Contract
AMENDED
AND RESTATED STOCK PURCHASE AGREEMENT
dated as
of May 20, 2008 (this "Agreement")
among
WO
XXXX XX (the
"Seller"),
and
the investors listed on the Schedule of Buyers attached hereto (individually,
a
"Purchaser"
and
collectively, the "Purchasers").
WHEREAS,
the
Company and the Purchasers are parties to that certain Stock Purchase Agreement,
dated as of March 13, 2008 (the Existing SPA").
WHEREAS,
the
parties desire to enter into this Agreement, pursuant to which, the Existing
SPA
is hereby amended and restated in its entirety as set forth herein.
WHEREAS,
the
Seller owns shares of Ordinary Stock, $0.001 par value per share (the
"Ordinary
Stock"),
of
China Precision Steel, Inc., a Delaware corporation (the "Company")
and is
the Chairman of the Board, Chief Executive Officer and President of the
Company.
WHEREAS,
the
Purchasers seek to purchase from the Seller, and the Seller seeks to sell
to the
Purchasers, (i) Three Million, Five Hundred Twenty Four Thousand, Eight Hundred
Ten (3,524,810) shares of Ordinary Stock currently owned by the Seller (the
"Initial
Purchased Shares")
and
(ii) One Million (1,000,000) shares of Ordinary Stock currently owned by
the
Seller (the "Additional
Purchased Shares",
and
together with the Initial Purchased Shares, the "Purchased
Shares"),
all
in accordance with the terms of this Agreement.
NOW,
THEREFORE,
in
consideration of the premises and mutual benefits representations, warranties,
conditions, covenants and agreements contained herein, the parties hereto
hereby
agree as set forth below.
ARTICLE
I
PURCHASE
AND SALE OF THE PURCHASED SHARES
1.1 Purchase
and Sale of Purchased Shares.
(a)
Purchase
and Sale of Initial Purchased Shares.
Upon
the terms and subject to the conditions set forth herein, subject to the
satisfaction (or waiver) of the conditions set forth in Sections 4.1 and
4.2
below, the Seller shall sell to each Purchaser, and each Purchaser severally,
but not jointly, agrees to purchase from the Seller on the Initial Closing
Date
(as defined below) the number of Initial Purchased Shares set forth opposite
such Purchaser's name in column (3) of the Schedule of Buyers attached hereto
for $3.75 per Initial Purchased Share (the "Initial
Closing").
The
aggregate purchase price for each Purchaser at the Initial Closing shall
be as
set forth in column (5) of the Schedule of Buyers (the aggregate of all such
purchase prices to be paid at the Initial Closing shall be referred to as
the
"Initial
Purchase Price").
(b)
Purchase
of Additional Purchased Shares.
Subject
to the satisfaction (or waiver) of the conditions set forth in Sections 4.3
and
4.4 below, the Seller agrees to sell to each Purchaser, and each Purchaser,
severally, but not jointly, agrees to purchase from the Seller on the Additional
Closing Date (as defined below), the number of Additional Purchased Shares
as
set forth opposite such Purchaser's name in column (4) of the Schedule of
Buyers
attached hereto for $6.70 per Additional Purchased Share (the "Additional
Closing").
The
aggregate purchase price for each Purchaser at the Additional Closing shall
be
as set forth in column (6) of the Schedule of Buyers (the aggregate of all
such
purchase prices to be paid at the Additional Closing shall be referred to
as the
"Additional
Purchase Price"
and
together with the Initial Purchase Price, the "Purchase
Price").
(c)
Closing.
