Exhibit 5
EXECUTION COPY
SECURITIES PURCHASE AGREEMENT
Among
EARTHSHELL CORPORATION
a Delaware corporation
(as the Issuer)
and
TSCP MACHINERY & PROCESSING GROUP, LLC
a Delaware Limited Liability Company
and
XXXXXX X. XXXXXXXX REVOCABLE TRUST
A trust formed under the laws of Missouri
(as Purchasers)
Dated: June 22, 2006
SECURITIES PURCHASE AGREEMENT
-----------------------------
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is made and
entered into this 22 day of June, 2006 among EARTHSHELL CORPORATION, a
Delaware corporation (the "Company"), TSCP MACHINERY & PROCESSING
GROUP, LLC, a Delaware limited liability company ("TSCP") and XXXXXX
X. XXXXXXXX REVOCABLE TRUST, a trust formed under the laws of Missouri
("Xxxxxxxx") (Xxxxxxxx and TSCP are referred to individually as
"Purchaser" and collectively as the "Purchasers").
WHEREAS, Purchasers desire to purchase from the Company shares of
Series D Convertible Preferred Stock of the Company, par value $0.01
per share (the "Series D Shares"), with all the rights and preferences
set forth in the Certificate of Designation attached hereto as EXHIBIT
A (the "Certificate of Designation"), and the Company desires to sell
Series D Shares to Purchasers, on the terms contained herein; and
WHEREAS, in connection with the purchase and sale of the Series D
Shares, the Company will issue to each Purchaser a Common Stock
Warrant (each, a "Warrant" and collectively the "Warrants") to acquire
shares of common stock of the Company, par value $0.01 per share (the
"Common Shares") in the form attached hereto as EXHIBIT B.
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
THE TRANSACTION
1.1 APPROVAL OF TRANSACTION; FILING OF CERTIFICATE OF
DESIGNATION. Prior to the date hereof, the Board of Directors of the
Company authorized and approved the transaction contemplated by this
Agreement, including the Certificate of Designation, and the
Certificate of Designation has been accepted for filing by the
Secretary of State of Delaware and is in full force and effect. A
copy of such Board approval as certified by the Secretary or Assistant
Secretary of the Company, and a copy of the Certificate of Designation
as certified by the Secretary of State of Delaware, are attached
hereto as EXHIBIT C and EXHIBIT D, respectively.
1.2 PURCHASE AND SALE OF SECURITIES. On the terms contained in
this Agreement, each Purchaser, individually and not jointly and
severally, is hereby purchasing from the Company, and the Company is
hereby selling to such Purchaser, the number of Series D Shares set
forth next to the signature of such Purchaser on the signature page of
this Agreement, and a Warrant to acquire the number of Common Shares
set forth next to the signature of such Purchaser on the signature
page of this Agreement (the Series D Shares and Warrants shall be
referred to herein collectively as the "Securities") at an aggregate
purchase price for such Purchaser equal to the product of $3.90 and
the number of Series D Shares being purchased by such Purchaser. The
aggregate purchase price of the Securities for each Purchaser is set
forth next to the signature of each Purchaser on the signature page of
this Agreement.
1.3 TIME AND PLACE OF CLOSING. The transactions contemplated by
this Agreement are being consummated at 5:00 pm, Pacific Daylight
Savings Time, at the offices of the Company located at 0000 Xxxxx
Xxxxxx, Xxxxx 000, Xxxxx Xxxxxxx, Xxxxxxxxxx (the "Closing").
1.4 MANNER OF PAYMENT OF INDIVIDUAL PURCHASE PRICE. Each
Purchaser is paying his or its purchase price for its respective
Series D Preferred Shares and Warrants by wire transfer of immediately
available funds to the Company on the Closing to the bank account
designated by the Company by written notice delivered to Purchasers
not later than the day of Closing.
