PURCHASE AGREEMENT
Exhibit 99.1
THIS PURCHASE AGREEMENT (“Agreement”) is made as of the 29th day of October, 2009 by
and among Enova Systems, Inc., a California corporation (the “Company”), and the Investors
set forth on the signature pages affixed hereto (each an “Investor” and collectively the
“Investors”).
Recitals
A. The Company and each of the Investors 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 U.S. Securities and Exchange Commission (the
“SEC”) under the Securities Act of 1933, as amended; and
B. Each of the Investors wishes to purchase from the Company, and the Company wishes to sell
and issue to the Investors, upon the terms and conditions stated in this Agreement, the shares (the
“Shares”) of the Company’s Common Stock, no par value (together with any securities into
which such shares may be reclassified, whether by merger, charter amendment or otherwise, the
“Common Stock”) set forth opposite the respective names of the Investors on the signature
pages affixed hereto, at purchase price of $1.00 per share; and
C. Contemporaneous with the sale of the Shares, the parties hereto will execute and deliver a
Registration Rights Agreement, in the form attached hereto as Exhibit A (the
“Registration Rights Agreement”), pursuant to which the Company will agree to provide
certain registration rights under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, and applicable state securities laws.
In consideration of the mutual promises made herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere in this
Agreement, for the purposes of this Agreement, the following terms shall have the meanings set
forth below:
“Affiliate” means, with respect to any Person, any other Person which directly or
indirectly through one or more intermediaries Controls, is controlled by, or is under common
control with, such Person.
“AIM Offering” means the simultaneous offering of shares Common Stock to non-U.S.
persons made through the facilities of the London Stock Exchange’s AIM Market in accordance with
Regulation S under the 1933 Act on terms and conditions no more favorable to the investors than
those set forth in the Transaction Documents.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New
York City are open for the general transaction of business.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock, including without
limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any
time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.
“Company’s Knowledge” means the actual knowledge of the executive officers (as defined
in Rule 405 under the 0000 Xxx) of the Company, after due inquiry.
“Confidential Information” means trade secrets, confidential information and know-how
(including but not limited to ideas, formulae, compositions, processes, procedures and techniques,
research and development information, computer program code, performance specifications, support
documentation, drawings, specifications, designs, business and marketing plans, and customer and
supplier lists and related information).
“Control” (including the terms “controlling”, “controlled by” or
“under common control with”) means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
“Effective Date” means the date on which the initial Registration Statement is
declared effective by the SEC.
“Effectiveness Deadline” means the date on which the initial Registration Statement is
required to be declared effective by the SEC under the terms of the Registration Rights Agreement.
“Intellectual Property” means all of the following: (i) patents, patent applications,
patent disclosures and inventions (whether or not patentable and whether or not reduced to
practice); (ii) trademarks, service marks, trade dress, trade names, corporate names, logos,
slogans and Internet domain names, together with all goodwill associated with each of the
foregoing; (iii) copyrights and copyrightable works; (iv) registrations, applications and renewals
for any of the foregoing; and (v) proprietary computer software (including but not limited to data,
data bases and documentation).
“Lien” means any lien, charge, claim, encumbrance, security interest, right of first
refusal, preemptive right or other restrictions of any kind.
“Material Adverse Effect” means a material adverse effect on (i) the assets,
liabilities, results of operations, condition (financial or otherwise), business, or prospects of
the Company and its Subsidiaries taken as a whole, or (ii) the ability of the Company to perform
its obligations under the Transaction Documents.
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“Material Contract” means any contract of the Company that has been filed or was
required to have been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item
601(b)(10) of Regulation S-K.
“NYSE Amex” means The NYSE Amex.
“Person” means an individual, corporation, partnership, limited liability company,
trust, business trust, association, joint stock company, joint venture, sole proprietorship,
unincorporated organization, governmental authority or any other form of entity not specifically
listed herein.
“Proposal” has the meaning set forth in Section 7.9.
“Purchase Price” means the aggregate purchase prices to be paid by the Investors set
forth opposite the respective names of the Investors on the signature pages affixed hereto.
“Registration Statement” has the meaning set forth in the Registration Rights
Agreement.
“Required Investors” has the meaning set forth in the Registration Rights Agreement.
“SEC Filings” has the meaning set forth in Section 4.6.
“Subsidiary” of any Person means another Person, an amount of the voting securities,
other voting ownership or voting partnership interests of which is sufficient to elect at least a
majority of its Board of Directors or other governing body (or, if there are no such voting
interests, 50% or more of the equity interests of which) is owned directly or indirectly by such
first Person.
“Transaction Documents” means this Agreement and the Registration Rights Agreement.
“1933 Act” means the Securities Act of 1933, as amended, or any successor statute, and
the rules and regulations promulgated thereunder.
“1934 Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.
2. Purchase and Sale of the Shares. Subject to the terms and conditions of this
Agreement, on the Closing Date, each of the Investors shall severally, and not jointly, purchase,
and the Company shall sell and issue to the Investors, the Shares in the respective amounts set
forth opposite the Investors’ names on the signature pages attached hereto in exchange for the
portion of the Purchase Price set forth opposite the Investors’ names on the signature pages
attached hereto as specified in Section 3 below.
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3. Closing. Unless other arrangements have been made with a particular Investor, upon
confirmation that the other conditions to closing specified herein have been satisfied or duly
waived by the Investors, the Company shall deliver to Xxxxxxxxxx Xxxxxxx PC, in trust, a
certificate or certificates, registered in such name or names as the Investors may designate,
representing the Shares, with instructions that such certificates are to be held for release to the
Investors only upon payment in full of the Purchase Price to the Company by all the Investors.
Unless other arrangements have been made with a particular Investor, upon such receipt by
Xxxxxxxxxx Xxxxxxx PC of the certificates, each Investor shall promptly, but no more than one
Business Day thereafter, cause a wire transfer in same day funds to be sent to the account of the
Company as instructed in writing by the Company, in an amount representing such Investor’s pro rata
portion of the Purchase Price as set forth on the signature pages to this Agreement. On the date
(the “Closing Date”) the Company receives the Purchase Price, the certificates evidencing
the Shares shall be released to the Investors (the “Closing”). The Closing of the purchase
and sale of the Shares shall take place at the offices of Xxxxxxxxxx Xxxxxxx PC, 1251 Avenue of the
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or remotely via the exchange of documents and
signatures), or at such other location and on such other date as the Company and the Investors
shall mutually agree.
4. Representations and Warranties of the Company. The Company hereby represents and
warrants to the Investors that, except as set forth in the schedules delivered herewith
(collectively, the “Disclosure Schedules”), which Disclosure Schedules shall be deemed a
part hereof:
4.1 Organization, Good Standing and Qualification. Each of the Company and its
Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite corporate power and authority to
carry on its business as now conducted and to own or lease its properties. Each of the Company and
its Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or leasing of property
makes such qualification or leasing necessary unless the failure to so qualify has not had and
could not reasonably be expected to have a Material Adverse Effect. The Company’s Subsidiaries are
listed on Schedule 4.1 hereto.
4.2 Authorization. The Company has full power and authority and, except for approval
of the Proposal by its stockholders as contemplated in Section 7.9, has taken all requisite
action on the part of the Company, its officers, directors and stockholders necessary for (i) the
authorization, execution and delivery of the Transaction Documents, (ii) the authorization of the
performance of all obligations of the Company hereunder or thereunder, and (iii) the authorization,
issuance (or reservation for issuance) and delivery of the Shares. The Transaction Documents
constitute the legal, valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability, relating to or affecting
creditors’ rights generally and to general equitable principles.
4.3 Capitalization. Schedule 4.3 sets forth as of the date hereof (a) the
authorized capital stock of the Company; (b) the number of shares of capital stock issued and
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outstanding; (c) the number of shares of capital stock issuable pursuant to the Company’s stock
plans; and (d) the number of shares of capital stock issuable and reserved for issuance pursuant to
securities exercisable for, or convertible into or exchangeable for any shares of capital stock of
the Company. All of the issued and outstanding shares of the Company’s capital stock have been
duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights
and were issued in full compliance with applicable state and federal securities law and any rights
of third parties. Except as described on Schedule 4.3, all of the issued and outstanding
shares of capital stock of each Subsidiary have been duly authorized and validly issued and are
fully paid, nonassessable and free of pre-emptive rights, were issued in full compliance with
applicable state and federal securities law and any rights of third parties and are owned by the
Company, beneficially and of record, subject to no Lien or other adverse claim. Except as
described on Schedule 4.3, no Person is entitled to pre-emptive or similar statutory or
contractual rights with respect to any securities of the Company. Except as described on
Schedule 4.3, there are no outstanding warrants, options, convertible securities or other
rights, agreements or arrangements of any character under which the Company or any of its
Subsidiaries is or may be obligated to issue any equity securities of any kind and except as
contemplated by this Agreement and the AIM Offering, neither the Company nor any of its
Subsidiaries is currently in negotiations for the issuance of any equity securities of any kind.
