EXHIBIT 10.1
PURCHASE AGREEMENT
This purchase agreement (this "Agreement") is dated as of August 5, 2005,
by and between the purchasers set forth on the signature page hereto
(collectively, the "Purchaser") and SpatiaLight, Inc., a New York Corporation
(the "Company"), whereby the parties agree as follows:
1. Offering.
a) The Company has authorized the sale and issuance of up 2,000,000 of
its Common Shares (the "Shares"), to one or more purchasers (the
"Offering"). The Offering has been registered with the Securities
and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to the Company's
Registration Statement on Form S-3 (No. 333-122392), which was
declared effective by the SEC on July 29, 2005 and has remained
effective since such date and is effective on the date hereof (the
"Registration Statement").
b) The Company and the Purchaser agree that, at the Closing (as defined
in Section 2), the Purchaser will purchase from the Company and the
Company will issue and sell to the Purchaser the number of Shares
set forth on the signature page of this Agreement for a purchase
price set forth on the signature page of this Agreement (the
"Purchase Price") pursuant to the terms and conditions set forth
herein. Certificates representing the Shares purchased by the
Purchaser may not be delivered to the Purchaser; instead such
Shares, if not physically delivered, will be credited to the
Purchaser using customary book-entry procedures.
c) The Company may enter into agreements with certain other purchasers
(the "Other Purchasers"), with terms and conditions, including but
not limited to purchase price and quantity of Shares, which may be
different from those set forth herein. (The Purchaser and the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Purchasers" and this Agreement and the stock purchase agreements
executed by the Other Purchasers are hereinafter sometimes
collectively referred to as the "Purchase Agreements"). The Company
may accept or reject Purchase Agreements in its sole discretion.
d) Pursuant to Rule 424(b)(2) of the Securities Act, the Company agrees
to file with SEC a prospectus supplement in a form similar to
Exhibit A hereto regarding the sale of the Shares to Purchaser (the
"Prospectus Supplement") after consummation of the sale of the
Shares contemplated by this Agreement.
e) From the date hereof until 30 days following the date hereof, the
Purchaser may, in its sole determination, elect to purchase,
severally and not jointly with the other Purchasers, up to an
additional aggregate total of 225,000 registered shares of Common
Stock off the Registration Statement (such securities, the
"Greenshoe Securities" and such right, a "Greenshoe Right") in
proportion to the Shares initially purchased by the Purchasers
pursuant to this Agreement. Any Greenshoe Right exercised by a
Purchaser shall close within 2 business days of a duly delivered
exercise notice by the exercising party. Any additional investment
in the Greenshoe Securities shall be at a purchase price of $5.50
per Share and on other terms and conditions materially identical to
the purchase and sale of the Shares set forth on the signature page
hereto, mutatis mutandis. In order to effectuate a purchase and sale
of the Greenshoe Securities, the Company and the Purchasers shall
enter into a purchase agreement materially identical to this
Agreement; provided, however, that there shall not be any additional
Greenshoe Rights.
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2. Delivery of the Shares at Closing
a) The completion of the purchase and sale of the Shares (the
"Closing") shall occur on August 5, 2005 (the "Closing Date"). At
the Closing, the Purchaser shall deliver to the Company a wire
transfer of funds in the full amount of the purchase price for the
Shares being purchased hereunder as set forth on the signature page
hereto, and the Company shall deliver to the Purchaser, at the sole
discretion of the Purchaser, physically or using customary
book-entry procedures (such as the Depository Trust Company's
Deposit Withdrawal Agent Commission system), the number of Shares,
set forth on the signature page hereto.
b) The Company's obligation to issue and sell the Shares to the
Purchaser shall be conditioned upon the accuracy of the
representations and warranties made by the Purchaser and the
fulfillment of those undertakings of the Purchaser to be fulfilled
prior to the Closing.
3. Company Representations and Warranties
a) The Company hereby represents and warrants that: (a) it has full
rights, power and authority to enter into this Agreement and to
perform all of its obligations hereunder; (b) this Agreement has
been duly authorized and executed by and constitutes a valid and
binding agreement of the Company enforceable in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); (c) the execution and delivery of
this Agreement and the consummation of the transactions contemplated
hereby do not conflict with or result in a material breach of (i)
the Company's Amended and Restated Certificate of Incorporation or
by-laws, as amended, or (ii) any agreement to which the Company is a
party or by which any of its property or assets is bound; and (d)
upon receipt of the Purchase Price, the Shares will be duly and
validly issued, fully paid and non-assessable, and the Purchaser
will be entitled to all rights accorded to a holder of the Company's
Common Shares.
b) The Registration Statement has been declared effective by the SEC
and to the best of the Company's knowledge is currently effective
for the sale of the Shares to the Purchaser.
c) The Company represents that it shall promptly secure listing of all
the Shares sold under this Agreement upon the Nasdaq SmallCap
Market.
