EXHIBIT 4.3
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is entered into
this 27th day of May, 2005, by and between MAS SERVICES, INC., a Delaware
corporation ("MAS"), and Moonlight Investments Limited, a corporation
incorporated under the laws of Mauritius ("Buyer") and STELLAR TECHNOLOGIES,
INC., a Colorado corporation ("Stellar"). Stellar is a party to this Agreement
only for the purposes of agreeing and acknowledging paragraph 7.
WHEREAS, MAS owns 1,000,000 shares of the Common Stock of Stellar
Technologies, Inc., a publicly traded corporation (the "Shares"); and
WHEREAS, Buyer desires to purchase from MAS, and MAS desires to sell
the Shares for the purchase price of $1,000,000 (the "Purchase Price").
NOW, THEREFORE, in consideration of the premises hereof and the
agreements set forth herein below, and for other good and valuable
consideration, the receipt and sufficiency of which the parties hereto do hereby
acknowledge, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. Sale and Purchase of Shares. Subject to the terms and conditions
hereof, MAS hereby sells and Buyer hereby purchases the Shares for the Purchase
Price of $1,000,000. The Purchase Price shall be paid as follows:
(a) $1,000,000 at Closing;
2. Closing. The purchase and sale of the Shares (the "Closing") shall
take place at the offices of the MAS at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, XX 00000, upon execution of this Agreement.
At the Closing, MAS will deliver 1,000,000 of the Shares, with
a Medallion signature guaranteed stock power and Buyer shall deliver the
$1,000,000 Purchase Price by wire transfer.
3. Representations and Warranties of MAS. MAS represents and warrants
to Buyer as follows:
(a) Binding Obligation. MAS has the legal power and authority
to enter into and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by and on behalf of MAS and constitutes a valid and legally binding
obligation of MAS, enforceable against MAS in accordance with its terms.
(b) Title to the Shares. MAS is the sole record and beneficial
owner of the Shares, free and clear of all liens and encumbrances of any kind
and nature, any preemptive rights, co sale rights, rights of first refusal or
any other rights of any kind or nature which limit, condition, or restrict in
any way MAS's right to transfer and sell the Shares, with the exception of those
restrictions imposed by Rule 144 of the Securities Act of 1933, as amended, if
any. MAS has the sole power and authority to transfer the Shares.
(c) Absence of Litigation. There is no litigation or
proceeding pending or, to the best knowledge of MAS, threatened, against MAS,
which would have an effect on the validity or performance of this Agreement.
(d) No Brokers Fees. No person has or will receive from MAS,
or to MAS's knowledge, from MAS or any other person, any compensation as a
broker, finder, adviser or in any other capacity in connection with the purchase
and sale of the Shares.
6. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to MAS as follows:
(a) Binding Obligation. Buyer has the legal power and
authority to enter into and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by and on behalf of Buyer and constitutes a valid and
legally binding obligation of Buyer, enforceable against Buyer in accordance
with its terms.
(b) Absence of Litigation. There is no litigation or
proceeding pending or, to the best knowledge of the Buyer, threatened, against
Buyer which would have an effect on the validity or performance of this
Agreement.
(c) Investment Intent. Buyer understands, acknowledges and
represents that:
(i) The Shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or under any state
securities or blue sky laws and the transfer of the Shares is intended to be
exempt from registration under the Securities Act based, in part, upon the
representations, warranties and covenants of Buyer contained herein;
(ii) Neither the United States Securities and
Exchange Commission nor any state securities commission has approved the
transfer of the Shares.