The
Initial Closing and the Additional Closing are each referred to in this
Agreement as a "Closing"
and the
Initial Closing Date and the Additional Closing Date are each referred to
in
this Agreement as a "Closing Date." Each Closing shall occur on the applicable
Closing Date at the offices of Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Subject to the satisfaction (or waiver by the Seller
and each Purchaser, as applicable) of the conditions set forth in Sections
4.1
and 4.2 below, the date and time of the Initial Closing (the "Initial Closing
Date")
shall
be 10:00 a.m., New York City time, on May 23, 2008 (or such other date as
is
mutually agreed to by the Seller and each Purchaser). Subject to the
satisfaction (or waiver by the applicable Purchasers and the Seller, as
applicable) of the conditions to the Additional Closing set forth in Section
4.3
and 4.4, the date and time of the Additional Closing (the "Additional
Closing Date")
shall
be 10:00 a.m., New York City time, on June 11, 2008 (or such other date(s)
as is
mutually agreed to by the Seller and the applicable Purchasers).
(d)
Form
of Payment.
On each
Closing Date, (i) each Purchaser shall pay its portion of the applicable
Purchase Price set forth on the Schedule of Buyers as follows: (A) 90% of
such
Purchaser's portion of the applicable Purchase Price to the Seller for the
applicable Purchased Shares to be sold to such Purchaser at such Closing,
by
wire transfer of immediately available funds in accordance with the Seller's
written wire instructions and (B) 10% of such Purchaser's portion of such
applicable Purchase Price to the Escrow Agent (as defined below) by wire
transfer of immediately available funds pursuant to the wire instructions
set
forth in Section 3.1 of the Escrow Agreement or as otherwise provided by
the
Escrow Agent, and (ii) the Seller shall deliver or caused to be delivered
to each Purchaser the applicable Purchased Shares (for the account of such
Purchaser as such Purchaser shall instruct) which such Purchaser is then
purchasing, duly registered in the name of such Purchaser or its
designee.
(e)
Definitions.
As used
herein, "Trading
Day"
means
any day on which the Ordinary Stock is traded on the Principal Market, or,
if
the Principal Market is not the principal trading market for the Ordinary
Stock,
then on the principal securities exchange or securities market on which the
Ordinary Stock is then traded; provided that "Trading Day" shall not include
any
day on which the Ordinary Stock is scheduled to trade on such exchange or
market
for less than 4.5 hours or any day that the Ordinary Stock is suspended from
trading during the final hour of trading on such exchange or market (or if
such
exchange or market does not designate in advance the closing time of trading
on
such exchange or market, then during the hour ending at 4:00:00 p.m., New
York
Time). As used herein "Business
Day"
means
any day other than a Saturday, Sunday or other day on which commercial banks
in
The city of New York are authorized or required by law to remain
closed.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller represents and warrants to the Purchasers as of the date hereof as
set
forth below.
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2.1 Legal
Capacity
The
Seller has the legal capacity and right to execute, deliver, enter into,
consummate and perform this Agreement.
2.2 Title
to Purchased Shares.
The
Seller is the sole record and beneficial owner of the Purchased Shares to
be
sold by it pursuant to this Agreement and owns such shares free from all
taxes,
liens, claims, encumbrances and charges. There are no outstanding rights,
options, subscriptions or other agreements or commitments obligating the
Seller
to sell or transfer the Purchased Shares and the Purchased Shares are not
subject to any lock-up or other restriction on their transfer or on the ability
of the Purchasers to sell or transfer the Purchased Shares (except that the
Purchased Shares are restricted securities and may not be sold by the Purchasers
except pursuant to a registration statement or an exemption from
registration).
2.3 Authority
The
Seller has the requisite power and authority to execute and deliver this
Agreement and to carry out and perform all of its obligations under the terms
of
this Agreement, including, without limitation, the full power and authority
to
sell and transfer such Purchased Shares. This Agreement has been duly executed
and delivered by the Seller, and this Agreement constitutes the valid and
legally binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except as such enforceability may be limited by
general principles of equity or to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to,
or
affecting generally, the enforcement of applicable creditors' rights and
remedies.
2.4 Accredited
Investor Status; Affiliate Status.
