STOCK PURCHASE AGREEMENT
EXHIBIT
10.57
This
Stock Purchase Agreement (this “Agreement”) is entered into as of February 12,
2008, by and among Xxxxxx Xxxxxxxxx and Xxxxx Xxxxxxxxx (“Gunnerman”), and the
entities identified on the signature pages hereto, as buyers (each a “Buyer” and
collectively “Buyers”).
NOW,
THEREFORE, for good and valuable consideration, Gunnerman, Borrower and Buyer
agree as follows:
1. Purchase
and Sale.
Subject
to the terms, conditions and representations in this Agreement, Buyers agree
to
purchase from Gunnerman and Gunnerman agrees to sell to Buyers in the amounts
indicated on the signature pages hereto (each a “Proportionate Amount”),
all
right, title and interest of Gunnerman in and to 2,000,000 shares of $.001
par
value common stock (“Common Stock”) of Sulphco, Inc. (the “Company”) (“Purchased
Stock”) for the purchase price (“Purchase Price”) described below.
2. Consideration
and Payment of Purchase Price.
(a) The
Purchase Price of 750,000 shares of Common Stock shall be $4.00 per share of
Common Stock and be payable on the initial closing date (“Initial Closing
Date”). On or prior to the Initial Closing Date, Gunnerman will deliver all of
the Purchased Stock to Grushko & Xxxxxxx, P.C. as Escrow Agent, which will
be held and released pursuant to the terms of an Escrow Agreement among
Gunnerman, Buyers and the Escrow Agent relating to the Purchased Stock. Seven
hundred and fifty thousand shares of Purchased Stock will be delivered to the
Escrow Agent in the Buyer’s names in their Proportionate Amounts or in
Gunnerman’s name with two medallion signature guaranteed stock powers endorsed
in blank. If such Purchased Stock is delivered in Gunnerman’s name, the Escrow
Agent is instructed to arrange for the Company’s transfer agent to reissue the
Purchased Stock in each Buyer’s Proportionate Amounts. On or prior to the
Initial Closing Date, each Buyer will deliver its Proportionate Amount of
$3,000,000 to the Escrow Agent. On the Initial Closing Date, the Escrow Agent
will release up to $3,000,000 to Gunnerman and up to 750,000 shares of Purchased
Stock to the Buyers registered in each Buyer’s name, pursuant to the terms of
the Escrow Agreement. The date such funds and shares are actually released
is
the Initial Closing Date.
(b) The
Purchase Price of 1,250,000 shares of Purchased Stock shall be determined as
follows: one-thirtieth (1/30th)
of
1,250,000 shares of Purchased Stock shall be valued each trading day for the
thirty consecutive trading days commencing on the fiftieth trading after the
Initial Closing Date (“Pricing Period”) at ninety percent (90%) of the daily
volume weighted average price as reported by Bloomberg LP for the principal
trading market for the Common Stock (“VWAP”), but not less than $2.75 nor more
than $5.50 per share of Purchased Stock. Not later than five trading days after
the thirtieth trading day of the Pricing Period (the actual date such notice
is
given being the “Payment Notice Date”), Grushko & Xxxxxxx, P.C. (the “Escrow
Agent”) will notify Gunnerman and Buyers of the Purchase Price of the Purchased
Stock priced during the Pricing Period. Not later than five trading days after
the Payment Notice Date, each Buyer shall deliver to Grushko & Xxxxxxx,
P.C., pursuant to the Escrow Agreement, its Proportionate Amount of the
aggregate Purchase Price for the 1,250,000 shares of Purchased Stock to be
priced during the Pricing Period. Thereafter, such Purchased Stock to be
purchased by each Buyer will be released to each Buyer and the Purchase Price
for such 1,250,000 shares of Purchased Stock will be released to Gunnerman
pursuant to the Escrow Agreement. The date of such mutual release is the Second
Closing Date.
3. Delivery
of Purchased Stock by Gunnerman.
