INVESTMENT AGREEMENT
Exhibit 10.1
INVESTMENT AGREEMENT (this “AGREEMENT”), dated as of September 15, 2006 by and between Save the
World Air, Inc. a Nevada corporation (the “Company”), and Dutchess Private Equities Fund, LP, a
Delaware limited partnership (the “Investor”).
As used in this Agreement, the following terms shall have the following meanings specified or
indicated below, and such meanings shall be equally applicable to the singular and plural forms of
such defined terms.
“1933
Act” shall have the meaning set forth in the preamble of this agreement.
“1934
Act” shall mean the Securities Exchange Act of 1934, as it may be amended.
“Affiliate” shall have the meaning specified in Section 5(H), below.
“Agreement” shall mean this Investment Agreement.
1
“Best Bid” shall mean the highest posted bid price of the Common Stock during a given
period of time.
“By-laws” shall have the meaning specified in Section 4(C).
“Certificate of Incorporation” shall have the meaning specified in Section 4(C).
“Closing” shall have the meaning specified in Section 2(G).
“Closing Date” shall mean no more than seven (7) Trading Days following the Put
Notice Date.
“Common Stock” shall have the meaning set forth in the preamble of this Agreement.
“Control”
or “Controls” shall have the meaning specified in Section 5(H).
“Effective Date” shall mean the date the SEC declares effective under the 1933 Act
the Registration Statement covering the Securities.
“Environmental Laws” shall have the meaning specified in Section 4(M).
“Equity Line Transaction Documents” shall mean this Agreement, the Registration
Rights Agreement.
“Execution Date” shall mean the date indicated in the preamble to this Agreement.
“Indemnities” shall have the meaning specified in Section 11.
“Indemnified
Liabilities” shall have the meaning specified in Section 11.
“Ineffective Period” shall mean any period of time that the Registration Statement or
any Supplemental Registration Statement (as defined in the Registration Rights Agreement between
the parties) becomes ineffective or unavailable for use for the sale or resale, as applicable, of
any or all of the Registrable Securities (as defined in the Registration Rights Agreement) for any
reason (or in the event the prospectus under either of the above is not current and deliverable)
during any time period required under the Registration Rights Agreement.
“Investor” shall have the meaning indicated in the preamble of this Agreement.
“Material Adverse Effect” shall have the meaning specified in Section 4(A).
2
“Maximum Common Stock Issuance” shall have the meaning specified in Section
2(H).
“Minimum Acceptable Price” with respect to any Put Notice Date shall mean
seventy-five percent (75%) of the lowest closing bid prices for the ten (10) Trading Day period
immediately preceding each Put Notice Date.
“Open
Market Adjustment Amount” shall have the meaning specified
in Section 2(I).
“Open
Market Purchase” shall have the meaning specified in Section 2(I)
“Open
Market Share Purchase” shall have the meaning specified in Section 2(I).
“Open Period” shall mean the period beginning on and including the Trading Day
immediately following the Effective Date and ending on the earlier to occur of (i) the date which
is thirty-six (36) months from the Effective Date; or (ii) termination of the Agreement in
accordance with Section 9, below.
“Pricing Period” shall mean the period beginning on the Put Notice Date and ending on
and including the date that is five (5) Trading Days after such Put Notice Date.
“Principal Market” shall mean the American Stock Exchange, Inc., the National
Association of Securities Dealers, Inc. Over-the-Counter Bulletin Board, the NASDAQ National
Market System or the NASDAQ SmallCap Market, whichever is the principal market on which the Common
Stock is listed or quoted.
“Prospectus” shall mean the prospectus, preliminary prospectus and supplemental
prospectus used in connection with the Registration Statement.
“Purchase Amount” shall mean the total amount being paid by the Investor on a
particular Closing Date to purchase the Securities.
“Purchase Price” shall mean ninety-seven percent (97%) of the lowest closing Best Bid
price of the Common Stock during the Pricing Period.
“Put” shall have the meaning set forth in Section 2(B)(1) hereof.
“Put Amount” shall have the meaning set forth in Section 2(B)(1) hereof.
“Put Notice” shall mean a written notice sent to the Investor by the Company stating
the Put Amount in U.S. dollars the Company intends to sell to the Investor pursuant to the terms
of the Agreement and stating the current number of Shares issued and outstanding on such date.
3
“Put Notice Date” shall mean the Trading Day, as set forth below, immediately
following the day on which the Investor receives a Put Notice, however a Put Notice shall be deemed
delivered on (a) the Trading Day it is received by facsimile or otherwise by the Investor if such
notice is received prior to 9:00 am Eastern Time, or (b) the immediately succeeding Trading Day if
it is received by facsimile or otherwise after 9:00 am Eastern Time on a Trading Day. No Put Notice
may be deemed delivered on a day that is not a Trading Day.
“Put Restriction” shall mean the days between the beginning of the Pricing Period and
Closing Date. During this time, the Company shall not be entitled to deliver another Put Notice.
“Put
Shares Due” shall have the meaning specified in Section 2(I).
“Registration Period” shall have the meaning specified in Section 5(C), below.
“Registration Rights Agreement” shall have the meaning set forth in the recitals,
above.
“Registration Statement” means the registration statement of the Company filed under
the 1933 Act covering the Common Stock issuable hereunder.
“Related Party” shall have the meaning specified in Section 5(H).
“Resolution” shall have the meaning specified in Section 8(E).
“SEC” shall
mean the U.S. Securities & Exchange Commission.
“SEC Documents” shall have
the meaning specified in Section 4(F).
“Securities” shall mean the shares of Common Stock issued pursuant to the terms of the
Agreement.
“Shares” shall mean the shares of the Company’s Common Stock.
“Subsidiaries”
shall have the meaning specified in Section 4(A).
“Trading Day” shall mean any day on which the Principal Market for the Common Stock
is open for trading, from the hours of 9:30 am until 4:00 pm.
SECTION 2. PURCHASE AND SALE OF COMMON STOCK.
