SECURITIES PURCHASE AGREEMENT
Among
EARTHSHELL CORPORATION
a Delaware corporation
(as the Issuer)
and
TSCP MACHINERY & PROCESSING GROUP, LLC
a Delaware Limited Liability Company
and
XXXXXX X. XXXXXXXX REVOCABLE TRUST
A trust formed under the laws of ___________
(as Purchasers)
Dated: June 21, 2006
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is made and entered
into this 21st day of June, 2006 among EARTHSHELL CORPORATION, a Delaware
corporation (the "Company"), TSCP MACHINERY & PROCESSING GROUP, LLC, a Delaware
limited liability company ("TSCP") and XXXXXX X. XXXXXXXX REVOCABLE TRUST, a
trust formed under the laws of ____________ ("Xxxxxxxx") (Xxxxxxxx and TSCP are
referred to individually as "Purchaser" and collectively as the "Purchasers").
WHEREAS, Purchasers desire to purchase from the Company shares of Series D
Convertible Preferred Stock of the Company, par value $0.01 per share (the
"Series D Shares"), with all the rights and preferences set forth in the
Certificate of Designation attached hereto as Exhibit A (the "Certificate of
Designation"), and the Company desires to sell Series D Shares to Purchasers, on
the terms contained herein; and
WHEREAS, in connection with the purchase and sale of the Series D Shares,
the Company will issue to each Purchaser a Common Stock Warrant (each, a
"Warrant" and collectively the "Warrants") to acquire shares of common stock of
the Company, par value $0.01 per share (the "Common Shares") in the form
attached hereto as Exhibit B.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
The Transaction
1.1 Approval of Transaction; Filing of Certificate of Designation. Prior
to the date hereof, the Board of Directors of the Company authorized and
approved the transaction contemplated by this Agreement, including the
Certificate of Designation, and the Certificate of Designation has been accepted
for filing by the Secretary of State of Delaware and is in full force and
effect. A copy of such Board approval as certified by the Secretary or Assistant
Secretary of the Company, and a copy of the Certificate of Designation as
certified by the Secretary of State of Delaware, are attached hereto as Exhibit
C and Exhibit D, respectively.
1.2 Purchase and Sale of Securities. On the terms contained in this
Agreement, each Purchaser, individually and not jointly and severally, is hereby
purchasing from the Company, and the Company is hereby selling to such
Purchaser, the number of Series D Shares set forth next to the signature of such
Purchaser on the signature page of this Agreement, and a Warrant to acquire the
number of Common Shares set forth next to the signature of such Purchaser on the
signature page of this Agreement (the Series D Shares and Warrants shall be
referred to herein collectively as the "Securities") at an aggregate purchase
price for such Purchaser equal to the product of $3.90 and the number of Series
D Shares being purchased by such Purchaser. The aggregate purchase price of the
Securities for each Purchaser is set forth next to the signature of each
Purchaser on the signature page of this Agreement.
1.3 Time and Place of Closing. The transactions contemplated by this
Agreement are being consummated at 5:00 pm, Pacific Daylight Savings Time, at
the offices of the Company located at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxxxx, Xxxxxxxxxx (the "Closing").
1.4 Manner of Payment of Individual Purchase Price. Each Purchaser is
paying his or its purchase price for its respective Series D Preferred Shares
and Warrants by wire transfer of immediately available funds to the Company on
the Closing to the bank account designated by the Company by written notice
delivered to Purchasers not later than the day of Closing.
1.4 Issuance and Delivery of the Securities. The Company is issuing and
delivering certificates representing the Securities in the name of each
Purchaser in the amounts set forth next to the signature of each such Purchaser
on the signature page of this Agreement. The Company is also delivering such
other documents as are reasonably required in order to effectuate the
consummation of the transactions contemplated hereby. All documents being
delivered at Closing are in form and substance reasonably satisfactory to both
parties.
