STOCK PURCHASE AGREEMENT By and Between GECKO ENERGY TECHNOLOGIES, INC. and MILLENNIUM CELL INC. Dated February 15, 2006
By
and Between
GECKO
ENERGY TECHNOLOGIES, INC.
and
Dated
February 15, 2006
TABLE
OF CONTENTS
|
1.
|
Definitions.
|
1
|
|
1.1.
|
Defined
Terms Used in this Agreement.
|
1
|
|
2.
|
Purchase
and Sale; Closings.
|
3
|
|
2.1.
|
Common
Stock Purchase and Sale.
|
3
|
|
2.2.
|
First
Closing.
|
3
|
|
2.3.
|
Additional
First Year Closings.
|
3
|
|
2.4.
|
Purchase
Option Closings.
|
4
|
|
2.5.
|
Closing.
|
5
|
|
3.
|
Representations
and Warranties of the Company.
|
5
|
|
3.1.
|
Organization,
Good Standing, Corporate Power and Qualification.
|
5
|
|
3.2.
|
Corporate
Power and Authorization.
|
5
|
|
3.3.
|
Capitalization.
|
5
|
|
3.4.
|
Subsidiaries.
|
6
|
|
3.5.
|
Valid
Issuance of Shares.
|
6
|
|
3.6.
|
Filings,
Consents and Approvals; Non-Contravention.
|
6
|
|
3.7.
|
Litigation.
|
6
|
|
3.8.
|
Patents
and Trademarks.
|
7
|
|
3.9.
|
Compliance.
|
7
|
|
3.10.
|
Registration
and Voting Rights.
|
7
|
|
3.11.
|
Financial
Statements.
|
7
|
|
3.12.
|
Material
Changes.
|
7
|
|
3.13.
|
Tax
Returns and Payments.
|
8
|
|
3.14.
|
Insurance.
|
8
|
|
3.15.
|
Private
Placement.
|
8
|
|
3.16.
|
Investment
Company.
|
8
|
|
3.17.
|
No
Broker’s or Finder’s Fee.
|
8
|
|
3.18.
|
Disclosure.
|
9
|
|
4.
|
Representations
and Warranties of the Purchaser.
|
9
|
|
4.1.
|
Organization;
Good Standing.
|
9
|
|
4.2.
|
Corporate
Power and Authorization.
|
9
|
|
4.3.
|
Purchase
Entirely for Own Account.
|
9
|
|
4.4.
|
Restricted
Securities.
|
9
|
|
4.5.
|
No
Public Market.
|
10
|
|
4.6.
|
Legends.
|
10
|
|
4.7.
|
Accredited
Investor.
|
10
|
|
4.8.
|
Access
to Information.
|
10
|
|
4.9.
|
No
Broker’s or Finder’s Fee.
|
10
|
|
5.
|
Certain
Covenants and Agreements.
|
11
|
|
5.1.
|
Continued
Access to Information.
|
11
|
|
5.2.
|
Further
Assurances.
|
11
|
|
5.3.
|
Use
of Purchaser Stock.
|
11
|
|
6.
|
Conditions
Precedent to the Purchaser’s Obligations at Closing.
|
11
|
|
6.1.
|
First
Closing.
|
11
|
|
6.2.
|
Subsequent
Closings.
|
12
|
|
7.
|
Conditions
Precedent to the Company’s Obligations at Closing.
|
13
|
|
7.1.
|
First
Closing.
|
13
|
|
7.2.
|
Subsequent
Closings.
|
13
|
|
8.
|
Term
and Termination.
|
14
|
|
8.1.
|
Term.
|
14
|
|
8.2.
|
Termination.
|
14
|
|
8.3.
|
Effect
of Termination.
|
14
|
|
9.
|
Indemnification.
|
15
|
|
9.1.
|
Indemnification
of the Purchaser.
|
15
|
|
9.2.
|
Indemnification
of the Company.
|
15
|
|
9.3.
|
Procedures.
|
15
|
|
10.
|
Miscellaneous.
|
16
|
|
10.1.
|
Survival.
|
16
|
|
10.2.
|
Transfer;
Successors and Assigns.
|
17
|
|
10.3.
|
Governing
Law; Submission to Jurisdiction.
|
17
|
|
10.4.
|
Counterparts.
|
17
|
|
10.5.
|
Construction
of Certain Terms.
|
17
|
|
10.6.
|
Notices.
|
17
|
|
10.7.
|
Fees
and Expenses.
|
18
|
|
10.8.
|
Amendments
and Waivers.
|
18
|
|
10.9.
|
Severability.
|
19
|
|
10.10.
|
Delays
or Omissions.
|
19
|
|
10.11.
|
Entire
Agreement.
|
19
|
i
Exhibit
A Joint
Development Agreement
Exhibit
B Stockholders
Agreement
Exhibit
C Form
of
Employment Agreement
Exhibit
D Form
of
Consulting Agreement Amendment
Exhibit
E Form
of
Opinion of the Company’s Counsel
ii
THIS
STOCK PURCHASE AGREEMENT
(this
“Agreement”)
is
made as of February 15, 2006 by and among Gecko Energy Technologies,
Inc.,
a Delaware corporation (the “Company”),
and
Millennium Cell Inc., a Delaware corporation (the “Purchaser”).
The
Company and the Purchaser also may be referred to herein individually as a
“Party”
or
collectively as the “Parties.”
Recitals
WHEREAS,
the Company and the Purchaser desire to enter into a joint development program
with which to pursue their respective businesses in an environment of mutual
assistance and to work together to develop planar fuel cell products and systems
which embody and/or are developed from synergistic applications of the combined
expertise of the Parties;
WHEREAS,
in connection with such joint development program, and subject to the terms
and
conditions of this Agreement, the Company and the Purchaser have agreed that
(i) at the First Closing (as defined herein), the Company will issue
shares
of Common Stock (as defined herein) to the Purchaser in exchange for financing
provided to the Company at
or
prior to the First Closing and for services to be provided by the Purchaser
during the first year of the joint development program, (ii) at
each Additional First Year Closing (as defined herein), the Company will issue
additional shares of Common Stock to the Purchaser in consideration for
additional financings required to be provided by the Purchaser to the Company
on
or prior to December 31, 2006 pursuant to the Joint Development Agreement
(as defined herein), and (iii) at each Purchase Option Closing (as defined
herein), the Company will issue additional shares of Common Stock to the
Purchaser in consideration for additional financings and certain services and
facilities provided by the Purchaser to the Company pursuant to the Joint
Development Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree
as
follows:
1. Definitions.
1.1. Defined
Terms Used in this Agreement.
