SUBSCRIPTION AND STOCK
The undersigned corporation,
FIRST PARTY (the "Company") and the SECOND PARTY (the
"Investor"), hereby agree as follows:
1. Subscription for Shares.
By execution of this Subscription and Stock Purchase Agreement
(the "Agreement"), the Investor hereby subscribes for
and, subject to the terms a conditions of this Agreement and
in reliance on the representations, warranties and promises contained
herein, agree to purchase that number of fully paid and nonassessable
shares of common stock of the corporation, free and clear of
all liens, claims, and encumbrances. In consideration I the issuance
of the Shares to each undersigned Investor, severally and not
jointly, agrees to pay the Company, in legal tender of the United
States of America, an amount equal to $10.00 per share subscribed
for by such Investor, in cash, or by check or by wire transfer
to Company's account.
Authorization and Sale of
2.1. Authorization of the
Shares. The Company has, or before the Closing (hereinafter
defined) will have, authorized the issuance, sale and delivery
of the shares.
2.2. Sale of the Shares.
Subject to the terms and conditions hereof and in reliance up
the representations contained herein, the Company agrees to issue,
sell and deliver to each Investor the shares as follows:
Closing Date; Delivery
3.1 Closing Date. The
closing with respect to the purchase and sale of the shares identified
in paragraph 2.2 hereunder (the "Closing") shall be
held following the execution delivery of this Agreement at a
place and time determined pursuant to paragraph 3.3 (the Date")
or at such other time and place as shall be mutually agreed upon
by the Company and Investors.
3.2 Delivery. At the Closing,
the Company will deliver to each Investor a certificate certificates
registered in such Investor's name or such nominee as said Investor
may previously requested in writing, each certificate to be properly
executed and sealed by duly authorized of the Company. Such certificates
shall represent all the shares subscribed for by such Investor
shall be delivered against payment therefor in the manner provided
for herein. All effected at the Closing shall be deemed complete,
and no document delivered, until all are completed and all documents
3.3 Closing. The time
and place of Closing (which shall be at the time and place delivery
to Investors by the Company of the certificates evidencing all
the shares being and the place of delivery to the Company of
payment or satisfactory evidence of payment by Investors of the
purchase price therefor) shall be at __________ o'clock on _______________,
at the office of GARRIDO & ASSOCIATES LAW OFFICE at Makati
City, Metro Manila, or such other place and time as Company and
all the Investors shall unanimously agree upon. Unless waived
in the provided herein, all conditions to closing specified in
this Agreement shall be satisfied at or to Closing.
Representations and Warranties
of the Company
The Company represents, warrants
and covenants to and with each Investor as follows:
4.1 Organization and Standing: Articles and Bylaws. The
Company is a corporation duly organized, validly existing and
in good standing under the laws of the Philippines. Copies of
the Company's Articles of Incorporation and Bylaws appended hereto
as Exhibit "A" are true, correct and complete copies
of the originals, each of which remains in full force and effect
an has not been repealed.
4.2 Corporate Power and Government
Consents. The Company has all requisite corporate power to
enter into this Agreement, to sell the shares, to carry out and
perform its obligations under the terms of this Agreement, and
to carry out its business. Assuming the accuracy of the Investors'
representations hereunder, no consent, authorization, approval,
permit or order o or declaration to or filing with any governmental
or regulatory authority is required in connection with: (i) the
execution, delivery and performance of this Agreement; (ii) the
offer, issuance, sale delivery of the shares; or (iii) for the
issuance of common stock to the Investors.
4.3 Capitalization. Immediately
prior to the Closing, the Company's authorized, issue and outstanding
common stock and all options, rights, and warrants with respect
to such stock shall be as described in Exhibit "B".
All outstanding shares of common stock have been duly and valid]
issued, are fully paid and nonassessable, and the issuance and
sale of such shares by the Company was effected in compliance
with the federal securities laws and any applicable state securities
law An accurate list of the Company's current stockholders and
their holdings immediately prior to the Closing is set forth
on Exhibit "B". Except as disclosed herein and except
for the sale of shares provided for under this Agreement and
the rights of the holders of shares contemplated by this Agreement,
no person is entitled to any preemptive or similar statutory
rights or to any contractual right of first refusal, option,
warrant or other right to purchase or acquire any shares (including
the shares herein) of the Company. Except for the sale of shares
at the Closing pursuant to this Agreement, the Company has no
present plan to issue or sell any stock of any class to any person.