ARTICLE II
Representations and Warranties
2.1 Representatives and Warranties of the Company.
The Company represents and warrants to Purchasers as follows:
(a) The Company is a company duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, with the requisite
power and authority to own and use its properties and assets and to carry on its
business as currently conducted. The Company is not in violation of any of the
provisions of its certificate of incorporation or bylaws. The Company is duly
qualified to conduct business and is in good standing as a foreign corporation
in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be
so qualified or in good standing, as the case may be, could not, individually or
in the aggregate, (i) adversely affect the legality, validity or enforceability
of this Agreement or the Securities, (ii) have or result in a material adverse
effect on the results of operations, assets, business or condition (financial or
otherwise) of the Company, or (iii) adversely impair the Company's ability to
perform fully on a timely basis its obligations under this Agreement (any of
(i), (ii) or (iii), a "Material Adverse Effect").
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(b) The Company has the requisite corporate power and authority to
enter into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The execution and delivery of
this Agreement by the Company and the consummation by it of the transactions
contemplated hereunder (including the filing of the Certificate of Designation
with the Secretary of State of Delaware) have been duly authorized by all
necessary corporate action on the part of the Company, and no further consent or
action is required by the Company, its Board of Directors or its stockholders.
This Agreement has been duly executed by officers of the Company and constitutes
the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby do not and will not (i) conflict with or violate any provision of the
Company's certificate of incorporation or bylaws, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company debt or otherwise) or other understanding to which the
Company is a party or by which any property or asset of the Company is bound or
affected, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company is subject, or by which any property or asset of
the Company is bound or affected.
(d) The Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other entity or person in connection with the
execution, delivery and performance by the Company of this Agreement, other than
the required filing of the Certificate of Designation.
(e) The Securities have been duly authorized and, when issued in
accordance with this Agreement and paid for in full by Purchasers, will be duly
and validly issued, fully paid and non-assessable, free and clear of any lien,
charge, claim, security interest, encumbrance, right of first refusal or other
restriction. At such time as the Securities may be converted into the
appropriate number of shares of common stock of the Company (the "Common
Shares"), such Common Shares will be duly and validly issued, fully paid and
non-assessable, free and clear of any lien, charge, claim, security interest,
encumbrance, right of first refusal or other restriction.
(f) As of the date hereof, all of the outstanding shares of common
stock of the Company are duly authorized, validly issued, fully paid and
non-assessable and have been issued in compliance with all applicable securities
laws.
(g) There is no action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against
or affecting the Company or any of its properties before or by any court,
arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) which adversely affects or challenges
the legality, validity or enforceability of this Agreement or the Securities.
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(h) The Company has filed all reports required to be filed by it under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including
pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date
hereof (the foregoing filings being collectively referred to herein as the "SEC
Reports"). As of their respective dates, the SEC Reports complied in all
material respects with the requirements of the Securities Act of 1933, as
amended (the Securities Act") and the Exchange Act and the rules and regulations
of the Securities and Exchange Commission (the "Commission") promulgated
thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations
of the Commission with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved,
except as may be otherwise specified in such financial statements or the notes
thereto, and fairly present in all material respects the financial position of
the Company as of and for the dates thereof and the results of operations and
cash flows for the periods then ended.
(i) As of the date hereof, and after giving effect to the filing og
the Certificate of Designation and the transactions contemplated by this
Agreement, the authorized capital stock of the Company consists of (i)
40,000,000 shares of common stock, $0.01 par value per share, of which
19,340,188 are issued and outstanding, and (ii) 10,000,000 shares of Preferred
Stock, of which 100 shares are designated Series B Convertible Preferred Stock,
of which 8,000,000 have been designated Series C Convertible Preferred Stock.,
and of which 400,000 have been designated as Series D Convertible Preferred
Stock. There is no other class of preferred stock authorized or outstanding. All
common stock and series of Preferred Stock referred to in this Section 2.1(i)
are referred to collectively herein as "Corporation Shares." All of the issued
and outstanding Corporation Shares have been validly issued, are fully paid and
are non-assessable. All Corporation Shares have been issued in compliance with
all applicable federal and state securities laws.
