Exhibit 10.6.2
STOCK PURCHASE
AND
INVESTOR AGREEMENT
STOCK PURCHASE and INVESTOR AGREEMENT, (this "Agreement") made as of
August __, 1997, by and between STRATUS SERVICES GROUP, INC., a Delaware
corporation (the "Company") and AGR FINANCIAL, L.L.C. (hereinafter referred to
as the "Purchaser").
Recitals:
WHEREAS, the Company is contemplating to purchase from Royalpar
Industries, Inc., a Delaware corporation, Xxxxx Technical Design, Inc., a
Delaware corporation, LPL Technical Service, Inc., a California corporation, and
Mainstream Engineering Co., Inc., a Delaware corporation (collectively, the
"Sellers"), certain of the assets held in connection with, necessary for, or
material to the business of the Sellers, for the purchase price and upon the
terms and subject to the conditions set forth in that certain Asset Purchase
Agreement among the Company and Sellers;
WHEREAS, the Company has agreed to sell and issue to Purchaser shares of
the Company's common stock (the "Common Stock") in consideration for Purchaser's
consenting to the sale referred to in the previous paragraph and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged;
WHEREAS, the Company and the Purchaser desire to set forth the terms upon
which the 200,000 shares of Common Stock, par value $.01 per share (the "Offered
Securities") are offered by and purchased from the Company by the Purchaser and
for the purpose of assuring compliance with the various securities laws;
WHEREAS, the Company desires to confirm certain representations and
warranties of the Purchaser.
NOW, THEREFORE, in consideration of the premises and the terms,
provisions, covenants and conditions hereinafter set forth, and for other
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the respective meanings set forth below. All capitalized terms used herein and
not defined in this Section 1 shall have the meanings ascribed to such terms
elsewhere in this Agreement.
The term "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the federal
securities laws with respect to the registration and public offering of
securities of the Company.
The term "Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, institution, government entity or government or any group comprised
of one or more of the foregoing.
The term "Securities Act" shall mean the Securities Act of 1933, as
amended from time to time and the rules, regulations, decisions and
interpretations promulgated thereunder or such other federal act, rules,
regulations, decisions and interpretations as may regulate and require the
registration of the public offering of securities of the Company.
2. The Purchaser, by acquiring the Offered Securities for the
consideration described in the Recitals, hereby covenants and agrees that:
(a) Except as herein provided, it will not directly or indirectly
offer for sale or sell (within the meaning of the Securities Act) any of the
Offered Securities to any Person unless pursuant to:
(i) an effective registration statement under the
Securities Act ("Registration Statement") filed by the
Company covering such offer and sale; or
(ii) an exemption from registration under the Securities
Act; provided that prior to any such proposed transfer,
the Purchaser shall give written notice to the Company
of the Purchaser's intentions to effect such transfer,
which notice shall be accompanied by such evidence as
may be reasonably satisfactory to the Company that the
proposed transfer may be effected without registration
under the Securities Act, or
(iii) the provisions of Rule 144 under the Securities Act, if
applicable or any successor rule thereto.
(b) Any offer or sale of the Offered Securities shall be made in
accordance with the federal and state securities laws (including the prospectus
delivery requirements of the Securities Act), of applicable jurisdictions and
any other applicable law.
(c) Each of the shares of the Offered Securities transferred as
above provided shall bear the appropriate restrictive legend unless in the
opinion of legal counsel for the Purchaser (which counsel and opinion (in form,
scope and substance) shall be satisfactory to the Company), such legend is not
required in order to establish compliance with any provisions of the Securities
Act.
3. The Purchaser hereby represents and agrees that:
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(a) If a corporation, the corporation has full power, authority and
capacity to execute this Agreement, to make the representations and agreements
contained in this Agreement and to purchase the Offered Securities and this
Agreement and the transactions contemplated hereby have been duly authorized by
all necessary actions on the part of the Purchaser and this Agreement is a
legal, valid and binding obligation of the Purchaser enforceable against it in
accordance with its terms; and
(b) The Purchaser understands each of the following representations
and agreements, and hereby represents and agrees to each of the following with
the understanding that the Company will rely upon these representations and
agreements in determining whether the Company may sell the Offered Securities to
the Purchaser under applicable securities laws:
(i) The purchase of the Offered Securities is a long-term
investment and involves a high degree of risk. There is
no present market for the Offered Securities and no
market is currently expected to develop. It is unlikely
that the Purchaser will be able to liquidate the
Purchaser's investment in the event of an emergency; in
the event of any disposition or liquidation of the
Offered Securities, the Purchaser could sustain a loss
of part or all of the Purchaser's investment. The
transferability of the Offered Securities is extremely
limited.
