Exhibit 10.15
SECURITIES SUBSCRIPTION AGREEMENT
SECURITIES SUBSCRIPTION AGREEMENT dated as of the ___ day of February 1999,
between EARTH SCIENCES, INC., a Colorado corporation with principal executive
offices located at 000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (the "Company"), and
the undersigned ("Buyer").
W I T N E S S E T H:
--------------------
WHEREAS, Buyer desires to purchase from the Company, and the Company
desires to issue and sell to the Buyer, upon the terms and subject to the
conditions of this Agreement, shares of the Company's common stock, $.01 par
value (the "Common Stock"); and
WHEREAS, such investment will be made in reliance upon the provisions of
Section 4(2) and Regulation D of the United States Securities Act of 1933, as
amended and the regulations promulgated thereunder (the "Securities Act"),
and/or upon such other exemption from the registration requirements of the
Securities Act as may be available with respect to any or all of the investments
in Common Stock subscribed to hereunder.
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK
a. Transaction and Purchase Price. Buyer hereby subscribes for
_________shares of Common Stock (the "Shares") at $ 0.906 per share for a total
of ______________________________ payable in United States Dollars (the
"Purchase Price").
b. Form of Payment. Buyer shall pay the Purchase Price by wire
transfer or check of immediately available funds to the Company. Simultaneously
against receipt by the Company of the Purchase Price, the Company shall deliver
one or more duly authorized, issued and executed certificates (I/N/O Buyer)
evidencing the Shares, to the Buyer or its designated depository.
c. Method of Payment. Payment to the Company of the Purchase Price
shall be made by wire transfer of immediately available funds to the escrow
account of World Capital Funding, Inc. or:
Norwest Bank of Colorado N.A.
Golden Branch
0000 Xxxxxxx Xxxxxx - X.X. Xxx 000
Xxxxxx, Xxxxxxxx 00000-0000
ABA# 000000000
For the Account of: Earth Sciences, Inc.
Account# 000 0000000
Simultaneously with the receipt of the Purchase Price the Company shall deliver
the Shares to the Buyer.
2. BUYER'S REPRESENTATIONS, WARRANTIES; ACCESS TO INFORMATION; INDEPENDENT
INVESTIGATION.
Buyer represents and warrants to and covenants and agrees with the Company
as follows:
a. Buyer is purchasing the Shares of Common Stock for its own account,
for investment purposes only and not with a view towards or in connection with
the public sale or distribution thereof in violation of the Securities Act of
1933, as amended (the "Securities Act").
b. Buyer is (i) an "accredited investor" within the meaning of Rule
501 of Regulation D under the Securities Act, (ii) experienced in making
investments of the kind contemplated by this Agreement, (iii) capable, by reason
of its business and financial experience, of evaluating the relative merits and
risks of an investment in the Securities, and (iv) able to afford the loss of
its investment in the Securities.
c. Buyer understands that the Shares of Common Stock are being offered
and sold by the Company in reliance on an exemption from the registration
requirements of the Securities Act and equivalent state securities and "blue
sky" laws, and that the Company is relying upon the accuracy of, and Buyer's
compliance with, Buyer's representations, warranties and covenants set forth in
this Agreement to determine the availability of such exemption and the
eligibility of Buyer to purchase the Shares;
d. Buyer has been furnished with or provided access to all materials
relating to the business, financial position and results operations of the
Company, and all other materials requested by Buyer to enable it to make an
informed investment decision with respect to the Shares.
e. Buyer acknowledges that it has been furnished with copies of the
Company's Annual Report on Form 10-KSB for the fiscal year ended December 31,
1997, the Company's Quarterly Reports on Form 10-QSB for the fiscal quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998, respectively, and
all other reports and documents heretofore filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act")
since December 31, 1997 (collectively the "Commission Filings").
f. Buyer acknowledges that in making its decision to purchase the
Shares it has (i) relied upon independent investigations made by it and its
professional advisors, (ii) visited the Company's principal executive offices
and been given access and the opportunity to examine all material agreements,
books and records of the Company and all documents relating to the Company's
private placement of the Shares, and (iii) been given an opportunity to ask
questions of and to receive answers from the Company's executive officers,
directors and management personnel concerning the terms and conditions of the
private placement of the Shares by the Company.
g. Buyer understands that sale of the Shares have not been approved or
disapproved by the Commission or any state securities commission and that the
foregoing authorities have not reviewed any documents or instruments in
connection with the offer and sale to it of the Securities and have not
confirmed or determined the adequacy or accuracy of any such documents or
instruments.
h. This Agreement has been duly and validly authorized, executed and
delivered by the Buyer and is a valid and binding agreement of the Buyer
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally.
i. Neither Buyer nor its affiliates nor any person acting on its or
their behalf has the intention of entering, or will enter into, prior to the
Closing, any put option, short position or other similar instrument or position
with respect to the Common Stock and neither Buyer nor any of its affiliates nor
any person acting on its or their behalf will use at any time shares of Common
Stock acquired pursuant to this Agreement to settle any put option, short
position or other similar instrument or position that may have been entered into
prior to the execution of this Agreement or any issuance of the Shares.
3. COMPANY'S REPRESENTATIONS
The Company represents and warrants to Buyer that:
a. Capitalization.
(i) The authorized capital stock of the Company consists of
50,000,000 shares of Common Stock, of which 22,193,739 shares were outstanding
as of December 31, 1998; all of the issued and outstanding shares of Common
Stock have been duly authorized and validly issued and are fully paid and
non-assessable. The Common Stock issuable upon purchase of the Shares has been
duly and validly authorized and reserved for issuance by the Company, and when
issued by the Company will be duly and validly issued, fully paid and
non-assessable and will not subject the holder thereof to personal liability by
reason of being such holder. There are no preemptive, subscription, "call" or
other similar rights to acquire the Common Stock that have been issued or
granted to any person, except as disclosed in the Commission Filings or
otherwise previously disclosed in writing to Buyer.
