EXHIBIT 10.22
CONFIDENTIALITY AGREEMENT
The undersigned ("Purchaser") has requested that Stellar Technologies,
Inc. (the "Company") provide Purchaser with a copy of the Securities Purchase
Agreement and other documents (the "Offering Documents") relating to the
Company's proposed offering of notes convertible into shares of its common stock
and warrants to acquire shares of its common stock (the "Offering").
Purchaser, as a condition to the receipt of the Offering Documents,
acknowledges and agrees as follows:
1. I acknowledge receipt of the Offering Documents.
2. I acknowledge that the Offering Documents have been furnished to
me on a confidential basis solely for the purpose of enabling me
to evaluate the Offering, and I agree not to further distribute
them, without the prior written consent of the Company, except to
my legal, financial or other personal advisors, if any, who will
use the Offering Documents on my behalf solely for purposes of
evaluating the Offering.
3. I acknowledge that any reproduction or distribution of the
Offering Documents, in whole or in part, or the direct or
indirect disclosure of the contents of the Offering Documents for
any other purpose, without the prior written consent of the
Company is prohibited.
4. By accepting the Offering Documents, I agree to be bound by all
terms and conditions specified herein.
IN WITNESS WHEREOF, Purchaser acknowledges and agrees to abide by the
terms of this Confidentiality Agreement.
PURCHASER
Date: _______________________ By: ___________________________
Name: _________________________
Title: ________________________
Address: ______________________
_______________________________
EXECUTION OF THIS DOCUMENT DOES NOT INDICATE ANY INTENT TO SUBSCRIBE FOR OR
PURCHASE THE SECURITIES OFFERED IN THE OFFERING DOCUMENTS. THIS DOCUMENT MUST BE
SIGNED AT THE TIME YOU RECEIVE THE ATTACHED OFFERING DOCUMENTS AND RETURNED TO
THE SECRETARY OF THE COMPANY.
STELLAR TECHNOLOGIES, INC.
_____________________________________________
SECURITIES PURCHASE AGREEMENT
_____________________________________________
CONVERTIBLE NOTES AND
WARRANTS TO ACQUIRE COMMON STOCK
_____________________________________________
JUNE 3, 2004
CONFIDENTIAL
NOTICE TO OFFEREES
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER THE
APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THIS SECURITIES
PURCHASE AGREEMENT AND THE OTHER OFFERING DOCUMENTS DO NOT CONSTITUTE AN OFFER
TO SELL OR SOLICITATION OF AN OFFER TO BUY THE SECURITIES IN ANY JURISDICTION IN
WHICH SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL.
THE SECURITIES ARE BEING SOLD FOR INVESTMENT PURPOSES ONLY, WITHOUT A
VIEW TO RESALE OR DISTRIBUTION THEREOF, AND MAY NOT BE TRANSFERRED, RESOLD OR
OFFERED FOR RESALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND EFFECTIVE REGISTRATION OR QUALIFICATION UNDER THE
APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, OR THE
AVAILABILITY OF AN EXEMPTION THEREFROM.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR THE SECURITIES
COMMISSION OR OTHER REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR
ACCURACY OF THIS SECURITIES PURCHASE AGREEMENT OR ANY OF THE OTHER OFFERING
DOCUMENTS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
CONFIDENTIAL
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SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated June __,
2004, by and between STELLAR TECHNOLOGIES, INC., a Colorado corporation (the
"Company"), and the purchaser or purchasers identified on the signature page
hereof ("Purchaser").
R E C I T A L S:
----------------
WHEREAS, Purchaser desires to purchase and the Company desires to sell
notes convertible into shares of common stock and warrants to acquire shares of
common stock on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises hereof and the
agreements set forth herein below, the parties hereto hereby agree as follows:
1. The Offering.
(a) Private Offering. The securities offered by this Agreement are
being offered in a private offering (the "Offering") of up to $1,500,000
principal amount of notes ("Notes") convertible into up to 600,000 shares of
common stock, $.001 par value per share, of the Company ("Common Stock"), and
warrants ("Warrants") to acquire up to 2,400,000 shares of Common Stock. The
Notes will be issued and sold together with the Warrants at the rate of two (2)
Series A Warrants and two (2) Series B Warrants for each $2.50 principal amount
of Notes purchased. The principal amount and all accrued interest due under the
Notes is convertible into shares of Common Stock at a conversion price of $2.50
per share, each Series A Warrant is exercisable into one (1) share of Common
Stock at an exercise price of $2.50 per share, and each Series B Warrant is
exercisable into one (1) share of Common Stock at an exercise price of $3.50 per
share, each subject to adjustment. The terms of the Notes are set forth in the
Form of Note, attached hereto and made a part hereof as Exhibit A. The terms of
the Series A Warrants are set forth in the Form of Series A Warrant, attached
hereto and made a part hereof as Exhibit B. The terms of the Series B Warrants
are set forth in the Form of Series B Warrant, attached hereto and made a part
hereof as Exhibit C. As set forth in the Note, the full principal amount and all
accrued interest due thereunder shall automatically convert into shares of
Common Stock on the date a registration statement (the "Registration Statement")
filed by the Company with the United States Securities and Exchange Commission
("SEC") to permit the public resale of the shares of Common Stock issuable upon
conversion of the Notes or exercise of the Warrants is declared effective by the
SEC. The Notes, Warrants and shares of Common Stock issuable upon conversion of
the Notes and exercise of the Warrants are hereinafter referred to collectively
as the "Securities." The Securities will be sold on a reasonable "best efforts"
basis at a purchase price equal to the principal amount of the Notes being
purchased pursuant to Section 4(2) of the Securities Act of 1933, as amended
(the "Securities Act"), and/or Rule 506 of Regulation D thereunder. The
Securities are being offered solely to a limited number of "accredited
investors" as that term is defined in Rule 501(a) of the Securities Act during
an offering period commencing June 3, 2004, and terminating on the date the
Company files the Registration Statement.
