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RAKO CAPITAL CORPORATION
SECURITIES PURCHASE AGREEMENT
February 5, 2003
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RAKO CAPITAL CORPORATION
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of February 5, 2003, by and among Rako Capital Corporation, a Nevada
corporation having offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(the "Company"), Centra Industries, Inc., a Delaware corporation having offices
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Centra") and Stanford
Venture Capital Holdings, Inc., a Delaware corporation having offices at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Purchaser").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of an
aggregate of 841,319 shares (the "Common Shares") of Common Stock, par value
$0.001 per share, of the Company (the "Common Stock") and 841,319 warrants
(each, a "Warrant"), each Warrant conferring the right to purchase initially up
to one (1) share of the Common Stock of the Company at an exercise price of
$2.50;
WHEREAS, the Company desires to sell and issue the Common Shares and
the Warrants together as investment units, with each unit consisting of (i) one
Common Share and (ii) one Warrant, and has therefore authorized the sale of
841,319 units (the "Units"); and
WHEREAS, the Company desires to sell and issue the Units to the
Purchaser pursuant to the terms and conditions herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises, representations, warranties and covenants hereinafter set forth
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1 AGREEMENT TO SELL AND PURCHASE.
1.1 Authorization of Shares. On or prior to the Initial Closing Date
(as defined in Section 2 below), the Company shall have (a) authorized the sale
and issuance to the Purchaser of 841,319 Units, consisting of one (1) Common
Share and one (1) Warrant per Unit and (b) reserved for issuance the shares of
Common Stock issuable upon the exercise of the Warrants (the "Warrant Shares").
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 the Purchaser, and the Purchaser hereby agrees to purchase from the
Company, 841,319 Units, at a purchase price of $2,000,000, approximately $2.3772
per ▇▇▇▇.
▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ AND PAYMENT.
2.1 Closings. The closing of the sale and purchase of the Units under
this Agreement (the "Closing") shall take place in four (4) separate tranches of
$500,000 each at 10:00 a.m. at the offices of Reitler ▇▇▇▇▇ LLC, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ on each of the following dates: February 7, 2003;
February 10, 2003; April 1, 2003; and April 8, 2003 (or at such other time or
place as the Company and the Purchaser may mutually agree; such dates are
hereinafter referred to as the "Closing Date").
2.2 Delivery. At the Closing, subject to the terms and conditions
hereof, the Company will deliver to the Purchaser for each Unit purchased at the
Closing, (i) a stock certificate representing One (1) Common Share and (ii) a
warrant certificate representing One (1) Warrant in the form attached as Exhibit
A. At the Company's discretion, the Company may deliver certificates
representing the aggregate number of Common Shares and Warrants purchased by the
Purchaser. The Company's delivery of such certificates shall be against payment
of the purchase price therefore by check in immediately available funds, wire
transfer made payable to the order of the Company, or any combination of the
foregoing.
2.3 Placement Fee. The Company will pay to Stanford Group Company a
placement fee equal to five percent (5%) of the aggregate purchase price, which
fee shall be deducted in equal installments of $25,000 from each tranche of
funding.
3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Purchaser as of the
Closing Dates set forth above. For purposes of this Section 3, a person shall be
deemed to have "knowledge" of a particular fact or other matter if (a) the
person is actually aware of such fact or other matter or (b) if a reasonably
prudent individual could be expected to discover or otherwise become aware of
such fact or other matter in the course of conducting a reasonably diligent and
reasonably comprehensive investigation concerning the truth or existence of such
fact or other matter. A person that is a corporation, partnership or other
business entity shall be deemed to have "knowledge" of a particular fact or
other matter if any employee, officer or director of the person has knowledge
(as described in the preceding sentence) of such fact or other matter.
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 Nevada. The Company has all requisite corporate power and
authority to own and operate its properties and assets, to execute and deliver
this Agreement, as well as the Registration Rights Agreement in the form
attached hereto as Exhibit B (the "Registration Rights Agreement"), to issue and
sell the Common Shares and the Warrants comprising each Unit, to issue the
Warrant Shares upon exercise, and against payment therefor, of the Warrants, to
carry out the provisions of this Agreement and the Registration Rights
Agreement, and to carry on its business as presently conducted and as presently
proposed to be conducted. The Company is duly qualified and is authorized to do
business and is in good standing as a foreign corporation in all jurisdictions
in which the nature of its activities and of its properties (both owned and
leased) makes such qualification necessary, except for those jurisdictions in
which failure to do so would not have a
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material adverse effect on the Company or its assets, liabilities, financial
condition, prospects or operations (a "Material Adverse Effect").