(ii) Except as disclosed in the Commission Filings, the Company
does not own or control, directly or indirectly, any interest in any other
corporation, partnership, limited liability company, unincorporated business
organization, association, trust or other business entity. Except as disclosed
in the Commission Filings, the Company owns 100% of the outstanding shares of
capital stock of each of its subsidiaries, free and clear of any and all liens,
pledges, encumbrances, charges, agreements, security interests, mortgages or
claims of any kind whatsoever.
b. Organization; Reporting Company Status.
(i) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Colorado and is duly
qualified as a foreign corporation in all jurisdictions in which the failure to
so qualify would have a Material Adverse Effect on the business, properties,
prospects, condition (financial or otherwise) or results of operations of the
Company and its subsidiaries, taken as a whole, or on the consummation of any of
the transactions contemplated by this Agreement (a "Material Adverse Effect").
Each of the Company's subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation and is duly qualified as a foreign corporation in all
jurisdictions in which the failure to so qualify would have a Material Adverse
Effect.
(ii) The Company has registered the Common Stock pursuant to
Section 12 of the Exchange Act and has timely filed with the Commission all
reports and information required to be filed by it pursuant to all reporting
obligations under Section 13(a) or 15(d), as applicable, of the Exchange Act for
the 24-month period immediately preceding the date hereof. The Common Stock is
listed and traded on the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") Small Capitalization Market System.
c. Authority; Validity and Enforceability. The Company has the
requisite corporate power and authority to enter into this Agreement and the
Registration Rights Agreement of even date herewith between the Company and
Buyer, (the "Registration Rights Agreement") and to perform all of its
obligations hereunder and thereunder (including the issuance, sale and delivery
to Buyer of the Shares). The execution, delivery and performance by the Company
of this Agreement and the Registration Rights Agreement, and the consummation by
the Company of the transactions contemplated hereby and thereby, has been duly
authorized by all necessary corporate action on the part of the Company. Each of
this Agreement and the Registration Rights Agreement has been duly and validly
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally. The Shares have been duly and validly authorized for
issuance by the Company.
d. Non-contravention. The execution and delivery by the Company of
this Agreement and the Registration Rights Agreement, the issuance of the
Shares, and the consummation by the Company of the other transactions
contemplated hereby and thereby, do not and will not conflict with or result in
a breach by the Company of any of the terms or provisions of, or constitute a
default (or an event which, with notice, lapse of time or both, would constitute
a default) under, the articles of incorporation or by-laws of the Company, or
any indenture, mortgage, deed of trust or other material agreement or instrument
to which the Company or any of its subsidiaries is a party or by which its or
any of its subsidiaries' properties or assets are bound, or any law, rule,
regulation, decree, judgment or order of any court or public or governmental
authority having jurisdiction over the Company or any of its subsidiaries or any
of its or its subsidiaries' properties or assets, except such conflict, breach
or default which would not have a Material Adverse Effect.
e. Approvals. No authorization, approval or consent of any court or
public or governmental authority is required to be obtained by the Company for
the issuance and sale of the Shares to Buyer as contemplated by this Agreement,
except such authorizations, approvals and consents that have been obtained by
the Company prior to the date hereof.
f. Commission Filings. None of the Commission Filings contained at the
time they were filed any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
g. Absence of Certain Changes. Since the Balance Sheet Date (as
defined in Section 3.k.), there has not occurred any change, event or
development, and there has not existed any condition having or reasonably likely
to have, a Material Adverse Effect.
h. Full Disclosure. There is no fact known to the Company (other than
general economic or industry conditions known to the public generally) that has
not been fully disclosed to the Buyer that (i) reasonably could be expected to
have a Material Adverse Effect or (ii) reasonably could be expected to
materially and adversely affect the ability of the Company to perform its
obligations pursuant to this Agreement or the Registration Rights Agreement.
i. Absence of Litigation. There is no action, suit, claim, proceeding,
inquiry or investigation pending or, to the Company's knowledge, threatened, by
or before any court or public or governmental authority which, if determined
adversely to the Company or any of its subsidiaries, would have a Material
Adverse Effect.
j. Absence of Events of Default. No "Event of Default" (as defined in
any agreement or instrument to which the Company or any of its subsidiaries is a
party) and no event which, with notice, lapse of time or both, would constitute
an Event of Default (as so defined), has occurred and is continuing, which could
have a Material Adverse Effect.
k. Financial Statements; No Undisclosed Liabilities. Seller has
delivered to Buyer true and complete copies of its (i) audited consolidated
balance sheet as at December 31, 1997 and the related audited consolidated
statements of operations and cash flows for the fiscal years ended December 31,
1997 and December 31, 1996 and (ii) unaudited consolidated balance sheets as at
March 31, 1998, June 30, 1998 and September 30, 1998, respectively, and the
related unaudited consolidated statements of operations and cash flows for the
periods ended March 31, 1998, June 30, 1998 and September 30, 1998,
respectively, including in all such cases the related notes and schedules
thereto (collectively, the "Financial Statements). Each of the Financial
Statements is complete and correct in all material respects, has been prepared
in accordance with United States General Accepted Accounting Principles ("GAAP")
(subject, in the case of the interim Financial Statements, to normal year-end
adjustments and the absence of footnotes) and in conformity with the practices
consistently applied by the Company without modification of the accounting
principles used in the preparation thereof, and fairly presents the financial
position, results of operations and cash flows of the Company and its
consolidated subsidiaries as at the dates and for the periods indicated. For
purposes hereof, the audited consolidated balance sheet of the Company and its
subsidiaries as at December 31, 1997 is hereinafter referred to as the "Balance
Sheet" and December 31, 1997 is hereinafter referred to as the "Balance Sheet
Date". Neither the Company nor any of its subsidiaries has any indebtedness,
obligations or liabilities of any kind (whether accrued, absolute, contingent or
otherwise, and whether due or to become due) that would have been required to be
reflected in, reserved against or otherwise described in the Balance Sheet or in
the notes thereto in accordance with GAAP, which was not fully reflected in,
reserved against or otherwise described in the Balance Sheet or the notes
thereto or was not incurred in the ordinary course of business consistent with
the Company's past practices since the Balance Sheet Date.
