EXHIBIT 10.11
THE SECURITIES ISSUABLE UNDER THIS DOCUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFIED UNDER
ANY STATE OR FOREIGN SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED
OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT COVERING THIS WARRANT AND/OR SUCH SECURITIES, OR THE HOLDER
DELIVERS TO THE COMPANY AN OPINION OF COUNSEL FOR THE HOLDER OF THE SECURITIES
AND/OR SUCH SECURITIES SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND THE QUALIFICATION
REQUIREMENTS UNDER APPLICABLE STATE OR FOREIGN LAW.
SHARE PURCHASE AGREEMENT
This agreement (the "AGREEMENT"), is made by and between Voice Diary Inc., a
company incorporated under the laws of the state of Delaware (the "COMPANY") and
Nathan Tarter (the "Investor")
WHEAREAS: the Investor wants to purchase 1,346,405 (One million three
hundred forty six thousand four hundred and five) Class A Common Stocks of the
Company, each bearing a par value of $ 0.01 (the "PURCHASED SHARES") allocated
in consideration of $66,667 (the "Purchase Price"); and
WHEAREAS: the Company wishes to allocate the Purchased Shares to the
Investor at the Purchase price in accordance with the terms and conditions set
forth herein.
NOW THEREFOR, the parties, intending to be legally bound, hereby agree as
follows:
1. PREAMBLE AND CAPTIONS
1.1. The preamble to this Agreement shall be deemed an integral
part thereof.
1.2. The captions in this Agreement shall not be deemed a part
hereof as they have been inserted for convenience and
orientation only, and they shall not affect the interpretation
of this Agreement.
2. PURCHASE AND SALE OF SHARES
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2.1. Subject to and in accordance with the terms and conditions of
this Agreement, the Investor hereby buys the Purchased Shares
from the Company, and the Company hereby sells the Purchased
Shares to the Investor.
2.2. The parties hereby agree that the Purchase Price shall be paid
by Nir Or Israel Ltd ("Nir Or") by offsetting the Company's
debt to Nir Or. A written confirmation that part of the bridge
loans that were provided by Nir Or to the Company, equal to
$66,667, is to be considered as payment of the Purchase Price
for the Investor and that the Company has no obligation to pay
Nir Or said sum, shall be considered as a full payment of the
Purchase Price..
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTOR
The Investor hereby represents and warrants to the Company as follows:
3.1. NO BREACH. The execution and performance of this Agreement and the
consummation of the transactions contemplated hereunder will not
result in a breach of, nor will they constitute a default under, any
agreement to which the Investor is party.
3.2. APPROVALS. No approval or consent of any person, authority or entity
is required in connection with the execution and delivery of this
Agreement or the performance of the Investor's obligations
contemplated hereby.
3.3. AUTHORIZATION. If the Investor is a corporation, it is duly
organized and validly existing in the jurisdiction of its
organization and has full power and authority to enter into this
Agreement. All actions on its part necessary for the authorization,
execution, delivery and performance by it of this Agreement have
been duly taken to authorize the execution and delivery by it, and
this Agreement constitutes its valid and legally binding obligation,
enforceable in accordance with its terms except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting enforcement of
creditors' rights, and (b) general principles of equity that
restrict the availability of equitable remedies.
3.4. NO PUBLIC MARKET; RULE 144. The Investor understands that no public
market now exists for any of the Purchased Stock and that it is
uncertain whether a public market will ever exist for any such
securities. The Investor further acknowledges that because the
Purchased Stock have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), the Purchased Stock must be
held indefinitely unless subsequently registered under the
Securities Act or an exemption from such registration is available.
It is aware
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of the provisions of Rule 144 promulgated under the Securities Act,
which permits limited resale of shares purchased in a private
placement under certain circumstances.
