Exhibit 10.46
NOTE PURCHASE AGREEMENT
BETWEEN
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.
AND
CERTAIN INVESTORS
(AS LISTED ON SCHEDULE A)
DATED
DECEMBER 30th, 2005
NOTE PURCHASE AGREEMENT
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This NOTE PURCHASE AGREEMENT (the "AGREEMENT") is made and entered into as
of 30th day of December, 2005 by and among ENTECH ENVIRONMENTAL TECHNOLOGIES,
INC. Inc., a corporation organized and existing under the laws of the State of
Florida ("ENTECH ENVIRONMENTAL TECHNOLOGIES, INC." or the "COMPANY"), and
certain investors, (hereinafter referred to collectively as "INVESTOR" or
"INVESTORS") as listed on Schedule A herein (each agreement with an Investor
being deemed a separate and independent agreement between the Company and such
Investor).
PRELIMINARY STATEMENT:
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WHEREAS, the Investors wish to advance to the Company, upon the terms and
subject to the conditions of this Agreement, One Hundred Thousand Dollars
($100,000) pursuant to a secured note (the "NOTE"). The Note shall be
convertible into shares of common stock in the Company at two and one half cents
($0.025) per share (the "CONVERSION PRICE"). In addition, the Company will issue
Common Stock Purchase Warrants to purchase forty (40) shares of common stock for
every dollar ($1.00) of principal of the Note, at an exercise price of five
cents ($0.05) per share. (The Note and corresponding forty (40) stock purchase
warrants are referred to herein as a "Unit"). The Note shall have a term of two
(2) years bearing interest at a rate of eight percent (8%) per annum. The Note
shall have first lien and security interest on all assets of the Company and its
subsidiaries subordinated only to any previous such lien and security interest
that Lender has from Company based on any prior separate financing. The Company
shall have no right to prepay the Note. Investor may convert the Note at any
time.
WHEREAS, the parties intend to memorialize the purchase and sale of such
Units;
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
INCORPORATION BY REFERENCE, SUPERSEDER AND DEFINITIONS
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1.1 INCORPORATION BY REFERENCE. The foregoing recitals, SCHEDULE A and the
Exhibits attached hereto and referred to herein, are hereby acknowledged to be
true and accurate, and are incorporated herein by this reference.
NOTE PURCHASE AGREEMENT BETWEEN
ENTECH ENVIRONMENTAL TECHNOLOGIES,INC.,INC. AND CERTAIN INVESTORS
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1.2 SUPERSEDER. This Agreement, to the extent that it is inconsistent with any
other instrument or understanding among the parties governing the affairs of the
Company, shall supersede such instrument or understanding to the fullest extent
permitted by law. A copy of this Agreement shall be filed at the Company's
principal office.
1.3 CERTAIN DEFINITIONS. For purposes of this Agreement, the following
capitalized terms shall have the following meanings (all capitalized terms used
in this Agreement that are not defined in this Article 1 shall have the meanings
set forth elsewhere in this Agreement):
1.3.1 "1933 ACT" means the Securities Act of 1933, as amended.
1.3.2 "1934 ACT" means the Securities Exchange Act of 1934, as amended.
1.3.3 "AFFILIATE" means a Person or Persons directly or indirectly, through
one or more intermediaries, controlling, controlled by or under common control
with the Person(s) in question. The term "control," as used in the immediately
preceding sentence, means, with respect to a Person that is a corporation, the
right to the exercise, directly or indirectly, of more than 50 percent of the
voting rights attributable to the shares of such controlled corporation and,
with respect to a Person that is not a corporation, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such controlled Person.
1.3.4 "ARTICLES". The Articles of Organization of the Company, as the same
may be amended from time to time.
1.3.5 "CLOSING DATE" means the initial advance under the Note which shall
occur on December 30, 2005 .
1.3.6 "COMMON STOCK" means the shares of common stock of ENTECH
ENVIRONMENTAL TECHNOLOGIES, INC par value $0.001 per share
1.3.7 "EFFECTIVE DATE" shall mean the date the Registration Statement of
the Company covering the Shares being subscribed for hereby is declared
effective.
1.3.8 "MATERIAL ADVERSE EFFECT" shall mean any adverse effect on the
business, operations, properties or financial condition of the Company that is
material and adverse to the Company and its subsidiaries and affiliates, taken
as a whole and/or any condition, circumstance, or situation that would prohibit
or otherwise materially interfere with the ability of the Company to perform any
of its material obligations under this Agreement or the Registration Rights
Agreement or to perform its obligations under any other material agreement.
(1) 1.3.9 "FLORIDA ACT" means the Florida revised Statutes, as amended.
1.3.10 "PERSON" means an individual, partnership, firm, limited liability
company, trust, joint venture, association, corporation, or any other legal
entity.
NOTE PURCHASE AGREEMENT BETWEEN
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1.3.11 "PURCHASE PRICE" means the advances made for the Units.
1.3.12 REGISTRATION RIGHTS AGREEMENT" shall mean the registration rights
agreement between the Investors and the Company attached hereto as Exhibit B.
1.3.13 "REGISTRATION STATEMENT" shall mean the registration statement under
the 1933 Act to be filed with the Securities and Exchange Commission for the
registration of the Shares pursuant to the Registration Rights Agreement
attached hereto as Exhibit B.
1.3.14 "SEC" means the Securities and Exchange Commission.
1.3.15 "SEC DOCUMENTS" shall mean the Company's latest Form 10-K or 10-KSB
as of the time in question, all Forms 10-Q or 10-QSB and 8-K filed thereafter,
and the Proxy Statement for its latest fiscal year as of the time in question
until such time as the Company no longer has an obligation to maintain the
effectiveness of a Registration Statement as set forth in the Registration
Rights Agreement.
1.3.16 "SHARES" shall mean, collectively, the shares of Common Stock of the
Company issued upon conversion of the Note subscribed for hereunder and those
shares of Common Stock issuable to the Investor upon exercise of the Warrants.