(b) Use of Proceeds. Assuming all of the Securities in the Offering
are sold, the net proceeds to the Company are estimated to be approximately
$1,375,000 (after deducting offering expenses payable by the Company estimated
at $5,000 and assuming payment of the maximum amount of placement fees of up to
$120,000) and will be used for general working capital and other corporate
purposes including funding acquisitions.
(c) Placement and Finder's Fees. The Company reserves the right to
pay placement fees in connection with the sale of the Securities in an amount of
up to eight percent (8%) of the Purchase Price of such Securities to broker
dealers registered under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
2. Sale and Purchase of Securities.
(a) Sale and Purchase of Securities. Subject to the terms and
conditions hereof, the Company agrees to sell, and Purchaser agrees to purchase,
the Securities specified on the signature page of this Agreement at a purchase
price equal to the principal amount of the Note being purchased hereunder. The
aggregate purchase price for the Securities shall be as set forth on the
signature page hereto (the "Purchase Price") and shall be payable upon execution
hereof by check or wire transfer of immediately available funds.
(b) Subscription Procedure. In order to purchase Securities,
Purchaser shall deliver to the Company, at its principal executive office
identified in Section 16 hereof: (i) one completed and duly executed copy of
this Agreement; and (ii) immediately available funds in an amount equal to the
Purchase Price. Execution and delivery of this Agreement shall constitute an
irrevocable subscription for that number of Securities set forth on the
signature page hereto. Payment for the Securities may be made by wire transfer
to:
__________________________
_______________________________
ABA# [___________________]
For the account of: Stellar Technologies, Inc.
Account# [________________]
or by check made payable to: Stellar Technologies, Inc., 0000 Xxxxxx Xxxxxxxxx
Xxxxx 000 Xxxxxx, Xxxxxxx 00000 Attention: Chief Executive Officer. The minimum
purchase that may be made by Purchaser is $100,000 principal amount of Notes,
although the Company may, in its sole discretion, accept Agreements for a lesser
principal amount of Notes. This Agreement may be rejected by the Company, in
whole or in part, in its sole discretion, in which event the Purchase Price will
be returned (by mail) to Purchaser within ten (10) business days thereafter.
Unless the Offering is otherwise terminated by the Company, as soon as possible
after the receipt and acceptance by the Company of this Agreement and collection
of the funds paid therefor, the Company will issue a copy of Purchaser's
executed Agreement countersigned by the Company, a Note in the principal amount
set forth on the signature page hereof executed by the Company a Series A
Warrant to purchase that number of shares of Common Stock set forth on the
signature page hereto executed by the Company and a Series B Warrant to purchase
that number of shares of Common Stock set forth on the signature page hereto
executed by the Company.
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3. Representations and Warranties of Purchaser. Purchaser represents
and warrants to the Company as follows:
(a) Organization and Qualification.
(i) If Purchaser is an entity, Purchaser is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, with the corporate or other entity power and authority to own and
operate its business as presently conducted, except where the failure to be or
have any of the foregoing would not have a material adverse effect on Purchaser,
and Purchaser is duly qualified as a foreign corporation or other entity to do
business and is in good standing in each jurisdiction where the character of its
properties owned or held under lease or the nature of their activities makes
such qualification necessary, except for such failures to be so qualified or in
good standing as would not have a material adverse effect on it.
(ii) If Purchaser is an entity, the address of its principal
place of business is as set forth on the signature page hereto, and if Purchaser
is an individual, the address of its principal residence is as set forth on the
signature page hereto.
(b) Authority; Validity and Effect of Agreement.
(i) If Purchaser is an entity, Purchaser has the requisite
corporate or other entity power and authority to execute and deliver this
Agreement and perform its obligations under this Agreement. The execution and
delivery of this Agreement by Purchaser, the performance by Purchaser of its
obligations hereunder and all other necessary corporate or other entity action
on the part of Purchaser have been duly authorized by its Boards of Directors or
similar governing body, and no other corporate or other entity proceedings on
the part of Purchaser is necessary for Purchaser to execute and deliver this
Agreement and perform its obligations hereunder.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by Purchaser and, assuming it has been duly and validly
executed and delivered by the Company, constitutes a legal, valid and binding
obligation of Purchaser, in accordance with its terms.