(ii) The Purchaser is an "accredited investor" as such term
is defined in Rule 501 of Regulation D promulgated
under the Securities Act. The Purchaser is able to bear
the economic risk of an investment in the Offered
Securities, including the loss of the entire
investment.
(iii) The Purchaser has prior substantial investment
experience, including investments in non-registered
securities, and the Purchaser recognizes the highly
speculative nature of an investment in the Offered
Securities.
(iv) The Purchaser has been afforded the opportunity to ask
questions of, and receive answers from, directors and
executive officers of the Company concerning the
Company , the terms and conditions of the offering of
the Offered Securities and any additional information
requested by the Purchaser. The Purchaser has been
furnished with all information and all documents which
the Purchaser has requested.
(v) Neither the offer nor the sale of the Offered
Securities is being registered under the Securities Act
or the
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securities laws of any state. The Offered Securities
are being offered and sold in reliance on exemptions
from registration under the Securities Act and the
various state securities laws for transactions not
involving any public offering. Accordingly, none of the
Offered Securities can be sold, pledged, hypothecated
or otherwise transferred (each individually a
"Transfer") by the Purchaser unless and until each is
registered under the Securities Act and the securities
laws of each applicable state or an exemption from
registration pursuant to the Securities Act and such
laws is available to the Purchaser.
(vi) The Company is relying on exemptions from the various
federal and state securities laws which depend, in
part, upon the Purchaser's investment intent and upon
the information the Purchaser has set forth in this
Agreement. This Agreement is delivered to the Company
by the Purchaser with the understanding and intent that
the Company will rely on the information contained in
this Agreement and with the Purchaser's consent to such
reliance.
(vii) The Offered Securities are being purchased by the
Purchaser for the Purchaser's own account for
investment and not for distribution or resale or
fractionalization thereof or reselling thereof or any
part thereof within the meaning of the Securities Act
other than in compliance therewith or in accordance
with an exemption therefrom. The Purchaser will not
transfer any of the Offered Securities unless they are
registered under the Securities Act and the securities
laws of each applicable state or unless an exemption
from each such registration is available for such
Transfer, and such Transfer will not violate the terms
of this Agreement or the Offered Securities. The
Purchaser has adequate means of providing for the
Purchaser's current needs and possible personal and
business contingencies and has no need for liquidity of
this investment in the Offered Securities.
(viii) The Purchaser specifically represents that it has not
received any advertisement, article, notice or other
communication published in a newspaper, magazine, or
similar media or broadcast over television or radio,
nor has the Purchaser attended any seminar or meeting
to
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which the Purchaser has been invited by any general
solicitation or general advertising.
(ix) The Purchaser understands that the Offering has not
been registered under the Securities Act, nor pursuant
to the provisions of the securities or other laws of
any other applicable jurisdictions, in reliance upon
the exemption for private offerings contained in
Section 4(2) of the Securities Act promulgated
thereunder and the laws of such jurisdictions. The
Purchaser is fully aware that the Offered Securities,
subscribed for by the Purchaser are being sold to the
Purchaser in reliance upon such exemptions based upon
the Purchaser's representations, warranties and
agreements. The Purchaser is fully aware of the
restrictions on sale, transferability and assignment of
the Offered Securities, and that the Purchaser must
bear the economic risk of an investment herein for an
indefinite period of time because the Offering has not
been registered under the Securities Act and,
therefore, the Offered Securities cannot be offered or
sold unless the Offering is subsequently registered
under the Securities Act or an exemption from such
registration is available.
(x) The Purchaser's execution and delivery of this
Agreement has been duly authorized by all necessary
action. The Purchaser will not pledge, transfer or
assign this Agreement, or the Offered Securities which
the Purchaser is acquiring pursuant to this Offering,
without complying with all applicable securities laws.
The Purchaser is making the investment hereunder for
the Purchaser's own account and not for the account of
others and for investment purposes only and not with a
view to or for the transfer, assignment, resale or
distribution thereof, in whole or in part. The
Purchaser has no present plans to enter into any such
contract, undertaking, agreement or arrangement.
(xi) The Purchaser agrees that the Purchaser shall not
cancel, terminate or revoke this Agreement or any other
agreement executed by the Purchaser with respect to the
purchase of the Offered Securities subject to the
qualification, however, that enforcement of the rights
and remedies created hereby is subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium, and similar laws of general applicability
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relating to or affecting creditors rights and to
general equity principles and that, if the Purchaser is
an individual, this Agreement shall survive the
Purchaser's death or disability, except as pursuant to
the laws of the applicable jurisdiction.