Except as described on Schedule 4.3 and except for the Registration Rights Agreement, there
are no voting agreements, buy-sell agreements, option or right of first purchase agreements or
other agreements of any kind among the Company and any of the securityholders of the Company
relating to the securities of the Company held by them. Except as described on Schedule
4.3 and except as provided in the Registration Rights Agreement, no Person has the right to
require the Company to register any securities of the Company under the 1933 Act, whether on a
demand basis or in connection with the registration of securities of the Company for its own
account or for the account of any other Person.
Except as described on Schedule 4.3, the issuance and sale of the Shares hereunder
will not obligate the Company to issue shares of Common Stock or other securities to any other
Person (other than the Investors) and will not result in the adjustment of the exercise,
conversion, exchange or reset price of any outstanding security.
Except as described on Schedule 4.3, the Company does not have outstanding stockholder
purchase rights or “poison pill” or any similar arrangement in effect giving any Person the right
to purchase any equity interest in the Company upon the occurrence of certain events.
4.4 Valid Issuance. The Shares have been duly and validly authorized and, when issued
and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and
shall be free and clear of all Liens (other than those created by the Investors), except for
restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities
laws.
4.5 Consents. Except for approval of the Proposal by its stockholders as contemplated
in Section 7.9, the execution, delivery and performance by the Company of the Transaction
Documents and the offer, issuance and sale of the Shares require no consent of,
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action by or in respect of, or filing with, any Person, governmental body, agency, or official
other than (i) those that have been obtained and are in full force and effect and (ii) filings that
have been made pursuant to applicable state securities laws and post-sale filings pursuant to
applicable state and federal securities laws which the Company undertakes to file within the
applicable time periods. Subject to the accuracy of the representations and warranties of each
Investor set forth in Section 5 hereof, the Company has taken all action necessary to
exempt (i) the issuance and sale of the Shares, and (ii) the other transactions contemplated by the
Transaction Documents from the provisions of any stockholder rights plan or other “poison pill”
arrangement, any anti-takeover, business combination or control share law or statute binding on the
Company or to which the Company or any of its assets and properties may be subject and any
provision of the Company’s Amended and Restated Articles of Incorporation or Amended and Restated
Bylaws that is or could reasonably be expected to become applicable to the Investors as a result of
the transactions contemplated hereby, including without limitation, the issuance of the Shares and
the ownership, disposition or voting of the Shares by the Investors or the exercise of any right
granted to the Investors pursuant to this Agreement or the other Transaction Documents.
4.6 Delivery of SEC Filings; Business. The Company has made available to the
Investors through the XXXXX system, true and complete copies of the Company’s most recent Annual
Report on Form 10-K for the fiscal year ended December 31, 2008 (the “10-K”), and all other
reports filed by the Company pursuant to the 1934 Act since the filing of the 10-K and prior to the
date hereof, as amended to date (collectively, the “SEC Filings”). The SEC Filings are the
only filings required of the Company pursuant to the 1934 Act for such period. The Company and its
Subsidiaries are engaged in all material respects only in the business described in the SEC Filings
and the SEC Filings contain a complete and accurate description in all material respects of the
business of the Company and its Subsidiaries, taken as a whole.
4.7 Use of Proceeds. The net proceeds of the sale of the Shares hereunder shall be
used by the Company only for working capital and general corporate purposes and shall not be used
for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in
the ordinary course of the Company’s business and prior practices).
4.8 No Material Adverse Change. Since December 31, 2008, except as identified and
described in the SEC Filings or as described on Schedule 4.8, there has not been:
(i) any change in the consolidated assets, liabilities, financial condition or operating
results of the Company from that reflected in the financial statements included in the Company’s
Quarterly Report on Form 10-Q for the quarter ended June 30, 2009, except for changes in the
ordinary course of business which have not had and could not reasonably be expected to have a
Material Adverse Effect, individually or in the aggregate;
(ii) any declaration or payment of any dividend, or any authorization or payment of any
distribution, on any of the capital stock of the Company, or any redemption or repurchase of any
securities of the Company;
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(iii) any material damage, destruction or loss, whether or not covered by insurance to any
assets or properties of the Company or its Subsidiaries;
(iv) any waiver, not in the ordinary course of business, by the Company or any Subsidiary of a
material right or of a material debt owed to it;
(v) any satisfaction or discharge of any lien, claim or encumbrance or payment of any
obligation by the Company or a Subsidiary, except in the ordinary course of business and which is
not material to the assets, properties, financial condition, operating results or business of the
Company and its Subsidiaries taken as a whole (as such business is presently conducted and as it is
proposed to be conducted);
(vi) any change or amendment to the Company’s Amended and Restated Articles of Incorporation
or Amended and Restated Bylaws, or material change to any material contract or arrangement by which
the Company or any Subsidiary is bound or to which any of their respective assets or properties is
subject;
(vii) any material labor difficulties or labor union organizing activities with respect to
employees of the Company or any Subsidiary;
(viii) any material transaction entered into by the Company or a Subsidiary other than in the
ordinary course of business, except for the AIM Offering;
(ix) the loss of the services of any key employee, or material change in the composition or
duties of the senior management of the Company or any Subsidiary;
(x) the loss or threatened loss of any customer which has had or could reasonably be expected
to have a Material Adverse Effect; or
(xi) any other event or condition of any character that has had or could reasonably be
expected to have a Material Adverse Effect.
4.9 SEC Filings; S-3 Eligibility.
(a) Except as described on Schedule 4.9, at the time of filing thereof, the SEC
Filings complied as to form in all material respects with the requirements of the 1934 Act and did
not contain any untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(b) Each registration statement and any amendment thereto filed by the Company since January
1, 2006 pursuant to the 1933 Act and the rules and regulations thereunder, as of the date such
statement or amendment became effective, complied as to form in all material respects with the 1933
Act and did not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements made therein not
misleading; and each prospectus filed pursuant to Rule 424(b)
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under the 1933 Act, as of its issue date and as of the closing of any sale of securities pursuant
thereto did not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading.
(c) The Company is eligible to use Form S-3 to register the Registrable Securities (as such
term is defined in the Registration Rights Agreement) for sale by the Investors as contemplated by
the Registration Rights Agreement.
4.10 No Conflict, Breach, Violation or Default. The execution, delivery and
performance of the Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated hereby or thereby including the issuance and sale of the Shares will not
conflict with or result in a breach or violation of any of the terms and provisions of, or
constitute a default under (i) the Company’s Amended and Restated Articles of Incorporation or the
Company’s Amended and Restated Bylaws, both as in effect on the date hereof (true and complete
copies of which have been made available to the Investors through the XXXXX system), (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the properties or assets of the
Company or give to others any rights of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of, any Material Contract or (iii)(a) any statute, rule,
regulation or order of any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company, any Subsidiary or any of their respective assets or properties, or
(b) any agreement or instrument to which the Company or any Subsidiary is a party or by which the
Company or a Subsidiary is bound or to which any of their respective assets or properties is
subject.
4.11 Tax Matters. The Company and each Subsidiary has timely filed all tax returns
required to have been filed by the Company or such Subsidiary with all appropriate governmental
agencies and timely paid all taxes shown thereon or otherwise owed by it. The charges, accruals
and reserves on the books of the Company in respect of taxes for all fiscal periods are adequate in
all material respects, and there are no material unpaid assessments against the Company or any
Subsidiary nor, to the Company’s Knowledge, any basis for the assessment of any additional taxes,
penalties or interest for any fiscal period or audits by any federal, state or local taxing
authority except for any assessment which is not material to the Company and its Subsidiaries,
taken as a whole. All taxes and other assessments and levies that the Company or any Subsidiary is
required to withhold or to collect for payment have been duly withheld and collected and paid to
the proper governmental entity or third party when due. There are no tax liens or claims pending
or, to the Company’s Knowledge, threatened against the Company or any Subsidiary or any of their
respective assets or property. Except as described on Schedule 4.11, there are no
outstanding tax sharing agreements or other such arrangements between the Company and any
Subsidiary or other corporation or entity.
