SPACEDEV, INC. STOCK PURCHASE AGREEMENT
Exhibit
99.1
This
Agreement (the “Agreement”) is made as of the 4th day of December, 2007
(the “Effective Date”), by and among SpaceDev, Inc., a Delaware
corporation (the “Company”), and Loeb Partners Corporation (the
“Purchaser”), as set forth on the Schedule of Purchasers
(the “Schedule of Purchasers”) set forth on Exhibit A.
Agreement
In
consideration of the mutual covenants contained in this Agreement and for
other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Company and Purchaser hereby agree as follows:
SECTION
1. Agreement
To Sell And Purchase The Shares
1.1 Authorization
Of Shares. Subject to the terms and conditions of this
Agreement, the Company has, or before the Closing (as defined below) will
have,
authorized the sale and issuance to Purchaser of up to
3,750,000 shares (the “Shares”) of the Company’s Common
Stock, $0.0001 par value (the “Company Common Stock”). The parties
acknowledge that the Company has authorized the sale and issuance to OHB
Technology AG and/or MT Aerospace AG (or each of their affiliates) of an
additional 877,563 shares of Company Common Stock on terms and conditions
no
more favorable than as set forth in this Agreement.
1.2 Sale
And Purchase Of Shares. At the Closing (as defined in
Section 2), the Company shall issue and sell to Purchaser and Purchaser
shall purchase from the Company, the Shares at a purchase price per share
of
Company Common Stock equal to $0.75 per share of Company Common Stock (the
“Purchase Price”).
SECTION
2. Closing
And Delivery.
2.1 Closing. The
closing of the purchase and sale of the Shares to be issued pursuant to this
Agreement (the “Closing”) shall be held at the offices of Holland & ▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on the date
hereof or on such other date and place as may be agreed to by the Company
and
the Purchaser.
2.2 Delivery
Of The Shares. Promptly following the Closing, but in no
event later than five business days following the Closing, the Company shall
deliver to Purchaser a certificate representing the number of Shares to be
purchased at the Closing by Purchaser, or in such nominee name(s) as designated
by Purchaser, against payment of the aggregate Purchase Price by wire
transfer.
1
SECTION
3. Representations,
Warranties And Covenants Of The Company.
Subject
to and except as set forth on the Schedule of Exceptions which is arranged
in
Sections corresponding to the sub-section numbered provisions contained below
in
this Section and except as described in the SEC Reports (as defined below),
the
Company (which for the purposes of this Section 3 shall be deemed to include
each of its subsidiaries) hereby represents and warrants to, and covenants
with,
the Purchaser as follows:
3.1 Organization
And Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State
of
Delaware and has all requisite corporate power and authority and all licenses,
permits and authorizations to (a) conduct its business as it is currently
being conducted and as it is presently proposed to be conducted, (b) execute
and
deliver this Agreement and the Stockholder Agreement substantially in the
form
attached hereto as Exhibit B (the “Stockholder Agreement” and collectively with
this Agreement, the “Agreements”), (c) issue and sell the Shares and (d) carry
out the provisions of the Agreements. The Company is duly qualified
and is authorized to transact business and is in good standing as a foreign
corporation in each jurisdiction in which the failure so to qualify,
individually or in the aggregate, would have a material adverse effect on
its
business, assets, liabilities, operations, financial condition or
prospects.
3.2 Due
Execution, Delivery And Performance Of The
Agreements. The Company’s execution,
delivery and performance of the Agreements have been duly authorized by all
requisite corporate and stockholder action by the Company and its stockholders,
respectively. Upon the execution and delivery of the Agreements by
the Company, and assuming the valid execution and delivery of the Agreements
by
the Purchaser, the Agreements will constitute valid and binding obligations
of
the Company, enforceable in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ and contracting
parties’ rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding in equity or at law), including specific performance.
