EXHIBIT 2.2
PRIVATE PLACEMENT MEMORANDUM
_______________________________________________
APPENDIX B
Stock Purchase Agreement
APPENDIX C
Subscription Documents
_______________________________________________
AstroPower, Inc.
September 9, 1996
Appendix B
STOCK PURCHASE AGREEMENT
AstroPower, Inc.
666,667 Shares of Series B Convertible Preferred Stock
September 9, 1996
Dear Sir or Madam:
The undersigned, ASTROPOWER, INC., a Delaware Corporation (hereinafter
called the "Company"), hereby agrees with you as follows:
1. Purchase of Sale of Shares. Subject to the terms and conditions hereof,
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the Company shall issue and shall sell to you, and you shall purchase from the
Company, the number of the shares of Series B Convertible Preferred Stock, par
value $.01 ("the Shares") of the Company set forth opposite your name on
Schedule 1. The terms of the Shares are set forth in the Confidential Private
Placement Memorandum ("Memorandum") dated September 9, 1996. The Company is
entering into other Stock Purchase Agreements ("Other Stock Agreements")
substantially similar to this Agreement (except as to the name and address of
the Purchaser) with other purchasers ("Other Purchasers"), such purchasers
together with you being herein sometimes called the "Purchasers", providing for
the sale to each of the Other Purchasers of Shares of the Company. This
Agreement and the Other Stock Agreements provide for the sale to the Purchasers
of an aggregate of 666,667 Shares of the Company, at a price of $6.00 per share.
The Shares to be sold to you are sometimes referred to herein as the "Shares",
the aggregate amount of Shares being sold to the Purchaser are sometimes
referred to herein as the "Company Shares". The sales of Company Shares and
sales to each of the Other Purchasers are to be separate sales.
2. Closings.
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2.1 All closing of sales contemplated hereby shall take place at the
offices of the Company, Solar Park, Newark, Delaware 19716-2000. Shares shall be
delivered by the Company to the respective Purchasers against execution of this
Agreement, a Subscription Agreement and payment of the purchase price. Such
sales shall take place at such times and dates as may be agreed upon by the
Company and the respective purchasers. In no event shall any such sale take
place after March 9, 1997 unless such date is extended by the Company as set
forth in the Memorandum.
2.2 Notwithstanding anything herein to the contrary, no Purchaser shall be
entitled to any rights as a shareholder of the Company until he has received
Shares for the amount purchased by him hereunder.
3. Representations and Warranties by the Company. The Company represents and
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warrants that:
3.1 Incorporation and Qualification. The Company has been duly
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incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and the Company is duly authorized and
empowered to own its properties and to transact its business in the
jurisdictions where their business is conducted, all as more fully described in
the Memorandum, receipt of a copy of which is hereby acknowledged by you.
3.2 Business and Title to Properties. The properties and assets of the
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Company are subject to no liens, mortgages, pledges, encumbrances or charges of
any kind other than liens, charges or encumbrances incidental to the conduct of
its business or the ownership of its properties and assets, which were not
incurred in connection with the borrowing of money or the obtaining of advances
of credit and in the aggregate do not materially detract from the value of such
properties and assets or materially impair the use thereof in the operation of
its business.
3.3 Capital Stock. At June 30, 1996, the authorized capital stock of the
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Company consists of 20,000,000 shares of Common Stock par value $.01 per share
of which 4,933,049 are issued and outstanding and 775,000 shares of Series A
Preferred Stock, par value $.01 per share of which 1,746,168 are issued and
outstanding and 1,000,000 shares of Series B Preferred Stock, par value $.01 per
share of which 341,000 are issued and outstanding. The Shares will have full
voting rights. Shares to be issued hereunder will be validly issued, fully paid
and non-assessable. Shares do not have pre-emptive rights.
3.4 Tax Returns. Other than as set forth on the Company's financial
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statements included in the Memorandum the Company has filed all tax returns
which are required to be filed by it and has paid or established adequate
reserves for the payment of all taxes shown to be due and payable on said
returns or on any assessment received by it, to the extent that such taxes and
assessments have become due and payable on said returns or on an assessment
received by it.