The
Seller is an "accredited investor" as that term is defined in Rule 501(a)
of
Regulation D under the Securities Act of 1933, as amended (the "Securities
Act").
The
Seller is an "affiliate" of the Company, as such term is defined in Rule
144 of
the Securities Act.
2.5 Noncontravention.
The
execution, delivery and performance by the Seller of this Agreement and the
consummation by the Seller of the transactions contemplated hereby will not
(a)
conflict with, or constitute a default (or an event which 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 of, any agreement,
indenture or instrument to which the Seller is a party, or (b) result in
a
violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws) applicable to the Seller, except for such
conflicts, defaults, rights or violations which would not, individually or
in
the aggregate, reasonably be expected to have a material adverse effect on
the
ability of the Seller to perform its obligations hereunder.
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2.6 Consents.
Except
for the approvals required to be obtained by Closing in accordance with Article
IV, no consent, approval, permit, order, notification or authorization of,
or
any exemption from registration, declaration or filing with, any person
(governmental or private) is required in connection with the execution, delivery
and performance by the Seller of this Agreement or the consummation by the
Seller of the transactions contemplated hereby.
2.7 Seller
Status.
The
Seller (a) is a sophisticated person with respect to the sale of the Purchased
Shares; (b) has adequate information concerning the business and financial
condition of the Company to make an informed decision regarding the sale
of the
Purchased Shares; and (c) has independently and without reliance upon the
Purchasers, and based on such information as the Seller has deemed appropriate,
made its own analysis and decision to enter into this Agreement, except that
the
Seller has relied upon the Purchasers' express representations, warranties
and
covenants in this Agreement. The Seller acknowledges that the Purchasers
have
not given the Seller any investment advice, credit information or opinion
on
whether the sale of the Purchased Shares is prudent.
2.8 Absence
of Litigation.
There
is
no action, suit, claim, proceeding, inquiry or investigation before or by
any
court, public board, government agency or self regulatory organization or
body
pending or, to the knowledge of the Seller, threatened against or affecting
the
Seller that could reasonably be expected to have a material adverse affect
on
the ability of the Seller to perform its obligations hereunder.
2.9 No
Brokers.
Other
than Primary Capital, LLC (the "Agent"),
whose
fees, in the amount of 1.5% of the aggregate Purchase Price, shall be paid
by
the Seller, directly from the Escrow Account when the assets in the Escrow
Account are otherwise to be released to the Seller, the Seller has taken
no
action that would give rise to any claim by any person for brokerage
commissions, finder's fees or similar payments relating to this Agreement
or the
transactions contemplated hereby.
2.10 Outstanding
Amounts.
The
Seller has paid any and all amounts and charges due and owing to the Company
with respect to the Purchased Shares and there are no unpaid amounts or charges
claimed to be due to the Company from the Seller with respect to the Purchased
Shares.
2.11 Material
Nonpublic Information.
The
Seller confirms that neither it, the Company nor any other person or entity
acting on either of their behalf has provided any of the Purchasers or their
respective agents or counsel with any information that constitutes or could
reasonably be expected to constitute material, non-public information. The
Seller further confirms that its is not selling the Purchase Shares hereunder
on
the basis of material non-public information. The Seller understands and
confirms that each of the Purchasers will rely on the foregoing representations
in effecting transactions in securities of the Company.
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ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
Each
Purchaser severally and not jointly, represents and warrants to the Seller
as of
the date hereof as set forth below.
3.1 Organization
and Existence.
Such
Purchaser is an entity duly organized and validly existing under the laws
of the
jurisdiction of its formation.
3.2 No
Public Sale or Distribution.
Such
Purchaser is acquiring the Purchased Shares in the ordinary course of business
for its own account and not with a view towards, or for resale in connection
with, the public sale or distribution thereof, except pursuant to sales
registered or exempted under the Securities Act, and such Purchaser does
not
have a present arrangement to effect any distribution of the Purchased Shares
to
or through any person or entity; provided,
however,
that by
making the representations herein, such Purchaser does not agree to hold
any of
the Purchased Shares for any minimum or other specific term and reserves
the
right to dispose of the Purchased Shares at any time in accordance with or
pursuant to a registration statement or an exemption under the Securities
Act.
