EXHIBIT 10.33
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of September
30, 1998 by and among ADVANCED ENVIRONMENTAL RECYCLING TECHNOLOGIES, INC., a
corporation organized under the laws of the State of Delaware (the "Company"),
with headquarters located at XX 0000, XX 00, Xxx 000, Xxxxxxxx, Xxxxx 00000, and
each of the purchasers (collectively, the "Purchasers") set forth on the
execution pages hereof (the "Execution Pages").
WHEREAS:
A. The Company and each Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "Securities Act").
B. The Purchasers desire to purchase, upon the terms and conditions stated
in this Agreement, up to 1,500 units (the "Units"), each Unit consisting of (i)
one share of the Company's Series A Convertible Preferred Stock, par value $1.00
per share (the "Preferred Shares"), convertible into shares of the Company's
Class A Common Stock, par value $.01 per share (the "Common Stock"), (ii) a
Series X Warrant, in the form attached hereto as Exhibit B-1 (the "Series X
Warrant"), to acquire 555 shares of Common Stock and (iii) a Series Y Warrant,
in the form attached hereto as Exhibit B-2 (the "Series Y Warrant" and, together
with the Series X Warrant, the "Warrants"), to acquire 205 shares of Common
Stock. The rights, preferences and privileges of the Preferred Shares, including
the terms upon which such Preferred Shares are convertible into shares of Common
Stock, are set forth in the form of Certificate of Designations, Rights and
Preferences attached hereto as Exhibit A (the "Certificate of Designation"). The
shares of Common Stock issuable upon conversion of the Preferred Shares or
otherwise pursuant to the Certificate of Designation are referred to herein as
the "Conversion Shares" and the shares of Common Stock issuable upon exercise of
or otherwise pursuant to the Warrants are referred to herein as the "Warrant
Shares." The Preferred Shares, the Warrants, the Conversion Shares and the
Warrant Shares are collectively referred to herein as the "Securities" and each
of them may individually be referred to herein as a "Security."
C. Contemporaneous with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement, in
the form attached hereto as Exhibit C (the "Registration Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act and the rules and regulations promulgated thereunder,
and applicable state securities laws.
NOW, THEREFORE, the Company and the Purchasers hereby agree as follows:
1. PURCHASE AND SALE OF UNITS
a. Purchase of Units. On the Closing Date (as defined below),
subject to the satisfaction (or waiver) of the conditions set forth in
Section 6 and Section 7 below, the Company shall issue and sell to each
Purchaser, and each Purchaser severally agrees to purchase from the
Company, that number of Units set forth on such Purchaser's Execution Page
hereto. The purchase price (the "Purchase Price") per Unit shall be equal
to One Thousand Dollars ($1,000). Each Purchaser's obligation to purchase
Units hereunder is distinct and separate from the other Purchasers'
obligation to purchase Units and no Purchaser shall be required to
purchase hereunder more than the number of Units set forth on such
Purchaser's Execution Page hereto notwithstanding any failure by the other
Purchasers to purchase Units hereunder.
b. Form of Payment. On the Closing Date, each Purchaser shall pay
the aggregate Purchase Price of the Units being purchased by such
Purchaser hereunder in the manner set forth on Schedule 1(b), which manner
will either be by (i) surrendering promissory notes of the Company payable
to the Purchasers (the "Notes") or (ii) wire transfer of immediately
available funds to the Company, in accordance with the Company's written
wiring instructions, in each case, against delivery of the duly executed
certificates representing the Preferred Shares and duly executed Warrants
being purchased by such Purchaser and the Company shall deliver such
certificates and Warrants against delivery of such aggregate Purchase
Price.
c. Closing Date. Subject to the satisfaction (or waiver) of the
conditions thereto set forth in Section 6 and Section 7 below, the date
and time of the issuance and sale of the Units pursuant to this Agreement
(the "Closing") shall be 12:00 noon, New York City time, on November 2,
1998, or such other time as may be mutually agreed upon by the parties
(the "Closing Date"). The Closing shall occur at the offices of Klehr,
Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000.
2. PURCHASERS' REPRESENTATIONS AND WARRANTIES
Each Purchaser severally represents and warrants to the Company as
follows:
a. Investment Purpose. The Purchaser is purchasing the Securities
for the Purchaser's own account for investment purposes and not with a
present view towards the public sale or distribution thereof, except
pursuant to sales that are exempt from the registration requirements of
the Securities Act and/or sales registered under the Securities Act. The
Purchaser understands that the Purchaser must bear the economic risk of
this investment indefinitely, unless the Securities are registered
pursuant to the Securities Act and any applicable state securities or blue
sky laws or an exemption from such registration is available, and that the
Company has no present intention of registering any such Securities other
than as contemplated by the Registration Rights Agreement. Notwithstanding
anything in this Section 2(a) to the contrary, by making the
representations herein, the Purchaser does not agree to hold the
Securities for any minimum or other specific term and reserves the right
to dispose of the Securities at any time in accordance with or pursuant to
a registration statement or an exemption under the Securities Act.