4. Purchaser Representations and Warranties
a) The Purchaser represents and warrants that (a) it has had no
position, office or other material relationship within the past
three years with the Company or person known to it to be affiliates
of the Company, and (b) it is not a registered broker-dealer under
Section 15 of the Securities Exchange Act of 1934, as amended, as of
the date hereof.
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b) The Purchaser hereby confirms receipt of the base prospectus
included in the Registration Statement and the Prospectus Supplement
(together, the "Prospectus"). The Purchaser confirms that it had
full access to the Prospectus and was fully able to read, review,
download and print it.
c) The Purchaser further represents and warrants to, and covenants
with, the Company that (i) the Purchaser has full right, power,
authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement, and (ii) this Purchase Agreement
constitutes a valid and binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
d) The Purchaser understands that nothing in the Prospectus, this
Agreement or any other materials presented to the Purchaser in
connection with the purchase and sale of the Shares constitutes
legal, tax or investment advice. The Purchaser has consulted such
legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase
of Shares.
5. Notice
All communications hereunder, except as may be otherwise specifically
provided herein, shall be in writing and shall be mailed, hand delivered, sent
by a recognized overnight courier service such as Federal Express, or sent via
facsimile and confirmed by letter, to the party to whom it is addressed at the
following addresses or such other address as such party may advise the other in
writing:
To the Company: as set forth on the signature page hereto.
To the Purchaser: as set forth on the signature page hereto.
All notices hereunder shall be effective upon receipt by the party to
which it is addressed.
6. Jurisdiction
This Agreement shall be governed by ad interpreted in accordance with the
laws of the State of New York, as if fully performed in New York, without giving
effect to the principles of conflicts of law thereof. Each of the parties
consents to the exclusive jurisdiction of the United States district court of
the Southern District of New York in the state courts of the State of New York
sitting in the City of New York in connection with any dispute arising under
this Agreement, and hereby waives, to the maximum extent permitted by law, any
objection based on forum non conveniens. To the extent determined by such court,
the prevailing party shall reimburse the other party for any reasonable costs,
legal fees and disbursements incurred in enforcement or protection of any of its
rights under this Agreement.
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7. Indemnification.
(a) The Company shall, notwithstanding any termination of this
Agreement, indemnify and hold harmless the Purchaser, the officers,
directors, agents, brokers (including brokers who offer and sell
Shares as principal as a result of a pledge or any failure to
perform under a margin call of Common Shares), investment advisors
and employees of each of them, each person or entity who controls
the Purchaser (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling person or entity, to
the fullest extent permitted by applicable law, from and against any
and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys' fees) and expenses
(collectively, "Losses"), as incurred, arising out of or relating to
any untrue or alleged untrue statement of a material fact contained
in the Registration Statement, any prospectus therein or any form of
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any
omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the
case of any prospectus or form of prospectus or supplement thereto,
in light of the circumstances under which they were made) not
misleading. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding arising from or
in connection with the transactions contemplated by this Agreement
of which the Company is aware.
(b) If any proceeding shall be brought or asserted against any person or
entity entitled to indemnity hereunder (an "Indemnified Party"),
such Indemnified Party shall promptly notify the Company in writing,
and the Company shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred
in connection with defense thereof; provided, that the failure of
any Indemnified Party to give such notice shall not relieve the
Company of its obligations or liabilities pursuant to this
Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination
is not subject to appeal or further review) that such failure shall
have prejudiced the Company. An Indemnified Party shall have the
right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party or
parties unless: (1) the Company has agreed in writing to pay such
fees and expenses; (2) the Company shall have failed promptly to
assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such
proceeding; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified
Party and the Company, and such Indemnified Party shall reasonably
believe that a material conflict of interest is likely to exist if
the same counsel were to represent such Indemnified Party and the
Company (in which case, if such Indemnified Party notifies the
Company in writing that it elects to employ separate counsel at the
expense of the Company, the Company shall not have the right to
assume the defense thereof and the reasonable fees and expenses of
one separate counsel shall be at the expense of the Company). The
Company shall not be liable for any settlement of any such
proceeding effected without its written consent, which consent shall
not be unreasonably withheld. The Company shall not, without the
prior written consent of the Indemnified Party, effect any
settlement of any pending proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability
on claims that are the subject matter of such proceeding.