(c) No Conflict; Required Filings and Consents. Neither the
execution and delivery of this Agreement by Purchaser nor the performance by
Purchaser of its obligations hereunder will: (i) if Purchaser is an entity,
conflict with Purchaser's Articles of Incorporation or Bylaws, or other similar
organizational documents; (ii) violate any statute, law, ordinance, rule or
regulation, applicable to Purchaser or any of the properties or assets of
Purchaser; or (iii) violate, breach, be in conflict with or constitute a default
(or an event which, with notice or lapse of time or both, would constitute a
default) under, or permit the termination of any provision of, or result in the
termination of, the acceleration of the maturity of, or the acceleration of the
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performance of any obligation of Purchaser under, or result in the creation or
imposition of any lien upon any properties, assets or business of Purchaser
under, any material contract or any order, judgment or decree to which Purchaser
is a party or by which it or any of its assets or properties is bound or
encumbered except, in the case of clauses (ii) and (iii), for such violations,
breaches, conflicts, defaults or other occurrences which, individually or in the
aggregate, would not have a material adverse effect on its obligation to perform
its covenants under this Agreement.
(d) Accredited Investor. Purchaser is an "accredited investor" as
that term is defined in Rule 501(a) of Regulation D under the Securities Act. If
Purchaser is an entity, Purchaser was not formed for the specific purpose of
acquiring the Securities, and, if it was, all of Purchaser's equity owners are
"accredited investors" as defined above.
(e) No Government Review. Purchaser understands that neither the SEC
nor any securities commission or other governmental authority of any state,
country or other jurisdiction has approved the issuance of the Securities or
passed upon or endorsed the merits of the Securities or this Agreement, the
Note, the Warrant or any of the other documents relating to the proposed
Offering (collectively, the "Offering Documents"), or confirmed the accuracy of,
determined the adequacy of, or reviewed this Agreement or the other Offering
Documents.
(f) Investment Intent. The Securities are being acquired for the
Purchaser's own account for investment purposes only, not as a nominee or agent
and not with a view to the resale or distribution of any part thereof, and
Purchaser has no present intention of selling, granting any participation in or
otherwise distributing the same. By executing this Agreement, Purchaser further
represents that Purchaser does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to such
person or third person with respect to any of the Securities.
(g) Restrictions on Transfer. Purchaser understands that the
Securities are "restricted securities" as such term is defined in Rule 144 under
the Securities Act and have not been registered under the Securities Act or
registered or qualified under any state securities law, and may not be, directly
or indirectly, sold, transferred, offered for sale, pledged, hypothecated or
otherwise disposed of without registration under the Securities Act and
registration or qualification under applicable state securities laws or the
availability of an exemption therefrom. In any case where such an exemption is
relied upon by Purchaser from the registration requirements of the Securities
Act and the registration or qualification requirements of such state securities
laws, Purchaser shall furnish the Company with an opinion of counsel stating
that the proposed sale or other disposition of such securities may be effected
without registration under the Securities Act and will not result in any
violation of any applicable state securities laws relating to the registration
or qualification of securities for sale, such counsel and opinion to be
satisfactory to the Company. Purchaser acknowledges that it is able to bear the
economic risks of an investment in the Securities for an indefinite period of
time, and that its overall commitment to investments that are not readily
marketable is not disproportionate to its net worth.
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(h) Investment Experience. Purchaser has such knowledge,
sophistication and experience in financial, tax and business matters in general,
and investments in securities in particular, that it is capable of evaluating
the merits and risks of this investment in the Securities, and Purchaser has
made such investigations in connection herewith as it deemed necessary or
desirable so as to make an informed investment decision without relying upon the
Company for legal or tax advice related to this investment. In making its
decision to acquire the Securities, Purchaser has not relied upon any
information other than information provided to Purchaser by the Company or its
representatives and contained herein and in the other Offering Documents.
(i) Access to Information. Purchaser acknowledges that it has had
access to and has reviewed all documents and records relating to the Company,
including, but not limited to, the Company's filings with the SEC, that it has
deemed necessary in order to make an informed investment decision with respect
to an investment in the Securities; that it has had the opportunity to ask
representatives of the Company certain questions and request certain additional
information regarding the terms and conditions of such investment and the
finances, operations, business and prospects of the Company and has had any and
all such questions and requests answered to its satisfaction; and that it
understands the risks and other considerations relating to such investment.
(j) Reliance on Representations. Purchaser understands that the
Securities are being offered and sold to it in reliance on specific exemptions
from the registration requirements of the federal and state securities laws and
that the Company is relying in part upon the truth and accuracy of, and such
Purchaser's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of such Purchaser set forth herein in order
to determine the availability of such exemptions and the eligibility of such
Purchaser to acquire the Securities. Purchaser represents and warrants to the
Company that any information that Purchaser has heretofore furnished or
furnishes herewith to the Company is complete and accurate, and further
represents and warrants that it will notify and supply corrective information to
the Company immediately upon the occurrence of any change therein occurring
prior to the Company's issuance of the Securities. Within five (5) days after
receipt of a request from the Company, Purchaser will provide such information
and deliver such documents as may reasonably be necessary to comply with any and
all laws and regulations to which the Company is subject.
(k) No General Solicitation. Purchaser is unaware of, and in
deciding to participate in the Offering is in no way relying upon, and did not
become aware of the Offering through or as a result of, any form of general
solicitation or general advertising including, without limitation, any article,
notice, advertisement or other communication published in any newspaper,
magazine or similar media, or broadcast over television or radio or the
internet, in connection with the Offering.