1.3.17 "UNITS" shall mean the Note and the Warrants collectively.
1.3.18 "WARRANTS" shall mean the Common Stock Purchase Warrants in the form
attached hereto Exhibit C.
1.3.19 "INSIDERS" shall mean officers and directors of the Company.
ARTICLE II
SALE AND PURCHASE OF ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.
UNITS AND PURCHASE PRICE
2.1 SALE OF ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. UNITS Upon the terms and
subject to the conditions set forth herein, and in accordance with applicable
law, the Company agrees to sell, and the Investors, severally and not jointly,
agree to purchase the following Units with a principal amount of One Hundred
Thousand Dollars ($100,000) in accordance with the commitments set forth on
SCHEDULE A attached hereto, at the Purchase Price on the Closing Date, each Unit
consisting of:
NOTE PURCHASE AGREEMENT BETWEEN
ENTECH ENVIRONMENTAL TECHNOLOGIES,INC.,INC. AND CERTAIN INVESTORS
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2.1.1 NOTE Upon execution and delivery of this Agreement and the Company's
receipt of the Purchase Price (as described herein), each Investor shall receive
Notes of the Company. The Company shall register the shares of Common Stock
underlying conversion of the Notes pursuant to the terms and conditions of a
Registration Rights Agreement attached hereto as Exhibit B. The Registration
Rights Agreement shall include, but not be limited to, such terms and conditions
as the immediate registration of the shares of Common Stock underlying
conversion of the Note sold hereunder, one demand right if all the shares of
Common Stock underlying conversion of the Note sold hereunder are not registered
or the Registration Statement is subsequently not effective, unlimited "piggy
back" registration rights, and liquidated damages to the Investor of thirty six
percent (36%) of the Purchase Price per annum payable on a monthly basis if the
shares of Common Stock underlying conversion of the Note are not registered
pursuant to an effective Registration Statement within four months of the
Closing Date or if the shares of Common Stock underlying conversion of the Note
are registered pursuant to an effective Registration Statement and such
Registration Statement or other Registration Statement including the shares of
Common Stock underlying conversion of the Note is not effective in the period
from six months following the Closing Date through two years following the
Closing Date, except that the obligation of the Company terminates when the
holder of shares of Common Stock underlying conversion of the Note no longer
holds more than twenty percent (20%) of their shares of Common Stock underlying
conversion of the Note as acquired herein.
2.1.1.1 MAXIMUM EXERCISE The Holder shall not be entitled to
convert a Note on a conversion date to acquire a number of shares of
Common Stock that would be in excess of the sum of (i) the number of
shares of Common Stock beneficially owned by the Holder and its
affiliates on an exercise date, and (ii) the number of shares of
Common Stock issuable upon the conversion of the Note with respect to
which the determination of this limitation is being made on a
conversion date, which would result in beneficial ownership by the
Holder and its affiliates of more than 4.9% of the outstanding shares
of Common Stock on such date. For the purposes of the immediately
preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934,
as amended, and Regulation 13d-3 thereunder. Subject to the foregoing,
the Holder shall not be limited to aggregate conversions which would
result in the issuance of more than 4.9%.
2.1.2 WARRANTS Upon execution and delivery of this Agreement and the Company's
receipt of the Purchase Price (as described herein), each Investor shall receive
Warrants to purchase forty (40) shares of common stock for every one dollar
($1.00) of Notes purchased. The Warrant, a form of which is attached hereto as
EXHIBIT C shall include, but not be limited to, such terms and conditions as a
exercise price of $0.05 per share (as adjusted from time to time as provided in
the Warrant), an expiration date of five (5) years from the date of issuance or
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eighteen months of effectiveness of a Registration Statement, whichever is
longer, with a cashless exercise provision.
2.1.2.1 MAXIMUM EXERCISE The Holder shall not be entitled to
exercise this Warrant on an exercise date in connection with that
number of shares of Common Stock which would be in excess of the sum
of (i) the number of shares of Common Stock beneficially owned by the
Holder and its affiliates on an exercise date, and (ii) the number of
shares of Common Stock issuable upon the exercise of this Warrant with
respect to which the determination of this limitation is being made on
an exercise date, which would result in beneficial ownership by the
Holder and its affiliates of more than 4.9% of the outstanding shares
of Common Stock on such date. For the purposes of the immediately
preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934,
as amended, and Regulation 13d-3 thereunder. Subject to the foregoing,
the Holder shall not be limited to aggregate exercises which would
result in the issuance of more than 4.9%.
2.2 PURCHASE PRICE. The purchase price to be paid by each Investor on the
Closing Date shall be as defined section 1.3.5, as the case may be, in
accordance with on SCHEDULE A attached hereto, and shall be payable in United
States Dollars. Payment to the Company of the Purchase Price shall be made at
the Closing Date by wire transfer of funds to the account specified by the
Company and provided to the Investor.
Payment by check shall be as follows:
Entech Environmental Technologies, Inc.
0000 Xxxxx Xxxxxx, Xxxxx X000
Xxxxx Xxxxx, XX 00000
Tel: 000-000-0000
Payment by wire shall be as follows:
To the bank coordinates as provided by the Company.
ARTICLE III
CLOSING DATE AND DELIVERIES AT CLOSING
3.1 CLOSING DATE The closing of the transactions contemplated by this Agreement
(the "CLOSING"), unless expressly determined herein, shall be held at the
offices of the Company, at at 5:00 P.M. local time, on the Closing Date or on
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such other date and at such other place as may be mutually agreed by the
parties, including closing by facsimile with originals to follow.