3.5 Compliance with Other Instruments. Other than as disclosed in the
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Memorandum (See "Management's Discussion and Analysis of Results of Operations -
Liquidity and Capital Resources") the Company is not: in violation of its
Certificate of Incorporation or By-Laws, or any applicable law; in default under
any mortgage, lease, indenture, contract, agreement or instrument; in default
with respect to any order, writ, injunction or decree of any court; in default
in any material respect under any order, license, franchise, regulation or
demand of any Federal, State, municipal or other governmental agency.
3.6 No Materially Adverse Contracts or Occurrences. The Company is not
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obligated under any contract or agreement or, to the best of the Company's
knowledge, subject to any charter or other corporate restriction which
materially and adversely affect its business, properties, or assets, other than
such agreements as are referred to in the Memorandum, and, to the best of the
Company's knowledge, neither the execution nor delivery of this Agreement nor
the consummation of the transactions contemplated hereby, nor compliance with
the terms and provisions hereof, will conflict with, or result in a breach of,
the terms, conditions or provisions, of, or constitute a default under, the
Certificate of Incorporation or By-Laws of the Company or of any agreement of
instrument to which the Company is now a party or any restriction to which it is
subject.
3.7 Litigation. There are no actions, suits or proceedings pending, or,
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to the knowledge of the Company, threatened, against or affecting the Company or
the properties of the Company in any court or by any governmental body not
covered by insurance or which would materially affect the Company.
3.8 Government Consent, Etc. No consent, approval, order of authorization
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of or registration, qualification, designation, declaration or filing with any
governmental authority on the part of the Company is required in connection with
the execution and delivery of the Shares to be purchased by you hereunder or the
carrying out of any other transaction contemplated hereby.
3.9 Offering of the Shares. Neither the Company nor anyone acting on its
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behalf has directly or indirectly offered any of the Company's Shares (or any
other security convertible into any such shares) or any similar security of the
Company for sale to, or solicited an offer to buy the same from, anyone other
than (a) you, (b) the Other Purchasers, and (c) other investors, each of whom is
fully familiar with the assets, liabilities, financial condition, business,
operations, affairs and prospects of the Company, and is, to the best of the
Company's knowledge and belief, a sophisticated and experienced investor. All of
the Purchasers have represented to the Company in writing that they have
acquired or are acquiring the Shares of their own account for investment, with
no present intention of public resale or public distribution, and that the same
will not be resold or distributed by them in violation of the Securities Act of
1933 as the time in effect.
3.10 Disclosure. Neither this Agreement, the Memorandum nor any other
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documents, certificates or written statements furnished to you by or on behalf
of the Company in connection herewith contain any material misstatement of a
fact or omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading. The Company know of no information
or fact which materially adversely affects the business, operations, affairs,
prospects or condition of the Company or any of its properties or assets which
has not been set forth in this Agreement or the Memorandum. Any projection to
be furnished to Purchaser pursuant to this Agreement or the Memorandum was or
will be prepared with due care based on reasonable assumptions and represent or
will represent the Company's best estimate of future results based on
information available as of the date of the projections. No projection referred
to in the preceding sentence shall be deemed to be misleading unless it is shown
that any such projection was made without a reasonable basis or was disclosed
other than in good faith.
3.11 Corporate Action. This Agreement has been duly authorized by the
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Company and duly executed and delivered by the authorized officers of the
Company and constitutes the legal, valid and binding obligations of the Company.
3.12 Except in the Financial Statements or as otherwise noted, all
information in the Memorandum reflects a proposed amendment to the Company's
Certificate of Incorporation increasing the authorized number of Shares of
Series B Preferred Stock to 1,500,000 Shares and amending the existing
provisions of the presently issued and outstanding Shares of Series A Preferred
Stock and Series B Preferred Stock so as to conform to the provisions described
therein and herein. Such proposed amendment will
not be filed, however, unless 166,666 Shares ($1,000,000) are sold. See
"Risk Factors" in the Memorandum.
