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EXHIBIT 10.32
STOCK PURCHASE AGREEMENT
AGREEMENT made as of October 23, 1996 by and between Lithium
Technology Corporation, a Delaware corporation (the "Company"), and the
Placement Agent ("Agent").
WITNESSETH:
WHEREAS, the Agent has rendered certain services to the Company in
connection with capital formation and certain transactions of even date
herewith, and in consider therefor the Company desires to issue to the Agent
66,794 shares of (the "Agent Shares") of the Company's common stock (the
"Common Stock") and also desires to issue a warrant to the Agent (the "Agent
Warrant") (whose 87,500 underlying shares of Common Stock are referred to
herein as the "Warrant Shares"), all upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants made herein, and for other good and valuable consideration, receipt
and sufficiency of which are hereby acknowledged, the Company and the Agent
hereby agree as follows.
1. Agent Shares. The Company shall issue to the Agent on the
date hereof (the "Closing Date") (i) the Agent Warrant and (ii) the Agent
Shares, which shall be equal to the number of shares of Common Stock equal to
$87,500 divided by 80% of the Current Market Value of the Common Stock. For
purposes of this Agreement, the term "Current Market Value" shall mean the
average of the daily
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averages of the closing bid and closing asked prices of the Common Stock for
the five (5) trading days immediately preceding the Closing Date.
2. The Company's Representations and Warranties. The Company
hereby represents and warrants to, and agrees with, the Agent that:
(a) The Disclosure Documents (as defined below) do not
contain any untrue statement of a material fact or omit to state any material
fact as of their respective dates of filing with the SEC and/or issuance to the
media (as applicable) necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. There
has been no material adverse change in the Company's business or financial
condition since October 12, 1996. For purposes of this Agreement the term
"Disclosure Documents" shall mean the Company's Report on Form 10-KSB for the
year ended December 31, 1995, Reports on Form 10-QSB for the quarters ended
March 31, 1996 and June 30, 1996, all of the Company's reports on Form 8-K
filed with the United States Securities and Exchange Commission ("SEC") during
1996, the Company's Registration Statement on Form SB-2 as filed with the SEC
on September 3, 1996, the Company's Registration Statement on Form S-8 as filed
with the SEC on October 9, 1996, and all of the Company's press releases issued
during 1996.
(b) The Company has been duly incorporated, is validly
existing, and is in good standing under the laws of the State of Delaware with
corporate power and authority to own its property and
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to conduct its business as described in the Disclosure Documents and to enter
into and perform its obligations under this Agreement.
(c) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and will not subject the holders thereof to personal liability
by reason of being such holders. There are no preemptive rights of any
shareholder of the Company with respect to any securities of the Company. The
shares of Common Stock issuable pursuant to this Agreement and the Agent
Warrant have been duly and validly authorized and reserved for issuance and,
when issued and delivered in accordance with the terms of this Agreement and
the Agent Warrant, will be duly and validly issued, fully paid and
non-assessable. The Company is a "Domestic Issuer" and a "Reporting Issuer,"
as such terms are as defined by Rule 902 of Regulation S. The Company has
registered its common stock pursuant to Section 12(b) or (g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), is in full compliance
with all reporting requirements of either Section 13(a) or 15(d) of the
Exchange Act, and the Company's common stock trades on the Electronic Bulletin
Board. The Company has not offered the Agent Shares, the Agent Warrant, and
(upon the exercise of the Agent Warrant, if any) the Warrant Shares
(collectively, the "Securities") to any person in the United States, any
identifiable group of U.S. citizens abroad, or to any U.S. Person (as defined
by Regulation S). At the time the buy order (if any) was originated, the
Company and/or its agents reasonably believed the Agent was outside the United
States
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and was not a U.S. Person based on the Agent's representations set forth
herein. The Company and/or its agents reasonably believe that the sale of the
Securities has not been prearranged with a buyer in the United States. The
execution and delivery of this Agreement and the consummation of the issuance
of the Securities and the transactions contemplated by this Agreement do not
and will not (1) require the consent, authorization, or approval of any third
party or any government body, or (2) conflict with or result in a material