l. Compliance with Laws; Permits. The Company and each of its
subsidiaries is in compliance with all laws, rules, regulations, codes,
ordinances and statutes (collectively "Laws") applicable to it or to the conduct
of its business, except for such non-compliance which would not have a Material
Adverse Effect. The Company and each of its subsidiaries possesses all permits,
approvals, authorizations, licenses, certificates and consents from all public
and governmental authorities which are necessary to conduct its business, except
for those the absence of which would not have a Material Adverse Effect.
m. Related Party Transactions. Except as set forth in the Commission
Filings, neither the Company nor any of its officers, directors or "Affiliates"
(as such term is defined in Rule 12b-2 under the Exchange Act) has borrowed any
moneys from or has outstanding any indebtedness or other similar obligations to
the Company. Neither the Company nor any of its officers, directors or
Affiliates (i) owns any direct or indirect interest of any kind in, or controls
or is a director, officer, partner, member or employee of, or consultant to or
lender to or borrower from, or has the right to participate in the profits of,
any person or entity which is (x) a competitor, supplier, customer, landlord,
tenant, creditor or debtor of the Company or any of its subsidiaries, (y)
engaged in a business related to the business of the Company or any of its
subsidiaries, or (z) a participant in any transaction to which the Company or
any of its subsidiaries is a party or (ii) is a party to any contract,
agreement, commitment or other arrangement with the Company or any of its
subsidiaries. Notewithstanding the foregoing, this paragraph does not require
the disclosure by the Company to the Buyer of any related party transactions not
required to be disclosed in the Commission Filings.
n. Insurance. The Company maintains property and casualty, general
liability, workers' compensation, environmental hazard, personal injury and
other similar types of insurance with financially sound and reputable insurers
that is adequate, consistent with industry standards and the Company's
historical claims experience, to cover all loss contingencies which forseeably
may arise in the conduct of the business of the Company and its subsidiaries.
The Company has not received notice from, and has no knowledge of any threat by,
any insurer (that has issued any insurance policy to the Company or any of its
subsidiaries) that such insurer intends to deny coverage under or cancel,
discontinue or not renew any insurance policy presently in force.
o. Securities Law Matters. Based, in part, upon the representations
and warranties of Buyer set forth in Section 2 hereof, the offer and sale by the
Company of the Shares is exempt from (i) the registration and prospectus
delivery requirements of the Securities Act and the rules and regulations of the
Commission thereunder and (ii) the registration and/or qualification provisions
of all applicable state securities and "blue sky" laws. Other than pursuant to
an effective registration statement under the Securities Act, the Company has
not issued, offered or sold the Shares or any shares of Common Stock (including
for this purpose any securities of the same or a similar class as the Common
Stock, or any securities convertible into or exchangeable or exercisable for the
Common Stock or any such other securities) within the six-month period next
preceding the date hereof, except as disclosed in the Commission Filings or
otherwise previously disclosed in writing to Buyer, and the Company shall not
directly or indirectly take, and shall not permit any of its directors, officers
or Affiliates directly or indirectly to take, any action (including, without
limitation, any offering or sale to any person or entity of shares of Common
Stock), so as to make unavailable the exemption from Securities Act registration
being relied upon by the Company for the offer and sale to Buyer of Shares as
contemplated by this Agreement. No form of general solicitation or advertising
has been used or authorized by the Company or any of its officers, directors or
Affiliates in connection with the offer or sale of Shares as contemplated by
this Agreement or any other agreement to which the Company is a party.
p. Environmental Matters.
(i) The operations of the Company and each of its subsidiaries are in
compliance with all applicable Environmental Laws and all permits issued
pursuant to Environmental Laws or otherwise;
(ii) to its knowledge, the Company and each of its subsidiaries has obtained all
permits required under all applicable Environmental Laws necessary to
operate its business;
(iii)neither the Company nor any of its subsidiaries is the subject of any
outstanding written order of or agreement with any governmental authority
or person respecting (i) Environmental Laws, (ii) Remedial Action or (iii)
any Release or threatened Release of Hazardous Materials;
(iv) neither the Company nor any of its subsidiaries has received any written
communication alleging either or both that the Company or any of its
subsidiaries may be in violation of any Environmental Law or any permit
issued pursuant to Environmental Law, or may have any liability under any
Environmental Law;
(v) neither the Company nor any of its subsidiaries has any current contingent
liability in connection with any Release of any Hazardous Materials into
the indoor or outdoor environment (whether on-site or off-site);
(vi) except as set forth in the Commission Filings, to the Company's knowledge,
there are no investigations of the business, operations, or currently or
previously owned, operated or leased property of the Company or any of its
subsidiaries pending or threatened which could lead to the imposition of
any liability pursuant to any Environmental Law;
(vii)to the Company's knowledge, there is not located at any of the properties
of the Company or any of its subsidiaries any (A) underground storage
tanks, (B) asbestos-containing material or (C) equipment containing
polychlorinated biphenyls; and,
(viii) the Company has provided to Buyer all environmentally related audits,
studies, reports, analyses, and results of investigations that have been
performed with respect to the currently or previously owned, leased or
operated properties of the Company or any of its subsidiaries.