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b. Accredited Investor Status. The Purchaser is an "Accredited
Investor" as that term is defined in Rule 501(a) of Regulation D.
c. Reliance on Exemptions. The Purchaser understands that the Units
are being offered and sold to the Purchaser in reliance upon specific
exemptions from the registration requirements of United States federal and
state securities laws and that the Company is relying upon the truth and
accuracy of, and the Purchaser's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of the
Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of the Purchaser to acquire the Units.
d. Information. The Purchaser and its counsel have been furnished
all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Units which
have been specifically requested by the Purchaser or its counsel. The
Purchaser and its counsel have been afforded the opportunity to ask
questions of the Company and have received what the Purchaser believes to
be satisfactory answers to any such inquiries. Neither such inquiries nor
any other due diligence investigation conducted by the Purchaser or its
counsel or any of its representatives shall modify, amend or affect the
Purchaser's right to rely on the Company's representations and warranties
contained in Section 3 below. The Purchaser understands that its
investment in the Units involves a high degree of risk.
e. Governmental Review. The Purchaser understands that no United
States federal or state agency or any other government or governmental
agency has passed upon or made any recommendation or endorsement of the
Units.
f. Transfer or Resale. The Purchaser understands that (i) except as
provided in the Registration Rights Agreement, the Securities have not
been and are not being registered under the Securities Act or any state
securities laws, and may not be transferred unless (a) subsequently
registered thereunder, or (b) the Purchaser shall have delivered to the
Company an opinion of counsel (which opinion shall be in form, substance
and scope customary for opinions of counsel in comparable transactions) to
the effect that the Securities to be sold or transferred may be sold or
transferred under an exemption from such registration, or (c) sold under
Rule 144 promulgated under the Securities Act (or a successor rule) ("Rule
144"), or (d) sold or transferred to an affiliate of the Purchaser; and
(ii) neither the Company nor any other person is under any obligation to
register such Securities under the Securities Act or any state securities
laws or to comply with the terms and conditions of any exemption
thereunder (in each case, other than pursuant to the Registration Rights
Agreement).
g. Legends. The Purchaser understands that the certificates for the
Preferred Shares and the Warrants and, until such time as the Conversion
Shares and Warrant Shares have been registered under the Securities Act as
contemplated by the Registration Rights Agreement or otherwise may be sold
by the Purchaser under Rule 144, the certificates for the Conversion
Shares and Warrant Shares may bear a restrictive legend in substantially
the following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state of the United States. The securities
represented hereby may
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not be offered or sold in the absence of an effective registration
statement for the securities under applicable securities laws unless
offered, sold or transferred under an available exemption from the
registration requirements of those laws.
The legend set forth above shall be removed and the Company shall
issue a certificate without such legend to the holder of any Security upon
which such legend is stamped, if, unless otherwise required by state
securities laws, (a) the sale of such Security is registered under the
Securities Act or (b) such holder provides the Company with an opinion of
counsel, in form, substance and scope customary for opinions of counsel in
comparable transactions, to the effect that a public sale or transfer of
such Security may be made without registration under the Securities Act or
(c) such holder provides the Company with reasonable assurances that such
Security can be sold under Rule 144. The Purchaser agrees to sell all
Securities, including those represented by a certificate(s) from which the
legend has been removed, pursuant to an effective registration statement
or under an exemption from the registration requirements of the Securities
Act. In the event the above legend is removed from any certificate(s) and
thereafter the effectiveness of a registration statement covering such
Security is suspended or the Company determines that a supplement or
amendment thereto is required by applicable securities laws, then upon
reasonable advance notice to the Purchaser the Company may require that
the above legend be placed on any such Security and the Purchaser shall
cooperate in the prompt replacement of such legend. Such legend shall be
removed when such Security may be sold pursuant to an effective
registration statement or sold under Rule 144.
h. Authorization; Enforcement. This Agreement and the Registration
Rights Agreement have been duly and validly authorized, executed and
delivered on behalf of the Purchaser and are valid and binding agreements
of the Purchaser enforceable in accordance with their terms.
i. Residency. The Purchaser is a resident of the jurisdiction set
forth under the Purchaser's name on the Execution Page hereto executed by
such Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser as follows:
a. Organization and Qualification. The Company and each of its
subsidiaries is a corporation duly organized and existing in good standing
under the laws of the jurisdiction in which it is incorporated, and has
the requisite corporate power to own its properties and to carry on its
business as it is now being conducted. The Company and each of its
subsidiaries is duly qualified as a foreign corporation to do business and
is in good standing in every jurisdiction in which the nature of the
business conducted by it makes such qualification necessary and where the
failure so to qualify would have a Material Adverse Effect. "Material
Adverse Effect" means any material adverse effect on (i) the Securities,
(ii) the ability of the Company to perform its obligations hereunder and
under the Certificate of Designation, the Warrants or the Registration
Rights Agreement or (iii) the business, operations, properties, prospects
or financial condition of the Company and its subsidiaries, taken as a
whole.
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b. Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform its obligations
under this Agreement, the Warrants and the Registration Rights Agreement,
to issue and sell the Units in accordance with the terms hereof and to
issue Conversion Shares upon conversion of the Preferred Shares in
accordance with the terms of the Certificate of Designation and to issue
the Warrant Shares upon exercise of the Warrants in accordance with the
terms of such Warrants; (ii) the execution, delivery and performance of
this Agreement, the Warrants and the Registration Rights Agreement by the
Company and the consummation by it of the transactions contemplated hereby
and thereby (including, without limitation, the issuance of the Preferred
Shares and Warrants and the issuance and reservation for issuance of the
Conversion Shares and Warrant Shares) have been duly authorized by the
Company's Board of Directors and no further consent or authorization of
the Company, its Board or Directors or its stockholders is required (under
the rules promulgated by the National Association of Securities Dealers
("NASD") or otherwise); (iii) this Agreement has been duly executed and
delivered by the Company; and (iv) this Agreement constitutes, and, upon
execution and delivery by the Company of the Warrants and the Registration
Rights Agreement, such agreements will constitute, valid and binding
obligations of the Company enforceable against the Company in accordance
with their terms.
