EARTHSHELL CONTAINER CORPORATION
26,675 Shares of Series A Cumulative
Senior Convertible Preferred Stock
STOCK PURCHASE AGREEMENT
Dated as of September 16, 1993
EXHIBIT 10.12
TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. PURCHASE AND SALE OF SECURITIES . . . . . . . . . . . . . . 3
2.1 Issue of Securities . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Sale and Purchase of the Securities;
the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 3. CLOSING CONDITIONS. . . . . . . . . . . . . . . . . . . . . 4
3.1 Conditions to Purchasers' Obligations . . . . . . . . . . . . . . 4
3.1.1 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . 4
3.1.2 Representations and Warranties
True . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1.3 Compliance with this Agreement . . . . . . . . . . . . . . 4
3.1.4 Purchase Permitted by Applicable
Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1.5 Completion of Registration Rights
Agreement. . . . . . . . . . . . . . . . . . . . . . . . 4
3.1.6 Consents and Permits . . . . . . . . . . . . . . . . . . . 5
3.1.7 Absence of Material Adverse Change . . . . . . . . . . . . 5
3.1.8 Amendment of Certificate of
Incorporation. . . . . . . . . . . . . . . . . . . . . . 5
3.1.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Conditions to Company's Obligations . . . . . . . . . . . . . . . 5
3.2.1 Representations and Warranties True. . . . . . . . . . . . 5
3.2.2 Compliance with this Agreement . . . . . . . . . . . . . . 5
3.2.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.1 Organization, Standing and Qualification . . . . . . . . . . . . 6
4.2 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.3 Authorization of Agreement and Other
Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.5 Financial Statements . . . . . . . . . . . . . . . . . . . . . . 7
4.6 No Material Adverse Change; Conduct of
Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.7 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.8 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.9 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . 9
4.10 Governmental Consents. . . . . . . . . . . . . . . . . . . . . . 9
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PAGE
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4.11 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.12 Affiliate Agreements . . . . . . . . . . . . . . . . . . . . . . 10
4.13 Intangible Personal Property . . . . . . . . . . . . . . . . . . 10
4.14 Other Information. . . . . . . . . . . . . . . . . . . . . . . . 10
4.15 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . 10
4.16 License Agreement. . . . . . . . . . . . . . . . . . . . . . . . 10
4.17 Survival of Representations and Warranties . . . . . . . . . . . 10
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE
PURCHASERS . . . . . . . . . . . . . . . . . . . . . . . . 11
5.1 Securities Act Representation. . . . . . . . . . . . . . . . . . 11
5.2 Investment Representation. . . . . . . . . . . . . . . . . . . . 11
5.3 No Brokers or Finders. . . . . . . . . . . . . . . . . . . . . . 11
SECTION 6. COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . 12
6.1 Information. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.2 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.3 Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.4 Priority Subscription Rights . . . . . . . . . . . . . . . . . . 13
6.5 Right to Join in Sale. . . . . . . . . . . . . . . . . . . . . . 14
SECTION 7. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . 15
7.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 16
7.3 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . 16
7.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.5 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.7 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 17
7.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.9 Expenses; Attorneys' Fees. . . . . . . . . . . . . . . . . . . . 17
SCHEDULES:
Schedule 2.3 List of Purchasers
Schedule 4.2 Capitalization
Schedule 4.4 Consents
Schedule 4.6 Conduct of Business
Schedule 4.12 Affiliate Agreements
ANNEXES:
Annex A Certificate of Designation
Annex B Registration Rights Agreement
Annex C Legal Opinion of Counsel to the Company
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STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement, dated as of September 16, 1993 (the
"Agreement"), is being entered into by and among EarthShell Container
Corporation, a Delaware corporation (the "Company"), each of the Purchasers
whose names appear on the signature pages of this Agreement (collectively, the
"Purchasers"), and, solely with respect to and for purposes of the covenants set
forth in Section 6.5, E. Khashoggi Industries, a California General Partnership
("EKI").
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
AFFILIATE: Any person (i) that directly or indirectly, through one or
more intermediaries, controls or is controlled by, or is common control with,
the Company, including without limitation the officers and directors of the
Company, (ii) that directly or indirectly owns or holds 5% or more of any equity
interest in the Company or (iii) 5% or more of whose voting stock (or in the
case of an entity which is not a corporation, 5% or more of any equity interest)
is owned directly or beneficially or held by the Company.
AGREEMENT: This Stock Purchase Agreement between the Company and the
Purchasers, as amended from time to time.
CERTIFICATE OF DESIGNATION: See Section 2.1.
CHARTER DOCUMENTS: The Certificate of Incorporation and Bylaws, as
amended or restated (or both) to date, of the Company.
CLOSING: See Section 2.3.
CLOSING DATE: September 16, 1993 or such other date as determined
pursuant to Section 2.3.
COMMON STOCK: The Company's common stock, par value $.01 per share.
COMPANY: EarthShell Container Corporation, a Delaware corporation,
and its successors and assigns.
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DOCUMENTS: This Agreement and the Registration Rights Agreement,
together with any exhibits, schedules or other attachments hereto or thereto.
EKI: E. Khashoggi Industries, a California General Partnership.
