Exhibit 10.1
STOCK PURCHASE AGREEMENT, made the 3rd day of August, 2004, by and XXXXX
XXXXXXXX (the "Seller") and NEXTPHASE TECHNOLOGIES, INC., a California
corporation (the "Buyer").
RECITALS
WHEREAS, the Seller is the owner of One Hundred Twenty Thousand Six Hundred
Twenty Five (120,625) shares of Common Stock, $.001 par value (the "Shares") of
Edison Renewables, Inc., a Nevada corporation (the "Company").
WHEREAS, the Seller desires to sell the Shares to the Buyer.
WHEREAS, the Seller desires to sell, and the Buyer desires to purchase all
of the Shares subject to the terms and conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Sale of Stock.
(a) For and in consideration of the Purchase Price (as hereinafter defined)
and the other consideration described herein, the Seller hereby sells to the
Buyer, and the Buyer hereby buys from the Seller, all of the Shares.
(b) The aggregate purchase price for the Shares is Five Hundred Ten
Thousand Dollars ($510,000) (the "Purchase Price"), payable as follows:
(i) One Hundred Sixty Thousand Dollars ($160,000) (the "Cash
Payment") payable by the Buyer to the Seller on the date hereof; and
(ii) By delivery of a Three Hundred Fifty Thousand Dollars ($350,000)
secured promissory note, of even date (the "Promissory Note") by the Buyer to
the Seller on the date hereof, in the form mutually acceptable to the Seller and
the Buyer.
2. Representations of Seller. The Seller represents, warrants, and agrees
with the Buyer as of the date hereof, as follows:
(a) Ownership of Shares. The Seller is the sole owner and holder of
the Shares, free and clear of all liens and encumbrances of any kind whatsoever.
The Shares represent 55.48% of the issued and outstanding shares of voting
capital stock of the Company.
(b) Consents. No consents of governmental or other regulatory
agencies, foreign or domestic, court or of any third party are required to be
received by or on the part of the Seller to enable it to enter into and carry
out this Agreement and the transactions contemplated hereby.
(c) Authority; Binding Nature of Agreement. The Seller has the power
to enter into this Agreement and to carry out its obligations hereunder. This
Agreement constitutes the valid and binding obligation of the Seller, and is
enforceable in accordance with its terms.
(d) No Breach. Neither the execution and delivery of this Agreement,
nor compliance by the Seller with any of the provisions hereof nor the
consummation of the termination contemplated hereby, will:
(i) violate any judgment, order, injunction, decree or award against,
or binding upon, the Seller
(ii) violate or otherwise breach the terms of any agreement or
understanding, written or oral, to which the Seller is a party or is otherwise
bound; or
(iii)violate any law or regulation of any regulation relating to the
Seller.
(e) Accuracy of Share Exchange Representations. The representations
and warranties set forth in Article IV of the Agreement and Plan of Share
Exchange of even date (the "Share Exchange Agreement") among the Company and the
persons listed on the signature page of the Share Exchange Agreement, are true
and accurate as of the date of the Share Exchange Agreement.
3. Representations of the Buyer. The Buyer represents, warrants, and agrees
with the Seller, as of the date hereof, as follows:
(a) Consents. No consents of governmental or other regulatory
agencies, foreign or domestic, court or of any third party are required to be
received by or on the part of the Buyer to enable her to enter into and carry
out this Agreement and the transactions contemplated hereby.
(b) Authority; Binding Nature of Agreement. The Buyer has the power
to enter into this Agreement and to carry out its obligations hereunder. This
Agreement constitutes the valid and binding obligation of the Buyer, and is
enforceable in accordance with its terms.
(c) No Breach. Neither the execution and delivery of this Agreement,
nor compliance by the Buyer with any of the provisions hereof nor the
consummation of the termination contemplated hereby, will:
(i) violate any judgment, order, injunction, decree or award against,
or binding upon, the Buyer;
(ii) violate or otherwise breach the terms of any agreement or
understanding, written or oral, to which the Buyer is a party or is otherwise
bound; or
(iii)violate any law or regulation of any regulation relating to the
Buyer.
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(d) Investment Purposes. The Shares acquired by Buyer are being
acquired for his own account, for investment purposes and not with a view to any
distribution within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"). The Buyer will not sell, assign, mortgage, pledge,
hypothecate, transfer or otherwise dispose of any of the Shares unless (i) a
registration statement under the Securities Act with respect thereto is in
effect and the prospectus included therein meets the requirements of Section 10
of the Securities Act, or (ii) the Company has received a written opinion of its
counsel that, after an investigation of the relevant facts, such counsel is of
the opinion that such proposed sale, assignment, mortgage, pledge,
hypothecation, transfer or disposition does not require registration under the
Securities Act or any state securities law.
(e) No Registration. The Buyer understands that the resale of the
Shares is not, and is not being, registered under the Securities Act and the
Shares must be held indefinitely unless they are subsequently registered
thereunder or an exemption from such registration is available.
(f) Accreditation/Sophistication. The Buyer represents and warrants
further that (i) he is either an "accredited investor," as such term is defined
in Rule 501(a) promulgated under the Securities Act, or, either alone or with
his purchaser representative, has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of the
acquisition of the Shares; (ii) he is able to bear the economic risks of an
investment in the Shares, including, without limitation, the risk of the loss of
part or all of his investment and the inability to sell or transfer the Shares
for an indefinite period of time; (iii) he has adequate financial means of
providing for current needs and contingencies and has no need for liquidity in
his investment in the shares; and (iv) he does not have an overall commitment to
investments which are not readily marketable that is excessive in proportion to
net worth and an investment in the Shares will not cause such overall commitment
to become excessive.
