SYNERTECK INCORPORATED
PREFERRED STOCK PURCHASE AGREEMENT
THIS PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
the 8th day of April, 2005 by and among SYNERTECK INCORPORATED, a Delaware
corporation (the "Company"), and DAVID ROSS, an individual (the "Investor").
WHEREAS, the Company and the Investor desires to acquire shares of the
Company's Series A Preferred Stock (as such terms are defined below).
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, covenants, representations and warranties contained herein, the
parties, intending to be legally bound, agree as follows:
1. PURCHASE AND SALE.
1.1 Sale of Series A Preferred Stock. Subject to the terms and conditions
of this Agreement, at the Closing the Investor agrees to purchase and the
Company agrees to sell and issue Investor 50,000 shares of the Company's Series
A Preferred Stock, par value $0.001 per share ("Series A Preferred Stock") for
$.50 per share, Twenty-Five Thousand Dollars ($25,000.00).
1.2 Series A Preferred Stock. The Company shall not be able to undertake or
consummate any of the following actions without the prior written consent of the
Investor which may be withheld in the Investor's sole discretion:
(i) Filing of an S-8 registration statement with the Securities
and Exchange Commission; or
(ii) Any stock dividend, stock split (whether a forward split or
reverse split), recapitalization, or share capital consolidation.
1.3 Certificate of Designation. The Company shall file a certificate of
designations with the state of Delaware setting forth the rights enumerated
herein.
1.4 Conversion. The Investor with written notice to the Company may convert
his Series A Preferred Stock into Common Stock of the Company ("Conversion
Shares")on a 1-for-1 basis at any time. The Company may convert the Investor's
Series A Preferred Stock into Conversion Shares on a 1-for-1 basis following the
expiration of the three-year period commencing on the date of this Agreement,
with written notice to the Investor. Upon the conversion of the Series A
Preferred Stock as provided above, the Investor shall surrender the Series A
Preferred Stock certificate to the Company's principal office, duly endorsed or
accompanied by a written instrument of transfer duly executed by the Investor.
Concurrently with the surrender of the Series A Preferred Stock aforesaid, the
Company shall issue and deliver to the Investor a stock certificate representing
the Conversion Shares.
1.5 Delivery. The Series A Preferred Stock to be delivered pursuant to this
Agreement, when so delivered, will have been duly and validly authorized and
issued by the Company and will be fully paid and non-assessable. Furthermore,
upon conversion of the Series A Preferred Stock into Conversion Shares, as
detailed in section 1.4 above, the Conversion Shares issued to the Investor will
be duly and validly authorized and issued by the Company and will be fully paid
and non-assessable.
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1.6 Closing. The purchase and sale of the Series A Preferred Stock shall
take
place at the offices of the Company or at such time and place as the Company and
Investor shall mutually agree (which time and place are designated as the
"Closing"). At the Closing, the Company shall deliver to the Investor a
certificate representing the shares of Series A Preferred Stock that such
Investor is purchasing.
2. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and warrants to
the Investor that:
2.1 Organization; Good Standing; Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the Delaware.
2.2 Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement, the performance of all obligations of the
Company hereunder and the authorization, issuance (or reservation for issuance),
sale and delivery of the Series A Preferred Stock or Conversion Shares being
sold hereunder has been taken or will be taken prior to the Closing, and this
Agreement constitutes valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally, and
(b) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
2.3 Valid Issuance of Securities. The Series A Preferred Stock that is
being purchased by the Investor hereunder, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid and nonassessable, and will
be free and clear of all pledges, liens, encumbrances and restrictions. The
Series A Preferred Stock, including the Conversion Shares has been duly and
validly reserved for issuance and, upon issuance in accordance with the terms of
this Agreement, will be duly and validly issued, fully paid and nonassessable,
and will be free and clear of all pledges, liens, encumbrances and restrictions
on transfer other than restrictions on transfer under this Agreement and under
applicable securities laws.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. Investor hereby represents
and warrants to the Company, that:
3.1 Authorization. Investor has full power and authority to enter into this
Agreement, and this Agreement constitutes a valid and legally binding obligation
of such Investor, enforceable in accordance with its terms, except (a) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally, and (b) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
3.2 Investment Experience. Such Investor is experienced in evaluating and
investing in securities of early-stage companies and acknowledges that he is
able to fend for himself, can bear the economic risk of its investment, and has
such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of the investment in the Series A
Preferred Stock.
