STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement"), dated as of
______________, 2000 is by and between ____________, an individual
("PURCHASER"), and XXXXXXXXXXXXXXXX.XXX, INC., a Delaware corporation
("SELLER") (collectively, the "PARTIES").
W I T N E S S E T H
WHEREAS, SELLER is offering for sale a maximum of 5,000,000 units
(the "Units"), each unit consisting of one share of SELLER'S common stock
(the "Shares") and one warrant, exercisable at $______ and expiring two years
after the date of issuance (the "Warrants"), at $______ per Unit, minimum
investment $25,000 (______ Units).
WHEREAS, SELLER desires to sell to PURCHASER and PURCHASER desires
to purchase from SELLER, _________ Units of SELLER (the "Units") upon the
terms and conditions set forth herein.
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the PARTIES hereto as
follows:
ARTICLE 1.
SALE AND PURCHASE OF THE UNITS
1. SALE OF THE UNITS. Upon execution of this Agreement (the "Closing"),
subject to the terms and conditions herein set forth, and on the basis of the
representations, warranties and agreements herein contained, SELLER shall sell
to PURCHASER, and PURCHASER shall purchase from SELLER, the Units.
1.2 INSTRUMENTS OF CONVEYANCE AND TRANSFER. As soon as practicable
after the Closing, SELLER shall deliver a certificate or certificates
representing the Units of SELLER to PURCHASER sufficient to transfer all right,
title and interest in the Units to PURCHASER.
1.3 CONSIDERATION AND PAYMENT FOR THE UNITS. In consideration for the
Units, PURCHASER shall pay a purchase price of a total of _________________
dollars ($___________) ($_______________per Unit) ("Purchase Price").
ARTICLE 2
REPRESENTATIONS AND COVENANTS OF SELLER AND PURCHASER
2.1 SELLER hereby represents and warrants that:
(a) The Units issued hereunder (the "Units") have been duly
authorized by the appropriate corporate action of SELLER.
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(b) SELLER shall transfer title, in and to the Units to
PURCHASER free and clear of all liens, security interests, pledges,
encumbrances, charges, restrictions, demands and claims, of any kind and nature
whatsoever, whether direct or indirect or contingent.
2.2 As soon as practicable after the Closing Date, SELLER shall deliver
to PURCHASER a certificate or certificates representing the Units subject to no
liens, security interests, pledges, encumbrances, charges, restrictions, demands
or claims in any other party whatsoever, except as set forth in the legend on
the certificate, which legend shall provide as follows:
THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT
IS AVAILABLE.
2.3. PURCHASER acknowledges that the Units will initially be
"restricted securities" (as such term is defined in Rule 144 promulgated under
the Securities Act of 1933, as amended ("Rule 144"), that the Units will include
the foregoing restrictive legend, and, except as otherwise set forth in this
Agreement, that the Units cannot be sold for a period of at least one year from
the date of issuance unless registered with the United States Securities and
Exchange Commission ("SEC") and qualified by appropriate state securities
regulators, or unless PURCHASER obtains written consent from SELLER and
otherwise complies with an exemption from such registration and qualification
(including, without limitation, compliance with Rule 144).
2.4 SELLER certifies that attached hereto as Exhibit A is the Warrant
Agreement and form of Warrant Certificate setting forth the terms of the
Warrants. Exhibit A is incorporated herein by reference as though fully set
forth herein.
2.5 PURCHASER acknowledges and agrees that SELLER makes no other
representations or warranties with respect to the Units or the SELLER.
2.6 PURCHASER represents and warrants to SELLER as follows:
(a) PURCHASER has adequate means of providing for current
needs and contingencies, has no need for liquidity in the investment, and is
able to bear the economic risk of an investment in the Units offered by SELLER
of the size contemplated. PURCHASER represents that PURCHASER is able to bear
the economic risk of the investment and at the present time could afford a
complete loss of such investment. PURCHASER has had a full opportunity to
inspect the books and records of the SELLER and to make any and all inquiries of
SELLER officers and directors regarding the SELLER and its business as PURCHASER
has deemed appropriate.
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(b) PURCHASER is an "Accredited Investor" as defined in
Regulation D of the Securities Act of 1933 (the "Act") and PURCHASER, either
alone or with PURCHASER's professional advisers who are unaffiliated with, have
no equity interest in and are not compensated by SELLER or any affiliate or
selling agent of SELLER, directly or indirectly, has sufficient knowledge and
experience in financial and business matters that PURCHASER is capable of
evaluating the merits and risks of an investment in the Units offered by SELLER
and of making an informed investment decision with respect thereto and has the
capacity to protect PURCHASER's own interests in connection with PURCHASER's
proposed investment in the Units.