For purposes of this Section 3.p.:
"Environmental Law" means any foreign, federal, state or local
statute, regulation, ordinance, or rule of common law as now or hereafter in
effect in any way relating to the protection of human health and safety or the
environment including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. ss. 9601 et seq.), the
Hazardous Materials Transportation Act (49 U.S.C. App. ss. 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the Clean
Water Act (33 U.S.C. ss. 1251 et seq.), the Clean Air Act (42 U.S.C. ss. 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601 et seq.), the
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. ss. 136 et seq.),
and the Occupational Safety and Health Act (29 U.S.C. ss. 651 et seq.), and the
regulations promulgated pursuant thereto.
"Hazardous Material" means any substance, material or waste which is
regulated by the United States, Canada or any of its provinces, or any state or
local governmental authority including, without limitation, petroleum and its
by-products, asbestos, and any material or substance which is defined as a
"hazardous waste," "hazardous substance," "hazardous material," "restricted
hazardous waste," "industrial waste," "solid waste," "contaminant," "pollutant,"
"toxic waste" or toxic substance" under any provision of any Environmental Law;
"Release" means any release, spill, filtration, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, or leaching into
the indoor or outdoor environment, or into or out of any property;
"Remedial Action" means all actions to (x) clean up, remove, treat or
in any other way address any Hazardous Material; (y) prevent the Release of any
Hazardous Material so it does not endanger or threaten to endanger public health
or welfare or the indoor or outdoor environment; or (z) perform pre-remedial
studies and investigations or post-remedial monitoring and care.
q. Labor Matters. Neither the Company nor any of its subsidiaries is
party to any labor or collective bargaining agreement and there are no labor or
collective bargaining agreements which pertain to employees of the Company or
any of its subsidiaries. No employees of the Company or any of its subsidiaries
are represented by any labor organization and none of such employees has made a
pending demand for recognition, and there are no representation proceedings or
petitions seeking a representation proceeding presently pending or, to the
Company's knowledge, threatened to be brought or filed, with the National Labor
Relations Board or other labor relations tribunal. There is no organizing
activity involving the Company or any of its subsidiaries pending or to the
Company's knowledge, threatened by any labor organization or group of employees
of the Company or any of its subsidiaries. There are no (i) strikes, work
stoppages, slowdowns, lockouts or arbitrations or (ii) material grievances or
other labor disputes pending or, to the knowledge of the Company, threatened
against or involving the company or any of its subsidiaries. There are no unfair
labor practice charges, grievances or complaints pending or, to the knowledge of
the Company, threatened by or on behalf of any employee or group of employees of
the Company.
r. ERISA Matters. Each of the Company, its subsidiaries and their
ERISA Affiliates is in compliance in all material respects with all provisions
of ERISA applicable to it. No Reportable Event has occurred, been waived or
exists as to which the Company or any of its subsidiaries or any ERISA Affiliate
was required to file a report with the Pension Benefits Guaranty Corporation,
and the present value of all liabilities under all Plans (based on those
assumptions used to fund such Plans) did not, as of the most recent annual
valuation date applicable thereto, exceed the value of the assets of all such
Plans in the aggregate. None of the Company or any of its subsidiaries or ERISA
Affiliates has incurred any Withdrawal Liability that could result in a Material
Adverse Effect. None of the Company or any of its subsidiaries or ERISA
Affiliates has received any notification that any Multiemployer Plan is in
reorganization or has been terminated within the meaning of Title IV of ERISA,
and no Multiemployer Plan is reasonably expected to be in reorganization or
termination where such reorganization or termination has resulted or could
reasonably be expected to result in increases to the contributions required to
be made to such Plan or otherwise.
For purposes of this Section 3.r.:
"ERISA" means the Employee Retirement Income Security Act of 1974, or
any successor statute, together with the regulations thereunder, as the same may
be amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that was, is or hereafter may become, a member of a group of which
the Company or any of its subsidiaries is a member and which is treated as a
single employer under ss. 414 of the Internal Revenue Code of 1986, as amended
(the "Internal Revenue Code").
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which the Company or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of ss. 414
of the Internal Revenue Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Plan" means any pension plan (other than a Multiemployer Plan)
subject to the provision of Title IV of ERISA or ss. 412 of the Internal Revenue
Code that is maintained for employees of the Company or any ERISA Affiliate.
"Reportable Event" means any reportable event as defined in Section
4043(b) of ERISA or the regulations issued thereunder with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of ss. 414 of the Internal
Revenue Code.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
s. Tax Matters.
(i) The Company and each of its subsidiaries have filed all Tax Returns which
they are required to file under applicable Laws, except for such Tax
Returns in respect of which the failure to so file does not and could not
have a Material Adverse Effect; all such Tax Returns are true and accurate
and have been prepared in compliance with all applicable Laws; the Company
and each of its subsidiaries have paid all Taxes due and owing by them
(whether or not such Taxes are required to be shown on a Tax Return) and
have withheld and paid over to the appropriate taxing authorities all Taxes
which they are required to withhold from amounts paid or owing to any
employee, stockholder, creditor or other third parties; and since the
Balance Sheet Date, the charges, accruals and reserves for Taxes with
respect to the Company (including any provisions for deferred income taxes)
reflected on the books of the Company are adequate to cover any Tax
liabilities of the Company and its subsidiaries if their current tax year
were treated as ending on the date hereof.
(ii) No claim has been made by a taxing authority in a jurisdiction where either
the Company or any of its subsidiaries does not file tax returns that such
corporation is or may be subject to taxation by that jurisdiction. There
are no foreign, federal, state or local tax audits or administrative or
judicial proceedings pending or being conducted with respect to the Company
or any of its subsidiaries; no information related to Tax matters has been
requested by any foreign, federal, state or local taxing authority; and no
written notice indicating an intent to open an audit or other review has
been received by the Company from any foreign, federal, state or local
taxing authority. There are no material unresolved questions or claims
concerning the Company's or any of its subsidiaries' Tax liability. Neither
the Company nor any of its subsidiaries (A) has executed or entered into a
closing agreement pursuant toss. 7121 of the Internal Revenue Code or any
predecessor provision thereof or any similar provision of state, local or
foreign law; or (B) has agreed to or is required to make any adjustments
pursuant toss. 481 (a) of the Internal Revenue Code or any similar
provision of state, local or foreign law by reason of a change in
accounting method initiated by the Company or any of its subsidiaries or
has any knowledge that the IRS has proposed any such adjustment or change
in accounting method, or has any application pending with any taxing
authority requesting permission for any changes in accounting methods that
relate to the business or operations of the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries has been a
United States real property holding corporation within the meaning ofss.