3.2 DELIVERIES BY THE COMPANY. In addition to and without limiting any other
provision of this Agreement, the Company agrees to deliver, or cause to be
delivered, to the Investors, the following:
(a) Within five (5) business days after Closing, ENTECH ENVIRONMENTAL
TECHNOLOGIES, INC. will issue a Note duly endorsed to Investor;
(b) At or prior to Closing, an executed Agreement;
(c) At or prior to Closing, an executed Warrant in the name of the
Investor in the form attached hereto as EXHIBIT C; (d) At or
prior to Closing, an executed Registration Rights Agreement
between the Investor and the Company in the form attached hereto
as EXHIBIT B;
(e) At or prior to Closing, confirmation that the provisions of
Paragraphs 6.6, 6.7, and 6.8 herein have been satisfied or
commenced, as appropriate;
(f) Such other documents or certificates as shall be reasonably
requested by the each Investor or its counsel.
3.3 DELIVERIES BY INVESTOR. In addition to and without limiting any other
provision of this Agreement, each Investor agrees to deliver, or cause to be
delivered, to the Company, as appropriate, the following:
(a) At or prior to Closing, the Purchase Price; (b) At or prior to
Closing, an executed Agreement;
(c) At or prior to Closing, an executed Registration Rights Agreement
between the Investor and the Company in the form attached hereto
as EXHIBIT B; and
(d) Such other documents or certificates as shall be reasonably
requested by the Company or his counsel.
In the event any document provided to the other party in Paragraphs 3.2 and 3.2
herein are provided by facsimile, the party shall forward an original document
to the other party within seven (7) business days.
3.4 FURTHER ASSURANCES. The Company and each Investor shall, upon request, on
or after the Closing Date, cooperate with each other (specifically, the
Company shall cooperate with each Investor, and each Investor shall
cooperate with the Company, and no Investor is required to cooperate with
any other Investor) by furnishing any additional information, executing and
delivering any additional documents and/or other instruments and doing any
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and all such things as may be reasonably required by the parties or their
counsel to consummate or otherwise implement the transactions contemplated
by this Agreement.
3.5 THE INVESTORS HOLDING A MAJORITY OF DOLLAR AMOUNT INVESTED MAY WAIVE ANY OF
THE COMPANY'S CONDITIONS OF CLOSING.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. represents and warrants to the
Investors (which warranties and representations shall survive the Closing
regardless of what examinations, inspections, audits and other investigations
the Purchaser has heretofore made or may hereinafter make with respect to such
warranties and representations) as follows:
4.1 ORGANIZATION AND QUALIFICATION. ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida, and has the requisite corporate power and authority to
own, lease and operate its properties and to carry on its business as it is now
being conducted and is duly qualified to do business in any other jurisdiction
by virtue of the nature of the businesses conducted by it or the ownership or
leasing of its properties, except where the failure to be so qualified will not,
when taken together with all other such failures, have a Material Adverse Effect
on the business, operations, properties, assets, financial condition or results
of operation of ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. and its subsidiaries
taken as a whole.
4.2 ARTICLES OF INCORPORATION AND BY-LAWS. The complete and correct copies of
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.'s Articles of Incorporation and By-Laws,
as amended or restated to date which have been filed with the Securities and
Exchange Commission are a complete and correct copy of such document as in
effect on the date hereof and as of the Closing Date.
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4.3 CAPITALIZATION.
4.3.1 The authorized and outstanding capital stock of ENTECH ENVIRONMENTAL
TECHNOLOGIES, INC. is set forth in ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.'s
Annual Report on Form 10-KSB, filed with the Securities and Exchange Commission
and updated on all subsequent SEC Documents. All shares of capital stock have
been duly authorized and are validly issued, and are fully paid and
non-assessable, and free of preemptive rights.
4.3.2 Except pursuant to this Agreement, and as set forth in ENTECH
ENVIRONMENTAL TECHNOLOGIES, INC.'s most recent Annual Report on Form 10-KSB,
filed with the SEC, as of the date hereof and as of the Closing Date, there are
not now outstanding options, warrants, rights to subscribe for, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of any class of capital stock of
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC., or agreements, understandings or
arrangements to which ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. is a party, or by
which ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. is or may be bound, to issue
additional shares of its capital stock or options, warrants, scrip or rights to
subscribe for, calls or commitment of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, any shares of any
class of its capital stock except with Investor. The Company agrees to inform
the Investors in writing of any additional warrants granted prior to the Closing
Date.
4.3.3 The Company on the Closing Date (i) will have full right, power, and
authority to sell, assign, transfer, and deliver, by reason of record and
beneficial ownership, to each Investor, ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.
Shares hereunder, free and clear of all liens, charges, claims, options,
pledges, restrictions, and encumbrances whatsoever; and (ii) upon delivery of
and payment by each Investor of the Purchase Price to the Company, such Investor
will acquire good and marketable title to such Company Stock, free and clear of
all liens, charges, claims, options, pledges, restrictions, and encumbrances
whatsoever.
4.4 AUTHORITY. ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. has all requisite
corporate power and authority to execute and deliver this Agreement, the Notes,
Security Agreement and UCC Financing Statements, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement by ENTECH
ENVIRONMENTAL TECHNOLOGIES, INC. and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
and no other corporate proceedings on the part of ENTECH ENVIRONMENTAL
TECHNOLOGIES, INC. is necessary to authorize this Agreement or to consummate the
transactions contemplated hereby except as disclosed in this Agreement. This
Agreement has been duly executed and delivered by ENTECH ENVIRONMENTAL
STOCK PURCHASE AGREEMENT BETWEEN
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TECHNOLOGIES, INC. and constitutes the legal, valid and binding obligation of
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC., enforceable against ENTECH
ENVIRONMENTAL TECHNOLOGIES, INC. in accordance with its terms.