In
addition to the terms specifically defined throughout this Agreement, the
following terms used in this Agreement shall be construed to have the meanings
set forth or referenced below.
“Affiliate”
means, with respect to any specified Person, any other Person which directly
or
indirectly through one or more intermediaries controls, or is controlled by,
or
is under common control with, such specified Person (for the purposes of this
definition, “control” (including, with correlative meanings, the terms
“controlling,”“controlled by” and “under common control with”), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise); provided,
however,
that
the Purchaser is not an Affiliate of the Company.
“Applicable
Law” means, with respect to any Person, any domestic or foreign, federal, state
or local statute, law, ordinance, rule, administrative interpretation,
regulation, order, writ, injunction, decree or other requirement of any
Governmental Authority applicable to such Person or any of their respective
properties, assets, officers, directors, employees, consultants or agents (in
connection with such officer’s, director’s, employee’s, consultant’s or agent’s
activities on behalf of such Person).
“Business
Day” means any day except Saturday, Sunday or any day on which banks are
generally not open for business in the New York City.
“Common
Stock” means the Company’s common stock, no par value.
“Founders”
means Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxx.
“Governmental
Authority” means any federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body.
“Joint
Development Agreement” means the Joint Development Agreement between the Company
and the Purchaser in the form attached hereto as Exhibit A.
“Material
Adverse Effect” means any change or effect that (a) does
or
is reasonably likely to materially adversely affect the
ability of the Company to perform its obligations under this Agreement or any
of
the Transaction Agreements or to consummate the transactions contemplated hereby
or thereby, or (b) does
or
is reasonably likely to materially adversely affect the business, assets
(including intangible assets), liabilities, prospects, financial condition
or
results of operations of the Company.
“Ownership
Interest” means the aggregate percentage ownership by any Person of Common Stock
or voting power of the Company as of any date.
“Person”
means and includes an individual, a limited liability company, a partnership,
a
joint venture, a corporation or trust, an unincorporated organization, a group
or Governmental Authority.
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended.
“Stockholders
Agreement” means the Stockholders Agreement among the Company, the Purchaser and
the Founders in the form attached hereto as Exhibit
B.
“Transaction
Agreements” means this Agreement, the Joint Development Agreement and the
Stockholders Agreement.
2. Purchase
and Sale; Closings.
2.1. Common
Stock Purchase and Sale.
The
Company hereby agrees to sell, issue and deliver to the Purchaser, and the
Purchaser hereby agrees to purchase and accept from the Company, on each Closing
Date (as defined in Section 2.5),
shares
of Common Stock (“Common
Shares”)
upon
the terms and subject to the conditions set forth in this
Agreement.
2.2. First
Closing.
Upon
the
terms and subject to the conditions set forth in this Agreement, the initial
closing (the “First
Closing”)
shall
take place as soon as practicable, but in no event later than two (2) Business
Days after the satisfaction of the conditions set forth in Section
6.1
and
Section
7.1
(or such
other time as the Parties may agree) (the “First
Closing Date”).
At
the First Closing, the following shall occur:
(a) the
Purchaser shall pay to the Company, in immediately available funds, the amount
set forth in the first sentence of Section 3.01(b) of the Joint Development
Agreement;
(b) in
exchange for the First Closing Amount (as defined in the Joint Development
Agreement), the Company shall issue and sell to the Purchaser, and the Purchaser
shall accept, the amount of Common Shares to be issued to the Purchaser at
the
First Closing as provided in the Joint Development Agreement;
(c) the
Company and the Purchaser shall enter into the Joint Development
Agreement;
(d) the
Company, the Purchaser and the Founders shall enter into the Stockholders
Agreement;
(e) the
Company shall enter into an employment agreement with each of the Founders
in
the form attached hereto as Exhibit C
(each,
an “Employment
Agreement”);
(f) the
Purchaser shall enter into an amendment agreement with each Founder in the
form
attached hereto as Exhibit D
(each, a
“Consulting
Amendment”),
which
Consulting Amendment shall amend the Consulting Agreement dated as of December
15, 2005 between the Purchaser and such Founder;
(g) the
President of the Company shall execute and deliver to the Purchaser at the
First
Closing a certificate certifying that the conditions specified in Section 6.1(a)
and
Section
6.1(b)
have
been fulfilled; and
(h) the
Company and the Purchaser shall execute and deliver any other documents,
certificates and agreements necessary or desirable to accomplish the
foregoing.
2.3. Additional
First Year Closings.
Upon
the
terms and subject to the conditions set forth in this Agreement,
contemporaneously with the provision of each Additional First Year Financing
(as
defined in the Joint Development Agreement) required to be provided by the
Purchaser on or prior to December 31, 2006 pursuant to the Joint Development
Agreement, or at such other time as the Parties shall otherwise agree (each,
an
“Additional
First Year Closing Date”),
the
Company and the Purchaser shall conduct a closing (each, an “Additional
First Year Closing”)
with
respect to all Additional First Year Financings provided by the Purchaser
pursuant to the Joint Development Agreement since the First Closing or the
immediately preceding Additional First Year Closing, as the case may be. At
each
Additional First Year Closing, the following shall occur:
(a) in
exchange for all Additional First Year Financings provided by the Purchaser
pursuant to the Joint Development Agreement since the First Closing or the
immediately preceding Additional First Year Closing, as the case may be, the
Company shall issue and sell to the Purchaser, and the Purchaser shall accept,
a
number of Common Shares representing an Ownership Interest determined in
accordance with Section 3.01(c) of the Joint Development
Agreement;
(b) updated
Schedules to this Agreement (which update of the representations and warranties
shall reflect that a Material Adverse Effect has not occurred since the prior
Closing);
(c) the
President of the Company shall deliver to the Purchaser a certificate certifying
that the conditions specified in Section
6.2(a)
and
Section
6.2(b)
applicable to such Subsequent Closing have been fulfilled; and
(d) the
Company and the Purchaser shall execute and deliver any other documents and
agreements necessary or desirable to accomplish the foregoing.