897(c)(2) of the Internal Revenue Code during the applicable period
specified inss. 897(c)(1)(A)(ii) of the Internal Revenue Code.
(iii)Neither the Company nor any of its subsidiaries has made an election under
ss. 341(f) of the Internal Revenue Code. Neither the Company nor any of its
subsidiaries is liable for the Taxes of another person that is not a
subsidiary of the Company under (A) Treas. Reg. ss. 1.1502-6 (or comparable
provisions of state, local or foreign law), (B) as a transferee or
successor, (C) by contract or indemnity or (D) otherwise. Neither the
Company nor any of its subsidiaries is a party to any tax sharing
agreement. Neither the Company nor any of its subsidiaries has made any
payments, is obligated to make payments or is a party to an agreement that
could obligate it to make any payments that would not be deductible under
ss. 280G of the Internal Revenue Code.
For purposes of this Section 3.s.:
"IRS" means the United States Internal Revenue Service.
"Tax" or "Taxes" means federal, state, county, local, foreign, or
other income, gross receipts, ad valorem, franchise, profits, sales or use,
transfer, registration, excise, utility, environmental, communications, real or
personal property, capital stock, license, payroll, wage or other withholding,
employment, social security, severance, stamp, occupation, alternative or add-on
minimum, estimated and other taxes of any kind whatsoever (including, without
limitation, deficiencies, penalties, additions to tax, and interest attributable
thereto) whether disputed or not.
"Tax Return" means any return, information report or filing with
respect to Taxes, including any schedules attached thereto and including any
amendment thereof.
t. No Misrepresentation. No representation or warranty of the Company
contained in this Agreement, any schedule, annex or exhibit hereto or any
agreement, instrument or certificate furnished by the Company to Buyer pursuant
to this Agreement, contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, not misleading.
4. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
a. Restrictive Legend. Buyer acknowledges and agrees that, upon
issuance pursuant to this Agreement, any certificate representing the Shares
shall have endorsed thereon a legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the Shares):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE, AND ARE BEING OFFERED AND SOLD PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR SUCH
OTHER LAWS."
b. Filings. The Company shall make all necessary filings in connection
with the sale of the Shares to the Buyer as required by all applicable Laws, and
shall provide a copy thereof to the Buyer promptly after such filing.
c. Reporting Status. So long as the Buyer beneficially owns any of the
Securities, the Company shall file all reports required to be filed by it with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act and shall not
terminate its status as an issuer required to file reports under the Exchange
Act even if such act or the rules and regulations thereunder would otherwise
permit such termination.
d. Use of Proceeds. The Company shall use the proceeds from the sale
of the Shares (excluding amounts paid by the Company for legal fees and finder's
fees in connection with such sale) for general corporate purposes.
e. Listing. Except to the extent the Company becomes eligible to list
its Common Stock on a national securities exchange or obtained authorization to
include the Common Stock for quotation on the NASDAQ National Market System, the
Company shall take all necessary action to maintain its listing of the Common
Stock on the NASDAQ Small Capitalization Market System.
5. TRANSFER AGENT INSTRUCTIONS.
a. The Company undertakes and agrees that no instruction other than
the instructions referred to in this Section 5 and customary stop transfer
instructions prior to the registration and sale of the Common Stock pursuant to
an effective Securities Act registration statement will be given to its transfer
agent for the Shares and that the Shares otherwise shall be freely transferable
on the books and records of the Company as and to the extent provided in this
Agreement, the Registration Rights Agreement and applicable law. Nothing
contained in this Section 5.a. shall affect in any way Buyer's obligations and
agreement to comply with all applicable securities laws upon resale of such
Common Stock. If, at any time, Buyer provides the Company with an opinion of
counsel reasonably satisfactory to the Company that registration of the resale
by Buyer of such Common Stock is not required under the Securities Act and that
the removal of restrictive legends is permitted under applicable law, the
Company shall permit the transfer of such Common Stock and, promptly instruct
the Company's transfer agent to issue one or more certificates for Common Stock
without any restrictive legends endorsed thereon.
6. DELIVERY INSTRUCTIONS.
The Shares shall be delivered by the Company to the Buyer pursuant to
Section 1(b) hereof on a "delivery-against-payment basis" at the Closing.
7. CLOSING DATE.
The date and time of the issuance and sale of the Shares (the "Closing
Date") shall be the date hereof or such other as shall be mutually agreed upon
in writing. The issuance and sale of the Shares shall occur on the Closing Date
at the offices of the Company. Notwithstanding anything to the contrary
contained herein, the Company shall not be authorized to accept the Purchase
Price and to issue the Buyer the certificate(s) (I/N/O Buyer) evidencing the
Shares being purchased by Buyer unless the conditions set forth in Section 8(c)
and 9(e) hereof have been satisfied.