(l) Placement and Finder's Fees. No agent, broker, investment
banker, finder, financial advisor or other person acting on behalf of Purchaser
or under its authority is or will be entitled to any broker's or finder's fee or
any other commission or similar fee, directly or indirectly, in connection with
the Offering, and no person is entitled to any fee or commission or like payment
in respect thereof based in any way on agreements, arrangements or understanding
made by or on behalf of Purchaser.
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(m) Offering Risks. Purchaser understands that purchasing Securities
in the Offering will subject Purchaser to certain risks, including, but not
limited to, each of the following:
(i) The offering price of the Securities offered hereby has been
determined solely by the Company and does not necessarily bear any relationship
to the value of the Company's assets, current or potential earnings of the
Company, or any other recognized criteria used for measuring value, and
therefore, there can be no assurance that the offering price of the Securities
is representative of the actual value of the Securities.
(ii) The Company has provided herein that it intends to use most
of the net proceeds from the Offering for general working capital purposes and
other general corporate purposes. Thus, Purchaser is making its investment in
the Securities based in part upon very limited information regarding the
specific uses to which the net proceeds will be applied.
(iii) An investment in the Securities may involve certain
material legal, accounting and federal and state tax consequences. Purchaser
should consult with its legal counsel, accountant and/or business adviser as to
the legal, accounting, tax and related matters accompanying such an investment.
(n) Legends. The certificates and agreements evidencing the
Securities shall have endorsed thereon the following legend (and appropriate
notations thereof will be made in the Company's stock transfer books), and stop
transfer instructions reflecting these restrictions on transfer will be placed
with the transfer agent of the Securities:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE. THE SECURITIES REPRESENTED HEREBY HAVE BEEN TAKEN BY THE
REGISTERED OWNER FOR INVESTMENT, AND WITHOUT A VIEW TO RESALE OR
DISTRIBUTION THEREOF, AND MAY NOT BE SOLD, TRANSFERRED OR DISPOSED OF
WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH
TRANSFER OR DISPOSITION DOES NOT VIOLATE THE SECURITIES ACT OF 1933, AS
AMENDED, THE RULES AND REGULATIONS THEREUNDER OR OTHER APPLICABLE
SECURITIES LAWS.
4. Representations and Warranties of the Company. The Company
represents and warrants to Purchaser as follows:
(a) Organization and Qualification. The Company is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, with the corporate power and authority to own and operate its
business as presently conducted, except where the failure to be or have any of
the foregoing would not have a material adverse effect on the Company. The
Company is duly qualified as a foreign corporation or other entity to do
business and is in good standing in each jurisdiction where the character of its
properties owned or held under lease or the nature of their activities makes
such qualification necessary, except for such failures to be so qualified or in
good standing as would not have a material adverse effect on the Company.
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(b) Authority; Validity and Effect of Agreement.
(i) The Company has the requisite corporate power and authority
to execute and deliver this Agreement, perform its obligations under this
Agreement, and conduct the Offering. The execution and delivery of this
Agreement by the Company, the performance by the Company of its obligations
hereunder, the Offering and all other necessary corporate action on the part of
the Company have been duly authorized by its Board of Directors, and no other
corporate proceedings on the part of the Company are necessary to authorize this
Agreement or the Offering. This Agreement has been duly and validly executed and
delivered by the Company and, assuming that it has been duly authorized,
executed and delivered by Purchaser, constitutes a legal, valid and binding
obligation of the Company, in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(ii) The shares of Common Stock issuable upon conversion of the
Notes when issued and paid for in accordance with the Notes, will be duly
authorized, validly issued, fully paid and non-assessable shares of Common Stock
with no personal liability resulting solely from the ownership of such shares
and will be free and clear of all liens, charges, restrictions, claims and in
encumbrances imposed by or through the Company. The shares of Common Stock
issuable upon exercise of the Warrants when issued and paid for in accordance
with the Warrants, will be duly authorized, validly issued, fully paid and
non-assessable shares of Common Stock with no personal liability resulting
solely from the ownership of such shares and will be free and clear of all
liens, charges, restrictions, claims and in encumbrances imposed by or through
the Company.
(c) No Conflict; Required Filings and Consents. Neither the
execution and delivery of this Agreement by the Company nor the performance by
the Company of its obligations hereunder will: (i) conflict with the Company's
Certificate of Incorporation or Bylaws; (ii) violate any statute, law,
ordinance, rule or regulation, applicable to the Company or any of the
properties or assets of the Company; or (iii) violate, breach, be in conflict
with or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or permit the termination of any
provision of, or result in the termination of, the acceleration of the maturity
of, or the acceleration of the performance of any obligation of the Company, or
result in the creation or imposition of any lien upon any properties, assets or
business of the Company under, any material contract or any order, judgment or
decree to which the Company is a party or by which it or any of its assets or
properties is bound or encumbered except, in the case of clauses (ii) and (iii),
for such violations, breaches, conflicts, defaults or other occurrences which,
individually or in the aggregate, would not have a material adverse effect on
its obligation to perform its covenants under this Agreement.