(j) Since December 31, 2005, there has not been any material adverse
change in the business, operations, financial condition or prospects of the
Company, except as has been publicly disclosed in SEC Reports or press releases
and it being understood that the Company needs additional financing to continue
as a "going concern."
2.2 Representations and Warranties of Purchasers.
Each Purchaser individually as to itself, and not jointly and severally,
represents and warrants to the Company as follows:
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(a) Such Purchaser, if not a natural person, is duly organized,
validly existing and in good standing, under the laws of its state of formation.
Such Purchaser, if not a natural person, has full power and authority to enter
into and perform this Agreement. The execution and delivery by such Purchaser of
this Agreement and the performance by such Purchaser of its obligations
hereunder, in each case if such Purchaser is not a natural person, have been
duly authorized and approved by all requisite company action.
(b) This Agreement has been duly executed and delivered by such
Purchaser or duly authorized representatives of such Purchaser and constitutes
the valid and binding obligation of such Purchaser enforceable against such
Purchaser in accordance with its terms.
(c) No consent, authorization, order or approval of, or filing or
registration with, any governmental commission, board or other regulatory body
of the United States or any state or political subdivision thereof is required
for or in connection with the consummation by such Purchaser of the transaction
contemplated hereby.
(d) Neither the execution and delivery of this Agreement by such
Purchaser, nor the consummation by such Purchaser of the transaction
contemplated hereby, will conflict with or result in a breach of any of the
terms, conditions or provisions of its charter documents or operating agreement,
or of any statute or administrative regulation, or of any order, writ,
injunction, judgment or decree of any court or governmental authority or of any
arbitration award.
(e) Such Purchaser is not a party to any written or oral contract,
agreement, indenture, debenture, note, commitment or other instrument under the
terms of which performance by such Purchaser according to the terms of this
Agreement will be a default or an event of acceleration, or grounds for
termination, or whereby timely performance by such Purchaser according to the
terms of this Agreement may be prohibited, prevented or delayed.
(f) Such Purchaser has not dealt with any person or entity which is or
may be entitled to a broker's commission, finder's fee, investment banker's fee
or similar payment for arranging the transaction contemplated hereby or
introducing the parties to each other.
(g) Such Purchaser is acquiring the Securities (and upon exercise of
the Securities, the Common Shares) for such Purchaser's own accounts and not
with a present view to or for sale in connection with any distribution of all or
any part of the Securities or the Common Shares. Such Purchaser understands that
such parties can not, directly or indirectly, transfer, offer, sell, pledge,
hypothecate or otherwise dispose of all or any part of the Securities or the
Common Shares or its or his interest in the Securities or the Common Shares (or
solicit any offers to buy, purchase or otherwise acquire to take a pledge of all
or any part thereof) except (i) as provided in Section 3 hereof or (ii) in a
manner that does not violate the registration or any other applicable provisions
of the Securities Act (or any other applicable federal securities laws) or any
applicable state securities laws; provided that in the case of a transfer under
clause (ii) hereof, the transferee of the Securities or the Common Shares from
such Purchaser must acknowledge and agree to abide by the provisions of this
Section 2.2(g) and must present to the Company or its counsel (A) a written
opinion in form and substance of legal counsel experienced in securities law
matters satisfactory to the Company indicating that the proposed transfer will
not be in violation of any of the registration provisions of the Securities Act
and the qualification provisions of applicable state securities laws or similar
successor laws, and the rules and regulations promulgated thereunder, or (B)
evidence satisfactory to the Company of full compliance with the provisions of
Rule 144 under the Securities Act or other available exemptions under the
Securities Act.
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(h) Such Purchaser has been furnished with, and hereby acknowledges
receipt of, such information as it deems necessary to evaluate its or his
investment in the Securities and understands the risks of, and other
considerations relating to, ownership of the Securities. Such Purchaser has
extensive knowledge and experience in financial affairs so that such Purchaser
is capable of evaluating the merits and risks of an investment in the Securities
and has the capacity to protect its or his own interests in connection with
purchase of the Securities. Such Purchaser's financial situation is such that it
can afford to bear the economic risk of holding the Securities for an indefinite
period of time and can afford to suffer the complete loss of its investment in
the Securities.