c. Capitalization. The capitalization of the Company as of the date
hereof, including the authorized capital stock, the number of shares
issued and outstanding, the number of shares issuable and reserved for
issuance pursuant to the Company's stock option plans, the number of
shares issuable and reserved for issuance pursuant to securities
exercisable for, or convertible into or exchangeable for any shares of
capital stock and the number of shares to be reserved for issuance
pursuant hereto is set forth on Schedule 3(c). All of such outstanding
shares of capital stock have been, or upon issuance will be, validly
issued, fully paid and nonassessable. No shares of capital stock of the
Company (including the Preferred Shares, the Conversion Shares and the
Warrant Shares) are subject to preemptive rights or any other similar
rights of the stockholders of the Company or any liens or encumbrances.
Except for the obligation of the Company to issue the Conversion Shares in
accordance with the terms of the Certificate of Designation and the
Warrant Shares in accordance with the terms of the Warrants and except as
disclosed in Schedule 3(c), as of the date of this Agreement, (i) there
are no outstanding options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or
rights convertible into or exercisable or exchangeable for, any shares of
capital stock of the Company or any of its subsidiaries, or arrangements
by which the Company or any of its subsidiaries is or may become bound to
issue additional shares of capital stock of the Company or any of its
subsidiaries, and (ii) there are no agreements or arrangements under which
the Company or any of its subsidiaries is obligated to register the sale
of any of its or their securities under the Securities Act (except the
Registration Rights Agreement). Except as set forth on Schedule 3(c),
there are no securities or instruments containing antidilution or similar
provisions that will be triggered by the issuance of the Securities in
accordance with the terms of this Agreement, the Certificate of
Designation or the Warrants. The Company has furnished to each Purchaser
true and correct copies of the Company's Certificate of Incorporation as
in effect on the date hereof ("Certificate of Incorporation"), the
Company's By-laws as in effect on the date hereof (the "By-laws"), and all
other instruments and agreements governing securities convertible into or
exercisable or exchangeable for capital stock of the Company.
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d. Issuance of Shares. The Preferred Shares are duly authorized and,
upon issuance in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and free from all taxes,
liens, claims and encumbrances and will not be subject to preemptive
rights or other similar rights of stockholders of the Company and will not
impose personal liability on the holders thereof. The Conversion Shares
and Warrant Shares are duly authorized and, on and after January 15, 1999
will be reserved for issuance, and, upon conversion of the Preferred
Shares in accordance with the terms of the Certificate of Designation, and
exercise of the Warrants in accordance with the terms thereof, will be
validly issued, fully paid and non-assessable, and free from all taxes,
liens, claims and encumbrances and will not be subject to preemptive
rights or other similar rights of stockholders of the Company and will not
impose personal liability upon the holder thereof.
e. No Conflicts. The execution, delivery and performance of this
Agreement, the Warrants and the Registration Rights Agreement by the
Company, the performance by the Company of its obligations under the
Certificate of Designation, and the consummation by the Company of the
transactions contemplated hereby and thereby (including, without
limitation, the issuance and reservation for issuance, as applicable, of
the Preferred Shares, Warrants, Conversion Shares and Warrant Shares) will
not (i) result in a violation of the Certificate of Incorporation or
By-laws or (ii) conflict with, or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the
Company or any of its subsidiaries is a party, or result in a violation of
any law, rule, regulation, order, judgment or decree (including U.S.
federal and state securities laws and regulations and rules or regulations
of any self-regulatory organizations to which either the Company or its
securities are subject) applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of
its subsidiaries is bound or affected (except, with respect to clause
(ii), for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or
in the aggregate, have a Material Adverse Effect). Neither the Company nor
any of its subsidiaries is in violation of its Certificate of
Incorporation, By-laws or other organizational documents and neither the
Company nor any of its subsidiaries is in default (and no event has
occurred which, with notice or lapse of time or both, would put the
Company or any of its subsidiaries in default) under, nor has there
occurred any event giving others (with notice or lapse of time or both)
any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party, except for actual or possible violations,
defaults or rights as would not, individually or in the aggregate, have a
Material Adverse Effect. The businesses of the Company and its
subsidiaries are not being conducted, and shall not be conducted so long
as a Purchaser owns any of the Securities, in violation of any law,
ordinance or regulation of any governmental entity, except for actual or
possible violations, if any, the sanctions for which either singly or in
the aggregate would not have a Material Adverse Effect. Except as
specifically contemplated by this Agreement and as required under the
Securities Act and any applicable state securities laws, the Company is
not required to obtain any consent, approval, authorization or order of,
or make any filing or registration with, any court or governmental agency
or any regulatory or self regulatory agency in order for it to execute,
deliver or perform any of its obligations under this Agreement, the
Warrants or the Registration Rights Agreement or to perform its
obligations under the Certificate of Designation, in each case in
accordance with the terms hereof or thereof. Except as disclosed in
Schedule 3(e), the Company is not in violation of the
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listing requirements of The Nasdaq Smallcap Market ("NASDAQ") and the
Company does not reasonably anticipate that the Common Stock will be
delisted by NASDAQ for the foreseeable future.
