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EXHIBIT 10.3
BOLDER TECHNOLOGIES CORPORATION
COMMON STOCK
PURCHASE AGREEMENT
JULY 9, 1999
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TABLE OF CONTENTS
PAGE
1. Agreement to Sell and Purchase...........................................................................1
1.1 Authorization of Shares.........................................................................1
1.2 Sale and Purchase...............................................................................1
2. Closing, Delivery and Payment............................................................................1
2.1 Closing.........................................................................................1
2.2 Delivery........................................................................................2
3. Representations and Warranties of the Company............................................................2
3.1 Organization, Good Standing and Qualification...................................................2
3.2 Capitalization..................................................................................2
3.3 Authorization; Binding Obligations..............................................................3
3.4 SEC Documents; Financial Statements.............................................................3
3.5 No Material Adverse Change......................................................................4
3.6 Liabilities.....................................................................................4
3.7 Title to Properties and Assets; Liens, Etc......................................................4
3.8 Intellectual Property...........................................................................4
3.9 No Conflicts....................................................................................4
3.10 No Consents.....................................................................................5
3.11 Litigation......................................................................................5
3.12 Offering Valid..................................................................................5
3.13 Compliance with Laws............................................................................5
3.14 Permits.........................................................................................5
4. Representations and Warranties of the Purchasers.........................................................5
4.1 Requisite Power and Authority...................................................................5
4.2 Investment Representations......................................................................6
(a) Purchaser Bears Economic Risk..........................................................6
(b) Acquisition for Own Account............................................................6
(c) Purchaser Can Protect Its Interest.....................................................6
(d) Accredited Investor....................................................................6
(e) Rule 144...............................................................................6
(f) Residence..............................................................................7
4.3 Transfer Restrictions...........................................................................7
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TABLE OF CONTENTS
(CONTINUED)
PAGE
4.4 Legend..........................................................................................7
5. Conditions to Closing....................................................................................7
5.1 Conditions to Purchasers' Obligations at the Closing............................................7
(a) Representations and Warranties True; Performance of Obligations........................7
(b) Legal Investment.......................................................................7
(c) Consents, Permits, and Waivers.........................................................8
(d) Registration Rights Agreement..........................................................8
(e) Legal Opinion..........................................................................8
(f) Proceedings and Documents..............................................................8
5.2 Conditions to Obligations of the Company........................................................8
(a) Representations and Warranties True....................................................8
(b) Performance of Obligations.............................................................8
(c) Registration Rights Agreement..........................................................8
(d) Consents, Permits, and Waivers.........................................................8
6. Miscellaneous............................................................................................8
6.1 Governing Law...................................................................................8
6.2 Survival........................................................................................9
6.3 Successors and Assigns..........................................................................9
6.4 Entire Agreement................................................................................9
6.5 Severability....................................................................................9
6.6 Amendment and Waiver............................................................................9
6.7 Notices.........................................................................................9
6.8 Expenses.......................................................................................10
6.9 Attorneys' Fees................................................................................10
6.10 Titles and Subtitles...........................................................................10
6.11 Counterparts...................................................................................10
6.12 Broker's Fees..................................................................................10
6.13 Exculpation Among Purchasers...................................................................10
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INDEX OF EXHIBITS
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Schedule of Purchasers Exhibit A
Amended and Restated Certificate
of Incorporation Exhibit B
Registration Rights Agreement Exhibit C
Opinion of ▇▇▇▇▇▇ Godward LLP Exhibit D
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BOLDER TECHNOLOGIES CORPORATION
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "AGREEMENT") is entered into
as of this 9th day of July, 1999, by and among BOLDER TECHNOLOGIES CORPORATION,
a Delaware corporation (the "COMPANY"), and each of those persons and entities,
severally and not jointly, whose names are set forth on the Schedule of
Purchasers attached hereto as Exhibit A (which persons and entities are
hereinafter collectively referred to as "PURCHASERS" and each individually as a
"PURCHASER").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of an
aggregate of up to 763,215 shares of its Common Stock (the "SHARES");
WHEREAS, Purchasers desire to purchase the Shares on the terms and
conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the Shares to Purchasers
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE
1.1 AUTHORIZATION OF SHARES. On or prior to the Closing (as defined in
Section 2 below), the Company shall have authorized the sale and issuance to
Purchasers of the Shares. The Shares shall have the rights, preferences,
privileges and restrictions set forth in the Amended and Restated Certificate of
Incorporation of the Company, in the form attached hereto as Exhibit B (the
"RESTATED CERTIFICATE").