3.2 Subsidiaries. Except as set forth in the Disclosure Statement, the
Company does not own or control any equity security or other interest of any
other corporation, limited partnership or other business entity and is not a
participant in any joint venture, partnership or similar arrangement. Each
subsidiary is duly organized, validly existing and in good standing under laws
of the State of Delaware. Each subsidiary has all requisite corporate power and
authority to own and operate its properties and assets and to carry on its
business as presently conducted. Each subsidiary is duly qualified and is
authorized to do business and is in good standing as a foreign corporation in
all jurisdictions in which the nature of its activities and of its properties
(both owned and leased) makes such qualifications necessary, except for those
jurisdictions in which the failure to do so would not have a Material Adverse
Effect.
3.3 Capitalization; Voting Rights.
3.3.1 The authorized capital stock of the Company, immediately
prior to the Closing, consists of (i) 50,000,000 shares of
Common Stock, par value $0.001 per share, 17,299,584 of
which are issued and outstanding, and (ii) 20,000,000 shares
of Preferred Stock, par value $0.001 per share.
3.3.2 The Company has no stock option plan or other form of plan
for employees' purchase of the Company's stock. Under both
the 2002 Stock Option Plan (the "2002 Stock Option Plan")
and the 2002 Employee Stock Purchase Plan (the "2002
Employee Stock Purchase Plan") of Centra Industries, Inc.
(copies attached as Exhibit C-1 and C-2, respectively), (i)
no shares of Common Stock have been issued pursuant to
restricted stock purchase agreements, (ii) no shares of
Common Stock have been issued upon the exercise of
outstanding options, (iii) no options to purchase shares of
Common Stock have been granted, (iv) no options to purchase
shares of Common Stock have been promised or otherwise
committed in any written employment or consulting agreement
to which Centra is a party, and (v) 500,000 shares of Common
Stock remain available for future issuance in total under
the 2002 Stock Option Plan and 2002 Employee Stock Purchase
Plan combined. The Company intends to adopt the 2002 Stock
Option Plan and 2002 Employee Stock Purchase Plan as the
Company's plans.
3.3.3 Other than as provided in the 2002 Stock Option Plan and
2002 Employee Stock Purchase Plan, the Stockholders
Agreement of Centra Industries, Inc. (copy attached as
Exhibit D) or as contemplated in 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.
3.3.4 All issued and outstanding shares of the Company's Common
Stock (i) have been duly authorized and validly issued and
are fully paid and non-assessable, and (ii) were issued in
compliance with all applicable state and federal laws
concerning the issuance of securities.
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3.3.5 The Warrant Shares have been reserved for issuance upon
exercise of the Warrants in accordance with their terms.
When issued in compliance with the provisions of this
Agreement, and in the case of the Warrant Shares, in
accordance with the Warrants, the Common Shares and the
Warrant Shares will be validly issued, fully paid and
non-assessable, and will be free of any liens or
encumbrances; provided, however, that the Common Shares and
the Warrant Shares may be subject to restrictions on
transfer under state and/or federal securities laws and this
Agreement.
3.4 Authorization; Binding Obligations. The Company has all corporate
right, power and authority to enter into this Agreement and the Registration
Rights Agreement and to consummate the transactions contemplated hereby and
thereby. All corporate action on the part of the Company, its officers,
directors and stockholders necessary for (i) the authorization of this Agreement
and the Registration Rights Agreement, (ii) the performance of all obligations
of the Company hereunder and thereunder, (iii) the authorization, sale, issuance
and delivery of the Common Shares and the Warrants pursuant hereto, and (iv) the
issuance and delivery of the Warrant Shares upon exercise of the Warrants, has
been taken or will be taken prior to the Closing. This Agreement and the
Registration Rights Agreement, when duly executed and delivered by the Company,
will constitute valid and binding obligations of the Company, enforceable in
accordance with their respective terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and the rules of
law governing specific performance, injunctive relief or other equitable
remedies, and to limitations of public policy. The sale and issuance of the
Units, and the subsequent exercise of the Warrants, are not and will not be
subject to any preemptive rights or rights of first refusal that have not
properly been waived or fulfilled.
3.5 Accuracy of Reports, Information Statement and Representations. All
reports required to be filed by the Company within the two years prior to the
date of this Agreement (the "SEC Reports") under the Securities Act of 1934, as
amended (the "Exchange Act"), have been duly filed with the Securities and
Exchange Commission (the "SEC"), and complied at the time of filing in all
material respects with the requirements of their respective forms and, except to
the extent updated or superseded by any subsequently filed report, to the best
of the Company's knowledge, were complete and correct in all material respects
as of the dates at which the information was furnished, and contained (as of
such dates) no untrue statements of a material fact nor omitted to state any
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading. The
Disclosure Statement of Centra Industries, Inc. ("Centra") dated February 4,
2003 (attached hereto as Exhibit E), and any of the documents or instruments
attached thereto as exhibits or incorporated therein by reference (collectively,
the Disclosure Statement"), when taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein, in light of the circumstances under
which they were made, not misleading.
