STOCK PURCHASE AGREEMENT
BY AND AMONG
ASHA CORPORATION,
ALAIN ▇-▇ ▇▇▇▇▇▇,
AND
GREENMOTORS LLC
STOCK PURCHASE AGREEMENT
AGREEMENT, made as of the 8th day of January 1998, by and among ASHA
Corporation, a Delaware corporation (the "Company"), Alain ▇-▇ ▇▇▇▇▇▇
("Seller"), and Greenmotors LLC, a Delaware limited liability company
("Purchaser").
WHEREAS, Purchaser desires to purchase 1,118,652 shares of the Common
Stock, $.00001 par value per share, of the Company (the "Common Stock") held
by the Seller, and the Seller desires to sell to Purchaser 1,118,652 shares
of Common Stock of the Company, in exchange for the consideration and upon the
terms described herein; and
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection with such sale of Common
Stock and also desire to prescribe various conditions precedent to such sale.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
provisions, and representations contained herein, THE PARTIES HERETO AGREE AS
FOLLOWS:
ARTICLE 1
SALE
1.1 Sale and Delivery of Common Stock. Subject to all the terms and
conditions of this Agreement, the Seller shall transfer and convey to
Purchaser at the Closing (as defined in paragraph 1.3 hereof) good, valuable
and marketable title to 1,118,652 shares of Common Stock, free and clear of
all liens, claims and encumbrances (except as described in Sections 1.2 and
2.2 hereof) in exchange for the consideration described in paragraph 1.4
hereof. The consideration described in paragraph 1.4 hereof shall be wired at
the Closing to whatever account is designated by the Seller in writing to the
Purchaser at least 3 business days prior to the Closing.
1.2 The parties understand and agree that the certificates for the
shares being sold in this transaction are being held in escrow as described in
paragraph 2.2 below, and on the Closing, certificates representing 1,118,652
shares in the name of Seller will be canceled and one new certificate will be
issued in the name of Purchaser in the amount of 1,118,652 shares. The new
certificate for the Purchaser and any certificates for shares of the Seller
not being sold in this transaction will remain in escrow subject to the terms
of separate promotional share escrow agreements.
1.3 Effective Date and Closing. The Closing of the transaction
contemplated herein (the "Closing") shall occur on January 8, 1998, at a
mutually agreeable time and place or as soon thereafter as reasonably
practicable (the "Closing Date") following the date on which all of the
obligations and conditions precedent contained herein are complied with.
1.4 Purchase Price. Subject to all of the other terms and
conditions set forth in the Agreement and in reliance on the representations,
warranties and covenants hereinafter set forth, Purchaser shall deliver to
Seller cash in the amount of $3,000,000 ($2.6818 per share) (hereinafter
referred to as the "Purchase Price").
1.5 Termination Date. If this transaction has not closed by January
9, 1998, this Agreement shall be automatically terminated and none of the
parties shall have any obligations hereunder except that such termination
shall not waive any breaches of the terms of this Agreement arising prior
thereto.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into this Agreement, Seller
hereby represents and warrants to Purchaser that:
2.1 Share Ownership. The 1,118,652 shares of Common Stock to be
sold hereunder are owned of record and beneficially by the Seller, and such
shares are not subject to any claim, lien, encumbrance or pledge, except as
set forth in Section 2.2 hereof. Seller has authority to sell and exchange
such shares pursuant to this Agreement. After the Closing and the
simultaneous sale of another 559,326 shares by the Seller to four other
parties, Seller will continue to have record and beneficial ownership of
291,722 shares of the Common Stock and options to purchase 19,728 shares of
the Common Stock.
2.2 Restriction of Shares. The 1,118,652 shares of Common Stock to
be sold by Seller are presently held in an escrow account with TranSecurities
International, Inc. subject to the terms of a Promotional Shares Escrow
Agreement dated June 26, 1997, true copies of which, and amendments thereto,
if any, are attached hereto as Exhibit A. In addition, the 1,118,652 shares
of Common Stock are subject to a lock-up agreement between the Seller and ▇.▇.
▇▇▇▇▇▇ & Co., Inc., true copies of which, and amendments thereto, if any, are
attached hereto as Exhibit B.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY
As an inducement to Purchaser to enter into this Agreement, Seller
and the Company hereby represent and warrant to the Purchaser that:
3.1 Capitalization. The authorized capital stock of the Company
consists of 20,000,000 shares of Common Stock of which 8,663,158 shares of
Common Stock are currently issued and outstanding, and 10,000,000 shares of
$.001 par value Preferred Stock of which no shares are issued and outstanding.