3.5. RESTRICTED STOCK. The Purchased Stock are characterized as
"RESTRICTED SECURITIES" under the federal securities laws inasmuch
as they are being acquired from the Company in a transaction not
involving a public offering or in reliance upon a safe harbor from
the registration requirements of the act under regulation S for
offers and sales of securities that occur outside of the united
states, and such securities may be resold without registration under
the Act only in certain limited circumstances. It understands that
the certificates evidencing the Purchased Stock will be printed with
legends restricting transfer except in compliance with applicable
securities laws in the form of the following or similar legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT") AND MAY NOT
BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS OR FOR
THE ACCOUNT OR BENEFIT OF A U.S. PERSON (OTHER THAN DISTRIBUTORS AS
DEFINED IN REGULATION S) DURING THE DISTRIBUTION COMPLIANCE PERIOD
AS DEFINED IN RULE 902 OF REGULATION S UNLESS THE SHARES ARE
REGISTERED UNDER THE ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS IS AVAILABLE.".
Investor understands that any transfer agent of the Company will
issue stop-transfer instructions with respect to the Purchased Stock
unless any transfer thereof is subsequently registered under the Act
and applicable state and other securities laws or unless an
exemption from such registration is available.
3.6. The Investor's present intention is to acquire the Purchased Stock
for its own account and further represents that the Purchased Stock
are being and will be acquired by it for the purpose of investment
and not with a view to distribution or resale thereof. The
acquisition by the Investor of the Purchased Stock acquired by it
shall constitute a confirmation of this representation by such
Investor.
3.7. ACCESS TO INFORMATION. The Investor acknowledges that it, during the
course of this transaction and prior to the acquisition of any
Purchased Stock has had the opportunity to ask questions of and
receive answers from representatives of the
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Company concerning the terms and conditions of this Agreement
relating to the Purchased Stock, and to obtain additional
information, documents, records and books relative to the Company,
its business, and an investment in Company. The Investor
acknowledges that the Company or any agent thereof has made no
representations or warranties except as explicitly set forth in this
Agreement.
3.8. PREVIOUS INVESTMENTS. By reason of the Investor's knowledge and
experience in business and financial matters, including investments
in securities of companies in the development stage, it is able to
fend for itself, can bear the economic risk of its investment and
has such knowledge and experience in financial or business matters
that it is capable of evaluating the merits and risks of the
transactions contemplated herein.
3.9. RISKS. The Investor understands that an investment in the Company
involves a high degree of risk and is suitable only for shareholders
who can afford a loss of their entire investment and who have no
need for liquidity from their investment.
3.10. The Investor is either (i) an "accredited investor", as that term is
defined in Rule 501 of Regulation D promulgated under the Securities
Act, or (ii) not a "U.S. Person", as defined by Rule 902 of
Regulation S promulgated under the Securities Act, was not formed by
a "U.S. Person" as defined by Rule 902 of Regulation S, was not
organized under the laws of any United States jurisdiction, is not
holding the Purchased Stock for the benefit of any US Person, and
was not formed for the purpose of investing in securities not
registered under the Securities Act. At the time the buy order for
this transaction was originated, the Investor was outside the United
States.
All subsequent offers and sales of the Purchased Stock will be made
(i) outside the United States in compliance with Rule 903 or Rule
904 of Regulation S, (ii) pursuant to registration of the Purchased
Stock under the Securities Act, or (iii) pursuant to an exemption
from such registration. The Investor understands the conditions of
the exemption from registration afforded by Section 4(1) of the
Securities Act and acknowledges that there can be no assurance that
it will be able to rely on such exemption. The Investor will not
engage in hedging transactions with regard to the Purchased Stock
prior to the expiration of the distribution compliance period
specified in Rule 903 of Regulation S, unless in compliance with the
Securities Act.
3.11. The Investor, if not a natural person, was not formed for the
specific purpose of acquiring the securities offered in this
Agreement.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
The Company hereby represents and warrants to the Investor as follows:
4.1. AUTHORIZATION BY COMPANY. By signing, all actions on the part of
Company necessary for the authorization, execution, delivery, and
performance by it of this Agreement have been duly taken, and this
Agreement constitutes a legal, valid and binding obligation,
enforceable against the Company in accordance with its terms.
4.2. NO BREACH. The execution and performance of this Agreement and the
consummation of the transactions contemplated hereunder will not
result in a breach of, nor will they constitute, a default under any
agreement to which the Company is party.
4.3. NO ADDITIONAL REPRESENTATIONS. The Company is familiar with the
Company, its property, its obligations and its activities. Company
is, thus, purchasing the Purchased Shares "AS IS", without having
relied upon any representations and/or warranties by the Investor,
except those representations and warrants specifically indicated
herein.
