EXHIBIT 10.6
SUNGAME CORPORATION
SECURITIES PURCHASE AGREEMENT
THIS PURCHASE
AGREEMENT, dated as of October 9th, 2008, is entered into
by and among Sungame Corporation, a
Delaware corporation with headquarters
located at ___________________________________
(the "Company") and Mindzeye
Consulting Pte Ltd located at
___________________________________ and it's
clients (collectively, the "Purchasers").
W I T N E S S
E T H:
WHEREAS, the
Company and the Purchasers are executing and
delivering
this Agreement in accordance with and in
reliance upon the exemption from
securities registration for offers and sales to investors
afforded, INTER ALIA,
by Rule 506 under Regulation D ("Regulation D")
or Regulation S for non U.S.
Investors as promulgated by the United States Securities and
Exchange Commission
(the "SEC") under the Securities Act of
1933, as amended (the "1933 Act"),
and/or Section 4(2) and 4(6) of the 1933 Act and/or Regulation S;
and
WHEREAS, the
Purchasers wish to purchase common shares of the Company (
"Shares"), subject to and upon the terms and conditions
of this Agreement and
acceptance of this Agreement by the
Company, on the terms and conditions
referred to herein
NOW
THEREFORE, in consideration of the
premises and the mutual
covenants contained herein and other good
and valuable consideration, the
receipt and sufficiency of which are hereby
acknowledged, the parties agree as
follows:
1. AGREEMENT TO
PURCHASE; PURCHASE PRICE.
A. CASH PURCHASE. Subject to the terms and conditions of
this
Agreement and the
other Transaction Agreements, the Purchasers hereby
agree to
purchase the Shares of the Company for the sum of
$250,000
(the "Purchase
Amount") in increments as follows:
(i) $125,000 in cash for 500,000 Shares plus 500,000
fully transferable warrants to purchase Shares at
$0.80 per
share in the form of warrants attached as Exhibit
A hereto.
This payment of $125,000 is due within 10 days of
signing of
this
agreement. These individual Shares and warrants shall be
assigned according to clause 1d.v and the
warrants would be
treated and become at PAR with those warrants issued as
part
of the IPO offerings and the provisions thereof.
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(ii) $125,000 in cash for 500,000 Shares plus fully
transferable warrants to purchase 500,000 Shares at $0.80
per
share in the form of warrant attached as
Exhibit A hereto.
These individual Shares and
warrants shall be assigned
according to clause 1d.v and the warrants would be treated and
become
at PAR with those warrants issued as part of the
the
IPO offerings and provisions thereof. This payment of $125,000
is due when the Company provides the Purchaser with a copy
of
the Registration Statement on Form S-1 ready to file which
is
expected to be no later than December 15, 2008.
B. SERVICES PURCHASE. $625,000 worth
of services for 2.5
Million
Shares pursuant to the separate Services
Agreement attached
hereto as Exhibit
B and incorporated herein by this reference.
C. CERTAIN DEFINITIONS. As used herein, each of the
following
terms has the
meaning set forth below, unless the context
otherwise
requires:
"Affiliate" means, with respect to a specific Person referred
to in the relevant provision, another
Person who or which
controls or is controlled by or is under common control
with
such specified Person.
"Certificate" means the original ink-signed share and
Warrant
duly executed by the Company.
"Closing Date" means the
date of the closing of the
Transactions, as provided herein.
"Common Stock Equivalents" means any securities of the Company
or the Subsidiaries which would entitle the holder thereof
to
acquire at any time
common stock, including
without
limitation, any debt, preferred
stock, rights, options,
warrants or other instrument that is at any time
convertible
into or exchangeable for, or otherwise
entitles the holder
thereof to receive, common stock.
"Company Control Person" means each
director, executive
officer, promoter, and such other Persons as may be deemed
in
control of the Company pursuant to Rule 405 under the 1933 Act
or Section 20 of the 1934 Act (as defined below).
"Disclosure Annex" means Exhibit
D to this Agreement;
provided, however, that the Disclosure Annex shall be arranged
in sections corresponding to the identified Sections of
this
Agreement, but the disclosure in any
such section of the
Disclosure Annex shall qualify other
provisions in this
Agreement to the extent that it would be readily
apparent to
an informed reader from a reading of
such section of the
Disclosure Annex that it is also relevant to other
provisions
of this Agreement.
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"Holder" means the Person and/or the
entity holding the
relevant Securities at the relevant time
including but not
limited to the Purchasers for their respective Securities.