3.3 No
Conflicts. The Company’s execution, delivery and performance
of the Agreements and the issuance of the Shares will not violate, conflict
with, result in a breach of or constitute (upon notice or lapse of time or
both)
a default under, or result in the creation or imposition of any lien, security
interest, mortgage, pledge, charge or other encumbrance, of any material
nature,
upon any properties or assets of the Company under any (a) law, regulation,
rule, injunction, judgment, order, decree, ruling, charge or other restriction
of any U.S. federal or state government, governmental agency, court or
arbitrator to which the Company is subject, (b) the Company’s Certificate
of Incorporation or Bylaws of the Company or (c) any provision of any
material indenture, mortgage, agreement, contract or other material instrument
to which the Company is a party or by which the Company or any of its properties
or assets is bound as of the date hereof.
3.4 Governmental
Consents. No consent, approval, qualification, order or
authorization of, or filing with, any local, state, or federal governmental
authority is required on the part of the Company in connection with the
Company’s valid execution, delivery, or performance of the Agreements, or the
offer, sale or issuance of the Shares by the Company, other than (a) any
post-closing filings as may be required under applicable federal or state
laws,
which will be timely filed within the applicable periods therefore and (b)
notification to the U.S. State Department pursuant to 22 C.F.R.
122.4(b).
2
3.5 Issuance
And Sale Of The Shares. When issued and paid for in
accordance with this Agreement, the Shares to be sold hereunder by the Company
will be validly issued and outstanding, fully paid and
non-assessable. The issuance and sale of the Shares is not subject to
any preemptive rights or rights of first refusal that have not been properly
waived or complied with.
3.6 Sec
Reports.
a. Since
July 1, 2006, the Company has filed with the Securities and Exchange Commission
(the “SEC”) all reports (“SEC Reports”) required to be filed by it under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”). All
of the SEC Reports filed by the Company complied in all material respects,
as of
the respective dates thereof, with the requirements of the Exchange
Act. None of the SEC Reports contained, as of the respective dates
thereof, any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were
made. All financial statements contained in the SEC Reports were
prepared in accordance with U.S. generally accepted accounting principles
consistently applied throughout the periods indicated (“GAAP”). Each
balance sheet presented fairly in accordance with GAAP the financial position
of
the Company as of the date of such balance sheet, and each statement of
operations, of stockholders’ equity and of cash flows presented fairly in
accordance with GAAP the results of operations, the stockholders’ equity and the
cash flows of the Company for the periods then ended.
b. The
Company has delivered to the Purchaser the following SEC Reports:
i. the
Company’s Annual Report on Form 10-KSB for the fiscal year ended December
31, 2006 (without exhibits);
ii. the
Company’s Quarterly Reports on Form 10-QSB as filed with the SEC for the
quarters ended March 31, 2007, June 30, 2007 and September 30, 2007
(without exhibits);
iii. the
Company’s Proxy Statement for the 2007 Annual Meeting of
Stockholders.
c. No
event
has occurred since November 14, 2007, requiring the filing of an SEC Report
that
has not heretofore been filed and furnished to the Purchaser (including,
without
limitation, any amendment to any such SEC Report).
3.7 Liabilities. The
Company has no material liabilities and, to the best of its knowledge, knows
of
no material contingent liabilities, except current liabilities incurred in
the
ordinary course of business subsequent to September 30, 2007 which have not
been, either in any individual case or in the aggregate, materially
adverse.
3.8 No
Material Change. Since September 30, 2007, there has been no
material adverse change, individually or in the aggregate, in the assets,
liabilities, financial condition or operations of the Company and its
subsidiaries, taken as a whole.