(A) PURCHASE AND SALE OF COMMON STOCK. Subject to the terms and conditions set forth herein, the
Company shall issue and sell to the Investor, and
4
the Investor shall purchase from the Company, up to that number of Shares having an aggregate
Purchase Price of Ten Million dollars ($10,000,000).
(B) DELIVERY OF PUT NOTICES.
(I) Subject to the terms and conditions of the Transaction Documents, and from time to time during
the Open Period, the Company may, in its sole discretion, deliver a Put Notice to the Investor
which states the dollar amount (designated in U.S. Dollars) (the “Put Amount”), which the Company
intends to sell to the Investor on a Closing Date (the “Put”). The Put Notice shall be in the form
attached hereto as Exhibit C and incorporated herein by reference. The amount that the Company
shall be entitled to Put to the Investor (the “Put Amount”) shall be equal to, at the Company’s
sole election, either: (A) Two Hundred percent (200%) of the average daily volume (U.S. market
only) of the Common Stock for the Ten (10) Trading Days prior to the applicable Put Notice Date,
multiplied by the average of the three (3) daily closing bid prices immediately preceding the Put
Date, or (B) two hundred fifty thousand dollars ($250,000). During the Open Period, the Company
shall not be entitled to submit a Put Notice until after the previous Closing has been completed.
The Purchase Price for the Common Stock identified in the Put Notice
shall be equal to ninety-seven percent (97%) of the lowest closing Best Bid price of the Common Stock during the Pricing Period.
(C) COMPANY’S RIGHT TO WITHRDRAWL. The Company shall reserve the
right, but not the obligation, to withdraw that portion of the Put that is below the
Minimal Acceptable Price, by submitting to the Investor, in writing, a notice to
cancel that portion of the Put. Any shares above the Minimal Acceptable price
due to the Investor shall be carried out by the Company under the terms of this
Agreement.
(D) INTENTIONALLY OMITTED
(E) CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES.
Notwithstanding anything to the contrary in this Agreement, the Company shall
not be entitled to deliver a Put Notice and the Investor shall not be obligated to
purchase any Shares at a Closing (as defined in Section 2(G)) unless each of the
following conditions are satisfied:
(I) a Registration Statement shall have been declared effective and shall
remain effective and available for the resale of all the Registrable Securities (as
defined in the Registration Rights Agreement) at all times until the Closing with
respect to the subject Put Notice;
(II) at all times during the period beginning on the related Put Notice Date
and ending on and including the related Closing Date, the Common Stock shall
have been listed on the Principal Market and shall not have been suspended
from trading thereon for a period of two (2) consecutive Trading Days during the
Open Period and the Company shall not have been notified of any pending or
5
threatened proceeding or other action to suspend the trading of the Common Stock;
(III) the Company has complied with its obligations and is otherwise not in
breach of or in default under, a material provision of this Agreement, the
Registration Rights Agreement or any other agreement executed in connection
herewith which has not been cured prior to delivery of the Investor’s Put Notice
Date;
(IV) no injunction shall have been issued and remain in force, or action
commenced by a governmental authority which has not been stayed or
abandoned, prohibiting the purchase or the issuance of the Securities; and
(V) the issuance of the Securities will not violate any shareholder approval
requirements of the Principal Market.
If any of the events described in clauses (I) through (V) above occurs during a Pricing Period,
then the Investor shall have no obligation to purchase the Put Amount of Common Stock set forth in
the applicable Put Notice.
(F) RESERVED
(G) MECHANICS OF PURCHASE OF SHARES BY INVESTOR. Subject to the
satisfaction of the conditions set forth in Sections 2(E), 7 and 8, the closing of the
purchase by the Investor of Shares (a “Closing”) shall occur on the date which is
no later than seven (7) Trading Days following the applicable Put Notice Date
(each a “Closing Date”). Prior to each Closing Date, (I) the Company shall deliver
to the Investor pursuant to this Agreement, certificates representing the Shares
to be issued to the Investor on such date and registered in the name of the
Investor; and (II) the Investor shall deliver to the Company the Purchase Price to
be paid for such Shares, determined as set forth in Sections 2(B). In lieu of
delivering physical certificates representing the Securities and provided that the
Company’s transfer agent then is participating in The Depository Trust Company
(“DTC”) Fast Automated Securities Transfer (“FAST”) program, upon request of
the Investor, the Company shall use commercially reasonable efforts to cause its
transfer agent to electronically transmit the Securities by crediting the account of
the Investor’s prime broker (as specified by the Investor within a reasonably in
advance of the Investor’s notice) with DTC through its Deposit Withdrawal Agent
Commission (“DWAC”) system.
The Company understands that a delay in the issuance of Securities beyond the Closing Date could
result in economic damage to the Investor. After the Effective Date, as compensation to the
Investor for such loss, the Company agrees to make late payments to the Investor for late issuance
of Securities (delivery of Securities after the applicable Closing Date) in accordance with the
following schedule (where “No. of Days Late” is defined as the number of trading days beyond the
Closing Date, with the Amounts being cumulative.):
6
LATE PAYMENT FOR EACH | ||||
NO. OF DAYS LATE | $10,000 WORTH OF COMMON STOCK | |||
1 |
$ | 100 | ||
2 |
$ | 200 | ||
3 |
$ | 300 | ||
4 |
$ | 400 | ||
5 |
$ | 500 | ||
6 |
$ | 600 | ||
7 |
$ | 700 | ||
8 |
$ | 800 | ||
9 |
$ | 900 | ||
10 |
$ | 1,000 | ||
Over 10 |
$1,000 + $200 for each | |||
Business Day late beyond 10 days |
The Company shall make any payments incurred under this Section in immediately available
funds upon demand by the Investor. Nothing herein shall limit the Investor’s right to pursue
actual damages for the Company’s failure to issue and deliver the Securities to the Investor,
except that such late payments shall offset any such actual damages incurred by the Investor,
and any Repurchase Adjustment Amount, as set forth below.