3.3 Accredited
Investor Status.
Such
Purchaser is an "accredited investor" as that term is defined in Rule 501(a)
of
Regulation D under the Securities Act.
3.4 Authority.
Such
Purchaser has all requisite power and authority to execute, deliver and perform
its obligations under this Agreement. This Agreement has been duly and validly
authorized, executed and delivered on behalf of such Purchaser and shall
constitute the legal, valid and binding obligation of such Purchaser enforceable
against it in accordance with its terms, except as such enforceability may
be
limited by general principles of equity or to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to,
or
affecting generally, the enforcement of applicable creditors' rights and
remedies.
3.5 Noncontravention.
The
execution, delivery and performance by such Purchaser of this Agreement and
the
consummation by such Purchaser of the transactions contemplated hereby will
not
(a) result in a violation of the organizational documents of such Purchaser,
(b)
conflict with, or constitute a default (or an event which 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 of, any agreement,
indenture or instrument to which such Purchaser is a party, or (c) result
in a
violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws) applicable to such Purchaser, except in
the
case of clauses (b) and (c) above, for such conflicts, defaults, rights or
violations which would not, individually or in the aggregate, reasonably
be
expected to have a material adverse effect on the ability of such Purchaser
to
perform its obligations hereunder.
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3.6 Purchaser
Status.
Such
Purchaser (a) is a sophisticated person with respect to the sale of the
Purchased Shares; (b) has adequate information concerning the business and
financial condition of the Company to make an informed decision regarding
the
purchase of the Purchased Shares; and (c) has independently and without reliance
upon the Seller, and based on such information as such Purchaser has deemed
appropriate, made its own analysis and decision to enter into this Agreement,
except that such Purchaser has relied upon the Seller's express representations,
warranties and covenants in this Agreement. Such Purchaser acknowledges that
the
Seller has not given such Purchaser any investment advice, credit information
or
opinion on whether the purchase of the Purchased Shares is prudent.
3.7 Absence
of Litigation.
There
is
no action, suit, claim, proceeding, inquiry or investigation before or by
any
court, public board, government agency or self-regulatory organization or
body
pending or, to the knowledge of such Purchaser, threatened against or affecting
such Purchaser that could reasonably be expected to have a material adverse
affect on the ability of such Purchaser to perform its obligations
hereunder.
3.8 No
Brokers.
Such
Purchaser has taken no action that would give rise to any claim by any person
for brokerage commissions, finder's fees or similar payments relating to
this
Agreement or the transactions contemplated hereby.
ARTICLE
IV
CONDITIONS
TO CLOSING
4.1 Conditions
to the Seller's Obligation to Sell at the Initial Closing.
The
obligation of the Seller hereunder to sell the Initial Purchased Shares to
the
Purchasers on the Initial Closing Date is subject to the satisfaction, on
or
before the Initial Closing Date, of each of the following conditions,
provided,
that
these conditions are for the Seller's sole benefit and may be waived by the
Seller at any time in its sole discretion by providing the Purchasers with
prior
written notice thereof:
(a) Such
Purchaser shall have delivered (i) 90% of such Purchaser's portion of the
Purchase Price due on the Initial Closing to the Seller (less any amounts
withheld by a Purchaser pursuant to Section 5.2) by wire transfer of immediately
available funds pursuant to the wire instructions provided by the Seller
and
(ii) 10% of such Purchaser's portion of the Purchase Price due on the Initial
Closing to the Escrow Account (as defined below) by wire transfer of immediately
available funds pursuant to wire instructions provided by the Escrow
Agent.
