Exhibit 10.36
PURCHASE AGREEMENT
COMPOSITECH LTD.
Dated as of February 9, 1998
Compositech Taiwan (or Compositech Technologies, Inc.)
Fifth Floor ▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, R.O.C.
Dear Sirs:
WHEREAS, Compositech Ltd. (hereinafter referred to as the "Company"), a
Delaware corporation, and Fidelity Venture Capital Corp. (hereinafter referred
to as "Fidelity") entered into an Agreement to Form a Joint Venture on February
9, 1998 (the "JV Agreement"); and
WHEREAS, the JV Agreement provided for purchase by the Joint Venture of $2
million worth of the Company's common stock priced at the weighted average
closing price for the 30 day period prior to the signing of the JV Agreement,
with $1 million to be purchased on or before the signing of the JV Agreement and
$1 million within 30 days of the approval of the license of the Joint Venture by
▇▇▇▇-▇▇▇▇ Science Base Park; and
WHEREAS, the JV Agreement was signed on February 9, 1998;
NOW THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Sale and Purchase of Subject Shares. Subject to the terms and conditions
of this Agreement, at the closing referred below (the "Closing"), the Company
shall sell to you, and you shall purchase from the Company at a purchase price
of One Million Dollars ($1,000,000) (the "Purchase Amount") 587,372 shares (the
"Shares") of the Company's common stock, par value $0.01 per share (the "Common
Stock"), at a purchase price of $1.7025 per share (such amount being equal to
the weighted average closing price for the 30 day period prior to February 9,
1998 - see Schedule A attached).
2. Closing. The Closing shall take place on February 9, 1998, or on such
other date as may be reasonably agreed upon by you and the Company (the "Closing
Date"). At or prior to the Closing, you shall pay to the Company the Purchase
Amount in U.S. dollars by check or wire transfer of funds to an account
designated by the Company. The Share certificates shall be delivered to you
pursuant to instructions provided to the Company in writing by you promptly
following the Company's receipt of the Purchase Amount.
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3. Representations, Warranties and Covenants of the Company. The Company
represents, warrants and covenants to you as follows:
(A) Corporate Organization, Etc. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has full corporate power and authority to carry on
its business as it is now being conducted.
(B) Authorization, Etc. The Company has full corporate power and
authority to enter into this Agreement, to issue and sell the Shares and to
carry out the transactions contemplated by this Agreement. This Agreement
has been duly authorized, executed and delivered by the Company and is a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, and the Shares, when issued and paid
for in accordance with the terms of this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable.
(C) Consents and Approvals of Governmental Authorities. No consent,
approval or authorization of, or declaration, filing or registration with,
any governmental or regulatory authority is required to be obtained or made
by the Company in connection with the execution, delivery and performance
of this Agreement, the issuance and sale of the Shares or the consummation
of the transactions contemplated hereby, except for such filings or other
actions as may be required by federal or state securities laws.
(D) Full Access. Prior to the Closing Date, the Company shall afford
to you or your agent full access to the plant, offices, properties, books
and records of the Company during the Company's customary business hours in
order that you may have full opportunity to make such investigations as you
shall desire of the affairs of the Company and the Company shall cause its
officers and accountants to furnish such other information as you may
reasonably request.
4. Your Representations, Warranties and Covenants. You represent, warrant
and covenant to the Company as follows:
(A) You acknowledge and understand that the Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any state and may not be offered or sold
unless first registered under the Securities Act and any applicable state
securities laws or unless such offer or sale is exempt from such
registration. You represent and warrant to the Company that you are
purchasing the Shares for investment only and that you are an "accredited
investor" as such term is defined in Regulation D under the Securities Act.
(B) In connection with any registration of the Company's securities
(whether or not you are participating in such registration), you shall not
sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of any of the
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Shares without the prior written consent of the Company for such period of
time up to 12 months from the effective date of such registration statement
as the Company and the managing underwriter may specify.
5. Miscellaneous Provisions.
5.1. Amendment and Modification. This Agreement may only be amended,
modified or supplemented by written agreement of the Company and you.
5.2. Expenses, Transfer Taxes, Etc. Whether or not the transactions
contemplated by this Agreement shall be consummated, the Company agrees that all
fees and expenses incurred by it in connection with this Agreement shall be
borne by it and you agree that all fees and expenses incurred by you in
connection with this Agreement shall be borne by you.
5.3 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand, telecopied (with receipt confirmed), sent
by overnight courier service or mailed by certified or registered mail and shall
be deemed to be received on the date of receipt:
(a) If to the Company, to:
Compositech Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Leisure ▇▇▇▇▇▇ & Irvine
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
or to such other person or address as the Company shall furnish to you in
writing.
(b) If to you, to the address first set forth above or to such other
person or address as you shall furnish to the Company in writing.
5.4 Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of New York without giving effect to the choice of law principles of such State.
5.5. Counterparts. This Agreement may be executed in counterparts, each
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of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
5.6. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of either party hereto.
Very truly yours,
COMPOSITECH LTD.
By: ________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
AGREED to and accepted
as of the date first
set forth above.
PURCHASER:
COMPOSITECH TAIWAN
(OR COMPOSITECH TECHNOLOGIES, INC.)
By:________________________________
▇▇. ▇▇▇▇▇-▇▇▇▇ ▇▇▇
Acting Chairman
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Compositech Ltd. Schedule A
Calculation of Weighted Average Stock Price
Trading in 30 calendar days preceding 2/09/98
[2/09/98 = date of signing of Taiwan Joint Venture Agreement]
Trading Closing Daily Volume * Trailing
Date Price Volume Closing Price 30 day avg.
--------------------------------------------------------- --------------
12-Jan 1.438 3,700 5,321
13-Jan 1.438 28,200 40,552
14-Jan 1.438 61,900 89,012
15-Jan 1.406 65,200 91,671
MLK B'day 16-Jan 1.406 8,000 11,248
= 1/17/98 20-Jan 1.375 3,733 5,133
21-Jan 1.500 2,300 3,450
22-Jan 1.500 1,300 1,950
23-Jan 1.500 7,100 10,650
26-Jan 1.500 21,100 31,650
27-Jan 1.469 110,950 162,986
28-Jan 1.500 344,950 517,425
29-Jan 1.750 71,500 125,125
30-Jan 1.750 26,600 46,550
2-Feb 1.781 22,300 39,716
3-Feb 1.750 21,320 37,310
4-Feb 1.875 72,393 135,737
5-Feb 2.094 187,500 392,625
6-Feb 2.031 172,200 349,738
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30 trailing calendar days = 1,232,246 2,097,849 1.7025
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