4.5 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. The execution and delivery of
this Agreement by ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. does not, and the
performance by ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. of their respective
obligations hereunder will not: (i) conflict with or violate the Articles or
By-Laws of ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.; (ii) conflict with, breach
or violate any federal, state, foreign or local law, statute, ordinance, rule,
regulation, order, judgment or decree (collectively, "LAWS") in effect as of the
date of this Agreement and applicable to ENTECH ENVIRONMENTAL TECHNOLOGIES,
INC.; or (iii) result in any breach of, constitute a default (or an event that
with notice or lapse of time or both would become a default) under, give to any
other entity any right of termination, amendment, acceleration or cancellation
of, require payment under, or result in the creation of a lien or encumbrance on
any of the properties or assets of ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which ENTECH
ENVIRONMENTAL TECHNOLOGIES, INC. is a party or by ENTECH ENVIRONMENTAL
TECHNOLOGIES, INC. or any of its properties or assets is bound. Excluding from
the foregoing are such violations, conflicts, breaches, defaults, terminations,
accelerations, creations of liens, or incumbency that would not, in the
aggregate, have a Material Adverse Effect.
4.6 REPORT AND FINANCIAL STATEMENTS. ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.'s
Annual Report on Form 10-KSB, filed with the Securities and Exchange Commission
contains the audited financial statements of ENTECH ENVIRONMENTAL TECHNOLOGIES,
INC. (the "FINANCIAL STATEMENTS"). Each of the balance sheets contained in or
incorporated by reference into any such Financial Statements (including the
related notes and schedules thereto) fairly presented the financial position of
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. as of its date, and each of the
statements of income and changes in stockholders' equity and cash flows or
equivalent statements in such Financial Statements (including any related notes
and schedules thereto) fairly presents and will fairly present the results of
operations, changes in stockholders' equity and changes in cash flows, as the
case may be, of ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. for the periods to which
they relate, in each case in accordance with United States generally accepted
accounting principles ("U.S. GAAP") consistently applied during the periods
involved, except in each case as may be noted therein, subject to normal
year-end audit adjustments in the case of unaudited statements. The books and
records of ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. have been, and are being,
maintained in all material respects in accordance with U.S. GAAP and any other
applicable legal and accounting requirements and reflect only actual
transaction.
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4.7 COMPLIANCE WITH APPLICABLE LAWS. ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. is
not in violation of, or, to the knowledge of ENTECH ENVIRONMENTAL TECHNOLOGIES,
INC. is under investigation with respect to or has been given notice or has been
charged with the violation of any Law of a governmental agency, except for
violations which individually or in the aggregate do not have a Material Adverse
Effect.
4.8 BROKERS. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or Commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.
4.9 SEC DOCUMENTS. ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. acknowledges that
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. is a publicly held company and has made
available to the Investors after demand true and complete copies of any
requested SEC Documents. The Company has registered its Common Stock pursuant to
Section 12 of the 1934 Act, and the Common Stock is listed and traded on the OTC
Bulletin Board Market of the National Association of Securities Dealers, Inc.
The Company has received no notice, either oral or written, with respect to the
continued eligibility of the Common Stock for such listing, and the Company has
maintained all requirements for the continuation of such listing. The Company
has not provided to the Investors any information that, according to applicable
law, rule or regulation, should have been disclosed publicly prior to the date
hereof by the Company, but which has not been so disclosed. As of their
respective dates, the SEC Documents complied in all material respects with the
requirements of the 1934 Act, and rules and regulations of the SEC promulgated
thereunder and the SEC Documents did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading that the Investor has received from
the Company reports with the Securities and Exchange Commission and with the
NASD.
4.10 LITIGATION. To the knowledge of ENTECH ENVIRONMENTAL TECHNOLOGIES, INC., no
litigation, claim, or other proceeding before any court or governmental agency
is pending or threatened against ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. that
materially effects this Agreement.
4.11 EXEMPTION FROM REGISTRATION. Subject to the accuracy of the Investors'
representations in Article V, except as required pursuant to the Registration
Rights Agreement, the sale of the Units will not require registration under the
1933 Act and/or any applicable state securities law. When validly converted in
accordance with the terms of the Note, and Warrants, as exercised in accordance
with their terms, the Shares underlying the Note and the Warrants will be duly
and validly issued, fully paid, and non-assessable. The Company is issuing the
Units in accordance with and in reliance upon the exemption from securities
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registration afforded, inter alia, by Rule 506 under Regulation D as promulgated
by the SEC under the 1933, and/or Section 4(2) of the 1933 Act.
4.12 NO GENERAL SOLICITATION OR ADVERTISING IN REGARD TO THIS TRANSACTION.
Neither the Company nor any of its Affiliates nor, to the knowledge of the
Company, any Person acting on its or their behalf (i) has conducted or will
conduct any general solicitation (as that term is used in Rule 502(c) of
Regulation D as promulgated by the SEC under the 0000 Xxx) or general
advertising with respect to the sale of the Units, or (ii) made any offers or
sales of any security or solicited any offers to buy any security under any
circumstances that would require registration of the Units, under the 1933 Act,
except as required herein.
4.13 NO MATERIAL ADVERSE CHANGE. Since the date herein, no Material Adverse
Effect has occurred or exists with respect to the Company that has not been
disclosed in the SEC Documents. No material supplier has given notice, oral or
written, that it intends to cease or reduce the volume of its business with the
Company from historical levels. Since the date herein, no event or circumstance
has occurred or exists with respect to the Company or its businesses,
properties, prospects, operations or financial condition, that, under any
applicable law, rule or regulation, requires public disclosure or announcement
prior to the date hereof by the Company but which has not been so publicly
announced or disclosed in writing to the Investors.
4.14 MATERIAL NON-PUBLIC INFORMATION. The Company has not disclosed to the
Investors any material non-public information that (i) if disclosed, would
reasonably be expected to have a material effect on the price of the Common
Stock or (ii) according to applicable law, rule or regulation, should have been
disclosed publicly by the Company prior to the date hereof but which has not
been so disclosed.
4.15 INTERNAL CONTROLS AND PROCEDURES. The Company maintains books and records
and internal accounting controls which provide reasonable assurance that (i) all
transactions to which the Company or any subsidiary is a party or by which its
properties are bound are executed with management's authorization; (ii) the
recorded accounting of the Company's consolidated assets is compared with
existing assets at regular intervals; (iii) access to the Company's consolidated
assets is permitted only in accordance with management's authorization; and (iv)
all transactions to which the Company or any subsidiary is a party or by which
its properties are bound are recorded as necessary to permit preparation of the
financial statements of the Company in accordance with U.S. generally accepted
accounting principles.