4.12 Title to Properties. Except as disclosed in the SEC Filings, the Company and
each Subsidiary has good and marketable title to all real properties and all other properties and
assets owned by it, in each case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or currently planned
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to be made thereof by them; and except as disclosed in the SEC Filings, the Company and each
Subsidiary holds any leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or currently planned to be made
thereof by them.
4.13 Certificates, Authorities and Permits. The Company and each Subsidiary possess
adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by it except those that the failure to possess have
not had and could not reasonably be expected to have a Material Adverse Effect, individually or in
the aggregate, and neither the Company nor any Subsidiary has received any written notice of
proceedings relating to the revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or such Subsidiary, could reasonably be expected to
have a Material Adverse Effect, individually or in the aggregate.
4.14 Labor Matters.
(a) Except as set forth on Schedule 4.14, the Company is not a party to or bound by
any collective bargaining agreements or other agreements with labor organizations. The Company has
not violated in any material respect any laws, regulations, orders or contract terms, affecting the
collective bargaining rights of employees, labor organizations or any laws, regulations or orders
affecting employment discrimination, equal opportunity employment, or employees’ health, safety,
welfare, wages and hours.
(b) (i) There are no labor disputes existing, or to the Company’s Knowledge, threatened,
involving strikes, slow-downs, work stoppages, job actions, disputes, lockouts or any other
disruptions of or by the Company’s employees, (ii) there are no unfair labor practices or petitions
for election pending or, to the Company’s Knowledge, threatened before the National Labor Relations
Board or any other federal, state or local labor commission relating to the Company’s employees,
(iii) no demand for recognition or certification heretofore made by any labor organization or group
of employees is pending with respect to the Company and (iv) to the Company’s Knowledge, the
Company enjoys good labor and employee relations with its employees and labor organizations.
(c) The Company is, and at all times has been, in compliance with all applicable laws
respecting employment (including laws relating to classification of employees and independent
contractors) and employment practices, terms and conditions of employment, wages and hours, and
immigration and naturalization except for such instances of noncompliance as have not had and could
not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate.
There are no claims pending against the Company before the Equal Employment Opportunity Commission
or any other administrative body or in any court asserting any violation of Title VII of the Civil
Rights Act of 1964, the Age Discrimination Act of 1967, 42 U.S.C. §§ 1981 or 1983 or any other
federal, state or local Law, statute or ordinance barring discrimination in employment.
(d) Except as disclosed in the SEC Filings or as described on Schedule 4.14, the
Company is not a party to, or bound by, any employment or other contract or agreement that
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contains any severance, termination pay or change of control liability or obligation, including,
without limitation, any “excess parachute payment,” as defined in Section 280G(b) of the Internal
Revenue Code.
(e) Except as specified in Schedule 4.14, each of the Company’s employees is a Person
who is either a United States citizen or a permanent resident entitled to work in the United
States. To the Company’s Knowledge, the Company has no liability for the improper classification
by the Company of such employees as independent contractors or leased employees prior to the
Closing.
4.15 Intellectual Property.
(a) All Intellectual Property of the Company and its Subsidiaries is currently in compliance
with all legal requirements (including timely filings, proofs and payments of fees) and is valid
and enforceable except for such instances of noncompliance as have not had and could not reasonably
be expected to have a Material Adverse Effect, individually or in the aggregate. No Intellectual
Property of the Company or its Subsidiaries which is necessary for the conduct of Company’s and
each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to
be conducted has been or is now involved in any cancellation, dispute or litigation, and, to the
Company’s Knowledge, no such action is threatened. No patent of the Company or its Subsidiaries
has been or is now involved in any interference, reissue, re-examination or opposition proceeding.
(b) All of the licenses and sublicenses and consent, royalty or other agreements concerning
Intellectual Property which are necessary for the conduct of the Company’s and each of its
Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted
to which the Company or any Subsidiary is a party or by which any of their assets are bound (other
than generally commercially available, non-custom, off-the-shelf software application programs
having a retail acquisition price of less than $10,000 per license) (collectively, “License
Agreements”) are valid and binding obligations of the Company or its Subsidiaries that are
parties thereto and, to the Company’s Knowledge, the other parties thereto, enforceable in
accordance with their terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws
affecting the enforcement of creditors’ rights generally, and, to the Company’s Knowledge, there
exists no event or condition which will result in a material violation or breach of or constitute
(with or without due notice or lapse of time or both) a default by the Company or any of its
Subsidiaries under any such License Agreement.
(c) The Company and its Subsidiaries own or have the valid right to use all of the
Intellectual Property that is necessary for the conduct of the Company’s and each of its
Subsidiaries’ respective businesses as currently conducted and for the ownership, maintenance and
operation of the Company’s and its Subsidiaries’ properties and assets, free and clear of all
liens, encumbrances, adverse claims or obligations to license all such owned Intellectual Property
and Confidential Information, other than licenses entered into in the ordinary course of the
Company’s and its Subsidiaries’ businesses. The Company and its Subsidiaries have a valid and
enforceable right to use all third party Intellectual Property and
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Confidential Information used or held for use in the respective businesses of the Company and its
Subsidiaries.
(d) To the Company’s Knowledge, the conduct of the Company’s and its Subsidiaries’ businesses
as currently conducted does not infringe or otherwise impair or conflict with (collectively,
“Infringe”) any Intellectual Property rights of any third party or any confidentiality
obligation owed to a third party, and, to the Company’s Knowledge, the Intellectual Property and
Confidential Information of the Company and its Subsidiaries which are necessary for the conduct of
Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as
currently proposed to be conducted are not being Infringed by any third party. There is no
litigation or order pending or outstanding or, to the Company’s Knowledge, threatened or imminent,
that seeks to limit or challenge or that concerns the ownership, use, validity or enforceability of
any Intellectual Property or Confidential Information of the Company and its Subsidiaries and the
Company’s and its Subsidiaries’ use of any Intellectual Property or Confidential Information owned
by a third party, and, to the Company’s Knowledge, there is no valid basis for the same.
(e) The consummation of the transactions contemplated hereby and by the other Transaction
Documents will not result in the alteration, loss, impairment of or restriction on the Company’s or
any of its Subsidiaries’ ownership or right to use any of the Intellectual Property or Confidential
Information which is necessary for the conduct of Company’s and each of its Subsidiaries’
respective businesses as currently conducted or as currently proposed to be conducted.
(f) The Company and its Subsidiaries have taken reasonable steps to protect the Company’s and
its Subsidiaries’ rights in their Intellectual Property and Confidential Information. Each
employee, consultant and contractor who has had access to Confidential Information which is
necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as
currently conducted or as currently proposed to be conducted has executed an agreement to maintain
the confidentiality of such Confidential Information and has executed appropriate agreements that
are substantially consistent with the Company’s standard forms thereof. Except under
confidentiality obligations, there has been no material disclosure of any of the Company’s or its
Subsidiaries’ Confidential Information to any third party.
4.16 Environmental Matters. Neither the Company nor any Subsidiary is in violation of
any statute, rule, regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, “Environmental Laws”), owns or operates any real property
contaminated with any substance that is subject to any Environmental Laws, is liable for any
off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim
relating to any Environmental Laws, which violation, contamination, liability or claim has had or
could reasonably be expected to have a Material Adverse Effect, individually or in the aggregate;
and, to the Company’s Knowledge, there is no pending or threatened investigation that might lead to
such a claim.
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4.17 Litigation. Except as described on Schedule 4.17, there are no pending
actions, suits or proceedings against or affecting the Company, its Subsidiaries or any of its or
their properties; and to the Company’s Knowledge, no such actions, suits or proceedings are
threatened or contemplated. Neither the Company nor any Subsidiary, nor any director or officer
thereof, is or has been the subject of any action involving a claim of violation of or liability
under federal or state securities laws or a claim of breach of fiduciary duty that is material or
that is otherwise required to be disclosed in the SEC Filings. There has not been, and to the
Company’s Knowledge, there is not pending or contemplated, any investigation by the SEC involving
the Company or any current or former director or officer of the Company. The SEC has not issued
any stop order or other order suspending the effectiveness of any registration statement filed by
the Company or any Subsidiary under the 1933 Act or the 1934 Act.