LIEN: With respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether
or not filed, recorded or otherwise perfected under applicable law (including
any conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
NEW SECURITIES: Any capital stock of the Company issued after the date
hereof, whether now or hereafter authorized, and all rights, options or warrants
to purchase capital stock of the Company, and securities or indebtedness of any
type whatsoever that are, or may become, convertible into or exchangeable for
capital stock of the Company; provided that the term "New Securities" does not
include (i) any securities issued upon exercise or conversion of other
securities in accordance with their terms or any other securities which, when
issued, were subject to Section 6.4 hereof; (ii) securities issued pursuant to
an acquisition by the Company; (iii) securities issued in connection with any
reclassification, split, combination or other change of any then outstanding
securities of Company; (iv) securities paid as dividends on any then outstanding
securities of the Company; (v) any securities issued pursuant to conversion of
the Preferred Stock; and (vi) any Common Stock issued in connection with stock
options (or similar rights) issued pursuant to stock option plans for the
benefit of employees, consultants and other persons providing services to the
Company, provided that the number of shares subject to all such plans does not
exceed 5% of the then outstanding shares of Common Stock.
PERSON: An individual, partnership, corporation, trust or
unincorporated organization or a government or agency or political subdivision
thereof.
PREFERRED STOCK: See Section 2.1.
PRO RATA SHARE: With respect to each Purchaser, such Purchaser's
percentage interest in the Company resulting from its ownership of Preferred
Stock and computed as if all outstanding shares of Preferred Stock had been
converted into Common Stock.
PURCHASER: The Persons, other than the Company and EKI, listed on the
signature page hereto and their successors, assigns and designees.
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REGISTRATION RIGHTS AGREEMENT: The Registration Rights Agreement
attached as Annex B hereto, as amended from time to time.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECTION 2. PURCHASE AND SALE OF SECURITIES
2.1 ISSUE OF SECURITIES
The Company has authorized the issue of an aggregate of 26,675 shares
of its Series A Cumulative Senior Convertible Preferred Stock, with a
liquidation preference of $1,000 per share (the "Preferred Stock").
The Preferred Stock will be issued pursuant to, and will have the
terms set forth in, the Company's Certificate of Designation, Preferences
Relative, Participating, Optional and Other Special Rights (the "Certificate of
Designation") in substantially the form attached hereto as Annex A.
The Purchasers will have the registration rights with respect to the
Preferred Stock set forth in the Registration Rights Agreement, attached hereto
as Annex B.
2.2 SALE AND PURCHASE OF THE SECURITIES; THE CLOSING
In reliance upon the Purchasers' representations made in Section 5 and
subject to the terms and conditions set forth herein and in the other Documents,
the Company hereby agrees to sell to the Purchasers the Preferred Stock and, in
reliance upon the representations and warranties of the Company contained herein
and in the other Documents, and subject to the terms and conditions set forth
herein and therein, the Purchasers hereby agree to purchase the Preferred Stock
from the Company.
The purchase price for the Preferred Stock purchased and sold
hereunder shall be $26,675,000.
2.3 CLOSING
The sale and purchase of the Preferred Stock shall take place at a
closing (the "Closing") at the offices of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. on or prior
to [insert day and month of closing], 1993. At the Closing, each Purchaser will
pay to the Company in cash, by wire transfer of next day funds, the amount set
forth as the purchase price opposite such Purchaser's name in Schedule 2.3
hereto, and the Company will issue to each Purchaser the respective number of
shares of Preferred Stock set forth opposite such Purchaser's name in Schedule
2.3 hereto. The
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Company will deliver to each Purchaser stock certificates issued in such
Purchaser's name representing the shares of Preferred Stock to be issued to such
Purchaser, in such denominations as such Purchaser may specify by timely notice
(or, in the absence of such notice to the Company, one stock certificate issued
in the name of such Purchaser with respect to the shares of Preferred Stock to
be issued to it hereunder).
SECTION 3. CLOSING CONDITIONS
3.1 CONDITIONS TO PURCHASERS' OBLIGATIONS
The Purchasers' obligations to purchase and pay for the Preferred
Stock at the Closing shall be subject to the satisfaction or waiver by the
Purchasers of the following conditions on or before the Closing Date:
3.1.1 OPINION OF COUNSEL. The Purchasers shall have received a
favorable opinion, dated the Closing Date and addressed to the Purchasers, from
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, in the form attached hereto as
Annex C. In rendering its opinion, such counsel may rely as to factual matters
upon certificates or other documents furnished by officers and directors of the
Company (copies of which shall be delivered to you) and by government officials,
and upon such other documents as such counsel may deem appropriate as a basis
for its opinion.
3.1.2 REPRESENTATIONS AND WARRANTIES TRUE. The Company's
representations and warranties contained in Section 4 hereof shall be true at
and as of the Closing Date, as if made on and as of such date (except as to such
representations and warranties which speak as to a particular date).
3.1.3 COMPLIANCE WITH THIS AGREEMENT. The Company shall have
performed and complied with all agreements, covenants and conditions contained
herein, in the other Documents and in any other document contemplated hereby or
thereby which are required to be performed or complied with by the Company on or
before the Closing Date.
3.1.4 PURCHASE PERMITTED BY APPLICABLE LAWS. The receipt by the
Purchasers of the Preferred Stock to be issued to them hereunder on the Closing
Date shall be permitted by the laws and regulations of the jurisdictions to
which they are subject, and the Purchasers shall have received such certificates
or other evidence as they may reasonably request to establish compliance with
this condition.
3.1.5 COMPLETION OF REGISTRATION RIGHTS AGREEMENT. Prior to or
simultaneously with the sale to the Purchasers of the Preferred Stock at the
Closing, the Company shall have entered into the Registration Rights Agreement
and the Purchasers shall
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have received an original, duly executed by the Company, of the Registration
Rights Agreement.
3.1.6 CONSENTS AND PERMITS. The Company shall have received all
material consents, permits and other authorizations, and made all such material
filings and declarations, as may be required from any Person pursuant to any
law, statute, regulation or rule (federal, state, local and foreign), or
pursuant to any agreement, order or decree to which the Company is a party or to
which it is subject, in connection with the transactions contemplated by this
Agreement and the sale of the Preferred Stock.