3.6 Financial Information. The financial statements of the Company
included in the SEC Reports, and the Centra financial statements delivered to
the Purchaser as an exhibit to the Disclosure Statement, comply as to form in
all material respects with applicable accounting requirements and the published
rules and regulations with respect thereto, have been prepared in
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accordance with generally accepted accounting principles (except that the
financial statements that are not audited do not have notes thereto) and fairly
present (subject only, in the case of the unaudited statements, to normal,
recurring audit adjustments) the financial position of the Company and Centra as
of the date thereof and the results of its and their operations and its and
their cash flows for the periods then ended.
3.7 Liabilities. Except as set forth in the SEC Reports and the
Disclosure Statement, the Company has no material liabilities and, to the best
of its knowledge, no material contingent liabilities, except current liabilities
incurred in the ordinary course of business.
3.8 Obligations to Related Parties. Except as set forth in the SEC
Reports and the Disclosure Statement, there are no obligations of the Company or
Centra to any current or former officers, partners, directors, stockholders, or
employees of the Company or Centra other than (i) for payment of salary for
services rendered, (ii) reimbursement for reasonable expenses incurred on behalf
of the Company and Centra, and (iii) for other standard employee benefits made
generally available to all employees (including stock option agreements
outstanding under the Stock Option Plan); and under Centra's Employee Incentive
Bonus Plan.
1.1 Title to Properties and Assets; Liens, Etc. Except as set forth in
the SEC Reports and the Disclosure Statement, the Company and Centra have good
and marketable title to their properties and assets, and good title to their
leasehold estates, in each case subject to no mortgage, pledge, lien, lease,
encumbrance or charge, other than (a) as disclosed in the financial statements,
(b) those resulting from taxes which have not yet become delinquent, and (c)
minor liens and encumbrances which do not materially detract from the value of
the property subject thereto or materially impair the operations of the Company.
All facilities, machinery, equipment, fixtures, vehicles and other properties
owned, leased or used by the Company and its subsidiaries are in good operating
condition and repair and are reasonably fit and usable for the purposes for
which they are being used. The Company and its subsidiaries are in compliance
with all material terms of each lease to which it is a party or is otherwise
bound and each such lease is enforceable against the parties thereto.
3.10 Intellectual Property. The Company and its subsidiaries own or
possess sufficient legal rights to all patents, trademarks, service marks, trade
names, copyrights, trade secrets, licenses, information and other proprietary
rights and processes necessary for its and their business as now conducted and
as presently proposed to be conducted, without any infringement of the rights of
others. The Company and its subsidiaries own or possess sufficient legal rights
or has valid licenses to all third party software necessary for its business as
now conducted and as presently proposed to be conducted. Other than such
licenses or agreements arising from the purchase of "off the shelf" software or
standard products, there are no outstanding options, licenses or agreements of
any kind relating to the foregoing proprietary rights, nor is the Company or its
subsidiaries bound by or a party to any options, licenses or agreements of any
kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information and other proprietary rights
and processes of any other person or entity.
3.11 Compliance with Other Instruments. The execution, delivery and/or
filing by the Company of each of this Agreement, the Registration Rights
Agreement, and the certificates
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evidencing the Common Shares and the Warrants, the performance by the Company of
its obligations and undertakings contemplated under each of such agreements and
the consummation of the transactions contemplated under each of such agreements
and certificates, does not and will not conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or entitle any person to receipt of notice or to a right of consent
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to loss of a material benefit under, or to any increased,
additional, accelerated or guaranteed rights or entitlement of any person under,
or result in the creation of any pledge, lien, encumbrance or charge upon any of
the properties or assets of the Company or its subsidiaries under, any provision
of (i) the Certificate of Incorporation or the By-laws of the Company, (ii) any
note, bond, mortgage, indenture, deed of trust, license, lease, contract,
commitment, agreement, instrument or arrangement to which the Company or its
subsidiaries is a party or by which any of its respective properties or assets
are bound, (iii) any license, franchise, permit or other similar authorization
held by the Company or its subsidiaries, or (iv) any judgment, order or decree
or statute, law, ordinance, rule or regulation applicable to the Company or its
subsidiaries or its or their respective properties or assets.
3.12 Absence of Certain Changes. Since September 30, 2002, no event,
occurrence or circumstance has occurred which has resulted in a Material Adverse
Effect or that reasonably could be expected to result in a Material Adverse
Effect.
3.13 Litigation. Except as set forth in the Disclosure Statement, there
are no pending, or to the Company's knowledge threatened, legal or governmental
proceedings against the Company or its subsidiaries.