3. Registration Covenant of the Company
The Company covenants and agrees with each Purchaser as follows:
(a) If at any time either Purchaser requests that the Company file a
registration statement for a secondary public offering of all or any portion of
the Common Shares, the Company will file, within sixty (60) business days of
receipt of such Purchaser's request, a registration statement with the
Commission which complies in all material respects with the requirements of the
Securities Act seeking the public sale of the number of Common Shares specified
in such notice. The Company will pay all reasonable expenses incurred in
connection with any registration, qualification and compliance requested
hereunder (excluding underwriting discounts and commissions), including, without
limitation, all filing, registration and qualification, printing and accounting
fees and the fees and disbursements of counsel for the Company. The Company
shall notify each Purchaser in writing at least fifteen (15) days prior to the
filing of any registration statement under the Securities Act for purposes of a
public offering of securities and will afford each Purchaser an opportunity to
include in such registration statement all or part of any Common Shares held by
such Purchaser. Each Purchaser desiring to include in any such registration
statement all or any part of his or its Common Shares, shall, within fifteen
(15) days after the above-described notice from the Company, so notify the
Company in writing. If a Purchaser decides not to include all of its Common
Shares in any registration statement thereafter filed by the Company, such
Purchaser shall nevertheless continue to have the right to include any Common
Shares in any subsequent registration statement as may be filed by the Company
with respect to offerings of its securities, all upon the terms and conditions
set forth herein.
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(b) The Company will use its diligent best efforts (i) to cause such
registration statement to become effective and (ii) to cause such registration
statement to remain effective until the completion of the proposed offering and
(iii) to prepare and file with the Commission such amendments and supplements to
the registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all the Common
Shares covered by such registration statement, including, without limitation,
such amendments and supplements as may be necessary to reflect the intended
method of disposition from time to time of the holder.
(c) The Company will furnish to each holder of Common Shares covered
by such registration statement such numbers of copies of such registration
statement, any amendments thereto, any documents incorporated by reference
therein, the prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the sale or other disposition of the
Common Shares.
(d) The Company will use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by each
holder of Common Shares covered by such registration statement and do any and
all other acts and things that may be necessary under such securities and blue
sky laws to enable each holder to consummate the sale or other disposition of
the Common Shares owned by it; provided that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such states or
jurisdictions, unless the Company is already subject to service in such state or
jurisdiction and except as may be required by the Securities Act.
(e) Within a reasonable time before each filing of the registration
statement or prospectus or amendments or supplements thereto with the SEC, the
Company will furnish counsel selected by any holder of the Common Shares copies
of such documents proposed to be filed, which counsel shall have a reasonable
opportunity to review and comment thereon.
(f) The Company will promptly notify each holder of Common Shares
covered by the registration statement of the happening of any event which makes
any statement made in the registration statement or related prospectus untrue or
which requires the making of any changes in such registration statement or
prospectus so that they will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading; and, as promptly as practicable thereafter, prepare
and file with the Commission and furnish a supplement or amendment to such
prospectus so that, as thereafter deliverable to the purchasers of such Common
Shares, such prospectus will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(g) The Company will use its best efforts to prevent the issuance of
any order suspending the effectiveness of the registration statement and, if one
is issued, shall use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement at the earliest
possible moment.
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(h) If the registration statement under which the Company gives notice
under this Section 3 is for an underwritten offering, the Company shall so
advise the Purchasers. In such event, the right of any such Purchaser to be
included in any such registration statement pursuant to this Section 3 shall be
conditioned upon such Purchaser's participation in such underwriting and the
inclusion of such Common Shares in the underwriting to the extent provided
herein. The Company, and the Purchasers who intend to participate in such
underwritten offering, shall enter into an underwriting agreement in customary
form with an underwriter or underwriters selected for such underwriting by the
Company.