f. SEC Documents, Financial Statements. Since December 31, 1995, the
Company has timely filed all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (all of the foregoing filed prior to the date hereof
and after December 31, 1995, and all exhibits included therein and
financial statements and schedules thereto and documents incorporated by
reference therein, being hereinafter referred to herein as the "SEC
Documents"). The Company has delivered to the Purchasers true and complete
copies of the SEC Documents, except for the exhibits and schedules thereto
and the documents incorporated therein. As of their respective dates, the
SEC Documents complied in all material respects with the requirements of
the Exchange Act or the Securities Act, as the case may be, and the rules
and regulations of the SEC promulgated thereunder applicable to the SEC
Documents, and none of the SEC Documents, at the time they were filed with
the SEC, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading. None of the statements made in any such
SEC Documents is, or has been, required to be updated or amended under
applicable law. As of their respective dates, the financial statements of
the Company included in the SEC Documents complied as to form in all
material respects with applicable accounting requirements and the
published rules and regulations of the SEC applicable with respect
thereto. Such financial statements have been prepared in accordance with
U.S. generally accepted accounting principles, consistently applied,
during the periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto, or (ii) in the case of
unaudited interim statements, to the extent they may not include footnotes
or may be condensed or summary statements) and fairly present in all
material respects the consolidated financial position of the Company and
its consolidated subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to immaterial year-end
audit adjustments). Except as set forth in the financial statements of the
Company included in the SEC Documents filed prior to the date hereof, the
Company has no liabilities, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business subsequent to the
date of such financial statements and (ii) obligations under contracts and
commitments incurred in the ordinary course of business and not required
under generally accepted accounting principles to be reflected in such
financial statements, which liabilities and obligations referred to in
clauses (i) and (ii), individually or in the aggregate, are not material
to the financial condition or operating results of the Company.
g. Absence of Certain Changes. Since December 31, 1997, there has
been no material adverse change and no material adverse development in the
business, properties, operations, financial condition, results of
operations or prospects of the Company, except as disclosed in Schedule
3(g) or in the SEC Documents filed prior to the date hereof.
h. Absence of Litigation. Except as disclosed in the SEC Documents
filed prior to the date hereof, there is no action, suit, proceeding,
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge
of the Company or any of its subsidiaries, threatened against or affecting
the Company, any of its subsidiaries, or any of their respective directors
or officers in their capacities as such which will have a Material Adverse
7
Effect. There are no facts which, if known by a potential claimant or
governmental authority, could give rise to a claim or proceeding which, if
asserted or conducted with results unfavorable to the Company or any of
its subsidiaries, could have a Material Adverse Effect.
i. Intellectual Property. Each of the Company and its subsidiaries
owns or is licensed to use all patents, patent applications, trademarks,
trademark applications, trade names, service marks, copyrights, copyright
applications, licenses, permits, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights and
proprietary knowledge (collectively, "Intangibles") necessary for the
conduct of its business as now being conducted and as described in the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997. To the best knowledge of the Company, neither the Company nor
any subsidiary of the Company infringes or is in conflict with any right
of any other person with respect to any Intangibles which, individually or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect. Neither the Company nor any
of its subsidiaries has received written notice of any pending conflict
with or infringement upon such third party Intangibles. Neither the
Company nor any of its subsidiaries has entered into any consent,
indemnification, forbearance to xxx or settlement agreements with respect
to the validity of the Company's or its subsidiaries' ownership or right
to use its Intangibles and, to the best knowledge of the Company, there is
no reasonable basis for any such claim to be successful. The Intangibles
are valid and enforceable and no registration relating thereto has lapsed,
expired or been abandoned or canceled or is the subject of cancellation or
other adversarial proceedings, and all applications therefor are pending
and in good standing. The Company and its subsidiaries have complied, in
all material respects, with their respective contractual obligations
relating to the protection of the Intangibles used pursuant to licenses.
To the best knowledge of the Company, no person is infringing on or
violating the Intangibles owned or used by the Company of its
subsidiaries.
j. Foreign Corrupt Practices. Neither the Company, nor any of its
subsidiaries, nor any director, officer, agent, employee or other person
acting on behalf of the Company or any subsidiary has, in the course of
his actions for, or on behalf of, the Company, used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful
expenses relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other unlawful
payment to any foreign or domestic government official or employee.
k. Disclosure. All information relating to or concerning the Company
set forth in this Agreement or provided to the Purchasers pursuant to
Section 2(d) hereof and otherwise in connection with the transactions
contemplated hereby is true and correct in all material respects and the
Company has not omitted to state any material fact necessary in order to
make the statements made herein or therein, in light of the circumstances
under which they were made, not misleading. No event or circumstance has
occurred or exists with respect to the Company or its subsidiaries or
their respective businesses, properties, prospects, operations or
financial conditions, which has not been publicly disclosed but, under
applicable law, rule or regulation, would be required to be disclosed by
the Company in a registration statement filed on the date hereof by the
Company under the Securities Act with respect to a primary issuance of the
Company's securities.
