Exhibit 10.1
STOCK PURCHASE
AGREEMENT
STOCK PURCHASE AGREEMENT
, dated as of September
21, 2009 (this “ Agreement ”), by and between
the person designated as the Purchaser on the signature hereto (the
“ Purchaser ”) and the persons designated as the
Selling Stockholders on the signature page hereto (the “
Selling Stockholders ,” and together with the
Purchaser, the “ Parties ” or “
parties ”).
W I T N E S S E T H
WHEREAS , the Purchaser wishes to purchase
an aggregate of 10,399,470 shares of common stock of
SWAV Enterprises, Ltd., a Nevada corporation (“
Company ”), designated as the “Shares”;
and the Selling Stockholders wish to sell the Shares of the Company
to the Purchaser, which represents approximately 85%
of the issued and outstanding shares of the capital stock of the
Company, to the Purchaser for an aggregate purchase price of
$300,000 less any amounts paid prior to the execution
of this Agreement (the “ Purchase Price ”);
and
NOW THEREFORE
, in consideration of
the promises and respective mutual agreements herein contained, the
receipt and sufficiency of which is hereby acknowledged, the
Parties hereto agree as to the following:
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1
Sale of the Shares
. Subject to the
terms and conditions set forth herein, on the basis of the
representations, warranties and covenants herein contained, at the
Closing as described in paragraph 1.2 below, the Selling
Stockholders agree to sell, assign, transfer and deliver their
Shares to the Purchaser, and the Purchaser agrees to purchase the
Shares from the Selling Stockholders.
1.2
The
Closing .
The purchase of the Shares shall take place at the law office
of The Sourlis Law Firm located at The Galleria, 2 Bridge Avenue,
Red Bank, New Jersey 07701 or such other place as the Parties may
agree to within two business days after the satisfaction of all
conditions set forth herein (the “ Closing ”) on
or about September 21, 2009 (the “ Closing Date
”).
1.3
Instruments of
Conveyance and Transfer . At the Closing, the Selling
Stockholders shall deliver a certificate(s) representing the Shares
to the Purchaser in the name of the Purchaser (“
Certificate(s) ”), as shall be effective to vest in
the Purchaser all right, title and interest in and to all of the
Shares.
1.4
Consideration and
Payment for the Shares . In consideration for the
Shares, the Purchaser shall pay to the Selling Stockholder the
Purchase Price. The Purchase Price shall be placed paid on the
Closing Date.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLING
SECURITYHOLDERS
Unless specifically stated
otherwise, each of the Selling Stockholders represents, warrants
and covenants that the following are true and correct as of the
date hereof and will be true and correct through the Closing Date
as if made on that date, to the best of its knowledge:
2.1
Authority
. The Selling
Stockholder has all requisite power and authority to enter into and
perform this Agreement and to consummate the transactions
contemplated herein.
2.2
Binding
Agreement .
This Agreement constitutes, and upon execution and delivery
thereof by the Selling Stockholder, will constitute, a valid and
binding agreement of the Selling Stockholder, enforceable by and
against the Selling Stockholder in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditor’s rights generally or the
availability of equitable remedies.
2.3
No Violation of
Corporate Documents or Agreements . To the best of his
Knowledge (which shall mean the actual and constructive
knowledge of the Selling Stockholder), the execution and
delivery of this Agreement by the Selling Stockholder and the
performance by the Selling Stockholder of his obligations
hereunder will not cause, constitute, or conflict with or result in
(i) any breach or violation, or give rise to a right of
termination, cancellation or acceleration of any obligation or to
loss of a material benefit under, or to increased, additional,
accelerated or guaranteed rights or entitlements of any person
under any of the provisions of, or constitute a default under, any
license, indenture, mortgage, charter, instrument, certificate of
incorporation, bylaw, judgment, order, decision, writ, injunction,
or decree or other agreement or instrument or proceeding to which
the Company or stockholders are a party, or by which they may be
bound, nor will any consents or authorizations of any party other
than those hereto by required, (ii) an event that would cause the
Company to be liable to any party, or (iii) an event that would
result in the creation or imposition or any lien, charge or
encumbrance on any asset of the Company or on the Shares to be
acquired by the Purchaser.