All of the issued and outstanding shares of Common Stock are duly authorized,
validly issued, fully paid and nonassessable. Other than 1,162,827 shares of
Common Stock underlying options granted under the Company's Stock Option Plan,
125,000 shares of Common Stock underlying warrants issued to ▇.▇. ▇▇▇▇▇▇ &
Co., Inc., 93,100 shares of Common Stock underlying options granted to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, and 18,750 shares of Common Stock underlying warrants to Montecito
Bank, there are no outstanding subscriptions, options, rights, warrants,
convertible securities, or other agreements or commitments obligating the
Company to issue or to transfer from treasury any additional shares of its
capital stock of any class.
3.2 SEC Filings. Since January 1, 1995, the Company has filed with
the Securities and Exchange Commission ("SEC") all registration statements,
financial statements, reports, schedules, forms, proxy statements and all
other documents and written information (collectively "SEC filings") required
to have been filed by the Company under the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended. As the date
hereof, none of the SEC filings contains, or, at the Closing Date, will
contain any untrue statement of a material fact or omits or will omit to state
a material fact necessary in order to make the statements contained therein,
in light of the circumstances in which they were made, not misleading.
3.3 Undisclosed Liabilities. Neither the Company nor any of its
properties or assets are subject to any material liabilities or obligations of
any nature, whether absolute, accrued, contingent or otherwise and whether due
or to become due, that are not reflected in the Company's financial statements
included in the Form 10-QSB for the three months ended June 30, 1997, other
than liabilities incurred in the normal course of operations since June 30,
1997. This Warranty by Seller is to the best of Seller's knowledge.
3.4 Authority. The Company has full corporate power and authority
to enter into this Agreement, the Registration Rights Agreement and any other
agreements, documents or instruments to be executed and delivered by the
Company pursuant to the provisions hereof or thereof (collectively the
"Transaction Documents") and to consummate the transactions contemplated by
the Transaction Documents. The Board of Directors of the Company has taken all
action required to authorize the execution and delivery of the Transaction
Documents by or on behalf of the Company and the performance of the
obligations of the Company under the Transaction Documents. No other
corporate proceedings on the part of the Company are necessary to authorize
the execution and delivery of the Transaction Documents by the Company or the
performance of its obligations under the Transaction Documents. The
Transaction Documents are, and when executed and delivered by the Company will
be, valid and binding agreements of the Company, enforceable against the
Company in accordance with their respective terms, except as such
enforceability may be limited by general principles of equity, bankruptcy,
insolvency, moratorium and similar laws relating to creditors' rights
generally.
3.5 Ability to Carry Out Obligations. Neither the execution and
delivery of the Transaction Documents, the performance by the Company of its
obligations under the Transaction Documents, nor the consummation of the
transactions contemplated under the Transaction Documents will, to the best of
the Company's knowledge: (a) violate any provision of the Company's articles
of incorporation or bylaws; (b) with or without the giving of notice or the
passage of time, or both, violate, or be in conflict with, or constitute a
default under, or cause or permit the termination or the acceleration of the
maturity of, any debt, contract, agreement or obligation of the Company, or
require the payment of any prepayment or other penalties; (c) other than the
consent of the Securities Examination Division of the State of Michigan (the
"Division") and the consent of ▇.▇. ▇▇▇▇▇▇ & Co., Inc., true and correct
copies of which are attached hereto as Exhibits C and D, respectively, and the
waiver by the parties to the Promotional Shares Escrow Agreement dated June
26, 1997, of the conditions to the transfer of the Common Stock pursuant to
this Agreement, all of which have been obtained, require notice to, or the
consent of, any party to any agreement or commitment, lease or license, to
which the Company is bound; (d) result in the creation or imposition of any
security interest, lien or other encumbrance upon any property or assets of
the Company; or (e) violate any statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority to which the Company
is bound or subject.