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l. Acknowledgment Regarding the Purchasers' Purchase of the
Securities. The Company acknowledges and agrees that no Purchaser is
acting as a financial advisor or fiduciary of the Company (or in any
similar capacity) with respect to this Agreement or the transactions
contemplated hereby, and the relationship between the Company and each of
the Purchasers is "arms length" and that any statement made by any
Purchaser or any of its representatives or agents in connection with this
Agreement and the transactions contemplated hereby is not advice or a
recommendation and is merely incidental to each Purchaser's purchase of
Securities and has not been relied upon by the Company, its officers or
directors in any way. The Company further represents to each Purchaser
that the Company's decision to enter into this Agreement has been based
solely on an independent evaluation by the Company and its
representatives.
m. Form S-3 Eligibility. The Company is currently eligible to
register the resale of its Common Stock on a registration statement on
Form S-3 under the Securities Act. There exist no facts or circumstances
that would prohibit or delay the preparation and filing of a registration
statement on Form S-3 with respect to the Registrable Securities (as
defined in the Registration Rights Agreement).
n. No General Solicitation. Neither the Company nor any distributor
participating on the Company's behalf in the transactions contemplated
hereby (if any) nor any person acting for the Company, or any such
distributor, has conducted any "general solicitation," as such term is
defined in Regulation D, with respect to any of the Securities being
offered hereby.
o. No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any
offers to buy any security under circumstances that would require
registration of the Securities being offered hereby under the Securities
Act or cause this offering of Securities to be integrated with any prior
offering of securities of the Company for purposes of the Securities Act
or any applicable stockholder approval provisions.
p. Brokers. The Company has taken no action which would give rise to
any claim by any person for brokerage commissions, finder's fees or
similar payments by any Purchaser relating to this Agreement or the
transactions contemplated hereby except for dealings with The Zanett
Securities Corporation, whose commissions and fees will be paid by the
Company.
q. Tax Status. Except as set forth in the SEC Documents filed prior
to the date hereof or on Schedule 3(q), the Company and each of its
subsidiaries has made or filed all federal, state and local income and all
other tax returns, reports and declarations required by any jurisdiction
to which it is subject (unless and only to the extent that the Company and
each of its subsidiaries has set aside on its books provisions reasonably
adequate for the payment of all unpaid and unreported taxes) and has paid
all taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has set aside
on its books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company know of no basis for any such claim. The Company
has not executed a
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waiver with respect to any statute of limitations relating to the
assessment or collection of any federal, state or local tax. None of the
Company's tax returns has been or is being audited by any taxing
authority.
r. Title. The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them which is material to the business of
the Company and its subsidiaries, in each case free and clear of all
liens, encumbrances and defects except such as are described in Schedule
3(r) or such as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries. Any real property and
facilities held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not materially interfere with the
use made and proposed to be made of such property and buildings by the
Company and its subsidiaries.
s. Absence of Events of Default. No Event of Default (as defined in
the Notes) and no event which, with the giving of notice or the passage of
time or both, would become an Event of Default, has occurred and is
continuing.
4. COVENANTS.
a. Best Efforts. The parties shall use their best efforts timely to
satisfy each of the conditions described in Section 6 and Section 7 of
this Agreement.
b. Form D; Blue Sky Laws. The Company agrees to file a Form D with
respect to the Securities as required under Regulation D and to provide a
copy thereof to each Purchaser promptly after such filing. The Company
shall, on or before the Closing Date, take such action as the Company
shall reasonably determine is necessary to qualify the Securities for sale
to the Purchasers pursuant to this Agreement under applicable securities
or "blue sky" laws of the states of the United States or obtain exemption
therefrom, and shall provide evidence of any such action so taken to the
Purchasers on or prior to the Closing Date.
c. Reporting Status. So long as any Purchaser owns any of the
Securities, the Company shall timely file all reports required to be filed
with the SEC pursuant to the Exchange Act, and the Company shall not
terminate its status as an issuer required to file reports under the
Exchange Act even if the Exchange Act or the rules and regulations
thereunder would permit such termination.
d. Use of Proceeds. The Company shall use the proceeds from the sale
of the Units to repay $400,000 aggregate principal amount of Notes and as
otherwise set forth on Schedule 4(d).
e. Financial Information. The Company agrees to send the following
reports to each Purchaser until such Purchaser transfers, assigns or sells
all of its Securities: (i) within ten (10) days after the filing with the
SEC, a copy of its Annual Report on Form 10-K, its Quarterly Reports on
Form 10-Q, its proxy statements and any Current Reports on Form 8-K; and
(ii) within one (1) business day after release, copies of all press
releases issued by the Company or any of its subsidiaries.
10
f. Reservation of Shares. The Company shall at all times have
authorized and reserved for the purpose of issuance a sufficient number of
shares of Common Stock to provide for the full conversion of the
outstanding Preferred Shares and issuance of the Conversion Shares in
connection therewith and the full exercise of the Warrants and the
issuance of the Warrant Shares in connection therewith, subject to and as
otherwise required by the Certificate of Designation and the Warrants.
g. Listing. The Company shall promptly secure the listing of the
Conversion Shares and Warrant Shares upon each national securities
exchange or automated quotation system, if any, upon which shares of
Common Stock are then listed (subject to official notice of issuance) and
shall maintain, so long as any other shares of Common Stock shall be so
listed, such listing of all of the Conversion Shares and Warrant Shares.