2.4
Authorized Capital,
No Preemptive Rights, No Liens; Anti-Dilution
. As of the date
hereof, the authorized capital of the Company is 25,000,000 shares
of Common Stock, par value $0.001 per share. The issued and
outstanding capital stock of the Company as of the date of this
Agreement is 12,234,670 shares of Common Stock. All of the shares
of Common Stock are duly authorized, validly issued, fully paid and
non-assessable. No shares of capital stock of the Company are
subject to preemptive rights or similar rights of the stockholders
of the Company or any liens or encumbrances imposed through the
actions or failure to act of the Company, or otherwise. As of
the date hereof, (i) there are no outstanding options, warrants,
convertible securities, scrip, rights to subscribe for, puts,
calls, rights of first refusal, tag-along agreements, nor any other
agreements, understandings, claims or other commitments or rights
of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for any shares of capital stock of
the Company, or arrangements by which the Company is or may become
bound to issue additional shares of capital stock of the Company,
(ii) there are no agreements or arrangements under which the
Company is obligated to register the sale of any of its securities
under the Securities Act of 1933, as amended (the “
Securities Act ”), and (iii) there are no
anti-dilution or price adjustment provisions contained in any
security issued by the Company (or in the Company’s
certificate of incorporation or bylaws or in any agreement
providing rights to security holders) that will be triggered by the
transactions contemplated by this Agreement. The Company has
furnished to the Purchaser true and correct copies of the
Company’s certificate of incorporation and bylaws in full
force and effect and certified by the Secretary of the Company to
such effect as of the Closing Date.
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2.5
Private
Placement .
The Company is selling the Shares to the Purchaser without
registration pursuant to the exemptions afforded the Company under
Section 4(1 ½) of the Securities Act, and will take any and
all actions to make such exemption available. The
Company shall at no time place a “Stop Order” on the
Shares.
2.6
No Governmental
Action Required . The execution and delivery
by the Company of this Agreement does not and will not, and the
consummation of the transactions contemplated hereby will not,
require any action by or in respect of, or filing with, any
governmental body, agency or governmental official.
2.7
Compliance with
Applicable Law and Corporate Documents. To the best of its Knowledge (which
shall mean the actual and constructive knowledge of the officer,
directors, agents and representatives of the Company),, the Company
is in compliance with and conforms to all statutes, laws,
ordinances, rules, regulations, orders, restrictions and all other
legal requirements of any domestic or foreign government or any
instrumentality thereof having jurisdiction over the conduct of its
businesses or the ownership of its properties.
2.8
Financial
Statements .
(a)
The Purchaser has received a copy
of the Company’s publicly filed consolidated financial
statements of the Company for the quarter ended June 30, 2009 and
an unaudited Balance Sheet as of the Closing Date or such other
time as may be reasonably agreed to by the Company and the
Purchaser (“ Financial Statements ”). The
Financial Statements fairly present the financial condition of the
Company at the dates indicated and its results of their operations
and cash flows for the periods then ended and, except as indicated
therein, reflect all claims against, debts and liabilities of the
Company, fixed or contingent, and of whatever nature.
(b)
Since the date of the Balance Sheet
(the “ Balance Sheet Date ”), there has been no
material adverse change in the assets or liabilities, or in the
business or condition, financial or otherwise, or in the results of
operations or prospects, of the Company, whether as a result of any
legislative or regulatory change, revocation of any license or
rights to do business, fire, explosion, accident, casualty, labor
trouble, flood, drought, riot, storm, condemnation, act of God,
public force or otherwise and no material adverse change in the
assets or liabilities, or in the business or condition, financial
or otherwise, or in the results of operation or prospects, of the
Company except in the ordinary course of business.
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(c)
Since the Balance Sheet Date, the
Company has not suffered any damage, destruction or loss of
physical property (whether or not covered by insurance) affecting
its condition (financial or otherwise) or operations (present or
prospective), nor has the Company issued, sold or otherwise
disposed of, or agreed to issue, sell or otherwise dispose of, any
capital stock or any other security of the Company and have not
granted or agreed to grant any option, warrant or other right to
subscribe for or to purchase any capital stock or any other
security of the Company or has incurred or agreed to incur any
indebtedness for borrowed money.