3.14 Material Agreements. Except as set forth in the SEC Reports, the
Company is not party to any written or oral contract, instrument, agreement,
commitment, obligation, plan or arrangement, a copy of which would be required
to be filed with the SEC as an exhibit to Form 10-K, Form 10-Q or Form 8-K
(each, a "Material Agreement"). Except as set forth in the SEC Reports and the
Disclosure Statement, the Company and its subsidiaries have in all material
respects performed all the obligations required to be performed by them to date
under their material agreements, has received no notice of default and, to the
best of the Company's knowledge neither it nor any subsidiary is in default
under any material agreement.
3.15 Transactions with Affiliates. Except as set forth in the SEC
Reports or the Disclosure Statement, there are no loans, leases, agreement,
contracts, royalty agreements, management contracts or arrangements or other
continuing transactions with aggregate obligations of any party exceeding
$25,000 between (a) the Company and its subsidiaries or any of its customers or
suppliers on the one hand, and (b) on the other hand, any officer, employee,
consultant or director of the Company and its subsidiaries or any person who
would be covered by Item 404(a) of Regulation S-K or any company or other entity
controlled by such officer, employee, consultant, director or person.
3.16 Taxes. All Federal, state, local and foreign income, profits,
franchise, sales, use, occupation, property, excise, employment, withholding and
other tax returns and tax reports required to by filed by the Company and its
subsidiaries for periods ending on or prior to the relevant Closing Date have
been or will be filed on a timely basis (including any extensions)
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with the appropriate governmental authorities in all jurisdictions in which such
returns and reports are required to be filed. All such returns and reports are
and will be true, correct and complete. All Federal, state, local and foreign
income, profits, franchise, sales, use, occupation, property, excise,
employment, withholding and other taxes (including interest, penalties and
withholdings of tax) due from and payable by the Company and its subsidiaries or
otherwise required to be remitted by the Company and its subsidiaries, on or
prior to the relevant Closing Date, have been or will be fully paid on a timely
basis. Neither the Company nor its subsidiaries currently are the beneficiary of
any extension of time within which to file any tax return. No claim has ever
been made by a governmental authority in a jurisdiction where the Company does
not file tax returns that it is or may be subject to taxation by that
jurisdiction, and neither the Company nor its subsidiaries have received any
notice, or request for information from any such authority. No issues have been
raised with the Company or its subsidiaries by the Internal Revenue Service (the
"IRS") or any other taxing authority in connection with any tax return or report
filed by the Company or its subsidiaries and there are no issues which, either
individually or in the aggregate, could result in any liability for tax
obligations of the Company or its subsidiaries relating to periods ending prior
to the date of the Financial Statements, in excess of the accrued liability for
taxes shown on the Financial Statements.
3.17 Employees. (A) The Company and its subsidiaries do not have, and
never have had, any collective bargaining agreements with any of its employees
and there are no collective bargaining agreements which pertain to employees of
the Company or its subsidiaries. There is no labor union organizing activity
pending or, to the Company's knowledge, threatened with respect to the Company
or its subsidiaries. Hours worked by and payment made to employees of the
Company and its subsidiaries have been in compliance with the Fair Labor
Standards Act or any other applicable labor or employment law. The Company is
not aware that any officer, key employee or group of employees intends to
terminate his, her or their employment with the Company or its subsidiaries, nor
does the Company have a present intention to terminate the employment of any
officer, key employee or group of employees. There are no complaints or charges
against the Company or its subsidiaries pending or, to the Company's knowledge,
threatened to be filed with any governmental authority or arbitrator based on,
arising out of or in connection with, or otherwise relating to, the employment
or termination of employment by the Company or its subsidiaries of any
individual.
(B) Except as disclosed in the SEC Reports and the Disclosure
Statement, the Company and its subsidiaries have no pension, retirement,
savings, deferred compensation, and profit-sharing plan and each stock option,
stock appreciation, stock purchase, performance share, bonus or other incentive
plan, severance plan, health, group insurance or other welfare plan, or other
similar plan and any "employee benefit plan" within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974 ("ERISA"), under which
the Company or its subsidiaries has any current or future obligation or
liability or under which any employee or former employee (or beneficiary of any
employee or former employee) of the Company or its subsidiaries has or may have
any current or future right to benefits on account of employment with the
Company or its subsidiaries (the term "plan" shall include any contract,
agreement, policy or understanding, each such plan being hereinafter referred to
individually as a "Plan"). Each Plan intended to be tax qualified under Sections
401(a) and 501(a) of the Code is, and has been determined by the IRS to be, tax
qualified under Sections 401(a) and 501(a) of the Code and, since such
determination, no amendment to or failure to amend any such Plan or any
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other circumstance adversely affects its tax qualified status. There has been no
prohibited transaction within the meaning of Section 4975 of the Code and
Section 406 of Title I of ERISA with respect to any Plan.
