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SECURITIES PURCHASE AGREEMENT

Purchase and Sale Agreement

SECURITIES PURCHASE AGREEMENT | Document Parties: NOBLE MEDICAL TECHNOLOGIES, INC. | Trinad Capital Master Fund, Ltd You are currently viewing:
This Purchase and Sale Agreement involves

NOBLE MEDICAL TECHNOLOGIES, INC. | Trinad Capital Master Fund, Ltd

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Title: SECURITIES PURCHASE AGREEMENT
Governing Law: California     Date: 2/12/2009
Law Firm: Mintz Levin    

SECURITIES PURCHASE AGREEMENT, Parties: noble medical technologies  inc. , trinad capital master fund  ltd
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SECURITIES PURCHASE AGREEMENT

 

THIS SECURITIES PURCHASE AGREEMENT is entered into as of February 6 , 2009 (this “Agreement”), by and between Richard Krutosik (the “Seller”) and Trinad Capital Master Fund, Ltd. (the “Buyer”).  Each party to this Agreement is referred to herein as a “Party,” and they are all referred to collectively as “Parties.”

 

W I T N E S S E T H:

 

WHEREAS, the Seller is the owner of 3,485,100 shares (the “Shares”) of the common stock, par value $0.0001 per share (the “Common Stock”), of Noble Medical Technologies, Inc., a Delaware corporation (the “Company”), which, constitutes approximately 83.22% of the total outstanding shares of the Common Stock of the Company on a fully-diluted basis immediately prior to the Closing (as defined below); and

 

WHEREAS, the Seller desires to sell and the Buyer desires to purchase from the Seller the Shares on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties and agreements set forth herein, the Parties hereto agree as follows:

 

ARTICLE I

 

SALE AND PURCHASE OF SHARES

 

1.1            Incorporation of Recitals .  The provisions and recitals set forth above are hereby referred to and incorporated herein and made a part of this Agreement by reference.

 

1.2            Sale and Purchase of Shares .  Subject to the terms and conditions of this Agreement, at the Closing, the Seller hereby agrees to sell to Buyer and Buyer agrees to purchase from the Seller the Shares for an aggregate purchase price of sixty five thousand one hundred eighteen dollars and sixty nine cents ($65,118.69) (the “Purchase Price”). On the Closing Date (as defined below), the Purchase Price shall be delivered to the client trust account of the Frank J. Hariton, Esq. (“Seller’s Counsel”), for receipt of the Purchase Price for and on behalf of the Seller, per the Wire Transfer Instructions set forth in Exhibit B hereto and the balance of any remaining portion of the Purchase Price shall be disbursed to Seller after payment of the Company Liabilities (as defined below) and as authorized by Seller under Section 1.4 hereof.

 

1.3            Closing .  Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place on February 6, 2009 (the “Closing Date”).  On the Closing Date, the Seller shall deliver to the Buyer: (a) stock certificate(s) evidencing the Shares in negotiable form, duly endorsed in blank, or with stock transfer powers attached thereto (the “Share Certificates”); (b) resignations of the officers and directors of the Company and their written appointment of one or more persons designated by Buyer as successor officers and directors; and (c) all corporate documents (minutes, resolutions, agreements and contracts), bank accounts, check books, common seals, memorandum and articles and amendments, etc. of the Company.  On the Closing Date, the Buyer shall deliver to Seller’s Counsel the Purchase Price for the purchase of the Shares.

 

1.4            Payments at Closing .  On or before the Closing Date, the Company shall pay and discharge all outstanding liabilities (collectively, “Company Liabilities”).  Such payments shall be made as soon as possible, but in no event later than two days from receipt of the Purchase Price, by Seller’s Counsel utilizing cash on hand on the Closing Date and the Purchase Price. Notwithstanding anything to the contrary set forth herein, Seller hereby authorizes Seller’s Counsel to pay and discharge (and Seller’s Counsel hereby agrees to make such payments in the time period set forth above) the Company Liabilities prior to distributing any portion of the Purchase Price to Seller.  Giving effect to these payments, it is the Parties’ intent that the Company shall, on the Closing Date and as of the Closing, have no liabilities and no assets.