4.18 Financial Statements. The financial statements of the Company included in each
SEC Filing comply in all material respects with applicable accounting requirements and the rules
and regulations of the SEC with respect thereto as in effect at the time of filing (or to the
extent corrected by a subsequent restatement) and present fairly, in all material respects, the
consolidated financial position of the Company as of the dates shown and its consolidated results
of operations and cash flows for the periods shown, and such financial statements have been
prepared in conformity with United States generally accepted accounting principles (“GAAP”)
applied on a consistent basis during the periods involved (except as may be disclosed therein or in
the notes thereto, and, in the case of quarterly financial statements, as permitted by Form 10-Q
under the 1934 Act). Except as set forth in the financial statements of the Company included in
the SEC Filings filed prior to the date hereof or as described on Schedule 4.18, neither
the Company nor any of its Subsidiaries has incurred any liabilities, contingent or otherwise,
except those incurred in the ordinary course of business, consistent (as to amount and nature) with
past practices since the date of such financial statements, none of which, individually or in the
aggregate, have had or could reasonably be expected to have a Material Adverse Effect.
4.19 Insurance Coverage. The Company and each Subsidiary maintains in full force and
effect insurance coverage that is customary for comparably situated companies for the business
being conducted and properties owned or leased by the Company and each Subsidiary, and the Company
reasonably believes such insurance coverage to be adequate against all liabilities, claims and
risks against which it is customary for comparably situated companies to insure.
4.20 Compliance with NYSE Amex Continued Listing Requirements. The Company is in
compliance with applicable NYSE Amex continued listing requirements. There are no proceedings
pending or, to the Company’s Knowledge, threatened against the Company relating to the continued
listing of the Common Stock on NYSE Amex and the Company has not received any written notice of,
nor to the Company’s Knowledge is there any basis for, the delisting of the Common Stock from NYSE
Amex.
4.21 Brokers and Finders. No Person will have, as a result of the transactions
contemplated by the Transaction Documents, any valid right, interest or claim against or upon the
Company, any Subsidiary or an Investor for any commission, fee or other compensation
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pursuant to any agreement, arrangement or understanding entered into by or on behalf of the
Company, other than as described in Schedule 4.21.
4.22 No Directed Selling Efforts or General Solicitation. Neither the Company nor any
Person acting on its behalf has conducted any “general solicitation” or “general advertising” (as
those terms are used in Regulation D) in connection with the offer or sale of any of the Shares.
4.23 No Integrated Offering. Neither the Company nor any of its Affiliates, nor any
Person acting on its or their behalf has, directly or indirectly, at any time within the past six
months, made any offers or sales of any Company security or solicited any offers to buy any
security, under circumstances that would adversely affect reliance by the Company on Section 4(2)
for the exemption from registration for the transactions contemplated hereby or would require
registration of the Shares under the 1933 Act.
4.24 Private Placement. The offer and sale of the Shares to the Investors as
contemplated hereby is exempt from the registration requirements of the 1933 Act.
4.25 Questionable Payments. Neither the Company nor any of its Subsidiaries nor, to
the Company’s Knowledge, any of their respective current or former stockholders, directors,
officers, employees, agents or other Persons acting on behalf of the Company or any Subsidiary, has
on behalf of the Company or any Subsidiary or in connection with their respective businesses: (a)
used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity; (b) made any direct or indirect unlawful payments to any
governmental officials or employees from corporate funds; (c) established or maintained any
unlawful or unrecorded fund of corporate monies or other assets; (d) made any false or fictitious
entries on the books and records of the Company or any Subsidiary; or (e) made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment of any nature.
4.26 Transactions with Affiliates. Except as disclosed in the SEC Filings or as
disclosed on Schedule 4.26, none of the officers or directors of the Company and, to the
Company’s Knowledge, none of the employees of the Company is presently a party to any transaction
with the Company or any Subsidiary (other than as holders of stock options and/or warrants, and for
services as employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any officer, director or
such employee or, to the Company’s Knowledge, any entity in which any officer, director, or any
such employee has a substantial interest or is an officer, director, trustee or partner.
4.27 Internal Controls. The Company is in material compliance with the provisions of
the Xxxxxxxx-Xxxxx Act of 2002 currently applicable to the Company. The Company and the
Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit
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preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences. The
Company has established disclosure controls and procedures (as defined in 1934 Act Rules 13a-15(e)
and 15d-15(e)) for the Company and designed such disclosure controls and procedures to ensure that
material information relating to the Company, including the Subsidiaries, is made known to the
certifying officers by others within those entities, particularly during the period in which the
Company’s most recently filed periodic report under the 1934 Act, as the case may be, is being
prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s
controls and procedures as of the end of the period covered by the most recently filed periodic
report under the 1934 Act (such date, the “Evaluation Date”). The Company presented in its
most recently filed periodic report under the 1934 Act the conclusions of the certifying officers
about the effectiveness of the disclosure controls and procedures based on their evaluations as of
the Evaluation Date. Since the Evaluation Date, there have been no significant changes in the
Company’s internal controls (as such term is defined in Item 308 of Regulation S-K) or, to the
Company’s Knowledge, in other factors that could significantly affect the Company’s internal
controls. The Company maintains and will continue to maintain a standard system of accounting
established and administered in accordance with GAAP and the applicable requirements of the 0000
Xxx.
4.28 Disclosures. Neither the Company nor any Person acting on its behalf has
provided the Investors or their agents or counsel with any information that constitutes or might
constitute material, non-public information, other than the terms of the transactions contemplated
hereby. The written materials delivered to the Investors in connection with the transactions
contemplated by the Transaction Documents do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements contained therein, in light
of the circumstances under which they were made, not misleading.
4.29 Investment Company. The Company is not required to be registered as, and is not
an Affiliate of, and immediately following the Closing will not be required to register as, an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.
5. Representations and Warranties of the Investors. Each of the Investors hereby
severally, and not jointly, represents and warrants to the Company that:
5.1 Organization and Existence. Such Investor is a validly existing corporation,
foundation, trust, limited partnership or limited liability company and has all requisite
corporate, partnership or limited liability company power and authority to invest in the Shares
pursuant to this Agreement.
5.2 Authorization. The execution, delivery and performance by such Investor of the
Transaction Documents to which such Investor is a party have been duly authorized and each will
constitute the valid and legally binding obligation of such Investor, enforceable against such
Investor in accordance with their respective terms, subject to bankruptcy, insolvency,
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fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating
to or affecting creditors’ rights generally.
5.3 Purchase Entirely for Own Account. The Shares to be received by such Investor
hereunder will be acquired for such Investor’s own account, not as nominee or agent, and not with a
view to the resale or distribution of any part thereof in violation of the 1933 Act, and such
Investor has no present intention of selling, granting any participation in, or otherwise
distributing the same in violation of the 1933 Act without prejudice, however, to such Investor’s
right at all times to sell or otherwise dispose of all or any part of such Shares in compliance
with applicable federal and state securities laws. Nothing contained herein shall be deemed a
representation or warranty by such Investor to hold the Shares for any period of time. Such
Investor is not a broker-dealer registered with the SEC under the 1934 Act or an entity engaged in
a business that would require it to be so registered.
5.4 Investment Experience. Such Investor acknowledges that it can bear the economic
risk and complete loss of its investment in the Shares and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and risks of the
investment contemplated hereby.
5.5 Disclosure of Information. Such Investor has had an opportunity to receive all
information related to the Company requested by it and to ask questions of and receive answers from
the Company regarding the Company, its business and the terms and conditions of the offering of the
Shares. Such Investor acknowledges receipt of copies of the SEC Filings. Neither such inquiries
nor any other due diligence investigation conducted by such Investor shall modify, limit or
otherwise affect such Investor’s right to rely on the Company’s representations and warranties
contained in this Agreement.
5.6 Restricted Securities. Such Investor understands that the Shares are
characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they
are being acquired from the Company in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may be resold without registration under the
1933 Act only in certain limited circumstances.
5.7 Legends. It is understood that, except as provided below, certificates evidencing
the Shares may bear the following or any similar legend:
(a) “The securities represented hereby may not be transferred unless (i) such securities have
been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities
may be sold without restriction pursuant to Rule 144, or (iii) the Company has received an opinion
of counsel reasonably satisfactory to it that such transfer may lawfully be made without
registration under the Securities Act of 1933 or qualification under applicable state securities
laws.”
(b) If required by the authorities of any state in connection with the issuance of sale of the
Shares, the legend required by such state authority.
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5.8 Accredited Investor. Such Investor is an accredited investor as defined in Rule
501(a) of Regulation D, as amended, under the 0000 Xxx.