(C) Except as disclosed in the SEC Reports or the Disclosure
Statement, no Plan is subject to the provisions of Section 412 of the Code or
Part 3 of Subtitle B of Title I of ERISA or Title IV of ERISA. During the past
five years, neither the Company or its subsidiaries nor any business or entity
then controlling, controlled by, or under common control with the Company or its
subsidiaries contributed to or was obliged to contribute to an employee pension
plan that was subject to Title IV of ERISA.
(D) Except as disclosed in the SEC Reports or the Disclosure
Statement, the Company has satisfied all funding, compliance and reporting
requirements for all Plans. With respect to each Plan, the Company and its
subsidiaries have timely paid all contributions (including employee salary
reduction contributions) and all insurance premiums that have become due and any
such expense accrued but not yet due has been properly reflected in the
Financial Statements. The Company and its subsidiaries have no liabilities,
contingent or otherwise, including without limitation, liabilities for retiree
health, retiree life, severance or retirement benefits, which are not fully
reflected on the Company's or Centra's most recent balance sheet contained in
the SEC Reports or the Disclosure Statement, or not fully funded. The Company
and its subsidiaries have not terminated any "employee pension benefit plan" as
defined in Section 3(2) of ERISA or incurred or expects to incur any outstanding
liability under Title IV of ERISA.
(E) Except as disclosed in the SEC Reports or the Disclosure
Statement, no Plan provides or is required to provide, now or in the future,
health, medical, dental, accident, disability, death or survivor benefits to, or
in respect of, any person beyond termination of employment, except to the extent
required under any state insurance law or under Part 6 of Subtitle B of Title I
of ERISA and under Section 4980(B) of the Code. No Plan covers any individual
other than employees of the Company or its subsidiaries, other than dependents
or spouses of employees under health and child care policies.
(F) None of the execution and delivery of this Agreement or the
Registration Rights Agreement by the parties thereto, the performance by any
party to this Agreement or the Registration Rights Agreement of their respective
obligations or undertakings contemplated thereunder, or the consummation of the
transactions contemplated thereby will (i) entitle any employee of the Company
or its subsidiaries to severance pay or termination benefits or (ii) accelerate
the time of payment or vesting, or increase the amount of compensation due to
any such employee or former employee.
3.18 Registration Rights and Voting Rights. Except as set forth in the
Registration Rights Agreement and the Stockholders Agreement, the Company is
presently not under any obligation, and has not granted any rights, to register
any of the Company's presently outstanding securities or any of its securities
that may hereafter be issued. Except for the Stockholders Agreement and By-laws,
the Company is not a party to any agreement with respect to the voting of any
capital stock of the Company and, to the Company's knowledge, no
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stockholder of the Company has entered into any agreement with respect to the
voting of equity securities of the Company.
3.19 Compliance with Laws; Permits. The Company and its subsidiaries
are not in violation of any applicable statute, ordinance, rule, regulation,
interpretation, order or restriction of any domestic or foreign government or
any instrumentality or agency thereof in respect of the conduct of its business
or the ownership of its properties which violation could result in a Material
Adverse Effect. No governmental orders, permissions, consents, approvals or
authorizations are required to be obtained and no registrations or declarations
are required to be filed in connection with either the execution and delivery of
this Agreement or the Registration Rights Agreement or the issuance of the
Common Shares, the Warrants or the Warrant Shares, except such as has been duly
and validly obtained or filed, or with respect to any filings that must be made
after the Closing, as will be filed in a timely manner.
3.20 Environmental and Safety Laws. The Company and its subsidiaries
are not in violation of any applicable statute, law or regulation relating to
the environment or occupational health and safety, and to its knowledge, no
material expenditures are or will be required in order to comply with any such
existing statute, law or regulation. Except as disclosed in the SEC Reports or
the Disclosure Statement, no Hazardous Materials (as defined below) are used or
have been used, stored, or disposed of by the Company or its subsidiaries or, to
the Company's knowledge after reasonable investigation, by any other person or
entity on any property owned, leased or used by the Company or its subsidiaries.
For the purposes of the preceding sentence, "Hazardous Materials" shall mean (i)
materials which are listed or otherwise defined as "hazardous" or "toxic" under
any applicable local, state, federal and/or foreign laws and regulations that
govern the existence and/or remedy of contamination on property, the protection
of the environment from contamination, the control of hazardous wastes, or other
activities involving hazardous substances, including building materials or (ii)
any petroleum products or nuclear materials.
3.21 Offering Valid. Assuming the accuracy of the representations and
warranties of the Purchaser contained in Section 4.2 hereof, the offer, sale and
issuance of the Units (including the Common Shares and the Warrants) and the
issuance of the Warrant Shares, upon exercise of the Warrants, will be exempt
from the registration requirements of the Securities Act of 1933 (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. Neither the
Company nor any agent on its behalf has solicited or will solicit any offers to
sell or has offered to sell or will offer to sell all or any part of the Units
to any person or persons so as to bring the offer and sale of such Units by the
Company within the registration provisions of the Securities Act or any state
securities laws.