3
2.4. Purchase
Option Closings.
Upon
the
terms and subject to the conditions set forth in this Agreement, with respect
to
each quarterly installment payment of the Purchase Option (as such term is
defined in the Joint Development Agreement), or at such other time as the
Parties shall otherwise agree (each, a “Purchase
Option Closing Date,”
and
together with the Additional First Year Closing Dates, the “Subsequent
Closing Dates”),
the
Company and the Purchaser shall conduct a closing (each, a “Purchase
Option Closing,”
and
together with the Additional First Year Closings, the “Subsequent
Closings”)
with
respect to such exercise of the Purchase Option pursuant to Section 3.02(b)
of the Joint Development Agreement. At each Purchase Option Closing, the
following shall occur:
(a) the
Company shall issue and sell to the Purchaser, and the Purchaser shall accept,
the amount of additional shares of Common Stock representing the Ownership
Interest for which the Purchase Option has been exercised, in exchange for
payment of the aggregate Exercise Price (as defined in the Joint Development
Agreement) therefor by the Purchaser in the form or forms permitted pursuant
to
the terms of the Joint Development Agreement;
(b) updated
Schedules to this Agreement (which update of the representations and warranties
shall reflect that a Material Adverse Effect has not occurred since the prior
Closing);
(c) the
President of the Company shall deliver to the Purchaser a certificate certifying
that the conditions specified in Section
6.2(a)
and
Section
6.2(b)
applicable to such Purchase Option Closing have been fulfilled; and
(d) the
Company and the Purchaser shall execute and deliver any other documents and
agreements necessary or desirable to accomplish the foregoing.
4
2.5. Closing.
The
First
Closing and each Subsequent Closing (each, a “Closing”)
shall
each take place at the offices of Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP,
1177 Avenue of the Americas, New York, N.Y. 10036 on the First Closing Date
and
each Subsequent Closing Date (each a “Closing
Date”),
or at
such other location or time as the Parties may agree. A Closing will be deemed
to occur at 11:59 p.m., New York City time, on the applicable Closing Date.
3. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Purchaser that:
3.1. Organization,
Good Standing, Corporate Power and Qualification.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to carry on its business as presently conducted and as proposed
to
be conducted. The Company is duly qualified to transact business and is in
good
standing in each jurisdiction in which the failure to so qualify would have
a
Material Adverse Effect. The Company has the requisite corporate power and
authority to own and operate its properties and assets. The Certificate of
Incorporation and Bylaws of the Company have been provided to the
Purchaser.
3.2. Corporate
Power and Authorization.
The
Company has all requisite legal and corporate power and authority to enter
into
this Agreement and the other Transaction Agreements and to issue and sell the
Common Shares hereunder and to carry out and perform its obligations in
accordance with the terms of this Agreement. The execution and delivery of
each
of the Transaction Agreements by the Company and the consummation by it of
the
transactions contemplated thereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the
Company. This Agreement, and, at each Closing, each other Transaction Agreement
has been (or will have been) duly executed and delivered by the Company and
constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with their respective terms, except (a) as limited
by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, or other laws of general application relating to or affecting the
enforcement of creditors’ rights generally and (b) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
3.3. Capitalization.
The
number of shares and type of all authorized, issued and outstanding capital
stock of the Company (including any treasury shares) is set forth in
Schedule
3.3.
No
securities of the Company are entitled to preemptive right, right of
participation, or any similar right to participate in the transactions
contemplated by the Transaction Agreements. Except as disclosed in Schedule
3.3,
there
are no outstanding options, warrants, script rights to subscribe to, calls
or
commitments of any character whatsoever relating to, or securities, rights
or
obligations convertible into or exchangeable for, or giving any Person any
right
to subscribe for or acquire, any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company is or may
become bound to issue additional shares of Common Stock, or securities or rights
convertible or exchangeable into shares of Common Stock. Except as disclosed
in
Schedule
3.3,
the
issuance and sale of the Common Shares hereunder will not obligate any Person
(other than the Purchaser) and will not result in a right of any holder of
Company securities to adjust the exercise, conversion, exchange or reset price
under such securities.
5
3.4. Subsidiaries.
The
Company does not currently own or control, and has never owned or controlled,
directly or indirectly, any interest in any other corporation, partnership,
trust, joint venture, limited liability company, association, or other business
entity. Except as contemplated by the Joint Development Agreement, the Company
is not a participant in any joint venture, teaming, partnership or similar
arrangement.
3.5. Valid
Issuance of Shares.
The
Common
Shares,
when
issued, sold and delivered in accordance with the terms and for the
consideration set forth in this Agreement and in the Joint Development
Agreement, will be validly issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer under the
Transaction Agreements, applicable state and federal securities laws and liens
or encumbrances created by or imposed by the Purchaser. Assuming the accuracy
of
the representations of the Purchaser in Section
4 of
this
Agreement, the Common Shares will be issued hereunder in compliance with all
applicable federal and state securities laws.
3.6. Filings,
Consents and Approvals; Non-Contravention.