(H) OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything contained herein to the
contrary, if during the Open Period the Company becomes listed on an exchange that limits the
number of shares of Common Stock that may be issued without shareholder approval, then the
number of Shares issuable by the Company and purchasable by the Investor, shall not exceed
that number of the shares of Common Stock that may be issuable without shareholder approval
(the “Maximum Common Stock Issuance”). If such issuance of shares of Common Stock could cause
a delisting on the Principal Market, then the Maximum Common Stock Issuance shall first be
approved by the Company’s shareholders in accordance with applicable law and the By-laws and
Amended and Restated Certificate of Incorporation of the Company, if such issuance of shares
of Common Stock could cause a delisting on the Principal Market. The parties understand and
agree that the Company’s failure to seek or obtain such shareholder approval shall in no way
adversely affect the validity and due authorization of the issuance and sale of Securities or
the Investor’s obligation in accordance with the terms and conditions hereof to purchase a
number of Shares in the aggregate up to the Maximum Common Stock Issuance limitation, and
that such approval pertains only to the applicability of the Maximum Common Stock Issuance
limitation provided in this Section 2(H).
(I) LIMITATION ON AMOUNT OF OWNERSHIP. Notwithstanding anything to the contrary in this
Agreement, in no event shall the Investor be entitled to purchase that number of Shares,
which when added to the sum of the number of shares of Common Stock beneficially owned (as
such term is defined under Section 13(d) and Rule 13d-3 of the 1934 Act), by the Investor,
would exceed
7
4.99% of the number of shares of Common Stock outstanding on the Closing Date, as determined in
accordance with Rule 13d-1(j) of the 1934 Act.
(J) If, by the third (3rd) business day after the Closing Date, the Company fails to deliver any
portion of the shares of the Put to the Investor (the “Put Shares Due”) and the Investor purchases,
in an open market transaction or otherwise, shares of Common Stock necessary to make delivery of
shares which would have been delivered if the full amount of the shares to be delivered to the
Investor by the Company (the “Open Market Share Purchase”) , then the Company shall pay to the
Investor, in addition to any other amounts due to Investor pursuant to the Put, and not in lieu
thereof, the Open Market Adjustment Amount (as defined below). The “Open Market Adjustment Amount”
is the amount equal to the excess, if any, of (x) the Investor’s total purchase price (including
brokerage commissions, if any) for the Open Market Share Purchase minus (y) the net proceeds (after
brokerage commissions, if any) received by the Investor from the sale of the Put Shares Due. The
Company shall pay the Open Market Adjustment Amount to the Investor in immediately available funds
within five (5) business days of written demand by the Investor. By way of illustration and not in
limitation of the foregoing, if the Holder purchases shares of Common Stock having a total purchase
price (including brokerage commissions) of $11,000 to cover an Open Market Purchase with respect to
shares of Common Stock it sold for net proceeds of $10,000, the Open Market Purchase Adjustment
Amount which the Company will be required to pay to the Holder will be $1,000.
The Investor represents and warrants to the Company, and covenants, that:
(A) SOPHISTICATED INVESTOR. The Investor has, by reason of its business
and financial experience, such knowledge, sophistication and experience in
financial and business matters and in making investment decisions of this type
that it is capable of (I) evaluating the merits and risks of an investment in the
Securities and making an informed investment decision; (II) protecting its own
interest; and (III) bearing the economic risk of such investment for an indefinite
period of time.
(C) SECTION 9 OF THE 1934 ACT. During the term of this Agreement, the
Investor will comply with the provisions of Section 9 of the 1934 Act, and the
8
rules promulgated thereunder, with respect to transactions involving the Common Stock. The
Investor agrees not to sell the Company’s stock short, either directly or indirectly through its
affiliates, principals or advisors, the Company’s common stock during the term of this Agreement.
(D) ACCREDITED INVESTOR. Investor is an “Accredited Investor” as that term
is defined in Rule 501 (a) of Regulation D of the 1933 Act.
(H) NO REGISTRATION AS A DEALER. The Investor is not and will not be required to be registered as
a “dealer” under the 1934 Act, either as a result of its execution and performance of its
obligations under this Agreement or otherwise.
(I) GOOD STANDING. The Investor is a Limited Partnership, duly organized, validly existing and in
good standing in the State of Delaware.
(J) TAX LIABILITIES. The Investor understands that it is liable for its own tax liabilities.
(K) REGULATION M. The Investor will comply with Regulation M under the 1934 Act, if applicable.
Except as set forth in the Schedules attached hereto, or as disclosed on the Company’s SEC
Documents, the Company represents and warrants to the Investor that:
9
properties and to carry on its business as now being conducted. Both the Company and the companies
it owns or controls (“Subsidiaries”) are duly qualified to do business and are in good standing in
every jurisdiction in which its ownership of property or the nature of the business conducted by
it makes such qualification necessary, except to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect. As used in this Agreement, “Material
Adverse Effect” means any material adverse effect on the business, properties, assets, operations,
results of operations, financial condition or prospects of the Company and its Subsidiaries, if
any, taken as a whole, or on the transactions contemplated hereby or by the agreements and
instruments to be entered into in connection herewith, or on the authority or ability of the
Company to perform its obligations under the Transaction Documents (as defined in Section 1 and
4(B), below).
(I) The Company has the requisite corporate power and authority to enter
into and perform this Agreement, the Registration Rights Agreement, and each of
the other agreements entered into by the parties hereto in connection with the
transactions contemplated by this Agreement (collectively, the “Transaction
Documents”), and to issue the Securities in accordance with the terms hereof
and thereof.
(II) The execution and delivery of the Transaction Documents by the
Company and the consummation by it of the transactions contemplated hereby
and thereby, including without limitation the reservation for issuance and the
issuance of the Securities pursuant to this Agreement, have been duly and
validly authorized by the Company’s Board of Directors and no further consent or
authorization is required by the Company, its Board of Directors, or its
shareholders.