4.16 FULL DISCLOSURE. No representation or warranty made by ENTECH ENVIRONMENTAL
TECHNOLOGIES, INC. in this Agreement and no certificate or document furnished or
to be furnished to the Purchaser pursuant to this Agreement contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements contained herein or therein not
misleading.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor, severally and not jointly, as to himself or itself and not as to
any other Investor, represents and warrants to the Company with the Company
that:
5.1 ORGANIZATION AND STANDING OF THE INVESTOR. Where the Investor is a
corporation, such Investor is duly incorporated, validly existing and in good
standing under the laws of the state in which it was formed. The state in which
any offer to purchase shares hereunder was made or accepted by such Investor is
the state shown as such Investor's address. If an entity, the Investor was not
formed for the purpose of investing solely in the Units the subject of this
Agreement.
5.2 AUTHORIZATION AND POWER. The Investor has the requisite power and authority
to enter into and perform this Agreement and to purchase the Units being sold to
it hereunder. The execution, delivery and performance of this Agreement by the
Investor and the consummation by the Investor of the transactions contemplated
hereby have been duly authorized by all necessary corporate action where
appropriate. This Agreement and the Registration Rights Agreement have been duly
executed and delivered by the Investor and at the Closing shall constitute valid
and binding obligations of the Investor enforceable against the Investor in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, receivership or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or by other
equitable principles of general application.
5.3 NO CONFLICTS. The execution, delivery and performance of this Agreement and
the consummation by the Investor of the transactions contemplated hereby or
relating hereto do not and will not (i) result in a violation of such Investor's
charter documents or bylaws where appropriate or (ii) 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 Investor is a party, or result in a violation of any
law, rule, or regulation, or any order, judgment or decree of any court or
governmental agency applicable to the Investor or its properties (except for
such conflicts, defaults and violations as would not, individually or in the
aggregate, have a Material Adverse Effect on such Investor). The Investor is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of such Investor's obligations under this Agreement or to
purchase the Units in accordance with the terms hereof, provided that for
purposes of the representation made in this sentence, the Investor is assuming
and relying upon the accuracy of the relevant representations and agreements of
the Company herein.
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ENTECH ENVIRONMENTAL TECHNOLOGIES,INC.,INC. AND CERTAIN INVESTORS
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5.4 FINANCIAL RISKS. The Investor acknowledges that such Investor is able to
bear the financial risks associated with an investment in the Units and that it
has been given full access to such records of the Company and the subsidiaries
and to the officers of the Company and the subsidiaries as it has deemed
necessary or appropriate to conduct its due diligence investigation. The
Investor is capable of evaluating the risks and merits of an investment in the
Units by virtue of its experience as an investor and its knowledge, experience,
and sophistication in financial and business matters and the Investor is capable
of bearing the entire loss of its investment in the Units.
5.5 ACCREDITED INVESTOR. The Investor is (i) an "accredited investor" as that
term is defined in Rule 501 of Regulation D promulgated under the 1933 Act by
reason of Rule 501(a)(3) and (6), (ii) experienced in making investments of the
kind described in this Agreement and the related documents, (iii) able, by
reason of the business and financial experience of its officers (if an entity)
and professional advisors (who are not affiliated with or compensated in any way
by the Company or any of its affiliates or selling agents), to protect its own
interests in connection with the transactions described in this Agreement, and
the related documents, and (iv) able to afford the entire loss of its investment
in the Units.
5.6 BROKERS. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or Commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Investors.
5.7 KNOWLEDGE OF COMPANY. Each Investor and such Investor's advisors, if any,
have been, upon request, furnished with all materials relating to the business,
finances and operations of the Company and materials relating to the offer and
sale of the Units. Each Investor and such Investor's advisors, if any, have been
afforded the opportunity to ask questions of the Company and have received
complete and satisfactory answers to any such inquiries.
5.8 RISK FACTORS Each Investor understands that such Investor's investment in
the Units involves a high degree of risk. Each Investor understands that no
United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Units.
Each Investors warrants that such Investor is able to bear the complete loss of
such Buyer's investment in the Units.
5.9 FULL DISCLOSURE. No representation or warranty made by the Investor in this
Agreement and no certificate or document furnished or to be furnished to ENTECH
ENVIRONMENTAL TECHNOLOGIES, INC. pursuant to this Agreement contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements contained herein or therein not
misleading. Except as set forth or referred to in this Agreement, Investor does
not have any agreement or understanding with any person relating to acquiring,
holding,voting or disposing of any equity securities of the Company.
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5.10 REIMBURSEMENT OF DUE DILIGENCE EXPENSES. Upon closing, the Company shall
reimburse Investors for expenses incurred in conducting due diligence by Xxxxxxx
Xxxxx of Xxxxxx Street Associates at the rates as per Article III, Section 3.2,
paragraph (p) above. Such reimbursement shall be allocated to Investors that
provide proof of payment of such expenses in a proportional manner. If the
transaction is not closed there shall be no reimbursement of any due diligence
expenses.
5.11 REIMBURSEMENT OF LEGAL EXPENSES. Upon closing, the Company shall reimburse
Investors for all legal expenses incurred relating to this transaction including
any retainer for current services and fees paid for past legal services to the
office of Xxxxxx X. Xxxxxxxx of Glast, Xxxxxxxx & Xxxxxx, P.C. with offices at
000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx XX 00000 on behalf of the Company. Such
reimbursement shall be allocated to Investors that provide proof of payment of
such expenses in a proportional manner. If the transaction is not closed there
shall be no reimbursement of any legal expenses.
ARTICLE VI
COVENANTS OF THE COMPANY
6.1. REGISTRATION RIGHTS. The Company shall cause the Registration Rights
Agreement to remain in full force and effect and the Company shall comply in all
material respects with the terms thereof.