"Purchasers Control Person" means each
director, executive
officer, promoter, and such other Persons as may be deemed
in
control of the Purchasers pursuant to Rule 405 under the
1933
Act or Section 20 of the 1934 Act.
"Liens" means a lien, charge, security interest,
encumbrance,
right of first refusal, preemptive right or other restriction.
"Material Adverse Effect" means an event or
combination of
events, which individually or
in the aggregate, would
reasonably be expected to (w) adversely affect the
legality,
validity or enforceability of the
Securities or any of the
Transaction Agreements, (x) have or
result in a material
adverse effect on the results
of operations, assets,
prospects, or condition (financial or
otherwise) of the
Company and its subsidiaries, taken as a whole, (y)
adversely
impair the Company's ability to
perform fully on a timely
basis its obligations under any of the Transaction
Agreements
or the transactions contemplated thereby, or (z)
materially
and adversely affect the value of the rights
granted to the
Purchasers in the Transaction Agreements.
"Person" means any living person or any entity, such
as, but
not necessarily limited to, a corporation,
partnership or
trust.
"Principal
Trading Market" means the Over the Counter Bulletin
Board or such other market on which
the common stock is
principally traded at the relevant time, but shall not include
the "pink sheets."
"Registrable Securities" means all of the following:
(i) the
Warrant Shares, and (ii) any shares of the
Company's common
stock that are issued to the Purchasers in connection with the
Transaction Agreements and any other agreements
between the
parties hereto, except to the extent such shares can
then be
sold by the Holder without volume or other
restrictions or
limits.
"Registration Rights
Provisions" means the piggy-back
registration rights, demand registration rights
contemplated
by the terms of this Agreement, if any,
including, but not
necessarily limited to, Section 4(g) hereof, and of the
other
Transaction Agreements.
"Registration Statement" means an
effective registration
statement covering the Registrable Securities.
"Securities" means the Shares, the
Warrant, the shares
underlying the Warrant, and any shares of common stock of
the
Company that may be issued to the Purchasers
in connection
with any other agreements between the parties.
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"Pledged Shares" means the Shares or
shares representing
Warrants and Warrant Shares that are
to committed by the
Company against execution and completion of terms of
this or
other agreements respectively.
"State of Incorporation" means Delaware.
"Subsidiary" means any subsidiary of the Company as set
forth
on the Disclosure Annex.
"Trading Day" means any day during which the Principal Trading
Market shall be open for business.
"Transaction Fees" means legal and due diligence fees incurred
by the Purchasers.
"Transfer Agent" means, at any time, the transfer
agent for
the Company's common stock.
"Transaction Agreements" means this
Agreement, Exhibits as
part of this agreement, the Warrant and includes all ancillary
documents referred to in those agreements along with any other
agreements executed by all parties hereto.
"Warrant Shares" means shares of common stock
underlying the
Warrant.
"Financial Statement Date" means those dates for EXHIBIT E and
EXHIBIT G respectively on which
the dates the current
shareholders and/or the Company have signed
the respective
exhibits as certified and true as of that date.
"IPO" for this agreement refers to the first public
offering
through which the Company intends to offer
common stock or
shares to the common public through an initial SEC
filing at
an issue price not less than $1 per share with no
more than
one million shares in the
offering.
D. FORM OF PAYMENT; DELIVERY OF CERTIFICATES.
(i) The Purchasers shall pay the cash Purchase Amount
by delivering immediately available
good funds in United
States Dollars to the Company on the Closing Date.
(ii) On the Closing Date, the Company shall deliver
the Certificates, each duly executed on behalf of the
Company
to the
Purchasers for the cash purchase.
(iii) By signing this
Agreement, each of the
Purchasers and the Company agree to all of
the terms and
conditions of the Transaction
Agreements, all of the
provisions of which are incorporated herein by this
reference
as if set forth in full.
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(iv) Delivery of Certificates under
the Services
Agreement shall be governed by the Terms thereof.
(v) Purchasers shall provide a list of names to whom
to issue each lot of Shares and Warrants at the time of
issue
of these Shares and Warrants.
Purchasers shall have the
unrestricted right to transfer their
ownership interests,
along with all rights pertaining thereto,
among any of its
affiliates.
(vi) The Company will include this
agreement in a
resolution of the board of directors.
(vii) For purpose of this section, Purchase Amounts
shall
be as per individual amounts and respective due
dates
referred to in section 1.a of this agreement.
E. METHOD OF PAYMENT. Payment of the Purchase Amount shall
be
made by wire
transfer of funds to:
Beneficiary Name:
Sungame Corp.