(d)
The Financial Statements are
contained in the Company’s filings and reports made with the
Securities and Exchange Commission (“ SEC ”)
since the Company’s formation (the “ SEC Reports
”).
2.9
SEC
Reports. The
Company’s SEC Reports are (i) accurate and complete,
(ii) contain all information required to be filed under the rules
and regulations of the SEC, (iii) are not subject to any
outstanding SEC comment letters or inquiries, and (iv) do not
contain any false statement of fact or fail to state any fact
necessary to make the facts stated therein not misleading.
The Company has never been subject to any investigation,
injunction or cease and desist action by the SEC or other federal
or state regulatory agency and to its Knowledge is not currently
subject to such pending or threatened actions.
2.10
SEC Status
. The Company is a
“filer” under Section 12(g) of the Securities
Exchange Act of 1934.
2.11
No
Litigation .
Other than what is disclosed in the Company’s reports
filed with the SEC, the Company is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or to
their Knowledge, pending or threatened governmental investigation.
The Company is not subject to or in default with respect to
any order, writ, injunction, or decree of any federal, state,
local, or foreign court, department, agency, or
instrumentality.
2.12
No Taxes
. The Company is not,
and will not, to the best of its knowledge, become with respect to
any periods ending on or prior to the Closing Date, liable for any
income, sales, withholding, franchise, excise, license, real or
personal property taxes (a “ Tax ”) to any
foreign, United States federal, state or local governmental
agencies whatsoever. All United States federal, state, county,
municipality local or foreign income Tax returns and all other
material Tax returns (including information returns) that are
required, or have been required, to be filed by or on behalf of the
Company has been or will be filed as of the Closing Date and all
Taxes due pursuant to such returns or pursuant to any assessment
received by the Company have been or will be paid as of the Closing
Date. The charges, accruals and reserves on the books of the
Company in respect of taxes or other governmental charges have been
established in accordance with the tax method of accounting. All
returns of the Company that have been filed relating to Tax are
true and accurate in all material respects. No audit, action,
suit, proceeding or other examination regarding taxes for which the
Company may have any liability is currently pending against or with
respect to the Company and the Company has not received any notice
(formally or informally) of any audit, suit, proceeding or other
examination. No material adjustment relating to any Tax
returns, no closing or similar agreement have been entered into or
issued or have been proposed (formally or informally) by any tax
authority (insofar as such action relate to activities or income of
or could result in liability of the Company for any Tax) and no
basis exists for any such actions. The Company has not
changed any election, adopted or changed any accounting method or
period, filed any amended return for any Tax, settled any claim or
assessment of any Tax, or surrendered any right to claim any refund
of any Tax, or consented to any extension or waiver of the statute
of limitations for any Tax. The Company has not had an
“ownership change” as that term is defined in Section
382 of the Internal Revenue Code of 1986, as amended and in
effect.
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2.13
Conduct of the
Business .