(iii) Buyer has such knowledge, sophistication and
experience in financial, tax and business matters in general, and investments in
securities in particular, so that it is capable of evaluating the merits and
risks of an investment in the Shares. Buyer has made such investigations in
connection herewith as it has deemed necessary or desirable so as to make an
informed investment decision without relying on MAS for legal or tax advice
related to this investment and has had the opportunity to obtain additional
information as desired in order to evaluate the merits of and the risks inherent
in an investment in the Shares and has received all such information requested
and has had all such questions answered to its satisfaction;
(iv) Buyer is an "Accredited Investor" as that term
is defined in the Securities Act and the rules and regulations promulgated
thereunder;
(v) Buyer is purchasing the Shares in a private
transaction separately negotiated with MAS, for its own account, for investment
purposes and not with a view to distribution and in electing to make such a
purchase was unaware of, and did not rely on, and did not become aware of the
offering of the Shares through or as a result of, any form of general
solicitation or general advertising including, without limitation, any article,
notice, advertisement or other communication published in any newspaper,
magazine or similar media, or broadcast over television or radio, in connection
with the offer and sale of the Shares;
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7. Piggy-Bank Registration Rights.
(a) Stellar shall advise the Buyer by written notice at least
twenty (20) days prior to the filing of a registration statement under the 1933
Act (excluding registration on Forms X-0, X-0, or any successor forms thereto),
covering securities of Stellar to be offered and sold by Stellar to the public
generally and shall, upon the request of Buyer given at least five (5) days
prior to the filing of such registration statement, include in any such
registration statement such information as may be required to permit a public
offering of the Shares. Stellar shall supply prospectuses, qualify the Shares
for sale in such states as Stellar qualifies its securities generally and
furnish indemnification in the manner as set forth in Subparagraph 16(c)
hereafter, and use its best efforts to register or qualify such Shares under
such other securities or blue sky laws of such jurisdictions as Holder
reasonably requests (provided that Stellar shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Subsection, (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of process in any such
jurisdiction). Stellar will be required to maintain the registration of the
Shares made pursuant to this Subsection 16(a) for the earlier of (i) one year or
(ii) such time as the Shares may be sold without regard to applicable volume
limitations under Rule 144 promulgated under the Act. Buyer shall furnish such
information as may be reasonably requested by Stellar in order to include such
Shares in the registration statement. In the event that any registration
pursuant to this Subsection 16(a) shall be, in whole or in part, an underwritten
public offering of Common Stock on behalf of Stellar, and the managing
underwriter advises Stellar in writing that in its opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to Stellar, Stellar shall include in such registration (i) first, the
securities Stellar proposes to sell, and (ii) second, the Shares and any other
shares eligible and requested to be included in such registration to the extent
that the number of shares to be registered will not, in the opinion of the
managing underwriter, adversely affect the offering of the securities pursuant
to clause (i), pro rata among Buyer of such shares, including Buyer of the
Shares, on the basis of the number of shares eligible for registration which are
owned by all such holders. Notwithstanding the foregoing, Stellar may withdraw
any registration statement referred to in this Section 7 16(a) without thereby
incurring liability to Buyer of the Shares.
(b) Stellar shall bear the entire cost and expense of any
registration of securities initiated by it under Subsection 16(a)
notwithstanding that Shares subject to this Warrant may be included in any such
registration. Buyer, whose Shares are included in any such registration
statement pursuant to Subsection 16(a) shall, however, bear the fees of its own
counsel and any transfer taxes or underwriting discounts or commissions
applicable to the Shares sold by it pursuant thereto and bear any other costs
imposed by applicable federal or state securities laws, rules or regulations.
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8. Confidentiality. The existence and contents of this Agreement and
the transactions contemplated hereby are confidential and shall not be disclosed
to any person for any reason.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to conflict of
laws principles.
10. Sections and Other Headings. The section and other headings
contained in this Agreement are for the convenience of reference only, do not
constitute part of this Agreement or otherwise affect any of the provisions
hereof.
11. Entire Agreement. This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior and contemporaneously made written or oral agreements between the
parties relating to the subject matter hereof.
12. Counterpart Signatures. This Agreement may be delivered via
facsimile and executed in counterpart both of which shall be deemed to be an
original and to be one and the same instruction.
IN WITNESS WHEREOF, intending to be legally bound, the parties hereto
have executed this Agreement as of the date first above written.
MAS SERVICES, INC.
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, President
MOONLIGHT INVESTMENTS LIMITED
/s/ Raff Ricci
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, President
AGREED AND ACKNOWLEDGED THIS 27TH
DAY OF MAY 2005
STELLAR TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, CEO
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