3.1.7 ABSENCE OF MATERIAL ADVERSE CHANGE. There shall not have
occurred any material adverse change in the assets, liabilities, results of
operations, business or prospects of the Company.
3.1.8 AMENDMENT OF CERTIFICATE OF INCORPORATION. The Company's
Board of Directors shall have duly authorized the issuance of the Preferred
Stock and the amendment of the Company's Certificate of Incorporation to include
the Certificate of Designation.
3.1.9 LITIGATION. No federal or state court of competent
jurisdiction or other federal or state governmental body shall have issued an
order, decree or ruling, or taken any other action restraining, enjoining or
otherwise prohibiting the consummation of the sale of the Preferred Stock.
3.2 CONDITIONS TO COMPANY'S OBLIGATIONS
The Company's obligation to sell the securities to be delivered to the
Purchasers at the Closing shall be subject to the satisfaction of the following
conditions:
3.2.1 REPRESENTATIONS AND WARRANTIES TRUE. The Purchasers'
representations and warranties contained in Section 5 hereof shall be true at
and as of the Closing Date, as if made on and as of such date.
3.2.2 COMPLIANCE WITH THIS AGREEMENT. The Purchasers shall have
performed and complied with all agreements, covenants and conditions contained
herein, in the other Documents and in any other document contemplated hereby or
thereby which are required to be performed or complied with by the Purchasers,
or any of them, on or before the Closing Date,
3.2.3 LITIGATION. No federal or state court of competent
jurisdiction or other federal or state governmental body shall have issued an
order, decree or ruling, or taken any other action restraining, enjoining or
otherwise prohibiting the consummation of the sale of the Preferred Stock.
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SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as follows:
4.1 ORGANIZATION, STANDING AND QUALIFICATION
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own or lease and operate its properties and to
carry on its business as now conducted. The Company is duly qualified or
licensed to do business as a foreign corporation in good standing in all
jurisdictions in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed, except for such jurisdictions
where the failure to so qualify or be licensed would not have a material adverse
effect on the business or financial condition of the Company. The Company has
heretofore delivered to you complete and correct copies of its Charter Documents
as presently in effect and a list of all jurisdictions in which it is qualified
or licensed to do business as a foreign corporation.
(b) The Company has all requisite corporate power and authority to
enter into and perform all of its obligations under this Agreement and the other
Documents, to issue the Preferred Stock and to carry out the transactions
contemplated hereby and thereby.
(c) The Company does not own a majority of the outstanding voting
securities or other equity interests of any Person.
4.2 CAPITALIZATION
(a) The authorized capital stock of the Company consists of (i)
100,000 shares of preferred stock, $.01 par value, no shares of which were
issued and outstanding as of the date hereof, and (ii) 1,000,O0O shares of
Common Stock, $.01 par value, of which 315,000 shares were issued and
outstanding as of the date hereof. All such outstanding shares have been duly
and validly issued, are fully paid and nonassessable. Except as set forth in
Schedule 4.2 hereto and as contemplated by the Registration Rights Agreement,
(i) there are no outstanding subscriptions, warrants, options, calls or
commitments of any character relating to or entitling any Person to purchase or
otherwise acquire any stock of the Company from the Company; (ii) there are no
obligations or securities convertible into or exchangeable for shares of any
stock of the Company from the Company or any commitments of any character
relating to or entitling any Person to purchase or otherwise acquire any such
obligations or securities from the Company; (iii) there are no preemptive or
similar rights to subscribe for or to purchase any stock of the Company (except
as provided herein); and (iv) the
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Company has not entered into any agreement to register its equity or debt
securities under the Securities Act.
(b) Immediately following the Closing, 26,675 shares of Preferred
Stock and 315,000 shares of Common Stock will be issued and outstanding.
4.3 AUTHORIZATION OF AGREEMENT AND OTHER DOCUMENTS
The Company has taken all actions necessary to authorize it to enter
into and perform its obligations under this Agreement, the Preferred Stock and
the other Documents and to consummate the transactions contemplated hereby and
thereby. This Agreement is, and, as of the Closing Date, the Preferred Stock
will be, legal, valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except for (i) the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium, arrangement and
similar laws of general application relating to or affecting creditor's rights,
including, without limitation, the effect of statutory or other law regarding
fraudulent conveyances, fraudulent transfers and preferential transfers and (ii)
the limitations imposed by general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
4.4 NO VIOLATION
Neither the execution or delivery by the Company of the Documents nor
the issuance, sale or delivery of the Preferred Stock, nor the performance by
the Company of its obligations under the Documents and the Preferred Stock, nor
the consummation of the transactions contemplated hereby and thereby, will as of
the Closing Date (i) violate any provision of the Charter Documents of the
Company; (ii) violate any statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority to which the Company
or any of its properties may be subject, the violation of which would have a
material adverse effect upon the Company; (iii) cause the acceleration of the
maturity of any debt of the Company; or (iv) violate, or be in conflict with, or
constitute a default under, or permit the termination of, or require the consent
of any Person (other than consents which have been or will be obtained prior to
the Closing Date as identified on Schedule 4.4) under, or result in the creation
of any Lien upon any property of the Company under, any material agreement to
which the Company is a party or by which the Company is bound.
4.5 FINANCIAL STATEMENTS
The Company has delivered to each of the Purchasers true and complete
copies of the audited balance sheet of the Company as of June 30, 1993 and the
related audited statement of operations for the period beginning November, 1992
(inception of the Company) and ended June 30, 1993 together with the notes
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thereto and the report thereon of Deloitte & Touche (collectively, the
"Financial Statements"). Each of the Financial Statements were prepared in
accordance with the books and records of the Company and fairly present, in
conformity with generally accepted accounting principles ("GAAP"), the financial
position, results of operations and cash flows of the Company at the respective
dates thereof and for the respective periods covered thereby.