 


 

ARTICLE II

 

REPRESENTATIONS AND WARRANTIES OF THE SELLER

 

Except as set forth under the corresponding section of the disclosure schedules (the “Disclosure Schedules”) attached hereto as Exhibit A , which Disclosure Schedules shall be deemed a part hereof, the Seller hereby represents and warrants to Buyer that now and as of the Closing:

 

2.1            Due Organization and Qualification; Subsidiaries; Due Authorization.

 

(a)            The Company is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of formation, with full corporate power and authority to own, lease and operate its business and properties and to carry on its business in the places and in the manner as presently conducted.  The Company is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the properties owned, leased or operated, or the business conducted, by it requires such qualification except for any failure to qualify, which when taken together with all other failures to qualify, is not likely to have a material adverse effect on the business of the Company.

 

(b)            The Company does not have, and has never had, any subsidiaries and does not own, directly or indirectly, any capital stock, equity or interest in any corporation, firm, partnership, joint venture or other entity.

 

(c)           Seller is the record and beneficial owner of the Shares and has sole power and authority over the disposition of the Shares.  The Shares are free and clear of any liens, claims, encumbrances, and charges.  The Shares have not been sold, conveyed, encumbered, hypothecated or otherwise transferred by Seller except pursuant to this Agreement.  Seller has the legal right to enter into and to consummate the transactions contemplated hereby and otherwise to carry out his obligations hereunder.  This Agreement constitutes the valid and binding obligation of Seller.  The execution, delivery and performance by the Seller of this Agreement does not violate any contractual restriction contained in any agreement which binds or affects or purports to bind or affect the Seller.  Seller is not a party to any agreement, written or oral, creating rights in respect of any of such Shares in any third party or relating to the voting of its Shares.  Seller is not a party to any outstanding or authorized options, warrants, rights, calls, commitments, conversion rights, rights of exchange or other agreements of any character, contingent or otherwise, providing for the purchase, issuance or sale of any of the Shares, and there are no restrictions of any kind on the transfer of any of the Shares other than (a) restrictions on transfer imposed by the Securities Act of 1933, as amended (the “Securities Act”) and (b) restrictions on transfer imposed by applicable state securities or “blue sky” laws.  Seller acknowledges that Seller has been advised that Buyer or others may take various actions including actions which result in the Shares greatly increasing in value and that by executing this agreement, Seller expressly waives any and all right to participate in any way in any such increase in value of the shares of the Company.  Those creditors listed in the Disclosure Schedules are the only individuals or entities with any claims against the Company.  Other than as set forth on the Disclosure Schedules, the Company does not have any obligations or liabilities of any nature (matured or unmatured, fixed or contingent).

 

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2.2            No Conflicts or Defaults.   The execution and delivery of this Agreement by the Seller and the consummation of the transactions contemplated hereby do not and shall not (a) contravene the Certificate of Incorporation or By-laws of the Company or (b) with or without the giving of notice or the passage of time  (i) violate, conflict with, or result in a breach of, or a default or loss of rights under, any material covenant, agreement, mortgage, indenture, lease, instrument, commitment, arrangement, permit or license to which the Seller or the Company is a party or by which the Seller or the Company is bound (each a “Contract”), or any judgment, order or decree, or any federal, state or other statute, law, ordinance, rule or regulation to which the Seller or the Company is subject, (ii) result in the creation of, or give any party the right to create, any mortgage, security interest, lien, charge, easement, lease, sublease, covenant, option, claim, restriction or encumbrance or any other right or adverse interest (“Liens”) upon any of the properties or assets of the Company, (iii) terminate or give any party the right to terminate, amend, abandon or refuse to perform, any Contract to which the Seller or the Company is a party or by which the Company’s assets are bound, or (iv) accelerate or modify, or give any party the right to accelerate or modify, the time within which, or the terms under which, the Seller or the Company is to perform any duties or obligations or receive any rights or benefits under any material agreement, arrangement or commitment to which it is a party.

 