8. CONDITIONS TO THE COMPANY'S OBLIGATIONS.
The Buyer understands that the Company's obligation to sell the Shares on
the Closing Date to Buyer pursuant to this Agreement is conditioned upon:
a. Delivery by Buyer to the Company of the Purchase Price;
b. The accuracy on the Closing Date of the representations and warranties
of Buyer contained in this Agreement as if made on the Closing Date
(except for representations and warranties which, by their express
terms, speak as of and relate to a specified date, in which case such
accuracy shall be measured as of such specified date) and the
performance by Buyer in all material respects on or before the Closing
Date of all covenants and agreements of Buyer required to be performed
by it pursuant to this Agreement on or before the Closing Date;
c. There shall not be in effect any Law or order, ruling, judgment or
writ of any court or public or governmental authority restraining,
enjoining or otherwise prohibiting any of the transactions
contemplated by this Agreement.
9. CONDITIONS TO BUYER'S OBLIGATIONS.
The Company understands that Buyer's obligation to purchase the Shares on
the Closing Date pursuant to this Agreement is conditioned upon:
a. Delivery by the Company to the Buyer of one or more certificates
(I/N/O Buyer) evidencing the Shares to be purchased by Buyer pursuant
to this Agreement;
b. The accuracy on the Closing Date of the representations and warranties
of the Company contained in this Agreement as if made on the Closing
Date (except for representations and warranties which, by their
express terms, speak as of and relate to a specified date, in which
case such accuracy shall be measured as of such specified date) and
the performance by the Company in all material respects on or before
the Closing Date of all covenants and agreements of the Company
required to be performed by it pursuant to this Agreement on or before
the Closing Date;
c. There not having occurred (i) any general suspension of trading in, or
limitation on prices listed for, the Common Stock on the NASDAQ Small
Capitalization Market System, (ii) the declaration of a banking
moratorium or any suspension of payments in respect of banks in the
United States, (iii) the commencement of a war, armed hostilities or
other international or national calamity directly or indirectly
involving the United States or any of its territories, protectorates
or possessions, or (iv) in the case of the foregoing existing at the
date of this Agreement, a material acceleration or worsening thereof.
d. There not having occurred any event or development, and there being in
existence no condition, having or which reasonably and forseeably
could have a Material Adverse Effect.
e. There shall not be in effect any Law or order, ruling, judgment or
writ of any court or public or governmental authority restraining,
enjoining or otherwise prohibiting any of the transactions
contemplated by this Agreement.
10. TERMINATION.
a. Termination by Mutual Written Consent. This Agreement may be terminated
and the transactions contemplated hereby may be abandoned, for any reason and at
any time prior to the Closing Date, by the mutual written consent of the Company
and Buyer.
b. Termination by the Company or Buyer. This Agreement may be terminated
and the transactions contemplated hereby may be abandoned by action of the
Company or Buyer if (i) the Closing shall not have occurred at or prior to 5:00
p.m., Denver time, on March 5, 1999; provided, however, that the right to
terminate this Agreement pursuant to this Section 10.b.(i) shall not be
available to any party whose failure to fulfill any of its obligations under
this Agreement has been the cause of or resulted in the failure of the Closing
to occur at or before such time and date or (ii) any court or public or
governmental authority shall have issued an order, ruling, judgment or writ, or
there shall be in effect any Law, restraining, enjoining or otherwise
prohibiting the consummation of any of the transactions contemplated by this
Agreement.
c. Termination by Buyer. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned by Buyer at any time prior to
the Closing Date, if (i) the Company shall have failed to comply in any material
respect with any of its covenants or agreements contained in this Agreement,
(ii) there shall have been a breach by the Company with respect to any
representation or warranty made by it in this Agreement, or (iii) there shall
have occurred any event or development, or there shall be in existence any
condition, having or reasonably and forseeably likely to have a Material Adverse
Effect.
d. Termination by the Company. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned by the Company at any time
prior to the Closing Date, if (i) Buyer shall have failed to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or (ii) there shall have been a breach by Buyer with respect to any
representation or warranty made by it in this Agreement.
11. SURVIVAL; INDEMNIFICATION.
a. Survival. The representations, warranties and covenants made by each of
the Company and Buyer in this Agreement, the annexes, schedules and exhibits
hereto and in each instrument, agreement and certificate entered into and
delivered by them pursuant to this Agreement, shall survive the Closing and the
consummation of the transactions contemplated hereby. In the event of a breach
or violation of any of such representations, warranties or covenants, the party
to whom such representations, warranties or covenants have been made shall have
all rights and remedies for such breach or violation available to it under the
provisions of this Agreement or otherwise, whether at law or in equity,
irrespective of any investigation made by or on behalf of such party on or prior
to the Closing Date.
b. Indemnification of Buyer by the Company. The Company hereby agrees to
indemnify and hold harmless the Buyer, its Affiliates and their respective
officers, directors, partners and members (collectively, the "Buyer
Indemnitees"), from and against any and all losses, claims, damages, judgments,
penalties, liabilities and deficiencies (collectively, "Losses"), and agrees to
reimburse the Buyer Indemnitees for all out-of-pocket expenses (including the
fees and expenses of legal counsel), in each case promptly as incurred by the
Buyer Indemnitees and to the extent arising out of or in connection with:
(i) any misrepresentation, omission of fact or breach of any of the
Company's representations or warranties contained in this Agreement, the
annexes, schedules or exhibits hereto or any instrument, agreement or
certificate entered into or delivered by the Company pursuant to this Agreement;
or
(ii) any failure by the Company to perform in any material respect any
of its covenants, agreements, undertakings or obligations set forth in this
Agreement, the annexes, schedules or exhibits hereto or any instrument,
agreement or certificate entered into or delivered by the Company pursuant to
this Agreement.
c. Indemnification of the Company by Buyer. Buyer hereby agrees to
indemnify and hold harmless the Company, its Affiliates and their respective
officers, directors, partners and members (collectively, the "Company
Indemnitees"), from and against any and all Losses, and agrees to reimburse the
Company Indemnitees for all out-of-pocket expenses (including the fees and
expenses of legal counsel), in each case promptly as incurred by the Company
Indemnitees and to the extent arising out of or in connection with:
(i) any misrepresentation, omission of fact, or breach of any of
Buyer's representations or warranties contained in this Agreement, the annexes,
schedules or exhibits hereto or any instrument, agreement or certificate entered
into or delivered by Buyer pursuant to this Agreement; or
(ii) any failure by Buyer to perform in any material respect any of
its covenants, agreements, undertakings or obligations set forth in this
Agreement or any instrument, certificate or agreement entered into or delivered
by Buyer pursuant to this Agreement.