4.4. APPROVALS. No approval or consent of any third party is required in
connection with the execution and delivery of this Agreement on the
consummation of the transaction contemplated hereby.
5. STAND-OFF AGREEMENT
In connection with any offering of the Company's equity securities,
pursuant to an effective registration statement, for such period (the
"Lock-Up Period") as the Company may request (such period not to exceed
180 days following the date of the applicable offering), the Investor
shall not, directly or indirectly, sell make any short sale of, loan,
hypothecate, pledge, offer, grant or sell any portion or other contract
for the purchase of, purchase any option or other contract for the sale
of, or otherwise dispose of or transfer, or agree to engage in any of the
foregoing transactions with respect to, any Purchased Stock acquired
hereunder without the prior written consent of the Company. The Investor
agrees to (i) have any certificate or certificates representing his, her
or its Purchased Stock bear, in addition to any other applicable
securities legends, a legend stating that the shares represented by that
certificate may not be transferred by any means whatsoever, without the
agreement of the Company, during the Lock-Up Period; and (ii) execute any
and all agreements with underwriters
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representing the Company to effect and perfect the foregoing. The Company
may impose stop transfer instructions with respect to the shares subject
to the foregoing restrictions, until the end of the Lock-Up Period.
6. WAIVER AND CONSENTS
The Investor hereby waives any right, title, interest in and to any
additional shares or other securities of the Company, whether pursuant to
an option agreement, warrant agreement, antidilution right, preemptive
right or the like, and hereby waive any other right to receive shares or
other securities of the Company or the Company (to the extent such rights
exist), and agrees that the Purchased Shares are the sum total of the
shares or other securities of the Company to which the Investor is
entitled. The Investor hereby waives any and all registration rights the
Investor may have had in the Company, and acknowledges that the Investor
is not receiving herein any registration rights in and to the Company's
equities. The Investor hereby agrees and consents to the resolutions
adopting the Voice Diary Inc. 2003 Stock Option Plan. The execution of
this Agreement also serves as execution of the resolutions.
7. TAXATION
Each Party shall bear the payment of any tax or levy, should such payment
apply to the Party, pursuant to the provision of any law, in its status of
transferor or transferee, depending on the case. Without derogating from
the foregoing, Investor, alone, will be responsible for payment of any
capital gains tax, if any, which may apply as a result of (i) the transfer
and sale of the Purchased Shares, and (ii) the issuance of Purchased Stock
by the Company, as contemplated herein.
8. MISCELLANEOUS
8.1. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
8.2. ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto
and the other documents delivered pursuant hereto constitute the
full and entire understanding and agreement between and among the
parties with regard to the subjects hereof and thereof.
8.3. AMENDMENTS. Any and all changes, amendments or additions to this
Agreement shall require the prior written consent of all Parties, or
else they shall be deemed null and void.
8.4. NOTICES. Any notice, payment, report or other communication required
or permitted to be given by one party to any other party by this
Agreement shall
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be in writing and addressed to the other party at its address as
indicated below, or to such other address as any addressee shall
have theretofore furnished to the other party by like notice. All
notices shall be deemed to have been given or delivered upon: (i)
personal delivery; or (ii) three (3) days after deposit in the
United States mail by certified mail (return receipt requested); or
(iii) one (1) business day after deposit with any return receipt
express courier (prepaid); or (iv) one (1) business day after
transmission by facsimile.
8.5. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
8.6. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York applicable to
contracts between New York residents entered into and to be
performed entirely within the State of New York. The parties
irrevocably consent to the exclusive jurisdiction of any competent
court located within the city of New York, State of New York, with
respect to any and all disputed arising from this Agreement.
8.7. The parties hereto agree to maintain the confidentiality of the
terms hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of
the date first written above.
Investor's Name: Nathan Tarter Company: Voice Diary Inc.
Signature: Signature
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Address: 22 Mintz St., Petah Tiqua By: Arie Hinkis, CEO
49354, Israel Address: 200 Robbins Lane
Date: May 9, 2003 Jericho NY 11753
Date: May 9, 2003