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(b) The
representations and warranties of the Purchasers shall be true and correct
in
all material respects as of the date when made and as of the Initial Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date), and the Purchasers shall have performed, satisfied
and complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Purchasers at or prior to the Initial Closing Date.
4.2 Conditions
to each Purchaser's Obligation to Purchase at the Initial
Closing.
The
obligation of each Purchaser hereunder to purchase the Initial Purchased
Shares
on the Initial Closing Date is subject to the satisfaction, on or before
the
Initial Closing Date, of each of the following conditions, provided,
that
these conditions are for each Purchaser's sole benefit and may be waived
by such
Purchaser at any time in its sole discretion by providing the Seller with
prior
written notice thereof:
(a) The
Seller shall have caused the Initial Purchased Shares to be delivered to
the
Purchasers in the denominations and registered in the names requested by
the
Purchasers.
(b) The
representations and warranties of the Seller shall be true and correct in
all
material respects as of the date when made and as of the Initial Closing
Date as
though made at that time (except for representations and warranties that
speak
as of a specific date), and the Seller shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by
the
Seller at or prior to the Initial Closing Date.
(c) The
Seller shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Initial Purchased
Shares.
4.3 Conditions
to the Seller's Obligation to Sell at the Additional
Closing.
The
obligation of the Seller hereunder to sell the Additional Purchased Shares
to
the Purchasers on the Additional Closing Date is subject to the satisfaction,
on
or before the Additional Closing Date, of each of the following conditions,
provided,
that
these conditions are for the Seller's sole benefit and may be waived by the
Seller at any time in its sole discretion by providing the Purchasers with
prior
written notice thereof:
(a) Such
Purchaser shall have delivered (i) 90% of such Purchaser's portion of the
purchase price due on the Additional Closing to the Seller (less any amounts
withheld by a Purchaser pursuant to Section 5.2) by wire transfer of immediately
available funds pursuant to the wire instructions provided by the Seller
and
(ii) 10% of such Purchaser's portion of the purchase price due on the Additional
Closing to the Escrow Account (as defined below) by wire transfer of immediately
available funds pursuant to wire instructions provided by the Escrow Agent
(as
defined below).
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(b) The
representations and warranties of the Purchasers shall be true and correct
in
all material respects as of the date when made and as of the Additional Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date), and the Purchasers shall have performed, satisfied
and complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Purchasers at or prior to the Additional Closing Date.
4.4 Conditions
to each Purchaser's Obligation to Purchase at the Additional
Closing.
The
obligation of each Purchaser hereunder to purchase the Additional Purchased
Shares on the Additional Closing Date is subject to the satisfaction, on
or
before the Additional Closing Date, of each of the following conditions,
provided,
that
these conditions are for each Purchaser's sole benefit and may be waived
by such
Purchaser at any time in its sole discretion by providing the Seller with
prior
written notice thereof:
(a) The
Seller shall have caused the Additional Purchased Shares to be delivered
to the
Purchasers in the denominations and registered in the names requested by
the
Purchasers.
(b) The
representations and warranties of the Seller shall be true and correct in
all
material respects as of the date when made and as of the Additional Closing
Date
as though made at that time (except for representations and warranties that
speak as of a specific date), and the Seller shall have performed, satisfied
and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by
the
Seller at or prior to the Additional Closing Date.
(c) The
Seller shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Additional Purchased
Shares.
ARTICLE
V
COVENANTS
5.1 Disclosure
of Transactions and Other Material Information.
The
Seller shall cause the Company, on or before 9:00 a.m., New York City time,
on
the first Trading Day after the date of this Agreement, (A) to issue a press
release (the "Press
Release")
reasonably acceptable to the Purchasers disclosing all material terms of
the
transactions contemplated hereby and (B) to file
a
Current Report on Form 8-K describing the terms of the transactions contemplated
by this Agreement, the Escrow Agreement and the Registration Rights Agreement
in
the form required by the Securities Exchange Act of 1934, as amended (the
"Exchange
Act"),
and
attaching as exhibits to such filing (including all attachments, the
"8-K
Filing").