d. Third Party Claims. Promptly after receipt by either party hereto
seeking indemnification pursuant to this Section 11 (an "Indemnified Party") of
written notice of any investigation, claim, proceeding or other action in
respect of which indemnification is being sought (each, a "Claim"), the
Indemnified Party promptly shall notify the party against whom indemnification
pursuant to this Section 11 is being sought (the "Indemnifying Party") of the
commencement thereof; but the omission to so notify the Indemnifying Party shall
not relieve it from any liability that it otherwise may have to the Indemnified
Party, except to the extent that the Indemnifying Party is materially prejudiced
and forfeits substantive rights and defenses by reason of such failure. In
connection with any Claim as to which both the Indemnifying Party and the
Indemnified Party are parties, the Indemnifying Party shall be entitled to
assume the defense thereof. Notwithstanding the assumption of the defense of any
Claim by the Indemnifying Party, the Indemnified Party shall have the right to
employ separate legal counsel and to participate in the defense of such Claim,
and the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs
and expenses of such separate legal counsel to the Indemnified Party if (and
only if): (x) the Indemnifying Party shall have agreed to pay such fees,
out-of-pocket costs and expenses, (y) the Indemnified Party and the Indemnifying
Party reasonably shall have concluded that representation of the Indemnified
Party by the Indemnifying Party by the same legal counsel would not be
appropriate due to actual or, as reasonably determined by legal counsel to the
Indemnified Party, potentially differing interests between such parties in the
conduct of the defense of such Claim, or if there may be legal defenses
available to the Indemnified Party that are in addition to or disparate from
those available to the Indemnifying Party, or (z) the Indemnifying Party shall
have failed to employ legal counsel reasonably satisfactory to the Indemnified
Party within a reasonable period of time after notice of the commencement of
such Claim. If the Indemnified Party employs separate legal counsel in
circumstances other than as described in clauses (x), (y) or (z) above, the
fees, costs and expenses of such legal counsel shall be borne exclusively by the
Indemnified Party. Except as provided above, the Indemnifying Party shall not,
in connection with any Claim in the same jurisdiction, be liable for the fees
and expenses of more than one firm of legal counsel for the Indemnified Party
(together with appropriate local counsel). The Indemnifying Party shall not,
without the prior written consent of the Indemnified Party (which consent shall
not unreasonably be withheld), settle or compromise any Claim or consent to the
entry of any judgment that does not include an unconditional release of the
Indemnified Party from all liabilities with respect to such Claim or judgment.
e. Other Claims. In the event one party hereunder should have a claim for
indemnification that does not involve a claim or demand being asserted by a
third party, the Indemnified Party promptly shall deliver notice of such claim
to the Indemnifying Party. If the Indemnified Party disputes the claim, such
dispute shall be resolved by mutual agreement of the Indemnified Party and the
Indemnifying Party or by binding arbitration conducted in accordance with the
procedures and rules of the American Arbitration Association. Judgment upon any
award rendered by any arbitrators may be entered in any court having competent
jurisdiction thereof.
12. GOVERNING LAW: MISCELLANEOUS.
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Colorado without regard to the conflicts of law principles
of such state. Each of the parties consents to the jurisdiction of the federal
courts whose districts encompass any part of the City of Denver or the state
courts of the State of Colorado sitting in the City of Denver in connection with
any dispute arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on forum
non conveniens, to the bringing of any such proceeding in such jurisdictions. A
facsimile transmission of this signed Agreement shall be legal and binding on
all parties hereto. This Agreement may be signed in one or more counterparts,
each of which shall be deemed an original. The headings of this Agreement are
for convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction. This Agreement may be amended only by an instrument
in writing signed by the party to be charged with enforcement. This Agreement
supersedes all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof.
13. NOTICES. Any notice required or permitted hereunder shall be given in
writing (unless otherwise specified herein) and shall be deemed effectively
given upon personal delivery or seven business days after deposit in the United
States Postal Service, or by (a) advance copy by fax, and (b) mailing by express
courier or registered or certified mail with postage and fees prepaid, addressed
to each of the other parties thereunto entitled at the following addresses, or
at such other addresses as a party may designate by ten days advance written
notice to each of the other parties hereto.
COMPANY: EARTH SCIENCES, INC.
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx, Esq.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
BUYER:
Attention:
Telephone:
Fax:
14. CONFIDENTIALITY. Each of the Company and Buyer agrees to keep
confidential and not to disclose to or use for the benefit of any third party
the terms of this Agreement or any other information which at any time is
communicated by the other party as being confidential without the prior written
approval of the other party; provided, however, that this provision shall not
apply to information which, at the time of disclosure, is already part of the
public domain (except by breach of this Agreement) and information which is
required to be disclosed by law.
15. ASSIGNMENT. This Agreement shall not be assignable by either of the
parties hereto prior to the Closing without the prior written consent of the
other party, and any attempted assignment contrary to the provisions hereby
shall be null and void; provided, however, that Buyer may assign its rights and
obligations hereunder, in whole or in part, to any affiliate of Buyer who
furnishes to the Company the representations and warranties set forth in Section
2 hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement on the date first above written.
EARTH SCIENCES, INC.
