EXHIBIT 10.5
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of the 20th day of April 2006, by and between Edgetech International,
Inc. (formerly Dairene International), a Nevada corporation (the "Company") and
Xxxxxxxxx & Xxxxxxx Group LLC, a Florida limited liability company (the
"Buyer").
W I T N E S S E T H:
WHEREAS, the Company desires to sell to the Buyer and the Buyer desires
to purchase from the Company $3,000,000.00 of the Company's authorized but
unissued common stock (the "Shares") in accordance with the timetable set forth
on Schedule "A", which is attached hereto and made a part hereof ("Schedule
'A'"), upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Sale and Transfer of the Shares. At each Closing (as hereinafter
defined) and subject to the terms and conditions of this Agreement, the Company
shall sell, convey and deliver to the Buyer, and the Buyer shall purchase and
accept from the Company, the Shares for the purchase price set forth in Schedule
"A".
2. Purchase Price. The purchase price for each Share purchased by the
Buyer shall be in accordance with Schedule "A" and shall be paid to the Company,
at each Closing (as hereinafter defined).
3. Closing. The purchase of the Shares shall be in accordance with
Schedule "A" and each purchase of Shares in accordance therewith shall be a
"Closing". Each Closing shall take place on the date set forth on Schedule "A" ,
unless extended by mutual consent of the parties hereto. At each Closing, the
Company shall deliver to the Buyer one or more stock certificates representing
the Shares to be purchased hereunder and the Buyer shall deliver a check in U.S.
funds for the number of Shares purchased or, alternatively, wire transfer the
purchase price pursuant to the wire transfer instructions provided by the
Company to the Buyer for such purpose.
4. Representation and Warranties of the Seller. The Company represents
and warrants to the Buyer that:
(a) Authority. The Company has all necessary power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
provided for herein. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms except as may be limited by
equitable principles. The execution, delivery and performance of this Agreement
by the Company does not and will not violate any applicable provision of any
law, regulation or order, or conflict with or result in the breach of, or
constitute a default under, any material agreement or instrument to which the
Company is a party or by which the Company may be bound or affected.
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(b) Demand Registration Rights. Provided the Buyer fully and timely
complies with all of the terms and conditions of this Agreement, the Buyer (and
only the Buyer and not any of the Buyer's transferees or assignees, if any)
shall be entitled to a one time demand registration right with respect to all
(but not less than all) of the Shares. All costs and expenses relating to such
registration statement, for which the Company shall use its best efforts to
cause such registration statement to be prepared and become effective with the
U.S. Securities and Exchange Commission ("SEC"), shall be borne by the Company,
except that: (1) the Company shall not be responsible for the costs and expenses
of the Seller's counsel or other professional advisors, if any, in connection
therewith; and (2) the Company shall only be responsible for the costs and
expenses, if any, of registering the Shares for resale in the State of Florida
(for which the Company shall use its best efforts to cause such registration
statement to become effective, if such registration is in fact required in such
State in order for the Buyer to sell the Shares without restriction). After such
registration statement may be declared effective by the SEC, the Company shall
only be obligated to use its best efforts to keep such registration statement
and related prospectus effective for the lesser of nine months from the
effective date of such registration statement or until such time as all of the
Shares have been beneficially owned and held by the Buyer for one year from
their respective date of purchase. Notwithstanding the foregoing, the Company
shall not be required to undertake such registration statement with the SEC and
the State of Florida if any of the Shares have been beneficially owned and held
by the Buyer for one or more years. Further, and not by way of limitation of any
of the foregoing, the Company may delay filing a registration statement and may
withhold efforts to cause the registration statement to become effective: (1) if
the Company determines in good faith that such registration (a) might interfere
with or affect the negotiation or completion of any transaction that is being
contemplated by the Company (whether or not a final decision has been made to
undertake such transaction) at the time the right to delay is exercised by the
Company, or (b) involves initial or continuing disclosure obligations that might
not be in the best interest of the Company's stockholders; or (2) the demand for
registration is made at any time within 60 days prior to the Company's fiscal
year end or within 90 days following the Company's fiscal year end. Any such one
time demand registration right shall be made by the Buyer, if at all, in writing
addressed to the Company at its address set forth in the notice provisions
herein, attention: President. If, after a registration statement becomes
effective, the Company advises the Buyer that the Company considers it
appropriate for the registration statement to be amended, the Buyer shall
suspend any further sales of the Shares until the Company advises the Buyer that
the registration statement has been amended. In connection with any such
registration statement, the Buyer agrees to provide the Company and any
underwriter of the Shares with standard indemnification relating to any
information provided by the Buyer to the Company and such underwriter, if any,
for use in the registration statement.