3.6 Consents and Approvals. Other than the consent of the Division,
the consent of ▇.▇. ▇▇▇▇▇▇ & Co., Inc., and the consent of the Seller's
spouse, all of which have been obtained and the entering into of new
Promotional Share Escrow Agreements by the Seller and the Purchaser in the
forms of Exhibits G and J, respectively, no consent, approval or authorization
of, or declaration, filing or registration with, any governmental or
regulatory authority or any other person is required to be made or obtained by
the Company and the Seller in connection with: (a) the execution and delivery
by the Company and the Seller of the Transaction Documents; (b) the
performance by the Company and the Seller of their obligations under the
Transaction Documents; or (c) the consummation by the Company and the Seller
of the transactions contemplated by the Transaction Documents.
3.7 Status of Shares. Upon the sale and transfer of the shares
being sold hereunder, the Purchaser will be the record and beneficial owner of
1,118,652 shares of the Common Stock, and such shares will be fully paid and
non-assessable, free and clear of all mortgages, pledges, liens, security
interests, encumbrances, and, except as set forth in Exhibits G and I hereto,
restrictions of every nature.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to the Company and the Seller to enter into this
Agreement, the Purchaser represents and warrants to the Company and Seller
that:
4.1 Purchaser's Status. Purchaser represents that it is a
sophisticated investor with experience in making investments of this type and
is an Accredited Investor as that term is defined in Rule 501(a) under the
Securities Act of 1933, as amended.
4.2 Investment Intent. Purchaser is purchasing the Common Stock for
its own account for investment purposes and not with a view to public
distribution. Purchaser has the capacity to evaluate the merits and risks of
the acquisition of the Common Stock and understands that the Common Stock is
subject to resale restrictions under various state and federal securities
laws.
4.3 Information Provided. Purchaser represents that it has not been
provided any information concerning the Company by the Seller, except for
information set forth or referred to in this Agreement, and Purchaser is not
relying on any representations or warranties of the Seller except for those
set forth in this Agreement.
ARTICLE 5
COVENANTS
5.1 Investigative Rights. From the date of this Agreement until the
Closing Date, the Company shall provide to Purchaser, and its counsel,
accountants, auditors, and other authorized representatives, reasonable access
to all of the Company's properties, books, contracts, commitments, and
records for the purpose of examining the same. The Company shall furnish
Purchaser with all information concerning its affairs as Purchaser may
reasonably request. Without in any manner reducing or otherwise mitigating
the representations contained herein, Purchaser and/or its representatives
shall have the opportunity to meet with accountants and attorneys to discuss
the financial condition of the Company. If the transaction contemplated
hereby is not completed, all documents received by Purchaser and/or its
attorneys and accountants shall be returned to the Company upon request.
5.2 Seller's Cooperation After the Closing; Further Action. At any
time and from time to time after the Closing, the Seller shall execute and
deliver to Purchaser such other instruments and take such other actions as the
Purchaser may reasonably request to more effectively vest title to the Common
Stock in the Purchaser. Each of the parties hereto shall use all reasonable
efforts to take, or cause to be taken, all appropriate action, do or cause to
be done all things necessary, proper or advisable under applicable laws, and
execute and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and to consummate and make
effective the transactions contemplated hereby.
5.3 Undertaking Regarding Becoming "Covered Securities." The
Company undertakes and agrees that, as soon as the Company meets the
requirements, it will take all reasonable steps necessary to have the Common
Stock being purchased by the Purchaser pursuant to this Agreement become
"Covered Securities" as such term is defined by the National Securities
Markets Improvement Act of 1996.
ARTICLE 6
CONDITIONS PRECEDENT TO PURCHASER'S PERFORMANCE
6.1 Conditions. Purchaser's obligations hereunder shall be subject
to the satisfaction, at or before the Closing, of all the conditions set forth
in this Article 6. Purchaser may waive any or all of these conditions in
whole or in part without prior notice, so long as such waiver is in writing;
and provided, however, that no such waiver of a condition shall constitute a
waiver by Purchaser of any other condition or any of Purchaser's other rights
or remedies, at law or in equity, if the Company and/or Seller shall be in
default of any of their representations, warranties, or covenants under this
Agreement.
6.2 Accuracy of Representations. Except as otherwise permitted by
this Agreement, all representations and warranties by the Company and Seller
in this Agreement or in any written statement that shall be delivered to
Purchaser by the Seller or the Company under this Agreement shall be true and
accurate when made and on and as of the Closing Date with the same force and
affect as if made at the Closing. The Company and the Seller shall deliver a
certificate to such effect dated the Closing Date.