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 Governmental Authority or other Person in connection with the execution,
delivery and performance by the Company of the Transaction Agreements in
accordance with their terms, other than as required by blue sky filings. The
execution, delivery and performance of this Agreement and the other Transaction
Agreements and the consummation of the transactions contemplated in connection
therewith by the Company does not and will not (i) contravene or conflict
with the Certificate of Incorporation and Bylaws (and other equivalent
organizational documents) of the Company, (ii) contravene or conflict
with
or constitute a violation of any Applicable Law, (iii) constitute a
breach
of or default under or give rise to any right of termination, cancellation
or
acceleration of any right or obligation of any Person or to a loss of any
benefit to which the Company is entitled under any provision of any contract
binding upon the Company or by which any of the assets of the Company or the
Common Shares are or may be bound, or (iv) result in the creation or
imposition of any liens, claims or encumbrances on any asset of the Company
or
any of the Common Shares.
3.7. Litigation.
There
is
no claim, action, suit, proceeding, arbitration, complaint, charge or
investigation pending or to the Company’s knowledge, any threat thereof
(a) against the Company or any officer or director of the Company; or
(b) that questions the validity of the Transaction Agreements or the
right
of the Company to enter into them, or to consummate the transactions
contemplated by the Transaction Agreements in accordance with their terms.
There
is no action, suit, proceeding or investigation by the Company pending or which
the Company intends to initiate.
6
3.8. Patents
and Trademarks.
To
the
Company’s knowledge, the Company has, or has rights to use, all patents, patent
applications, trademarks, trademark applications, service marks, trade names,
copyrights, licenses and other similar rights (collectively, the “Intellectual
Property”)
that
are necessary or material for use in connection with its business and which
the
failure to do so have, could have, or could reasonably be expected to result
in,
a Material Adverse Effect. The Company has not received a written notice that
the Intellectual Property used by the Company violates or infringes upon the
rights of any Person which if determined adversely to the Company would,
individually or in the aggregate, have a Material Adverse Effect. All such
Intellectual Property is enforceable and, to the Company’s knowledge, there is
no existing infringement by another Person of any of the Intellectual
Property.
3.9. Compliance.
The
Company (i) is not in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by the Company under), nor has the Company received
written notice of a claim that it is in default under or that it is in violation
of, in any material respect, any indenture, instrument, loan or credit agreement
or any other agreement to which it is a party or by which it or any of its
properties is bound (whether or not such default or violation has been waived),
(ii) is not in violation of any order of any court, arbitrator or governmental
body applicable to the Company, or (iii) is not or has not been in violation
of
any statute, rule or regulation of any Governmental Authority applicable to
the
Company, including without limitation all foreign, federal, state and local
laws
relating to taxes, environmental protection, occupational health and safety,
product quality and safety and employment and labor matters.
3.10. Registration
and Voting Rights.
The
Company has not granted or agreed to grant to any Person any rights (including
“piggy back” registration rights) to have any securities of the Company
registered with the SEC or any other Governmental Authority that have not been
satisfied. To the Company’s knowledge, except for the Stockholders Agreement, no
stockholder of the Company has entered into any agreements with respect to
the
voting of capital shares of the Company.
3.11. Financial
Statements.
Except
as
set forth in Schedule 3.11,
the
financial statements of the Company provided to the Purchaser have been prepared
in accordance with United States generally accepted accounting principles
applied on a consistent basis (“GAAP”)
during
the periods involved, except as may be otherwise specified in such financial
statements or the notes thereto, and such financial statements, and the
information contained therein (if any) fairly present the financial position
of
the Company and its consolidated subsidiaries, if any, as of and for the dates
thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements of the Company, to normal,
immaterial, year-end audit adjustments and the absence of
footnotes.
3.12. Material
Changes.
Since
the
date of the last financial statements provided to the Purchaser, except as
specifically disclosed in Schedule
3.12:
(i)
there has been no event, occurrence or development that has had or that could
reasonably be expected to result in a Material Adverse Effect, (ii) the Company
has not incurred any liabilities (contingent or otherwise) other than:
(A) trade payables and accrued expenses incurred in the ordinary course
of
business consistent with past practice, (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP and
(C) expenses in connection with the negotiation and consummation of
the
transactions contemplated by the Transaction Agreements, (iii) the Company
has
not altered its method of accounting or the identity of its auditors, if any,
(iv) the Company has not declared or made any dividend or distribution of cash
or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock and (v) the
Company has not issued any equity securities to any officer, director or
Affiliate, except pursuant to existing Company stock option plans or deferred
compensation plan.
7
3.13. Tax
Returns and Payments.
There
are
no federal, state, county, local or foreign taxes dues and payable by the
Company which have not been timely paid. There are no accrued and unpaid
federal, state, county, local or foreign taxes of the Company which are due,
whether or not assessed or disputed. There have been no examinations or audits
of any tax returns or reports by any applicable Governmental Authority. The
Company has duly and timely filed all federal, state, county, local and foreign
tax returns required to have been filed by it and there are in effect no waivers
of applicable statutes of limitations with respect to taxes for any
year.
3.14. Insurance.
Except
as
set forth on Schedule 3.14,
(i) the Company has provided the Purchaser with a complete list of all
of
the Company’s insurance policies currently in effect, specifying the insurer,
amount of and nature of coverage, the risk insured against and the date through
which coverage will continue by virtue of premiums already paid, (ii) the
Company maintains insurance for the business and assets of the Company against
all risks normally insured against, and in amounts normally carried, by
corporations of similar size engaged in similar lines of business and such
coverage is sufficient, and (iii) all such insurance policies are in
full
force and effect and such policies, or policies providing substantially similar
coverage (but in any event not less than the amount of coverage currently
provided) will be maintained by the Company in full force and
effect.
3.15. Private
Placement.
Assuming
the accuracy of the Purchaser’s representations and warranties set forth in
Section
4,
no
registration under the Securities Act is required for the offer, issuance and
sale of the Common Shares by the Company to the Purchaser as contemplated
hereby.
3.16. Investment
Company.
The
Company is not, and is not an Affiliate of, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
3.17. No
Broker’s or Finder’s Fee.
No
agent,
broker, investment banker, Person or firm acting on behalf of the Company,
or
under the authority of the Company, is or will be entitled to any broker’s or
finder’s fee or any other commission or similar fee directly or indirectly from
any Party in connection with the transactions contemplated hereby.