breach by the Company of any of the terms or provisions of, or constitute a
material default under, the articles of incorporation or bylaws of the Company,
or any indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company is a party or by which it or any of its
properties or assets are bound, or any existing applicable decree judgment or
order of any court, Federal or State regulatory body, administrative agency or
other governmental body having jurisdiction over the Company or any of its
properties or assets. The Company will instruct its transfer agent to issue
one or more share certificates representing the Agent Shares and Warrant Shares
with the following restrictive legend set forth below in the name of the Agent
and in such denominations to be specified by the Agent prior to closing:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ISSUED PURSUANT TO REGULATION S UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
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TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF TO ANY U.S. PERSON
(AS SUCH TERM IS DEFINED UNDER REGULATION S) UNTIL THE 41st DAY
FOLLOWING THE DATE OF THEIR PURCHASE BY THE REGISTERED HOLDER. AS
SUCH, THIS LEGEND, AND ANY EXISTING STOP TRANSFER INSTRUCTIONS TO THE
TRANSFER AGENT SHALL EXPIRE ON _______, 1996.
The Company further warrants that no instructions other than these
instructions, and instructions for a "stop transfer" until the end of the
Restricted Period (as defined by Regulation S), have been given to the transfer
agent and also warrants that the Securities shall otherwise be freely
transferable on the books and records of the Company after the end of the
Restricted Period in compliance with Regulation S. The Company will notify the
transfer agent of the date of completion of the offering and of the date of
expiration of the Restricted Period. The Company has taken and will take no
action that will affect in any way the running of the Restricted Period or the
ability of the Agent to resell the Securities in accordance with applicable
securities laws and this Agreement; and the Company will comply with all
applicable securities laws and regulations with respect to the sale of the
Securities, including but not limited to the filing of all reports required to
be filed in connection therewith with the Securities and Exchange Commission or
any stock exchange or NASDAQ or any other regulatory authority.
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(d) This Agreement and the Agent Warrant have been duly
authorized, executed and delivered by the Company and constitute the valid and
legally binding obligation of the Company, enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles, and subject to the Exon-Xxxxxx provision of the
Omnibus Trade and Competitiveness Act of 1988 ("Exon-Xxxxxx").
3. The Agent's Representations and Warranties. The Agent hereby
represents and warrants to, and agrees with, the Company that:
(a) The Agent has been duly organized, is validly
existing, and is in good standing under the laws of the jurisdiction of its
formation with corporate or other power and authority to own its property and
to conduct its business and to enter into and perform its obligations under
this Agreement.
(b) The execution, delivery and performance of this
Agreement by the Agent has been duly authorized by all necessary action of the
Agent.
(c) This Agreement constitutes the legal, valid and
binding obligation of the Agent enforceable in accordance with its terms,
except as the same may be modified by bankruptcy, insolvency, moratorium and
other similar laws affecting creditors' rights generally and by general
principles of equity.
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(d) The Agent has received and reviewed the Company's
Disclosure Documents and the Agent or the Agent's designated representative has
concluded a satisfactory due diligence investigation of the Company and has had
an opportunity to have all its questions regarding the Company satisfactorily
answered.
(e) The Agent is acquiring the Securities (as defined
above) for investment purposes only without intent to distribute the same, and
acknowledges that (A) such Securities have not been registered under the
Securities Act of 1933, as amended (the "Securities Act") and applicable state
securities laws, and accordingly, constitute "restricted securities" for
purposes of the Securities Act and such state securities laws, (B) the Agent
will not be able to transfer such Securities except upon compliance with the
registration requirements of the Securities Act and applicable state securities
laws or exemptions therefrom including without limitation Regulation S, (C) the
certificates evidencing such Securities may contain a legend to the foregoing
effect, (D) such Securities are speculative and involve a high degree of risk
and the Agent is able to sustain the loss of the entire amount of its
investment, and (E) the Agent has previously invested in unregistered
securities and has sufficient financial and investing expertise to evaluate and
understand the risks of such Securities.