5. Representation and Warranties of the Buyer. The Buyer represents and
warrants to the Company that:
(a) Authority. The Buyer has all necessary power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
provided for herein. This Agreement has been duly executed and delivered by the
Buyer and constitutes a valid and binding
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obligation of the Buyer enforceable in accordance with its terms except as may
be limited by equitable principles. The execution, delivery and performance of
this Agreement by the Buyer does not and will not violate any provision of any
law, regulation or order, or result in the breach of, or constitute a default
under, any material agreement or instrument to which the Buyer is a party or by
which the Buyer may be bound or affected.
(b) The Buyer's purchase of the Shares hereunder has not been
solicited by means of general solicitation or by advertisement.
(c) The Buyer has sufficient liquid assets to sustain a loss of the
Buyer's entire investment.
(d) The Buyer is an accredited investor as that term is defined in
Regulation D promulgated under the Securities Act of 1933, as amended (the
"Act").
(e) The Buyer has such knowledge and experience in financial,
investment and business matters that he/it is capable of evaluating the merits
and risks of the prospective investment in the Shares of the Company being
purchased from the Company on the terms and conditions as set forth herein which
the Buyer has read and fully understands. In connection with his/its review, the
Buyer has consulted with such independent legal counsel or other advisers
considered appropriate to assist the undersigned in evaluating his/its proposed
investment in the Company. In particular, and not in limitation of the
foregoing, the Buyer has taken full cognizance of and understands:
(i) that the Shares are speculative investments which involve a
high degree of risk of loss of the Buyer's entire investment in the Company;
(ii) that there are substantial restrictions on the transferability
of the Shares, that the Shares are not registered under the Act and are
considered "restricted securities" as that term is defined in Rule 144
promulgated under the Act. There is no developed public market for the Shares
and there is no assurance that a developed and/or sustainable public market will
ever occur; accordingly, the Buyer may have to hold the Shares indefinitely and
it may not be possible for an the Buyer liquidate an investment in the Company,
and there is high degree of risk of loss of an investor's entire investment in
the Company;
(f) The Buyer (i) has adequate means of providing for his/its current
financial needs and possible personal contingencies, and has no need for
liquidity of his/its investment in the Company; (ii) can afford (a) to hold
unregistered securities for an indefinite period of time and (b) sustain a
complete loss of the entire amount of the purchase; (iii) has not made an
overall commitment to investments which are not readily marketable which is
disproportionate so as to cause such overall commitment to become excessive; and
(iv) confirms that there has been no material adverse change in the information,
financial and other, previously given to the Company in order to induce the
Company to sell the Shares.
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6. Indemnification. The undersigned understands that the Shares are
being sold without registration under the Act and in reliance upon the exemption
for transactions by an issuer not involving any public offering, and upon the
provisions of Regulation D promulgated under the Act; that the availability of
such exemption is, in part, dependent upon the truthfulness and accuracy of the
representations made by the Buyer herein; that the Company will rely on such
representations in accepting the purchase price for the Shares and that the
Company may take such steps as it considers reasonable to verify the accuracy
and truthfulness of such representations in advance of accepting or rejecting
the Buyer's purchase. The Buyer agrees to indemnify and hold the Company
harmless against any damage, loss, expense or cost, including reasonable
attorneys' fees, sustained as a result of any misstatement or omission on the
Buyer's part.