6.2. RESERVATION OF COMMON STOCK. As of the date hereof, the Company has
reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, shares of Common Stock for the purpose of
enabling the Company to issue the shares of Common Stock underlying the Notes
and Warrants.
6.3. LISTING OF COMMON STOCK. The Company hereby agrees to maintain the listing
of the Common Stock on a publicly trading market. The Company will take all
action to continue the listing and trading of its Common Stock on a publicly
traded market and will comply in all respects with the Company's reporting,
filing and other obligations under the bylaws or rules of a publicly traded
market.
6.4. EXCHANGE ACT REGISTRATION. The Company will cause its Common Stock to
continue to be registered under Section 12(b) or (g) of the 1934 Act, will use
its best efforts to comply in all respects with its reporting and filing
obligations under the 1934 Act, and will not take any action or file any
document (whether or not permitted by the 1934 Act or the rules thereunder) to
terminate or suspend such registration or to terminate or suspend its reporting
and filing obligations under the 1934 until the Investors have disposed of all
of their Shares or the shares of Common Stock underlying the Warrants.
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6.5. CORPORATE EXISTENCE; CONFLICTING AGREEMENTS. The Company will take all
steps necessary to preserve and continue the corporate existence of the Company.
The Company shall not enter into any agreement, the terms of which agreement
would restrict or impair the right or ability of the Company to perform any of
its obligations under this Agreement or any of the other agreements attached as
exhibits hereto.
6.6 PREFERRED STOCK. On or prior to the Closing Date, the Company will cause to
be cancelled all authorized shares of Preferred Stock of the Company. For a
period of three years from the closing the Company will not issue any preferred
stock.
6.7 CONVERTIBLE DEBT. On or prior to the Closing Date, the Company will cause to
be cancelled all convertible debt in the Company other than such with Lender.
For a period of three years from the closing the Company will not issue any
convertible debt other than to Lender.
6.8 RESET EQUITY DEALS. On or prior to the Closing Date, the Company will cause
to be cancelled any and all reset features related to any shares outstanding
that could result in additional shares being issued. For a period of three years
from the closing the Company will not enter into any transactions that have any
reset features that could result in additional shares being issued.
6.9 USE OF PROCEEDS. The Company will use the proceeds from the sale of the
Units (excluding amounts paid by the Company for legal and administrative fees
in connection with the sale of the Units) for the acquisition of Pacific Coast
testing and/or the reimbursement of funds to shareholders for such acquisition..
6.10 RIGHT OF FIRST REFUSAL. Each Investor shall have the right to participate
in any financing by the company on a pro rata basis at eighty percent (80%) of
the offering price.
6.11 PRICE ADJUSTMENT. If, within the 24 months following the Closing Date, the
Company closes on the sale of a note or notes, shares of Common Stock, or shares
of any class of Preferred Stock at a price per share of Common Stock, or with a
conversion right to acquire Common Stock at a price per share of Common Stock,
that is less than the Purchase Price (as adjusted to the capitalization per
share as of the Closing Date, following any stock splits, stock dividends, or
the like) (collectively, the "Subsequent Purchase Price"), the Company shall
make a post-Closing adjustment in the Purchase Price so that the effective price
per share paid by the Investors at Closing is reduced to the Subsequent Purchase
Price as applied to the Investors' then current holdings. Within five business
days following the closing of the subsequent sale, the Company shall pay to the
Investors the product of the number of Shares owned by Investors on the date of
the subsequent sale times the difference between the Purchase Price and the
Subsequent Purchase Price. Payment shall be made in cash or issuance of the
notes, Preferred Stock, Common Stock, unit offering or whichever financing is
causing the triggering of this provision, at the option of each individual
Investor.
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6.12 INSIDER SELLING. The earliest any "insiders" can start selling their shares
shall be two years from Closing. Investors shall not be considered
"Insiders".
6.13 EMPLOYMENT AND CONSULTING CONTRACTS. Employment and consulting contracts
with officers and directors shall at time of Closing and for three years
thereafter shall not contain: any bonuses not related directly to increases
in earnings per share; any car allowances not approved by Xxxxx; any
anti-dilution or reverse split protection provisions for shares, options or
warrants; any deferred compensation; any unreasonable compensation or
benefit clauses; or any termination clauses of over one year of salary.
6.14 AMENDMENT TO CERTIFICATE OF INCORPORATION. At or before the next annual
meeting of the stockholders of the Company, the Board of Directors shall
propose and submit to the holders of the Common Stock for approval, an
amendment to the Certificate of Incorporation that provides substantially
as follows:
"The terms and conditions of any rights, options and warrants approved by
the Board of Directors may provide that any or all of such terms and
conditions may be waived or amended only with the consent of the holders of
a designated percentage of a designated class or classes of capital stock
of the Corporation (or a designated group or groups of holders within such
class or classes, including but not limited to disinterested holders), and
the applicable terms and conditions of any such rights, options or warrants
so conditioned may not be waived or amended absent such consent.".
ARTICLE VII
COVENANTS OF THE INVESTORS
7.1 COMPLIANCE WITH LAW. The Investor's trading activities with respect to
shares of the Company's Common Stock will be in compliance with all applicable
state and federal securities laws, rules and regulations and rules and
regulations of any public market on which the Company's Common Stock is listed.
7.2 TRANSFER RESTRICTIONS. The Investor's acknowledge that (1) the Notes,
Warrants and shares underlying the Notes and Warrants have not been registered
under the provisions of the 1933 Act, and may not be transferred unless (A)
subsequently registered thereunder or (B) the Investor's shall have delivered to
the Company an opinion of counsel, reasonably satisfactory in form, scope and
substance to the Company, to the effect that the Notes, Warrants and shares
underlying the Notes and Warrants to be sold or transferred may be sold or
STOCK PURCHASE AGREEMENT BETWEEN
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transferred pursuant to an exemption from such registration; and (2) any sale of
the Notes, Warrants and shares underlying the Notes and Warrants made in
reliance on Rule 144 promulgated under the 1933 Act may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such Securities under circumstances in which the
seller, or the person through whom the sale is made, may be deemed to be an
underwriter, as that term is used in the 1933 Act, may require compliance with
some other exemption under the 1933 Act or the rules and regulations of the SEC
thereunder.