8
3.18. Disclosure.
The
Company understands and confirms that the Purchaser will rely on the foregoing
representations in effecting transactions in securities of the Company. No
representation or warranty by the Company contained in this Agreement, and
no
statement contained in the Schedules hereto or any certificate furnished to
the
Purchaser pursuant to the provisions hereof, contains any untrue statement
of a
material fact or omits to state a material fact necessary in order to make
the
statements herein or therein not misleading.
4. Representations
and Warranties of the Purchaser.
The
Purchaser hereby represents and warrants to the Company that:
4.1. Organization;
Good Standing.
The
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to enter into and consummate the transactions contemplated by
this
Agreement and otherwise to carry out its obligations hereunder.
4.2. Corporate
Power and Authorization.
The
Purchaser has all requisite legal and corporate power and authority to enter
into this Agreement and the other Transaction Agreements, and to purchase and
accept the Common Shares issued or issuable to it pursuant to the terms hereof.
The execution and delivery of each of the Transaction Agreements by the
Purchaser and the consummation by it of the transactions contemplated thereby
have been duly authorized by all necessary action on the part of the Purchaser.
Each Transaction Agreement has been duly executed and delivered by the Purchaser
and constitutes the valid and binding obligation of the Purchaser enforceable
against it in accordance with their respective terms except (a) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, or other laws of general application relating to or affecting the
enforcement of creditors’ rights generally and (b) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
4.3. Purchase
Entirely for Own Account.
The
Purchaser hereby confirms that the Common Shares to be acquired by the Purchaser
hereunder will be acquired for investment for the Purchaser’s own account, not
as a nominee or agent, and not with a view to the resale or distribution of
any
part thereof, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same. The Purchaser
has not been formed for the specific purpose of acquiring the Common Shares
hereunder.
4.4. Restricted
Securities.
The
Purchaser understands that the Common Shares have not been, and will not be,
registered under the Securities Act, by reason of a specific exemption from
the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
Purchaser’s representations as expressed herein. The Purchaser understands that
the Common Shares are “restricted securities” under applicable United States
federal and state securities laws and that, pursuant to these laws, the
Purchaser must hold the Shares
indefinitely unless they are registered with the SEC and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available. The Purchaser acknowledges that the Company has
no
obligation to register or qualify the Common Shares for resale except as set
forth in this Agreement. The Purchaser further acknowledges that if an exemption
from registration or qualification is available, it may be conditioned on
various requirements including, but not limited to, the time and manner of
sale,
the holding period for the Common Shares, and on requirements relating to the
Company which are outside of the Purchaser’s control, and which the Company is
under no obligation and
may
not be able to satisfy.
9
4.5. No
Public Market.
The
Purchaser understands that no public market now exists for the Common Shares,
and that the Company has made no assurances that a public market will ever
exist
for the Common Shares.
4.6. Legends.
The
Purchaser understands that the Common Shares and any securities issued in
respect of or in exchange for the Common Shares, may bear one or all of the
following legends:
(a) “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE STATE
SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT
TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND, TO THE EXTENT REQUIRED,
ANY APPLICABLE STATE SECURITIES LAWS OR (B) UPON DELIVERY OF AN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER THAN AN EXEMPTION FROM REGISTRATION
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE.”
(b) Any
legend set forth in, or required by, the other Transaction
Agreements.
(c) Any
legend required by the securities laws of any state to the extent such laws
are
applicable to the Common Shares represented by the certificate so
legended.
4.7. Accredited
Investor.
The
Purchaser is an accredited investor as defined in Rule 501(a) of Regulation
D
promulgated under the Securities Act.
4.8. Access
to Information.
Without
in any way limiting the effect of the representations and warranties of the
Company set forth in Section 3 hereof, as of the date of this Agreement, the
Purchaser has had an opportunity to discuss the Company’s business, management
and financial affairs with the Company’s officers and management employees and
review all documents and records of the Company to the extent that Purchaser
has
requested such discussions, documentation and records.
4.9. No
Broker’s or Finder’s Fee.
No
agent,
broker, investment banker, Person or firm acting on behalf of the Purchaser,
or
under the authority of the Purchaser, is or will be entitled to any broker’s or
finder’s fee or any other commission or similar fee directly or indirectly from
any Party in connection with the transactions contemplated hereby.
10
5. Certain
Covenants and Agreements.
5.1. Continued
Access to Information.
Upon
reasonable prior notice from the Purchaser, the Company will (i) give the
Purchaser, its counsel, financial advisors, auditors and other authorized
representatives full access to the offices, employees, properties, and books
and
records of the Company and provide the Purchaser access to the Company's
employees during normal business hours, (ii) furnish to the Purchaser,
its
counsel, financial advisors, auditors and other authorized representatives
such
financial and operating data and other information relating to the business
of
the Company and each of its Subsidiaries (including, without limitation, all
tax
returns and tax workpapers, audit work papers, and financial and operational
budgets and forecasts) as such Persons may reasonably request, provided
that the
Company’s independent accounting firm shall have no obligation to furnish work
papers or related materials in contravention of such firm’s reasonable internal
policies, and (iii) instruct the employees, counsel and financial advisors
of the Company to cooperate with the Purchaser with respect to the
foregoing.
5.2. Further
Assurances.
Subject
to the terms and conditions of this Agreement and Applicable Law, upon the
reasonable request of the other Party, each Party shall execute and deliver
such
further documents, instruments or conveyances and take, or cause to be taken,
all actions and to do, or cause to be done, all things reasonably necessary
or
advisable to consummate the transactions contemplated by this Agreement, and
to
refrain from taking any action that would prevent or delay the consummation
of
transactions contemplated by this Agreement.
5.3. Use
of
Purchaser Stock.
Any
consideration received by the Company for Common Stock issued to the Purchaser
hereunder shall be used solely to fund its operations.
6. Conditions
Precedent to the Purchaser’s Obligations at Closing.
6.1. First
Closing.