(i) To the fullest extent permitted by law, the Company will indemnify
and hold harmless each holder selling Common Shares under the registration
statement, each other entity or person who participates in the offering of the
Common Shares under such registration statement, and each other entity or
person, if any, who controls (within the meaning of the Securities Act) such
seller or participating entity or person (individually and collectively, the
"Indemnified Person"), against any losses, claims, damages or liabilities (joint
or several) to which they may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (joint or several), or actions in respect thereof, arise
out of or are based upon: (i) any untrue statement or alleged untrue statement
of a material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, (ii) the omission or alleged omission to state therein 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, and the Company shall pay to each such Indemnified Person,
as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the Company shall not be liable to
any Indemnified Person in any such case for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based upon (i)
any untrue statement or alleged untrue statement or omission or alleged omission
in such registration statement, preliminary or final prospectus, or amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by such person expressly for use therein or (ii) such
person's failure to deliver a prospectus as required by the Securities Act.
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ARTICLE IV
Indemnification
4.1 General. From and after the Closing, the parties shall indemnify each
other as provided in this Article IV. As used in this Agreement, the term
"Damages" shall mean all liabilities, actions or causes of action, regulatory,
legislative or judicial proceedings or investigations, assessments, levies,
losses, fines, penalties, damages, costs and expenses, including, without
limitation, reasonable attorneys', accountants', investigators', and experts'
fees and expenses, sustained or incurred in connection with the defense or
investigation of any claim of Damages.
4.2 The Company's Indemnification Obligation.The Company will indemnify,
save and keep each Purchaser and its successors and permitted assigns
("Purchaser Indemnities") harmless against and from all Damages sustained or
incurred by any Purchaser Indemnittee, as a result of or arising out of or by
virtue of any inaccuracy in or breach of any representation and warranty made by
the Company to Purchasers herein or failure of the Company to comply with any of
the covenants or obligations under this Agreement to be performed by the
Company.
Each of the representations and warranties made by the Company in this Agreement
shall survive for a period of two (2) years after the Closing Date. No claim for
the recovery of Damages arising out a breach of any such representation and
warranty may be asserted by either Purchaser against the Company or its
successors in interest after such representations and warranties shall be thus
extinguished; provided, however, that claims first asserted in writing within
the applicable period shall not thereafter be barred.
4.3. Purchasers Indemnification Obligation. Purchasers shall individually,
and not jointly and severally, indemnify, save and keep the Company and its
successors and permitted assigns ("Seller Indemnitees"), forever harmless
against and from all Damages sustained or incurred by any Seller Indemnitee, as
a result of or arising out of or by virtue of any inaccuracy in or breach of any
representation and warranty made by such Purchaser to the Company herein.
Each of the representations and warranties made by each Purchaser in this
Agreement shall survive for a period of two (2) years after the Closing. No
claim for the recovery of Damages arising out of a breach of any such
representation and warranty may be asserted by the Company against such
Purchaser or its successors in interest after such representations and
warranties shall be thus extinguished; provided, however, that claims first
asserted in writing within the applicable period shall not thereafter be barred.
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ARTICLE V
Miscellaneous
5.1 Publicity.Except as otherwise required by law, press releases
concerning this transaction shall be made only with the prior agreement of the
Company and Purchasers.
5.2 Notices. All notices required or permitted to be given hereunder shall
be in writing and may be delivered by hand, by facsimile, by nationally
recognized private courier, or by United States mail. Notices delivered by mail
shall be deemed given three (3) business days after being deposited in the
United States mail, postage prepaid, registered or certified mail. Notices
delivered by hand by facsimile, or by nationally recognized private carrier
shall be deemed given on the first business day following receipt; provided,
however, that a notice delivered by facsimile shall only be effective if such
notice is also delivered by hand, or deposited in the United States mail,
postage prepaid, registered or certified mail, on or before two (2) business
days after its delivery by facsimile. All notices shall be addressed as follows:
If to the Company:
c/o EarthShell Corporation
0000 Xxxx Xx. Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: D. Xxxxx Xxxxxxx
Fax: (000-000-0000 (fax)
with a copy to:
Xxxxxxxxx, Xxxxxx Xxxxxxx LLP
000 Xxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx, Esq.
Fax: (000) 000-0000
If to Purchasers:
TSCP Machinery & Processing Group, LLC
x/x Xxxxxxxx Xxxxxx Capital Partners, L.P.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000 Attn.: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
00
Xxxxxx X. Xxxxxxxx Revocable Trust
c/o Xxx Xxxxxxxx
Springbok Partners
80 East Xxx Xxxxxxx Xxxxx Blvd.
0xx Xxxxx, Xxxxx X
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax:_________________
with a copy to:
Xxxxxx Xxxxxx LLP
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and/or to such other respective addresses and/or addresses as may be designated
by notice given in accordance with the provisions of this Section 5.2.
5.4 Expenses. Each party hereto will bear all the fees and expenses
incurred by such party in connection with, relating to or arising out of the
negotiation, preparation, execution, delivery and performance of this Agreement
and the consummation of the transaction contemplated hereby, including, without
limitation, attorneys', accountants' and other professional fees and expenses.
5.5. Entire Agreement. This Agreement and the instruments to be delivered
by the parties pursuant to the provisions hereof constitute the entire agreement
between the parties relating to the Securities and shall be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, successors and permitted assignees. Any amendments, or
alternative or supplementary provisions to this Agreement must be made in
writing and duly executed by an authorized representative or agent of each of
the parties hereto.
5.6. Survival; Non-Waiver. All representations and warranties shall
survive the Closing regardless of any investigation or lack of investigation by
any of the parties hereto. The failure in any one or more instances of a party
to insist upon performance of any of the terms, covenants or conditions of this
Agreement, to exercise any right or privilege in this Agreement conferred, or
the waiver by said party of any breach of any of the terms, covenants or
conditions of this Agreement, shall not be construed as a subsequent waiver of
any such terms, covenants, conditions, rights or privileges, but the same shall
continue and remain in full force and effect as if no such forbearance or waiver
had occurred. No waiver shall be effective unless it is in writing and signed by
an authorized representative of the waiving party. A breach of any
representation, warranty or covenant shall not be affected by the fact that a
more general or more specific presentation, warranty or covenant was not also
breached.
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5.7. Severability. The invalidity of any provision of this Agreement or
portion of a provision shall not affect the validity of any other provision of
this Agreement or the remaining portion of the applicable provision.
5.8. Applicable Law. This Agreement shall be governed and controlled as to
validity, enforcement, interpretation, construction, effect and in all other
respects by the internal laws of the State of Delaware applicable to contracts
made in that State.
5.9. Binding Effect; Benefit. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, and their successors and permitted
assigns. Nothing in this Agreement, express or implied, is intended to confer on
any person other than the parties hereto, and their respective successors and
permitted assigns any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
5.10. Assignability. This Agreement shall not be assignable by either
party without the prior written consent of the other party except that either of
the Purchasers may assign its rights under the Agreement to an affiliate.
5.11. Counterparts. This Agreement is being executed in multiple
counterparts, and by facsimile or other electronic means, each of which shall be
deemed to be an original, and all such counterparts shall constitute but one
instrument.
5.12. Headings. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
THE COMPANY
EARTHSHELL CORPORATION
By /s/ D. Xxxxx Xxxxxxx
--------------------
PURCHASERS
TSCP MACHINERY & PROCESSING
GROUP,LLC
By: Xxxxxxxx Street Capital Partners, L.P., its Manager
By: Xxxxxxxx Street Capital GP LLC
Its: General Partner
By: /s/ Xxxxx X. Xxxxxx Aggregate Purchase Price $200,000
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Xxxxx X. Xxxxxx Number of Series D Shares: 51,282
Managing Member Warrant Conversion:222,222 Common
Shares
XXXXXX X. XXXXXXXX
REVOCABLE TRUST Aggregate Purchase Price $300,000
Number of Series D Shares: 76,923
By: /s/ Xxxxxx X. Xxxxxxxx Warrant Conversion:333,333 Common
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Its:Trustee Shares
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