4. Purchase for Investment. You represent that you are purchasing the Shares
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for your own account, that the same is being purchased for investment, with no
present intention of public resale or public distribution; that the Shares will
not be resold or distributed by you in violation of the Securities Act of 1933
as at the time in effect, and you will deliver at execution of this Agreement an
investment letter signed by you to such effect in the form annexed hereto as
Schedule 2. You further agree that the Company shall have the right to place a
legend on the Shares to be issued and sold to you hereunder, such legend to be
substantially in the form set forth in said Schedule 2.
5. Conditions To Purchasers Obligations.
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5.1 All corporate and other proceedings to be taken in connection with the
transactions contemplated hereby and all documents incident thereto shall be
reasonably satisfactory in substance and form to you, and you shall have
received all such counterpart originals or certified or other copies of such
documents as you may reasonably request.
5.2 Opinion of the Company Counsel. You shall have received an opinion
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dated the Closing Date of counsel for the Company, in form and substance
satisfactory to you, to the effect (i) set forth in Section 3.1, and to the
knowledge of such counsel, Sections 3.5, 3.6, 3.7, 3.8, (ii) that this Agreement
and the Shares of Series B Preferred Stock have been duly authorized, executed
and delivered by the Company and are legal, valid and binding obligations of the
Company in accordance with their respective terms except to the extent limited
by bankruptcy, insolvency or other laws of general application relating to or
affecting the enforcement of creditors' rights, (iii) that the shares of Series
B Preferred Stock have been validly authorized and reserved for such purpose
and, if and when they are delivered in accordance with this Agreement and
Appendix G to the Memorandum will have been validly issued and fully paid and
will be non-assessable and (iv) that the offer, issue and delivery of the Shares
each constitutes an exempt transaction under the Securities Act of 1933, as
amended, and the registration thereunder of the Shares is not required.
6. Registration Rights and Other Rights.
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(a) Registration Rights. The Registration Rights granted to the holders
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of Series A Preferred Stock pursuant to "Section 11. Registration Rights" of
the Series A Stock Purchase Agreement dated September 20, 1989 among the
Company, Astrosystems, Essex, Barnett, and the Purchasers listed on Exhibit A
thereto, a copy of which is annexed hereto as Exhibit 1, are incorporated herein
by reference and granted to the Purchasers hereunder except that for the purpose
of this agreement the date of December 31, 1992 referred to in the first
sentence of "Section 11.3 Proposed Registration" therein shall be December 31,
1997.
(b) Other Rights. The rights granted and provisions contained in the
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Shareholders Agreement dated September 20, 1989 among the Company, Astrosystems,
Essex, Xxxxxxx and the Series A Preferred Stock Purchasers who are signatories
thereto, a copy of which
is annexed hereto as Exhibit 2, are incorporated herein by reference and each
Purchaser hereunder shall become a party to such Agreement.
7. Affirmative Covenants. The Company convenants and agrees as follows:
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7.1 Use of Proceeds. The proceeds of the sale of the Shares will be used
for working capital and equipment construction and acquisition, as set forth in
the Memorandum.
7.2 Financial Information. So long as you shall hold any of the Shares,
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the Company will deliver to you:
(a) as soon as practicable, and in any event within 120 days after the
close of each fiscal year of the Company, (i) a consolidated balance sheet of
the Company and its subsidiaries as of the end of such fiscal year and (ii)
consolidated statements of income, cash flows and common stock and shareholders'
equity of the Company and its subsidiaries for such fiscal year, in each case
setting forth in comparative form the corresponding figures for the preceding
fiscal year and to be in reasonable detail and audited by an independent public
accountant selected by the Company.
(b) as soon as practicable, and in any event within 45 days after the
close of each of the first three fiscal quarters of the Company, during such
fiscal year, (i) a consolidated balance sheet of the Company and its
subsidiaries as of the end of such fiscal quarter and (ii) consolidated
statements of income and cash flows of the Company and its subsidiaries for the
portion of the fiscal year ended with the end of such quarter, in each case
setting forth in comparative form the corresponding figures for the comparable
period of the preceding fiscal year (subject to normal year-end adjustment), all
of which quarterly financial statements shall be unaudited.