By:
-----------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: President
BUYER
By:
-----------------------------------------
Name:
Title:
Address of Principal office or residence:
AMENDMENT TO SECURITIES SUBSCRIPTION AGREEMENT
This Agreement, entered this ____ day of February, 1999 by and between
EARTH SCIENCES, INC., a Colorado corporation with principal executive offices
located at 000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (the "Company"), and
Augustine Fund, LP (the "Buyer"), is an amendment of the Securities Subscription
Agreement dated February 25, 1999 by and between the same parties (the
"Subscription Agreement") pursuant to which Buyer purchased ________ shares of
the Company's $.01 par value common stock (the "Shares"). Capitalized terms not
otherwise defined herein have the meanings set forth in the Subscription
Agreement.
In consideration of the mutual promises and covenants contained herein, the
Company and Buyer hereby amend the Subscription Agreement as follow:
1. Issuance of Additional Shares. If the Buyer delivers to the transfer
agent or the Company certificates representing any of the Shares, together with
a notice to the Company to issue additional shares (the "Notice") and the
average per share closing bid price for the Common Stock for the five trading
days immediately preceding the receipt of the Notice is less than 125% of the
closing per share bid price the trading day immediately preceding the date of
the Closing (as defined in the Subscription Agreement), then with respect to the
number of Shares specified in such Notice and represented by certificates
actually sent to the transfer agent or the Company, the Company shall cause to
be issued additional shares in the name of the Buyer in accordance with the
following formula:
AddSh = Sh x [(1+ Dr) x Cb -Fdb]/Fdb, where
AddSh = the additional shares to be issued;
Sh = the number of shares referred to in the Notice;
Cb = the per share closing bid price the trading day before the
date of the Closing;
Dr = 25% (or .25); and
Fdb = the 5 trading day average per share closing bid price
preceding the date of receipt of the Notice;
Any shares issued pursuant to this Amendment shall be deemed Shares pursuant to
the Subscription Agreement and shall be subject to all the terms and conditions
of the Subscription Agreement. For purposes of this Amendment, the closing per
share bid price of the Company's $.01 par value common stock shall be as
specified by Nasdaq. Notwithstanding anything in this Amendment to the contrary,
the Company shall not be required to issue additional shares in excess of its
legally authorized capital, or issue additional shares greater in number than
two and one half times the number of Shares specified in the Notice, or suffer
any penalty for the inability to issue such shares.
2. Call. If at any time the per share closing bid price of the Common Stock
is equal or greater than 130% of the per share closing bid price the day
immediately preceding the date of the Closing, the Company shall have the right
to repurchase the Shares (to the extent that the Buyer has not yet delivered to
the Tranfer Agent such shares and an applicable Notice pursuant to Paragraph 1
hereof) at a price per share equal to 125% of the per share closing bid price of
the Common Stock the day immediately preceding the date of the Closing (the
"Call"). The Buyer shall have the right to decline to sell shares pursuant to
the Call, provided however, that such refusal shall automatically extinguish the
Buyer's right to the issuance of additional shares as provided in Paragraph 1 of
this Amendment with respect to the number of shares called. The Company may
assign its purchase rights under this Paragraph 2 with consent of the Buyer.
3. Mechanics for Exercise of the Call. To exercise the Call, the Company
shall deliver written notice to the Buyer along with its commitment to pay the
appopriate price to the Buyer within ten (10) business days of the date of
delivery of such notice of the Call. The Buyer shall have five (5) business days
from delivery of the notice of the Call to decline to sell the shares pursuant
to the Call by a written notice of such declination to the Company within such 5
business day period. In the event the Company does not receive timely delivery
of such notice to decline the Call, the Company shall be authorized to treat the
Call as accepted and, after payment to the Buyer of the appropriate price, shall
be authorized to take those actions it deems necessary to terminate the Buyers
rights in the Shares. After receipt of the payment pursuant to the Call, the
Buyer shall deliver any and all certificates evidencing the Shares to the
Company properly endorsed for transfer to the Company.
4. Liquidated Damages. The Company acknowledges that time is of the essence
with respect to the Company's compliance with its obligations to issue
additional shares pursuant to a Notice under Paragraph 1 above. Accordingly, the
Company hereby warrants and represents that in the event it becomes obligated to
issue additional shares to the Buyer, it shall (i) instruct its transfer agent
with respect to such issuance; (ii) cause its counsel to issue any necessary
opinion letters; and (iii) take any and all other action necessary to cause its
Transfer Agent to issue any required additional shares and deliver the same in
accordance with purchaser's instructions within ten (10) business days after the
Transfer Agent has received the certificates for the Shares and the Company has
received the Notice. In the event the Company breaches this warranty, for any
reason, other than an act of God as described below, then the Company shall
immediately pay the Buyer liquidated damages in the amount of 1% of the pro rata
Purchase Price, allocable to the shares for which such additional shares are to
be issued, per day (the "Cash Damages") until the Company shall have complied
with its obligations under Paragraph 1. In the event the Company is in breach of
this warranty for more than ten (10) business days, the Company shall issue to
the Buyer, as additional liquidated damages, additional shares per day of the
Company's Common Stock equal to 1% of the number of the shares originally
purchased pursuant to the Subscription Agreement. The Company's payment of such
liquidated damages shall not, however, alter in any way the Company's
obligations under Paragraph 1. Futher, until the Company cures the breach of
Warranty by delivering the additional shares and paying the liquidated damages,
the Company shall not issue or contract to issue to any other party any of its
equity securities or debt securities convertible into equity securities of the
Company.
For purposes of this agreement, an act of God shall excuse a breach of
warranty in the event that weather conditions, acts of war or terrorism, or some
other catastrophic event not generally encountered in business or reasonably
within the contemplation of the parties at the time of execution of this
agreement renders SELLER's performance impossible. Such breach of warranty shall
be excused only for so long as the act of God in fact renders performance
impossible.
No other amendments of the Subscription Agreement are intended.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement on the date first above written.
EARTH SCIENCES, INC.
By:
-------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: President
BUYER
By:
-------------------------------------
Name:
--------------------------------
