriber and constitutes a valid and
binding obligation of the Subscriber enforceable against the Subscriber in
accordance with the terms hereof.
(c) NO CONFLICTS. The execution,
delivery and performance of this Agreement and the consummation by Subscriber of
the transactions contemplated hereby do not and will not (i) result in a
violation of Subscriber's charter documents or bylaws or other organizational
documents or (ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of any
agreement, indenture or instrument or obligation to which Subscriber is a party
or by which its properties or assets are bound, or result in a violation of any
law, rule, or regulation, or any order, judgment or decree of any court or
governmental agency applicable to Subscriber or its properties (except for such
conflicts, defaults and violations as would not, individually or in the
aggregate, have a material adverse effect on Subscriber). Subscriber is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or to purchase
the Securities, provided that for purposes of the representation made in this
sentence, Subscriber is assuming and relying upon the accuracy of the relevant
representations and agreements of the Company herein.
(d) INFORMATION ON COMPANY. The
Subscriber has been furnished with or has had access at the ▇▇▇▇▇ Website of the
Commission to the SEC Reports. In addition, the Subscriber has
received in writing from the Company such other information concerning its
operations, financial condition and other matters as the Subscriber has
requested in writing (such other information is collectively, the "OTHER WRITTEN
INFORMATION"), and considered all factors the Subscriber deems material in
deciding on the advisability of investing in the Securities. Subscriber has
carefully read, and understands the information in the SEC Reports, including
without limitation, the information set forth in the Super 8K.
(e) INFORMATION ON SUBSCRIBER. The
Subscriber is an "accredited investor", as such term is defined in Rule 501(a)
of Regulation D promulgated by the Commission under the 1933 Act, is experienced
in investments and business matters, has made investments of a speculative
nature and has purchased securities of United States publicly-owned companies in
private placements in the past and, with its representatives, has such knowledge
and experience in financial, tax and other business matters as to enable the
Subscriber to utilize the information made available by the Company to evaluate
the merits and risks of and to make an informed investment decision with respect
to the proposed purchase, which represents a speculative investment. The
Subscriber has the authority and is duly and legally qualified to purchase and
own the Securities. The Subscriber is able to bear the risk of such
investment for an indefinite period and to afford a complete loss thereof. The
information set forth on the signature page hereto
regarding the Subscriber is accurate.
(f) PURCHASE OF SECURITIES. The
Subscriber is purchasing the Securities as principal for its own account for
investment only and not with a view toward, or for resale in connection with,
the public sale or any distribution thereof, but Subscriber does not agree to
hold the Securities for any minimum amount of time.
(g) COMPLIANCE WITH SECURITIES ACT.
The Subscriber understands and agrees that the Securities have not been
registered under the 1933 Act or any applicable state securities laws, by reason
of their issuance in a transaction that does not require registration under the
1933 Act (based in part on the accuracy of the representations and warranties of
Subscriber contained herein), and that such Securities must be held indefinitely
unless a subsequent disposition is registered under the 1933 Act or any
applicable state securities laws or is exempt from such
registration.
(h) COMMON STOCK LEGEND. The
certificates evidencing the Common Stock shall bear the following or similar
legend:
“NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF
THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR
OTHER LOAN SECURED BY SUCH SECURITIES.”
(i) COMMUNICATION OF OFFER. The
offer to sell the Securities was directly communicated to the Subscriber by the
Company and no other person has solicited an investment in the Common Stock on
behalf of the Company, except the Broker identified in the Disclosure
Schedule. At no time was the Subscriber presented with or solicited
by any leaflet, newspaper or magazine article, radio or television
advertisement, or any other form of general advertising or solicited or invited
to attend a promotional meeting otherwise than in connection and concurrently
with such communicated offer.
(j) AUTHORITY; ENFORCEABILITY.
This Agreement has been duly authorized, executed and delivered by the
Subscriber and is a valid and binding agreement of Subscriber, enforceable
against the Subscriber in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity; and Subscriber has full corporate power and
authority necessary to enter into this Agreement and to perform its obligations
hereunder.
(k) NO GOVERNMENTAL REVIEW.
Subscriber understands that no United States federal or state agency or any
other governmental or state agency has passed on or made recommendations or
endorsement of the Securities or the suitability of the investment in the
Securities nor have such authorities passed upon or endorsed the merits of the
offering of the Securities.
