STOCK PURCHASE, LOAN AND SECURITY AGREEMENT BY AND BETWEEN WATER CHEF, INC. AND LESLIE J. KESSLER Dated as of April 16, 2008
Exhibit 99.3
BY
AND BETWEEN
WATER
CHEF, INC.
AND
XXXXXX
X. XXXXXXX
Dated
as of April 16, 2008
This
STOCK PURCHASE, LOAN AND SECURITY AGREEMENT (this “Agreement”), made as of April
16, 2008, by and between WATER CHEF, INC., a Delaware corporation (the “Company”), and XXXXXX X.
XXXXXXX (“Executive”).
WHEREAS, Executive wishes to
purchase from the Company, and the Company wishes to sell to Executive, Six
Million Five Hundred Thousand (6,500,000) shares (the “Purchased Shares”) of common
stock of the Company (“Common
Stock”) for an aggregate purchase price of $547,950 (the “Purchase Price”), based on a
price per share of $0.0843, which represents the average closing price of the
Common Stock during the 30 trading days immediately preceding the date of this
Agreement, and Executive wishes to borrow from the Company, and the Company
wishes to loan to Executive, an amount equal to the Purchase Price, such loan to
be on a non-recourse basis and secured by a pledge of the Purchased Shares, all
on the terms set forth herein,
NOW, THEREFORE, in
consideration of the mutual promises and covenants set forth herein and other
good and valuable consideration, the parties hereto agree as
follows:
(a) the
failure of Executive to pay when due any principal or interest or other amount
due hereunder or under the Note; or
(b) any
warranty or representation made by Executive in this Agreement shall prove to
have been false or incorrect on the date as of which made; or
(c) either
Executive or the Company shall give notice to the other of termination of
Executive’s employment with the Company for any reason or no reason;
or
(d) Executive
shall cease to be an employee of the Company or any affiliate thereof for any
reason or no reason; or
(e) the
occurrence of any of the following with respect to Executive:
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(i)
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he
shall apply for or consent to the appointment of a receiver, custodian,
trustee or liquidator of all or a substantial part of her
property;
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(ii)
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he
shall make a general assignment for the benefit of her
creditors;
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(iii)
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he
shall commence a voluntary case under the Federal Bankruptcy Code;
or
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(iv)
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he
shall file a petition to take advantage of any other law providing for the
relief of debtors.
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(a) the
Purchased Shares and the certificates or instruments representing such stock and
all dividends, interest, cash, instruments, and other property from time to time
received, receivable, or otherwise distributed or distributable in respect of or
in exchange for any or all of such stock; and
(b) all
proceeds of the foregoing.
(a) Executive
shall be entitled to exercise any and all of Executive’s voting and other
consensual rights pertaining to the Pledged Collateral or any part thereof for
any purpose not inconsistent with the terms of this Agreement and,
notwithstanding Section 3.1 but subject to Section 3.3(c), shall be
entitled to receive and retain, free and clear of the security interest of the
Company hereunder, any and all of such dividends, interest and other
distributions permitted to all other holders of the Company’s Common
Stock.
(b) The
Company shall execute and deliver (or cause to be executed and delivered) to
Executive all such proxies and other instruments as Executive may reasonably
request for the purpose of enabling Executive to exercise the voting and other
rights that she is entitled to exercise pursuant to paragraph (a) above and
to receive the dividends, interest and other distributions that she is
authorized to receive and retain pursuant to paragraph (a)
above.
(c) Upon
the occurrence and during the continuance of an Event of Default (i) all
rights of Executive to exercise the voting and other consensual rights that she
would otherwise be entitled to exercise pursuant to Section 3.3(a) hereof
and to receive the dividends, interest and other distributions that she would
otherwise be authorized to receive and retain pursuant to Section 3.3(a)
hereof shall cease, and all such rights shall thereupon become vested in the
Company, which shall thereupon have the sole right to exercise such
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voting
and other consensual rights and to receive such dividends, interest, and other
distributions; and all dividends, interest and other distributions that are
received by Executive contrary to the provisions of this paragraph shall be
received in trust for the benefit of the Company, shall be segregated from other
funds of Executive, and shall be forthwith paid over to the Company in the same
form as so received (with any necessary endorsement).