1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof, at
the Closing (as hereinafter defined), the Company hereby agrees to issue and
sell to each Purchaser, severally and not jointly, and each Purchaser agrees to
purchase from the Company, severally and not jointly, the number of Shares set
forth opposite such Purchaser's name on Exhibit A at a purchase price of $7.00
per share.
2. CLOSING, DELIVERY AND PAYMENT
2.1 CLOSING. The closing of the sale and purchase of the Shares under
this Agreement (the "CLOSING") shall take place on the date hereof, at the
offices of ▇▇▇▇▇▇ Godward LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other time or place as the Company and Purchasers may
mutually agree (such date is hereinafter referred to as the "CLOSING DATE").
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2.2 DELIVERY. At the Closing, subject to the terms and conditions
hereof, the Company will deliver to the Purchasers certificates representing the
number of Shares to be purchased at the Closing by each Purchaser, against
payment of the purchase price therefor by wire transfer made payable to the
order of the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
For purposes of this Agreement, "SEC DOCUMENTS" means, with respect to
any date or time referred to in this Agreement, all reports, registration
statements and definitive proxy statements filed by the Company (together with
any amendments required to be made with respect thereto) with the Securities and
Exchange Commission (the "COMMISSION") subsequent to December 1, 1997 and prior
to the date hereof, including all exhibits and schedules thereto and any
documents incorporated therein by reference. In addition, "RULES AND
REGULATIONS" means the rules and regulations adopted by the Commission under the
Securities Act of 1933, as amended (the "SECURITIES ACT") or the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), as applicable. All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included," "stated," "described" or
"disclosed" in the SEC Documents (or other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information which are incorporated in the SEC Documents.
Except as otherwise described or disclosed in the SEC Documents, the
Company (except where the context requires otherwise, for the purposes of this
Section 3, the "Company" shall mean the Company as well as its wholly-owned
subsidiaries) hereby represents and warrants to each Purchaser as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Company has all requisite corporate power and
authority to own and operate its properties and assets, to execute and deliver
this Agreement and the Registration Rights Agreement, in the form attached
hereto as Exhibit C (the "REGISTRATION RIGHTS AGREEMENT"), to issue and sell the
Shares and to carry out the provisions of this Agreement, the Registration
Rights Agreement and the Restated Certificate and to carry on its business as
presently conducted and as presently proposed to be conducted. The Company is
duly qualified and licensed and in good standing as a foreign corporation in
each jurisdiction in which its ownership or leasing of any properties or the
character of its operations requires such qualification or licensing, except
where the failure to be so qualified or licensed would not have a material
adverse effect on the condition, financial or otherwise, results of operations
or business of the Company, taken as a whole (a "MATERIAL ADVERSE EFFECT"). The
Company has no subsidiaries, corporate or otherwise.
3.2 CAPITALIZATION. The authorized capital stock of the Company,
immediately prior to the Closing, will consist of (a) 25,000,000 shares of
Common Stock, of which 11,005,127 shares were issued and outstanding as of June
30, 1999, and of which 2,342,571 shares are reserved or will be reserved in the
future for issuance by the Company to key employees, consultants and others
affiliated with the Company pursuant to stock grant, stock purchase and/or
option plans or any other stock incentive program, arrangement or agreement
approved by the Company's Board of Directors, and (b) 5,000,000 shares of
Preferred Stock, of which 336,200
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shares are designated Series A Convertible Preferred Stock, all of which are
issued and outstanding, and of which 250,000 shares are designated Series B
Junior Participating Preferred Stock, none of which are issued and outstanding.