(l) NO TAX
ADVICE. Subscriber acknowledges that no representation has
been made and no advice has been given to Subscriber by the Company or the
Placement Agent as to the potential tax consequences of the Subscriber’s
investment in the Common Stock subscribed for and that the Subscriber has been
urged to consult with his or her own tax advisors, with specific reference to
the Subscriber’s own situation, with respect to such consequences.
4. REGULATION D OFFERING. The
offer and issuance of the Securities to the Subscriber is being made pursuant to
the exemption from the registration provisions of the 1933 Act afforded by
Section 4(2) or Section 4(6) of the 1933 Act and/or Rule 506 of Regulation D
promulgated thereunder.
5. BROKER COMMISSIONS. The
Company on the one hand, and Subscriber on the other hand, agrees to indemnify
the other against and hold the other harmless from any and all liabilities to
any persons claiming brokerage commissions or similar fees other than the
persons and entities identified in the Disclosure Schedule (each a "BROKER"), on
account of services purported to have been rendered on behalf of the
indemnifying party in connection with this Agreement or the transactions
contemplated hereby and arising out of such party's actions. The Company agrees
that it will pay the Broker the fee set forth in the Disclosure Schedule
("BROKER'S FEES").
6. COVENANTS OF THE COMPANY AND
SUBSCRIBER REGARDING INDEMNIFICATION.
(a)
The Company agrees to indemnify, hold harmless, reimburse and defend the
Subscriber, the Subscriber’s officers, directors, agents, affiliates, control
persons, and principal shareholders, against any claim, cost, expense,
liability, obligation, loss or damage (including reasonable legal fees) of any
nature, incurred by or imposed upon the Subscriber or any such person which
results, arises out of or is based solely upon (i) any material
misrepresentation by Company or material breach of any warranty by Company in
this Agreement or in any Exhibits or Schedules attached hereto, or other
agreement delivered pursuant hereto; or (ii) after any applicable notice and/or
cure periods, any material breach or default in performance by the Company of
any covenant or undertaking to be performed by the Company hereunder, or any
other agreement entered into by the Company and Subscriber relating
hereto.
(b) Subscriber
agrees to indemnify, hold harmless, reimburse and defend the Company and each of
the Company's officers, directors, agents, affiliates, control persons against
any claim, cost, expense, liability, obligation, loss or damage (including
reasonable legal fees) of any nature, incurred by or imposed upon the Company or
any such person which results, arises out of or is based solely upon (i) any
material misrepresentation by Subscriber in this Agreement or in any Exhibits or
Schedules attached hereto, or other agreement delivered pursuant hereto; or
(ii)after any applicable notice and/or cure periods, any material breach or
default in performance by Subscriber of any covenant or undertaking to be
performed by Subscriber hereunder, or any other agreement entered into by the
Company and Subscriber, relating hereto.
(c)
Any person entitled to indemnification under Section 6(a) or (b) of this
Agreement (an “indemnified party”) shall notify promptly the person obligated to
provide such indemnification (the “indemnifying party”) in writing of the
commencement of any action or proceeding brought by a third person against the
indemnified party with respect to a Claim (a “Third Party Claim”) for which the
indemnified party may be entitled to indemnification from the indemnifying party
under this Section 6, but the omission of such notice shall not relieve the
indemnifying party from any liability which it may have to any indemnified party
under Section 6 of this Agreement, except to the extent that such failure shall
materially adversely affect any indemnifying party or its rights
hereunder. The indemnifying party shall be entitled to participate
in, and, to the extent that it chooses, to assume the defense of any Third Party
Claim with counsel reasonably satisfactory to the indemnified party; and, after
notice from the indemnifying
party to the indemnified party that it so chooses, the indemnifying party shall
not be liable for any legal or other expenses or disbursements subsequently
incurred by the indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that (i) if the
indemnifying party fails to take reasonable steps necessary to defend diligently
the Third Party Claim within twenty (20) days after receiving notice from the
indemnified party that the indemnified party of such Third Party Claim; (ii) if
the indemnified party who is a defendant in such Third Party Claim which is also
brought against the indemnifying party reasonably shall have concluded that
there are legal defenses available to the indemnified party which are not
available to the indemnifying party; or (iii) if representation of both parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm of
counsel for all indemnified parties in each jurisdiction, except to the extent
any indemnified party or parties reasonably shall have concluded that there are
legal defenses available to such party or parties which are not available to the
other indemnified parties or to the extent representation of all indemnified
parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct) and the indemnifying party shall be liable
for any reasonable expenses therefor; provided, that no indemnifying party shall
be subject to any liability for any settlement of a Third Party Claim made
without its consent (which may not be unreasonably withheld, delayed or
conditioned). If the indemnifying party assumes the defense of any
Third Party Claim hereunder, such indemnifying party shall not enter into any
settlement without the consent of the indemnified party if such settlement
attributes liability to the indemnified party.