(g) Company Information. The Buyer reviewed all of the Company's
reports, proxy and information statements and registration statements filed by
the Company with the Securities and Exchange Commission via the XXXXX system and
the Buyer has been afforded the opportunity to obtain such information regarding
the Company as he has reasonably requested to evaluate the merits and risks of
the undersigned's investment in the Shares. No oral or written representations
have been made or oral information furnished to the undersigned or his advisers
in connection with the investment in the Shares.
(h) Legend. The undersigned acknowledges that a restrictive legend,
in or substantially in the following form, will be placed on any instrument,
certificate or other document evidencing the Shares:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933. These shares
have been acquired for investment and not for distribution.
They may not be sold, assigned, mortgaged, pledged,
hypothecated, transferred or otherwise disposed of without
an effective registration statement for such shares under
the Securities Act of 1933 or an opinion of counsel for the
Company that registration is not required under such Act."
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4. Deliveries.
(a) Items to be Delivered by Seller. As of the date hereof, the Seller will
deliver or cause to be delivered to the Buyer:
(i) to the Buyer, the Stock Certificate representing the Shares; and
(ii) to the Buyer, a stock power, duly executed in blank by the Seller
in connection with transfer of the Shares as set forth herein; and 1576022.3
(iii)to the Buyer and the Pledge Agent (as hereinafter defined), a
Pledge Agreement, of even date (the "Pledge Agreement") among the Seller, the
Buyer and Xxxx X. Xxxx, Esq., as pledge agent (the "Pledge Agent"), pursuant to
which the Shares are pledged as collateral for the Buyer's performance under the
Promissory Note.
(b) Items to be Delivered by Buyer. The Buyer will deliver or cause to be
delivered:
(i) as of the date hereof, to the Seller, the $160,000 Cash Payment
by certified check or via wire transfer;
(ii) as of the date hereof, to the Seller, the $350,000 Promissory
Note;
(iii)as of the date hereof, to the Seller and the Pledge Agent, the
Pledge Agreement executed by the Buyer and the other Pledgors (as
that term is defined in the Pledge Agreement) under the Pledge
Agreement; and
(iv) as soon as is practicable following the date hereof, to the
Pledge Agent, a certificate representing the Shares, in the
Buyer's name, and certificates representing the shares of common
stock of the Company, in the names of the other Pledgors,
together with stock powers duly executed in blank by the Buyer
and the other Pledgors (it is acknowledged that such shares are
deemed pledged as of the date hereof).
5. Amendment. Neither this Agreement nor any term or provision hereof may
be changed, waived, discharged, or terminated orally, or in any manner other
than by an instrument in writing signed by the party against which the
enforcement of the change, waiver, discharge, or termination is sought.
6. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective parties, and their successors and assigns, heirs and
personal representatives.
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7. Counterparts; Fascimile Signature. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original.
Facsimile signatures hereof shall be deemed to be original signatures.
8. Entire Agreement. This Agreement including any Schedules and Exhibits
hereto constitutes the entire understanding between the parties with respect to
its subject matter and supersedes any previous written or oral agreement with
respect thereto.
9. Construction. This Agreement is made under and shall be construed in
accordance with the laws of the State of Colorado applicable to contracts made
and performed within the State of New York.
10. Notices. Any and all notices or other communications or deliveries
required or permitted to be given or made pursuant to any of the provisions of
this Agreement shall be deemed to have been duly given or made for all purposes
when hand delivered or sent by certified or registered mail (return receipt
requested and postage prepaid), overnight mail or courier, or telecopier as
follows:
If to the Seller, at:
0000 Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, Xxx Xxxx 00000
Telecopier Number: (000) 000-0000
If to Buyer, at:
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Chief Executive Officer
or at such other address as any party may specify by notice given to the other
party in accordance with this Section 10.
11. Attorney's Fees. In the event of any litigation or arbitration between
the parties, the prevailing party shall be entitled to its reasonable attorneys'
fees and costs associated with such action.
12. Further Assurances. On or after the date hereof, the parties shall take
all such further actions and execute and deliver all such further instruments
and documents as may be necessary or appropriate to carry out the transactions
contemplated by this Agreement.
13. Jurisdiction; Severability. The parties agree that any dispute arising
hereunder shall be adjudicated in the District Court of the State of Colorado,
in Denver, Colorado, and all parties consent to the personal jurisdiction and
venue of the District Court of the State of Colorado, in
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Denver, Colorado. In the event any clause, section or part of this Agreement
shall be held or declared to be void, illegal or invalid for any reason, all
other clauses, sections or parts of this Agreement which can be effected without
such void, illegal or invalid clause, section or part shall nevertheless
continue in full force and effect.
14. Headings. The headings or captions in this Agreement are for
convenience of reference only and do not in any way modify, interpret or
construe the intent of the parties or affect any of the provisions of this
Agreement.
Remainder of Page Intentionally Left Blank. Signature Page Follows.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
/s/ Xxxxx Xxxxxxxx
----------------------------
XXXXX XXXXXXXX
NEXTPHASE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx, Chief Executive Officer
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