8. Expenses. Whether or not the transactions contemplated hereby shall be
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consummated, the Company will pay, and will indemnify and hold you harmless
against (a) all costs and expenses of the preparation of this Agreement and
other agreements and documents prepared in connection with the Shares purchased
by you hereunder, and (b) all documentary stamp taxes (including any interest or
penalties in respect thereof) payable on the issue or sale of the Shares
purchased by you hereunder. The Company represents and warrants to you that the
negotiations relative to this Agreement and the transactions contemplated hereby
have been carried on with you by the Company through its Officers and Directors.
The Company will pay and will indemnify and hold you harmless against any loss,
cost, damage or expense incurred by you as a result of the breach of the
aforesaid representation and warranty.
9. Notices. All notices and other communications hereunder shall be in
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writing and shall be mailed by registered or certified first class mail, postage
prepaid, addressed (a) if to you, in the manner in which this Agreement is
addressed or at such other address as you shall have furnished to the Company in
writing, or (b) if to the Company, at Solar Park, Newark, Delaware 19716-2000
marked for the attention of the President, or at such other address as the
Company shall have furnished to you in writing.
10. Parties in Interest. All convenants and agreements contained in this
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Agreement by or on behalf of either of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.
11. Law Governing. This Agreement shall be construed in accordance with and
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governed by the laws of the State of Delaware.
12. Modification. The terms and provisions of this Agreement may not be
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modified or amended except in writing.
13. Counterparts. This Agreement may be executed in two or more counterparts,
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each of which shall be deemed original, but all of which together shall
constitute one and the same instrument.
If you are in agreement with the foregoing, please sign in the appropriate place
on the enclosed counterpart of this letter and return such counterpart to the
undersigned, whereupon this letter shall become a binding agreement between you
and the undersigned.
Very truly yours,
ASTROPOWER, INC.
By ___________________________
THE FOREGOING AGREEMENT IS
XXXXXX ACCEPTED AS OF THE
DATE FIRST ABOVE WRITTEN:
______________________________
Purchaser
SCHEDULE 1
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TO AGREEMENT FOR PURCHASE OF SHARES OF
SERIES B CONVERTIBLE PREFERRED STOCK
PAR VALUE $.01 PER SHARE
AMOUNTS OF
SHARES TO BE AGGREGATE
PURCHASER ADDRESS PURCHASED AMOUNT
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SCHEDULE 2
Date:
AstroPower, Inc.
Solar Park
Newark, Delaware 19716-2000
Gentlemen:
In connection with my purchase of shares of Series B Convertible Preferred
Stock, par value $.01 per share (the "Shares") of AstroPower, Inc. (the
"Company"), I hereby represent that:
1. I am acquiring them for my own account for investment and without any
view to distribution or resale of such Shares.
2. I do not presently have any reason to anticipate any change in my
circumstances which would cause me to sell such Shares and my present financial
situation is such that I do not foresee the necessity of disposing of such
Shares in the foreseeable future.
3. I am aware the in issuing the Shares to me the Company is issuing
securities which have not been registered with the Securities and Exchange
Commission under the Securities Act of 1933 (the "Act"), as amended, pursuant to
an exemption under said Act, which exemption is based in part in reliance on the
truth and accuracy of my investment representation contained herein.
4. I accept the condition that before any transfer in connection with
resale of the Shares which are the subject matter of this purchase, written
approval must first be obtained from counsel for the Company.
5. I understand further that stop transfer instructions will be issued
with respect to the Shares and any shares of Common Stock into which the Shares
are convertible and that any such securities to be issued to me will bear a
legend substantially in the form as set forth below:
"The securities represented by this certificate have not been registered under
the Securities Act of 1933. These securities have been acquired for investment
and may not be offered, sold, transferred, pledged or hypothecated in the
absence of an effective registration statement for the securities under the
Securities Act of 1933 or an opinion of counsel for the Company and/or the
submission to the Company that such registration is not required under the Act
pursuant to an available exemption. Furthermore, no offer, sale, transfer,
pledge or hypothecation is to take place without the prior written approval of
counsel for the Company being affixed to this certificate. The transfer agent
has been ordered to effectuate transfers of this certificate only in accordance
with the above instructions."
Very truly yours,