(III) The Transaction Documents have been duly and validly executed and
delivered by the Company.
(IV) The Transaction Documents constitute the valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms, except as such enforceability may be limited by general principles of
equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally, the enforcement of
creditors’ rights and remedies.
10
pursuant to options, warrants and other convertible securities; and an additional 1,614,000 shares
of common stock will have been reserved for issuance pursuant to options, warrants and other
convertible securities on or before the date of the filing of the Registration Statement with the
SEC. All of such outstanding shares have been, or upon issuance will be, validly issued, fully
paid and non-assessable.
Except as disclosed in the Company’s publicly available filings with the SEC:
(I) no shares of the Company’s capital stock are subject to preemptive rights or any other similar
rights or any liens or encumbrances suffered or permitted by the Company; (II) there are no
outstanding debt securities; (III) there are no outstanding shares of capital stock, options,
warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating
to, or securities or rights convertible into, any shares of capital stock of the Company or any of
its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or
any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the
Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights convertible into, any
shares of capital stock of the Company or any of its Subsidiaries, except that the Company may be
obligated to issue a warrant to its distributor in China exercisable for up to 1,000,000 shares of
common stock, with the exact amount depending upon the number of units ordered by the distributor
over a five-year period commencing upon the execution of the related distribution agreement; (IV)
there are no agreements or arrangements under which the Company or any of its Subsidiaries is
obligated to register the sale of any of their securities under the 1933 Act (except the
Registration Rights Agreement), except that the Company (A) has granted piggyback registration
rights to the Company’s former public relations firm with respect to 41,665 shares of common stock,
(B) is presently negotiating the granting of piggyback registration rights with the bankruptcy
trustee under the Company’s former royalty agreement with respect to its ZEFS technology with
respect to 50,000 shares of common stock, and (C) is presently negotiating the granting of S-8
registration rights to one consultant for 450,000 shares of common stock issuable upon the exercise
of options; (V) there are no outstanding securities of the Company or any of its Subsidiaries which
contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries is or may become
bound to redeem a security of the Company or any of its Subsidiaries; (VI) there are no securities
or instruments containing anti-dilution or similar provisions that will be triggered by the
issuance of the Securities as described in this Agreement; (VII) the Company does not have any
stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement;
and (VIII) there is no dispute as to the classification of any shares of the Company’s capital
stock.
11
The Company has furnished to the Investor, or the Investor has had access through XXXXX
to, true and correct copies of the Company’s Amended and Restated Certificate of Incorporation, as
in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s By-laws, as in
effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or
exercisable for Common Stock and the material rights of the holders thereof in respect thereto.
12
Company and its Subsidiaries is not being conducted, and shall not be conducted, in
violation of any law, statute, ordinance, rule, order or regulation of any governmental authority
or agency, regulatory or self-regulatory agency, or court, except for possible violations the
sanctions for which either individually or in the aggregate would not have a Material Adverse
Effect. Except as specifically contemplated by this Agreement and as required under the 1933 Act or
any securities laws of any states, to the Company’s knowledge, the Company is not required to
obtain any consent, authorization, permit or order of, or make any filing or registration (except
the filing of a registration statement as outlined in the Registration Rights Agreement between the
Parties) with, any court, governmental authority or agency, regulatory or self-regulatory agency or
other third party in order for it to execute, deliver or perform any of its obligations under, or
contemplated by, the Transaction Documents in accordance with the terms hereof or thereof. All
consents, authorizations, permits, orders, filings and registrations which the Company is required
to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the date
hereof and are in full force and effect as of the date hereof. Except as disclosed in Schedule
4(e), the Company and its Subsidiaries are unaware of any facts or circumstances which might give
rise to any of the foregoing. The Company is not, and will not be, in violation of the listing
requirements of the Principal Market as in effect on the date hereof and on each of the Closing
Dates and is not aware of any facts which would reasonably lead to delisting of the Common Stock by
the Principal Market in the foreseeable future.
(F) SEC DOCUMENTS; FINANCIAL STATEMENTS. As of the date hereof, the Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it with the SEC pursuant
to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof
and all exhibits included therein and financial statements and schedules thereto and documents
incorporated by reference therein being hereinafter referred to as the “SEC Documents”). The
Company has delivered to the Investor or its representatives, or they have had access through XXXXX
to, true and complete copies of the SEC Documents. As of their respective filing dates, the SEC
Documents complied in all material respects with the requirements of the 1934 Act and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading. As of
their respective dates, the financial statements of the Company included in the SEC Documents
complied as to form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto. Such financial statements have
been prepared in accordance with generally accepted accounting principles, by a firm that is a
member of the Public Companies Accounting Oversight Board (“PCAOB”) consistently applied, during
the periods involved (except (I) as may be otherwise indicated in such financial statements or the
notes thereto, or (II) in
13
the case of unaudited interim statements, to the extent they may exclude footnotes or may be
condensed or summary statements) and fairly present in all material respects the financial position
of the Company as of the dates thereof and the results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other written information provided by or on behalf of the Company to the Investor
which is not included in the SEC Documents, including, without limitation, information referred to
in Section 4(D) of this Agreement, contains any untrue statement of a material fact or omits to
state any material fact necessary to make the statements therein, in the light of the circumstance
under which they are or were made, not misleading. Neither the Company nor any of its Subsidiaries
or any of their officers, directors, employees or agents have provided the Investor with any
material, nonpublic information which was not publicly disclosed prior to the date hereof and any
material, nonpublic information provided to the Investor by the Company or its Subsidiaries or any
of their officers, directors, employees or agents prior to any Closing Date shall be publicly
disclosed by the Company prior to such Closing Date.
(H) ABSENCE OF LITIGATION AND/OR REGULATORY PROCEEDINGS. Except as set forth in the SEC Documents,
there is no action, suit, proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body pending or, to the knowledge of the
executive officers of Company or any of its Subsidiaries, threatened against or affecting the
Company, the Common Stock or any of the Company’s Subsidiaries or any of the Company’s or the
Company’s Subsidiaries’ officers or directors in their capacities as such, in which an adverse
decision could have a Material Adverse Effect.