1.5 ISSUANCE AND DELIVERY OF THE SECURITIES. The Company is
issuing and delivering certificates representing the Securities in the
name of each Purchaser in the amounts set forth next to the signature
of each such Purchaser on the signature page of this Agreement. The
Company is also delivering such other documents as are reasonably
required in order to effectuate the consummation of the transactions
contemplated hereby. All documents being delivered at Closing are in
form and substance reasonably satisfactory to both parties.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIVES AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to Purchasers as follows:
(a) The Company is a company duly incorporated, validly
existing and in good standing under the laws of the State of Delaware,
with the requisite power and authority to own and use its properties
and assets and to carry on its business as currently conducted. The
Company is not in violation of any of the provisions of its
certificate of incorporation or bylaws. The Company is duly qualified
to conduct business and is in good standing as a foreign corporation
in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where
the failure to be so qualified or in good standing, as the case may
be, could not, individually or in the aggregate, (i) adversely affect
the legality, validity or enforceability of this Agreement or the
Securities, (ii) have or result in a material adverse effect on the
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results of operations, assets, business or condition (financial or
otherwise) of the Company, or (iii) adversely impair the Company's
ability to perform fully on a timely basis its obligations under this
Agreement (any of (i), (ii) or (iii), a "Material Adverse Effect").
(b) The Company has the requisite corporate power and
authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its
obligations hereunder. The execution and delivery of this Agreement
by the Company and the consummation by it of the transactions
contemplated hereunder (including the filing of the Certificate of
Designation with the Secretary of State of Delaware) have been duly
authorized by all necessary corporate action on the part of the
Company, and no further consent or action is required by the Company,
its Board of Directors or its stockholders. This Agreement has been
duly executed by officers of the Company and constitutes the valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms.
(c) The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not (i) conflict with
or violate any provision of the Company's certificate of incorporation
or bylaws, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or
both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company debt or otherwise) or other understanding to
which the Company is a party or by which any property or asset of the
Company is bound or affected, or (iii) result in a violation of any
law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the
Company is subject, or by which any property or asset of the Company
is bound or affected.
(d) The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local
or other governmental authority or other entity or person in
connection with the execution, delivery and performance by the Company
of this Agreement, other than the required filing of the Certificate
of Designation.
(e) The Securities have been duly authorized and, when
issued in accordance with this Agreement and paid for in full by
Purchasers, will be duly and validly issued, fully paid and non-
assessable, free and clear of any lien, charge, claim, security
interest, encumbrance, right of first refusal or other restriction.
At such time as the Securities may be converted into the appropriate
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number of shares of common stock of the Company (the "Common Shares"),
such Common Shares will be duly and validly issued, fully paid and
non-assessable, free and clear of any lien, charge, claim, security
interest, encumbrance, right of first refusal or other restriction.
(f) As of the date hereof, all of the outstanding shares of
common stock of the Company are duly authorized, validly issued, fully
paid and non-assessable and have been issued in compliance with all
applicable securities laws.
(g) There is no action, suit, inquiry, notice of violation,
proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its
properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county,
local or foreign) which adversely affects or challenges the legality,
validity or enforceability of this Agreement or the Securities.
(h) The Company has filed all reports required to be filed
by it under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (the foregoing filings
being collectively referred to herein as the "SEC Reports"). As of
their respective dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act of 1933, as
amended (the Securities Act") and the Exchange Act and the rules and
regulations of the Securities and Exchange Commission (the
"Commission") promulgated thereunder, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports comply
in all material respects with applicable accounting requirements and
the rules and regulations of the Commission with respect thereto as in
effect at the time of filing. Such financial statements have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
may be otherwise specified in such financial statements or the notes
thereto, and fairly present in all material respects the financial
position of the Company as of and for the dates thereof and the
results of operations and cash flows for the periods then ended.
(i) As of the date hereof, and after giving effect to the
filing of the Certificate of Designation and the transactions
contemplated by this Agreement, the authorized capital stock of the
Company consists of (i) 40,000,000 shares of common stock, $0.01 par
value per share, of which 19,340,188 are issued and outstanding, and
(ii) 10,000,000 shares of Preferred Stock, of which 100 shares are
designated Series B Convertible Preferred Stock, of which 8,000,000
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have been designated Series C Convertible Preferred Stock., and of
which 400,000 have been designated as Series D Convertible Preferred
Stock. There is no other class of preferred stock authorized or
outstanding. All common stock and series of Preferred Stock referred
to in this Section 2.1(i) are referred to collectively herein as
"Corporation Shares." All of the issued and outstanding Corporation
Shares have been validly issued, are fully paid and are non-
assessable. All Corporation Shares have been issued in compliance
with all applicable federal and state securities laws.