6.3 Performance. The Company and Seller shall have performed,
satisfied, and complied with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by them, on or
before the Closing Date.
6.4 Absence of Litigation. No action, suit, or proceeding before
any court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against any party hereto on or before the Closing
Date.
6.5 Closing Documents. The Company and the Seller shall deliver the
closing documents to be delivered by them as set forth in Article 9 of this
Agreement.
6.6 Separation Agreement. The Company and the Seller shall have
entered into the Separation Agreement substantially in the form attached
hereto as Exhibit E.
6.7 Due Diligence. The Purchaser shall be satisfied in its
reasonable discretion with the results of its due diligence investigation of
the Company.
6.8 Legal Opinion. Purchaser shall have received the written
opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, dated
the Closing Date, substantially in the form attached hereto as Exhibit F.
6.9 Promotional Shares Escrow Agreement. All actions required by
the December 12, 1997, letter from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the Director of the
Division, shall have been taken and all documents required thereby shall have
been executed and delivered to the Division pursuant to such letter, except
that the new escrow agreements, in the form attached hereto as Exhibit G, may
be provided to the Division within three (3) business days after the Closing.
6.10 ▇.▇. ▇▇▇▇▇▇ Consent. The Company shall have provided a letter
from ▇.▇. ▇▇▇▇▇▇ & Co., Inc., pursuant to which ▇.▇. ▇▇▇▇▇▇ & Co., Inc.
consents to the sale of a total of 1,677,978 shares of Common Stock which
includes the 1,118,652 shares of Common Stock being sold by Seller to
Purchaser pursuant to this Agreement. A true copy of that letter is attached
hereto as Exhibit D.
6.11 Registration Rights Agreement. The Company shall have executed
and delivered the Registration Rights Agreement attached hereto as Exhibit H.
ARTICLE 7
CONDITIONS PRECEDENT TO THE SELLER'S PERFORMANCE
7.1 Conditions. The Seller's obligations hereunder shall be subject
to the satisfaction, at or before the Closing, of all the conditions set forth
in this Article 7. The Seller may waive any or all of these conditions in
whole or in part without prior notice; so long as such waiver is in writing;
and provided, however, that no such waiver of a condition shall constitute a
waiver by the Seller of any other condition of or any of the Seller's rights
or remedies, at law or in equity, if Purchaser shall be in default of any of
its representations, warranties, or covenants under this Agreement.
7.2 Accuracy of Representations. Except as otherwise permitted by
this Agreement, all representations and warranties by Purchaser in this
Agreement or in any written statement that shall be delivered to the Seller
by Purchaser under this Agreement shall be true and accurate on and as of the
Closing Date as through made at that time.
7.3 Performance. Purchaser shall have performed, satisfied, and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it, on or before the Closing
Date.
7.4 The conditions set forth in Sections 6.9 and 6.10 shall have
been met.
ARTICLE 8
BOARD SEAT FOR PURCHASER
8.1 Immediately after the Closing, Purchaser shall have the right to
select one member of the Company's Board of Directors. The director to be
selected by Purchaser shall serve until the next annual meeting of the
Company's shareholders. Thereafter, the Company will have such member
renominated for an additional three terms of office, and the Company's
officers and directors will agree to vote their shares to re-elect such
member. If such person is unable to continue serving on the Board for any
reason during this period, Purchaser shall be entitled to select a substitute
and the Company will use its best efforts to add the substitute to the Board,
and the Company's officers and directors will agree to vote their shares to
re-elect such member during the period described in the sentence above. If
for any reason during this period a person selected by Purchaser is not then
serving, Purchaser shall have the right to designate one representative to be
a non-voting observer to receive notice of and to attend all meetings of the
Company's Board of Directors, and to receive copies of any written consents or
minutes. Such individual shall be reimbursed by the Company for all
out-of-pocket expenses incurred in connection with attending such meetings.
ARTICLE 9
CLOSING
9.1 Closing. The Closing of this transaction shall be held at the
offices of ▇▇▇▇▇▇, Sheffield & ▇▇▇▇▇▇, Santa Barbara, California, or such
other place as shall be mutually agreed upon, and on such date as shall be
mutually agreed upon by the parties. At the Closing:
(a) Purchaser shall deliver wired funds for the Purchase Price.
(b) Seller shall deliver to TranSecurities International, Inc.,
the Company's transfer agent a medallion guaranteed stock power authorizing
the transfer of 1,118,652 shares of the Common Stock to Purchaser.