(c) PURCHASER is acquiring the Units solely for PURCHASER'S
own account as principal, for investment purposes only and not with a view to
the resale or distribution thereof, in whole or in part, and no other person or
entity has a direct or indirect beneficial interest in such Units.
(d) PURCHASER will not sell or otherwise transfer the Units
without registration under the Act or an exemption therefrom and fully
understands and agrees that PURCHASER must bear the economic risk of PURCHASER'S
purchase for an indefinite period of time because, among other reasons, the
Units have not been registered under the Act or under the securities laws of any
state and, therefore, cannot be resold, pledged, assigned or otherwise disposed
of unless they are subsequently registered under the Act and under the
applicable securities laws of such states or unless an exemption from such
registration is available.
ARTICLE 3
REGISTRATION RIGHTS
3.1 PIGGYBACK REGISTRATION RIGHTS. If the COMPANY at any time proposes
to register any of its securities under the Act, including under an SB-2
Registration Statement or otherwise, the COMPANY will use its best efforts to
cause all of the Shares and all of the shares of common stock underlying the
Warrants owned by PURCHASER to be registered under the Act (with the securities
which the COMPANY at the time propose to register), all to the extent requisite
to permit the sale or other disposition by the PURCHASER; provided, however,
that the COMPANY may, as a condition precedent to its effecting such
registration, require the PURCHASER to agree with the COMPANY and the managing
underwriter or underwriters of the offering to be made by the COMPANY in
connection with such registration that the PURCHASER will not sell any
securities of the same class or convertible into the same class as those
registered by the COMPANY (including any class into which the securities
registered by the COMPANY are convertible) for such reasonable period after such
registration becomes effective as shall then be specified in writing by such
underwriter or underwriters if in the opinion of such underwriter or
underwriters the COMPANY's offering would be materially adversely affected in
the absence of such an agreement. All expenses incurred by the COMPANY in
complying with this Section, including without limitation all registration and
filing fees, listing fees, printing expenses, fees and disbursements of all
independent accounts, or counsel for the COMPANY and or counsel for the
PURCHASER and the expense of any special audits incident to or required by any
such registration and the expenses of complying with the
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securities or blue sky laws of any jurisdiction shall be paid by the COMPANY.
Notwithstanding the foregoing, PURCHASER shall pay all underwriting discounts or
commissions with respect to any securities sold by the PURCHASER.
3.2 INDEMNIFICATION.
(a) In the event of any registration of any of its securities
under the Act pursuant to this Section, the COMPANY hereby indemnifies and holds
harmless the PURCHASER (which phrase shall include any underwriters of such
securities), their respective directors and officers, and each other person who
participates, in the offering of such securities and each other person, if any,
who controls the PURCHASER, or such participating persons within the meaning of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which each the PURCHASER or any such director or officer or participating
person or controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained, on the effective date thereof, in any
registration statement under which such securities were registered under the
Act, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon any omission
or alleged omission to state therein an material fact required to be stated
therein or necessary to make the statements therein not misleading; and will
reimburse each the PURCHASER and each director, officer or participating or
controlling person for any legal or any other expenses reasonably incurred by
the PURCHASER or such director, officer or participating or controlling person
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the COMPANY shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, preliminary
prospectus or prospectus or amendment or supplement in reliance upon and in
conformity with written information furnished to the COMPANY through an
instrument duly executed by the PURCHASER specifically stating that it is for
use therein. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the PURCHASER or such directors,
officer or participating or controlling person, and shall survive the transfer
of such securities by the PURCHASER.
(b) The PURCHASER shall by acceptance thereof, indemnify
and hold harmless the COMPANY and its directors and officers, and each
person, if any who controls the COMPANY, against any losses, claims, damages
or liabilities, joint or several, to which the COMPANY or any director or
officer or any such person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained, on the effective date
thereof, in any registration statement under which securities were registered
under the Act at the request of such holder, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged
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omission was made in such registration statement, preliminary prospectus,
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the COMPANY through an instrument duly
executed by or on behalf of such holder specifically stating that it is for
use therein; and will reimburse the COMPANY or such director, officer or
person for any legal or any other expense reasonably incurred in connection
with investigation or defending any such loss, claim, damage, liability or
action.
