STOCK PURCHASE AGREEMENT
Exhibit
2
This
STOCK PURCHASE AGREEMENT (this “Agreement”) is made and entered into this
7th day of
November, 2007 by and between TELKONET, INC., a Utah corporation (the
“Seller”) and those persons listed on Schedule A to this Agreement
collectively, the “Purchasers”).
WHEREAS,
the Seller owns 270,000 shares of common stock (the “Common Stock”),
583,333 shares of Series A Convertible Preferred Stock (the “Series A
Stock”) and 22,048 shares of Series B Preferred Stock (the “Series B
Stock,” together with the Common Stock and the Series A Stock, the
“Company Stock”) of BPL Global, Ltd. (the “Company”);
and
WHEREAS,
the Seller desires to sell to the Purchasers units consisting of one share
of Series B Stock, 0.4628 shares of Common Stock and 0.0378 shares of
Series A Stock (each, a “Unit”) for a purchase price of $3.4285 per
Unit.
WHEREAS,
each Purchaser desires to purchase Units from the Seller in the amounts set
forth opposite such Purchaser’s name on Schedule A on the terms and
conditions set forth in this Agreement.
NOW,
THEREFORE, for and in consideration of the timely and full performance of the
mutual covenants set forth herein and other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the Seller and each
Purchaser hereby agree as follows:
1. Purchase
Price. The purchase price (the “Purchase Price”) for the
Units shall be $3.4285 per Unit.
2. Closing.
(a) At
the closing of transactions contemplated hereby (the “Closing”), the
Seller will deliver to each Purchaser stock powers representing such Purchaser’s
portion of the Company Stock purchased, and shall deliver to the Company all
certificates representing the Company Stock so purchased for re-issuance in
the
name of the Purchasers pursuant to the stock powers. Upon delivery of
the stock powers to and in the name of the Purchasers at the Closing, the funds
representing the Purchase Price for the Units will be delivered to the Seller
pursuant to instructions provided by the Seller at or before the
Closing.
(b) The
Closing will take place at the offices of Xxxxx & Xxxxxxxxx LLP, 0000
Xxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, XX 00000, within 2 business days following
the satisfaction or waiver of all conditions set forth in Sections 5 and 6
hereof (the “Closing Date”) (except for those conditions which by their
nature are incapable of being satisfied until the Closing, in which case such
conditions will be satisfied or waived on or as of the Closing Date) or at
such
other place or time or both as the parties may agree.
3. Seller
Representations and Warranties. The Seller represents and
warrants to each Purchaser as follows:
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(a) Seller
is the sole legal and beneficial owner of the Company Stock with all the
requisite power and authority to enter into this Agreement and to perform its
obligations hereunder.
(b) The
Units, and the Company Stock comprising the Units, delivered to the Purchaser
are free and clear of any and all claims, liens, and encumbrances.
(c) Seller
has full power and authority to consummate the transactions contemplated by
this
Agreement, including, without limitation, to sell, transfer and assign to the
Purchasers all right, title and interest in and to the Company Stock represented
by the Units.
(d) Immediately
following the sale, transfer and assignment thereof at the Closing, the
Purchasers will have good title to the Company Stock represented by the Units
free and clear of all security interests, claims, liens, pledges, restrictions
and encumbrances of any nature (other than the Second Amended and Restated
Stockholders' Agreement of the Company (the "Stockholders'
Agreement")).
(e) This
Agreement has been duly and validly executed and delivered by the Seller and,
assuming the due execution and delivery thereof by each Purchaser, is a valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors generally and by general principles of
equity.
(f) None
of the execution or delivery by the Seller of this Agreement, the performance
by
the Seller of its obligations hereunder or the consummation of the transactions
contemplated hereby (1) has resulted or will result (with or without notice,
lapse of time or otherwise) in a breach of the terms or conditions of, a default
under, a conflict with, or an acceleration of (or the creation in any person
of
any right to cause the acceleration of) any performance or any increase in
any
payment required by, or the termination, suspension, modification, impairment
or
forfeiture (or the creation in any person of any right to cause the termination,
suspension, modification, impairment or forfeiture) of any material rights
or
privileges of any Seller under (x) any agreement, contract, arrangement or
understanding, written or oral (collectively, “Contract”), or any
judgment, writ, order or decree (collectively, “Judgment”) to which the
Seller is a party or by or to which the Seller, its properties, assets or any
of
the Company Stock may be subject, bound or affected, or (y) any applicable
law,
rule or regulation (collectively, “Law”); (2) has resulted or will result
(with or without notice, lapse of time or otherwise) in the creation,
imposition, or foreclosure of or right to exercise or foreclose any lien or
restriction of any nature whatsoever upon or in any of (x) the assets of the
Seller, or (y) the Company Stock comprising the Units; or (C) assuming that
the
sale to the Purchasers of the Units is a transaction exempt from registration
under the Securities Act of 1933, as amended (the “Securities Act”), and
from qualification or registration under applicable state securities laws,
requires or will require the Seller to make any filing with, to give any notice
to or to obtain any permit, authorization, consent or approval of any
person.