5.9 No General Solicitation. Such Investor did not learn of the investment in the
Shares as a result of any general solicitation or general advertising.
5.10 Brokers and Finders. No Person will have, as a result of the transactions
contemplated by the Transaction Documents, any valid right, interest or claim against or upon the
Company, any Subsidiary or an Investor for any commission, fee or other compensation pursuant to
any agreement, arrangement or understanding entered into by or on behalf of such Investor.
5.11 Prohibited Transactions. Since the earlier of (a) such time as such Investor was
first contacted by the Company or any other Person acting on behalf of the Company regarding the
transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such
Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions
contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or
trading or information concerning such Investor’s investments, including in respect of the Shares,
or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or
trading (collectively, “Trading Affiliates”) has, directly or indirectly, effected or
agreed to effect any short sale, whether or not against the box, established any “put equivalent
position” (as defined in Rule 16a-1(h) under the 0000 Xxx) with respect to the Common Stock,
granted any other right (including, without limitation, any put or call option) with respect to the
Common Stock or with respect to any security that includes, relates to or derived any significant
part of its value from the Common Stock or otherwise sought to hedge its position in the Shares
(each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination
of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Investor shall
not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a Prohibited
Transaction. Such Investor acknowledges that the representations, warranties and covenants
contained in this Section 5.11 are being made for the benefit of the Investors as well as
the Company and that each of the other Investors shall have an independent right to assert any
claims against such Investor arising out of any breach or violation of the provisions of this
Section 5.11.
6. Conditions to Closing.
6.1 Conditions to the Investors’ Obligations. The obligation of each Investor to
purchase the Shares at the Closing is subject to the fulfillment to such Investor’s satisfaction,
on or prior to the Closing Date, of the following conditions, any of which may be waived by such
Investor (as to itself only):
(a) The representations and warranties made by the Company in Section 4 hereof
qualified as to materiality shall be true and correct at all times prior to and on the Closing
Date, except to the extent any such representation or warranty expressly speaks as of an earlier
date, in which case such representation or warranty shall be true and correct as of such earlier
date, and, the representations and warranties made by the Company in Section 4 hereof
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not qualified as to materiality shall be true and correct in all material respects at all times
prior to and on the Closing Date, except to the extent any such representation or warranty
expressly speaks as of an earlier date, in which case such representation or warranty shall be true
and correct in all material respects as of such earlier date. The Company shall have performed in
all material respects all obligations and covenants herein required to be performed by it on or
prior to the Closing Date.
(b) The Company shall have obtained any and all consents, permits, approvals, registrations
and waivers (including, without limitation, approval of the Proposal by its stockholders in
accordance with applicable law and the applicable requirements of the NYSE Amex) necessary or
appropriate for consummation of the purchase and sale of the Shares and the consummation of the
other transactions contemplated by the Transaction Documents, all of which shall be in full force
and effect.
(c) The Company shall have executed and delivered the Registration Rights Agreement.
(d) The Shares shall have been approved for listing on the NYSE Amex, subject to official
notice of issuance.
(e) The Company shall have received gross proceeds of at least Eight Million Dollars
($8,000,000) from either or both of (i) the sale of the Shares as contemplated hereby and (ii) the
AIM Offering.
(f) No judgment, writ, order, injunction, award or decree of or by any court, or judge,
justice or magistrate, including any bankruptcy court or judge, or any order of or by any
governmental authority, shall have been issued, and no action or proceeding shall have been
instituted by any governmental authority, enjoining or preventing the consummation of the
transactions contemplated hereby or in the other Transaction Documents.
(g) The Company shall have delivered a Certificate, executed on behalf of the Company by its
Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying to
the fulfillment of the conditions specified in subsections (a), (b), (e), (f) and (j) of this
Section 6.1.
(h) The Company shall have delivered a Certificate, executed on behalf of the Company by its
Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of
Directors of the Company approving the transactions contemplated by this Agreement and the other
Transaction Documents and the issuance of the Shares, certifying the current versions of the
Amended and Restated Articles of Incorporation and Amended and Restated Bylaws of the Company and
certifying as to the signatures and authority of persons signing the Transaction Documents and
related documents on behalf of the Company.
(i) The Investors shall have received an opinion from ReedSmith LLP, the Company’s counsel,
dated as of the Closing Date, substantially in the form of Exhibit B attached hereto.
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(j) No stop order or suspension of trading shall have been imposed by NYSE Amex, the London
Stock Exchange, the SEC or any other governmental or regulatory body with respect to public trading
in the Common Stock.
6.2 Conditions to Obligations of the Company. The Company’s obligation to sell and
issue the Shares at the Closing is subject to the fulfillment to the satisfaction of the Company on
or prior to the Closing Date of the following conditions, any of which may be waived by the
Company:
(a) The representations and warranties made by the Investors in Section 5 hereof,
other than the representations and warranties contained in Sections 5.3, 5.4,
5.5, 5.6, 5.7, 5.8 and 5.9 (the “Investment
Representations”), shall be true and correct in all material respects when made, and shall be
true and correct in all material respects on the Closing Date with the same force and effect as if
they had been made on and as of said date. The Investment Representations shall be true and
correct in all respects when made, and shall be true and correct in all respects on the Closing
Date with the same force and effect as if they had been made on and as of said date. The Investors
shall have performed in all material respects all obligations and covenants herein required to be
performed by them on or prior to the Closing Date.
(b) The Investors named as parties thereto shall have executed and delivered the Registration
Rights Agreement.
(c) The Investors shall have delivered the Purchase Price to the Company.
(d) The Company shall have obtained the approval of the Proposal by its stockholders in
accordance with applicable law and the applicable requirements of the NYSE Amex.
(e) No stop order or suspension of trading shall have been imposed by NYSE Amex, the London
Stock Exchange, the SEC or any other governmental or regulatory body with respect to public trading
in the Common Stock.
6.3 Termination of Obligations to Effect Closing; Effects.
(a) The obligations of the Company, on the one hand, and the Investors, on the other hand, to
effect the Closing shall terminate as follows:
(i) Upon the mutual written consent of the Company and the Investors;
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(ii) By the Company if any of the conditions set forth in Section 6.2 shall have
become incapable of fulfillment, and shall not have been waived by the Company;
(iii) By an Investor (with respect to itself only) if any of the conditions set forth in
Section 6.1 shall have become incapable of fulfillment, and shall not have been waived by
the Investor; or
(iv) By either the Company or any Investor (with respect to itself only) if the Closing has
not occurred on or prior to December 31, 2009;
provided, however, that, except in the case of clause (i) above, the party seeking to terminate its
obligation to effect the Closing shall not then be in breach of any of its representations,
warranties, covenants or agreements contained in this Agreement or the other Transaction Documents
if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate
its obligation to effect the Closing.
(b) In the event of termination by the Company or any Investor of its obligations to effect
the Closing pursuant to this Section 6.3, written notice thereof shall forthwith be given
to the other Investors by the Company and the other Investors shall have the right to terminate
their obligations to effect the Closing upon written notice to the Company and the other Investors.
Nothing in this Section 6.3 shall be deemed to release any party from any liability for
any breach by such party of the terms and provisions of this Agreement or the other Transaction
Documents or to impair the right of any party to compel specific performance by any other party of
its obligations under this Agreement or the other Transaction Documents.
7. Covenants and Agreements of the Company. So long as the Investors own any Shares
and subject to the provisions of Section 7.6:
7.1 Reports. From and after the Closing, the Company will furnish to the Investors
and/or their assignees such information relating to the Company and its Subsidiaries as from time
to time may reasonably be requested by the Investors and/or their assignees; provided, however,
that the Company shall not disclose material nonpublic information to the Investors, or to advisors
to or representatives of the Investors, unless prior to disclosure of such information the Company
identifies such information as being material nonpublic information and provides the Investors,
such advisors and representatives with the opportunity to accept or refuse to accept such material
nonpublic information for review and any Investor wishing to obtain such information enters into an
appropriate confidentiality agreement with the Company with respect thereto.
7.2 No Conflicting Agreements. The Company will not take any action, enter into any
agreement or make any commitment that would conflict or interfere in any material respect with the
Company’s obligations to the Investors under the Transaction Documents.