4.6 NO MATERIAL ADVERSE CHANGE; CONDUCT OF BUSINESS
Since June 30, 1993, the Company has not suffered any material
adverse change in its properties, business, operations, earnings, assets,
liabilities or condition (financial or otherwise). Except as set forth in
Schedule 4.6 hereto, since June 30, 1993, the Company (i) has conducted its
operations in the ordinary and usual course of business and consistent with
past practices; (ii) has used its best efforts to preserve intact its
businesses, organizations and the goodwill of its customers, suppliers,
employees and other similar business relationships; (iii) has not sold,
leased or otherwise disposed of any of its property or assets other than in
the ordinary course of business; (iv) has not incurred any liability, made
any commitment or entered into any other transaction, except in the ordinary
and usual course of business and consistent with past practices; (v) has not
paid bonuses to any member of management, officer, director or employee with
an annual salary of $75,000 or more; and (vi) has not declared any dividends
on its capital stock.
4.7 LITIGATION
There is no action, proceeding or investigation pending, or to the
best knowledge of the Company threatened, against or affecting the Company in
any court or before any governmental authority or arbitration board or
tribunal, which can reasonably be expected to have a material adverse effect
on the Company; and, except as described above, the Company is not subject to
any judgment, order or decree of any court, governmental authority or
arbitration board or tribunal which has materially adversely affected or
which can reasonably be expected to materially adversely affect the
properties, business, operations, earnings, assets, liabilities or condition
(financial or otherwise) of the Company.
4.8 TAXES
All tax returns required to be filed by the Company in any jurisdiction
have been so filed, and all taxes, assessments, fees and other charges shown
thereon to be due and payable have been paid, other than those being contested
in good faith or those currently payable without penalty or interest. The
Company does not know of any actual or proposed material additional tax
assessments for any fiscal period against it. None of the Company's tax returns
is under audit, and no waivers of the
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statute of limitations or extensions of time with respect to any tax returns
have been granted to the Company.
4.9 COMPLIANCE WITH LAWS
The Company is not in violation of any statutes, laws, ordinances,
governmental rules or regulations or any judgment, order or decree (federal,
state, local or foreign) to which it is subject or has failed to obtain any
licenses, permits, franchises or other governmental authorizations necessary to
the ownership or operation of its properties or the conduct of its business
(including, without limitation, matters relating to environmental laws or
regulations), except for such violations and failures to obtain that are not
material to the properties, business, operations, earnings, assets, liabilities
or condition (financial or otherwise) of the Company.
4.10 GOVERNMENTAL CONSENTS
Neither the nature of the Company or of its business or properties,
nor any relationship between the Company and any other Person, nor any
circumstance in connection with the offer, issuance, sale or delivery of the
Preferred Stock as contemplated hereby, is such as to require a consent,
approval or authorization of, or filing, registration or qualification with, any
governmental authority on the part of the Company as a condition to the
execution and delivery of this Agreement or the offer, issuance, sale or
delivery of the Preferred Stock at the Closing, other than (i) the filings,
registrations or qualifications under federal and state securities (or "blue
sky") laws that may be required to be made or obtained, including filings under
Rule 503 of Regulation D of the General Rules and Regulations promulgated under
the Securities Act, and (ii) the filing of the Certificate of Designation with
the Secretary of State of the State of Delaware, each of which shall have been
made or obtained.
4.11 BROKERS
Other than its engagement of Salomon Brothers Inc and any amounts
payable with respect thereto which shall be the sole responsibility of the
Company, (i) the Company has dealt with no broker, finder, commission agent or
other Person in connection with the sale of the Preferred Stock and the
transactions contemplated by this Agreement and (ii) the Company is under no
obligation to pay any broker's fee or commission in connection with such
transactions. The Company hereby indemnifies and holds harmless each of the
Purchasers from any and all claims, liabilities, damages, actions, causes of
action, demands, costs and expenses of every kind or nature including, without
limitation, reasonable attorneys' fees, court costs, and costs incurred in
connection with appeals, arising out of, relating to or resulting from any
broker's or finder's fees or other such commissions incurred by the Company.
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4.12 AFFILIATE AGREEMENTS
Schedule 4.12 hereto sets forth a true and correct list of each
contract, agreement and commitment between the Company and any Affiliate.
4.13 INTANGIBLE PERSONAL PROPERTY
To the best of the Company's knowledge, the Company has the right and
authority to use all material items of intangible personal property, including
all patents, inventions, proprietary rights, confidential information,
trademarks and trade names, used by the Company in connection with the conduct
of its business in the manner described in the Private Placement Memorandum,
and, to the best of the Company's knowledge, such use does not conflict with,
infringe upon or violate any rights of any other person.
4.14 OTHER INFORMATION
To the best of the Company's knowledge, the information contained in
this Agreement and the Private Placement Memorandum and in all other information
concerning the Company provided to the Purchasers by or on behalf of the Company
in connection with the transactions contemplated herein, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
4.15 USE OF PROCEEDS
The proceeds from the sale of the Preferred Stock will be used by the
Company for general corporate purposes. None of such proceeds will be used,
directly or indirectly, for the payment of any dividend or distribution on the
Stock of the Companny. Pending application of the proceeds from the sale of the
Preferred Stock, such proceeds will be invested in short-term, investment grade,
interest-bearing securities or certificates of deposit.