(I) ACKNOWLEDGMENT REGARDING INVESTOR’S PURCHASE OF SHARES. The Company acknowledges and agrees
that the Investor is acting solely in the capacity of an arm’s length purchaser with respect to
the Transaction Documents and the transactions contemplated hereby and thereby. The Company
further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to the Equity Line Transaction Documents and the
transactions contemplated hereby and thereby and any advice given by the Investor or any of its
respective representatives or agents in connection with the Equity Line Transaction Documents and
the transactions contemplated hereby and thereby is merely incidental to the Investor’s purchase
of the Securities, and is not being relied on
14
by the Company. The Company further represents to the Investor that the Company’s decision
to enter into the Equity Line Transaction Documents has been based solely on the independent
evaluation by the Company and its representatives.
(J) NO UNDISCLOSED EVENTS, LIABILITIES, DEVELOPMENTS OR CIRCUMSTANCES. Except as set forth in the
SEC Documents, as of the date hereof, no event, liability, development or circumstance has occurred
or exists, or to the Company’s knowledge is contemplated to occur, with respect to the Company or
its Subsidiaries or their respective business, properties, assets, prospects, operations or
financial condition, that would be required to be disclosed by the Company under applicable
securities laws on a registration statement filed with the SEC relating to an issuance and sale by
the Company of its Common Stock and which has not been publicly announced.
15
any of the foregoing. The Company and its Subsidiaries have taken commercially reasonable
security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties.
(M) ENVIRONMENTAL LAWS. The Company (I) is, to the knowledge of the management and directors of
the Company, in compliance with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (II) has, to the
knowledge of the management and directors of the Company, received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its business; and (III) is
in compliance, to the knowledge of the management and directors of the Company, with all terms and
conditions of any such permit, license or approval where, in each of the three (3) foregoing
cases, the failure to so comply would have, individually or in the aggregate, a Material Adverse
Effect.
16
authorization or permit, except for such certificates, approvals, authorizations or permits which
if not obtained, or such revocations or modifications which, would not have a Material Adverse
Effect.
17
furnishing of services to or by, providing for rental of real or personal property to or from, or
otherwise requiring payments to or from any officer, director or such employee or, to the
knowledge of the Company, any corporation, partnership, trust or other entity in which any
officer, director, or any such employee has a substantial interest or is an officer, director,
trustee or partner.
(U) DILUTIVE EFFECT. The Company understands and acknowledges that the number of shares of Common
Stock issuable upon purchases pursuant to this Agreement will increase in certain circumstances
including, but not necessarily limited to, the circumstance wherein the trading price of the Common
Stock declines during the period between the Effective Date and the end of the Open Period. The
Company’s executive officers and directors have studied and fully understand the nature of the
transactions contemplated by this Agreement and recognize that they have a potential dilutive
effect on the shareholders of the Company. The Board of Directors of the Company has concluded, in
its good faith business judgment, and with full understanding of the implications, that such
issuance is in the best interests of the Company. The Company specifically acknowledges that,
subject to such limitations as are expressly set forth in the Equity Line Transaction Documents,
its obligation to issue shares of Common Stock upon purchases pursuant to this Agreement is
absolute and unconditional regardless of the dilutive effect that such issuance may have on the
ownership interests of other shareholders of the Company.
(X) NO BROKERS, FINDERS OR FINANCIAL ADVISORY FEES OR COMMISSIONS. No brokers, finders or financial
advisory fees or commissions will be payable by the Company, it’s agents or Subsidiaries, with
respect to the transactions contemplated by this Agreement, except as otherwise provided for in
Section 12(M) of this Agreement.
(A) BEST EFFORTS. The Company shall use commercially reasonable efforts to
timely satisfy each of the conditions set forth in Section 7 of this Agreement.
18
Securities for, sale to the Investor at each of the Closings pursuant to this Agreement under
applicable securities or “Blue Sky” laws of such states of the United States, as reasonably
specified by the Investor, and shall provide evidence of any such action so taken to the Investor
on or prior to the Closing Date.
(F) RESERVATION OF SHARES. Subject to the following sentence, the
Company shall take all action necessary to at all times have authorized, and
reserved for the purpose of issuance, a sufficient number of shares of Common
Stock to provide for the issuance of the Securities to the Investor as required
hereunder. In the event that the Company determines that it does not have a
sufficient number of authorized shares of Common Stock to reserve and keep
available for issuance as described in this Section 5(F), the Company shall use
commercially reasonable efforts to increase the number of authorized shares of
Common Stock by seeking shareholder approval for the authorization of such
additional shares.
19
(I) FILING OF FORM 8-K. On or before the date which is four (4) Trading Days after the Execution
Date, the Company shall file a Current Report on Form 8-K with the SEC describing the terms of the
transaction contemplated by the Equity
20
Line Transaction Documents in the form required by the 1934 Act, if such filing is required.