7.3 [reserved]
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7.4 [reserved]
7.5 Listing of Underlying Shares and Related Matters. Promptly following the date
hereof, the Company shall take all necessary action to cause the Shares to be listed on the NYSE
Amex Global Market no later than the Closing Date. Further, if the Company applies to have its
Common Stock or other securities traded on any other principal stock exchange or market in the
United States, it shall include in such application the Shares and will take such other action as
is necessary to cause such Common Stock to be so listed. So long as the Common Stock is publicly
traded in the United States, the Company will use commercially reasonable efforts to continue the
listing and trading of its Common Stock on the NYSE Amex or the Nasdaq Stock Market and, in
accordance, therewith, will use commercially reasonable efforts to comply in all respects with the
Company’s reporting, filing and other obligations under the bylaws or rules of such market or
exchange, as applicable.
7.6 Termination of Covenants. The provisions of Sections 7.1 through
7.4 shall terminate and be of no further force and effect on the date on which the Shares
no longer constitute Registrable Securities (as such term is defined in the Registration Rights
Agreement).
7.7 Removal of Legends. In connection with any sale or disposition of the Shares by
an Investor pursuant to Rule 144 or pursuant to any other exemption under the 1933 Act such that
the purchaser acquires freely tradable shares and upon compliance by the Investor with the
requirements of this Agreement, the Company shall cause the transfer agent for the Common Stock
(the “Transfer Agent”) to issue replacement certificates representing the Shares sold or
disposed of without restrictive legends. Upon the earlier of (i) registration for resale pursuant
to the Registration Rights Agreement or (ii) the Shares becoming freely tradable by a non-affiliate
pursuant to Rule 144 the Company shall (A) deliver to the Transfer Agent irrevocable instructions
that the Transfer Agent shall reissue a certificate representing shares of Common Stock without
legends upon receipt by such Transfer Agent of the legended certificates for such shares, together
with either (1) a customary representation by the Investor that Rule 144 applies to the shares of
Common Stock represented thereby or (2) a written statement by the Investor in customary form that
such Investor has sold the shares of Common Stock represented thereby in accordance with the Plan
of Distribution contained in the Registration Statement, and (B) cause its counsel to deliver to
the Transfer Agent one or more blanket opinions to the effect that the removal of such legends in
such circumstances may be effected under the 1933 Act (except, in the case of clause (ii) only,
during any Blackout Period (as defined in the Registration Rights Agreement). From and after the
earlier of such dates, upon an Investor’s written request, the Company shall promptly cause
certificates evidencing the Investor’s Shares to be replaced with certificates which do not bear
such restrictive legends. When the Company is required to cause an unlegended certificate to
replace a previously issued legended certificate, if: (1) the unlegended certificate is not
delivered to an Investor within three (3) Business Days of submission by that Investor of a
legended certificate and supporting documentation to the Transfer Agent as provided above and (2)
prior to the time such unlegended certificate is received by the Investor, the Investor, or any
third party on behalf of such Investor or for the Investor’s account, purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Investor of shares represented by such certificate (a “Buy-In”), then the Company shall pay
in cash to the Investor (for costs incurred either
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directly by such Purchaser or on behalf of a third party) the amount by which the total purchase
price paid for Common Stock as a result of the Buy-In (including brokerage commissions, if any)
exceeds the proceeds received by such Investor as a result of the sale to which such Buy-In
relates. The Investor shall provide the Company written notice indicating the amounts payable to
the Investor in respect of the Buy-In.
7.8 Subsequent Equity Sales.
(a) From the date hereof until the earlier of (i) 270 days after the Closing Date and (ii)
thirty (30) days after the Effective Date, without the consent of the Required Investors, neither
the Company nor any Subsidiary shall issue shares of Common Stock or Common Stock Equivalents.
Notwithstanding the foregoing, the provisions of this Section 7.8(a) shall not apply to (i)
the issuance of Common Stock or Common Stock Equivalents upon the conversion or exercise of any
securities of the Company or a Subsidiary outstanding on the date hereof, provided that the terms
of such security are not amended after the date hereof to decrease the exercise price or increase
the Common Stock or Common Stock Equivalents receivable upon the exercise, conversion or exchange
thereof, (ii) the issuance of any Common Stock or Common Stock Equivalents pursuant to any Company
equity incentive plan approved by the Company’s stockholders and in place as of the date hereof,
(iii) the issuance of Common Stock or Common Stock Equivalents pursuant to acquisitions of other
entities by the Company by merger, purchase of substantially all of the assets or other
reorganization, (iv) the issuance of Common Stock or Common Stock Equivalents in connection with
strategic transactions or joint ventures approved by a majority of the disinterested directors of
the Company (but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in
securities), (v) the issuance of Common Stock or Common Stock Equivalents to banks or other
regulated financial institutions, or to real or personal property lessors, pursuant to a debt
financing, equipment leasing or real property leasing transaction, or (vi) the issuance of Common
Stock pursuant to the AIM Offering.
(b) From the date hereof until the earlier of (i) three years from the Closing Date or (ii)
such time as no Investor holds any of the Shares, the Company shall be prohibited from effecting or
entering into an agreement to effect any “Variable Rate Transaction”. The term “Variable
Rate Transaction” shall mean a transaction in which the Company issues or sells (i) any debt or
equity securities that are convertible into, exchangeable or exercisable for, or include the right
to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate
or other price that is based upon and/or varies with the trading prices of or quotations for the
shares of Common Stock at any time after the initial issuance of such debt or equity securities, or
(B) with a conversion, exercise or exchange price that is subject to being reset at some future
date after the initial issuance of such debt or equity security or upon the occurrence of specified
or contingent events directly or indirectly related to the business of the Company or the market
for the Common Stock or (ii) enters into any agreement, including, but not limited to, an equity
line of credit, whereby the Company may sell securities at a future determined price. For the
avoidance of doubt, the issuance of a security which is subject to customary anti-dilution
protections, including where the conversion, exercise or exchange price is subject to adjustment as
a result of stock splits, reverse stock splits and other similar
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recapitalization or reclassification events, shall not be deemed to be a “Variable Rate
Transaction.”
(c) The Company shall not, and shall use its commercially reasonable efforts to ensure that no
Affiliate of the Company shall, sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the 0000 Xxx) that will be
integrated with the offer or sale of the Shares in a manner that would require the registration
under the 1933 Act of the sale of the Shares to the Investors, or that will be integrated with the
offer or sale of the Shares for purposes of the rules and regulations of any trading market such
that it would require shareholder approval prior to the closing of such other transaction unless
shareholder approval is obtained before the closing of such subsequent transaction.
7.9 Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and
delivery of this Agreement the Company shall take all action necessary to call a meeting of its
stockholders (the “Stockholders Meeting”), which shall occur not later than December 28,
2009 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the
Company’s stockholders for the issuance and sale to the Investors of the Shares (the
“Proposal”). In connection therewith, the Company will promptly prepare and file with the
SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders
Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall
promptly mail such proxy materials to holders of record of the Company’s voting equity securities
as of the record date for the Stockholders Meeting. Each Investor shall promptly furnish in
writing to the Company such information relating to such Investor and its investment in the Company
as the Company may reasonably request for inclusion in the Proxy Statement. The Company will
comply in all material respects with Section 14(a) of the 1934 Act and the rules promulgated
thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy
Statement”) and any form of proxy to be sent to the stockholders of the Company in connection
with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy
Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at
the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements made therein not false or
misleading, or omit to state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies or the Stockholders Meeting which has
become false or misleading. If the Company should discover at any time prior to the Stockholders
Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective
affiliates, officers or directors that is required to be set forth in a supplement or amendment to
the Proxy Statement, in addition to the Company’s obligations under the 1934 Act, the Company will
promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith
by the Company’s Board of Directors after consultation with the Company’s outside counsel), the
Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders
vote in favor of the Proposal (the “Company Board Recommendation”) and take all
commercially reasonable action (including, without limitation, soliciting shareholders to vote for
the Proposal to the extent permitted pursuant to applicable law) to solicit the approval of the
stockholders for the Proposal unless the Board of Directors
-22-
shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the
provisions of the immediately succeeding sentence. The Company covenants that the Board of
Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation
unless the Board of Directors (after consultation with the Company’s outside counsel) shall
determine in the good faith exercise of its business judgment that maintaining the Company Board
Recommendation would violate its fiduciary duty to the Company’s stockholders. Whether or not the
Company’s Board of Directors modifies, amends or withdraws the Company Board Recommendation
pursuant to the immediately preceding sentence, the Company shall (i) take all action necessary to
convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders
Meeting Deadline, to consider and vote upon the approval of the Proposal and (ii) submit the
Proposal at the Stockholders Meeting to the stockholders of the Company for their approval.