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(d) SEC Reports and Financial Statements. The Company has filed with
the SEC, and has heretofore made available to Purchaser true and complete copies
of, all forms, reports, schedules, statements and other documents required to be
filed by it under the Exchange Act or the Securities Act (as such documents have
been amended since the time of their filing, collectively, the "Company SEC
Documents"). As of their respective dates or, if amended, as of the date of the
last such amendment, the Company SEC Documents, including any financial
statements or schedules included therein (i) did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading, and (ii)
complied in all material respects with the applicable requirements of the
Exchange Act and the Securities Act, as the case may be, and the applicable
rules and regulations of the SEC thereunder. Each of the financial statements
included in the Company SEC Documents have been prepared from, and are in
accordance with, the books and records of the Company, comply in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto, have been prepared in
accordance with GAAP applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto) and fairly present the
financial position and the results of operations and cash flows of the Company
as of the dates thereof or for the periods presented therein (subject, in the
case of unaudited statements, to normal year-end audit adjustments not material
in amount).
5. Indemnification. Purchaser agrees to indemnify, defend and hold
harmless the Company and its respective affiliates and agents from and against
any and all demands, claims, actions or causes of action, judgments,
assessments, losses, liabilities, damages or penalties and reasonable attorneys'
fees and related disbursements incurred by the Company that arise out of or
result from a breach of any representations or warranties made by Purchaser
herein, and Purchaser agrees that in the event of any breach of any
representations or warranties made by Purchaser herein, the Company may, at its
option, forthwith rescind the sale of the Units to Purchaser.
6. Registration Rights. The Company covenants and agrees as follows:
6.1 For the purpose of this Section 6, the following definitions
shall apply:
(a) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC thereunder, all as
the same shall be in effect at the time.
(b) "Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
(c) "Register," "registered," and "registration" shall refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or order of
effectiveness of such registration statement or document.
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(d) "Registration Statement" shall mean any registration
statement of the Company filed with the SEC pursuant to the provisions of
Section 6.2 of this Agreement, which covers the resale of the Restricted Stock
on an appropriate form then permitted by the SEC to be used for such
registration and the sales contemplated to be made thereby under the Securities
Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including any pre- and post-
effective amendments thereto, in each case including the prospectus contained
therein, all exhibits thereto and all materials incorporated by reference
therein.
(e) "Restricted Stock" shall mean (i) the shares of Common Stock
issuable upon conversion of the Notes; (ii) the shares of Common Stock issuable
upon exercise of the Warrants; and (iii) any additional shares of Common Stock
of the Company issued or issuable after the date hereof in respect of any of the
foregoing securities, by way of a stock dividend or stock split; provided that
as to any particular shares of Restricted Stock, such securities shall cease to
constitute Restricted Stock when (x) a Registration Statement with respect to
the sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of thereunder, (y) such securities
are permitted to be transferred pursuant to Rule 144 (or any successor provision
to such rule) under the Securities Act or (z) such securities are otherwise
freely transferable to the public without further registration under the
Securities Act.
(f) "Selling Stockholders" shall mean Purchaser and any other
purchaser of Securities in the Offering, and their respective successors and
assigns.
6.2. Registration of the Shares.
(a) The Company shall use its reasonable best efforts to
prepare and file with the SEC, within sixty (60) days of the Closing Date (the
"Target Filing Date"), a Registration Statement under the Act to permit the
public sale of the Restricted Stock purchased hereby, and to cause such
Registration Statement to be declared effective as soon as reasonably
practicable thereafter but in no event later than one hundred twenty (120) days
after the Closing Date (the "Target Effective Date"). The Selling Stockholders
shall furnish such information as may be reasonably requested by the Company in
order to include such Restricted Stock in such Registration Statement. In the
event that any registration pursuant to this Section 6.2(a) is terminated or
withdrawn, the Company shall use its reasonable best efforts to prepare and file
with the SEC, within ninety (90) days thereafter, a Registration Statement under
the Securities Act to permit the public sale of the Restricted Stock purchased
hereby.
(b) Notwithstanding anything to the contrary contained herein,
the Company's obligation in Sections 6.2(a) above shall extend only to the
inclusion of the Restricted Stock in a Registration Statement. The Company shall
have no obligation to assure the terms and conditions of distribution, to obtain
a commitment from an underwriter relative to the sale of the Restricted Stock or
to otherwise assume any responsibility for the manner, price or terms of the
distribution of the Restricted Stock.
(c) The Company shall have the right to terminate or withdraw
any registration initiated by it under this Section 6.2 prior to the
effectiveness of such registration.