3.22 Broker's Fees. Except for the payment of the placement fee
referenced in Section 2.3, no agent, broker, investment banker, person or firm
acting on behalf of or under the authority of the Company or its subsidiaries is
or will be entitled to any broker's or finder's fee or any other commission or
fee directly or indirectly in connection with the transactions contemplated
herein.
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3.23 Insurance. The Company and its subsidiaries maintain insurance
policies which are in full force and effect and are in amount and for coverage
customary for the industry in which the Company and its subsidiaries operate.
3.24 Joinder. Centra, a majority-owned operating subsidiary of the
Company, hereby expressly joins in making to Purchaser all of the
representations and warranties contained in this Section 3, mutatis mutandis,
until such time as the Company and Centra shall merge or engage in a similar
combination, after which only the surviving public entity shall continue to be
bound by this Agreement.
4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Company as follows:
4.1 Requisite Power and Authority. The 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 respective provisions. All action on the Purchaser's part required for the
lawful execution and delivery of this Agreement and the Registration Rights
Agreement have been or will be taken prior to the Closing. Upon their execution
and delivery, this Agreement and the Registration Rights Agreement will be valid
and binding obligations of the Purchaser, enforceable in accordance with their
terms, subject to laws of general application relating to bankruptcy, insolvency
and he relief of debtors and the rules of law governing specific performance,
injunctive relief or other equitable remedies, and to limitations of public
policy.
4.2 Investment Representations. The Purchaser understands that neither
the Units (including the Common Shares and the Warrants) nor the Warrant Shares
have been registered under the Securities Act. The Purchaser also understands
that the Units (including the Common Shares and the Warrants) and the Warrant
Shares are being offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon the Purchaser's
representations contained in this Agreement. The Purchaser hereby represents and
warrants as follows:
4.2.1 Purchaser Bears Economic Risk. The 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. The Purchaser understands that
it must bear the economic risk of this investment
indefinitely unless the Common Shares, the Warrants or the
Warrant Shares are registered pursuant to the Securities
Act, or an exemption from registration is available. The
Purchaser understands that, except as provided in the
Registration Rights Agreement, the Company has no present
intention or obligation to register the Common Shares, the
Warrants, the Warrant Shares or any other shares of its
Common Stock. The Purchaser also understands that there is
no assurance that any exemption from registration
10
under the Securities Act will be available and that, even if
available, such exemption or the Company may not allow
Purchaser to transfer all or any portion of the Common
Shares, the Warrants or the Warrant Shares under the
circumstances, in the amounts or at the times the Purchaser
might propose.
4.2.2 Acquisition for Own Account. The Purchaser is acquiring the
Units (including the Common Shares and the Warrants) and,
upon exercise of the Warrants, the Warrant Shares for the
Purchaser's own account for investment only, and not with a
view towards their distribution.
4.2.3 Purchaser Can Protect Its Interest. The Purchaser represents
that by reason of its, or of its management's, business or
financial experience, the Purchaser has the capacity to
protect its own interests in connection with the
transactions contemplated in this Agreement and the
Registration Rights Agreement. Further, the Purchaser is
aware of no publication of any advertisement in connection
with the transactions contemplated in this Agreement.
4.2.4 Accredited Investor. The Purchaser represents that it is an
accredited investor within the meaning of Regulation D under
the Securities Act.
5 CONDITIONS TO CLOSING.
5.1 Conditions to Purchaser's Obligations at the Closing. The
Purchaser's obligations to purchase the Units at the Closing are subject to the
satisfaction, at or prior to the Closing Date, of the following conditions:
5.1.1 Representations and Warranties True; Performance of
Obligations. The representations and warranties made by the
Company in Section 3 hereof shall be true and correct as of
such Closing Date with the same force and effect as if they
had been made as of such Closing Date, and the Company shall
have performed all obligations and conditions herein
required to be performed or observed by it on or prior to
such Closing.
5.1.2 Legal Investment. On such Closing Date, the sale and
issuance of the Units (including the Common Shares and the
Warrants) and the issuance of the Warrant Shares upon
exercise of the Warrants shall be legally permitted by all
laws and regulations to which the Purchasers and the Company
are subject.
5.1.3 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 this Agreement and the Registration Rights
Agreement (except for such as may be properly obtained
subsequent to the Closing).
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5.1.4 Corporate Documents. The Company shall have delivered to the
Purchaser or its counsel, copies of such corporate documents
of the Company as the Purchaser shall reasonably request.
5.1.5 Reservation of Warrant Shares. The Warrant Shares issuable
upon exercise of the Warrants shall have been duly
authorized and reserved for issuance upon such exercise.
5.1.6 Compliance Certificate. The Company shall have delivered to
the Purchasers a Compliance Certificate, executed by the
Chief Executive Officer of the Company, dated the relevant
Closing Date, to the effect that the conditions specified in
subsections (a), (c), (d) and (f) of this Section 5.1 have
been satisfied.