Beneficiary
Account Number: 8 0 9 9 3 5 1 2
Bank Routing
Number: (domestic wires) 3 | 2 | 2 | 0 | 7 | 0 | 3 | 8 | 1
Bank Routing/
Swift Code: ( Intl wires) EWBKUS66XXX
Receiving Bank
Name: East West Bank
Receiving Bank
Address: (Branch Address) 135 N. Los Robles Ave.,
Suite 600
Receiving Bank
Address: (Branch City, State, Zip) Pasadena, CA 91101
F. COMPENSATION TO MINDZEYE CONSULTING PTE
LTD: In lieu of
facilitating this agreement and
related business and management
consulting,
the Company waives off all costs for
the 100K shares
provided
to Mindzeye Consulting Pte
Ltd and to associates or
consultants
thereof as part of this agreement
2.
PURCHASERS REPRESENTATIONS, WARRANTIES, AND ACCESS TO
INFORMATION;
INDEPENDENT INVESTIGATION.
The
Purchasers represent and warrant to, and covenant and agree
with,
the Company as follows:
A. Without limiting Purchasers' right to sell the
Securities
pursuant
to an effective registration
statement or otherwise in
compliance
with the 1933 Act, the Purchasers
are purchasing the
Securities
for their own accounts for investment only and not with
a
view
towards the public sale or distribution thereof
and not with a
view to or for
sale in connection with any distribution thereof.
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B. The Purchasers are (i) experienced in making investments of
the kind
described in this Agreement and the related documents,
(ii)
able,
by reason of the business and
financial experience of its
officers
(if an entity) and professional
advisors (who are not
affiliated
with or compensated in any way by the Company or any of its
Affiliates
or selling agents), to protect
its own interests in
connection with
the transactions described in this Agreement, and
the
related
documents, and to evaluate the
merits and risks of an
investment in the
Securities, and (iii) able to afford the entire loss
of its investment
in the Securities.
C. All subsequent offers and sales of the
Securities by the
Purchasers
shall be made pursuant to registration of
the relevant
Securities
under the 1933 Act or pursuant
to an exemption from
registration.
D. The Purchasers understand that the
Securities are being
offered and
sold to it in reliance on specific
exemptions from the
registration
requirements of the 1933 Act and state securities laws and
that the
Company is relying upon the truth and accuracy
of, and the
Purchasers' compliance with,
the representations, warranties,
agreements,
acknowledgments and understandings of the Purchasers
set
forth herein in
order to determine the availability of such exemptions
and the
eligibility of the Purchasers to acquire the Securities.
E. The Purchasers and their advisors,
if any, have been
furnished
with or have been given access to all materials relating
to
the
business, finances and operations of the Company
and materials
relating to
the offer and sale of the Securities
which have been
requested by the
Purchasers, including those set forth on in any annex
attached
hereto. The Purchasers and their advisors, if any, have
been
afforded
the opportunity to ask questions of
the Company and its
management and
have received complete and satisfactory answers to
any
such
inquiries.
F. The Purchasers understand that their
investment in the
Securities
involves a high degree of risk.
G. The
Purchasers hereby represent that, in connection
with
their purchase of
the Securities, they have not relied on any statement
or representation
by the Company or any of its officers, directors and
employees or any
of their respective attorneys or agents,
except as
specifically set
forth herein.
H. The Purchasers understand 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 Securities.
I. This Agreement and the other Transaction
Agreements to
which the
Purchasers are a party, and the
transactions contemplated
thereby, have been
duly and validly authorized, executed and delivered
by the
Purchasers and are valid and
binding agreements of the
Purchasers
enforceable in accordance with their
respective terms,
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subject as
to enforceability to general principles of
equity and to
bankruptcy,
insolvency, moratorium and other similar laws affecting the
enforcement of
creditors' rights generally.
3. COMPANY
REPRESENTATIONS, ETC. The Company represents and warrants to
the Purchasers as of the date hereof and as of the Closing Date
that, except as
otherwise provided in the Disclosure Annex and other Exhibits
therein, which the
Company represents and warrants to be true, correct and
complete as of date of
signing of those exhibits:
A. RIGHTS OF OTHERS AFFECTING THE TRANSACTIONS. There
are no
preemptive
rights of any shareholder of the
Company, as such, to
acquire
the Shares, the Warrant or any
Warrant Shares issued in
connection with
any other agreements executed by the parties hereto. No
party other than
Purchasers has a currently exercisable right of first
refusal
which would be applicable to any or all of the
transactions
contemplated by
the Transaction Agreements.