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6.3. Registration Procedures. Whenever it is obligated to register
any Restricted Stock pursuant to this Agreement, the Company shall:
(a) prepare and file with the SEC a Registration Statement with
respect to the Restricted Stock in the manner set forth in Section 6.2 hereof
and use its reasonable best efforts to cause such Registration Statement to
become effective as promptly as possible and to remain effective until the
earlier of (i) the sale of all shares of Restricted Stock covered thereby, (ii)
the availability under Rule 144 for the Selling Stockholder to immediately,
freely resell without restriction all Restricted Stock covered thereby, or (iii)
one (1) year from the effective date of the first Registration Statement filed
by the Company with the SEC pursuant to this Agreement or with respect to any
subsequent Registration Statement, 180 days from the effective date of such
Registration Statement;
(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to such Registration Statement and
the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for the period specified in Section 6.3(a)
above and to comply with the provisions of the Act with respect to the
disposition of all Restricted Stock covered by such Registration Statement in
accordance with the intended method of disposition set forth in such
Registration Statement for such period;
(c) furnish to the Selling Stockholders such number of copies
of the Registration Statement and the prospectus included therein (including
each preliminary prospectus) as such person may reasonably request in order to
facilitate the public sale or other disposition of the Restricted Stock covered
by such Registration Statement;
(d) use its reasonable best efforts to register or qualify the
Restricted Stock covered by such Registration Statement under the state
securities laws of such jurisdictions as any Selling Stockholder shall
reasonably request; provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) in the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each
Purchaser participating in such underwriting shall also enter into and perform
its obligations under such an agreement, as described in Section 6.2(b);
(f) immediately notify each Selling Stockholder at any time
when a prospectus relating thereto is required to be delivered under the Act, of
the happening of any event as a result of which the prospectus contained in such
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required or necessary to be
stated therein in order to make the statements contained therein not misleading
in light of the circumstances under which they were made. The Company will use
reasonable efforts to amend or supplement such prospectus in order to cause such
prospectus not to include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made;
10
(g) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statements as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement;
(h) make available for inspection by any Selling Stockholder
and any attorney, accountant or other agent retained by any Selling Stockholder,
all financial and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to supply
all information reasonably requested by any Selling Stockholder, attorney,
accountant or agent in connection with such Registration Statement; provided,
however, that such Selling Stockholder, underwriter, attorney or accountant
shall agree to hold in confidence and trust all information so provided;
(i) use its reasonable best efforts to list the Restricted
Stock covered by such Registration Statement on each exchange or automated
quotation system on which similar securities issued by the Company are then
listed (with the listing application being made at the time of the filing of
such Registration Statement or as soon thereafter as is reasonably practicable);
(j) notify each Selling Stockholder of any threat by the SEC or
state securities commission to undertake a stop order with respect to sales
under the Registration Statement; and
(k) cooperate in the timely removal of any restrictive legends
from the shares of Restricted Stock in connection with the resale of such shares
covered by an effective Registration Statement.
6.4 Expenses.
(a) For the purposes of this Section 6.4, the term
"Registration Expenses" shall mean: all expenses incurred by the Company in
complying with Section 6.2 of this Agreement, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees under state
securities laws, fees of the National Association of Securities Dealers, Inc.
("NASD"), fees and expenses of listing shares of Restricted Stock on any
securities exchange or automated quotation system on which the Company's shares
are listed and fees of transfer agents and registrars. The term "Selling
Expenses" shall mean: all underwriting discounts and selling commissions
applicable to the sale of Restricted Stock and all accountable or
non-accountable expenses paid to any underwriter in respect of such sale.
(b) Except as otherwise provided herein, the Company will pay
all Registration Expenses in connection with the Registration Statements filed
pursuant to Section 6.2 of this Agreement. All Selling Expenses in connection
with any Registration Statements filed pursuant to Section 6.1 of this Agreement
shall be borne by the Selling Stockholders pro rata on the basis of the number
of shares registered by each Selling Stockholder whose shares of Restricted
Stock are covered by such Registration Statement, or by such persons other than
the Company (except to the extent the Company may be a seller) as they may
agree.
11
6.5. Delay of Effectiveness of Registration Statement.
(a) The Company and the Selling Stockholders agree that the
Selling Stockholders may suffer damages if the Registration Statement is not
declared effective by the SEC on or prior to the one hundred eightieth day
(180th) day following the Closing Date (the "Effectiveness Deadline"). The
Company and the Selling Stockholders further agree that it would not be feasible
to ascertain the extent of such damages with precision. Accordingly, if the
Registration Statement is not declared effective by the SEC prior to the
Effectiveness Deadline, the Company shall pay in cash as liquidated damages for
such failure and not as a penalty to the Selling Stockholders, an amount equal
to two percent (2%) of the Purchase Price for the thirty (30) day period
commencing on the Target Effective Date and an amount equal to one percent (1%)
of the Purchase Price for each thirty (30) day period thereafter (the
"Non-Effectiveness Damages"). Payments to be made to the Selling Stockholders
pursuant to this Section 6.5(a) shall be due and payable within 5 business days
of any demand therefor by the Selling Stockholders. The parties agree that the
Non-Effectiveness Damages represent a reasonable estimate on the part of the
parties, as of the date of this Agreement, of the amount of damages that may be
incurred by the Selling Stockholders if the Registration Statement is not
declared effective on or prior to the Effectiveness Deadline.
(b) No Selling Stockholder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Article 6.
6.6. Obligations of the Selling Stockholders.
(a) In connection with each registration hereunder, each
Selling Stockholder will furnish to the Company in writing such information with
respect to it and the securities held by it and the proposed distribution by it,
as shall be reasonably requested by the Company in order to assure compliance
with applicable federal and state securities laws as a condition precedent to
including the Selling Stockholder's Restricted Stock in the Registration
Statement. Each Selling Stockholder shall also promptly notify the Company of
any changes in such information included in the Registration Statement or
prospectus as a result of which there is an untrue statement of material fact or
an omission to state any material fact required or necessary to be stated
therein in order to make the statements contained therein not misleading in
light of the circumstances under which they were made.
(b) In connection with the filing of the Registration
Statement, each Selling Stockholder shall furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with such Registration Statement or prospectus.