7.3 RESTRICTIVE LEGEND. The Investors acknowledge and agree that the Notes, the
Warrants and the Shares underlying the Notes and Warrants, and, until such time
as the Shares underlying the Notes and Warrants have been registered under the
1933 Act and sold in accordance with an effective Registration Statement,
certificates and other instruments representing any of the Shares, shall bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of any such Securities):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER SUCH SHARES NOR ANY INTEREST THEREIN MAY
BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S, OR (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT."
7.4 AMENDMENT TO CERTIFICATE OF INCORPORATION. Investor hereby agrees to vote
any shares of capital stock that it may own directly or beneficially, for the
amendment to the Certificate of Incorporation referenced in Section 6.20.
Pending adoption of such amendment, Investor hereby agrees for itself and its
successors and assigns that neither this Section 7.4 or Section 6.20 above, or
any restriction on exercise of the Warrant shall be amended, modified or waived
without the consent of the holders of a majority of the shares of Common Stock
held by Persons who are not Affiliates of the Company, or the Investor or
Affiliates of the Investor.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS
The obligation of the Company to consummate the transactions contemplated
hereby shall be subject to the fulfillment, on or prior to Closing Date, of the
following conditions:
8.1 NO TERMINATION. This Agreement shall not have been terminated pursuant to
Article X hereof.
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8.2 REPRESENTATIONS TRUE AND CORRECT. The representations and warranties of the
Investors contained in this Agreement shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as if made
on as of the Closing Date.
8.3 COMPLIANCE WITH COVENANTS. The Investors shall have performed and complied
in all material respects with all covenants, agreements, and conditions required
by this Agreement to be performed or complied by it prior to or at the Closing
Date.
8.4 NO ADVERSE PROCEEDINGS. On the Closing Date, no action or proceeding shall
be pending by any public authority or individual or entity before any court or
administrative body to restrain, enjoin, or otherwise prevent the consummation
of this Agreement or the transactions contemplated hereby or to recover any
damages or obtain other relief as a result of the transactions proposed hereby.
ARTICLE IX
CONDITIONS PRECEDENT TO INVESTOR'S OBLIGATIONS
The obligation of the Investors to consummate the transactions contemplated
hereby shall be subject to the fulfillment, on or prior to Closing Date unless
specified otherwise, of the following conditions:
9.1 NO TERMINATION. This Agreement shall not have been terminated pursuant to
Article X hereof.
9.2 REPRESENTATIONS TRUE AND CORRECT. The representations and warranties of
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. contained in this Agreement shall be
true and correct in all material respects on and as of the Closing Date with the
same force and effect as if made on as of the Closing Date.
9.1 COMPLIANCE WITH COVENANTS . ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. shall
have performed and complied in all material respects with all covenants,
agreements, and conditions required by this Agreement to be performed or
complied by it prior to or at the Closing Date.
9.4 NO ADVERSE PROCEEDINGS. On the Closing Date, no action or proceeding shall
be pending by any public authority or individual or entity before any court or
administrative body to restrain, enjoin, or otherwise prevent the consummation
of this Agreement or the transactions contemplated hereby or to recover any
damages or obtain other relief as a result of the transactions proposed hereby.
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ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time:
10.1.1 by mutual written consent of the Investors and the Company;
10.1.2 by the Company upon a material breach of any representation,
warranty, covenant or agreement on the part of the Investor set forth in this
Agreement, or the Investor upon a material breach of any representation,
warranty, covenant or agreement on the part of ENTECH ENVIRONMENTAL
TECHNOLOGIES, INC. set forth in this Agreement, or if any representation or
warranty of ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. or the Investor,
respectively, shall have become untrue, in either case such that any of the
conditions set forth in Article VIII or Article IX hereof would not be satisfied
(a "TERMINATING BREACH"), and such breach shall, if capable of cure, not have
been cured within five (5) days after receipt by the party in breach of a notice
from the non-breaching party setting forth in detail the nature of such breach.
10.2 EFFECT OF TERMINATION. In the event of the termination of this Agreement
pursuant to Paragraph 10.1 hereof, there shall be no liability on the party of
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. or the Investors or any of their
respective officers, directors, agents or other representatives and all rights
and obligations of any party hereto shall cease, except as expressed herein,
except that the Company retains the obligations pursuant to Paragraph 6.7.
10.3 AMENDMENT. This Agreement may be amended by the parties hereto any time
prior to the Closing Date by an instrument in writing signed by the parties
hereto.
10.3 WAIVER. At any time prior to the Closing Date, ENTECH ENVIRONMENTAL
TECHNOLOGIES, INC. or the Investors, as appropriate, may: (a) extend the time
for the performance of any of the obligations or other acts of other party or;
(b) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto which have been made to it
or them; or (c) waive compliance with any of the agreements or conditions
contained herein for its or their benefit. Any such extension or waiver shall be
valid only if set forth in an instrument in writing signed by the party or
parties to be bound hereby.
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ARTICLE XI
GENERAL PROVISIONS
11.1 TRANSACTION COSTS. Except as otherwise provided herein, each of the parties
shall pay all of his or its costs and expenses (including attorney fees and
other legal costs and expenses and accountants' fees and other accounting costs
and expenses) incurred by that party in connection with this Agreement.