All issued and outstanding shares of the Company's Common Stock and Preferred
Stock (i) have been duly authorized and validly issued, (ii) are fully paid and
nonassessable and (iii) were issued in compliance with all applicable state and
federal laws concerning the issuance of securities. The rights, preferences,
privileges and restrictions of the Shares are as stated in the Restated
Certificate. Except with respect to (i) the Company's Rights Agreement dated as
of January 23, 1998, (ii) the Company's outstanding shares of Series A
Convertible Preferred Stock, (iii) the Company's 1996 Employee Stock Purchase
Plan, (iv) the Company's 1996 Equity Incentive Plan, (v) warrants to purchase
Common Stock described in the SEC Documents, or (vi) as may be granted pursuant
to this Agreement, there are no outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal), proxy or
stockholder agreements, or agreements of any kind for the purchase or
acquisition from the Company of any of its securities. When issued in compliance
with the provisions of this Agreement and the Restated Certificate, the Shares
will be validly issued, fully paid and nonassessable and will be free of any
liens or encumbrances.
3.3 AUTHORIZATION; BINDING OBLIGATIONS. All corporate action on the
part of the Company, its officers, directors and stockholders necessary for the
authorization of this Agreement and the Registration Rights Agreement, the
performance of all obligations of the Company hereunder and thereunder at the
Closing and the authorization, sale, issuance and delivery of the Shares
pursuant hereto and pursuant to the Restated Certificate has been taken or will
be taken prior to the Closing. The Agreement and the Registration Rights
Agreement, when executed and delivered, will be valid and binding obligations of
the Company enforceable in accordance with their terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors' rights, (ii) general
principles of equity that restrict the availability of equitable remedies and
(iii) to the extent that the enforceability of the indemnification provisions of
the Registration Rights Agreement may be limited by applicable laws.
3.4 SEC DOCUMENTS; FINANCIAL STATEMENTS. As of their respective filing
dates, the SEC Documents complied in all material respects with the requirements
of the Securities Act, the Exchange Act and the Rules and Regulations. As of
their filing date, none of the SEC Documents contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except to the extent
corrected by a document subsequently filed with the Commission. The SEC
Documents constitute all reports, registration statements, proxy statement and
other filings required to be made by the Company pursuant to the Securities Act
and the Exchange Act subsequent to December 1, 1997. All material contracts and
other documents of the Company required to be filed as exhibits to the SEC
Documents have been filed as required. The financial statements of the Company,
together with the related notes thereto, included in the SEC Documents comply as
to form in all material respects with the Rules and Regulations, have been
prepared in conformity with generally accepted accounting principles
consistently applied (except as may be indicated in the notes thereto) and
fairly present in all material respects the Company's financial position at the
dates thereof and the Company's results of operations, changes in stockholders'
equity and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal audit adjustments which will not be material in
amount or significance).
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3.5 NO MATERIAL ADVERSE CHANGE. Since December 31, 1998, there has been
no material adverse change or development involving a prospective material
adverse change in the condition, financial or otherwise, results of operations
or business of the Company taken as a whole, whether or not arising in the
ordinary course of business. Since December 31, 1998, (i) there have been no
transactions entered into by the Company, other than those in the ordinary
course of business, which are material with respect to the Company, and (ii)
there has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock, other than regularly scheduled
dividend payments on the Company's outstanding Series A Convertible Preferred
Stock.
3.6 LIABILITIES. The Company does not have any liability or obligation
(whether accrued, absolute, contingent, matured, unmatured or other) which if
known would be required to be reflected in the Company's financial statements in
accordance with generally accepted accounting principles, except for any such
liability or obligation which (i) has been reflected in the Company's balance
sheet at December 31, 1998 or (ii) has arisen in the ordinary course of business
since December 31, 1998, consistent with past practices.
3.7 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. The Company has good
and marketable title to its properties and assets, and good title to its
leasehold interests, in each case subject to no mortgage, pledge, lien, lease,
encumbrance or charge.