7.10 Equal Treatment of Investors. No consideration shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of any of the Transaction
Documents unless the same consideration is also offered to all of the parties to the Transaction
Documents. For clarification purposes, this provision constitutes a separate right granted to each
Investor by the Company and negotiated separately by each Investor, and is intended for the Company
to treat the Investors as a class and shall not in any way be construed as the Investors acting in
concert or as a group with respect to the purchase, disposition or voting of Shares or otherwise.
7.11 Form D and Blue Sky. The Company shall timely file a Form D with respect to the
Shares as required under Regulation D and provide a copy thereof to each Investor who requests a
copy in writing promptly after such filing. The Company, on or before the Closing Date, shall take
such action as the Company shall reasonably determine is necessary in order to obtain an exemption
for or to qualify the Shares for sale to the Investor at the Closing pursuant to this Agreement
under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an
exemption from such qualification), and shall provide evidence of any such action so taken to each
Investor who requests in writing such evidence on or prior to the Closing Date. The Company shall
make all filings and reports relating to the offer and sale of the Shares required under applicable
securities or “Blue Sky” laws of the states of the United States following the Closing Date.
8. Survival and Indemnification.
8.1 Survival. The representations, warranties, covenants and agreements contained in
this Agreement shall survive the Closing of the transactions contemplated by this Agreement.
8.2 Indemnification. The Company agrees to indemnify and hold harmless each Investor
and its Affiliates and their respective directors, officers, trustees, managers, members, employees
and agents, and their respective successors and assigns, from and against any and all losses,
claims, damages, liabilities and expenses (including without limitation reasonable attorney fees
and disbursements and other expenses incurred in connection with investigating, preparing or
defending any action, claim or proceeding, pending or threatened
-23-
and the costs of enforcement thereof) (collectively, “Losses”) to which such Person
may become subject as a result of any breach of representation, warranty, covenant or agreement
made by, or to be performed on the part of, the Company under the Transaction Documents, and will
reimburse any such Person for all such amounts as they are incurred by such Person.
8.3 Conduct of Indemnification Proceedings. Any person entitled to indemnification
hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (a) the indemnifying party has agreed to pay such fees or expenses,
or (b) the indemnifying party shall have failed to assume the defense of such claim and employ
counsel reasonably satisfactory to such person or (c) in the reasonable judgment of any such
person, based upon written advice of its counsel, a conflict of interest exists between such person
and the indemnifying party with respect to such claims (in which case, if the person notifies the
indemnifying party in writing that such person elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such person); and provided, further, that the failure of
any indemnified party to give notice as provided herein shall not relieve the indemnifying party of
its obligations hereunder, except to the extent that such failure to give notice shall materially
adversely affect the indemnifying party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection with any proceeding in the same
jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any
time for all such indemnified parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or litigation.
9. Miscellaneous.
9.1 Successors and Assigns. This Agreement may not be assigned by a party hereto
without the prior written consent of the Company or the Investors, as applicable, provided,
however, that an Investor may assign its rights and delegate its duties hereunder in whole or in
part to an Affiliate or to a third party acquiring some or all of its Shares in a transaction
complying with applicable securities laws without the prior written consent of the Company or the
other Investors. The provisions of this Agreement shall inure to the benefit of and be binding
upon the respective permitted successors and assigns of the parties. Without limiting the
generality of the foregoing, in the event that the Company is a party to a merger, consolidation,
share exchange or similar business combination transaction in which the Common Stock is converted
into the equity securities of another Person, from and after the effective time of such
transaction, such Person shall, by virtue of such transaction, be deemed to have assumed the
obligations of the Company hereunder, the term “Company” shall be deemed to refer to such Person
and the term “Shares” shall be deemed to refer to the securities received by the Investors in
connection with such transaction. Nothing in this Agreement, express or implied, is intended
-24-
to confer upon any party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
9.2 Counterparts; Faxes. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. This Agreement may also be executed via facsimile, which shall be deemed an
original.
9.3 Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
9.4 Notices. Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given as hereinafter described
(i) if given by personal delivery, then such notice shall be deemed given upon such delivery, (ii)
if given by telex or telecopier, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice shall be deemed
given upon the earlier of (A) receipt of such notice by the recipient or (B) three days after such
notice is deposited in first class mail, postage prepaid, and (iv) if given by an internationally
recognized overnight air courier, then such notice shall be deemed given one Business Day after
delivery to such carrier. All notices shall be addressed to the party to be notified at the
address as follows, or at such other address as such party may designate by ten days’ advance
written notice to the other party:
If to the Company:
Enova Systems, Inc.
0000 Xxxx 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Fax: (000) 000-0000
0000 Xxxx 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Fax: (000) 000-0000
With a copy to:
ReedSmith LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to the Investors:
to the addresses set forth on the signature pages hereto.
-25-
9.5 Expenses. The parties hereto shall pay their own costs and expenses in connection
herewith, except that the Company shall pay the reasonable fees and expenses of (i) Xxxxxxxxxx
Xxxxxxx PC not to exceed $30,000, and (ii) Proskauer Rose LLP not to exceed $5,000, subject to the
Closing; it being understood that Xxxxxxxxxx Xxxxxxx PC has only rendered legal advice to the
Special Situations Funds participating in this transaction, and that Proskauer Rose LLP has only
rendered legal advice to Stichting Shell Pensioenfonds, Shell Pensions Trust Limited and Shell
Trust (Bermuda) Limited participating in this transaction, and in each case not to the Company or
any other Investor in connection with the transactions contemplated hereby, and that each of the
Company and each Investor has relied for such matters on the advice of its own respective counsel.
Such expenses shall be paid upon demand. The Company shall reimburse the Investors upon demand for
all reasonable out-of-pocket expenses incurred by the Investors, including without limitation
reimbursement of attorneys’ fees and disbursements, in connection with any amendment, modification
or waiver of this Agreement or the other Transaction Documents requested by the Company. In the
event that legal proceedings are commenced by any party to this Agreement against another party to
this Agreement in connection with this Agreement or the other Transaction Documents, the party or
parties which do not prevail in such proceedings shall severally, but not jointly, pay their pro
rata share of the reasonable attorneys’ fees and other reasonable out-of-pocket costs and expenses
incurred by the prevailing party in such proceedings.
9.6 Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written consent of the Company
and the Required Investors. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any Shares purchased under this Agreement at the time
outstanding, each future holder of all such Shares, and the Company.
9.7 Publicity. Except as set forth below, no public release or announcement
concerning the transactions contemplated hereby shall be issued by the Company or the Investors
without the prior consent of the Company (in the case of a release or announcement by the
Investors) or the Investors (in the case of a release or announcement by the Company) (which
consents shall not be unreasonably withheld), except as such release or announcement may be
required by law or the applicable rules or regulations of any securities exchange or securities
market, in which case the Company or the Investors, as the case may be, shall allow the Investors
or the Company, as applicable, to the extent reasonably practicable in the circumstances,
reasonable time to comment on such release or announcement in advance of such issuance. By 8:30
a.m. (New York City time) on the trading day immediately following the Closing Date, the Company
shall issue a press release disclosing the consummation of the transactions contemplated by this
Agreement. No later than the fourth trading day following the Closing Date, the Company will file
a Current Report on Form 8-K attaching the press release described in the foregoing sentence as
well as copies of the Transaction Documents. In addition, the Company will make such other filings
and notices in the manner and time required by the SEC or NYSE Amex. Notwithstanding the
foregoing, neither the Company nor any other Investor shall issue a press release or announcement
concerning the transactions contemplated under the Transaction Documents that names any other
Investor or any Affiliate of such Investor or which
-26-
utilize such Investor’s registered symbol or trademark without such Investor’s prior written
approval.
9.8 Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which renders any
provision hereof prohibited or unenforceable in any respect.
9.9 Entire Agreement. This Agreement, including the Exhibits and the Disclosure
Schedules, and the other Transaction Documents constitute the entire agreement among the parties
hereof with respect to the subject matter hereof and thereof and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the subject matter
hereof and thereof.
9.10 Further Assurances. The parties shall execute and deliver all such further
instruments and documents and take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein
contained.
9.11 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the State of New York
without regard to the choice of law principles thereof. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York located in New York
County and the United States District Court for the Southern District of New York for the purpose
of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the
transactions contemplated hereby. Each of the parties hereto irrevocably consents to the
jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in
such court. Each party hereto irrevocably waives any objection to the laying of venue of any such
suit, action or proceeding brought in such courts and irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH
RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS
WAIVER.