(j) Since December 31, 2005, there has not been any
material adverse change in the business, operations, financial
condition or prospects of the Company, except as has been publicly
disclosed in SEC Reports or press releases and it being understood
that the Company needs additional financing to continue as a "going
concern."
2.2 REPRESENTATIONS AND WARRANTIES OF PURCHASERS.
Each Purchaser individually as to itself, and not jointly and
severally, represents and warrants to the Company as follows:
(a) Such Purchaser, if not a natural person, is duly
organized, validly existing and in good standing, under the laws of
its state of formation. Such Purchaser, if not a natural person, has
full power and authority to enter into and perform this Agreement.
The execution and delivery by such Purchaser of this Agreement and the
performance by such Purchaser of its obligations hereunder, in each
case if such Purchaser is not a natural person, have been duly
authorized and approved by all requisite company action.
(b) This Agreement has been duly executed and delivered by
such Purchaser or duly authorized representatives of such Purchaser
and constitutes the valid and binding obligation of such Purchaser
enforceable against such Purchaser in accordance with its terms.
(c) No consent, authorization, order or approval of, or
filing or registration with, any governmental commission, board or
other regulatory body of the United States or any state or political
subdivision thereof is required for or in connection with the
consummation by such Purchaser of the transaction contemplated hereby.
(d) Neither the execution and delivery of this Agreement by
such Purchaser, nor the consummation by such Purchaser of the
transaction contemplated hereby, will conflict with or result in a
breach of any of the terms, conditions or provisions of its charter
documents or operating agreement, or of any statute or administrative
regulation, or of any order, writ, injunction, judgment or decree of
any court or governmental authority or of any arbitration award.
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(e) Such Purchaser is not a party to any written or oral
contract, agreement, indenture, debenture, note, commitment or other
instrument under the terms of which performance by such Purchaser
according to the terms of this Agreement will be a default or an event
of acceleration, or grounds for termination, or whereby timely
performance by such Purchaser according to the terms of this Agreement
may be prohibited, prevented or delayed.
(f) Such Purchaser has not dealt with any person or entity
which is or may be entitled to a broker's commission, finder's fee,
investment banker's fee or similar payment for arranging the
transaction contemplated hereby or introducing the parties to each
other.
(g) Such Purchaser is acquiring the Securities (and upon
exercise of the Securities, the Common Shares) for such Purchaser's
own accounts and not with a present view to or for sale in connection
with any distribution of all or any part of the Securities or the
Common Shares. Such Purchaser understands that such parties can not,
directly or indirectly, transfer, offer, sell, pledge, hypothecate or
otherwise dispose of all or any part of the Securities or the Common
Shares or its or his interest in the Securities or the Common Shares
(or solicit any offers to buy, purchase or otherwise acquire to take a
pledge of all or any part thereof) except (i) as provided in Section 3
hereof or (ii) in a manner that does not violate the registration or
any other applicable provisions of the Securities Act (or any other
applicable federal securities laws) or any applicable state securities
laws; PROVIDED that in the case of a transfer under clause (ii)
hereof, the transferee of the Securities or the Common Shares from
such Purchaser must acknowledge and agree to abide by the provisions
of this Section 2.2(g) and must present to the Company or its counsel
(A) a written opinion in form and substance of legal counsel
experienced in securities law matters satisfactory to the Company
indicating that the proposed transfer will not be in violation of any
of the registration provisions of the Securities Act and the
qualification provisions of applicable state securities laws or
similar successor laws, and the rules and regulations promulgated
thereunder, or (B) evidence satisfactory to the Company of full
compliance with the provisions of Rule 144 under the Securities Act or
other available exemptions under the Securities Act.
(h) Such Purchaser has been furnished with, and hereby
acknowledges receipt of, such information as it deems necessary to
evaluate its or his investment in the Securities and understands the
risks of, and other considerations relating to, ownership of the
Securities. Such Purchaser has extensive knowledge and experience in
financial affairs so that such Purchaser is capable of evaluating the
merits and risks of an investment in the Securities and has the
capacity to protect its or his own interests in connection with
purchase of the Securities. Such Purchaser's financial situation is
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such that it can afford to bear the economic risk of holding the
Securities for an indefinite period of time and can afford to suffer
the complete loss of its investment in the Securities.