Not
later than five days after the date of this Agreement, Gunnerman shall deliver
the Purchased Stock referred to in Section 2(b) above, to the Escrow Agent
issued in the names of the Buyers. Gunnerman will deliver two share certificates
for each Buyer, with each such certificate representing one-half of the
Proportionate Amount of each such Buyer’s Purchased Stock. In the alternative,
Gunnerman will deliver one or more share certificates to the Escrow Agent
representing 1,250,000 shares of Purchased Stock together with medallion
signature guaranteed stock powers endorsed in blank. The Escrow Agent is
instructed, prior to such release and prior to the Second Closing Date, to
cause
the Company’s transfer agent to reissue such certificates in the names of the
Buyers in their respective Proportionate Amounts.
4. Purchase
and Sale.
(a) Effective
upon the date of this Agreement (“Closing Date”), and subject to and conditioned
upon the terms, covenants, limitations, and conditions contained herein,
Gunnerman hereby sells, transfers, and assigns to Buyer, and Buyer hereby
purchases and accepts from Gunnerman, in each case on and as of the Closing
Date, all of Gunnerman’s right, title and interest, in, to, and under each such
Buyer’s Proportionate Share of the Purchased Stock.
(b) If
Gunnerman receives any dividend or other payments from
the
Company with
respect to the Purchased Stock after the Closing Date, Gunnerman will forward
to
each Buyer, such Buyer’s Allocated Portion of such dividends or other payments.
5. Election
Not to Purchase.
In the
event the VWAP for any of the last five trading days of the Pricing Period
is
less than $7.00 per share of Common Stock or the trading volume reported by
Bloomberg LP for the principal trading market for the Common Stock is less
than
1,000,000 shares for any such trading day, then each Buyer for himself by
written notice to Gunnerman and the Escrow Agent not later than the Payment
Notice Date may elect to not purchase the portion of the Purchased Stock to
be
priced during the Pricing Period.
6. Buyer’s
Obligations.
In
connection with the sale and transfer of the Purchased Stock, each Buyer shall
deliver to Escrow Agent and Gunnerman such Buyer’s Proportionate Amount of the
Purchase Price and an executed copy of this Agreement.
7. Representations
and Warranties and Covenants of Gunnerman.
Each of
Xxxxxx and Xxxxx Xxxxxxxxx hereby represents and warrants and covenants to
Buyer
as follows:
(a) Gunnerman
is an individual, who is a U.S. citizen.
(b) Gunnerman
has the full power and authority to execute, deliver and perform this Agreement
and to enter into and consummate the transactions contemplated by and described
in this Agreement. Gunnerman has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered this Agreement
and this Agreement constitutes a legal, valid and binding obligation of
Gunnerman, enforceable against Gunnerman in accordance with its
terms.
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(c) As
of the
date of issuance of the Purchased Stock to Gunnerman, the Purchased Stock was
validly issued, fully paid and nonassessable.
(d) Gunnerman
is the legal and beneficial owner and holder of the Purchased Stock and
Gunnerman has not pledged, assigned or otherwise previously transferred the
Purchased Stock. The Purchased Stock is free and clear of any liens,
encumbrances, etc. whatsoever.
(e) Gunnerman
has not entered into any agreement or arrangement which would affect their
ability to sell the Purchased Stock hereunder.
(f) The
Gunnermans were provided with the opportunity to present this Agreement and
related documentation to an attorney for review and have determined upon their
own free will to not avail themselvesf of such right. They understand that
the
transaction contemplated by this Agreement is a sophisticated business and
financial transaction, and they have the acumen and experience to review this
Agreement and related documentation and to enter into the transactions set
forth
in the Agreement without the aid of counsel. They acknowledge that they have
not
relied upon the advice, judgment or counsel of attorneys for either the Borrower
or Buyer and they waive any claims the ymay have against such counsel arising
out of this transaction.
(g) Gunnerman
is responsible for making any filings required to be made by him with all
regulatory bodies arising from the transactions contemplated
hereby.
(h) No
broker, finder or investment banker is entitled to any brokerage, finder's
or
other fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of Gunnerman.
8. Representations
and Warranties of Buyer.
Each
Buyer for itself only, hereby represents and warrants to Gunnerman:
(a) Buyer
has
all requisite power and authority to execute, deliver and perform this Agreement
and to enter into and consummate the transactions contemplated by this
Agreement. The officer or officers of Buyer who shall execute and deliver this
Agreement have been duly authorized to do so by all requisite action on the
part
of Buyer.