5.1.7 Secretary's Certificate. The Purchasers shall have received
from the Company's Secretary, a certificate having attached
thereto (i) the Company's Certificate of Incorporation,
certified by the Secretary of State of the State of Nevada,
as in effect at the time of the Closing, (ii) the Company's
By-laws as in effect at the time of the Closing, (iii)
resolutions approved by the Board of Directors of the
Company authorizing the transactions contemplated hereby,
and (iv) good standing certificates (including tax good
standing) with respect to the Company from the applicable
authority(ies) in Nevada and any other jurisdiction in which
the Company is qualified to do business, dated a recent date
before the Closing.
5.1.8 Registration Rights Agreement. The Registration Rights
Agreement shall have been executed and delivered by the
parties thereto.
5.1.9 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 Purchaser and its
counsel, and the Purchaser and its counsel shall have
received all such counterpart originals or certified or
other copies of such documents as they may reasonably
request.
5.1.10 Purchaser's Expenses. The Company shall have reimbursed, in
accordance with Section 6.10 and by deduction from the first
tranche of funds referenced in Section 1.2, Purchaser's
reasonable expenses incurred in connection with its purchase
of the Units, including the fees and disbursements of
counsel to the Purchaser, up to a maximum of $50,000 in the
aggregate. The Purchaser shall furnish the Company with
itemized invoices setting forth the expenses to be
reimbursed.
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The conditions of closing set forth in Sections 5.1.6 and 5.1.7 shall
be applicable only to the February 7, 2003 Closing. Payment of the remaining
tranches and delivery of the share certificates and Warrants thereafter shall be
as provided in Section 2.
5.2 Conditions to Obligations of the Company. The Company's obligation to issue
and sell the Units at Closing to the Purchaser is subject to the satisfaction,
on or prior to the relevant Closing Date, of the following conditions:
5.2.1 Representations and Warranties True. The representations and
warranties in Section 4 made by the Purchaser shall be true
and correct at such Closing Date with the same force and
effect as if they had been made as of such Closing Date.
5.2.2 Performance of Obligations. The Purchaser shall have
performed and complied with all agreements and conditions
herein required to be performed or complied with by the
Purchaser on or before such Closing.
5.2.3 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 this Agreement and the Registration Rights
Agreement (except for such as may be properly obtained
subsequent to such Closing).
6 MISCELLANEOUS.
6.1 Survival. The representations, warranties, covenants and agreements
made herein shall survive 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.
6.2 Benefits of Agreement. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto. The parties acknowledge that it is the Company's intent to merge
into or otherwise enter into in a similar transaction with its direct
subsidiary, Centra Industries, Inc., such that the rights and benefits conveyed
pursuant to this Agreement, the Registration Rights Agreement, and the Warrant
(the latter documents executed on even date herewith) shall be binding upon the
surviving public entity.
6.3 Transfer Restrictions; Assignment. (a) Except in connection with
sale of the Common Shares or Warrant Shares pursuant to an effective
Registration Statement or a public sale under Rule 144 or other available
exemption from registration, the Purchaser may not assign or transfer all or any
portion of the Common Shares or the Warrants, this Agreement or any of the
rights and obligations hereunder or thereunder without the prior written consent
of the Company, which may be given or withheld in the Company's sole discretion.
Any instrument purporting to make an assignment in violation of this Section 6.3
shall be void.
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(b) Each certificate representing a Common Share, Warrant or
Warrant Share shall be stamped or otherwise imprinted with a legend
substantially similar to the following (in addition to any legend required under
applicable state securities laws):
"The securities evidenced hereby have not been registered under Federal or
applicable state securities laws and instead are being issued pursuant to
exemptions contained in said laws. The securities represented by this
certificate may not be transferred unless (1) a registration statement with
respect to such securities shall be effective under the Securities Act of 1933
(the "Securities Act") or (2) the Company shall have received an opinion of
counsel reasonably satisfactory to it that no violation of THE SECURITIES act or
similar state acts will be involved in such transfer; provided that in the event
such securities are transferred pursuant to Rule 144, or any successor rule,
under the Securities Act, no such opinion shall be required unless requested in
writing by the transfer agent of such securities. The securities evidenced
hereby are SUBJECT TO THE TERMS OF A certain securities purchase agreement,
providing, AMONG OTHER THINGS, for certain restrictions on transfer WITHOUT THE
CONSENT OF THE cOMPANY. A COPY OF SUCH SECURITIES PURCHASER AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE COMPANY."
6.4 Entire Agreement. This Agreement, the exhibits hereto, 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 this 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 Further Assurances. Each party agrees to execute such other
documents, instruments, agreements and consents, and take such other actions as
may be reasonable requested by the other parties hereto to effectuate the
purposes of this Agreement.