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(c) In connection with each registration pursuant to this
Agreement, each Selling Stockholder agrees that it will not effect sales of any
Restricted Stock until notified by the Company of the effectiveness of the
Registration Statement, and thereafter will suspend such sales after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update a Registration Statement or prospectus. At the end
of any period during which the Company is obligated to keep a Registration
Statement current, each Selling Stockholder shall discontinue sales of
Restricted Stock pursuant to such Registration Statement upon receipt of notice
from the Company of its intention to remove from registration the Restricted
Stock covered by such Registration Statement that remains unsold, and each
Selling Stockholder shall notify the Company of the number of shares registered
which remain unsold immediately upon receipt of such notice from the Company.
6.7. Information Blackout and Holdbacks.
(a) At any time when a Registration Statement effected pursuant
to Section 6.2 is effective, upon written notice from the Company to Purchaser
that the Company has determined in good faith that the sale of Restricted Stock
pursuant to the Registration Statement would require disclosure of non-public
material information, Purchaser shall suspend sales of Restricted Stock pursuant
to such Registration Statement until such time as the Company notifies Purchaser
that such material information has been disclosed to the public or has ceased to
be material, or that sales pursuant to such Registration Statement may otherwise
be resumed.
(b) Notwithstanding any other provision of this Agreement,
Purchaser shall not effect any public sale or distribution (including sales
pursuant to Rule 144 under the Securities Act), if and when available, of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the thirty (30) days prior to the
commencement of any primary offering to be undertaken by the Company of shares
of its unissued Common Stock ("Primary Offering"), which may also include other
securities, and ending one hundred twenty (120) days after completion of any
such Primary Offering, unless the Company, in the case of a non-underwritten
Primary Offering, or the managing underwriter, in the case of an underwritten
Primary Offering, otherwise agree.
6.8. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by
law, each Selling Stockholder, such Selling Stockholder's respective partners,
officers, directors, underwriters and each Person who controls any Selling
Stockholder (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses caused by (i) any untrue statement of
or alleged untrue statement of material fact contained in the Registration
Statement, prospectus or preliminary prospectus or any amendment or supplement
thereto, (ii) any omission of or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement
("Violations"); provided, however, that the indemnity agreement contained in
this Section 6.8(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
13
the consent of the Company, which consent shall not be unreasonably withheld,
nor shall the Company be liable in for any loss, claim, damage, liability or
action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by such Selling
Stockholder, partner, officer, director, underwriter or controlling person of
such Selling Stockholder.
(b) To the extent permitted by law, each Selling Stockholder
shall indemnify and hold harmless the Company, each of its directors, its
officers and each person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter and any other Selling Stockholder selling
securities under such registration statement or any of such other Selling
Stockholder's partners, directors or officers or any person who controls such
Selling Stockholder, against any losses, claims, damages or liabilities (joint
or several) to which the Company or any such director, officer, controlling
person, underwriter or other such Selling Stockholder, or partner, director,
officer or controlling person of such other Selling Stockholder, may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation (i) occurs in reliance
upon and in conformity with written information furnished by such Selling
Stockholder under an instrument duly executed by such Selling Stockholder for
use in connection with such registration, (ii) occurs as a result of any failure
to deliver a copy of the prospectus relating to such Registration Statement, or
(iii) occurs as a result of any disposition of the Restricted Stock in a manner
that fails to comply with the permitted methods of distribution identified
within the Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt
notice shall not impair any Person's right to indemnification hereunder to the
extent such failure has not prejudiced the indemnifying party), and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) If the indemnification provided for in this Section 6.8 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
14
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the violation(s) described in Section
6.8(a) that resulted in such loss, claim, damage or liability, as well as any
other relevant equitable considerations. The relative fault of the indemnifying
party and of the indemnified party shall be determined by a court of law by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission; provided, that in no event
shall any contribution by a Selling Stockholder hereunder exceed the net
proceeds from the offering received by such Selling Stockholder.
(e) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and shall survive the transfer of securities. The
Company also agrees to make such provisions as are reasonably requested by any
indemnified party for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
7. Confidentiality. Purchaser acknowledges and agrees that:
(a) All of the information contained herein and in the other
Offering Documents is of a confidential nature and may be regarded as material
non-public information under Regulation FD of the Securities Act.
(b) This Agreement and the other Offering Documents have been
furnished to Purchaser by the Company for the sole purpose of enabling Purchaser
to consider and evaluate an investment in the Company, and will be kept
confidential by Purchaser and not used for any other purpose.
(c) The information contained herein shall not, without the prior
written consent of the Company, be disclosed by Purchaser to any person or
entity, other than Purchaser's personal financial and legal advisors for the
sole purpose of evaluating an investment in the Company, and Purchaser will not,
directly or indirectly, disclose or permit Purchaser's personal financial and
legal advisors to disclose, any of such information without the prior written
consent of the Company.
(d) Purchaser shall make its representatives aware of the terms of
this section and to be responsible for any breach of this Agreement by such
representatives.
(e) Purchaser shall not, without the prior written consent of the
Company, directly or indirectly, make any statements, public announcements or
release to trade publications or the press with respect to the subject matter of
this Agreement and the other Offering Documents.