Buyer
has duly authorized the execution, delivery and performance of this Agreement,
has duly executed and delivered this Agreement and this Agreement constitutes
a
legal, valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms.
(b) Buyer
has
made such examination, review and investigation of the Purchased Stock and
the
Company, and of any and all facts and circumstances necessary to evaluate the
Purchased Stock it has deemed necessary or appropriate. Except for the
representations and warranties specifically and expressly made by Gunnerman
above (a) Buyer has been and will continue to be solely responsible for Buyer’s
own independent investigations as to all aspects of the contemplated
transactions; and (b) Buyer has not relied upon any expressed or implied,
written or oral, representation, warranty or other statement by or on behalf
of
Gunnerman concerning the Purchased Stock and the Company, except for such
representations and warranties of Gunnerman as are specifically and expressly
provided in this Agreement.
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(c) Buyer
is
acquiring the Purchased Stock without any view either to participate in (other
than as described in this Agreement), or to sell the Purchased Stock in
connection with any public distribution thereof, and Buyer has no intention
of
making any distribution of the Purchased Stock in a manner which would violate
applicable securities laws; provided, however, that nothing in this Agreement
shall restrict or limit in any way Buyer’s ability and right to dispose of all
or part of the Purchased Stock in accordance with such laws if at some future
time Buyer deems it advisable to do so.
9. Excluded
Information.
Each of
Gunnerman and the Buyers may have come into possession of non-public information
related to the Company that may not be known to the other, and will not be
disclosed to the other, which information, may be material to the Company and/or
the value of the Purchased Stock (collectively “Excluded Information”). The
foregoing notwithstanding, each party hereto has decided to proceed with the
transactions described herein and all other agreements among the parties. Each
party shall have no liability to the other or its affiliates and each party,
on
behalf of itself and its affiliates, waives any and all claims it might have
against the other or any of its officers, directors, agents, affiliates,
partners, managers or members, whether under applicable securities laws or
otherwise, with respect to the non-disclosure of the Excluded Information.
Each
party has not requested and does not want to receive any of the Excluded
Information.
10. Taxes.
Each
party shall be responsible for the payment of all taxes and charges, including
sales and transfer taxes and recording taxes, resulting from or payable in
connection with the Agreement for which each party is liable as a matter of
law.
No party shall have the obligation to pay taxes due by another
party.
11. Further
Assurances.
Effective upon the date of this Agreement, Gunnerman, Borrower and each Buyer
each hereby covenant and agree to execute and deliver all such documents and
instruments, and to take such further actions as may be reasonably necessary
or
appropriate, from time to time, to carry out the intent and purpose of this
Agreement and to consummate the transactions contemplated hereby.
12. Miscellaneous.
(a) Notices.
All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted
to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery
by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
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If
to Gunnerman:
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Xxxxxx
Xxxxxxxxx and Xxxxx Xxxxxxxxx
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0000
Xxxxx Xxxx Xxx
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Xxxx,
XX 00000
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Fax:
(000) 000-0000
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Notice
to
either Xxxxxx Xxxxxxxxx or Xxxxx Xxxxxxxxx shall be deemed notice to both of
Xxxxxx Xxxxxxxxx and Xxxxx Xxxxxxxxx.
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To
the one or more addresses and telecopier
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|
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numbers
indicated on Schedule A hereto
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With
a copy to:
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Grushko
& Xxxxxxx, P.C.
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000
Xxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, XX 00000
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Attn:
Xxxxxxx Xxxx, Esq.
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Fax:
(000) 000-0000
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(b)
No
Waiver.
No
delay or omission by either party hereto in exercising any right or power
arising from any default by the other party hereto shall be construed as a
waiver of such default or as an acquiescence therein, nor shall any single
or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right or power arising from any default by the other party hereto.
No waiver of any breach of any of the covenants or conditions contained in
this
Agreement shall be construed to be a waiver of or an acquiescence in or a
consent to any previous or subsequent breach of the same or of any other
condition or covenant.
(c) No
Third Party Beneficiary.
This
Agreement is made for the sole benefit of Gunnerman and Buyers and their
respective successors and permitted assigns, and no other person or persons
shall have any rights or remedies under or by reason of this Agreement or any
right to the exercise of any right or power of either party hereto or arising
from any default by either party hereto.