All
obligations of the Purchaser that are to be discharged under this Agreement
at
the First Closing are subject to the fulfillment, on or before the First Closing
Date, of each of the following conditions, unless expressly waived in a writing
signed by the Purchaser:
(a) Representations
and Warranties.
The
representations and warranties of the Company contained in Section 3
shall be
true and correct in all material respects as of the First Closing
Date.
(b) Performance.
The
Company shall have performed and complied with all covenants, agreements,
obligations and conditions contained in this Agreement that are required to
be
performed or complied with by it on or before the First Closing
Date.
(c) Compliance
Certificate.
The
President of the Company shall have delivered to the Purchaser at the First
Closing a certificate certifying that the conditions specified in Section
6.1(a)
and
Section
6.1(b)
have
been fulfilled.
(d) Joint
Development Agreement.
The
Company shall have executed and delivered the Joint Development
Agreement.
(e) Stockholders
Agreement.
The
Company and each of the Founders shall have executed and delivered the
Stockholders Agreement.
(f) Employment
Agreements.
The
Company and each of the Founders shall have executed and delivered the
Employment Agreements.
(g) Third
Party Consents.
The
Company shall have obtained any consents from third parties necessary for the
consummation of the transactions contemplated by this Agreement.
(h) Resignation
or Removal of Certain Directors.
Xxxxx
X. Xxxxx, Xxxxxxx Xxxx, and Xxxxxx Xxxxxxx shall have submitted their respective
resignations as directors of the Company, or such individuals shall have been
duly removed or not re-elected as directors of the Company in accordance with
the Bylaws of the Company and applicable law.
(i) Legal
Opinion.
The
Purchaser shall have received an opinion, dated as of the First Closing Date,
of
Xxxxxx
X'Xxxxxxx, counsel to the Company, in substantially the form attached hereto
as
Exhibit E.
11
6.2. Subsequent
Closings.
All
obligations of the Purchaser that are to be discharged under this Agreement
at
each Subsequent Closing are subject to the fulfillment, on or before each
Subsequent Closing Date, of each of the following conditions, unless expressly
waived in a writing signed by the Purchaser:
(a) Representations
and Warranties.
The
representations and warranties of the Company contained in Section 3,
together with any updates to the Schedules which shall reflect that a Material
Adverse Effect has not occurred since the prior Closing, shall be true and
correct in all material respects as of each Subsequent Closing
Date.
(b) Performance.
The
Company shall have performed and complied with all covenants, agreements,
obligations and conditions contained in this Agreement and the Transaction
Agreements that are required to be performed or complied with by it on or before
each Subsequent Closing Date.
(c) Compliance
Certificate.
The
President of the Company shall have delivered to the Purchaser at each
Subsequent Closing a certificate certifying that the conditions specified in
Section
6.2(a)
and
Section
6.2(b)
have
been fulfilled.
(d) Effectiveness
of Registration Statement.
To the
extent that the Purchaser provides all or any part of an Additional First Year
Financing, or the aggregate Exercise Price upon any exercise of the Purchase
Option, in the form of MCEL Stock, the registration statement filed with the
SEC
covering the sale of such MCEL Stock to the Company (the “Registration
Statement”)
shall
have been declared effective by the SEC and no stop order or other suspension
of
effectiveness of the Registration Statement shall be in effect.
12
7. Conditions
Precedent to the Company’s Obligations at Closing.
7.1. First
Closing.
All
obligations of the Company that are to be discharged under this Agreement at
the
First Closing are subject to the fulfillment, on or before the First Closing
Date, of each of the following conditions, unless expressly waived in a writing
signed by the Company:
(a) Representations
and Warranties
The
representations and warranties of the Purchaser contained in Section 4
shall be
true and correct in all material respects as of the First Closing
Date.
(b) Performance.
The
Purchaser shall have performed and complied with all covenants, agreements,
obligations and conditions contained in this Agreement that are required to
be
performed or complied with by it on or before the First Closing
Date.
(c) Compliance
Certificate.
The
Purchaser shall have delivered to the Company at the First Closing a certificate
certifying that the conditions specified in Section 7.1(a) and Section
7.1(b) have been fulfilled.
(d) Joint
Development Agreement.
The
Purchaser shall have executed and delivered the Joint Development
Agreement.
(e) Stockholders
Agreement.
The
Purchaser shall have executed and delivered the Stockholders
Agreement.
(f) Third
Party Consents.
The
Purchaser shall have obtained any consents from third parties necessary for
the
consummation of the transactions contemplated by this Agreement.
(g) Consulting
Amendments.
The
Purchaser and each of the Founders shall have executed and delivered the
Consulting Amendments.
7.2. Subsequent
Closings.
All
obligations of the Company that are to be discharged under this Agreement at
each Subsequent Closing are subject to the fulfillment, on or before each
Subsequent Closing Date, of each of the following conditions, unless expressly
waived in a writing signed by the Company:
(a) Representations
and Warranties
The
representations and warranties of the Purchaser contained in Section 4
shall be
true and correct in all material respects as of each Subsequent Closing
Date.
(b) Performance.
The
Purchaser shall have performed and complied with all covenants, agreements,
obligations and conditions contained in this Agreement and the Transaction
Agreements that are required to be performed or complied with by it on or before
each Subsequent Closing Date.
(c) Compliance
Certificate. The Purchaser shall have delivered to the Company at the First
Closing a certificate certifying that the conditions specified in
Section 7.2(a) and Section 7.2(b) have been fulfilled.
(d) Effectiveness
of Registration Statement.
To the
extent that the Purchaser provides all or any part of an Additional First Year
Financing, or the aggregate Exercise Price upon any exercise of the Purchase
Option, in the form of MCEL Stock, the Registration Statement shall have been
declared effective by the SEC and no stop order or other suspension of
effectiveness of the Registration Statement shall be in effect.
14
8. Term
and Termination.
8.1. Term.
The
term
of this Agreement shall run concurrently with the Exercise Period (as defined
in
the Joint Development Agreement).