(g) There
is no action, suit, investigation or proceeding, governmental or otherwise
(“Proceeding”), pending or, to the Seller’s knowledge, threatened,
against the Seller relating to the Company Stock or the transactions
contemplated by this Agreement, nor is there any valid basis for such Proceeding
known to the Seller.
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(h) Seller
is not bound by or subject to any Contract with any person which will result
in
the Purchasers being obligated to pay any finder’s fees, brokerage or agent’s
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated
hereby.
4. Purchaser
Representations and Warranties. Each Purchaser individually
represents and warrants to the Seller as follows:
(a) That
such Purchaser acknowledges that neither the Units, nor the Company Stock
comprising the Units, may be transferred absent either an effective registration
under the Securities Act or the availability of an exemption from the
registration requirements of the Securities Act and that such Purchaser is
acquiring the Units solely for its own account, for investment purposes only
and
not with a view to resale or distribution.
(b) This
Agreement has been duly and validly executed and delivered by such Purchaser
and, assuming the due execution and delivery thereof by the Seller, is a valid
and binding obligation of such Purchaser enforceable against such Purchaser
in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors generally and by general principles of
equity.
(c) Such
Purchaser has full power and authority to consummate the transactions
contemplated by this Agreement, including, without limitation, to purchase,
acquire and accept from the Seller all right, title and interest in and to
the
Company Stock to be acquired hereunder.
(d) None
of the execution or delivery by such Purchaser of this Agreement, the
performance by such Purchaser of its obligations hereunder or the consummation
of the transactions contemplated hereby (1) has resulted or will result (with
or
without notice, lapse of time or otherwise) in a breach of the terms or
conditions of, a default under, a conflict with, or the acceleration of (or
the
creation in any person of any right to cause the acceleration of) any
performance or any increase in any payment required by, or the termination,
suspension, modification, impairment or forfeiture (or the creation in any
person of any right to cause the termination, suspension, modification,
impairment or forfeiture) of any material rights or privileges of such Purchaser
under (x) any Contract or any Judgment to which such Purchaser is a party or
by
or to which such Purchaser, its properties or assets may be subject, bound
or
affected, or (y) any applicable Law; or (2) has resulted or will result (with
or
without notice, lapse of time or otherwise) in the creation, imposition, or
foreclosure of or right to exercise or foreclose any lien or restriction of
any
nature whatsoever upon or in any of the assets of such Purchaser.
(e) There
is no Proceeding, pending or, to such Purchaser’s knowledge, threatened, against
such Purchaser relating to the transactions contemplated by this Agreement,
nor
is there any valid basis for such Proceeding known to such
Purchaser.
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(f) Such
Purchaser is not bound by or subject to any Contract with any person which
will
result in the Seller being obligated to pay any finder’s fees, brokerage or
agent’s commissions or other like payments in connection with the negotiations
leading to this Agreement or the consummation of the transactions contemplated
hereby.
5. Conditions
to each Purchaser’s Obligations. The obligation of each Purchaser
to consummate the purchase of the Units contemplated by this Agreement is
subject to the satisfaction of the following conditions, any of which may be
waived in writing by such Purchaser:
(a) There
shall be no Judgment to which such Purchaser is a party or by or to which such
Purchaser is bound restraining, enjoining or preventing the consummation of
the
transactions contemplated hereby.
(b) The
Seller shall have performed in all material respects all of its obligations
hereunder to be performed by Seller at or prior to the Closing and each of
the
representations and warranties contained in Section 3 of this Agreement shall
be
true and correct in all material respects as of the date hereof and the Closing
Date, with the same effect as if then made.
(c) The
Seller shall have delivered the documents and instruments required pursuant
to
Section 2, together with one or more certificates, executed by the Seller as
to
the matters referred to in paragraph (b) above, together with one or more
certificates, executed by, the Seller as to the representation and warranties
set forth in Section 3 being true and correct in all material respects as of
the
date hereof and the Closing Date, with the same effect as if then
made.
6. Conditions
of the Seller’s Obligations. The obligation of the Seller to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction of the following conditions, any of which may be waived in writing
by the Seller:
(a) There
shall be no Judgment to which the Seller is a party or by or to which Seller
is
bound restraining, enjoining or preventing the consummation of the transactions
contemplated hereby.