4.16 LICENSE AGREEMENT
The Company has delivered to the Purchasers a true and correct copy
of that certain License Agreement, dated as of February 24, 1993, between the
Company and EKI, as amended by an addendum of even date therewith, which
License Agreement is in full force and effect.
4.17 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties made by the Company in this
Agreement or in any certificate delivered by the Company pursuant to this
Agreement will survive the Closing, and will
10
remain in full force and effect, until the date four years after the Closing
Date.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
5.1 SECURITIES ACT REPRESENTATION
Each of the Purchasers represents to the Company that it is (i) an
"accredited investor" (as that term is defined in Rule 501 of Regulation D under
the Securities Act) and (ii) by reason of its business and financial experience,
and the business and financial experience of those Persons, if any, retained by
it to advise it with respect to its investment in the Preferred Stock, it
together with its advisors, have such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits
and risks of the prospective investment; it is able to bear the economic risk of
the prospective investment; and it is able to afford a complete loss of the
prospective investment.
5.2 INVESTMENT REPRESENTATION
Each of the Purchasers represents and warrants to the Company that it
is purchasing the Preferred Stock to be purchased by it hereunder for its
account for the purpose of investment and not with a view to or for the sale in
connection with any distribution thereof; provided that the disposition of each
Purchasers' property shall at all times be and remain within its control.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act and
applicable state securities laws, the Preferred Stock (and all securities issued
in exchange therefor or substitution thereof) shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT AND SUCH LAWS AND THE RESPECTIVE RULES AND
REGULATIONS THEREUNDER."
5.3 NO BROKERS OR FINDERS
Each of the Purchasers represents and warrants that it has not engaged
or otherwise retained any broker, finder, commission agent or other Person in
connection with the sale of the Preferred Stock and the transactions
contemplated by this Agreement and it is under no obligation to pay any broker's
fee or commission in connection with such transactions. Each of the Purchasers
hereby indemnities and holds harmless the Company from
11
any and all claims, liabilities, damages, actions, causes of action,
demands, costs and expenses of every kind or nature including, without
limitation, reasonable attorneys' fees, court costs, and costs incurred in
connection with appeals, arising out of, relating to or resulting from any
brokers or finders fees or other such commissions incurred by such Purchaser.
SECTION 6. COVENANTS OF THE COMPANY
6.1 INFORMATION.
So long as any of the Preferred Stock remains outstanding, the Company
shall deliver to each Purchaser, and to each other Person who then holds 2% or
more of the outstanding shares of Preferred Stock, copies of (i) all reports,
registration statements or other filings made with the SEC; (ii) as soon as
available and in any event within 45 days after the end of each of the three
fiscal quarters of each fiscal year, the financial information, including the
financial statements and the Management's Discussion and Analysis of Financial
Condition and Results of Operations, required under Part I of Form 10-Q
promulgated by the SEC as if the Company were required to file Quarterly Reports
on such form; (iii) as soon as available and in any event within 90 days after
the end of each fiscal year, the financial information required under items 7
and 8 of Part II of Form 10-K promulgated by the SEC as if the Company were
required to file Annual Reports on such form; (iv) together with the delivery of
the financial information required by clauses (ii) and (iii) above, a letter
signed by its President and Chief Executive Officer or Chief Financial Officer
setting forth the details thereof and what action the Company is taking with
respect to any of the following events: (a) any material adverse change in the
business, assets, financial condition or results of operations of the Company,
(b) a default under any agreement governing the Company's indebtedness, or (c)
the institution, threat or notice of any action, suit, proceeding or
investigation relating to the Company before or by any court, arbitrator or
governmental body, agency or official, or any judicial or other order which
could have a material adverse effect upon the business, assets, financial
condition or results of operations of the Company; and (v) such other
information relating to the business, assets, financial condition or results of
operations of the Company as such Purchaser or other Person may from time to
time reasonably request.
6.2 INDEMNITY
In consideration of the execution and delivery of this Agreement by
the Purchasers, the Company hereby agrees to indemnify, exonerate and hold each
Purchaser and each of the officers, directors, subsidiaries, affiliates,
partners, employees and agents of each Purchaser (herein called the
"Indemnitees") free and harmless from and against any and all actions, causes of
action, suits, losses, liabilities and
12
damages, and expenses in connection therewith, including, without limitation,
reasonable counsel fees and disbursements (herein called the "Indemnified
Liabilities", which term shall not include, however, any actions, causes of
action or suits (or any losses, liabilities or damages or expenses in connection
therewith)) incurred by the Indemnities or any of them as a result of, or
arising out of, or relating to (i) any untruth or inaccuracy of any
representation or warranty of the Company set forth in this Agreement or any
certificate delivered pursuant to this Agreement or (ii) any breach or non-
performance of any covenant or agreement of the Company set forth in this
Agreement. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
6.3 PUBLICITY
The Company and the representative of the Purchasers shall coordinate
the timing and content of all press releases, announcements or other publicity
pertaining to this Agreement and the transactions contemplated hereby in that
neither party will release any information about this Agreement without the
approval of the other; provided that nothing herein shall prevent either party
from filing such reports, documents, press releases or announcements as may be
required by law or appropriate governmental authorities.
6.4 PRIORITY SUBSCRIPTION RIGHTS
6.4.1 GRANT OF RIGHT. The Company hereby grants to each Purchaser
the priority subscription right to purchase up to such Purchaser's Pro Rata
Share of any New Securities (plus such Purchaser's Pro Rata Share of any
Remaining Securities, as hereinafter defined) which the Company may, from time
to time after the date hereof, propose to sell or issue. A Purchaser's priority
subscription rights hereunder shall be assignable by the Purchaser to any of its
Affiliates. Nothing contained in this Section 6.4 shall require the Company to
offer or sell to the Purchasers a number of New Securities in excess of the
Purchasers' aggregate Pro Rata Share of New Securities.