(xii) The Purchaser is aware that the purchase of Offered
Securities is a speculative investment involving a
significant degree of risk and that there is no
guarantee that the Purchaser will realize any return of
or gain from the Purchaser's investment.
(xiii) The Purchaser acknowledges that the Company and its
officers and agents have made no representations or
warranties, whether orally or in writing, or express or
implied, as to the financial condition, assets,
operations, business, prospects or condition of the
Company.
(xiv) The Purchaser understands the meaning and legal
consequences of the foregoing representations and
warranties, which are true and correct as of the date
hereof and will be true and correct as of the date of
the Purchaser's purchase of the Offered Securities
subscribed for herein. Each such representation and
warranty shall survive such purchase.
4. The Company hereby represents and agrees that:
(a) Organization. The Company is a corporation duly organized,
validly existing and in good standing as a corporation under the laws of the
State of Delaware, with full corporate power and authority to own and operate
its business and properties and to carry on its business as presently conducted
by it.
(b) Authorization; Issuance of the Offered Securities. The Company
has the full corporate power and authority to enter into and perform this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement and of all documents and instruments required hereby and the
consummation of the transactions contemplated hereby by the Company have been
duly authorized by all necessary corporate action of the Company and no other
corporate proceedings on the part of the Company are necessary to authorize the
execution, delivery and performance of this Agreement on the part of the Company
or to consummate the transactions contemplated hereby. This Agreement and the
other documents and instruments to be delivered by the Company have been, or
will be, duly and validly executed and delivered by the Company and constitute,
or upon the execution and delivery thereof will constitute, the valid and
binding obligations of the Company, enforceable against it in accordance with
their respective terms, subject to the qualification, however, that enforcement
of the rights and remedies created hereby is subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, and similar laws of general
applicability relating to or affecting
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creditors rights and to general equity principles. The Offered Securities when
issued as provided for in this Agreement will be duly issued, fully paid and
non-assessable.
(c) The Company agrees that the Purchaser shall not cancel,
terminate or revoke this Agreement or any other agreement executed by the
Company with respect to the purchase of the Offered Securities, subject to the
qualification, however, that enforcement of the rights and remedies created
hereby is subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and similar laws of general applicability relating
to or affecting creditors rights and to general equity principles.
(d) The Company understands the meaning and legal consequences of
the foregoing representations and warranties, which are true and correct as of
the date hereof and will be true and correct as of the date of the Purchaser's
purchase of the Offered Securities subscribed for herein.
6. Disclaimer of Warranties; No Recourse to the Company. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT: (i) THE COMPANY HEREBY
EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY AND ALL OF THE OFFERED SECURITIES; (ii) THE OFFERED SECURITIES
ARE BEING SOLD "AS IS" "WHERE IS"; AND (iii) THE PURCHASER SHALL HAVE NO
RECOURSE TO THE COMPANY WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATING TO
THE SALE OF OFFERED SECURITIES.
7. All notices, requests, claims, demands, waivers and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered by hand, if delivered personally or by
courier, or five business days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) properly addressed as
set forth below. Any such notice or other communication shall be addressed (a)
if to the Purchaser, at the address set forth below or at such other address as
the Purchaser shall have furnished to the Company in writing, or (b) if to any
subsequent holder of any of the Offered Securities purchased by the Purchaser,
at such address as shown on the Security Register of the Company or (c) if to
the Company, to 000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxxxx 00000 or to
such other address and/or to the attention of such other copied person as the
Company shall have furnished to the Purchaser and each such other holder in
writing.
8. Any modification, waiver, amendment or termination of this Agreement or
any provision hereof shall be effective only if in writing and signed by all
parties to this Agreement.
9. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. The
Purchaser shall not be permitted to assign any of the Purchaser's rights,
interests or obligations hereunder except as specifically permitted hereunder.
Nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto or their respective successors and assigns,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
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10. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court, such holding shall not invalidate or render
unenforceable any other provision of this Agreement.
11. This Agreement shall be interpreted and construed in accordance with
the laws of the State of Delaware. This Agreement and the terms of the Offered
Securities constitute the entire agreement among the parties with respect to the
matters set forth herein.
12. The preamble to this Agreement and all annexes, schedules and exhibits
annexed herein are incorporated herein by this reference as if set forth herein
in their entirety.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
STRATUS SERVICES GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name:
Title: President
AGR FINANCIAL, L.L.C.
By: /s/ G. Xxxxx Xxxxx
----------------------------------------
Name:
Title: Managing Diector
Address: 000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
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