Exhibit
10.1
SECURITIES PURCHASE
AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this
“ Agreement ”), dated as of May 6, 2009, by and
among SWK Technologies, Inc.. , a Delaware
corporation with offices at 5 Regent Street, Suite 520, Livingston,
NJ 07039 (the “ Company ”), Jeffrey
D. Roth, an individual with offices at 5 Regent Street, Suite 520,
Livingston, NJ 07039 (the
“Buyer”), Jerome R. Mahoney, an individual with offices
at 750 Route 34, Matawan, NJ 07747
(“Mahoney”), and Trey Resources, Inc.,
a Delaware corporation with offices at 5 Regent Street, Suite 520,
Livingston, NJ 07039 (“Trey”).
WITNESSETH
WHEREAS , the Company and the Buyer(s) are executing and
delivering this Agreement in reliance upon an exemption from
securities registration pursuant to Section 4(2) and/or Rule 504 of
Regulation D (“ Regulation D ”) as promulgated
by the U.S. Securities and Exchange Commission (the “
Commission ”) under the Securities Act of 1933, as
amended (the “ Securities Act ”);
WHEREAS , the parties desire that, upon the terms and
subject to the conditions contained herein, the Company shall issue
and sell to the Buyer, as provided herein, and the Buyer shall
purchase twenty-five newly-issued shares of the Company’s
Common Stock (the “Common Stock”), such shares to
represent twenty percent (20%) of the outstanding shares of the
Company, on a fully-diluted basis,
WHEREAS , the purchase price of the Common Stock will be
$150,000,
WHEREAS , contemporaneously with the execution and
delivery of this Agreement and the receipt of payment for the
Common Stock, the Company will remit to Trey, the owner of 80% of
the fully-diluted outstanding common stock of the Company, the sum
of $150,000 as a management fee;
WHEREAS , upon receipt of $150,000, Trey will pay
Mahoney the sum of One Hundred and Seventeen Thousand and Five
Hundred Dollars ($117,500) (the “Mahoney Payment”),
such sum to be in full and total satisfaction of any and all
outstanding obligations that exist or may exist between Mahoney and
Trey. Such sum shall be allocated first to principal
outstanding on a promissory note by and between Mahoney and Trey,
second to any interest due and outstanding on such promissory note,
and any balance thereafter to deferred and accrued compensation due
and owing Mahoney;
WHEREAS , upon receipt of $150,000, Trey will pay Meritz
& Muenz LLP. (the “Firm”), counsel to Trey,
Thirty-two Thousand Dollars ($32,500) , as partial payment of
balances due and owing the Firm;
NOW, THEREFORE
, in consideration of the mutual
covenants and other agreements contained in t1is Agreement the
Company and the Buyer(s) hereby agree as follows:
1. PURCHASE AND
SALE OF COMMON STOCK .
(a)
Purchase of Common Stock . Subject to the
satisfaction (or waiver) of the terms and conditions of this
Agreement, Buyer agrees to purchase at the Closing and the Company
agrees to sell and issue to Buyer twenty-five (25) shares of Common
Stock, such shares to represent twenty percent (20%) of the
outstanding shares of the Company on a fully diluted basis.
.
(b)
Closing Date . The Closing of the purchase and
sale of the Common Stock shall take place at 10:00 a.m. Eastern
Standard Time on May 6, 2009, or such earlier date as is mutually
agreed to by Company and the Buyer (the “Closing
Date”). The Closing shall occur on the Closing
Date at the offices of the Company at 5 Regent Street, Suite 520,
Livingston, NJ 07039 (or such other place as is mutually agreed to
by the Company and the Buyer).
(c)
Form of Payment . Subject to the satisfaction of
the terms and conditions of this Agreement, on the Closing Date,
(i) the Buyer shall deliver to the Company One Hundred Fifty
Thousand Dollars ($150,000) (the “Purchase Price”) via
wire transfer to an account designated by the Company for the
Common Stock to be issued and sold to the Buyer, and (ii) the
Company shall deliver to Buyer, stock certificates for twenty-five
(25) shares of the Company Common Stock which Buyer is purchasing,
duly executed on behalf of the Company.
2. BUYER’S
REPRESENTATIONS AND WARRANTIES .
Buyer represents and warrants
that:
(a)Investment Purpose
. Buyer is acquiring the
Common Stock for its own account for investment only and not with a
view towards, or for resale in connection with, the public sale or
distribution thereof, except pursuant to sales registered or
exempted under the Securities Act .
(b)
Accredited Investor Status . Buyer is an “
Accredited Investor ” as that term is defined in Rule
501(a)(5) or Rule 501 (a)(6) of Regulation D.
(c)
Reliance on Exemptions . Buyer understands that
the Common Stock is being offered and sold to it in reliance on
specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is
relying in part upon the truth and accuracy of, and Buyer’s
compliance with, the representations, warranties, agreements,
acknowledgments and understandings of Buyer set forth herein in
order to determine the availability of such exemptions and the
eligibility of Buyer to acquire such securities.
(d)
Information Regarding Company . Buyer and his
advisors (and his counsel), if any, have been furnished with all
materials relating to the business, finances and operations of the
Company and information he deemed material to making an informed
investment decision regarding his purchase of the Common Stock,
which have been requested by Buyer. Buyer and its
advisors, if any, have been afforded the opportunity to ask
questions of the Company and its
management. Neither such inquiries nor any
other due diligence investigations conducted by such Buyer or its
advisors, if any, or its representatives shall modify,
amend nor affect such Buyer’s right to rely on the
Company’s representations and warranties contained in Section
3 below. Buyer understands that its investment in the
Common Stock involves a high degree of risk. Buyer is in
a position regarding the Company, which, based upon employment with
the Company, family relationship or economic bargaining power,
enabled and enables Buyer to obtain information from the Company in
order to evaluate the merits and risks of this
investment. Buyer has sought such accounting, legal and
tax advice, as it has considered necessary to make an informed
investment decision with respect to its acquisition of the Common
Stock. Nothing in this Section 2(d) shall be a defense to or
mitigation of any breach by Buyer of its representations and
warranties contained in Section 2 of this Agreement.