(L) REIMBURSEMENT. If (I) the Investor becomes involved in any capacity in any action, proceeding
or investigation brought by any shareholder of the Company, in connection with or as a result of
the consummation of the transactions contemplated by the Equity Line Transaction Documents, or if
the Investor is impleaded in any such action, proceeding or investigation by any person (other
than as a result of a breach of the Investor’s representations and warranties set forth in this
Agreement); or (II) the Investor becomes involved in any capacity in any action, proceeding or
investigation brought by the SEC against or involving the Company or in connection with or as a
result of the consummation of the transactions contemplated by the Equity Line Transaction
21
Documents (other than as a result of a breach of the Investor’s representations and warranties
set forth in this Agreement), or if this Investor is impleaded in any such action, proceeding or
investigation by any person, then in any such case, the Company will reimburse the Investor for its
reasonable legal and other expenses (including the cost of any investigation and preparation)
incurred in connection therewith, as such expenses are incurred. In addition, other than with
respect to any matter in which the Investor is a named party, the Company will pay to the Investor
the charges, as reasonably determined by the Investor, for the time of any officers or employees of
the Investor devoted to appearing and preparing to appear as witnesses, assisting in preparation
for hearings, trials or pretrial matters, or otherwise with respect to inquiries, hearing, trials,
and other proceedings relating to the subject matter of this Agreement. The reimbursement
obligations of the Company under this section shall be in addition to any liability which the
Company may otherwise have, shall extend upon the same terms and conditions to any affiliates of
the Investor that are actually named in such action, proceeding or investigation, and partners,
directors, agents, employees, attorneys, accountants, auditors and controlling persons (if any), as
the case may be, of Investor and any such affiliate, and shall be binding upon and inure to the
benefit of any successors of the Company, the Investor and any such affiliate and any such person.
The obligation hereunder of the Company to issue and sell the Securities to the Investor is
further subject to the satisfaction, at or before each Closing Date, of each of the following
conditions set forth below. These conditions are for the Company’s sole benefit and may be waived
by the Company at any time in its sole discretion.
(A) The Investor shall have executed this Agreement and the Registration Rights
Agreement and delivered the same to the Company.
(B) The Investor shall have delivered to the Company the Purchase Price for the
Securities being purchased by the Investor between the end of the Pricing Period
and the Closing Date via a Put Settlement Sheet (hereto attached as Exhibit D).
After receipt of confirmation of delivery of such Securities to the Investor, the
Investor, by wire transfer of immediately available funds pursuant to the wire
instructions provided by the Company will disburse the funds constituting the
Purchase Amount.
22
(C) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been
enacted, entered, promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions contemplated by this
Agreement.
The obligation of the Investor hereunder to purchase Shares is subject to the satisfaction, on or
before each Closing Date, of each of the following conditions set forth below.
(A) The Company shall have executed the Equity Line Transaction Documents
and delivered the same to the Investor.
(B) The Common Stock shall be authorized for quotation on the Principal Market
and trading in the Common Stock shall not have been suspended by the
Principal Market or the SEC, at any time beginning on the date hereof and
through and including the respective Closing Date (excluding suspensions of not
more than one (1) Trading Day resulting from business announcements by the
Company, provided that such suspensions occur prior to the Company’s delivery
of the Put Notice related to such Closing).
(C) The representations and warranties of the Company shall be true and correct
in all material respects as of the date when made and as of the applicable
Closing Date as though made at that time (except for (I) representations and
warranties that speak as of a specific date and (II) with respect to the
representations made in Sections 4(g), (h) and (j) and the third sentence of
Section 4(k) hereof, events which occur on or after the date of this Agreement
and are disclosed in SEC filings made by the Company at least ten (10) Trading
Days prior to the applicable Put Notice Date) and the Company shall have
performed, satisfied and complied with the covenants, agreements and
conditions required by the Equity Line Transaction Documents to be performed,
satisfied or complied with by the Company on or before such Closing Date,
except where the failure to do so would not constitute a Material Adverse Effect.
The Investor may request an update as of such Closing Date regarding the
representation contained in Section 4(C) above.
(D) The Company shall have executed and delivered to the Investor the
certificates representing, or have executed electronic book-entry transfer of, the
Securities (in such denominations as the Investor shall request) being purchased
by the Investor at such Closing.
(E) The Board of Directors of the Company shall have adopted resolutions
consistent with Section 4(B)(II) above (the “Resolutions”) and such Resolutions
shall not have been amended or rescinded prior to such Closing Date.
23
(F) Reserved
(G) No statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or
governmental authority of competent jurisdiction which prohibits the
consummation of any of the transactions contemplated by this Agreement.
(H) The Registration Statement shall be effective on each Closing Date and no stop order
suspending the effectiveness of the Registration statement shall be in effect or to the Company’s
knowledge shall be pending or threatened. Furthermore, on each Closing Date (I) neither the
Company nor the Investor shall have received notice that the SEC has issued or intends to issue a
stop order with respect to such Registration Statement or that the SEC otherwise has suspended or
withdrawn the effectiveness of such Registration Statement, either temporarily or permanently, or
intends or has threatened to do so (unless the SEC’s concerns have been addressed and Investor is
reasonably satisfied that the SEC no longer is considering or intends to take such action), and
(II) no other suspension of the use or withdrawal of the effectiveness of such Registration
Statement or related prospectus shall exist.
(I) At the time of each Closing, the Registration Statement (including information or documents
incorporated by reference therein) and any amendments or supplements thereto shall not contain any
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or which would require public
disclosure or an update supplement to the prospectus.
(J) If applicable, the shareholders of the Company shall have approved the issuance of any Shares
in excess of the Maximum Common Stock Issuance in accordance with Section 2(H) or the Company
shall have obtained appropriate approval pursuant to the requirements of Nevada law and the
Company’s Articles of Incorporation and By-laws.
(K) The conditions to such Closing set forth in Section 2(E) shall have been satisfied on or
before such Closing Date.
(L) The Company shall have certified to the Investor the number of Shares of Common Stock
outstanding when a Put Notice is given to the Investor. The Company’s delivery of a Put Notice to
the Investor constitutes the Company’s certification of the existence of the necessary number of
shares of Common Stock reserved for issuance of such Shares.
24
(I) when the Investor has purchased an aggregate of Ten Million dollars
($10,000,000) in the Common Stock of the Company pursuant to this Agreement;
or,
(II) on the date which is thirty-six (36) months after the Effective Date.
This Agreement shall be suspended upon any of the following events, and shall remain suspended
until such event is rectified:
(I) the trading of the Common Stock is suspended by the SEC, the
Principal Market or the NASD for a period of two (2) consecutive Trading Days
during the Open Period; or,
(II) The Common Stock ceases to be registered under the 1934 Act or
listed, quoted or traded on the Principal Market. Immediately upon the
occurrence of one of the above-described events, the Company shall send
written notice of such event to the Investor.