7. Rescission Rights for Florida Subscribers. The Buyer acknowledges
that he/it is aware that the Shares being offered hereby have not been
registered under the Florida Securities and Investor Protection Act by reason of
an exemption pursuant to Section 517.061(11) thereof. Unless the securities are
registered, they may not be re-offered for sale or resold in the State of
Florida except as a security, or in a transaction, exempt under said Act.
8. Entire Agreement. This Agreement constitutes the complete
understanding between the parties hereto with respect to the subject matter
hereof, and no alteration, amendment or modification of any of the terms and
provisions hereof shall be valid unless made pursuant to an instrument in
writing signed by each party. This Agreement supersedes and terminates any and
all prior agreements or understandings between the parties regarding the subject
matter hereof. This Agreement and the rights and obligations of the respective
parties may not be assigned without the prior written approval of the other
party, which approval may be withheld in such other party's sole discretion and
without any liability to such withholding party.
9. Fees and Costs. The Seller and the Buyer shall each bear their own
fees and costs incurred in connection with this Agreement.
10. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, executors, successors and assigns.
11. Governing Law. This Agreement has been made in and shall be
construed and enforced solely in accordance with the laws of the State of
Florida.
12. Notices. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered or
mailed, certified mail, return receipt requested, or via telecopier, as follows:
(a) If to the Company, at: Edgetech Inernational, Inc.
000 Xxxxx Xxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
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Attn: Xxx Xxxxxx, President
Telecopier No. (000) 000-0000
(b) If to the Buyer, at: Xxxxxxxxx & Xxxxxxx Group, LLC
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx, Managing Member
Telecopier No. (000) 000-0000
Each party may change the address for the receipt of notice hereunder
by giving written notice thereof to the other party.
13. Survival of Representations and Warranties. All representations and
warranties made by the Company and the Buyer shall survive all Closings
hereunder.
14. Jurisdiction and Venue; Attorney's Fees and Costs. Any claim or
controversy arising out of or relating to the interpretation, application or
enforcement of any provision of this Agreement, shall be submitted for
resolution to a court of competent jurisdiction solely in Palm Beach County,
Florida. The parties hereby consent to personal jurisdiction and venue in Palm
Beach County, Florida. The prevailing party in any action and/or proceeding
relating to or arising from this Agreement shall be entitled to recover his/its
reasonable attorney's fees and costs from the other party.
15. Construction and Severability. In the event any provision in this
Agreement shall, for any reason, be held to be invalid or unenforceable, this
Agreement shall be construed as though it did not contain such invalid or
unenforceable provision, and the rights and obligations of the parties hereto
shall continue in full force and effect and shall be construed and enforced in
accordance with the remaining provisions hereof.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Paragraph Headings. The paragraph headings contained in this
Agreement are for convenience only and shall not affect in any manner the
meaning or interpretation of this Agreement.
18. Rule of Construction Relating to Ambiguities. All parties to this
Agreement acknowledge that they have each carefully read and reviewed this
Agreement with their respective counsel and/or other representative, and
therefore, agree that the rule of construction that ambiguities shall be
construed against the drafter of the document shall not be applicable.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the
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day and year first above written.
COMPANY: BUYER:
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EDGETECH INTERNATIONAL, INC. XXXXXXXXX & XXXXXXX GROUP, LLC
By: /s/ Xxx Xxxxxx By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxx, President Xxx Xxxxxxx, Managing Member
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SCHEDULE A
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DATE NUMBER OF SHARES AGGREGATE PURCHASE PRICE
From time to time with-
in 90 days of the date
first set forth above,
with an additional
2 week grace
period from such
90th day. $3,000,000.00 *
* To be based upon the opening bid price on each of the Closing Dates, less 25%.
The above acknowledged and agreed to:
COMPANY: BUYER:
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EDGETECH INTERNATIONAL, INC. XXXXXXXXX & XXXXXXX GROUP, LLC
By: /s/ Xxx Xxxxxx By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxx, President Xxx Xxxxxxx, Managing Member
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