The Company will take all action necessary to continue the listing and
trading of its Common Stock on the NASDAQ, the Nasdaq National Market
("NNM"), the New York Stock Exchange ("NYSE") or the American Stock
Exchange ("AMEX") and will comply in all respects with the Company's
reporting, filing and other obligations under the bylaws or rules of such
exchanges and the NASD, as applicable. In the event the Common Stock is
not eligible to be traded on any of the NASDAQ, NNM, NYSE or AMEX and the
Common Stock is not eligible for listing on any such exchange or system,
the Company shall use its best efforts to cause the Common Stock to be
eligible for trading on the over-the-counter bulletin board at the
earliest practicable date and remain eligible for trading while any
Securities are outstanding. The Company shall promptly provide to the
Purchasers copies of any notices it receives regarding the continued
eligibility of the Common Stock for trading in the over-the-counter market
or, if applicable, any securities exchange (including the NASDAQ) on which
securities of the same class or series issued by the Company are then
listed or quoted, if any.
h. Corporate Existence. So long as a Purchaser owns any Securities,
the Company shall maintain its corporate existence, except in the event of
a merger, consolidation or sale of all or substantially all of the
Company's assets, as long as the surviving or successor entity in such
transaction (i) assumes the Company's obligations hereunder and under the
Certificate of Designation, the Warrants and the agreements and
instruments entered into in connection herewith and (ii) is a publicly
traded corporation whose common stock is listed for trading on the NASDAQ,
NNM, NYSE or AMEX.
i. No Integrated Offerings. The Company shall not make any offers or
sales of any security (other than pursuant to this Agreement and the
Registration Rights Agreement) under circumstances that would require
registration of the Securities being offered or sold hereunder under the
Securities Act or cause the offering of the Securities to be integrated
with any other offering of securities by the Company for purposes of any
stockholder approval provision applicable to the Company or its
securities.
j. Production Milestones. The Company shall use its best efforts to
ensure that the following production milestones are achieved:
(i) The Company shall transfer its paint production operations
from its Junction, Texas facility to its Springdale, Arkansas
facility on or before November 1, 1998, so as to have available two
production lines as its Junction, Texas facility for the Weyerhauser
project.
11
(ii) So long as the new 6" air system at its Springdale,
Arkansas facility is operational at such time, the Company shall
start up one mixer on the second Springdale line by November 15,
1998 and the full line by January 1, 1999.
(iii) The Company shall install two large mixers to the deck
line at its Junction, Texas facility on or before January 1, 1999.
(iv) The Company shall install Line 6 or a third line at its
Springdale, Arkansas facility and such line shall be operational on
or before April 1, 1999.
(v) The Company's production of internal plastic LDPE shall
exceed 30,000 pounds per day on or before January 1, 1999.
5. TRANSFER AGENT INSTRUCTIONS.
a. The Company shall instruct its transfer agent to issue
certificates, registered in the name of each Purchaser or its nominee, for
the Conversion Shares and Warrant Shares in such amounts as specified from
time to time by such Purchaser to the Company. To the extent and during
the periods provided in Section 2(f) and Section 2(g) of this Agreement,
all such certificates shall bear the restrictive legend specified in
Section 2(g) of this Agreement.
b. The Company warrants that no instruction other than such
instructions referred to in this Section 5, and stop transfer instructions
to give effect to Section 2(f) hereof in the case of the transfer of the
Conversion Shares or Warrant Shares prior to registration of the
Conversion Shares and Warrant Shares under the Securities Act or without
an exemption therefrom, will be given by the Company to its transfer agent
and that the Securities shall otherwise be freely transferable on the
books and records of the Company as and to the extent provided in this
Agreement and the Registration Rights Agreement. Nothing in this Section
shall affect in any way each Purchaser's obligations and agreement set
forth in Section 2(g) hereof to resell the Securities pursuant to an
effective registration statement or under an exemption from the
registration requirements of applicable securities law.
c. If a Purchaser provides the Company with an opinion of counsel,
which opinion of counsel shall be in form, substance and scope customary
for opinions of counsel in comparable transactions, to the effect that the
Securities to be sold or transferred may be sold or transferred pursuant
to an exemption from registration, or a Purchaser provides the Company
with reasonable assurances that such Securities may be sold under Rule
144, the Company shall permit the transfer, and, in the case of the
Conversion Shares and Warrant Shares, promptly instruct its transfer agent
to issue one or more certificates in such name and in such denominations
as specified by such Purchaser.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Units to a
Purchaser hereunder is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions thereto, provided that these
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion.
12
a. The applicable Purchaser shall have executed the signature page
to this Agreement and the Registration Rights Agreement, and delivered the
same to the Company.
b. The applicable Purchaser shall have delivered the Purchase Price
for the Units being purchased by it in accordance with Section 1(b) above.
c. The representations and warranties of the applicable Purchaser
shall be true and correct as of the date when made and as of the Closing
Date as though made at that time (except for representations and
warranties that speak as of a specific date, which representations and
warranties shall be true and correct as of such date), and the applicable
Purchaser shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the applicable
Purchaser at or prior to the Closing Date.
d. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by
any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters
contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE.
The obligation of each Purchaser hereunder to purchase the Units to be
purchased by it hereunder is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for such Purchaser's sole benefit and may be waived by such
Purchaser at any time in the Purchaser's sole discretion:
a. The Company shall have executed the signature page to this
Agreement and the Registration Rights Agreement, and delivered the same to
such Purchaser.
b. The Certificate of Designation shall have been accepted for
filing with the Secretary of State of the State of Delaware and a copy
thereof certified by the Secretary of State of the State of Delaware shall
have been delivered to such Purchaser.
c. The Company shall have delivered to such Purchaser the duly
executed Warrants and certificates representing the Preferred Shares being
purchased by such Purchaser (in such denominations as such Purchaser shall
request) in accordance with Section 1(b) above.
d. The Common Stock shall be authorized for quotation on the NASDAQ
and trading in the Common Stock (or the NASDAQ generally) shall not have
been suspended by the SEC or the NASDAQ.