3.8 INTELLECTUAL PROPERTY. The Company owns or possesses sufficient
legal rights to all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information and other proprietary rights and processes necessary
for its business as now conducted and as proposed to be conducted. The Company
has not received any communications alleging that it has violated or, by
conducting its business as proposed would violate, any proprietary rights of any
other person, nor is the Company aware of any basis for the foregoing.
3.9 NO CONFLICTS. None of the Company's issue and sale of the Common
Stock, the execution or delivery of this Agreement and the Registration Rights
Agreement, its performance hereunder and thereunder, its consummation of the
transactions contemplated herein and therein conflicts or will conflict with or
results or will result in any breach or violation of any of the terms or
provisions of, or constitutes or will constitute a default under, or results or
will result in the creation or imposition of any lien, charge, claim,
encumbrance, pledge, security interest, defect or other restriction or equity of
any kind whatsoever upon any property or assets of the Company pursuant to the
terms of, (i) the Restated Certificate or by-laws of the Company, (ii) any
license, contract, indenture, mortgage, deed of trust, voting trust agreement,
stockholders' agreement, note, loan or credit agreement or other agreement or
instrument to which the Company is a party or by which it is or may be bound or
to which its properties or assets is or may be subject, or (iii) any statute,
judgment, decree, order, rule or regulation applicable to the Company of any
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body, having jurisdiction over the Company or any of
their respective activities or properties except, in the case of clauses (ii)
and (iii), such defaults, impositions and violations that would not have a
Material Adverse Effect.
3.10 NO CONSENTS. No consent, approval, authorization or order of, and
no filing with, any court, arbitrator, regulatory body, government agency or
other body, domestic or foreign, is required for the execution, delivery or
performance of this Agreement, the Registration Rights
4.
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Agreement (execution and delivery only) or the transactions contemplated hereby
or thereby, except (i) the filing of a Form D with the Commission relating to
the sale of the Shares, (ii) such additional steps as may be required by the
Commission, and (iii) such additional steps as may be necessary to qualify the
Shares for sale by the Purchasers under state securities or Blue Sky laws.
3.11 LITIGATION. There is no action, suit, proceeding or investigation
pending or, to the Company's knowledge, currently threatened against the Company
which (i) questions the validity of the capital stock of the Company or of this
Agreement or the Registration Rights Agreement or of any action taken or to be
taken by the Company pursuant to or in connection with this Agreement or the
Registration Rights Agreement, or (ii) would be reasonably likely to result in a
Material Adverse Effect.
3.12 OFFERING VALID. Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4.2 hereof, the offer, sale
and issuance of the Shares will be exempt from the registration requirements of
the Securities Act and will have been registered or qualified (or are exempt
from registration and qualification) under the registration, permit or
qualification requirements of all applicable state securities laws.
3.13 COMPLIANCE WITH LAWS. The Company's business has been conducted in
compliance with all applicable laws and regulations of governmental authorities,
except for such violations that have been cured or that, individually or in the
aggregate, would not be reasonably likely to result in a Material Adverse
Effect.
3.14 PERMITS. To the knowledge of the Company, the Company has all
franchises, permits, licenses and other authority necessary for its business as
now being conducted and believes it can obtain, without undue burden or expense,
any similar authority for its business as planned to be conducted. The Company
is not in default in any material respect under any such franchise, permit,
license or other authority.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby represents and warrants to the Company as follows
(such representations and warranties do not lessen or obviate the
representations and warranties of the Company set forth in this Agreement):
4.1 REQUISITE POWER AND AUTHORITY. Purchaser has all necessary power
and authority under all applicable provisions of law to execute and deliver this
Agreement and the Registration Rights Agreement and to carry out their
provisions. All action on Purchaser's part required for the lawful execution and
delivery of this Agreement and the Registration Rights Agreement have been or
will be effectively taken prior to the Closing. Upon their execution and
delivery, this Agreement and the Registration Rights Agreement will be valid and
binding obligations of Purchaser, enforceable in accordance with their terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors' rights, (ii) general principles of equity that restrict the
availability of equitable remedies and (iii) to the extent that the
enforceability of the indemnification provisions of the Registration Rights
Agreement may be limited by applicable laws.