From
and after the issuance of the Press Release, no Purchaser shall be in possession
of any material, nonpublic information received from the Seller or any person
or
entity acting on its behalf (including the Company, any of its subsidiaries
or
any of its respective officers, directors, employees or agents) that is not
disclosed in the Press Release. The Seller shall not, and shall cause the
Company and each of the Company's subsidiaries and each of their respective
officers, directors, employees and agents, not to, provide the Purchasers
with
any material, nonpublic information regarding the Company or any of its
subsidiaries from and after the filing of the Press Release without the express
written consent of such Purchasers. If a Purchaser has, or believes it has,
received any such material, nonpublic information regarding the Company or
any
of its subsidiaries from the Seller, the Company, any of its subsidiaries
or any
of the respective officers, directors, or agents, other than as requested
in
writing by such Purchaser, it may provide Seller and the Company with written
notice thereof. The Seller shall cause the Company, within five (5) Trading
Days
of receipt of such notice, cause the Company to make public disclosure of
such
material, nonpublic information. Subject to the foregoing, neither the Seller,
the Company, its subsidiaries nor any Purchaser shall issue any press releases
or any other public statements with respect to the transactions contemplated
hereby; provided,
however,
that
the Company shall be entitled, without the prior approval of any Purchaser,
to
make any press release or other public disclosure with respect to such
transactions (i) in substantial conformity with the 8-K Filing and
contemporaneously therewith and (ii) as is required by applicable law and
regulations, including the applicable rules and regulations of the Principal
Market (provided that in the case of clause (i) the Seller shall cause the
Company to consult with each Purchaser in connection with any such press
release
or other public disclosure prior to its release). Without the prior written
consent of any applicable Purchaser, neither the Company nor any of its
subsidiaries or affiliates shall disclose the name of such Purchaser in any
filing, announcement, release or otherwise, unless such disclosure is required
by law or regulation.
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5.2 Fees.
The
Seller shall reimburse Xxxxxx
Bay Fund LP
(a
Purchaser) or its designee(s) for all reasonable costs and expenses, incurred
in
connection with the transactions contemplated hereby (including all reasonable
legal fees and disbursements in connection therewith, documentation and
implementation of the transactions contemplated hereby and due diligence
in
connection therewith) in an amount not to exceed $25,000, which amount may
be
withheld by such Purchaser from its portion of the Purchase Price at a Closing.
The Seller shall be responsible for the payment of any placement agent's
fees,
financial advisory fees, or broker's commissions (other than a fee equal
to 1.5%
of each Purchaser's portion of the Initial Purchase Price and Additional
Purchase Price payable to Primary Capital LLC contemporaneously with the
applicable Closing when such portion of the Purchase Price is paid and other
than for other Persons engaged by any Purchaser) relating to or arising out
of
the transactions contemplated hereby, including, without limitation, any
fees or
commissions payable to the Agent. The Seller shall pay, and hold each Purchaser
harmless against, any liability, loss or expense (including, without limitation,
reasonable attorney's fees and out-of-pocket expenses) arising in connection
with any claim relating to any such payment.
5.3 Escrow.
Simultaneously,
with the execution of this Agreement, the Seller, the Purchasers and Tri-State
Title & Escrow, LLC, as escrow agent (the "Escrow
Agent"),
shall
execute and deliver an amended and restated escrow agreement, in the form
attached hereto as Exhibit
A
(the
"Escrow
Agreement"),
pursuant to which 10% of the Purchase Price to be paid by the Purchasers
at the
Initial Closing and the Additional Closing shall be delivered to the Escrow
Agent to be held in an account (the "Escrow
Account")
pursuant to the terms of the Escrow Agreement.
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5.4 Best
Efforts.