4.4 Authorization and Reservation
of Shares. All corporate action on the part of the Company,
its directors and shareholders necessary for or appropriate to
or in connection with the execution, delivery and performance
by the Company of this Agreement and the consummation the transactions
contemplated herein, including without limitation the authorization,
issuance ax delivery of the shares, has been taken or will be
taken prior to Closing. The resolution of the Boa of Directors
authorizing the issuance and sale of the shares to be sold pursuant
to this Agreement remains in full force and effect and such Resolution
is appended hereto as Exhibit "C". This Agreement is
a legal, valid and binding obligation of the Company, enforceable
in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, and moratorium laws and other similar
laws of general application relating to the enforcement of creditors
The shares when issued and sold
in accordance with the terms of this Agreement, will 1 validly
issued, fully paid and nonassessable and will be free and clear
of any lien, claim encumbrance whatsoever, excepting only restrictions
on transfer imposed under this Agreement
4.5 Subsidiaries. The
Company has no subsidiaries (which term shall include any dire
or indirect ownership interest in any other corporation, partnership,
association, firm or business except as set forth in Exhibit
4.6 Financial Statements.
Since the Company is a newly-formed corporation, there a no financial
statements available to the Investors. Financial statements to
be provided in the future will be prepared in accordance with
generally accepted accounting principles consistently applied
subject to changes from year end adjustments.
4.7 Litigation. The Company
has been in existence for two months and there are no legal actions,
suits, arbitrations or other legal, administrative or governmental
proceedings pending or threatened against the Company, or against
any employee, officer, director or stockholder of the Company.
The Company is not aware of any facts that might result in or
form the basis of such action, suit, arbitration or other proceeding
on any basis whatsoever (including without limitation any action
arising out of or connected with any prior sale or offer to sell
any security of or interest in the Company).
4.8 Compliance with Laws and
Other Instruments. The business and operations of the Company
will be conducted in accordance with all applicable laws, rules,
regulations, judgments at decrees in all material respects. Neither
the execution, delivery or performance of this Agreement nor
the offer, issuance, sale or delivery of the shares, with or
without the giving of notice or passage of time, or both, will
(i) violate, or result in any breach of, or constitute a default
under, or result the imposition of any encumbrance upon any asset
of the Company pursuant to any provision of at corporate charter,
bylaws, contract, judgment, decree or other document or instrument
or (ii) to the best of the Company's knowledge, will cause the
Company to lose the benefit of any right privilege it presently
enjoys or cause any person who normally does business with the
Company discontinue to do so on the same basis. Subject to the
accuracy of the Investor's representations contained in Section
V hereof, the offer, sale and issuance of the shares pursuant
to the terms of the Agreement are exempt from registration under
the Securities Act, as amended (the "Act") and any
applicable state securities law. Neither the Company nor any
agent acting c its behalf has, directly or indirectly, sold or
offered for sale, or solicited any offers to buy, at securities,
or otherwise approached or negotiated with any person or persons,
so as to subject the offer or sale of the shares or any securities
previously offered or sold by the Company, to the provisions
of the Securities Act amended, or to the law of any state; the
Company agrees that neither it nor any agent acting on its behalf
will take any action that would subject the offer or sale of
the shares to any such provision.
4.9 Permits, Patents, Trademarks,
and Licenses. The Company has all franchise permits, licenses
and other similar authority necessary for the conduct of its
business as planned be conducted, and it is not in default under
any of them.
4.10 Employee Matters.
The Company does not have in effect nor has any present intention
to put into effect any employment agreements, deferred compensation,
pension retirement agreements or arrangements, bonus, stock purchase,
incentive or profit-sharing plans ( arrangements, or labor or
collective bargaining agreements, written or oral, whether legally
binding or in the nature of informal understandings.
4.11 Brokers and Finders.
No person or firm has, or will have, any right, interest or valid
claim against the Company for any commission, fee or other compensation
in connection with the sale of the shares as a finder or broker
or in any similar capacity as a result of any act or omission
by the Company or anyone acting on behalf of the Company.
