Exhibit 10.1
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Xxxxx 00, 0000
Xxxxxx International Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxxx 00000
Re: Altair International Inc. (the "Company")
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Gentlemen:
Reference is made to the Common Stock Purchase Agreement (the "Purchase
Agreement"), of even date hereof, between the Company and the undersigned (the
"Purchasers"). Capitalized terms used without definition in this letter shall
have their respective meanings set forth in the Purchase Agreement.
During the eighteen (18) month period following the Effective Date, the
Purchasers additionally commit, subject to and upon the terms and conditions
hereof, to purchase from the Company, and the Company shall sell to the
Purchasers shares of Common Stock (the "Additional Shares") for an aggregate
purchase price of up to $10,000,000 at a price equal to 85% of the five (5)
lowest closing bid prices of the Common Stock (not necessarily consecutive) for
the ten (10) trading days following each Additional Financing Notice.
The commitment of the Purchasers set forth in this letter is subject to
the terms, conditions and qualifications set forth below:
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1. Additional Documentation. In order to effectuate a purchase and sale
of the Additional Shares, prior to their issuance, the Company and the
Purchasers shall enter into the following agreements: (a) a Private Equity
Credit Agreement (the "Private Equity Credit Agreement") setting forth the terms
and conditions of the purchase and sale, and (b) a registration rights agreement
substantially similar to the Registration Rights Agreement (the "Additional
Registration Rights Agreement", and together with the Private Equity Credit
Agreement, collectively the "Additional Transaction Documents"). The Purchasers
shall prepare the Additional Transaction Documents, subject to the mutual
approval of the Purchasers and the Company.
2. The Additional Closing. (i) The Company shall have the right to
deliver one or more written notices to the Purchasers (the "Additional Financing
Notice") requiring such parties to buy the Additional Shares not to exceed
$2,000,000 per Additional Financing Notice. An Additional Financing Notice may
be delivered no earlier than fifteen (15) Trading Days following the Effective
Date or the prior Additional Financing Notice. The closing of the purchase and
sale of the Additional Securities (the "Additional Closing") shall take place at
the offices of Xxxxxxx & Xxxxxx, LLP, Suite 1440, 00 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 on the eleventh (11th) Business Day after the Additional Financing
Notice is received by the Purchasers or the Company, as the case may be, or on
such other date as otherwise agreed to by the parties hereto; provided, however,
that in no case shall the Additional Closing take place unless and until all of
the conditions listed in Section 3 of this letter and the Additional Purchase
Agreement shall have been satisfied by the Company or waived by the Purchasers.
The date of each Additional Closing is hereinafter referred to as the
"Additional Closing Date." Notwithstanding anything to the contrary contained in
this letter, each Purchaser may designate an Affiliate thereof to acquire all or
any portion of the Additional Securities.
(ii) At the Additional Closing, the parties shall deliver or
shall cause to be delivered the following: (a) the Company shall deliver to (x)
each Purchaser or its designated Affiliate, (1) the number of Additional Shares
registered in the name of such Purchaser or its designated Affiliate,
representing the shares of Common Stock to be issued and sold to such Purchaser
at the Additional Closing; (2) a legal opinion in form and substance mutually
acceptable to the Purchasers and the Company, and (3) executed Additional
Transaction Documents and the Transfer Agent Instructions relating to the
Additional Securities, and to Xxxxxxx & Prager, LLP, $10,000 at the First
Additional Closing and $2,500 at each Additional Closing thereof, as payment of
the legal fees and expenses incurred by the Purchasers to prepare the Additional
Transaction Documents, which amount shall be deducted by the Purchasers from the
amount due to the Company for the Additional Securities and shall be paid
directly to Xxxxxxx & Xxxxxx, LLP., the fees of Ladenburg Thalmaan Co., Inc.;and
(b) each Purchaser shall deliver to the Company (1) its pro rata portion of the
Additional Purchase Price, in United States dollars in immediately available
funds by wire transfer to an account designated in writing by the Company for
such purpose prior to the Additional Closing Date and (2) the executed
Additional Transaction Documents.
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3. Conditions precedent to the Additional Closing. Notwithstanding
anything to the contrary contained in this letter, the commitment of a Purchaser
to purchase the Additional Securities is subject to the satisfaction or waiver
by the Purchasers of each of the following conditions:
(a) Closing of Initial Shares and Initial Warrants. The Initial Closing
shall have occurred;
(b) Performance by the Company. The Company shall have performed,
satisfied and complied with all covenants, agreements and conditions required by
the Transaction Documents to be performed, satisfied or complied with by the
Company between the Closing Date and the Additional Closing Date and no
Potential Material Event (as defined in the Registration Rights Agreement )
shall have occurred;
(c) Underlying Shares Registration Statement. The registration
statement with respect to the Additional Shares shall have been declared
effective under the Securities Act by the Commission and shall have remained
effective at all times, not subject to any actual or threatened stop order or
subject to any actual or threatened suspension at any time prior to the
Additional Closing Date;
(d) Any shareholder consent required by the rules of the Principal
Market shall have been secured;
(e) Shares of Common Stock. The Company shall have duly reserved the
number of shares of Common Stock as required by the Additional Transaction
Documents;
(f) Closing Threshold. For the twenty (20) Trading Days immediately
preceding both the Additional Financing Notice and the Additional Closing Date,
the average daily weighted dollar trading volume of the Common Stock on the
Principal Market, based on the Closing Bid Price, shall be at least 150 % of the
amount of the Additional Financing Notice and the average of the Per Share
Market Value for such twenty (20)Trading Day period shall be greater than $2.00.
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(g) Deliveries pursuant to Additional Transaction Documents. At the
Additional Closing, the Company shall deliver the Additional Shares and executed
Additional Transaction Documents relating to the Additional Shares in the forms
contemplated by this letter.
(h) Restriction on Future Financing. (i) The Company covenants and
agrees that it will not, without the prior written consent of the Purchasers,
enter into any subsequent or further offer or sale of Common Stock or securities
convertible into Common Stock (collectively, _New Common Stock_) with any third
party on any date which is sixty (60) trading days prior or subsequent to any
Additional Closing Date.
(ii) The provisions of subparagraph (g)(i) will not
apply to (v) the grant of any option, warrant or other right to acquire shares
of the Company's capital stock (including the exercise or conversion of any such
option, warrant or right) granted to employees, officers, directors and
consultants of the Company (w) Common Stock issued pursuant to an exemption from
registration under the Securities Act, (x) an underwritten public offering of
shares of Common Stock ; (y) an offering of convertible Preferred Stock or
Debentures at market or above; or (z) the issuance of securities (other than for
cash) in connection with an acquisition, merger, consolidation, sale of assets,
disposition or the exchange of the capital stock for assets, stock or other
joint venture interests.
4. Governing Law. This letter shall be governed by and construed and
enforced in accordance with the internal laws of the State of California,
without regard to the principles of conflicts of law thereof.
5. Execution. This letter may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
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Please indicate your agreement with the foregoing by executing
a countersigned copy of this letter and returning the same to our attention,
whereupon effective immediately thereafter this letter shall become a legally
valid and binding agreement between the Purchasers and the Company.
We look forward to our continuing relationship.
Sincerely,
XXXXXXXX LLC
By:
Name:
Title:
Agreed and accepted
___________________, 2000
ALTAIR INTERNATIONAL INC.
By:
Name:
Title:
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