3
3.9 Capitalization. The
authorized capital stock of the Company consists of (i) 100,000,000 shares
of Common Stock, $0.0001 par value per share, of which
37,676,808 such shares were issued and outstanding as of
December 3, 2007 and (ii) 10,000,000 shares of preferred stock, $0.001 par
value per share (the “Preferred Stock”), of which (A) 250,000 shares are
designated Series C Convertible Preferred Stock, 248,460 of which are issued
and
outstanding on the date hereof and (B) 5,150 shares are designated Series
D-1
Convertible Preferred Stock, 3,453.7035 of which are issued and outstanding
on
the date hereof. The rights, preferences and privileges of the
Preferred Stock are set forth in the Company’s Articles of Incorporation, as
amended, including the Certificate to Set Forth Designations, Voting Powers,
Preferences, Limitations, Restrictions, and Relative Rights of Series C
Convertible Preferred Stock, $0.001 Par Value Per Share and the Certificate
to
Set Forth Designations, Voting Powers, Preferences, Limitations, Restrictions
and Relative Rights of Series D-1 Amortizing Convertible Perpetual Preferred
Stock, $0.001 Par Value Per Share. Except as contemplated by the
Stockholder Agreement and the Stockholder Agreement, dated September 14,
2007,
as amended among OHB Technology AG, MT Aerospace AG and the Company (the
“OHB/MT
Agreement”), there are no existing options, warrants, calls, preemptive (or
similar) rights, subscriptions or other rights, agreements, arrangements
or
commitments of any character obligating the Company to issue, transfer or
sell,
or cause to be issued, transferred or sold, any shares of capital stock of
the
Company or other equity interests in the Company or any securities convertible
into or exchangeable for such shares of capital stock or other equity interests,
and there are no outstanding contractual obligations of the Company to
repurchase, redeem or otherwise acquire, any such shares of capital stock
or
other equity interests.
3.10 Absence
Of Litigation. There is no action, suit, proceeding or
investigation pending or, to the Company’s knowledge, overtly threatened, by or
before any governmental agency, court or arbitrator against the Company which
questions the validity of the Agreements or the right of the Company to enter
in
the Agreements, or to consummate the transactions contemplated hereby or
thereby, or which would reasonably be expected to result either individually
or
in the aggregate, in any material adverse change in the business, assets,
liabilities, financial condition, operations or prospects of the
Company.
3.11 Securities
Act Exemption. Assuming and relying in part on the truth and
accuracy of Purchaser’s representations and warranties in Section 4 of this
Agreement, the offer, sale and issuance of the Shares is exempt from
registration under the Securities Act of 1933, as amended (the “Securities
Act”).
3.12 Trading. No
order ceasing or suspending trading in securities of the Company is currently
outstanding, and no proceeding for this purpose has been instituted or, to
the
Company’s knowledge, is pending or threatened.
3.13 Obligations
to Related Parties. There are no obligations of the
Company to officers, directors or stockholders of the Company other than
(a) for payment of salary for services rendered, (b) reimbursement for
reasonable expenses incurred on behalf of the Company and (c) for other
standard employee benefits made generally available to all employees (including
stock option agreements outstanding under any stock option plan approved
by the
Board of Directors of the Company). None of the officers, directors
or stockholders of the Company or any members of their immediate families,
are
indebted to the Company or have any direct or indirect ownership interest
in any
firm or corporation with which the Company is affiliated or with which the
Company has a business relationship, or any firm or corporation which competes
with the Company, other than passive investments in publicly traded companies
(representing less than 1% of such company) which may compete with the
Company. No officer, director or stockholder, or any member of their
immediate families, is, directly or indirectly, interested in any material
contract with the Company (other than such contracts as relate to any such
person’s ownership of capital stock or other securities of the
Company).
4
3.14 Title
to Properties and Assets; Liens, Etc. The
Company has good and marketable title to its properties and assets, including
the properties and assets reflected in the most recent balance sheet included
in
the SEC Reports, and good title to its leasehold estates, in each case subject
to no mortgage, pledge, lien, lease, encumbrance or charge, other than
(a) those resulting from taxes which have not yet become delinquent,
(b) 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, (c) those that have otherwise arisen in the ordinary course of
business, including equipment leases and (d) the security interest held by
Laurus Master Fund, Ltd.
3.15 Intellectual
Property. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business as presently proposed, would violate any of the patents, trademarks,
service marks, trade names, copyrights or trade secrets or other proprietary
rights of any other person or entity.