4.12 Disclosure. No writing
furnished to any Investor pursuant to or in conjunction with
this Agreement by the Company or anyone acting on its behalf
contains any untrue statement material fact. Together they do
not omit to state any material fact required to make the statement
herein or therein not misleading in the light of the circumstances
under which those statements were made. The projections contained
in any document provided to the Investors have been prepared
in good faith by the Company on the basis of assumptions which
the Company reasonably believes to be reasonable, but the Company
makes no representation that its actual operating results will
conform to any such projection. There is no fact known to the
Company that materially adverse affects, or threatens in the
future to materially adversely affect, the business, assets,
liabilities, condition (financial or otherwise), affairs, operations
or prospects of the Company which has n' been disclosed by the
Company to each Investor.
4.13 Use of Loan Proceeds.
The company will use the proceeds of loans from the Investors
for the purpose previously disclosed to the Investors. Prior
to the expenditure, the loan proceeds will be deposited in the
Company's bank accounts.
and Covenants of Each Investor
5.1 Representations. Each
Investor, severally and not jointly, represents and warrants
to the Company for himself, herself, or itself alone that:
A. this Agreement constitutes
a valid and binding obligation of such Investor;
B. no person or firm has, or
will have, as a result of any act or omission by such Investor,
any right, interest or valid claim against the Company, for any
commission, fee or other compensation as a finder or broker in
any similar capacity; and
C. such Investor (a) has been
furnished such information and documents as may have requested,
has been given the opportunity to meet with Company officials
and to have such persons answer questions regarding the Company
intended business operation, and is, on the basis of such access,
opportunity and information, able to make an informed investment
decision regarding investment in the shares and additional loans
to the Company, and (b) acquiring the shares being purchased:
(i) for the account of such Investor, ( for investment and not
with a view to, or for sale in connection with, a distribution
of said shares or with any present intention of distributing
selling said shares, and (iii) without any reason to anticipate
any change circumstances or any particular occasion or event
which would cause such Investor to sell said shares or assign
D. such Investor is an "Accredited
Investor" within the meaning of the applicable SEC Rules
5.2 Covenants. Each Investor
severally and not jointly covenants to the Company a the other
Investors that it will not sell or otherwise transfer any of
the shares except in accordance with the Act and other applicable
securities laws and that prior to any transfer (other than pursuant
to an effective registration under the Act and other applicable
securities laws) he will furnish to the Company a written opinion
of counsel, reasonably satisfactory in form and substance to
t Company, to the effect that registration under the Act is not
required in connection with the propos transfer. The Company
will promptly review any such opinion to determine whether it
is reasonably satisfactory in form and substance.
Each Investor acknowledges that
he is aware that he will not be entitled to make any public offer
or public sale of any of the shares for an indefinite period
unless those shares are registered under the Securities Act.
Also, except as provided in this Agreement, the Company will
not be obligated to supply Investors or other persons with the
information required for sales under the Securities Act. Accordingly,
each Investor understands that he must bear the economic risk
of his investment in the shares.
5.3 Legends. Each Investor
acknowledges that the certificates evidencing the shares after
they shall have been transferred pursuant to an effective registration
statement, will conspicuously bear a legend substantially in
the following form until the counsel for the Company determines
that the legend is no longer required:
The shares evidenced by this
certificate have not been registered under the Securities Act
of 1933, as amended, and must be held indefinitely unless they
are transferred pursuant to an effective registration statement
under that Act, or after receipt of an opinion of counsel reasonably
satisfactory to the Company that registration is not required.
Each certificate evidencing the
shares shall also bear such legends as counsel for the Company
shall deem appropriate with respect to restrictions contained
in other agreement applicable thereto.
Each Investor acknowledges that
appropriate stop transfer orders may be noted on if Company's
stock records with respect to all certificates so legended.
Conditions to Closing of Investors
Each Investor's obligation to
purchase the shares subscribed for at the Closing is subject
1 the fulfillment, to the satisfaction of all Investors, on or
prior to the Closing Date of each of if following conditions:
6.1 Representations and Warranties
Correct; Performance. The representations and warranties
made by the Company in Section 4 hereof, and by each Investor
in Section 5 hereof, shall be true and correct in all material
respects when made, and shall be true and correct in all material
respects on the Closing Date with the same force and effect as
if they had been made on and as the Closing Date; and all covenants,
agreements, and conditions contained in this Agreement to I performed
or complied with by the Company on or prior to the Closing Date
shall have be performed or complied with in all material respects.