6.7 Amendment and Waiver. This Agreement may be amended, modified or
waived only upon the written consent of the Company and the Purchaser.
6.8 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement or the
Registration Rights Agreement, shall impair any such right, power or remedy, nor
shall it be construed to be a waiver of any such breach, default or
noncompliance, or any acquiescence therein, or of or in any similar breach,
default or noncompliance thereafter occurring. It is further agreed that any
waiver, permit, consent or approval of any kind or character on the Purchaser's
part of any breach, default or
14
noncompliance under this Agreement or the Registration Rights Agreement or any
waiver on such party's part of any provisions or conditions of this Agreement or
the Registration Rights Agreement, must be in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement or the Registration Rights Agreement, by law, or otherwise
afforded to any party, shall be cumulative and not alternative.
6.9 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 and the Purchaser at the addresses as set forth on the signature page
hereof or at such other address as the Company or the Purchaser may designate by
ten (10) days advance written notice to the other parties hereto.
6.10 Fees and Expenses. Each party shall pay all costs, fees and
expenses that it incurs with respect to the negotiation, execution, delivery and
performance of this Agreement; provided, however, that the Company shall
reimburse the reasonable fees and expenses of Purchaser (not to exceed $50,000)
pursuant to Section 5.1(j) from the first proceeds received at Closing.
6.11 Attorneys' Fees. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the prevailing party in
such dispute shall be entitled to recover from the losing party all fees, costs,
and expenses of enforcing this Agreement, including without limitation, such
reasonable fees and expenses of attorneys and accountants.
6.12 Titles and Subtitles. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.13 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.
6.14 Pronouns. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
6.15 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAWS PROVISIONS). EACH OF
THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK AND OF THE FEDERAL COURTS SITTING IN THE
STATE OF NEW YORK IN ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT. EACH OF THE PARTIES AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE LITIGATED EXCLUSIVELY IN
ANY SUCH STATE OR FEDERAL COURT
15
THAT SITS IN THE CITY OF NEW YORK, AND ACCORDINGLY, EACH PARTY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH LITIGATION IN ANY SUCH COURT.
6.16 WAIVER OF JURY TRIAL. EACH PARTY HEREBY AGREES THAT ANY ACTION OR
PROCEEDING RELATING TO OR ARISING OUT OF, WHETHER DIRECTLY OR INDIRECTLY, THIS
AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT (A "LITIGATION"), SHALL BE TRIED
WITHOUT A JURY. TO THAT END, EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY
JURY OF ANY LITIGATION AND CERTIFIES THAT NO PERSON HAS REPRESENTED OR IMPLIED
TO IT THAT, IN THE EVENT OF LITIGATION, IT WOULD NOT SEEK TO ENFORCE THE
FOREGOING AGREEMENT AND WAIVER. THE PARTIES ACKNOWLEDGE THAT THEY HAVE BARGAINED
FOR THE TERMS SET FORTH IN THIS SECTION 6.16 AND, AS SUCH, THESE TERMS ARE A
PART OF THE CONSIDERATION EXCHANGED TO ENTER INTO THIS AGREEMENT.
6.17 General. All Exhibits are hereby incorporated by reference and
made a part of this Agreement.
7 POST-CLOSING COVENANTS
7.1 Board of Directors.
(a) From and after the date of this Agreement and until the
provisions of this Section 7 cease to be effective, the Company shall use its
best efforts to cause its stockholders to vote such shares over which each
stockholder has voting control, and will take all other necessary or desirable
actions within his or its control (whether in his or its capacity as a
stockholder, director, member of a Board committee or officer of the Company or
otherwise), and the Company will take all necessary and desirable actions within
its control, in order to cause:
(i) the election to the Company's Board of Directors of one
representative designated by the Purchaser;
(ii) Removal from the Board with or without cause of any
such representative at the written request of the Purchaser, but
only upon such written request and under no other circumstances;
and
(iii) in the event that any representative designated
hereunder for any reason ceases to serve as a member of the Board
during his or her term of office, the resulting vacancy on the
Board shall be filled by a representative designated by the
Purchaser.
(b) The provisions of this Section 7 will terminate automatically
and be of no further force and effect at such time as the Purchaser ceases to
own, legally or beneficially, a majority of the shares purchased by it under the
terms of this Agreement.
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(c) In the event the Purchaser elects not to designate a
representative to be elected to the Board pursuant to this Section 7, then the
Company shall allow one representative designated by the Purchaser to attend all
meetings of the Company's Board of Directors in a nonvoting capacity.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, each of the parties has caused this SECURITIES
PURCHASE AGREEMENT to be duly executed and delivered as of the date first above
written.
COMPANY:
RAKO CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
CENTRA:
CENTRA INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
PURCHASER:
STANFORD VENTURE CAPITAL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President