(f) If Purchaser decides to not pursue further investigation of the
Company or to not participate in the Offering, Purchaser will promptly return
this Agreement, the other Offering Documents and any accompanying documentation
to the Company.
15
8. Non-Public Information. Purchaser acknowledges that information
concerning the matters that are the subject matter of this Agreement may
constitute material non-public information under United States federal
securities laws, and that United States federal securities laws prohibit any
person who has received material non-public information relating to the Company
from purchasing or selling securities of the Company, or from communicating such
information to any person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell securities of the
Company. Accordingly, until such time as any such non-public information has
been adequately disseminated to the public, Purchaser shall not purchase or sell
any securities of the Company, or communicate such information to any other
person.
9. Entire Agreement. This Agreement contains the entire agreement
between the parties and supercedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereto,
and no party shall be liable or bound to any other party in any manner by any
warranties, representations, guarantees or covenants except as specifically set
forth in this Agreement. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto 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. Amendment and Modification. This Agreement may not be amended,
modified or supplemented except by an instrument or instruments in writing
signed by the party against whom enforcement of any such amendment, modification
or supplement is sought.
11. Extensions and Waivers. At any time prior to the Closing, the
parties hereto entitled to the benefits of a term or provision may (a) extend
the time for the performance of any of the obligations or other acts of the
parties hereto, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document, certificate or writing delivered pursuant
hereto, or (c) waive compliance with any obligation, covenant, agreement or
condition contained herein. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument or
instruments in writing signed by the party against whom enforcement of any such
extension or waiver is sought. No failure or delay on the part of any party
hereto in the exercise of any right hereunder shall impair such right or be
construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty, covenant or agreement.
12. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that no party hereto may assign its rights or
delegate its obligations under this Agreement without the express prior written
consent of the other party hereto. Except as provided in Sections 5 and Section
6.8, nothing in this Agreement is intended to confer upon any person not a party
hereto (and their successors and assigns) any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
16
13. Survival of Representations, Warranties and Covenants. The
representations and warranties contained herein shall survive the Closing and
shall thereupon terminate eighteen (18) months from the Closing, except that the
representations contained in Sections 3(a), 3(b), 4(a), and 4(b) shall survive
indefinitely. All covenants and agreements contained herein which by their terms
contemplate actions following the Closing shall survive the Closing and remain
in full force and effect in accordance with their terms. All other covenants and
agreements contained herein shall not survive the Closing and shall thereupon
terminate.
14. Headings; Definitions. The Section headings contained in this
Agreement are inserted for convenience of reference only and will not affect the
meaning or interpretation of this Agreement. All references to Sections
contained herein mean Sections of this Agreement unless otherwise stated. All
capitalized terms defined herein are equally applicable to both the singular and
plural forms of such terms
15. Severability. If any provision of this Agreement or the application
thereof to any person or circumstance is held to be invalid or unenforceable to
any extent, the remainder of this Agreement shall remain in full force and
effect and shall be reformed to render the Agreement valid and enforceable while
reflecting to the greatest extent permissible the intent of the parties.
16. Notices. All notices hereunder shall be sufficiently given for all
purposes hereunder if in writing and delivered personally, sent by documented
overnight delivery service or, to the extent receipt is confirmed, telecopy,
telefax or other electronic transmission service to the appropriate address or
number as set forth below:
If to the Company:
-----------------
Stellar Technologies, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
with a copy to:
--------------
Xxxxx Xxxxxx LLP
00 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esquire
If to Purchaser:
---------------
To that address indicated on the signature page hereof.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof, except to the extent that the Colorado Business Corporation Act shall
apply to the internal corporate governance of the Company.
17
18. Arbitration. If a dispute arises as to the interpretation of this
Agreement, it shall be decided in an arbitration proceeding conforming to the
Rules of the American Arbitration Association applicable to commercial
arbitration then in effect at the time of the dispute. The arbitration shall
take place in the State of Florida. The decision of the arbitrators shall be
conclusively binding upon the parties and final, and such decision shall be
enforceable as a judgment in any court of competent jurisdiction. The parties
shall share equally the costs of the arbitration.
19. Counterparts. This Agreement may be executed and delivered by
facsimile in two or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same agreement.
18
IN WITNESS WHEREOF, intending to be legally bound, the parties hereto
have caused this Agreement to be executed as of the date set forth below.
PURCHASER
Date: __________________________________ _____________________________________
By:___________________________________
Name:____________________________
Title:___________________________
Address:_________________________
_________________________________
_________________________________
Principal Amount of Notes Purchased: $_______________
Number of Series A Warrants:____________
(equal to 80% of the Principal Amount of Notes
Purchased)
Number of Series B Warrants:____________
(equal to 80% of the Principal Amount of Notes
Purchased)
Purchase Price: $_____________
(equal to the Principal Amount of Notes Purchased)
STELLAR TECHNOLOGIES, INC.
Date:__________________________________ By:___________________________________
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
19
Omitted Exhibits
----------------
The following exhibits to this Securities Purchase Agreement have been
omitted:
Exhibit Exhibit Description
------- -------------------
A Form of Convertible Note
B Form of Series A Warrant
C Form of Series B Warrant
The Company agrees to furnish supplementally a copy of the foregoing
omitted exhibits to the Securities and Exchange Commission upon request.
20