6.4.2 EXERCISE OF RIGHT. In the event the Company proposes to
undertake an issuance or sale of New Securities, it will give each Purchaser
written notice of its intention, describing the type of New Securities and the
price and all material terms upon which the Company proposes to issue or sell
the same, and provide to each Purchaser a copy of all offering materials to be
used in connection with the offer and sale of such New Securities. Each
Purchaser will have 20 days from the date such notice is given to give the
Company written notice (a "Purchaser's Acceptance") of such Purchaser's election
to purchase all or any portion of the Purchaser's Pro Rata Share of
13
such New Securities for the price and upon the terms specified in the notice,
stating the quantity of New Securities to be purchased. Any Purchaser who does
not give such notice within such 20-day period shall be deemed to have waived
its priority subscription rights with respect to such New Securities, provided
the Company consummates the issuance thereof within 180 days after the
expiration of the l0-day period referenced in the following sentence at a price
equal to or higher than the price specified in the notice given to the
Purchasers by the Company under this Section 6.4.2 and on the terms specified in
the Company's notice or on terms no less advantageous to the Company. In the
event that less than all Purchasers elect to Purchase their entire Pro Rata
Share of the New Securities, the Company shall provide written notice to the
Purchasers electing to purchase their entire Pro Rata Share (the "Electing
Purchasers") of the number of shares of New Securities which were offered to
Purchasers and for which Purchaser Acceptances were not received (the "Remaining
Securities"), and the Electing Purchasers shall have 10 days from the date such
notice is given to give the Company written notice (an "Additional Acceptance")
of such Electing Purchaser's election to purchase all or any portion of the
Remaining Securities for the price and upon the terms specified in the notice,
stating the quantity of the Remaining Securities to be purchased. In the event
that the Electing Purchasers return Additional Acceptances for a number of
shares of Remaining Securities in excess of the number of Remaining Securities,
the Remaining Securities will be allocated among the Electing Purchaser pro rata
according to their respective Pro Rata Shares, provided that no Electing
Purchaser shall be required to purchase a number of shares of Remaining
Securities in excess of the number set forth in such Electing Purchaser's
Additional Acceptance. A Purchaser's Acceptance and Additional Acceptance shall
each be deemed to be an irrevocable commitment to purchase from the Company the
number of New Securities which such Purchaser has elected to purchase pursuant
to such acceptance subject to the allocation provisions hereof.
6.5 RIGHT TO JOIN IN SALE
(a) In the event EKI proposes, in a single transaction or a series of
related transactions, to sell, dispose of or otherwise transfer shares of Common
Stock, EKI shall refrain from effecting such transaction unless, prior to the
consummation thereof, each Purchaser shall have been afforded the opportunity to
join in such sale as hereinafter provided; PROVIDED, HOWEVER, that
notwithstanding any other provision of this section 6.5, EKI shall be permitted
to sell, dispose of or otherwise transfer up to an aggregate of 63,000 shares of
Common Stock (subject to appropriate adjustment in proportion to any increase or
decrease in the number of shares of Common Stock outstanding as a result of any
recapitalization, reclassification, stock dividend, stock split or stock
combination) from the date hereof without affording the Purchasers the
opportunity to join in such sale, disposition or other transfer. The
obligations of EKI to afford
14
the Purchasers the opportunity to join in sales pursuant to this Section 6.5
shall expire and terminate upon the earlier to occur of (i) the date 5 years
from the Closing Date and (ii) the consummation of a public offering of Common
Stock pursuant to an effective registration statement under the Securities Act
for the account of the Company at an aggregate offering price in excess of
$35,000,000.
(b) Prior to the consummation of any transaction subject to this
Section 6.5, EKI shall cause the person or group that proposes to acquire shares
of Common Stock in a transaction subject to this Section 6.5 (the "Proposed
Purchaser") to offer (the "Purchase Offer") in writing to each Purchaser to
purchase up to a number of shares of Common Stock equal to the number of shares
of Common Stock which the Proposed Purchaser proposes to purchase from EKI on
such terms and conditions (the "Offering Terms") as the Proposed Purchaser has
offered to purchase the shares of Common Stock to be sold by EKI. Each
Purchaser shall have 20 days from the receipt of the Purchase Offer in which to
accept such Purchase Offer, which acceptance (a "Purchase Acceptance") shall be
in writing and delivered to EKI and the Proposed Purchaser and may be in respect
of all or less than all of the shares of Common Stock subject to such Purchase
Offer. In the event that the Purchasers elect to sell a number of shares of
Common Stock in excess of the Purchase Offer, each Purchaser who has delivered a
Purchase Acceptance shall be permitted to sell that number of shares of Common
Stock which such Purchaser's percentage interest in the Company (computed from
its ownership of Common Stock and Preferred Stock, and treating Preferred Stock
as if it had been converted into Common Stock) bears to the aggregate percentage
interest of all Purchasers delivering Purchase Acceptances, provided that in no
event will any Purchaser be obligated to sell a number of shares of Common Stock
in excess of the number set forth in its Purchase Acceptance. In the event that
the Purchasers deliver Purchase Acceptances for a number of shares of Common
Stock less than the number of shares of Common Stock set forth in the Purchase
Offer, then EKI shall be permitted to sell on the Offering Terms the remaining
shares of Common Stock to be sold to the Proposed Purchaser.