(e)
Information Regarding Trey . Buyer and his
advisors (and his counsel), if any, have been furnished with
materials relating to the business, finances and operations of
Trey. Buyer and its advisors, if any, have been afforded
the opportunity to ask questions of the Company and its
management. The Buyer acknowledges that Trey files
reports with the Commission pursuant to the Securities Exchange Act
of 1934, as amended and therefore its filings with the Commission
are available for review at www.sec.gov . Neither
such inquiries nor any other due diligence investigations conducted
by such Buyer or its advisors, if any, or its representatives shall
modify, amend nor affect such Buyer’s right to
rely on the Company’s representations and warranties
contained in Section 3 below. Buyer understands that its
investment in the Common Stock involves a high degree of
risk.
(f)
No Governmental Review . Buyer understands that
no United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or
endorsement of the Common Stock, or the fairness or suitability of
the investment in the Common Stock, nor have such authorities
passed upon or endorsed the merits of the offering of the Common
Stock.
(g)
Transfer or Resale . Buyer understands that the
Common Stock have not been and are not being registered under the
Securities Act or any state securities laws, and may not be offered
for sale, sold, assigned or transferred unless (A) subsequently
registered thereunder, or (B) Buyer shall have delivered to the
Company an opinion of counsel in a form reasonably acceptable to
the Company, to the effect that such securities to be sold,
assigned or transferred may be sold, assigned or transferred
pursuant to an exemption from such registration requirements; (ii)
any sale of such securities made in reliance on Rule 144 under the
Securities Act (or a successor rule thereto) (“
Rule 144 ”) may be made only in accordance with
the terms of Rule 144 and further, if Rule 144 is not applicable,
any resale of such securities under circumstances in which the
seller (or the person through whom the sale is made) may be
deemed to be an underwriter (as that term is defined in the
Securities Act) may require compliance with some other exemption
under the Securities Act or the rules and regulations of the
Commission thereunder; and (iii) neither the Company nor any other
person is under any obligation to register such securities under
the Securities Act or any state securities laws or to comply with
the terms and conditions of any exemption
thereunder. The Company reserves the right to place stop
transfer instructions against the shares and certificates for the
Conversion Shares.
(h)
Legends . Buyer understands that the certificates
or other instruments representing the Common Stock shall bear a
restrictive legend in substantially the following form (and a stop
transfer order may be placed against transfer of such stock
certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TOWARD RESALE AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN
OPINION OF COUNSEL, IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY,
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER
SAID ACT.
(i) Authorization,
Enforcement. This Agreement has been duly and validly
authorized, executed and delivered on behalf of Buyer and is a
valid and binding agreement of Buyer, enforceable in accordance
with its terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.
(j)
Receipt of Documents . Buyer and his counsel have
received and read in their entirety: (i) this Agreement
and each representation, warranty and covenant set forth herein,
(ii) all due diligence and other information necessary to verify
the accuracy and completeness of such representations, warranties
and covenants; and (iii) answers to all questions Buyer submitted
to the Company regarding an investment in the Company; and Buyer
has relied on the information contained therein and has not been
furnished any other documents, literature, memorandum or
prospectus.
(k)
No Legal Advice From the Company . Buyer
acknowledges that it had the opportunity to review this Agreement
and the transactions contemplated by this Agreement with his own
legal counsel and investment and tax advisors. Buyer is
relying solely on such counsel and advisors and not on any
statements or representations of the Company or any of its
representatives or agents for legal, tax or investment advice with
respect to this investment, the transactions contemplated by this
Agreement or the securities laws of any jurisdiction.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY AND TREY .
The Company represents and warrants
to each of the Buyers that:
(a)
Organization and Qualification . The Company is a
corporation duly organized and validly existing in good standing
under the laws of the jurisdiction in which it is incorporated, and
has the requisite corporate power to own its properties and to
carry on its business as now being conducted. The Company is duly
qualified as a foreign corporation to do business and is in good
standing in every jurisdiction in which the nature of the business
conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(b)
Authorization, Enforcement, Compliance with Other
Instruments . (i) The Company has the requisite
corporate power and authority to enter into and perform this
Agreement and any related agreements (collectively the “
Transaction Documents ”) and to issue the Common Stock
in accordance with the terms hereof and thereof, (ii) the execution
and delivery of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and
thereby, including, without limitation, the issuance of the Common
Stock, have been duly authorized by the Company’s Board of
Directors and no further consent or authorization is required by
the Company, its Board of Directors or its stockholders, (iii) the
Transaction Documents have been duly executed and delivered by the
Company, (iv) the Transaction Documents constitute the valid and
binding obligations of the Company enforceable against the Company
in accordance with their terms, except as such enforceability may
be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement
of creditors’ rights and remedies.
(c)
Capitalization . As of the date hereof the
authorized capital stock of the Company consists of 1000 shares of
Common Stock, par value $0.001 per share,) of which 100 shares of
Common Stock, are issued and outstanding. All of such
outstanding shares have been validly issued and are fully paid and
nonassessab