B. STATUS. The Company is a
corporation duly organized,
validly
existing and in good standing under the laws of the
State of
Delaware 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 each jurisdiction where the
nature of the business
conducted or
property owned by it makes such qualification
necessary,
other than those
jurisdictions in which the failure to so qualify would
not have or result
in a Material Adverse Effect. The Company intends to
registered its
stock and then be obligated to file reports pursuant to
Section 12 or
Section 15(d) of the Securities and Exchange Act of 1934,
as
amended (the "1934 Act"). The
Company intends to file, upon
Registration, a 15c211 through an NASD Broker for its
common stock to
be quoted on the
OTCBB. The Company has received no notice, either oral
or written,
with respect to the eligibility of the common
stock for
such quotation on
the OTCBB.
C. AUTHORIZED SHARES.
(i) The authorized capital stock of
the Company
consists of 100,000,000 shares of common
stock, $0.001 par
value, of which 5,000,000 are issued and outstanding as of the
date hereof.
(ii) All issued and outstanding
shares of common
stock have been duly authorized and validly
issued and are
fully paid and non-assessable. The Company
has sufficient
authorized and un-issued shares of
common stock as may be
necessary to affect the issuance of the shares on the
Closing
Date.
(iii) As of the Closing Date, the shares shall have
been duly authorized by all necessary corporate action on
the
part of the Company, and, when issued on the Closing
Date or
pursuant to other relevant provisions
of the Transaction
Agreements, in each case in accordance with their
respective
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terms, will be duly and validly
issued, fully paid and
non-assessable and will not subject the
Holder thereof to
personal liability by reason of being such Holder.
(iv) As
of the Closing date, all shares issued and
pledged to current and future shareholders are of the
nature
of common shares and there are no
other types of shares
including but not limited to preferential
shares that have
been issued or pledged to any shareholders
D. TRANSACTION AGREEMENTS AND STOCK. This Agreement and
each
of the other
Transaction Agreements, and the transactions contemplated
thereby,
have been duly and validly authorized by the
Company, this
Agreement
has been duly executed and delivered by the Company and this
Agreement
is, and the shares and each of
the other Transaction
Agreements,
when executed and delivered by the Company, will be, valid
and binding
agreements of the Company enforceable in accordance
with
their respective
terms
E. NON-CONTRAVENTION. The execution
and delivery of this
Agreement and each
of the other Transaction Agreements by the Company,
the issuance of
the Securities, and the consummation by the Company of
the other
transactions contemplated by this Agreement,
each of the
shares
and the other Transaction Agreements
do not and will not
conflict
with or result in a breach by the Company of any of the terms
or provisions of,
or constitute a default under (i) the certificate of
incorporation or by-laws of the Company, each as
currently in effect,
(ii)
any indenture, mortgage, deed of
trust, or other material
agreement or
instrument to which the Company is a party or by which it
or any of
its properties or assets are bound,
including any listing
agreement for the
common stock except as herein set forth, or (iii) to
its
knowledge, any existing applicable law, rule, or regulation
or any
applicable
decree, judgment, or order of any court,
United States
federal or
state regulatory body, administrative
agency, or other
governmental
body having jurisdiction over the Company or any of
its
properties
or assets, except such conflict, breach or
default which
would not have or
result in a Material Adverse Effect.
F. APPROVALS. No authorization, approval or
consent of any
court,
governmental body, regulatory
agency, self-regulatory
organization, or stock exchange or market or the
shareholders of the
Company is
required to be obtained by the Company for the issuance
and
sale of
the Securities to the Purchasers as
contemplated by this
Agreement, except
such authorizations, approvals and consents that have
been obtained and
have been provided as part of this agreement.
G. ABSENCE OF CERTAIN CHANGES. Since the Financial
Statement
Date, there has
been no material adverse change and no Material Adverse
Effect, except as
disclosed herein. Since the Financial Statement Date,
the Company
has not (i) incurred or become subject to
any material
liabilities
(absolute or contingent) except the declared
liabilities
herein;
(ii) discharged or satisfied any material lien or
encumbrance
or paid any
material obligation or liability (absolute or
contingent),
other than the
declared liabilities herein; (iii) declared or made any
payment or
distribution of cash or other property to shareholders
with
respect to its
capital stock, or purchased or redeemed, or
made any
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agreements to
purchase or redeem, any shares of its capital stock; (iv)
sold,
assigned or transferred any other tangible assets, or
canceled
any
debts owed to the Company by any
third party or claims of the
Company against
any third party, except as declared herein; (v) waived
any rights of
material value, whether or not in the ordinary course of
business,
or suffered the loss of any material amount
of existing
business;
(vi) made any increases in employee compensation; or
(vii)
experienced any material
problems with labor or management
in
connection with
the terms and conditions of their employment.