2.3            Capitalization.   On the Closing Date, the authorized capital stock of the Company consists of 21,000,000 shares of Common Stock, par value $0.0001 per share, of which 4,188,000 shares are, as of the date hereof, issued and outstanding (“Company Shares”) and 1,000,000 shares of preferred stock, par value $0.0001 per share, of which no shares are, as of the date hereof, issued and outstanding.  All of the Company Shares are duly authorized, validly issued, fully paid and nonassessable, and have not been issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right, or any similar right of stockholders.  The Company Shares are not, and the Shares are not and will not be as of the Closing, subject to any preemptive or subscription right.  There is no outstanding voting trust agreement or other Contract, agreement, arrangement, option, warrant, call, commitment or other right of any character obligating or entitling the Company to issue, sell, redeem or repurchase any of its securities, and there is no outstanding security of any kind convertible into or exchangeable for the Common Stock of the Company, nor has the Company, or any of its agents orally agreed to issue any of the foregoing.  There are no declared or accrued unpaid dividends with respect to any shares of the Company’s Common Stock.  There are no agreements, written or oral, between the Company and any of its stockholders or among any stockholders relating to the acquisition (including without limitation rights of first refusal or preemptive rights), or disposition, or registration under the Securities Act or voting of the capital stock of the Company. There are no outstanding shares of Common Stock that are subject to vesting. The Company has no capital stock other than the Common Stock authorized, issued or outstanding.

 

2.4            Financial Statements.

 

(a)             SEC Documents . The Seller hereby makes reference to the following documents filed by the Company with the United States Securities and Exchange Commission (the “SEC”), as posted on the SEC’s website, www.sec.gov:  (collectively, the “SEC Documents”): (a) Registration Statement Under the Securities Act of 1933 on Form S-1 as filed on April 28, 2008 and all amendments thereto; (b) Quarterly Reports on Form 10-Q for the periods ended March 31, 2008, June 30, 2008 and September 30, 2008 and all amendments thereto; and (c) Annual Report on Form 10-K for the period ended December 31, 2008.  The SEC Documents constitute all of the documents and reports that the Company was required to file with the SEC pursuant to the Securities Act of 1933, as amended (“Securities Act”), and the Securities Exchange Act of 1934, as amended (“Exchange Act”), and the rules and regulations promulgated thereunder by the SEC.   The financial statements included in the SEC Documents include a copy of the balance sheet of the Company at December 31, 2008 and at December 31, 2007, and the related statements of operations and stockholders’ cash flows for the fiscal year ended December 31, 2008 and the period from July 25, 2007 (inception) through December 31, 2007 , including the notes thereto, as audited by Li & Company, PC, certified, independent accountants, and the balance sheet of the Company at March 31, 2008, June 30, 2008 and September 30, 2008 and the related statements of operations and stockholders’ cash flows for the three-, six- and nine-month periods, respectively, then ended prepared by the Company’s management (all such statements being referred to collectively as the “Company Existing Financial Statements”).  All the Company Existing Financial Statements, together with the notes thereto, have been prepared in accordance with U.S. generally accepted accounting principles applied on a basis consistent throughout all periods presented.  These Company Existing Financial Statements present fairly the financial position of the Company as of the dates and for the periods indicated.  The books of account and other financial records of the Company have been maintained in accordance with U.S. GAAP.

 

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(b)            Since the date of the latest Company Existing Financial Statements (the “Most Recent Date”), there has been no material adverse change in the condition, financial or otherwise, net worth, prospects or results of operations of the Company.  Without limiting the foregoing, since the Most Recent Date:

 

(i)           the Company has not sold, leased, transferred or assigned any of its assets, tangible or intangible, other than in the ordinary course of business;

 

(ii)           the Company has not entered into any agreement, Contract, commitment, lease or license (or series of related agreements, Contracts, commitments, leases and licenses);

 

(iii)           no party (including the Company) has accelerated, terminated, modified or canceled any agreement, Contract, lease or license (or series of related agreements, Contracts, leases and licenses) to which the Company is a party or by which the Company or its assets are bound;

 

(iv)           the Company has not made any capital expenditure (or series of related capital expenditures) of whatever nature;

 

(v)           the Company has not made any capital investments in, any loans to, or any acquisitions of the securities or assets of any other person (or a series of related capital investments, loans and acquisitions);

 

(vi)           declared or paid any dividends or made any other distribution to its stockholders whether or not upon or in respect of any shares of its capital stock;

 

(vii)           redeemed or otherwise acquired any shares of its capital stock (except upon the exercise of outstanding options) or any option, warrant or right relating thereto;

 

(viii)           the Company has not issued any notes, bonds or other debt securities, or created, incurred, assumed or guaranteed any liabilities, obligations or indebtedness for borrowed money or capitalized lease obligation;

 

(ix)           the Company has not canceled, compromised, waived or released any right or claim (or series of related rights and claims) or material indebtedness;

 

(x)           the Company has not made any loans to, or entered into any other transactions with, any of its directors, officers, or employees; and

 

(xi)           the Company has not committed to do any of the foregoing.