3.4 Restricted Securities. Such Investor understands that neither the
Series A Preferred Stock nor the Conversion Shares may not be sold, transferred
or otherwise disposed of without registration under applicable securities laws
or an exemption therefrom, and that in the absence of an effective registration
statement covering the Series A Preferred Stock (or Conversion Shares as the
case may be) or an available exemption from registration under applicable
securities laws must be held indefinitely. Upon conversion from Series A
Preferred Stock into Conversion Shares,
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the Investor may only sell, transfer or dispose of the Conversion Stock pursuant
to Rule 144 of the Securities Act of 1933, if applicable.
4. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING. The obligations of
the Investor under subparagraph 1.1 of this Agreement are subject to the
fulfillment on or before Closing of each of the following conditions. The waiver
of such obligations shall not be effective against any Investor who does not
consent in writing thereto.
4.1 Representations and Warranties. The representations and warranties of
the Company contained in Section 2 shall be true and correct in all respects on
and as of Closing.
4.2 Performance. The Company shall have performed and complied with all
obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before Closing.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of the
Company to the Investor under this Agreement are subject to the fulfillment on
or before Closing of each of the following conditions by the Investor:
5.1 Representations and Warranties. The representations and warranties of
the Investor contained in Section 3 shall be true and correct in all respects on
and as of Closing.
5.2 Performance. The Investors shall have performed and complied with all
obligations and conditions contained in this Agreement that are required to be
performed or complied with by them on or before Closing.
6. MISCELLANEOUS.
6.1 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be liable
or bound to any other party in any manner by any warranties, representations or
covenants except as specifically set forth herein or therein.
6.2 Survival of Warranties; Indemnification. The warranties,
representations and covenants of the Company and each Investor contained in or
made pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the Closing.
6.3 Legends. To the extent applicable, each certificate or other document
evidencing any of Series A Preferred Stock or any Conversion Shares shall be
endorsed with the legend set forth below, and such Investor covenants that,
except to the extent such restrictions are waived by the Company, such Investor
shall not transfer the shares represented by any such certificate without
complying with the restrictions on transfer described in the legends endorsed on
such certificate:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR
QUALIFIED UNDER APPLICABLE FEDERAL OR STATE SECURITIES LAWS, AND MAY BE OFFERED
AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF
SUCH LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL OR OTHER EVIDENCE
SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER SUCH LAWS
IS NOT REQUIRED."
6.4 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns
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of the parties (including permitted transferees of Series A Preferred Stock sold
hereunder). Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
6.5 Governing Law; Venue. This Agreement shall be governed by and construed
under the laws of the State of Utah, without regard to its body of law
controlling conflicts of law. Venue with respect to any action regarding this
Agreement or the transactions contemplated hereby shall be proper solely in the
state and federal courts located within Salt Lake County, Utah.
6.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.7 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
6.8 Notices. Unless otherwise provided, any notice and other communications
required or permitted under this Agreement shall be in writing and shall be
mailed by United States first-class mail, postage prepaid, or delivered
personally by hand or by a nationally recognized courier addressed to the party
to be notified at the address indicated for such party below or on Schedule A,
or at such other address as such party may designate by ten (10) days advance
written notice to the other parties hereto. All such notices and other written
communications shall be effective on the earlier of: (i) five (5) days from the
date of mailing or actual receipt by the party to be notified.
6.9 Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of the Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and disbursements in addition to
any other relief to which such party may be entitled.
6.10 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived with the written
consent of the Company and the Investor.
6.11 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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IN WITNESS WHEREOF, the parties have executed this Preferred Stock Purchase
Agreement as of the date first above written.
COMPANY:
SYNERTECK INCORPORATED
By: /s/ Clayton Barlow
_______________________________
Name: Clayton Barlow
_____________________________
Title: President
____________________________
Address: 11585 South State Street, Suite 102
Draper, Utah 84020
Attn: President
Phone Number:801-816-2505
Fax Number:801-816-2599
INVESTOR:
/s/ David Ross
__________________________________
DAVID ROSS
Address: 1890 East 10980 South
Sandy, Utah 84092
Attn: David Ross
Phone Number:801-571-4626
Fax Number:
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Exhibit A
Disclosure Schedules
[see attached]
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