(d) Attorney
Fees and Costs.
In the
event any legal action is undertaken in order to enforce or interpret any
provision of this Agreement, the prevailing party in such legal action, as
determined by the court, shall be entitled to receive from the other party
the
prevailing party’s reasonable attorneys’ fees and court costs.
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(e) No
Agreement to Third Party.
This
Agreement shall not be assigned by either party without the written consent
of
the other parties, which consent may be withheld in such other party’s sole
discretion.
(f) Integration;
Entire Agreement.
This
Agreement and any documents executed in connection herewith or pursuant hereto
constitute the entire understanding between the parties hereto with respect
to
the subject matter hereof, superseding all prior written or oral understandings,
and may not be terminated, modified or amended in any way except by a written
agreement signed by each of the parties hereto.
(g) Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute but one and the
same document. This
Agreement may be executed by facsimile signature and delivered by facsimile
transmission.
(h) Legal
Effect.
If any
provision of this Agreement conflicts with applicable law, such provision shall
be deemed severed from this Agreement, and the balance of this Agreement shall
remain in full force and effect.
(i) Choice
of Law and Venue; Jury Trial Waiver.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York, without regard to principles of conflicts of
law.
GUNNERMAN,
BORROWER AND BUYER WAIVE
ANY
RIGHT
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN, INCLUDING CLAIMS BASED
ON
CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER COMMON LAW OR STATUTORY BASES.
Each
party hereby
submits
to the exclusive jurisdiction of the state and federal courts located in the
County of New York, State of New York.
(j) Gunnerman,
Borrower and Buyer shall each bear their own expenses, including legal fees,
incident to the negotiation and preparation of this Agreement and the
consummation of the transaction contemplated thereby.
[Balance
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF the undersigned have executed this Stock Purchase Agreement
as
of the date above written.
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XXXXXX
XXXXXXXXX
____________________________________________
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XXXXX
XXXXXXXXX
____________________________________________
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[Signature
Page to Stock Purchase Agreement, etc.]
[Signatures
of Buyers Continued Next Page]
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[BUYER
SIGNATURE PAGES TO STOCK PURCHASE AGREEMENT]
IN
WITNESS WHEREOF the undersigned have executed this Agreement as of the first
date above written.
Name
of
Buyer: Iroquois
Master Fund Ltd.
Signature
of Authorized Signatory of Buyer:
__________________________________________
Name
of
Authorized Signatory:
____________________________________________________
Title
of
Authorized Signatory:
_____________________________________________________
Fax
Number of Buyer: 000-000-0000
Address
for Notice to Buyer:
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
With
a
copy to (which shall not constitute notice):
Grushko
& Xxxxxxx, P.C.
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxx Xxxx, Esq.
Fax:
(000) 000-0000
Email:
xxxxxxxxx@xxx.xxx
Address
for Delivery of Securities for Buyer (if not same as above):
Proportionate
Amount: Two-Thirds
[BUYER
SIGNATURE PAGES TO STOCK PURCHASE AGREEMENT]
8
[BUYER
SIGNATURE PAGES TO STOCK PURCHASE AGREEMENT]
IN
WITNESS WHEREOF the undersigned have executed this Agreement as of the first
date above written.
Name
of
Buyer: Xxxxx
Capital LLC
Signature
of Authorized Signatory of Buyer:
__________________________________________
Name
of
Authorized Signatory:
____________________________________________________
Title
of
Authorized Signatory:
_____________________________________________________
Fax
Number of Buyer: 000-000-0000
Address
for Notice to Buyer:
00
Xxxx Xxxxxxx Xxxxxxx
Xxxxxx
Xxxxxx, Xxx Xxxx 00000
With
a
copy to (which shall not constitute notice):
Grushko
& Xxxxxxx, P.C.
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxx Xxxx, Esq.
Fax:
(000) 000-0000
Email:
xxxxxxxxx@xxx.xxx
Address
for Delivery of Securities for Buyer (if not same as above):
Proportionate
Amount: One-Third
[BUYER
SIGNATURE PAGES TO STOCK PURCHASE AGREEMENT]
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