In consideration of the parties mutual obligations set forth in the Transaction Documents,
each of the parties (in such capacity, an “Indemnitor”) shall defend, protect, indemnify and hold
harmless the other and all of the other party’s shareholders, officers, directors, employees,
counsel, and direct or indirect investors and any of the foregoing person’s agents or other
representatives (including, without limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages,
and reasonable expenses in connection therewith (irrespective of whether any such Indemnitee is a
party to the action for which indemnification hereunder is sought), and including reasonable
attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a
result of, or arising out of, or relating to (I) any misrepresentation or breach of any
representation or warranty made by the Indemnitor or any other certificate, instrument or document
contemplated hereby or thereby; (II) any breach of any covenant, agreement or obligation of the
Indemnitor contained in the Transaction Documents or any other certificate, instrument or document
contemplated hereby or thereby; or (III) any cause of action, suit or claim brought or made against
such Indemnitee by a third party and arising out of or resulting from the execution, delivery,
performance or enforcement of the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, except insofar as any such misrepresentation, breach or
any untrue statement, alleged untrue statement, omission or alleged omission is made in reliance
upon and in conformity with information furnished to Indemnitor which is specifically intended for
use in the preparation of any such Registration
25
Statement, preliminary prospectus, prospectus or amendments to the prospectus. To the extent that
the foregoing undertaking by the Indemnitor may be unenforceable for any reason, the Indemnitor
shall make the maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The indemnity provisions contained herein
shall be in addition to any cause of action or similar rights Indemnitor may have, and any
liabilities to which the Indemnitor or the Indemnitees may be subject.
(A) ARBITRATION. All disputes arising under this agreement shall be governed
by and interpreted in accordance with the laws of the Commonwealth of
Massachusetts, without regard to principles of conflict of laws. The parties to this
agreement will submit all disputes arising under this agreement to arbitration in
Boston, Massachusetts before a single arbitrator of the American Arbitration
Association (“AAA”). The arbitrator shall be selected by application of the rules
of the AAA, or by mutual agreement of the parties, except that such arbitrator
shall be an attorney admitted to practice law in the Commonwealth of
Massachusetts. No party to this agreement will challenge the jurisdiction or
venue provisions as provided in this section. No party to this agreement will
challenge the jurisdiction or venue provisions as provided in this section. Nothing
contained herein shall prevent the party from obtaining an injunction.
(B) LEGAL FEES; AND MISCELLANEOUS FEES. Except as otherwise set forth
in the Transaction Documents, each party shall pay the fees and expenses of its
advisers, counsel, the accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement. Any attorneys’ fees and
expenses incurred by either the Company or the Investor in connection with the
preparation, negotiation, execution and delivery of any amendments to this
Agreement or relating to the enforcement of the rights of any party, after the
occurrence of any breach of the terms of this Agreement by another party or any
default by another party in respect of the transactions contemplated hereunder,
shall be paid on demand by the party which is determined, pursuant to Section
12(A), to have breached the Agreement and/or defaulted, as the case may be.
The Company shall pay all stamp and other taxes and duties levied in connection
with the issuance of any Securities.
(C) COUNTERPARTS. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original
signature.
26
(D) HEADINGS; SINGULAR/PLURAL. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the interpretation of,
this Agreement. Whenever required by the context of this Agreement, the
singular shall include the plural and masculine shall include the feminine.
If to the Company:
Save the World Air, Inc.
0000 Xxxxxxxxxx Xxxx. Xxxxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxxxxxx Xxxx. Xxxxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
27
with a copy to:
Xxxxx Xxx Xxxxxx, Esq.
SEC Law Firm
00000 Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
SEC Law Firm
00000 Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
If to the Investor:
Dutchess Private Equities Fund, LP,
00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Each party shall provide five (5) days prior written notice to the other party of any change in
address or facsimile number.
(H) NO ASSIGNMENT. This Agreement may not be assigned.
(I) NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of the parties hereto
and is not for the benefit of, nor may any provision hereof be enforced by, any other person,
except that the Company acknowledges that the rights of the Investor may be enforced by its
general partner.
28
601(b)(10) of Regulation S-B, and that the Company may therefore be required to file such
documents as exhibits to reports or registration statements filed under the 1933 Act or the 1934
Act. The Investor further agrees that the status of such documents and materials as material
contracts shall be determined solely by the Company, in consultation with its counsel.
29
refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other
person under any law (including, without limitation, any bankruptcy law, state or federal law,
common law or equitable cause of action), then to the extent of any such restoration the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement or setoff had not
occurred.
(a) The Company shall not disclose non-public information to the Investor, its
advisors, or its representatives.
(b) Nothing herein shall require the Company to disclose non-public information
to the Investor or its advisors or representatives, and the Company represents
that it does not disseminate non-public information to any investors who
purchase stock in the Company in a public offering, to money managers or to
securities analysts, provided, however, that notwithstanding anything herein to
the contrary, the Company will, as hereinabove provided, immediately notify the
advisors and representatives of the Investor and, if any, underwriters, of any
event or the existence of any circumstance (without any obligation to disclose the
specific event or circumstance) of which it becomes aware, constituting non-
public information (whether or not requested of the Company specifically or
generally during the course of due diligence by such persons or entities), which,
if not disclosed in the prospectus included in the Registration Statement would
cause such prospectus to include a material misstatement or to omit a material
fact required to be stated therein in order to make the statements, therein, in light
of the circumstances in which they were made, not misleading. Nothing
contained in this Section 13 shall be construed to mean that such persons or
entities other than the Investor (without the written consent of the Investor prior to
disclosure of such information) may not obtain non-public information in the
course of conducting due diligence in accordance with the terms of this
Agreement and nothing herein shall prevent any such persons or entities from
notifying the Company of their opinion that based on such due diligence by such
persons or entities, that the Registration Statement contains an untrue statement
of material fact or omits a material fact required to be stated in the Registration
Statement or necessary to make the statements contained therein, in light of the
circumstances in which they were made, not misleading.