11.2 INDEMNIFICATION. The Investor agrees to indemnify, defend and hold the
Company (following the Closing Date) and its officers and directors harmless
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities or damages, including interest, penalties and
reasonable attorney's fees, that it shall incur or suffer, which arise out of or
result from any breach of this Agreement by such Investor or failure by such
Investor to perform with respect to any of its representations, warranties or
covenants contained in this Agreement or in any exhibit or other instrument
furnished or to be furnished under this Agreement. The Company agrees to
indemnify, defend and hold the Investor harmless against and in respect of any
and all claims, demands, losses, costs, expenses, obligations, liabilities or
damages, including interest, penalties and reasonable attorney's fees, that it
shall incur or suffer, which arise out of, result from or relate to any breach
of this Agreement or failure by the Company to perform with respect to any of
its representations, warranties or covenants contained in this Agreement or in
any exhibit or other instrument furnished or to be furnished under this
Agreement. In no event shall the Company be entitled to recover consequential or
punitive damages resulting from a breach or violation of this Agreement nor
shall any party have any liability hereunder in the event of gross negligence or
willful misconduct of the indemnified party. In the event of a breach of this
Agreement by the Company, the Investor shall be entitled to pursue a remedy of
specific performance upon tender into the Court an amount equal to the Purchase
Price of the Units hereunder. The indemnification by the Investors shall be
limited to the amount they have invested on the Closing Date.
11.3 HEADINGS. The table of contents and headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.4 ENTIRE AGREEMENT. This Agreement (together with the Schedule, Exhibits,
Warrants and documents referred to herein) constitute the entire agreement of
the parties and supersede all prior agreements and undertakings, both written
and oral, between the parties, or any of them, with respect to the subject
matter hereof.
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11.5 NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed to have been given (i) on the date they are delivered if
delivered in person; (ii) on the date initially received if delivered by
facsimile transmission followed by registered or certified mail confirmation;
(iii) on the date delivered by an overnight courier service; or (iv) on the
third business day after it is mailed by registered or certified mail, return
receipt requested with postage and other fees prepaid as follows:
If to ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.:
---------------------------------------------
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.
With a copy to:
--------------
0000 Xxxxx Xxxxxx, Xxxxx X000
Xxxxx Xxxxx, XX 00000
If to the Investors:
To the address listed on Schedule A herein or to
the address provided to the Company by an Investor.
11.6 SEVERABILITY. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any such term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
11.7 BINDING EFFECT. All the terms and provisions of this Agreement whether so
expressed or not, shall be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective administrators, executors, legal
representatives, heirs, successors and assignees.
11.8 PREPARATION OF AGREEMENT. This Agreement shall not be construed more
strongly against any party regardless of who is responsible for its preparation.
The parties acknowledge each contributed and is equally responsible for its
preparation.
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11.9 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
applicable principles of conflicts of law.
11.10 JURISDICTION. This Agreement shall be exclusively governed by and
construed in accordance with the laws of the State of New York. If any action is
brought among the parties with respect to this Agreement or otherwise, by way of
a claim or counterclaim, the parties agree that in any such action, and on all
issues, the parties irrevocably waive their right to a trial by jury. Exclusive
jurisdiction and venue for any such action shall be the State Courts of New
York. In the event suit or action is brought by any party under this Agreement
to enforce any of its terms, or in any appeal therefrom, it is agreed that the
prevailing party shall be entitled to reasonable attorneys fees to be fixed by
the arbitrator, trial court, and/or appellate court.
11.11 PREPARATION AND FILING OF SECURITIES AND EXCHANGE COMMISSION FILINGS. Each
Investor shall reasonably assist and cooperate with the Company in the
preparation of all filings with the SEC after the Closing Date due after the
Closing Date.
11.12 FURTHER ASSURANCES, COOPERATION. Each party shall, upon reasonable request
by the other party, execute and deliver any additional documents necessary or
desirable to complete the transactions herein pursuant to and in the manner
contemplated by this Agreement. The parties hereto agree to cooperate and use
their respective best efforts to consummate the transactions contemplated by
this Agreement.
11.13 SURVIVAL The representations, warranties, covenants and agreements made
herein shall survive the Closing of the transaction contemplated hereby.
11.14 THIRD PARTIES Except as disclosed in this Agreement, nothing in this
Agreement, whether express or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
parties hereto and their respective administrators, executors, legal
representatives, heirs, successors and assignees. Nothing in this Agreement is
intended to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any party to this
Agreement.
11.15 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay
on the part of any party hereto in the exercise of any right hereunder shall
impair such right or be construed to be a waiver of, or acquiescence in, any
breach of any representation, warranty, covenant or agreement herein, nor shall
nay single or partial exercise of any such right preclude other or further
exercise thereof or of any other right. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
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11.16 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement. A facsimile transmission of this
signed Agreement shall be legal and binding on all parties hereto.
[SIGNATURES ON FOLLOWING PAGE]
STOCK PURCHASE AGREEMENT BETWEEN
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IN WITNESS WHEREOF, the Investors and the Company have as of the date first
written above executed this Agreement.
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.
----------------------
By: ___________________
Title:__________________
INVESTORS
--------------------------------
Xxxxxx Xxxxxx Xxxxxx
President, General Partner of
Xxxxxx Partners LP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx XX 00000
STOCK PURCHASE AGREEMENT BETWEEN
ENTECH ENVIRONMENTAL TECHNOLOGIES,INC.,INC. AND CERTAIN INVESTORS
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Schedule A
NAME AND ADDRESS AMOUNT OF NUMBER OF SHARES OF NUMBER OF WARRANTS
INVESTMENT COMMON STOCK
Xxxxxx Partners LP $100,000 4,000,000 4,000,000
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Exhibit A
---------
Form of Warrant
--------------
STOCK PURCHASE AGREEMENT BETWEEN
ENTECH ENVIRONMENTAL TECHNOLOGIES,INC.,INC. AND CERTAIN INVESTORS
PAGE 27 OF 30
Exhibit B
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Registration Rights Agreement
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STOCK PURCHASE AGREEMENT BETWEEN
ENTECH ENVIRONMENTAL TECHNOLOGIES,INC.,INC. AND CERTAIN INVESTORS
PAGE 28 OF 30