(f) The Agent is not a United States person, United
States citizen or resident nor an entity organized under the laws of the United
States or any of the States, nor located in the United States, nor purchasing
the Securities directly or indirectly
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for the account or benefit of or on behalf of a United States citizen or
resident or such entity. The Agent is familiar with and understands the
provisions of Regulation S promulgated under the Securities Act.
4. The Company's Covenants. In further consideration of the
Agent's agreements herein contained, the Company covenants and agrees with the
Agent as follows:
(a) The Company agrees to reserve and keep available at
all times, free of pre-emptive rights, shares of Common Stock for the purpose
of enabling the Company to satisfy any obligations to issue shares of its
Common Stock upon the terms of this Agreement and/or the Agent Warrant.
5. Offering of Securities; Restrictions on Transfer.
(a) The Agent acknowledges and agrees that the Securities
have not been and will not be registered under the Securities Act and have not
been and may not be offered or sold within the United States or to, or for the
account or benefit of, United States persons except in accordance with
Regulation S or pursuant to an exemption from the registration requirements of
the Securities Act. The Agent represents and agrees that it will offer and
sell the Securities only in accordance with (i) Regulation S, (ii) an exemption
from registration under the Securities Act, or (iii) an effective registration
statement under the Securities Act. Without limiting the generality of the
foregoing, the Agent agrees that it will not transfer the Securities prior to
forty (40) days after the Closing Date.
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(b) The Agent further acknowledges and agrees that
neither it nor its affiliates, nor any persons acting on its behalf, has
engaged or will engage in any directed selling efforts (as defined in
Regulation S) with respect to the Securities, and the Agent, its affiliates and
all persons acting on the Agent's behalf have complied and will comply with the
offering restrictions requirement of Regulation S. The Agent agrees that, at
or prior to confirmation of any sale of Securities the Agent will have sent to
each distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases such Securities from the Agent during the
restricted period a confirmation or notice to substantially the following
effect:
"The securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of the
distribution thereof at any time or (ii) otherwise until 40
days after the later of the date of the commencement of the
offering and the closing date, except in either case in
accordance with Regulation S under the Securities Act. Terms
used above have the meanings given to them by Regulation S."
(c) The Agent is not a "distributor" as that term is used
in Regulation S.
(d) The Agent agrees that it will not offer or sell the
Securities purchased from the Company hereunder or pursuant to the Agent
Warrant by means of any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act).
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(e) The Agent represents, warrants and agrees that it
will not offer or sell any Securities in any jurisdiction except under
circumstances that will result in compliance with the applicable laws thereof,
and that the Agent will take at its own expense whatever action is required to
permit offers, sales or the purchase and resale by them of the Securities. The
Agent understands that no action has been taken by the Company to permit a
public or private offering in any jurisdiction outside the United States where
action would be required for such purpose.
(f) The Agent represents and agrees that any activities
with respect to the Securities or the Common Stock in connection with the
distribution of the Securities will be conducted in compliance with the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act") including without limitation Rule 10b-7 under the Exchange Act
to the extent such Rule is applicable thereto.