SECTION 7. MISCELLANEOUS
7.1 NOTICES
All notices and other communications provided for or permitted
hereunder shall be made by hand-delivery, first-class mail (registered or
certified, return receipt requested), telex, telecopier, or overnight courier
guaranteeing next day delivery:
(i) if to any Purchaser, to the address or telex or telecopy number
set forth for such communications with respect to such Purchaser on Schedule 2.3
hereto, or to such other address or telex or telecopy number as such Purchaser
may designate to the Company in writing;
15
(ii) if to any other holder of shares of Preferred Stock, to the last
address of such holder shown in the official stock transfer register maintained
by the Company;
(iii) if to the Company, to EarthShell Container Corporation, 8OO
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; and
(iv) if to EKI, to E. Khashoggi Industries, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and the
next business day after timely delivery to the courier, if sent by overnight
courier guaranteeing next day delivery.
7.2 SUCCESSORS AND ASSIGNS
All covenants and agreements in this Agreement contained by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. The provisions of this Agreement are intended to be for the benefit of all
holders, from time to time, of any shares of Preferred Stock, and shall be
enforceable by any such holder, whether or not an express assignment to such
holder of rights under this Agreement has been made by any Purchaser or its
successors or assigns; provided, however, that the benefit of Section 6.1 shall
be limited as provided therein.
7.3 AMENDMENT AND WAIVER
(a) Any term, covenant, agreement or condition of this Agreement may,
with the consent of the Company, be amended, or compliance therewith may be
waived (either generally or in a particular instance and either retroactively or
prospectively), by one or more substantially concurrent written instruments
signed by the holders of a majority of the then outstanding shares of Preferred
Stock, except that no amendment to or waiver of any of the provisions of Section
6.1, 6.4 or 6.5 or this Section 7.3(a) shall be effected without the unanimous
written consent of the holders of the then outstanding Preferred Stock.
(b) Any amendment or waiver pursuant to subsection (a) of this
Section 7.3 shall apply equally to all the holders of the Preferred Stock at the
time and shall be binding upon them, upon each future holder of any Preferred
Stock, and upon the Company, in each case whether or not a notation thereof
shall have been placed on any shares of Preferred Stock.
16
7.4 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
7.5 HEADINGS
The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
7.6 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of California.
7.7 ENTIRE AGREEMENT
This Agreement, together with the other Documents and the Preferred
Stock, is intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, representations,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement, together with the other Documents and the Preferred
Stock, supersedes all prior written and prior and contemporaneous oral
agreements and understandings between the parties with respect to such subject
matter.
7.8 SEVERABILITY
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected, it being
intended that each of the Purchasers' and the Company's rights and privileges
shall be enforceable to the fullest extent permitted by law.
7.9 EXPENSES; ATTORNEYS' FEES
(a) Each party to this Agreement shall bear its own costs and
expenses in connection with the transactions contemplated herein, except that
the Company shall bear the customary and reasonable fees and expenses of ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, counsel to the Purchasers, relating to the Purchasers' purchase of
the Preferred Stock pursuant to the terms of this Agreement.
17
(b) In any action or proceeding brought to enforce any provision of
this Agreement, the other Documents or the Preferred Stock or where any
provision hereof or thereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees in addition to any
other available remedy.
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the date first written above.
EARTHSHELL CONTAINER CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Its: CHIEF EXECUTIVE OFFICER
-------------------------------
E. KHASHOGGI INDUSTRIES,
a California General Partnership
By: E. Khashoggi Holdings, L.P.,
its Managing General Partner
By: E. Khashoggi Industries, Inc.,
General Partner of
E. Khashoggi Holdings, L.P.
By: /s/ E. Khashoggi
-----------------------------------
Its:
-----------------------------------
18
PURCHASERS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
(Name, if Individual)
/s/ [illegible]
----------------------------------------
(Signature, if Individual)
----------------------------------------
(Name, if Entity)
By:
------------------------------------
Title:
---------------------------------
19
PURCHASERS:
G. ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
(Name, if Individual)
/s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
(Signature, if Individual)
----------------------------------------
(Name, if Entity)
By:
------------------------------------
Title:
---------------------------------
19
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
EARTHSHELL JOINT VENTURE
----------------------------------------
(Name, if Entity)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: MANAGING INVESTOR
---------------------------------
19
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
McDonalds Corporation
----------------------------------------
(Name, if Entity)
By: /s/ [illegible]
------------------------------------
Title: Vice President
---------------------------------
19
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
FAMILY TRUST
----------------------------------------
(Name, if Entity)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: TRUSTEE
---------------------------------
20
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ASSOCIATES, INC.
as Manager for ES FUND
----------------------------------------
(Name, if Entity)
By: /s/ [illegible]
------------------------------------
Title: Chairman
---------------------------------
20
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
UNION CENTRAL LIFE INSURANCE COMPANY
----------------------------------------
(Name, if Entity)
By: /s/ [illegible]
------------------------------------
Title: ASSISTANT TREASURER
---------------------------------
16
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
CARILLON BOND FUND
----------------------------------------
(Name, if Entity)
By: /s/ [illegible]
------------------------------------
Title: VICE-PRESIDENT
---------------------------------
16
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
CARGILL FINANCIAL SERVICES CORPORATION
----------------------------------------
(Name, if Entity)
By: /s/ [illegible]
------------------------------------
Title: President
---------------------------------
19
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
FMA HIGH YIELD INCOME LIMITED PARTNERS
----------------------------------------
(Name, if Entity)
Authorized By: /s/ [illegible]
-------------------------
Title: [illegible]
---------------------------------
20
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
WSIS HIGH INCOME LIMITED PARTNERSHIP
----------------------------------------
(Name, if Entity)
By: /s/ E. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Title: Wertheim ▇▇▇▇▇▇▇▇▇ Inv. Svcs. -
General Partner
---------------------------------
20
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
WSIS FLEXIBLE INCOME LIMITED PARTNERS,
L.P.