3.16 Registration
Rights. Other than currently effective registration
statements and other than in the OHB/MT 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.
3.17 Compliance
with Laws; Permits. To its knowledge, the Company is
not in violation of any applicable statute, rule, regulation, 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 would materially and adversely affect, individually
or in the aggregate, the business, assets, liabilities, financial condition
or
operations of the Company. The Company has all franchises, permits,
licenses and any similar authority necessary for the conduct of its business
as
now being conducted by it, the lack of which could materially and adversely
affect, individually or in the aggregate, the business, properties or financial
condition of the Company.
3.18 Customer
Contracts. The Company has not received written notice from
any of its customers alleging that that any such customer intends to materially
amend or terminate any material contract or asserting that the Company is
in
breach of the terms of any such material contract.
3.19 Delaware
Anti-Takeover Statute. The Company has not opted out of
Section 203 of the Delaware General Corporate Law in its Certificate of
Incorporation.
5
3.20 Tax
Returns and Payments. The Company has filed all tax returns
(federal, state and local) required to be filed by it. All taxes
shown to be due and payable on such returns and any assessments imposed have
been paid or will be paid prior to the time they become
delinquent. The Company has not been advised (a) that any of its
returns, federal, state or other, have been or are being audited as of the
date
hereof, or (b) of any deficiency in assessment or proposed judgment to its
federal, state or other taxes.
SECTION
4. Representations,
Warranties And Covenants Of The Purchaser.
Purchaser
represents and warrants to and covenants with the Company that:
4.1 Authority,
Approval And Enforceability.
a. Purchaser
has full power and authority to execute, deliver and perform its obligations
under this Agreement and all agreements, instruments and documents contemplated
hereby, and all action of Purchaser necessary for such execution, delivery
and
performance has been duly taken.
b. Purchaser’s
execution, delivery and performance of the Agreements have been duly authorized
by all requisite action by Purchaser. Upon the execution and delivery
by Purchaser, and assuming the valid execution and delivery of the Agreements
by
the Company, the Agreements will constitute a valid and binding obligations
of
Purchaser, enforceable in accordance with their terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ and contracting parties’ rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in
equity or at law), including specific performance.
4.2 Export
Controls. Purchaser acknowledges that the
Company, its employees and its agents are subject to U.S. export control
laws
that prohibit or restrict (i) transactions with certain parties, and (ii)
the
type and level of technologies and services that may be
exported. These laws include, without limitation, the Arms Export
Control Act, the Export Administration Act, and the International Economic
Emergency Powers Act, and regulations issued pursuant to these, including
the
International Traffic in Arms Regulations (ITAR), 22 C.F.R. parts 120-130,
and
the Export Administration Regulations (EAR), 15 C.F.R. parts
730-774.
4.3 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 there is no assurance that any
exemption from registration under the Securities Act will be available and
that,
even if available, such 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.
6
b. Rule
144. 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.
c. Restrictions
on Transfer. Purchaser agrees that it will not sell, pledge,
assign, transfer, otherwise dispose of or reduce their risk with respect
to
(collectively, “Transfer”) any of the Shares unless the Transfer will be made
pursuant to an exemption from the registration requirements of the Securities
Act or pursuant to an effective registration statement under the Securities
Act
and pursuant to an exemption from any applicable state securities laws or
an
effective registration or other qualification under any applicable state
securities laws. The Purchaser understands that exemptions from such
registration requirements are limited. The Company is under no
obligation to register the Shares except as provided in the Stockholder
Agreement.
d. 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.
e. Accredited
Investors. Purchaser represents that it is an accredited
investor within the meaning of Regulation D under the Securities
Act.
f. Company
Information. Purchaser has received and read the SEC Reports
listed in Section 3.6(b) and has had an opportunity to discuss the
Company’s business, management and financial affairs with directors, officers
and management of the Company and has had the opportunity to review the
Company’s operations and facilities. Purchaser has also had the
opportunity to ask questions of and receive answers from, the Company and
its
management regarding the terms and conditions of this investment.