(b) Each
Purchaser shall have performed in all material respects all of its obligations
hereunder to be performed by it at or prior to the Closing Date and each of
the
representations and warranties of such Purchaser contained in Section 4 of
this
Agreement shall be true and correct in all material respects as of the date
hereof and as of the Closing Date, with the same effect as if then
made.
(c) Each
Purchaser shall have delivered all documents and instruments required pursuant
to Section 2, together with a certificate, executed by such Purchaser or a
duly
authorized representative of such Purchaser, as to the matters referred to
in
paragraph (b) above.
7. Mutual
Covenants. Each party hereto covenants to each other party to
exercise its commercially reasonable efforts to perform, comply with, and
otherwise satisfy each of the conditions to be satisfied by such party hereunder
and obtain all consents required to be obtained by such party for the
consummation of the transactions contemplated hereby.
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8. Further
Assurances. If, subsequent to the Closing Date, further documents
are reasonably requested in order to carry out the provisions and purposes
of
this Agreement, the parties hereto shall execute and deliver such further
documents.
9. Termination. This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time prior to the Closing:
(a) by
mutual written consent of the Seller and any Purchaser, but only with respect
to
such consenting Purchaser;
(b) by
the Seller or any Purchaser, but only with respect to such Purchaser, if the
Closing shall not have occurred before [November 26, 2007];
providedthat, the right to terminate this Agreement pursuant to
this clause (b) shall not be available to (i) the Seller in the event of the
Seller’s material breach of its representations, warranties, covenants or
agreements contained in this Agreement, or (ii) any Purchaser in the event
of
such Purchaser’s material breach of its representations, warranties, covenants
or agreements contained in this Agreement, has resulted in the failure of the
Closing to occur before such date;
(c) by
any Purchaser, but only with respect to such Purchaser, if there has been a
material breach by the Seller of any of its representations, warranties,
covenants or agreements contained in this Agreement and such breach shall not
have been cured within five business days after written notice thereof shall
have been received by the Seller; and
(d) by
the Seller with respect to any Purchaser, but only with respect to such
Purchaser, if there has been a material breach by such Purchaser of any of
such
Purchaser’s representations, warranties, covenants or agreements contained in
this Agreement and such breach shall not have been cured within five business
days after written notice thereof shall have been received by such Purchaser
(provided that any Units allocated with respect to such Purchaser shall be
retained by Seller and not allocated or sold to any other Purchaser or any
person, other than in compliance with the Stockholders' Agreement).
10. Effect
of Termination. In the event of any termination of this Agreement
pursuant to Section 9, this Agreement shall be terminated, and there shall
be no
further liability or obligation hereunder on the part of any party hereto,
except in the case of a termination with respect to a single Purchaser, in
which
case, the Agreement will continue in full force and effect with respect to
the
other Purchasers; provided, however, that nothing contained in
this Agreement will relieve any party from liability for any breach of any
of
its representations, warranties, covenants or agreements set forth in this
Agreement.
11. Notice. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any
standard form of telecommunication. Notices to the Seller shall be
delivered to Telkonet, Inc., 00000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000. Notices to the Purchasers shall be delivered to such
Purchasers at the addresses set forth on the Purchaser signature pages
hereto.
12. Assignments. No
party hereto (or any permitted assignee of such party’s rights or obligations
hereunder) may assign its rights or delegate its obligations hereunder without
the prior written consent of the other parties hereto.
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13. Severability. In
the event that any part or parts of this Agreement shall be held to be
unenforceable to its or their full extent, then it is the intention of the
parties hereto that such part or parts shall be enforced to the full extent
permitted under the law and, in any event, that all other parts of this
Agreement shall remain valid and fully enforceable as if the unenforceable
part
or parts had never been a part hereof.
14. Governing
Law. This Agreement is governed by and construed in accordance
with the laws of the State of Maryland, without giving effect to applicable
conflict of laws principles.
15. Counterparts. This
Agreement may be executed in one or more counterparts each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument binding on the parties.
16. Entire
Agreement. This Agreement (including the Schedules hereto)
constitutes the entire agreement among the parties and, except as expressly
provided herein, supersedes all prior agreements and understandings, oral and
written, among the parties, in each case, with respect to the subject matter
hereof.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date set forth
above.
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TELKONET,
INC.
By:
/s/ Xxxxxxx
Xxxxx
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Xxxxxxx
Xxxxx
|
|
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Executive
Vice President
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[Signatures
of Purchasers Follow]
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[Signature
Page of Purchasers]
IN
WITNESS WHEREOF, the undersigned
Purchaser has executed this Stock Purchase Agreement as of the date first
written above.
Investor
Name:
Signature:
________________________________
Name:____________________________________
Title
(if
applicable):__________________________
Address:__________________________________
_________________________________________
_________________________________________