5.
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4.2 INVESTMENT REPRESENTATIONS. Purchaser understands that the Shares
have not been registered under the Securities Act. Purchaser also understands
that the Shares are being offered and sold pursuant to an exemption from
registration contained in the Securities Act based in part upon Purchaser's
representations contained in the Agreement. Purchaser hereby represents and
warrants as follows:
(A) PURCHASER BEARS ECONOMIC RISK. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Purchaser must bear the economic risk of
this investment indefinitely unless the Shares are registered pursuant to the
Securities Act, or an exemption from registration is available. Purchaser
understands that except as required by the Registration Rights Agreement, the
Company has no intention of registering the Shares. Purchaser also understands
that there is no assurance that any registration under the Registration Rights
Agreement or exemption from registration under the Securities Act will be
available and that, even if available, such registration or exemption may not
allow Purchaser to transfer all or any portion of the Shares under the
circumstances, in the amounts or at the times Purchaser might propose.
(B) ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the Shares
for Purchaser's own account for investment only, and not with a view towards
their distribution.
(C) PURCHASER CAN PROTECT ITS INTEREST. Purchaser represents that
by reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement. Further, Purchaser is aware of no
publication of any advertisement in connection with the transactions
contemplated in the Agreement.
(D) ACCREDITED INVESTOR. Purchaser represents that it is an
accredited investor within the meaning of Regulation D under the Securities Act.
(E) RULE 144. Purchaser acknowledges and agrees that the Shares
must be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Purchaser
has been advised or is aware of the provisions of Rule 144 promulgated under the
Securities Act, which permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things, the availability of certain current public information about the
Company, the resale occurring following the required holding period under Rule
144 and the number of shares being sold during any three-month period not
exceeding specified limitations.
(F) RESIDENCE. If the Purchaser is an individual, then the
Purchaser resides in the state or province identified in the address of the
Purchaser set forth on Exhibit A; if the Purchaser is a partnership,
corporation, limited liability company or other entity, then the office or
offices of the Purchaser in which its investment decision was made is located at
the address or addresses of the Purchaser set forth on Exhibit A.
4.3 TRANSFER RESTRICTIONS. Each Purchaser agrees that Purchaser shall
in no event make any disposition of all or any portion of the Shares unless and
until (i) there is then in effect
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a registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with said registration
statement; or (ii) (A) Purchaser shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, (B) if requested by the
Company, Purchaser shall have furnished the Company with an opinion of
Purchaser's own counsel to the effect that such disposition will not require
registration of such Shares under the Securities Act and (C) such opinion of
Purchaser's counsel shall have been concurred in by counsel for the Company,
such concurrence not to be unreasonably withheld, and the Company shall have
advised Purchaser of such concurrence. Each Purchaser acknowledges and agrees
that all certificates representing the shares shall have endorsed thereon the
following legend
4.4 LEGEND. Each Purchaser acknowledges and agrees that all
certificates representing the Shares shall have endorsed thereon the following
legends:
(A) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
(B) Any legend required by appropriate state Blue Sky officials.
5. CONDITIONS TO CLOSING
5.1 CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING. Purchasers'
obligations to purchase the Shares at the Closing are subject to the
satisfaction, at or prior to the Closing, of the following conditions:
(A) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Section 3
hereof shall be true and correct in all material respects as of the Closing
Date.
(B) LEGAL INVESTMENT. On the Closing Date, the sale and issuance of
the Shares and the proposed issuance of the Shares shall be legally permitted by
all laws and regulations to which Purchasers and the Company are subject.
(C) CONSENTS, PERMITS, AND WAIVERS. The Company shall have obtained
any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement and the
Registration Rights Agreement (except for such as may be properly obtained
subsequent to the Closing).