3. REGISTRATION COVENANT OF THE COMPANY
The Company covenants and agrees with each Purchaser as follows:
(a) If at any time either Purchaser requests that the
Company file a registration statement for a secondary public offering
of all or any portion of the Common Shares, the Company will file,
within sixty (60) business days of receipt of such Purchaser's
request, a registration statement with the Commission which complies
in all material respects with the requirements of the Securities Act
seeking the public sale of the number of Common Shares specified in
such notice. The Company will pay all reasonable expenses incurred in
connection with any registration, qualification and compliance
requested hereunder (excluding underwriting discounts and
commissions), including, without limitation, all filing, registration
and qualification, printing and accounting fees and the fees and
disbursements of counsel for the Company. The Company shall notify
each Purchaser in writing at least fifteen (15) days prior to the
filing of any registration statement under the Securities Act for
purposes of a public offering of securities and will afford each
Purchaser an opportunity to include in such registration statement all
or part of any Common Shares held by such Purchaser. Each Purchaser
desiring to include in any such registration statement all or any part
of his or its Common Shares, shall, within fifteen (15) days after the
above-described notice from the Company, so notify the Company in
writing. If a Purchaser decides not to include all of its Common
Shares in any registration statement thereafter filed by the Company,
such Purchaser shall nevertheless continue to have the right to
include any Common Shares in any subsequent registration statement as
may be filed by the Company with respect to offerings of its
securities, all upon the terms and conditions set forth herein.
(b) The Company will use its diligent best efforts (i) to cause
such registration statement to become effective and (ii) to cause such
registration statement to remain effective until the completion of the
proposed offering and (iii) to prepare and file with the Commission
such amendments and supplements to the registration statement and the
prospectus used in connection with such registration statement as may
be necessary to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all the Common Shares
covered by such registration statement, including, without limitation,
such amendments and supplements as may be necessary to reflect the
intended method of disposition from time to time of the holder.
(c) The Company will furnish to each holder of Common Shares
covered by such registration statement such numbers of copies of such
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registration statement, any amendments thereto, any documents
incorporated by reference therein, the prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably
request in order to facilitate the sale or other disposition of the
Common Shares.
(d) The Company will use its best efforts to register and
qualify the securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as shall
be reasonably requested by each holder of Common Shares covered by
such registration statement and do any and all other acts and things
that may be necessary under such securities and blue sky laws to
enable each holder to consummate the sale or other disposition of the
Common Shares owned by it; provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify
to do business or to file a general consent to service of process in
any such states or jurisdictions, unless the Company is already
subject to service in such state or jurisdiction and except as may be
required by the Securities Act.
(e) Within a reasonable time before each filing of the
registration statement or prospectus or amendments or supplements
thereto with the SEC, the Company will furnish counsel selected by any
holder of the Common Shares copies of such documents proposed to be
filed, which counsel shall have a reasonable opportunity to review and
comment thereon.
(f) The Company will promptly notify each holder of Common
Shares covered by the registration statement of the happening of any
event which makes any statement made in the registration statement or
related prospectus untrue or which requires the making of any changes
in such registration statement or prospectus so that they will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they
were made not misleading; and, as promptly as practicable thereafter,
prepare and file with the Commission and furnish a supplement or
amendment to such prospectus so that, as thereafter deliverable to the
purchasers of such Common Shares, such prospectus will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(g) The Company will use its best efforts to prevent the
issuance of any order suspending the effectiveness of the registration
statement and, if one is issued, shall use its best efforts to obtain
the withdrawal of any order suspending the effectiveness of the
registration statement at the earliest possible moment.
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(h) If the registration statement under which the Company gives
notice under this Section 3 is for an underwritten offering, the
Company shall so advise the Purchasers. In such event, the right of
any such Purchaser to be included in any such registration statement
pursuant to this Section 3 shall be conditioned upon such Purchaser's
participation in such underwriting and the inclusion of such Common
Shares in the underwriting to the extent provided herein. The
Company, and the Purchasers who intend to participate in such
underwritten offering, shall enter into an underwriting agreement in
customary form with an underwriter or underwriters selected for such
underwriting by the Company.