SECTION
5. Survival
Of Representations, Warranties And Agreements. Notwithstanding
any investigation made by any party to this Agreement, all covenants,
agreements, representations and warranties made by the Company and Purchaser
herein shall survive the execution of this Agreement and the issuance and
sale
to the Purchaser of the Shares and shall terminate upon the earlier
of: (a) the sale of all of the Shares by the Purchaser pursuant to an
effective registration statement or Rule 144 and (b) one (1) year following
the Closing Date.
SECTION
6. Conditions
To Company’s Obligations At The Closing. The
Company’s obligation to complete the sale and issuance of the Shares at Closing
shall be subject to the following conditions to the extent not waived by
the
Company:
6.1 Representations
And Warranties Correct. The representations and warranties
made by Purchaser in Section 4 hereof shall be true and correct when made,
and shall be true and correct in all material respects as of the Closing
Date.
7
6.2 Covenants
Performed. All covenants, agreements and conditions
contained herein to be performed by Purchaser on or prior to the Closing
Date
shall have been performed or complied with in all material
respects.
6.3 Qualifications,
Legal Investment. On the Closing Date, the
sale and issuance of the Shares shall be legally permitted by all laws and
regulations to which Purchaser and the Company are subject.
6.4 Consents,
Permits and Waivers. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory
body
of the United States or of any state that are binding upon Purchaser and
that
are required in connection with the lawful sale and issuance of the Shares
at
such Closing pursuant to this Agreement shall have been duly obtained and
shall
be effective on and as of the date of such Closing. No stop order or
other order enjoining the sale of the Shares shall have been issued and no
proceedings for such purpose shall be pending or, to the knowledge of the
Company, threatened by the SEC or any commissioner of corporations or similar
officer of any state having jurisdiction over this transaction.
6.5 Stockholder
Agreement. The Stockholder Agreement shall
have been executed and delivered by Purchaser.
SECTION
7. Conditions
to Purchaser’s Obligations at the Closing. Purchaser’s
obligation to purchase the Shares at the Closing thereby shall be subject
to the
following conditions to the extent not waived by Purchaser:
7.1 Representations
And Warranties Correct. The representations
and warranties made by the Company in Section 3 hereof shall be true and
correct when made, and shall be true and correct in all material respects
as of
the Closing Date.
7.2 Covenants
Performed. All covenants, agreements and conditions
contained herein to be performed by the Company shall have been performed
or
complied with in all material respects.
7.3 Qualifications,
Legal Investment. On the Closing Date, the
sale and issuance of the Shares shall be legally permitted by all laws and
regulations to which Purchaser and the Company are subject.
7.4 Consents,
Permits and Waivers. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory
body
of the United States or of any state that are binding upon the Company and
that
are required in connection with the lawful sale and issuance of the Shares
at
such Closing pursuant to this Agreement shall have been duly obtained and
shall
be effective on and as of the date of such Closing. No stop order or
other order enjoining the sale of the Shares shall have been issued and no
proceedings for such purpose shall be pending or, to the knowledge of the
Company, threatened by the SEC or any commissioner of corporations or similar
officer of any state having jurisdiction over this transaction.
7.5 Stockholder
Agreement. The Stockholder Agreement shall
have been executed and delivered by the Company.
8
7.6 No
Material Adverse Change. There shall have been no material
adverse change, individually or in the aggregate, in the assets, liabilities,
operations or financial condition of the Company and its subsidiaries, taken
as
a whole, since the date of this Agreement.
7.7 No
Litigation. Since the date of this Agreement, no proceeding
challenging this Agreement or the transactions contemplated hereby, or seeking
to prohibit, alter, prevent or materially delay the Closing or the performance
by the Company of any of its obligations hereunder, shall have been instituted
before any governmental agency, court or arbitrator and shall be
pending.
SECTION
8. Broker’s
Fee. Each
party hereto represents and warrants that 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 8 being untrue.