(D) REGISTRATION RIGHTS AGREEMENT. A Registration Rights Agreement,
substantially in the form attached hereto as Exhibit C, shall have been executed
and delivered by the parties thereto.
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(E) LEGAL OPINION. The Purchasers shall have received an opinion,
dated as of the Closing Date, from ▇▇▇▇▇▇ Godward LLP, legal counsel to the
Company, in the form attached hereto as Exhibit D.
(F) PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
in connection with the transactions contemplated at the Closing hereby and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchasers and their counsel, and the
Purchasers and their counsel shall have received all such counterpart originals
or certified or other copies of such documents as they may reasonably request.
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's obligation
to issue and sell the Shares at the Closing is subject to the satisfaction, on
or prior to such Closing, of the following conditions:
(A) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties made by the Purchasers in Section 4 hereof shall be true and correct
in all material respects at the date of each Closing, with the same force and
effect as if they had been made on and as of said date.
(B) PERFORMANCE OF OBLIGATIONS. Purchasers shall have performed and
complied with all agreements and conditions herein required to be performed or
complied with by Purchasers on or before each Closing.
(C) REGISTRATION RIGHTS AGREEMENT. A Registration Rights Agreement,
substantially in the form attached hereto as Exhibit C, shall have been executed
and delivered by the Purchasers.
(D) CONSENTS, PERMITS, AND WAIVERS. The Company shall have obtained
any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement and the
Investors' Rights Agreement (except for such as may be properly obtained
subsequent to the Closing).
6. MISCELLANEOUS
6.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of New York as such laws are applied to agreements between
New York residents entered into and performed entirely in New York, except that
the Delaware General Corporation Law will govern as to matters of corporate law.
6.2 SURVIVAL. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by any Purchaser and the
closing of the transactions contemplated hereby. All statements as to factual
matters contained in any certificate or other instrument delivered by or on
behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
6.3 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,
8.
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executors and administrators of the parties hereto and shall inure to the
benefit of and be enforceable by each person who shall be a holder of the Shares
from time to time.
6.4 ENTIRE AGREEMENT. This Agreement, the Exhibits hereto, including
the Registration Rights Agreement, and the other documents delivered pursuant
hereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and no party shall be liable or bound
to any other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein and therein.
6.5 SEVERABILITY. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
6.6 AMENDMENT AND WAIVER.
(A) This Agreement may be amended or modified only upon the written
consent of the Company and holders of a majority of the Shares (which have not
been sold to the public).
(B) The obligations of the Company and the rights of the holders of
the Shares under the Agreement may be waived only with the written consent of
the holders of a majority of the Shares (which have not been sold to the
public).
6.7 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day; (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
Company at the address as set forth on the signature page hereof and to
Purchaser at the address as set forth on Exhibit A hereto or at such other
address as the Company or Purchaser may designate by ten (10) days advance
written notice to the other parties hereto.
6.8 EXPENSES. The Company shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
the Agreement.
6.9 ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
6.10 TITLES AND SUBTITLES. The titles of the sections and subsections
of the Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.11 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.
9.
14
6.12 BROKER'S FEES. Each party hereto represents and warrants that
except for the fees payable to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Co.(which fees shall be the
sole responsibility of the Company), no agent, broker, investment banker, person
or firm acting on behalf of or under the authority of such party hereto is or
will be entitled to any broker's or finder's fee or any other commission
directly or indirectly in connection with the transactions contemplated herein.
Each party hereto further agrees to indemnify each other party for any claims,
losses or expenses incurred by such other party as a result of the
representation in this Section 6.12 being untrue.
6.13 EXCULPATION AMONG PURCHASERS. Each Purchaser acknowledges that it
is not relying upon any person, firm, or corporation, other than the Company and
its officers and directors, in making its investment or decision to invest in
the Company. Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable for any action heretofore or hereafter taken or
omitted to be taken by any of them in connection with the Shares.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
BOLDER TECHNOLOGIES CORPORATION
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
Accepted as of the date first above written:
PURCHASER
LEGAL NAME OF PURCHASER:
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By:
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Name:
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Title:
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Date:
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11.