Each
party shall use its best efforts timely to satisfy each of the covenants
and
conditions to be satisfied by it as provided in Sections 4 and 5 of this
Agreement.
5.5 Registration
Rights Agreement.
Simultaneously,
with the execution of this Agreement, the Seller and the Purchasers shall
enter
into the Amended and Restated Registration Rights Agreement annexed hereto
as
Exhibit B (the "Registration
Rights Agreement").
5.6 Removal
of Legends.
The
Seller shall cause the Company upon receipt of a representation letter from
the
Purchaser that it is not an "affiliate" of the Company for purposes of Rule
144
of the Securities Act, to remove all restrictive securities law legends on
the
Purchased Shares upon request of any Purchaser from and after the six month
anniversary of each Closing Date, and shall cause the Company to take all
steps
necessary to facilitate the resale of the Purchased Shares by the Purchasers
pursuant to Rule 144 under the Securities Act, including issuing all necessary
legal opinions.
ARTICLE
VI
MISCELLANEOUS
PROVISIONS
6.1 Securities
Filings.
The
Seller shall make any filings with the Securities and Exchange Commission
required to be filed by the Seller pursuant to the Securities Exchange Act
of
1934, as amended (the "Exchange
Act")
with
respect sale of the Purchased Shares contemplated hereby within the time
periods
required for such filings under the Exchange Act.
6.2 Governing
Law; Jurisdiction; Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of
the state and federal courts sitting in The City of New York, Borough of
Manhattan for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein,
and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. The Seller hereby appoints Guzov Ofsink,
LLC, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent
for
service of process in New York. Nothing contained herein shall be deemed
to
limit in any way any right to serve process in any manner permitted by law.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
-
10 -
6.3 Headings.
The
headings of this Agreement are for convenience of reference and shall not
form
part of, or affect the interpretation of, this Agreement.
6.4 Severability.
If
any
provision of this Agreement is prohibited by law or otherwise determined
to be
invalid or unenforceable by a court of competent jurisdiction, the provision
that would otherwise be prohibited, invalid or unenforceable shall be deemed
amended to apply to the broadest extent that it would be valid and enforceable,
and the invalidity or unenforceability of such provision shall not affect
the
validity of the remaining provisions of this Agreement so long as this Agreement
as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does
not
substantially impair the respective expectations or reciprocal obligations
of
the parties or the practical realization of the benefits that would otherwise
be
conferred upon the parties. The parties will endeavor in good faith negotiations
to replace the prohibited, invalid or unenforceable provision(s) with a valid
provision(s), the effect of which comes as close as possible to that of the
prohibited, invalid or unenforceable provision(s).
6.5 Entire
Agreement; Amendments.
This
Agreement supersedes all other prior oral or written agreements among the
Purchasers and the Seller, their affiliates and persons acting on their behalf
with respect to the matters discussed herein, and this Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Seller nor the Purchasers
makes any representation, warranty, covenant or undertaking with respect
to such
matters. No provision of this Agreement may be amended other than by an
instrument in writing signed by the Seller and the Purchasers. No provision
hereof may be waived other than by an instrument in writing signed by the
party
against whom enforcement is sought.
6.6 Notices.
Any
notices, consents, waivers or other communications required or permitted
to be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (a) upon receipt, when delivered personally; (b) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending
party);
or (c) one Business Day after deposit with an overnight courier service,
in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
-
11 -
If
to the
Seller:
Wo
Xxxx
Xx
x/x
Xxxxx
Precision Steel, Inc.
0xx
Xxxxx, Xxxx Xxxxxxxx
00
Xxxx
Xxx Xxxxxx
Xxxxxx
Xxx
Hong
Kong, The People's Republic of China
Telephone:
x000-0000-0000
Facsimile:
x000-00000000
with
a
copy to (for information purposes only):
Guzov
Ofsink, LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
If
to the
Purchasers:
Xxxxxx
Bay Fund LP
000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx Xxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Xxxxxx
Bay Overseas Fund LTD
000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxx Xxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
with
a
copy to (for information purposes only):
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
-
12 -
Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated
by
the sender's facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided
by an
overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance
with clause (a) or (c) above, respectively.