e. The representations and warranties of the Company shall be true
and correct as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as
of a specific date, which representations and warranties shall be true and
correct as of such date) and the Company shall have performed, satisfied
and complied in all material respects
13
with the covenants, agreements and conditions required by this Agreement
to be performed, satisfied or complied with by the Company at or prior to
the Closing Date. Such Purchaser shall have received a certificate,
executed by the Chief Executive Officer of the Company, dated as of the
Closing Date, to the foregoing effect and as to such other matters as may
be reasonably requested by such Purchaser.
f. No statute, rule, regulation, executive order, decree, ruling,
injunction, action or proceeding shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of
competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which questions the
validity of, or challenges or prohibits the consummation of, any of the
transactions contemplated by this Agreement.
g. Such Purchaser shall have received an opinion of the Company's
counsel, dated as of the Closing Date, in form, scope and substance
reasonably satisfactory to the Purchaser and in substantially the form of
Exhibit D attached hereto.
h. The Company shall have delivered evidence reasonably satisfactory
to the Purchasers that the Company's transfer agent has agreed to act in
accordance with irrevocable instructions in the form attached hereto as
Exhibit E.
i. No material adverse change or development in the business,
operations, properties, prospects, financial condition, or results of
operations of the Company shall have occurred since the date hereof.
j. The Company shall have delivered to each of those Purchasers
surrendering Notes as Payment of the Purchase Price and those Purchasers
whose Notes are being repaid in accordance with Section 4(d) hereof,
certificates representing shares of Common Stock such that the accrued and
unpaid interest on all such Notes is paid in full in accordance with the
terms of such Notes.
8. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in the State of Delaware.
The Company irrevocably consents to the jurisdiction of the United States
federal courts and the state courts located in the City of New York in the
State of New York in any suit or proceeding based on or arising under this
Agreement and irrevocably agrees that all claims in respect of such suit
or proceeding may be determined in such courts. The Company irrevocably
waives the defense of an inconvenient forum to the maintenance of such
suit or proceeding. The Company further agrees that service of process
upon the Company mailed by first class mail shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. Nothing herein shall affect the right of any Purchaser to
serve process in any other manner permitted by law. The Company agrees
that a final non-appealable judgment in any such suit or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on such
judgment or in any other lawful manner.
b. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts
14
have been signed by each party and delivered to the other party. This
Agreement, once executed by a party, may be delivered to the other parties
hereto by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement. In the event any
signature is delivered by facsimile transmission, the party using such
means of delivery shall cause the manually executed Execution Page(s)
hereof to be physically delivered to the other party within five (5) days
of the execution hereof.
c. Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of,
this Agreement.
d. Severability. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this
Agreement or the validity or enforceability of this Agreement in any other
jurisdiction.
e. Entire Agreement; Amendments. This Agreement and the other
agreements and instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein
and therein and, except as specifically set forth herein or therein,
neither the Company nor the Purchasers make any representation, warranty,
covenant or undertaking with respect to such matters. No provision of this
Agreement may be waived other than by an instrument in writing signed by
the party to be charged with enforcement and no provision of this
Agreement may be amended other than by an instrument in writing signed by
the Company and each Purchaser.
f. Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier or by
confirmed telecopy, and shall be effective five days after being placed in
the mail, if mailed, or upon receipt or refusal of receipt, if delivered
personally or by courier or confirmed telecopy, in each case addressed to
a party. The addresses for such communications shall be:
If to the Company:
Advanced Environmental Recycling
Technologies, Inc.
XX 0000
XX 00, Xxx 000
Xxxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
15
With a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 XxxxxxxXxxx Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxx Xxxx, Esq.
If to a Purchaser, to the address set forth under such Purchaser's
name on the signature page hereto executed by the Purchaser.
Each party shall provide notice to the other parties of any change
in address.
g. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns.
Except as provided herein, neither the Company nor any Purchaser shall
assign this Agreement or any rights or obligations hereunder.
Notwithstanding the foregoing, any Purchaser may assign its rights
hereunder to any of its "affiliates," as that term is defined under the
Exchange Act, without the consent of the Company or to any other person or
entity with the consent of the Company. This provision shall not limit a
Purchaser's right to transfer the Securities pursuant to the terms of this
Agreement, the Certificate of Designation, the Warrants or the
Registration Rights Agreement or to assign such Purchaser's rights
hereunder and/or thereunder to any such transferee.
h. Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof
be enforced by, any other person.
i. Survival. The representations and warranties of the Company and
the agreements and covenants set forth in Sections 3, 4, 5 and 8 shall
survive the Closing hereunder notwithstanding any due diligence
investigation conducted by or on behalf of any Purchasers. Moreover, none
of the representations and warranties made by the Company herein shall act
as a waiver of any rights or remedies a Purchaser may have under
applicable federal or state securities laws.
j. Publicity. The Company and each Purchaser shall have the right to
review before issuance any press releases, SEC, NASDAQ or NASD filings, or
any other public statements with respect to the transactions contemplated
hereby; provided, however, that the Company shall be entitled, without the
prior approval of the Purchasers, to make any press release which does not
name the Purchasers or SEC, NASDAQ or NASD filings with respect to such
transactions as is required by applicable law and regulations (although
the Purchasers shall be consulted by the Company in connection with any
such press release prior to its release and shall be provided with a copy
thereof).
k. Further Assurances. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out
16
the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
l. Termination. In the event that the Closing Date shall not have
occurred on or before November 9, 1998, unless the parties agree
otherwise, this Agreement shall terminate at the close of business on such
date. Notwithstanding any termination of this Agreement, any party not in
breach of this Agreement shall preserve all rights and remedies it may
have against another party hereto for a breach of this Agreement prior to
or relating to the termination hereof.