8.2. Termination.
This
Agreement shall terminate as follows:
(a) the
Company and the Purchaser may terminate this Agreement by mutual written consent
at any time;
(b) by
either
Party if there shall be any Applicable Law or regulation that makes consummation
of the transactions contemplated by the Transaction Agreements illegal or
otherwise prohibited or if consummation of such transactions would violate
any
nonappealable final order, decree or judgment of any Governmental Authority
having competent jurisdiction;
(c) the
Purchaser may terminate this Agreement by giving written notice to the Company
in the event the Company has materially breached any representation, warranty
or
covenant contained in this Agreement and the breach has continued without cure
for a period of thirty (30) days after written notice of such breach;
and
(d) the
Company may terminate this Agreement by giving written notice to the Purchaser
in the event the Purchaser has materially breached any representation, warranty
or covenant contained in this Agreement and the breach has continued without
cure for a period of thirty (30) days after written notice of such
breach.
Any
Party
desiring to terminate this Agreement pursuant to this Section
8.2
shall
give written notice of such termination (including the basis thereof) to the
other Party.
8.3. Effect
of Termination.
Upon
termination of this Agreement under Section 8.2,
but
subject to this Section
8.3,
the
Purchaser shall retain all of the Common Shares acquired by the Purchaser as
of
such termination date and all rights and obligations of the Parties hereunder
shall terminate without any liability of either Party (except for any liability
of any Party then in breach), except the provisions of this Section
8.3
and
Section
9
hereof
shall survive such termination.
9. Indemnification.
9.1. Indemnification
of the Purchaser.
The
Company hereby indemnifies the Purchaser and its Affiliates, directors,
officers, employees and agents against, and agrees to hold each of them harmless
from, any and all claims, demands, costs, expenses, obligations, liabilities,
damages, recoveries and deficiencies, including, without limitation, interest,
penalties, court costs, costs and expenses (including reasonable fees and
expenses of external counsel) (the “Damages”)
incurred or suffered by any of them arising out of or based upon (i) any breach
of any representation or warranty made by the Company in this Agreement, (ii)
any breach of any covenant or agreement to be performed by the Company pursuant
to this Agreement, and (iii) violations by the Company of Applicable Law with
respect to the Common Shares.
9.2. Indemnification
of the Company.
The
Purchaser hereby indemnifies the Company and its Affiliates, directors,
officers, employees and agents against, and agrees to hold each of them harmless
from, any and all Damages incurred or suffered by any of them arising out of
or
based upon any breach of any representation, warranty or covenant made or to
be
performed by the Purchaser pursuant to this Agreement.
9.3. Procedures.
(a) If
the
Purchaser or any of its Affiliates or any of their respective directors,
officers, employees and agents, seek indemnification pursuant to Section
9.1,
or the
Company or any of their Affiliates or any of their directors, officers,
employees and agents, seek indemnification pursuant to Section
9.2,
the
Person seeking indemnification (the “Indemnified
Party”)
shall
give written notice to the Party from whom such indemnification is sought (the
“Indemnifying
Party”)
promptly (and in any event within 30 days) after the Indemnified Party becomes
aware of the facts giving rise to such claim for indemnification (an
“Indemnified
Claim”)
specifying in reasonable detail the factual basis of the Indemnified Claim,
stating the amount of the Damages, if known, the method of computation thereof,
containing a reference to the provision of this Agreement in respect of which
such Indemnified Claim arises and demanding indemnification therefor. The
failure of an Indemnified Party to provide notice in accordance with this
Section
9.3
shall
not constitute a waiver of that party’s claims to indemnification pursuant to
Section
9.1
or
Section
9.2,
as
applicable, except to the extent that any such failure or delay in giving notice
causes the amounts paid by the Indemnifying Party to be greater than they
otherwise would have been or otherwise results in prejudice to the Indemnifying
Party. If the Indemnified Claim arises from the assertion of any claim, or
the
commencement of any suit, action or proceeding brought by a Person that is
not a
party hereto (a “Third
Party Claim”),
any
such notice to the Indemnifying Party shall be accompanied by a copy of any
papers theretofore served on or delivered to the Indemnified Party in connection
with such Third Party Claim.
(b) Upon
receipt of notice of a Third Party Claim from an Indemnified Party pursuant
to
Section
9.3(a),
the
Indemnifying Party will be entitled to assume the defense and control of such
Third Party Claim subject to the provisions of this Section
9.3.
After
written notice by the Indemnifying Party to the Indemnified Party of its
election to assume the defense and control of a Third Party Claim, the
Indemnifying Party shall not be liable to such Indemnified Party for any legal
fees or expenses subsequently incurred by such Indemnified Party in connection
therewith. Notwithstanding anything in this Section
9.3
to the
contrary, if the Indemnifying Party does not assume defense and control of
a
Third Party Claim as provided in this Section
9.3,
the
Indemnified Party shall have the right to defend such Third Party Claim, subject
to the limitations set forth in this Section
9.3,
in such
manner as it may deem appropriate. Whether the Indemnifying Party or the
Indemnified Party is defending and controlling any such Third Party Claim,
they
shall select counsel, contractors, experts and consultants of recognized
standing and competence, shall take all steps necessary in the investigation,
defense or settlement thereof, and shall at all times diligently and promptly
pursue the resolution thereof. The Party conducting the defense thereof shall
at
all times act as if all Damages relating to the Third Party Claim were for
its
own account and shall act in good faith and with reasonable prudence to minimize
Damages therefrom. The Indemnified Party shall, and shall cause each of its
Affiliates, directors, officers, employees, and agents to, cooperate fully
with
the Indemnifying Party in connection with any Third Party Claim.