H. FULL DISCLOSURE. There is no fact known to the Company that
has
not been disclosed in writing to
the Purchasers that would
reasonably be
expected to have or result in a Material Adverse Effect.
Furthermore a
summary of all financial budgets, committed and projected
are attached
herewith as EXHIBIT G and is represented and warranted by
the Company as
true, correct and complete as of date
I. ABSENCE OF LITIGATION.
There is no action, suit,
proceeding,
inquiry or investigation before or by any court,
public
board or body
pending or, to the knowledge of the Company,
threatened
against
or affecting the Company before
or by any governmental
authority or
nongovernmental department, commission,
board, bureau,
agency or
instrumentality or any other person, wherein an
unfavorable
decision,
ruling or finding would have a Material Adverse
Effect or
which would
adversely affect the validity or enforceability of, or
the
authority or
ability of the Company to perform its obligations
under,
any of the
Transaction Agreements. The Company is not
aware of any
valid basis
for any such claim that (either
individually or in the
aggregate
with all other such events
and circumstances) could
reasonably be
expected to have a Material Adverse Effect. There are no
outstanding
or unsatisfied judgments,
orders, decrees, writs,
injunctions or
stipulations to which the Company is a party or by which
it or any of
its properties is bound, that involve
the transaction
contemplated
herein or that, alone or in
the aggregate, could
reasonably be
expect to have a Material Adverse Effect.
J. ABSENCE OF EVENTS OF
DEFAULT. Except as set forth in
Section 3(e)
and 3(g) hereof, (i) neither the Company nor any of
its
subsidiaries
is in default in the performance or
observance of any
material
obligation, agreement, covenant or condition contained in
any
material
indenture, mortgage, deed of trust or other material agreement
to which it is a
party or by which its property is bound, and (ii)
no
Event of Default
(or its equivalent term), as defined in the respective
agreement to
which the Company or its subsidiary is a party,
and no
event which,
with the giving of notice or the passage of time or both,
would
become an Event of Default (or its
equivalent term) (as so
defined in such
agreement), has occurred and is continuing, which would
have a Material
Adverse Effect.
K. ABSENCE OF CERTAIN COMPANY
CONTROL PERSON ACTIONS OR
EVENTS. None
of the following has occurred during the past
five (5)
years with respect
to a Company Control Person:
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(1)
A petition under the federal bankruptcy laws or
any state insolvency law was
filed by or against, or a
receiver, fiscal agent or similar officer was appointed
by a
court for the business or property of such
Company Control
Person, or any partnership in which he was a general
partner
at or within two years before the time of such filing, or
any
corporation or business association
of which he was an
executive officer at or within two years before
the time of
such filing;
(2) Such Company Control Person was convicted in
a
criminal proceeding or is a
named subject of a pending
criminal proceeding (excluding traffic violations
and other
minor offenses);
(3) Such Company Control Person was the subject
of
any order, judgment or decree, not
subsequently reversed,
suspended or vacated, of any court of competent
jurisdiction,
permanently or temporarily enjoining him from, or
otherwise
limiting,
the following activities:
(i) acting, as an
investment advisor,
underwriter, broker or dealer in securities, or as an
affiliated person, director or
employee of any
investment company, bank,
savings and loan
association or insurance company,
as a futures
commission merchant, introducing broker,
commodity
trading advisor, commodity pool
operator, floor
broker, any other Person regulated by the Commodity
Futures Trading Commission ("CFTC") or engaging in or
continuing any conduct or practice in connection with
such activity;
(ii) engaging in any type
of business
practice; or
(iii) engaging in any activity in connection
with the purchase or sale
of any security or
commodity or in connection with any
violation of
federal
or state securities laws
or federal
commodities laws;
(4) Such Company Control Person was the subject
of
any order, judgment or decree, not
subsequently reversed,
suspended or vacated, of any federal
or state authority
barring, suspending or otherwise limiting
for more than 60
days the right of such Company Control Person to engage in any
activity described in paragraph (3) of this
item, or to be
associated with Persons engaged in any such activity; or
(5) Such Company Control Person was found by a court
of competent jurisdiction
in a civil action or by the CFTC or
SEC to have violated any federal or state securities law,
and
the judgment in such civil action or finding by
the CFTC or
SEC has not been subsequently reversed, suspended, or vacated.
L. NO UNDISCLOSED LIABILITIES OR EVENTS. The
Company has no
liabilities or obligations
other than those disclosed in
the
Transaction
Agreements or those incurred in the ordinary course of the
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