m. Joint Participation in Drafting. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement, the
Certificate of Designation, the Warrants and the Registration Rights
Agreement. As such, the language used herein and therein shall be deemed
to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any
party to this Agreement.
n. Equitable Relief. The Company acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to a Purchaser by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for a breach
of its obligations hereunder (including, but not limited to, its
obligations pursuant to Section 5 hereof) will be inadequate and agrees,
in the event of a breach or threatened breach by the Company of the
provisions of this Agreement (including, but not limited to, its
obligations pursuant to Section 5 hereof), that a Purchaser shall be
entitled, in addition to all other available remedies, to an injunction
restraining any breach and requiring immediate issuance and transfer,
without the necessity of showing economic loss and without any bond or
other security being required.
o. "Trading day" and "business day" shall mean any day on which the
New York Stock Exchange is open for trading.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
ADVANCED ENVIRONMENTAL RECYCLING
TECHNOLOGIES, INC.
By:/s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: President
By:/s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
PURCHASER:
ZANETT LOMBARDIER, LTD.
By:/s/ Xxxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxxx
------------------------
Title: Director
-----------------------
RESIDENCE:
-------------------
ADDRESS:
Zanett Lombardier, Ltd.
c/o Bank Xxxxxx Xxxx
Xxxx House, P.O. Box 1100
Grand Cayman, Cayman Islands
British West Indies
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxx
SUBSCRIPTION AMOUNT:
NUMBER OF UNITS 275
----
PURCHASE PRICE ($1,000 per Unit) $275,000
--------
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
ADVANCED ENVIRONMENTAL RECYCLING
TECHNOLOGIES, INC.
By:/s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: President
By:/s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
PURCHASER:
HARLOW ENTERPRISES, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx
---------------------------
Title: Authorized Representative
--------------------------
RESIDENCE:
ADDRESS:
Telecopy:
Attention:
SUBSCRIPTION AMOUNT:
NUMBER OF UNITS 25
---
PURCHASE PRICE ($1,000 per Unit) $25,000
-------
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
ADVANCED ENVIRONMENTAL RECYCLING
TECHNOLOGIES, INC.
By:/s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: President
By:/s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
PURCHASER:
PARKLAND LIMITED
By: /s/ Xxxxxxx X'Xxxxxx
-----------------------------
Name: Xxxxxxx X'Xxxxxx
---------------------------
Title: Director
--------------------------
RESIDENCE:
ADDRESS:
Telecopy:
Attention:
SUBSCRIPTION AMOUNT:
NUMBER OF UNITS 25
---
PURCHASE PRICE ($1,000 per Unit) $25,000
-------
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
ADVANCED ENVIRONMENTAL RECYCLING
TECHNOLOGIES, INC.
By:/s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: President
By:/s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
PURCHASER:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
XXXXXX X. XXXXXXX
RESIDENCE:
ADDRESS: c/o The Zanett Securities Corporation
Tower 49 - 31st Floor
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxxx
SUBSCRIPTION AMOUNTS:
NUMBER OF UNITS 15
---
PURCHASE PRICE ($1,000 per Unit) $15,000
-------
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
ADVANCED ENVIRONMENTAL RECYCLING
TECHNOLOGIES, INC.
By:/s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: President
By:/s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
PURCHASER:
/s/ Xxxxx Xxxxxxxx
-------------------------------
XXXXX XXXXXXXX
RESIDENCE:
ADDRESS: x/x Xxx Xxxxxx Xxxxxxxxxx Xxxxxxxxxxx
Xxxxx 00 - 00xx Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxxxxxx
SUBSCRIPTION AMOUNT:
NUMBER OF UNITS 310
----
PURCHASE PRICE ($1,000 per Unit) $310,000
--------
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
ADVANCED ENVIRONMENTAL RECYCLING
TECHNOLOGIES, INC.
By:/s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: President
By:/s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
PURCHASER:
XXXXXXX SACHS PERFORMANCE PARTNERS (OFFSHORE), L.P.
By: Commodities Corporation LLC, its general partner
By:/s/ Xxxxx X. Judge
-----------------------------
Name: Xxxxx X. Judge
---------------------------
Title:Vice President
--------------------------
RESIDENCE: Cayman Islands
ADDRESS: P.O. Box 309
South Church Street
Xxxxxx Town, Grand Cayman
Cayman Islands
with copies of all notices to:
c/o Commodities Corporation LLC
000 Xxxxx Xxxxx Xxxx
XX 000
Xxxxxxxxx, XX 00000
SUBSCRIPTION AMOUNTS:
NUMBER OF UNITS 380.80
------
PURCHASE PRICE ($1,000 per Unit) $380,800
--------
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
ADVANCED ENVIRONMENTAL RECYCLING
TECHNOLOGIES, INC.
By:/s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: President
By:/s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
PURCHASER:
XXXXXXX XXXXX PERFORMANCE PARTNERS, L.P.
By: Commodities Corporation LLC, its general partner
By:/s/ Xxxxx X. Judge
-----------------------------
Name: Xxxxx X. Judge
---------------------------
Title:Vice President
--------------------------
RESIDENCE: Delaware
ADDRESS: c/o Commodities Corporation LLC
000 Xxxxx Xxxxx Xxxx
XX 000
Xxxxxxxxx, XX 00000
SUBSCRIPTION AMOUNTS:
NUMBER OF UNITS 469.20
------
PURCHASE PRICE ($1,000 per Unit) $469,200
--------