3.3 RULE 144. If the COMPANY shall be subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "1934
Act"), the COMPANY will use its best efforts timely to file all reports required
to be filed from time to time with the SEC (including but not limited to the
reports under Section 13 and 15(d) of the 1934 Act referred to in subparagraph
(c)(1) of Rule 144 adopted by the SEC under the Act). If there is a public
market for any securities of the COMPANY at any time that the COMPANY is not
subject to the reporting requirements of either of said Section 13 or 15(d), the
COMPANY will, upon the request of PURCHASER, use its best efforts to make
publicly available the information concerning the COMPANY referred to in
subparagraph (c)(2) of said Rule 144. The COMPANY will furnish to PURCHASER,
promptly upon request, (i) a written statement of the COMPANY's compliance with
the requirements of subparagraphs (c)(1) or (c)(2), as the case may be, of said
Rule 144, and (ii) written information concerning the COMPANY sufficient to
enable PURCHASER to complete any Form 144 required to be filed with the SEC
pursuant to said Rule 144.
ARTICLE 4
MISCELLANEOUS
4.1 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statements, certificates, or other documents delivered pursuant hereto
or in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so set forth.
4.2 NOTICES. Any notice, request, instruction, or other document
required by the terms of this Agreement, or deemed by any of the parties hereto
to be desirable, to be given to any other party hereto shall be in writing and
shall be given by facsimile, personal delivery, overnight delivery,
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or mailed by registered or certified mail, postage prepaid, with return receipt
requested, to the following addresses:
TO SELLER: xxxxxxxxxxxxxxxx.xxx, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Mr. Xxx Xxxxxxxx, Secretary/Treasurer
TO PURCHASER:
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Fax: ( )
--- ----------------
Attn:
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WITH COPY TO: XXXXXXX & BEAM
Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esq.
The persons and addresses set forth above may be changed from time to time by a
notice sent as aforesaid. If notice is given by facsimile, personal delivery, or
overnight delivery in accordance with the provisions of this Section, said
notice shall be conclusively deemed given at the time of such delivery. If
notice is given by mail in accordance with the provisions of this Section, such
notice shall be conclusively deemed given seven days after deposit thereof in
the United States mail.
4.3 WAIVER AND AMENDMENT. Any term, provision, covenant,
representation, warranty or condition of this Agreement may be waived, but only
by a written instrument signed by the party entitled to the benefits thereof.
The failure or delay of any party at any time or times to require performance of
any provision hereof or to exercise its rights with respect to any provision
hereof shall in no manner operate as a waiver of or affect such party's right at
a later time to enforce the same. No waiver by any party of any condition, or of
the breach of any term, provision, covenant, representation or warranty
contained in this Agreement, in any one or more instances, shall be deemed to be
or construed as a further or continuing waiver of any such condition or breach
or waiver of any other condition or of the breach of any other term, provision,
covenant, representation or warranty. No modification or amendment of this
Agreement shall be valid and binding unless it be in writing and signed by all
parties hereto.
4.4 CHOICE OF LAW. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of California including all matters of construction, validity,
performance, and enforcement and without giving effect to the principles of
conflict of laws.
4.5 JURISDICTION. The parties submit to the jurisdiction of the Courts
of the County of Orange, State of California or a Federal Court empaneled in the
State of California for the
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resolution of all legal disputes arising under the terms of this Agreement,
including, but not limited to, enforcement of any arbitration award.
4.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
4.7 ATTORNEYS' FEES. Except as otherwise provided herein, if a dispute
should arise between the parties including, but not limited to arbitration, the
prevailing party shall be reimbursed by the non-prevailing party for all
reasonable expenses incurred in resolving such dispute, including reasonable
attorneys' fees exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
4.8 TAXES. Any income taxes required to be paid in connection with the
payments due hereunder, shall be borne by the party required to make such
payment. Any withholding taxes in the nature of a tax on income shall be
deducted from payments due, and the party required to withhold such tax shall
furnish to the party receiving such payment all documentation necessary to prove
the proper amount to withhold of such taxes and to prove payment to the tax
authority of such required withholding.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the date first written hereinabove.
PURCHASER
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By:
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Its:
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SELLER
THEHEALTHCHANNEL, INC.
a Delaware corporation
By: Xxx Xxxxxxxx
Its: Secretary and Treasurer
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