(c) The Company and Seller shall deliver an executed copy of
the Separation Agreement between the Seller and the Company.
(d) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall deliver to
Purchaser the legal opinion referred to in paragraph 6.8 hereof.
(e) The Company shall provide the written consent from ▇.▇.
▇▇▇▇▇▇ & Co., Inc. required in Seller's lock-up letter, a true and correct
copy of which, together with all amendments, if any, is attached hereto as
Exhibit D.
(f) Purchaser shall deliver an executed copy of a new
Promotional Shares Escrow Agreement, a copy of which is attached hereto as
Exhibit G.
(g) Purchaser shall deliver an executed lock-up letter
addressed to ▇.▇. ▇▇▇▇▇▇ & Co., Inc. in the form attached hereto as Exhibit I.
(h) Each party shall deliver such other documents or
information required to be furnished by Closing pursuant to this Agreement.
(i) The Company shall deliver an executed copy of the
Registration Rights Agreement which is attached hereto as Exhibit H.
(j) The Company and the Seller shall each deliver a
certificate, as described in Section 6.2 hereof, dated the Closing Date, that
all representations and warranties by the Company and the Seller set forth in
this Agreement or in any written statement that shall be delivered to
Purchaser by the Seller or the Company under this Agreement are true and
accurate when made and on the Closing Date with the same force and effect as
if made at the Closing.
(k) Seller shall deliver an executed copy of a new Promotional
Shares Escrow Agreement, a copy of which is attached hereto as Exhibit J.
(l) Seller shall deliver a document executed by the Seller's
spouse in form satisfactory to Purchaser in which Seller's spouse consents to
this transaction.
(m) ▇▇▇▇▇▇, Sheffield & ▇▇▇▇▇▇ shall deliver to Purchaser a
legal opinion in the form attached hereto as Exhibit K.
ARTICLE 10
MISCELLANEOUS
10.1 Captions and Headings. The Article and paragraph/section
headings through this Agreement are for convenience and reference only, and
shall in no way be deemed to define, limit, or add to the meaning of any
provision of this Agreement.
10.2 No Oral Change. This Agreement and any provision hereof, may
not be waived, changed modified, or discharged orally, but it can be changed
by an agreement in writing signed by the parties hereto.
10.3 Entire Agreement. This Agreement contains the entire Agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings of the parties relating to the subject matter
hereof.
10.4 Choice of Law. This Agreement and its application shall be
governed by the laws of the State of Delaware.
10.5 Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
10.6 Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of receipt if served personally on the party
to whom notice is to be given, by telecopy or telegram, or mailing if mailed
to the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed as follows:
Purchaser:
Greenmotors LLC
c/o Greenway Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President and Chief Executive Officer
The Company:
ASHA Corporation
▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Seller:
Alain ▇-▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
10.7 Binding Effect. This Agreement shall inure to and be binding
upon the heirs, executors, personal representatives, successors and assigns of
each of the parties to this Agreement.
10.8 Brokers. The parties hereto represent that no broker has
brought about this transaction. Each of the parties hereto shall indemnify
and hold the other harmless against any and all claims, losses, liabilities or
expenses which may be asserted against it as a result of its dealings,
arrangements or agreements with any broker, finder or person.
10.9 Announcements. Purchaser, Seller and the Company will consult
and cooperate with each other as to the timing and content of any
announcements of the transactions contemplated hereby to the general public or
to employees, customers or suppliers.
10.10 Survival of Representations and Warranties. The
representations, warranties, covenants and agreements of the parties set forth
in this Agreement or in any instrument, certificate, opinion, or other writing
providing for in it, shall survive the Closing for a period of five
years irrespective of any investigation made by or on behalf of any party.
10.11 Assignment. This Agreement may not be assigned by
operation of law or otherwise by the Seller, the Company or the Purchaser.
10.12 No Third Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other person, including, without limitation, any
employee or former employee of the Company, any legal or equitable right,
benefit or remedy of any nature whatsoever.
10.13 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity without the necessity of demonstrating the
inadequacy of monetary damages.
AGREED TO AND ACCEPTED as of the date first above written.
THE COMPANY: THE SELLER:
ASHA CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ Alain ▇-▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President Alain ▇-▇ ▇▇▇▇▇▇
PURCHASER:
GREENMOTORS LLC
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President