 

2.5            Further Financial Matters .  The Company does not have any (a) assets of any kind or (b) liabilities or obligations, whether secured or unsecured, accrued, determined, absolute or contingent, asserted or unasserted or otherwise, which are required to be reflected or reserved in a balance sheet or the notes thereto under generally accepted accounting principles, and which are not reflected in the Company Existing Financial Statements.

 

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2.6            Taxes .  The Company has filed all United States federal, state, county, local and foreign, national, provincial and local returns and reports which were required to be filed on or prior to the Closing Date hereof in respect of all income, withholding, franchise, payroll, excise, property, sales, use, value-added or other taxes or levies, imposts, duties, license and registration fees, charges, assessments or withholdings of any nature whatsoever (together, “Taxes”), and has paid all Taxes (and any related penalties, fines and interest) which have become due pursuant to such returns or reports or pursuant to any assessment which has become payable, or, to the extent its liability for any Taxes (and any related penalties, fines and interest) has not been fully discharged, the same have been properly reflected as a liability on the books and records of the Company and adequate reserves therefor have been established.  All such returns and reports filed on or prior to the date hereof have been properly prepared and are true, correct (and to the extent such returns reflect judgments made by the Company, as the case may be, such judgments were reasonable under the circumstances) and complete in all material respects.  The amount shown on the Company’s most recent balance sheet in the Company Existing Financial Statements as provision for taxes is sufficient in all material respects to pay all accrued and unpaid federal, state, local and foreign taxes for the period then ended and all prior periods.  No tax return or tax return liability of the Company has been audited or, is presently under audit.  The Company has not given or been requested to give waivers of any statute of limitations relating to the payment of any Taxes (or any related penalties, fines and interest).  There are no claims pending or, to the knowledge of the Seller, threatened, against the Company for past due Taxes.  All payments for withholding taxes, unemployment insurance and other amounts required to be paid for periods prior to the date hereof to any governmental authority in respect of employment obligations of the Company, including, without limitation, amounts payable pursuant to the Federal Insurance Contributions Act, have been paid or shall be paid prior to the Closing and have been duly provided for on the books and records of the Company and in the Company Existing Financial Statements.  All such amounts and penalties are set forth in the Company’s most recent balance sheet in the Company Existing Financial Statements.

 

2.7            Indebtedness; Contracts; No Defaults; Liabilities.

 

(a)           The Company has no instruments, agreements, indentures, mortgages, guarantees, notes, commitments, accommodations, letters of credit or other arrangements or understandings, whether written or oral, to which the Company is a party.

 

(b)             Neither the Company, nor, to the Seller’s knowledge, any other person or entity, is in breach of, or in default under any Contract, agreement, arrangement, commitment or plan to which the Company is a party, and no event or action has occurred, is pending or is threatened, which, after the giving of notice, passage of time or otherwise, would constitute or result in such a breach or default by the Company or, to the knowledge of the Seller, any other person or entity.  The Company has not received any notice of default under any Contract, agreement, arrangement, commitment or plan to which it is a party, which default has not been cured to the satisfaction of, or duly waived by, the party claiming such default on or before the date hereof.

 

(c)           Other than the Company Liabilities set forth on Schedule C , which shall be paid off immediately upon the closing, the Company has no liabilities.

 

2.8            Real Property.   The Company does not own or lease any real property.

 

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2.9            Compliance.

 

(a)           The Company is not conducting its respective business or affairs in violation of any applicable federal, state or local law, ordinance, rule, regulation, court or administrative order, decree or process, or any requirement of insurance carriers.  The Company has not received any notice of violation or claimed violation of any such law, ordinance, rule, regulation, order, decree, process or requirement.

 

(b)           The Company is in compliance with all applicable federal, state, local and foreign laws, rules and regulations.  There are no claims, notices, actions, suits, hearings, investigations, inquiries or proceedings pending or, to the knowledge of the Sellers, threatened against the Company, and there are no past or present conditions that the Company has reason to believe are likely to give rise to any liability or other obligations of the Company under any circumstances.

 

2.10            Permits and Licenses .  The Company has all certificates of occupancy, rights, permits, certificates, licenses, franchises, approvals and other authorizations as are reasonably necessary to conduct its business and to own, lease, use, operate and occupy its assets, at the places and in the manner now conducted and operated.&nbs


 
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