----------------------------------------
(Name, if Entity)
Authorized By: /s/ WSIS FLEXIBLE INCOME
LIMITED PARTNERS, L.P.
-------------------------
Title: [illegible]
---------------------------------
19
PURCHASERS:
▇▇▇▇▇ J & ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust
----------------------------------------
(Name, if Individual)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
----------------------------------------
(Signature, if Individual)
▇▇▇▇▇ ▇. & ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust
----------------------------------------
(Name, if Entity)
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Title: Trustee
---------------------------------
16
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
Junction Partners, as nominee
----------------------------------------
(Name, if Entity)
By: /s/ [illegible]
------------------------------------
Title: G.P.
---------------------------------
20
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
▇. ▇. ▇▇▇▇▇▇▇▇ Corporation
----------------------------------------
(Name, if Entity)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: ▇▇▇▇▇ ▇▇▇▇▇, Secretary
---------------------------------
Stock Purchase Agreement
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
Whittier Trust Company, as Trustee of the
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇-Bea 1966 Trust
----------------------------------------
(Name, if Entity)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice-President
---------------------------------
Stock Purchase Agreement
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Trustee of the
Trust Under the Will of Olive Whittier
----------------------------------------
(Name, if Entity)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
---------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
Stock Purchase Agreement
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
Whittier Trust Company, as Trustee of the
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 1966 Trust.
----------------------------------------
(Name, if Entity)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice-President
---------------------------------
Stock Purchase Agreement
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
Whittier Trust Company, as Trustee of the
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1949 Trust.
----------------------------------------
(Name, if Entity)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice-President
---------------------------------
Stock Purchase Agreement
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
Whittier Trust Company, as Trustee of the
▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇ 1966 Trust.
----------------------------------------
(Name, if Entity)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice-President
---------------------------------
Stock Purchase Agreement
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
SeaShell Partners L.P.
----------------------------------------
(Name, if Entity)
By: ▇▇▇▇▇▇ ▇▇▇▇▇ Limited
-------------------------------------
Title: General Parner
----------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
---------------------------------
Stock Purchase Agreement 20
PURCHASERS:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
(Name, if Individual)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
(Signature, if Individual)
----------------------------------------
(Name, if Entity)
By:
------------------------------------
Title:
---------------------------------
19
PURCHASERS:
▇▇▇▇ KHASHOGGI
----------------------------------------
(Name, if Individual)
/s/ ▇▇▇▇ Khashoggi
----------------------------------------
(Signature, if Individual)
----------------------------------------
(Name, if Entity)
By:
------------------------------------
Title:
---------------------------------
PURCHASERS:
----------------------------------------
(Name, if Individual)
----------------------------------------
(Signature, if Individual)
SALOMON BROTHERS INC
----------------------------------------
(Name, if Entity)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Managing Director
---------------------------------
20
SCHEDULE 2.3
Name Amount of Shares
---- ----------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 500
G. ▇▇▇▇ ▇▇▇▇▇▇▇▇ 500
EarthShell Joint Venture 1,000
▇▇▇▇▇▇▇▇'▇ Corporation 3,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ Family Trust 1,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & Associates,
Inc. 4,875
Union Central Life Insurance
Company 2,000
Carillon Bond Fund 500
Cargill Financial Services
Corporation 500
FMA High Yield Income Limited
Partnership 1,500
WSIS High Income Limited
Partnership 1,000
WSIS Flexible Income Limited
Partners, L.P. 500
▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Trust 2,000
Junction Partners, as nominee 3,500
▇. ▇. ▇▇▇▇▇▇▇▇ Corporation 500
Whittier Trust Company, as Trustee
of the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇
1966 Trust 150
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as
Trustee of the Trust Under the Will
of Olive Whittier 150
Whittier Trust Company, as Trustee
of the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 1966 Trust 150
Whittier Trust Company, as Trustee
of the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1949 Trust 150
Whittier Trust Company, as Trustee
of the ▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇ 1966 Trust 150
SeaShell Partners L.P. 800
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 250
▇▇▇▇ Khashoggi 1,000
Salomon Brothers Inc 1,000
------
26,675
------
------
SCHEDULE 4.2
CAPITALIZATION
1. Registration Rights Agreement dated as of April 23, 1993 among the
Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇ Ein.
SCHEDULE 4.4
CONSENTS
None
SCHEDULE 4.6
CONDUCT OF BUSINESS
Since June 30, 1993, the Company has entered into the following
transactions which may not be deemed to be part of its ordinary course of
business:
1. Agreement for Allocation of Patent Costs, dated as of July 31, 1993, between
the Company and EKI.
2. ▇▇▇▇ of Sale, dated as of June 30, 1993, between the Company and EKI.
3. Master Lease Agreement, dated July 31, 1993, between the Company and EKI.
4. Management, Administrative Services and Professional Services Agreement,
dated as of September 1, 1993, between the Company and EKI.
SCHEDULE 4.12
AFFILIATE AGREEMENTS
1. Stock Purchase Agreement, dated as of September 16, 1993, between the
Company, the purchasers named therein and EKI.
2. License Agreement, dated as of February 24, 1993, between the Company and
EKI, as amended by an Addendum of even date therewith.
3. Agreement for Allocation of Patent Costs, dated as of July 31, 1993, between
the Company and EKI.
4. ▇▇▇▇ of Sale, dated as of June 30, 1993, between the Company and EKI.
5. Master Lease Agreement, dated July 31, 1993, between the Company and EKI.
6. Management, Administrative Services and Professional Services Agreement,
dated as of September 1, 1993, between the Company and EKI.