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Subject to the terms of this Agreement, all reasonable fees and
expenses of the Indemnified Party (including reasonable fees and
expenses to the extent incurred in connection with investigating or
preparing to defend such proceeding in a manner not inconsistent
with this Section) shall be paid to the Indemnified Party, as
incurred, within ten business days of written notice thereof to the
Company; provided, that the Indemnified Party shall promptly
reimburse the Company for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is not
entitled to indemnification hereunder, determined based upon the
relative faults of the parties.
(c) If the indemnification under Section 7(a) is unavailable to an
Indemnified Party or insufficient to hold an Indemnified Party
harmless for any Losses, then the Company shall contribute to the
amount paid or payable by such Indemnified Party, in such proportion
as is appropriate to reflect the relative fault of the Company and
Indemnified Party in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant
equitable considerations. The amount paid or payable by a party as a
result of any Losses shall be deemed to include, subject to the
limitations set forth in this Agreement, any reasonable attorneys'
or other reasonable fees or expenses incurred by such party in
connection with any proceeding to the extent such party would have
been indemnified for such fees or expenses if the indemnification
provided for in this Section was available to such party in
accordance with its terms.
(d) The indemnity and contribution agreements contained in this Section
7 are in addition to any liability that the Company may have to the
Indemnified Parties.
8. Miscellaneous
a) This Agreement (and the Prospectus and any prospectus supplement)
constitutes the entire understanding and agreement between the
parties with respect to its subject matter and there are no
agreements or understandings with respect to the subject matter
hereof which are not contained in this Agreement.
b) This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument
and shall become effective when counterparts have been signed by
each party and delivered to the other parties hereto, it being
understood that all parties need not sign the same counterpart.
Execution may be made by delivery by facsimile.
c) This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Purchaser.
d) The headings of the various sections of this Agreement have been
inserted for convenience or reference only and shall not be deemed
to be part of this Agreement.
e) In case any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
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If the foregoing correctly sets forth our agreement, please confirm this
by signing and returning to us the duplicate copy of this letter.
AGREED AND ACCEPTED:
SPATIALIGHT, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
Address for Notice:
0 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Wire Instructions: See EXHIBIT B
AGREED AND ACCEPTED:
PURCHASERS:
Portside Growth and Opportunity Fund
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Authorized Signatory
Address for Notice:
Portside Growth and Opportunity Fund
c/o Ramius Capital Group LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Number of Shares: 170,000
Purchase Price per Share: $5.40
Aggregate Purchase Price: $918,000.00
Tax ID No: XX-XXXXXXX
Name in which book-entry should be made
(if different):________________________________
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SMITHFIELD FIDUCIARY LLC
By: /s/ Xxxx X. Chill
------------------------------------------
Name: Xxxx X. Chill
Title: Authorized Signatory
Address for Notice:
c/o Highbridge Capital Management LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Number of Shares: 170,000
Purchase Price per Share: $5.40
Aggregate Purchase Price: $918,000
Tax ID No: N/A
Name in which book-entry should be made
(if different): Bear, Xxxxxxx Securities Corp.
DTC #: 352
F/B/O Smithfield Fiduciary LLC
A/C# XXX-XXXXX-X
Bluegrass Growth Fund, LP
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Member
Address for Notice:
000 X 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Number of Shares: 100,000
Purchase Price per Share: $5.40
Aggregate Purchase Price: $540,000
Tax ID No: XX-XXXXXXX
Name in which book-entry should be made
(if different): Citigroup
DTC #: 418
Account #: XXX-XXXXX
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Bluegrass Growth Fund, Ltd.
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Director
Address for Notice:
000 X 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Number of Shares: 60,000
Purchase Price per Share: $5.40
Aggregate Purchase Price: $324,000
Tax ID No: N/A
Name in which book-entry should be made
(if different): Citigroup
DTC #: 418
Account #: XXX-XXXXX
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