6.7 Termination.
In
the
event that any Closing shall not have occurred with respect to a Purchaser
on or
before five (5) Business Days from the date contemplated in Section 1.1(c)
due
to the Seller's or such Purchaser's failure to satisfy the conditions set
forth
in Section 4 above (and the nonbreaching party's failure to waive such
unsatisfied condition(s)), the nonbreaching party shall have the option to
terminate this Agreement with respect to such breaching party at the close
of
business on such date without liability of any party to any other party;
provided,
however,
this if
this Agreement is terminated pursuant to this Section 6.7, the Seller shall
remain obligated to reimburse the non-breaching Purchasers for the expenses
described in Section 5.2 above.
6.8 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns. Neither the Seller nor the Purchasers
shall assign this Agreement or any of their respective rights or obligations
hereunder without the prior written consent of the other party.
6.9 No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may
any
provision hereof be enforced by, any other person.
6.10 Survival.
Unless
this Agreement is terminated by mutual consent of the Seller and the Purchasers,
the representations and warranties of the Seller and the Purchasers contained
in
Articles II and III shall survive each Closing Date and the delivery of the
Purchased Shares.
6.11 Further
Assurances.
Each
party shall use its commercially reasonable efforts to do and perform, or
cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as any other party may reasonably request in order to carry out the intent
and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
-
13 -
6.12 No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen
by the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
[The
remainder of the page is intentionally left blank]
-
14 -
IN
WITNESS WHEREOF,
the
parties hereto have executed this Stock Purchase Agreement as of the date
first
written above.
|
WO
XXXX XX
|
|
|
PURCHASERS:
|
|
|
XXXXXX
BAY FUND, LP
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
XXXXXX
BAY OVERSEAS FUND, LTD.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
ENABLE
GROWTH PARTNERS LP
|
|
|
By:
|
|
|
Name:
|
|
SCHEDULE
OF BUYERS
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
(7)
|
|||||||||||||
|
Buyer
|
Address and
Facsimile Number
|
Number of
Initial
Purchased
Shares
|
Number of
Additional
Purchased
Shares
|
|
Purchaser's
Portion of Initial
Purchase Price
|
Purchaser's
Portion of
Additional
Purchase Price
|
Legal Representative's
Address and Facsimile
Number
|
||||||||||||
|
Xxxxxx Bay Fund, LP
|
000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx Xxxx
May
Xxx
Facsimile:
000-000-0000
Telephone:
000-000-00000
Residence:
United States
E-mail:
investments @xxxxxxxxxxxxxxxx.xxx
|
1,140,000
|
0
|
$
|
4,275,000.00
|
$
|
0
|
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxx, Esq.
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Email:
Xxxxxxx.Xxxxx@xxx.xxx
|
|||||||||||
|
Xxxxxx
Bay Overseas Fund, Ltd.
|
000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx Xxxx
May
Xxx
Facsimile:
000-000-0000
Telephone:
000-000-00000
E-mail:
investments @xxxxxxxxxxxxxxxx.xxx
|
1,860,000
|
851,110
|
$
|
6,975,000.00
|
$
|
5,702,437.00
|
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxx, Esq.
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Email:
Xxxxxxx.Xxxxx@xxx.xxx
|
|||||||||||
|
Enable
Growth Partners LP
|
Xxx
Xxxxx Xxxxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxx Xxxxxxx
Facsimile:
000-000-0000
Telephone
000-000-0000
Email:
xxxxxxxx@xxxxxxxxxxxxx.xxx
|
524,810
|
148,890
|
$
|
1,968,037.50
|
$
|
997,563.00
|
|
|||||||||||
Exhibit
A