7. MISCELLANEOUS.
(a) NOTICES. All notices, demands,
requests, consents, approvals, and other communications required or permitted
hereunder shall be in writing and, unless otherwise specified herein, shall be
(i)personally served, (ii) deposited in the mail, registered or certified,
return receipt requested, postage prepaid, (iii) delivered by reputable air
courier service with charges prepaid, or (iv) transmitted by hand delivery,
telegram, or facsimile, addressed as set forth below or to such other address as
such party shall have specified most recently by written notice. Any notice or
other communication required or permitted to be given hereunder shall be deemed
effective (a) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (b) on the second business day
following the date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever
shall first occur. The addresses for such communications shall be: (i) if to
the Company, to: Island Breeze International, Inc., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ with a copy by facsimile only to: ▇▇▇▇▇ &
▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., facsimile
(▇▇▇)▇▇▇-▇▇▇▇, and (ii) if to the Holder, to the name, address and facsimile
number set forth on the signature page of this Agreement.
(b) ENTIRE AGREEMENT; ASSIGNMENT.
This Agreement and other documents delivered in connection herewith represent
the entire agreement between the parties hereto with respect to the subject
matter hereof and may be amended only by a writing executed by approval or
written consent of Subscriber, as defined in subparagraph (h) hereof. Neither
the Company nor the Subscriber has relied on any representations not contained
or referred to in this Agreement and the documents delivered herewith. No right
or obligation of the Company shall be assigned without prior notice to and the
written consent of the Subscriber.
(c) COUNTERPARTS/EXECUTION. This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but one
and the same instrument. This Agreement may be executed by facsimile signature
and delivered by facsimile transmission.
(d) LAW GOVERNING THIS AGREEMENT.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York without regard to conflicts of laws principles that would
result in the application of the substantive laws of another jurisdiction. Any
action brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the civil or state
courts of New York or in the federal courts located in New York County. THE
PARTIES AND THE INDIVIDUALS EXECUTING THIS AGREEMENT AND OTHER AGREEMENTS
REFERRED TO HEREIN OR DELIVERED IN CONNECTION HEREWITH ON BEHALF OF THE COMPANY
AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS AND WAIVE TRIAL BY JURY. The
prevailing party shall be entitled to recover from the other party its
reasonable attorney's fees and costs. In the event that any provision of this
Agreement or any other agreement delivered in connection herewith is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any
agreement.
(e) SPECIFIC ENFORCEMENT, CONSENT TO
JURISDICTION. To the extent permitted by law, the Company and Subscriber
acknowledge and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to one or more preliminary and final injunctions to
prevent or cure breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof, this being in addition to any
other remedy to which any of them may be entitled by law or equity. Subject to
Section 9(d) hereof, each of the Company and Subscriber hereby waives, and
agrees not to assert in any such suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction in New York of such court, that
the suit, action or proceeding is brought in an inconvenient forum or that the
venue of the suit, action or proceeding is improper. Nothing in this Section
shall affect or limit any right to serve process in any other manner permitted
by law.
(f) SURVIVAL. The representations
and warranties, covenants and other agreements of the Company and the Subscriber
set forth in this Agreement shall survive the purchase of the Securities by the
Subscriber hereunder for a period of one year from the date hereof.
[SIGNATURE
PAGE APPEARS ON THE FOLLOWING PAGE]
ALL INVESTORS MUST COMPLETE THIS
PAGE
IN
WITNESS WHEREOF, the parties have executed this Agreement on April __,
2010.
Amount of
Investment: $600,000
Purchase
Price Per
Share: $0.50
Number of
Shares
Purchased: 1,200,000
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_________________________________________
Exact
Name in Which Title is to be Held
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_________________________________________
(Authorized
Signature)
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_________________________________________
Print
Name of Signatory and Capacity in which
Signed
if an Entity
|
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_________________________________________
Signature
(if Joint Tenants or Tenants in Common)
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_________________________________________
Print
Name of above Signatory
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SUBSCRIPTION
ACCEPTED:
By:_______________________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Chief Executive Officer
Date:
_______________________________
____________________________________
Aggregate
Purchase Price Accepted