SECTION
9. Miscellaneous.
9.1 Waivers
And Amendments. Neither this Agreement nor any provision
hereof may be changed, waived, discharged, terminated, modified or amended
except upon the written consent of the Company and the Purchaser.
9.2 Notices. Any
and all notices or other communications or deliveries required or permitted
to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified in this Section prior to 5:30 p.m. (New York City time) on a business
day, (ii) the business day after the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified in the Purchase Agreement later than 5:30 p.m. (New York City time)
on
any date and earlier than 11:59 p.m. (New York City time) on such date,
(iii) the business day following the date of mailing, if sent by nationally
recognized overnight courier service, (iv) upon five days after mailing if
sent by certified or registered mail or (v) actual receipt by the party to
whom such notice is required to be given if delivered by hand. The
address for such notices and communications shall be as follows:
a. if
to the
Company, to:
|
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
9
with
a
copy (which shall not constitute notice) to:
|
Holland
& ▇▇▇▇ LLP
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇▇▇▇
▇▇▇▇
|
|
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
or
to
such other person at such other place as the Company shall designate to the
Purchaser in writing; and
b. if
to the
Purchaser, at the addresses set forth on the Schedule of Purchaser, or at
such
other addresses as may have been furnished to the Company in writing with
a copy
(which shall not constitute notice) to:
Akin
Gump
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
9.3 Headings. The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be part of this
Agreement.
9.4 Severability. It
is the desire and intent of the parties that the provisions of this Agreement
be
enforced to the fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall
be
ineffective, without invalidating the remaining provisions of this Agreement
or
affecting the validity or enforceability of such provision in any other
jurisdiction. Notwithstanding the foregoing, if such provision could
be more narrowly drawn so as not to be invalid, prohibited or enforceable
in
such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,
without invalidating the remaining provisions of this Agreement or affecting
the
validity or enforceability of such provision in any other
jurisdiction.
9.5 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado as applied to contracts
entered into and performed entirely in Colorado by Colorado residents, without
regard to conflicts of law principles, except for matters of corporate law,
which shall be governed by the laws of the State of Delaware.
9.6 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts
have been signed by each party hereto and delivered to the other
parties.
10
9.7 Successors
And Assigns. Except in connection with any transfer of
Shares in accordance with the Agreements, the rights of each party under
this
Agreement may not be assigned. This Agreement shall bind and inure to
the benefit of the parties and their respective successors, permitted assigns,
legal representatives and heirs.
9.8 Entire
Agreement. This Agreement and other documents delivered
pursuant hereto, including the exhibits, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
9.9 Nouns
and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter
forms,
and the singular form of names and pronouns shall include the plural and
vice
versa.
9.10 Publicity. No
party shall issue any press releases or otherwise make any public statement
with
respect to the transactions contemplated by this Agreement without the prior
written consent of the other party, except as may be required by applicable
law
or regulations, in which case such party shall provide the other party with
reasonable notice of such publicity and/or opportunity to review such
disclosure. The Purchaser acknowledge that the Company (a) is
obligated to file a Current Report on Form 8-K with the SEC in connection
with
the issue and sale of the Shares and is further obligated to file the Agreements
as exhibits thereto and (b) has notified the U.S. State Department pursuant
to
22 C.F.R. 122.4(b).
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOLLOW
11
In
Witness Whereof, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the
day
and year first above written.
|
Company:
|
|
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
Title: Chief
Executive Officer
|
|
Purchasers:
|
|
Loeb
Partners Corporation
|
|
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
Title:
Vice President
|
12
EXHIBIT
A
Schedule
of Purchasers
|
Purchaser
|
Shares
|
Aggregate
Purchase
Price
|
|
Loeb
Partners Corporation
▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone:
▇▇▇.▇▇▇.▇▇▇▇
Facsimile:
212.574.2069
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇
|
3,750,000
|
$2,812,500.00
|
|
TOTAL
|
3,750,000
|
$2,812,500.00
|
EXHIBIT
B
Stockholder
Agreement