(g) (1) The Agent agrees that any distributor shall
agree in writing that all offers and sales of the Securities prior to the
expiration of the restricted period specified in Rule 903(c)(2) or (3), as
applicable, shall be made only: in accordance with the provisions of Rule 903
or 904; pursuant to registration of the Securities under the Securities Act; or
pursuant to an available exemption from the registration requirements of the
Securities Act; and
(2) All offering materials and documents (other
than press releases) used in connection with offers and sales of
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the Securities prior to the expiration of the restricted period specified in
Rule 903(c)(2) or (3), as applicable, shall include statements to the effect
that the Securities have not been registered under the Securities Act and may
not be offered or sold in the United States or to U.S. persons (other than
distributors) unless the Securities are registered under the Securities Act, or
an exemption from the registration requirements of the Securities Act is
available. Such statements shall appear:
(i) on the cover or inside cover page of
any prospectus or offering circular used in connection with the offer or sale
of the Securities;
(ii) in the underwriting section of any
prospectus or offering circular used in connection with the offer or sale of
the Securities;
(iii) in any advertisement made or issued by
the issuer, any distributor, any of their respective affiliates, or any person
acting on behalf of any of the foregoing. Such statements may appear in
summary form on prospectus cover pages and in advertisements.
(3) The Agent acknowledges and agrees that any
offer or sale of the Securities, if made prior to the expiration of a 40-day
restricted period, shall not be made to a U.S. person or for the account or
benefit of a U.S. person (other than a distributor).
(4) The Agent acknowledges and agrees that
any distributor selling Securities to a distributor, a dealer, as
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defined in Section 2(12) of the Securities Act, or a person receiving a selling
concession, fee or other remuneration in respect of the securities sold, prior
to the expiration of a 40-day restricted period, shall agree to send a
confirmation or other notice to the Agent stating that the Agent is subject to
the same restrictions on offers and sales that apply to a distributor.
(h) The Agent agrees that in the case of an offer or sale
of Shares prior to the expiration of the restricted period specified in Rule
903(c)(2) or (3), a applicable, by a dealer, as defined in Section 2(12) of the
Securities Act, or a person receiving a selling concession, fee or other
remuneration in respect of the securities offered or sold:
(i) neither the seller nor any person acting on
his behalf knows that the offeree or buyer of the securities is a U.S. person;
and
(ii) if the seller or any person acting on the
seller's behalf knows that the Agent is a dealer, as defined in Section 2(12)
of the Securities Act, or is a person receiving a selling concession, fee or
other remuneration in respect of the Securities sold, the seller or a person
acting on the seller's behalf sends to the Agent a confirmation or other notice
stating that the Securities may be offered and sold during the restricted
period only: in accordance with the provisions of Regulation S; pursuant to
registration of the securities under the Securities Act; or pursuant to an
available exemption from the registration requirements of the Securities Act.
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Terms used in this Section 8 and Section 5 have the meanings
given to them by Regulation S, unless otherwise indicated. The Agent agrees to
indemnify and hold the Company, its officers, directors, attorneys,
representatives, and shareholders, or any person who may be deemed to control
the Company, harmless from any loss, liability, claim, damage or expense,
arising out of the inaccuracy of any of the Agent's representations, warranties
or statements or the breach of any of the agreements contained herein to the
extent, but only to the extent, that such loss, liability, claim, damage or
expense results primarily from the Agent's gross negligence, recklessness or
bad faith with respect to such representation, warranty, statement or
agreement.
6. Miscellaneous.
(a) Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers shall remain operative and
in full force and effect, regardless of any termination of this Agreement, or
any investigation, or any statement as to the results thereof.
(b) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Agent shall be directed to the Agent at the address set forth on the
signature page hereof; and notices to the Company shall be directed to it at
5115 Campus
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Drive, Plymouth Meeting, PA 19462-1129, Attn: Xxxxxx X. Xxxxxxx, Chairman and
Chief Executive Officer.
(c) Parties. This Agreement shall inure to the benefit
of and be binding upon the Company and the Agent and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained.
(d) Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
(e) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New Jersey.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first above written.
LITHIUM TECHNOLOGY CORPORATION
By:__________________________________________
Xxxxxx X. Xxxxxxx, Chairman
and Chief Executive Officer
Agent
By:__________________________________________
Name:_____________________________________
Title:____________________________________
Address:__________________________________
Phone Number:_____________________________
Fax Number:_______________________________
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