Membership Interest Purchase Agreement
Exhibit
10.69
This
Membership Interest Purchase Agreement (the "Agreement") is dated as of this
13th
day of
February, 2007 by and among Stratus Services Group, Inc., a Delaware corporation
(the "Company"), and Fusion Business Services, LLC, a Delaware limited liability
company ("Fusion").
WHEREAS,
each of the Company and Fusion owns a 50% membership interest in Stratus
Technology Services, LLC, a Delaware limited liability company (the
"LLC");
WHEREAS,
Fusion wishes to sell to the Company, and the Company wishes to acquire from
Fusion, a one percent (1%) membership interest in the LLC and the related Voting
Unit;
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
in
this Agreement, and of other valuable consideration, the receipt and adequacy
of
which are hereby acknowledged, the parties hereto agree as follows:
| 1. |
Purchase
and Sale of Interest.
The Company hereby purchases from Fusion and Fusion hereby sells
to the
Company, a membership interest representing one percent (1%) of the
outstanding membership interests in the Company and one (1) Voting
Unit.
The aggregate purchase price for such membership interest (the “1%
Interest”) and Voting Unit shall be One Thousand Sixty Two Dollars
($1,262), which shall be payable in full through the issuance to
the
members of Fusion of a number of shares (the “Shares”) of the common
stock, $.04 par value (the “Common Stock”), of the Company having an
aggregate Market Value (as defined below) of One Thousand Sixty Two
Dollars ($1,262). The term “Market Value” shall mean the last sale price
per share of the Common Stock as reported by the NASD OTC Bulletin
Board
on the day prior to the date of this Agreement, which the parties
hereto
acknowledge was $0.018 per share, thereby requiring the issuance
of 70,111
Shares to Fusion. The Company agrees to instruct its transfer agent
to
issue such shares of Common Stock to the members of Fusion identified
by
Fusion promptly after the execution of this Agreement, subject to
receiving such representations and acknowledgments from such members
as
the Company may reasonably request.
|
| 2. |
Representations
of the Company.
The Company hereby represents and warrants to Fusion as
follows:
|
| (a) |
The
Company is a corporation duly formed and validly existing and in
good
standing under the laws of the State of
Delaware.
|
| (b) |
The
Company has full corporate power and authority to execute and perform
its
obligations under this Agreement.
|
| (c) |
Upon
issuance, the Shares shall be duly authorized, fully paid and
non-assessable.
|
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| 3. |
Representations
of Fusion.
Fusion hereby represents and warrants to the Company as
follows:
|
| (a) |
Fusion
is a limited liability company duly formed and validly existing under
the
laws of the State of Delaware.
|
| (b) |
Fusion
has good and marketable title to the membership interest being sold
by it
hereunder, free of all liens, charges and
encumbrances.
|
| (c) |
Fusion
has full power and authority to execute and perform its obligations
under
this Agreement.
|
| (d) |
The
Company has made available to it the opportunity to ask questions
of, and
receive answers from, the officers of the Company concerning the
Company
and its business. Fusion acknowledges that it has entered into the
transactions contemplated by this Agreement without being furnished
any
prospectus.
|
| 4. |
Right
to Acquire 1% Interest. In the event that (a) the Company adopts any
plan of dissolution or liquidation or any proceeding to liquidate
or
dissolve the Company is instituted against the Company, (b) there
is a
filing of a petition under the United States Bankruptcy Code or insolvency
or similar law with respect to the Company, the making of an assignment
for the benefit of creditors or the appointment of a receiver, custodian,
trustee or other fiduciary to take charge of the Company’s assets, (c) the
Company enters into any agreement to sell all or substantially all
of its
assets or enters into any agreement to merge, consolidate or combine
with
any other entity, then in any of such events, (d) there occurs any
event related to the Company, including, but not limited to, any
action
taken by a creditor of the Company, that in the reasonable judgment
of
Fusion, adversely affects or could reasonably be expected to adversely
affect, Fusion's ability to exercise its ability to manage the
business an affairs of the LLC in accordance with the terms of the
LLC's
Operating Agreement, Fusion shall have the right to acquire the 1%
Interest and one (1) Voting Unit from the Company by transferring
or
causing the transfer of the Shares back to the Company or paying
One
Thousand Two Hundred Sixty Two Dollars ($1,262) in cash to the Company.
The Company shall give written notice to Fusion of any of the events
described in clauses (a) through (c) above within ten (10) days after
the
occurrence of such event. Fusion shall notify the Company in writing
within five (5) days of receipt of such notice as to whether it wishes
to
acquire the 1% Interest and the Voting Unit. In the event of
the occurrence of an event described in clause (d) above, Fusion
shall
give written notice to the Company that it has determined that such
anevent has occurred. Any purchase of the 1% Interest and Voting
Unit pursuant to this Section 4 shall be closed within thirty (30)
days of
the receipt of the written notice provided by Fusion
pursuant to this section 4.
|
| 5. |
Governing
Law.
This Agreement and its validity, construction and performance shall
be
governed in all respects by the laws of the State of Delaware, without
giving effect to principles of conflict of laws.
|
| 6. |
Severability.
If
any provisions of this Agreement or the application of any provision
hereof to any person or circumstance is held invalid, the remainder
of
this Agreement and the application of such provision to other persons
or
circumstances shall not be affected unless the provision held invalid
shall substantially impair the benefits of the remaining portions
of this
Agreement.
|
| 7. |
Benefits
of Parties, Assignment.
This Agreement shall be binding upon and inure to the benefit of
the
parties hereto and their respective personal representatives, heirs,
successors and assigns. This Agreement may not be assigned by any
party
hereto except with the prior written consent of all parties
hereto.
|
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| 8. |
Headings.
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part
hereof.
|
| 9. |
Construction.
As
used in this Agreement, words in the singular shall be construed
as
including the plural and vice versa and words in one gender shall
include
all genders unless the context shall clearly require
otherwise.
|
| 10. |
Counterparts.
This Agreement may be executed in one or more counterparts, each
of which
shall be an original, but all of which together shall constitute
one and
the same instrument.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
and year first above written.
| STRATUS SERVICES GROUP, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
|
|
||
| Title: Executive Vice President & CFO | ||
| FUSION BUSINESS SERVICES, LLC | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxx | |
|
|
||
| Title: Managing Member | ||
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