The Company is not a “shell” company. The
Company’s business operations are properly disclosed in the
Company’s SEC reports. From and after the June 30, 2009 until
the Closing Date:
(a)
The Company has not made any
expenditures or entered into any commitments which, when compared
to past operations of its business, are unusual or extraordinary or
outside the scope of the normal course of routine
operations;
(b)
The Company has kept in a normal
state of repair and operating efficiency all tangible personal
property used in the operation of its business;
(c)
The Company has used its best
efforts to maintain the good will associated with its business, and
the existing business relationships with its agents, customers,
lessors, key employees, suppliers and other persons having
relations with it;
(d)
The Company has not entered into any
contract, agreement or action, or relinquished or released any
rights or privileges under any contracts or agreements, the
performance, violation, relinquishment or release of which could,
on the date on which such contract or agreement was entered into,
or such rights or privileges were relinquished or released, be
reasonably foreseen to have a material adverse effect;
(e)
The Company has not made, or agreed
to make, any acquisition of stock or assets of, or made loans to,
any person not in the ordinary course of business;
(f)
The Company has not sold or disposed
of any assets or created or permitted to exist any encumbrance on
its assets except (x) in the ordinary course of business and which
could not, on the date of such sale, disposition, creation or
permission, be reasonably foreseen to have a material adverse
effect or (y) as otherwise permitted by this Agreement;
(g)
The Company has kept true, complete
and correct books of records and accounts with respect to its
business, in which entries will be made of all transactions on a
basis consistent with past practices and in accordance with the tax
method of accounting consistently applied by the
Company;
(h)
The Company has paid current
liabilities as and when they became due and have paid or incurred
no fees and expenses not in the ordinary course of its
business;
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(i)
There has been no declaration,
setting aside or payment of any dividend or other distribution in
respect of any Shares or any other securities of the Company
(whether in cash or in kind);
(j)
The Company has not redeemed,
repurchased, or otherwise acquired any of its securities or entered
into any agreement to do so;
(k)
The Company has not made any loan
to, or entered into any other transaction with, any of its
directors, officers, and employees;
(l)
The Company has not made or pledged
to make any charitable or other capital contribution outside the
ordinary course of business; and
(m)
There has not been any other
occurrence, event, incident, action, failure to act or transaction
outside the ordinary course of business that would have a material
adverse effect.
2.14
Liabilities .
(a)
Except as set forth in the Financial
Statements, the Company has no liabilities or obligations. It is a
condition to Closing that the Company will have no liabilities upon
transfer of the Shares to the Purchaser.
(b)
Since June 30, 2009, the Company has
not:
(i)
subjected to
encumbrance, or agreed to do so to any of their assets, tangible or
intangible other than purchase money liens in the ordinary course
of business on equipment used in the conduct of business and
incurred to finance the purchase price of the equipment involved
and which do not cover any other asset of the Company;
(ii)
except as otherwise
contemplated hereby, engaged in any transactions affecting its
business or properties not in the ordinary course of business
consistent with past practice or suffered any extraordinary losses
or waived any rights of substantial value except in the ordinary
course of business; or
(iii)
other than in the
ordinary course of business consistent with past practice, granted
or agreed to grant, or paid or agreed to pay any increase in the
rate of wages, salaries, bonuses or other remuneration of any
officer, director or consultant of the Company or any increase of
5% or more in the rate of wages, salaries, bonuses or other
remuneration of any non-officer/director or employee or become a
party to any employment contract or arrangement with any of its
directors, officers, consultants or employees or become a party to
any contract or arrangement with any director, officer, consultant
or employee providing for bonuses, profit sharing payments,
severance pay or retirement benefits, other than as set forth in
any Exhibit or Schedule hereto.
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2.15
ERISA
Compliance .
The Company maintains no “employee benefit plan”
within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974 (“ ERISA ”), under
which the Company or any ERISA Affiliate has any current or future
obligation or liability or under which any employee of the Company
or any ERISA Affiliate has any current or future right to
benefits.
2.16
Insurance
. The Company does
not maintain any insurance.
2.17
Compliance with
Law .
To the best of its Knowledge, the Company has complied with,
and is not in violation of any provision of laws or regulations of
federal, state or local government authorities and agencies,
including any environmental laws and regulations. There are no
pending or threatened proceedings against the Company by any
federal, state or local government, or any department, board,
agency or other body thereof.
2.18
Consents
. No third
parties consents are required to be obtained as a result of the
change of control of the Company hereby.
2.19
Agreements
. The Company is
not a party to any material agreement, loan, credit, lease,
sublease, franchise, license, contract, commitment or instrument or
subject to any corporate restriction. True, correct and
complete copies of all such loan or credit agreements have been
delivered to the Purchaser. Neither the Company nor any other
party is in default under any such agreement, loan, credit, lease,
sublease, franchise, license, contract, commitment, instrument or
restriction. No such instrument requires the consent of any
other party thereto in order to consummate the sales of the Shares
hereby.
2.20
Survival of
Representations . The
representation