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“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAW. THESE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM AND, IF REQUESTED BY THE COMPANY, DELIVERY TO THE COMPANY OF AN
OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY
TO THE COMPANY, STATING THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE.
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7.4. Governing Law, Consent to
Jurisdiction, Etc. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and wholly performed within New York. Executive
consents to the jurisdiction of the courts of the State of New York and of the
United States sitting in New York County, New York in any litigation concerning
this Agreement, and Executive waives any objection based on venue or
inconvenient forum. Unless otherwise defined herein, terms defined in
the Uniform Commercial Code as in effect in the State of New York on the date
hereof are used herein as therein defined as of such date.
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[Signatures
appear on the following page.]
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WATER
CHEF, INC.
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By:
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/s/ Xxxxx X. Xxxxx | |
Name:
Xxxxx X. Xxxxx
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Title: Chief
Financial Officer
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Address
for Notices:
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Water
Chef, Inc.
00
Xxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attn: Chief
Financial Officer
Facsimile
No: 000-000-0000
Email
address: xxxxxx@xxxxxxx.xxx
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/s/ Xxxxxx X. Xxxxxxx | |
Xxxxxx
X. Xxxxxxx
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Address
for Notices:
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00
Xxxxxxxx Xxxx
Xxxxxxx,
XX 00000
Facsimile
No: 000-000-0000
Email
address: xxxxxxx0@xxxxx.xxx
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9
Exhibit
A
NON-RECOURSE
PROMISSORY NOTE
$547,950
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April
16, 2008
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The
Undersigned, for value received and intending to be legally bound, promises to
pay to the order of WATER CHEF, INC. (“Lender”), as and when due as
set forth in the Stock Purchase, Loan and Security Agreement dated the date
hereof between the Undersigned and Lender (as such agreement may be amended,
restated, modified or supplemented from time to time, the “Loan Agreement”), the
principal sum of Five Hundred Forty Seven Thousand Nine Hundred Fifty Dollars
($547,950). Capitalized terms used herein and not otherwise defined
shall have the meanings given such terms in the Loan Agreement.
The
undersigned further promises to pay to the order of Lender interest on the
unpaid principal amount of the Loan, from the date hereof until the principal
amount has been repaid in full, at the rate of Six Percent (6.00%) per
annum. Interest shall be due and payable on the Maturity Date or the
date of earlier payment of the principal amount.
This is
the Note mentioned in, and is entitled to the benefits of, the Loan
Agreement.
This Note
may be prepaid at any time, in whole or in part, without premium or
penalty. All payments in respect of this Note shall be applied first
to accrued interest and then to principal outstanding hereunder.
Lender
shall look solely to the Pledged Collateral and no other property of the
undersigned shall be subject to levy, or execution for payment of this
Note.
Upon the
occurrence and during the continuance of an Event of Default, the principal
amount of the Loan, together with accrued interest thereon, shall, at the option
of the Company, become immediately due and payable and the Company may proceed
against the Pledged Collateral as provided in the Loan Agreement.
This Note
shall be deemed to be a contract made under the laws of the State of New York
and shall be construed in accordance with the laws of said state without giving
effect to principles of conflicts of law.
This Note
shall be binding upon the undersigned and her heirs, executors, administrators,
transferees and assigns and the terms hereof shall inure to the benefit of
Lender and its successors and assigns, including subsequent holders
hereof.
The
undersigned hereby waives presentment, demand for payment, notice of dishonor or
acceleration, protest and notice of protest, and any and all other notices or
demands in connection with the delivery, acceptance, performance, default or
enforcement of this Note except any notice expressly required in the Loan
Agreement.
IN WITNESS WHEREOF, the
undersigned executes this Note as of the day and year first above
written.
/s/ Xxxxxx X. Xxxxxxx | |
Xxxxxx
X. Xxxxxxx
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