(c) The
Indemnifying Party shall be authorized to consent to a settlement of, or the
entry of any judgment arising from, any Third Party Claims, and the Indemnified
Party shall consent to a settlement of, or the entry of any judgment arising
from, such Third Party Claims; provided, that the Indemnifying Party shall
(1)
pay or cause to be paid all amounts arising out of such settlement or judgment
concurrently with the effectiveness thereof; (2) shall not encumber any of
the
assets of any Indemnified Party or agree to any restriction or condition that
would apply to such Indemnified Party or to the conduct of that party’s
business; and (3) shall obtain, as a condition of any settlement or other
resolution, a complete and irrevocable release of each Indemnified Party and
such settlement or judgment (x) shall not require any admission of
liability, fault or wrongdoing by any Indemnified Party or impose any
non-monetary obligation on an Indemnified Party (such as, by way of example,
and
not in limitation, injunctive relief) and (y) shall not require any admission
or
statement that could reasonably be expected to materially impair, disparage
or
otherwise adversely affect, the business reputation of the Indemnified Party.
Except to the extent of the foregoing, no settlement or entry of judgment in
respect of any Third Party Claim shall be consented to by any Indemnifying
Party
or Indemnified Party without the express written consent of the other
Party.
(d) If
an
Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying
Party shall be subrogated, to the extent of such payment, to all rights and
remedies of the Indemnified Party to any insurance benefits or other claims
or
benefits of the Indemnified Party with respect to such claim.
15
10. Miscellaneous.
10.1. Survival.
The
representations and warranties of the Company and the Purchaser contained in
or
made pursuant to this Agreement shall survive the execution and delivery of
this
Agreement and shall continue in full force and effect until the first
anniversary of the termination of this Agreement, except that:
(a) the
representations and warranties in Sections
3.1,
3.2,
3.3,
3.4,
3.5,
4.1
and
4.2
shall
survive indefinitely; and
(b) those
covenants and agreements set forth in this Agreement that, by their terms,
are
to have effect after the Closings shall survive for the period contemplated
by
such covenants and agreements, or, if no period is expressly set forth, until
the expiration of the statute of limitations applicable to any claim relating
thereto.
16
10.2. Transfer;
Successors and Assigns.
No
Party
shall assign any rights or obligations under this Agreement without the prior
written consent of the other Party, except to the extent that either Party
may
assign any rights or obligations under the Joint Development Agreement. The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the Parties. Nothing
in
this Agreement, express or implied, is intended to confer upon any party other
than the Parties or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
10.3. Governing
Law; Submission to Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without regard to its principles of conflicts of laws. Any
legal action or proceeding with respect to this Agreement may be brought in
the
courts of the State of New York and the United States of America for the
Southern District of New York and, by execution and delivery of this Agreement,
the Parties accept, for themselves and in respect of their property, generally
and unconditionally, the jurisdiction of aforesaid courts. Each Party hereto
irrevocably waives any objection to venue laid therein. Each Party hereto
irrevocably consents to the service of process of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to it at its address as set
forth
herein.
10.4. Counterparts.
This
Agreement may be executed in two (2) or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument. This Agreement may also be executed and delivered by facsimile
signature and in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
10.5. Construction
of Certain Terms.
The
titles of the articles, sections, and subsections of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement. Wherever the words “including,”“include” or “includes” are used in
this Agreement, they shall be deemed followed by the words “without limitation.”
References to any gender shall be deemed to mean any gender. The Parties hereto
have participated jointly in the negotiation and drafting of this Agreement.
In
the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties, and no
presumption or burden of proof shall arise favoring or disfavoring any Party
by
virtue of the authorship of any provisions of this Agreement.
10.6. Notices.
All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given: (a) upon personal delivery
to the Party to be notified, (b) when sent by confirmed electronic mail or
facsimile if sent during normal business hours of the recipient, and if not
so
confirmed, then on the next Business Day, (c) five (5) days after having been
sent by certified mail, return receipt requested, postage prepaid, or (d) one
(1) day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All communications
shall be sent to the address or facsimile number set forth below or to such
other address or facsimile number as delivered by notice to the other in
accordance with this Section 10.6:
If
to the
Purchaser:
Xxx
Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxx, President
Facsimile:
(000) 000-0000
With
a
copy to:
Dickstein,
Shapiro, Xxxxx & Xxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx Xxxx
Facsimile:
(000) 000-0000
If
to the
Company:
Gecko
Energy Technologies, Inc.
Xxx
Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxx and/or Xxxxxx X. Xxxxx
Facsimile:
(000) 000-0000
With
a
copy to:
Xxxxxx
X'Xxxxxxx
000
Xxxxx
Xxxxxx
Xxxxxxxxx,
XX 00000-0000
Attention:
Xxxxxxx
X. Xxxxxxxxx
Facsimile:
(000)
000-0000
17
10.7. Fees
and Expenses.
The
Company and the Purchaser shall each pay their own costs and expenses in
connection with the negotiation and documentation of this Agreement and the
other Transaction Agreements.
10.8. Amendments
and Waivers.
Neither
this Agreement nor any term of this Agreement may be amended, terminated or
waived without the prior written consent of the Company and the Purchaser.
Any
amendment or waiver effected in accordance with this Section 10.8
shall be
binding upon the Purchaser and each transferee of the Common Shares issued
hereunder, each future holder of all such securities, and the
Company.
18
10.9. Severability.
The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision.
10.10. Delays
or Omissions.
No
delay
or omission to exercise any right, power or remedy accruing to any Party under
this Agreement, upon any breach or default of any other Party under this
Agreement, shall impair any such right, power or remedy of such non-breaching
or
non-defaulting Party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any Party of any breach or default under this
Agreement, or any waiver on the part of any Party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only
to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any Party, shall be cumulative
and not alternative.
10.11. Entire
Agreement.
This
Agreement (including the Attachments and Exhibits hereto) and the other
Transaction Agreements constitute the full and entire understanding and
agreement between the Parties with respect to the subject matter hereof, and
any
other written or oral agreement relating to the subject matter hereof existing
between the Parties are expressly canceled.
[Remainder
of Page Intentionally Left Blank]
19
IN
WITNESS WHEREOF, the Company and the Purchaser have executed this Stock Purchase
Agreement as of the date first written above.
By:
/s/Xxxx Xxxxxx
Name: Xxxx
Xxxxxx
Title: President
GECKO
ENERGY TECHNOLOGIES, INC.:
By:
/s/Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
President