* * *
30
SIGNATURE PAGE OF INVESTMENT AGREEMENT
Your signature on this Signature Page evidences your agreement to be bound by the terms and
conditions of the Investment Agreement and the Registration Rights Agreement as of the date first
written above.
The undersigned signatory hereby certifies that he has read and understands the Investment
Agreement, and the representations made by the undersigned in this Investment Agreement are true
and accurate, and agrees to be bound by its terms.
DUTCHESS PRIVATE EQUITIES FUND, L.P. | ||||
BY ITS GENERAL PARTNER, | ||||
DUTCHESS CAPITAL MANAGEMENT, LLC | ||||
By: |
||||
Xxxxxxx X. Xxxxxxxx, Managing Member | ||||
SAVE THE WORLD AIR, INC. | ||||
By |
, | |||
Xxxxxx X. Xxxxxxx, Chief Executive Officer |
31
LIST OF EXHIBITS
EXHIBIT A
|
Registration Rights Agreement | |
EXHIBIT B
|
Opinion of Company’s Counsel | |
EXHIBIT C
|
Put Notice | |
EXHIBIT D
|
Put Settlement Sheet |
32
EXHIBIT A
Registration Rights Agreement
33
EXHIBIT B
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
OF REGISTRATION STATEMENT
Date:
[TRANSFER AGENT]
Re: Save the World Air, Inc.
Ladies and Gentlemen:
We are counsel to Save the World Air, Inc., a Nevada corporation (the “Company”), and
have represented the Company in connection with that certain Investment Agreement (the “Investment
Agreement”) entered into by and among the Company and Duchess Private Equities Fund, LP (the
“Holder”), pursuant to which the Company has agreed to issue to the Holder shares of the Company’s
common stock, $.001 par value per share (the “Common Stock”) on the terms and conditions set forth
in the Investment Agreement. Pursuant to the Investment Agreement, the Company also has entered
into a Registration Rights Agreement with the Holder (the “Registration Rights Agreement”)
pursuant to which the Company agreed, among other things, to register the Registrable Securities
(as defined in the Registration Rights Agreement), including the shares of Common Stock issued or
issuable under the Investment Agreement under the Securities Act of 1933, as amended (the “1933
Act”). In connection with the Company’s
obligations under the Registration Rights Agreement,
on
, 2006, the
Company filed a Registration Statement on Form SB-2 (File
No. 333- ) (the
“Registration Statement”) with the Securities and Exchange Commission (the “SEC”) relating to the
Registrable Securities which names the Holder as a selling shareholder thereunder.
In
connection with the foregoing, we advise you that
[a member of the SEC’s staff has advised
us by telephone that the SEC has entered an order declaring the Registration Statement effective]
[the Registration Statement has become effective] under the
1933 Act at [enter the time of
effectiveness] on [enter the date of effectiveness] and to the best of our knowledge,
after telephonic inquiry of a member of the SEC’s staff, no stop order suspending its effectiveness
has been issued and no proceedings for that purpose are pending before, or threatened by, the SEC
and the Registrable Securities are available for resale under the 1933 Act pursuant to the
Registration Statement.
Very truly yours, | ||
[Company Counsel] |
34
EXHIBIT C
Date:
RE: Put
Notice Number
Dear Xx. Xxxxxxxx,
This is to inform you that as of today, Save the World Air, Inc., a Nevada corporation (the
“Company”), hereby elects to exercise its right pursuant to the Investment Agreement to require
Dutchess Private Equities Fund, LP to purchase shares of its common stock. The Company hereby
certifies that:
The amount of this put is $ .
The Pricing Period runs from until .
The current number of shares issued and outstanding as of the Company are:
The number of shares currently available for issuance on the SB-2 for the Equity Line are:
Regards,
Xxxxxx X. Xxxxxxx, Chief Executive Officer |
||
Save the World Air, Inc. |
35
EXHIBIT D
PUT SETTLEMENT SHEET
PUT SETTLEMENT SHEET
Date:
Dear Xx. Xxxxxxx,
Pursuant to the Put given by Save the World Air, Inc. to Dutchess Private
Equities Fund, L.P. on 200 _, we are now submitting the
amount of common shares for you to issue to Dutchess.
Please have a certificate bearing no restrictive legend totaling
shares issued to Dutchess Private Equities Fund, LP immediately and send via DWAC to the following
account:
xxxxxx
If not
DWAC eligible, please send FedEx Priority Overnight to:
XXXXXX
XXXXXX
Once these shares are received by us, we will have the funds wired to the Company.
Regards,
Xxxxxxx X. Xxxxxxxx, Managing Member
DUTCHESS PRIVATE EQUITIES FUND, L.P.
BY ITS GENERAL PARTNER,
DUTCHESS CAPITAL MANAGEMENT, LLC
BY ITS GENERAL PARTNER,
DUTCHESS CAPITAL MANAGEMENT, LLC
36
DATE | PRICE | |
Date of Day 1
|
Closing Bid of Day 1 | |
Date of Day 2
|
Closing Bid of Day 2 | |
Date of Day 3
|
Closing Bid of Day 3 | |
Date of Day 4
|
Closing Bid of Day 4 | |
Date of Day 5
|
Closing Bid of Day 5 |
LOWEST 1 (ONE) CLOSING BID IN PRICING PERIOD | ||
PUT AMOUNT | ||
AMOUNT WIRED TO COMPANY | ||
PURCHASE PRICE (97)% (NINETY-SEVEN PERCENT)) | ||
AMOUNT OF SHARES DUE |
The undersigned has completed this Put as of this day of ,
200 .
SAVE THE WORLD AIR, INC. |
||
Xxxxxx X. Xxxxxxx, Chief Executive Officer |
37
SCHEDULE 4(e) CONFLICTS
None
38