(i) To the fullest extent permitted by law, the Company will
indemnify and hold harmless each holder selling Common Shares under
the registration statement, each other entity or person who
participates in the offering of the Common Shares under such
registration statement, and each other entity or person, if any, who
controls (within the meaning of the Securities Act) such seller or
participating entity or person (individually and collectively, the
"Indemnified Person"), against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under
the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (joint or
several), or actions in respect thereof, arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading,
or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule
or regulation promulgated under the Securities Act, the Exchange Act
or any state securities law, and the Company shall pay to each such
Indemnified Person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action;
provided, however, that the Company shall not be liable to any
Indemnified Person in any such case for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based
upon (i) any untrue statement or alleged untrue statement or omission
or alleged omission in such registration statement, preliminary or
final prospectus, or amendment or supplement thereto in reliance upon
and in conformity with written information furnished to the Company by
such person expressly for use therein or (ii) such person's failure to
deliver a prospectus as required by the Securities Act.
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ARTICLE IV
INDEMNIFICATION
4.1 GENERAL. From and after the Closing, the parties shall
indemnify each other as provided in this Article IV. As used in this
Agreement, the term "Damages" shall mean all liabilities, actions or
causes of action, regulatory, legislative or judicial proceedings or
investigations, assessments, levies, losses, fines, penalties,
damages, costs and expenses, including, without limitation, reasonable
attorneys', accountants', investigators', and experts' fees and
expenses, sustained or incurred in connection with the defense or
investigation of any claim of Damages.
4.2 THE COMPANY'S INDEMNIFICATION OBLIGATION. The Company will
indemnify, save and keep each Purchaser and its successors and
permitted assigns ("Purchaser Indemnities") harmless against and from
all Damages sustained or incurred by any Purchaser Indemnitee, as a
result of or arising out of or by virtue of any inaccuracy in or
breach of any representation and warranty made by the Company to
Purchasers herein or failure of the Company to comply with any of the
covenants or obligations under this Agreement to be performed by the
Company.
Each of the representations and warranties made by the Company in this
Agreement shall survive for a period of two (2) years after the
Closing Date. No claim for the recovery of Damages arising out a
breach of any such representation and warranty may be asserted by
either Purchaser against the Company or its successors in interest
after such representations and warranties shall be thus extinguished;
provided, however, that claims first asserted in writing within the
applicable period shall not thereafter be barred.
4.3. PURCHASERS INDEMNIFICATION OBLIGATION. Purchasers shall
individually, and not jointly and severally, indemnify, save and keep
the Company and its successors and permitted assigns ("Seller
Indemnitees"), forever harmless against and from all Damages sustained
or incurred by any Seller Indemnitee, as a result of or arising out of
or by virtue of any inaccuracy in or breach of any representation and
warranty made by such Purchaser to the Company herein.
Each of the representations and warranties made by each Purchaser in
this Agreement shall survive for a period of two (2) years after the
Closing. No claim for the recovery of Damages arising out of a breach
of any such representation and warranty may be asserted by the Company
against such Purchaser or its successors in interest after such
representations and warranties shall be thus extinguished; provided,
however, that claims first asserted in writing within the applicable
period shall not thereafter be barred.
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ARTICLE V
MISCELLANEOUS
5.1 PUBLICITY. Except as otherwise required by law, press
releases concerning this transaction shall be made only with the prior
agreement of the Company and Purchasers.
5.2 NOTICES. All notices required or permitted to be given
hereunder shall be in writing and may be delivered by hand, by
facsimile, by nationally recognized private courier, or by United
States mail. Notices delivered by mail shall be deemed given three
(3) business days after being deposited in the United States mail,
postage prepaid, registered or certified mail. Notices delivered by
hand by facsimile, or by nationally recognized private carrier shall
be deemed given on the first business day following receipt; provided,
however, that a notice delivered by facsimile shall only be effective
if such notice is also delivered by hand, or deposited in the United
States mail, postage prepaid, registered or certified mail, on or
before two (2) business days after its delivery by facsimile. All
notices shall be addressed as follows:
IF TO THE COMPANY:
c/o EarthShell Corporation
0000 Xxxx Xx. Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: D. Xxxxx Xxxxxxx
Fax: (000-000-0000 (fax)
WITH A COPY TO:
Xxxxxxxxx, Xxxxxx Xxxxxxx LLP
000 Xxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx, Esq.
Fax: (000) 000-0000
IF TO PURCHASERS:
TSCP Machinery & Processing Group, LLC
x/x Xxxxxxxx Xxxxxx Capital Partners, L.P.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
00
Xxxxxx X. Xxxxxxxx Revocable Trust
c/o Xxx Xxxxxxxx
Springbok Partners
80 East Xxx Xxxxxxx Xxxxx Blvd.
0xx Xxxxx, Xxxxx X
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax:_________________
WITH A COPY TO:
Xxxxxx Xxxxxx LLP
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and/or to such other respective addresses and/or addresses as may be
designated by notice given in accordance with the provisions of this
Section 5.2.
5.4 EXPENSES. Each party hereto will bear all the fees and
expenses incurred by such party in connection with, relating to or
arising out of the negotiation, preparation, execution, delivery and
performance of this Agreement and the consummation of the transaction
contemplated hereby, including, without limitation, attorneys',
accountants' and other professional fees and expenses.
5.5. ENTIRE AGREEMENT. This Agreement and the instruments to be
delivered by the parties pursuant to the provisions hereof constitute
the entire agreement between the parties relating to the Securities
and shall be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, successors and
permitted assignees. Any amendments, or alternative or supplementary
provisions to this Agreement must be made in writing and duly executed
by an authorized representative or agent of each of the parties
hereto.
5.6. SURVIVAL; NON-WAIVER. All representations and warranties
shall survive the Closing regardless of any investigation or lack of
investigation by any of the parties hereto. The failure in any one or
more instances of a party to insist upon performance of any of the
terms, covenants or conditions of this Agreement, to exercise any
right or privilege in this Agreement conferred, or the waiver by said
party of any breach of any of the terms, covenants or conditions of
this Agreement, shall not be construed as a subsequent waiver of any
such terms, covenants, conditions, rights or privileges, but the same
shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred. No waiver shall be effective
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unless it is in writing and signed by an authorized representative of
the waiving party. A breach of any representation, warranty or
covenant shall not be affected by the fact that a more general or more
specific presentation, warranty or covenant was not also breached.
5.7. SEVERABILITY. The invalidity of any provision of this
Agreement or portion of a provision shall not affect the validity of
any other provision of this Agreement or the remaining portion of the
applicable provision.
5.8. APPLICABLE LAW. This Agreement shall be governed and
controlled as to validity, enforcement, interpretation, construction,
effect and in all other respects by the internal laws of the State of
Delaware applicable to contracts made in that State.
5.9. BINDING EFFECT; BENEFIT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their
successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to confer on any person other than the parties
hereto, and their respective successors and permitted assigns any
rights, remedies, obligations or liabilities under or by reason of
this Agreement.
5.10. ASSIGNABILITY. This Agreement shall not be assignable
by either party without the prior written consent of the other party
except that either of the Purchasers may assign its rights under the
Agreement to an affiliate.
5.11. COUNTERPARTS. This Agreement is being executed in
multiple counterparts, and by facsimile or other electronic means,
each of which shall be deemed to be an original, and all such
counterparts shall constitute but one instrument.
5.12. HEADINGS. The headings contained in this Agreement are
for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement on
the date first above written.
THE COMPANY
EARTHSHELL CORPORATION
By /s/ Xxxxx Xxxxxxx
-------------------------
Xxxxx Xxxxxxx
Chief Financial Officer
PURCHASERS
TSCP MACHINERY & PROCESSING
GROUP,LLC
By: Xxxxxxxx Street Capital Partners, L.P., its Manager
By: Xxxxxxxx Street Capital GP LLC
Its: General Partner
By: /s/ Xxxxx X. Xxxxxx Aggregate Purchase Price $200,000
---------------------- Number of Series D Shares: 51,282
Xxxxx X. Xxxxxx Warrant Conversion: 222,222 Common
Managing Member Shares
XXXXXX X. XXXXXXXX
REVOCABLE TRUST Aggregate Purchase Price $300,000
Number of Series D Shares: 76,923
By: /s/ Xxxxxx X. Xxxxxxxx Warrant Conversion:333,333 Common
----------------------- Shares
Its:_______________________
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