6.2 Investment. All Investors
shall at the Closing purchase and pay for that number shares
subscribed for as specified in paragraph 2.2 above. In addition,
each Investor shall advance the first installment as provided
in the Promissory Note executed by the Corporation to each Investor
6.3 Proceedings and Documents.
All corporate and other proceedings in connection with the transactions
contemplated hereby and all documents and instruments incident
to such transactions shall be satisfactory in substance and form
to each Investor and to the Company.
6.4 Legal Investment.
At the time of the Closing the purchase of shares by each Invest
shall be legally permitted by the laws and regulations to which
each Investor and the Company m~ be subject.
Conditions to Closing of Company
The Company's obligation to sell
the shares to be purchased at the Closing is subject to the fulfillment
to its satisfaction on or prior to the Closing Date of the conditions
that the representations made by each Investor pursuant to Section
V hereof shall be true and correct when made and shall be true
and correct in all material respects on the Closing Date, and
to the requirement that t Conditions to Closing of Investors
contained in Sections 6.2, 6.3 and 6.4 have been satisfied and
performed in all material respects.
Definitions and Miscellaneous
8.1 Certain Defined Terms.
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined), tot
he extent they may have a meaning beyond that ascribed by common
"Act" means the Securities
Act, as amended from time to time.
"Agreement" means this
Stock Purchase Agreement as from time to time amended and effect
between the parties, including all Exhibits hereto, all such
Exhibits being incorporated in this Agreement by reference.
"Company" means the
issuer of the shares identified in Section I.
mean Wilson Finance & Investment, Inc., Gregory Paul and
Kent B. Shelley.
"Person" means any
individual or any entity or organization whether or not in corporate
f and regardless of whether such entity or organization is a
juristic or legal person, and any agent, board, branch or division
of any government.
"Shares" shall have
the meaning ascribed in Section I.
8.2 Incorporation by Reference.
All schedules, exhibits, and attachments to Agreement are incorporated
herein by reference and form a part of this Agreement, to the
5 extent as if set forth herein in full.
8.3 No Waiver; Cumulative
Remedies. No failure or delay on the part of any part 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
further exercise thereof or the exercise of any other right,
power or remedy hereunder. The remedy herein provided are cumulative
and not exclusive of any remedies provided by law.
8.4 Amendments, Waivers and
Consents. Any provision in this Agreement to contrary notwithstanding,
and except as hereinafter provided, changes in or additions to
Agreement may be made, and compliance with any covenant or provision
set forth herein may be omitted or waived, if Investors owning
or representing at least 66 2/3% of the voting power of the shares
then outstanding shall consent thereto in writing and shall deliver
copies of such consent writing to any Investors or permitted
assignees who did not execute such consents. Any waiver consent
may be given subject to satisfaction of conditions stated therein
and any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
8.5 Addresses for Notices,
etc. All notices, requests, demands and other communications
provided for hereunder shall be in writing (including electronic
mail or telegraphic communications and mailed, telegraphed or
delivered to the Company or to each Investor at the address set
fort below the respective signatures hereto or at such other
address as to which such party may inform the other parties in
writing in compliance with the terms of this Section.
If to any other holder of the
shares: at such holder's address for notice as set forth in the
register maintained by the Company, or, as to each of the foregoing,
at such other address as shall be designated by such Person in
written notice to the other parties complying as to delivery
with the terms of this Section.
All such notices, requests, demands
and other communications shall, when mailed (by registered mail,
return receipt requested, postage prepaid) or telegraphed, be
effective when deposited in the mails or delivered to the telegraph
company, respectively, addressed as aforesaid unless otherwise
provided herein, and otherwise such notices shall be effective
8.6 Binding Effect; Assignment.
This Agreement shall be binding upon and inure to the benefit
of the Investors and their respective heirs, successors and (to
the extent specifically permitted herein) assigns.
8.7 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 or therewith, shall survive
the execution and delivery hereof or thereof
8.8 Prior Agreements.
This Agreement, together with the Schedules hereto and documents
referenced in each, constitutes the entire agreement between
the parties and supersedes any prior understandings or agreements
concerning the subject matter hereof
8.9 Severability. The
invalidity or unenforceability of any provision hereof shall
in no way affect the validity or enforceability of any other
8.10 Governing Law. This
Agreement shall be governed by, and construed in accordance with,
the laws of the Philippines.
8.11 Headings. 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.
8.12 Counterparts. This
Agreement may be executed in any number of counterparts, of which
taken together shall constitute one and the same instrument,
and any of the parties may execute this Agreement by signing
any such counterpart.