9.12 Independent Nature of Investors’ Obligations and Rights. The obligations of each
Investor under any Transaction Document are several and not joint with the obligations of any other
Investor, and no Investor shall be responsible in any way for the performance of the obligations of
any other Investor under any Transaction Document. The decision of each Investor to purchase
Shares pursuant to the Transaction Documents has been made by such Investor independently of any
other Investor. Nothing contained herein or in any Transaction Document, and no action taken by
any Investor pursuant thereto, shall be deemed to constitute
-27-
the Investors as a partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Investors are in any way acting in concert or as a group with respect
to such obligations or the transactions contemplated by the Transaction Documents. Each Investor
acknowledges that no other Investor has acted as agent for such Investor in connection with making
its investment hereunder and that no Investor will be acting as agent of such Investor in
connection with monitoring its investment in the Shares or enforcing its rights under the
Transaction Documents. Each Investor shall be entitled to independently protect and enforce its
rights, including, without limitation, the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Investor to be joined as an
additional party in any proceeding for such purpose. The Company acknowledges that each of the
Investors has been provided with the same Transaction Documents for the purpose of closing a
transaction with multiple Investors and not because it was required or requested to do so by any
Investor.
[signature page follows]
-28-
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized
officers to execute this Agreement as of the date first above written.
The Company:
|
ENOVA SYSTEMS, INC. | |
| By: /s/ Xxxxxx Xxxxxx | ||
| Name: Xxxxxx Xxxxxx | ||
| Title: Chief Financial Officer |
-29-
The Investors:
|
SPECIAL SITUATIONS FUND III QP, L.P. | |
| By: /s/ Xxxxx X. Greenhouse | ||
| Name: Xxxxx X. Greenhouse | ||
| Title: General Partner |
Aggregate Purchase Price: $3,000,000
Number of Shares: 3,000,000
Number of Shares: 3,000,000
Address for Notice: |
||
| 000 Xxxxxxx Xxxxxx | ||
| Xxxxx 0000 | ||
| Xxx Xxxx, XX 00000 | ||
| with a copy to: | ||
| Xxxxxxxxxx Xxxxxxx PC | ||
| 00 Xxxxxxxxxx Xxxxxx | ||
| Xxxxxxxx, XX 00000 | ||
| Attn: Xxxx X. Xxxxxxxx, Esq. | ||
| Telephone: 000.000.0000 | ||
| Facsimile: 973.597.2400 |
| SPECIAL SITUATIONS CAYMAN FUND, L.P. | ||
| By: /s/ Xxxxx X. Greenhouse | ||
| Name: Xxxxx X. Greenhouse | ||
| Title: General Partner |
Aggregate Purchase Price: $1,000,000
Number of Shares: 1,000,000
Number of Shares: 1,000,000
Address for Notice: |
||
| 000 Xxxxxxx Xxxxxx | ||
| Xxxxx 0000 | ||
| Xxx Xxxx, XX 00000 |
-30-
| with a copy to: | ||
| Xxxxxxxxxx Xxxxxxx PC | ||
| 00 Xxxxxxxxxx Xxxxxx | ||
| Xxxxxxxx, XX 00000 | ||
| Attn: Xxxx X. Xxxxxxxx, Esq. | ||
| Telephone: 000.000.0000 | ||
| Facsimile: 973.597.2400 |
-31-
| STICHTING SHELL PENSIOENFONDS, | ||
| duly represented by SHELL ASSET MANAGEMENT | ||
| COMPANY B.V. | ||
| By: /s/X.X. Xxxxxxx | ||
| Name: X.X. Xxxxxxx | ||
| Title: Chief Investment Officer | ||
| /s/ A.J. van der Steenstraten | ||
| Authorized signatory | ||
Aggregate Purchase Price: $494,960
Number of Shares: 494,960
Number of Shares: 494,960
Address for Notice: |
||
| Xxx Xxxxxxx Churchilllaan 366H | ||
| X.X. Xxx 000 | ||
| 0000 XX Xxx Xxxxx | ||
| Xxx Xxxxxxxxxxx | ||
| with a copy to: | ||
| Proskauer Rose LLP | ||
| Xxx Xxxxxxxxxxxxx Xxxxx | ||
| Xxxxxx, XX 00000 | ||
| Attn: Xxxxx X. Xxxxxxx, Esq. | ||
| Telephone: 000.000.0000 | ||
| Facsimile: 617.526.9899 |
| SHELL PENSIONS TRUST LIMITED, | ||
| acting as trustee of SHELL CONTRIBUTORY PENSION | ||
| FUND, duly represented by SHELL ASSET | ||
| MANAGEMENT COMPANY B.V. | ||
| By:/s/X.X. Xxxxxxx | ||
| Name: X.X. Xxxxxxx | ||
| Title: Chief Investment Officer | ||
| /s/ A.J. van der Steenstraten | ||
| Authorized signatory | ||
Aggregate Purchase Price: $1,210,000
Number of Shares: 1,210,000
Number of Shares: 1,210,000
-32-
Address for Notice: |
||
| Xxx Xxxxxxx Churchilllaan 366H | ||
| X.X. Xxx 000 | ||
| 0000 XX Xxx Xxxxx | ||
| Xxx Xxxxxxxxxxx | ||
| with a copy to: | ||
| Proskauer Rose LLP | ||
| Xxx Xxxxxxxxxxxxx Xxxxx | ||
| Xxxxxx, XX 00000 | ||
| Attn: Xxxxx X. Xxxxxxx, Esq. | ||
| Telephone: 000.000.0000 | ||
| Facsimile: 617.526.9899 |
| SHELL TRUST (BERMUDA) LIMITED, acting as trustee | ||
| of SHELL OVERSEAS CONTRIBUTORY PENSION | ||
| FUND, duly represented by SHELL ASSET | ||
| MANAGEMENT COMPANY B.V. | ||
| By: /s/X.X. Xxxxxxxx | ||
| Name: X.X. Xxxxxxxx | ||
| Title: Chief Investment Officer | ||
| /s/ A.J. van der Steenstraten | ||
| Authorized signatory | ||
Aggregate Purchase Price: $1,500,000
Number of Shares: 1,500,000
Number of Shares: 1,500,000
-33-
Address for Notice: |
||
| Xxx Xxxxxxx Churchilllaan 366H | ||
| X.X. Xxx 000 | ||
| 0000 XX Xxx Xxxxx | ||
| Xxx Xxxxxxxxxxx | ||
| with a copy to: | ||
| Proskauer Rose LLP | ||
| Xxx Xxxxxxxxxxxxx Xxxxx | ||
| Xxxxxx, XX 00000 | ||
| Attn: Xxxxx X. Xxxxxxx, Esq. | ||
| Telephone: 000.000.0000 | ||
| Facsimile: 617.526.9899 |
-34-
| Swiss Global Asset Management Ltd. | ||
| On behalf of the | ||
| Xxxxxx Xxxx Multipartner | ||
| Xxx Xxxxx Energy Fund* | ||
| By: /s/ X. Xxxxxxxxxx | ||
| Name: X. Xxxxxxxxxx | ||
| Title: authorized signatory |
Aggregate Purchase Price: $1,500,000
Number of Shares: 1,500,000
Number of Shares: 1,500,000
Address for Notice:
*With its registered seat at 00, xxxxx x’ Xxxx, X- 0000 Xxxxxxxxxx
-35-
| ERUCA LIMITED | ||
| By: /s/ Xxxx Xxxx Luang | ||
| Name: Xxxx Xxxx Luang | ||
| Title: Director |
Aggregate Purchase Price: $250,000
Number of Shares: 250,000
Number of Shares: 250,000
Address for Notice: |
||
| 00 Xxxxxxx Xxxxx | ||
| #00-00 Xxxxxxxxx Xxxx Xxxxx | ||
| Xxxxxxxxx 000000 |
-36-
| SILICON PRARIE PARTNERS LP | ||
| By: /s/ Xxxx Xxxxx | ||
| Name: Xxxx Xxxxx | ||
| Title: Principal |
Aggregate Purchase Price: $100,000
Number of Shares: 100,000
Number of Shares: 100,000
Address for Notice: |
||
| 000 Xxxxxx Xxxxxx | ||
| Xxxxx 000 | ||
| Xxxx Xxxx, XX 00000 |
-37-
