CHAPEAU, INC. COMMON STOCK PURCHASE AGREEMENT
CHAPEAU,
INC.
This
Common Stock Purchase Agreement (“Agreement”) is effective as of August 22, 2008
(“Effective Date”), by and between Chapeau, Inc., a Utah corporation doing
business as BluePoint Energy (the “Company”), and Xxxxxx X. and Xxxxx X. Xxxxx
Foundation, a Delaware charitable foundation (“Purchaser”).
For good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and Sale of Common
Stock; Closing.
(a) Subject
to the terms and conditions of this Agreement, the Company hereby agrees to
issue and sell to Purchaser and Purchaser hereby agrees to purchase from the
Company upon the execution of this Agreement Two Million Five Hundred Sixty-Five
Thousand Eight Hundred Eighty (2,565,880) shares of its common stock, par value
$0.001 per share (the “Initial Shares”) for a purchase price of $0.3605 per
share, in consideration of payment of Nine Hundred Twenty-Five Thousand Dollars
($925,000.00) (the “Purchase Price”). The Purchase Price per share is
equal to 70% of the average closing price of the Company’s common stock for the
four trading days including and immediately preceding the Effective
Date.
(b)
The closing of the purchase and sale of the Initial Shares shall occur at the
offices of the Company at noon Pacific Time, on the date first written above
(the “Initial Closing”) At the Initial Closing, subject to the terms
and conditions hereof, the Company will instruct its transfer agent to issue to
Purchaser the Initial Shares, against payment of the Purchase Price therefore by
check or wire transfer made payable to the order of the Company.
(c) Following
the Effective Date, the Company intends to offer to certain existing
shareholders of the Company the opportunity to purchase on or before the
Subsequent Closing (defined below) up to Two Million Five Hundred Sixty-Five
Thousand Eight Hundred Eighty (2,565,880) shares of its common stock, par value
$0.001 per share (the “Subsequent Closing Shares”) for a purchase price of
$0.3605 per share, in consideration of payment of up to Nine Hundred Twenty-Five
Thousand Dollars ($925,000.00) (the “Subsequent Closing Purchase
Price”). In the event such offerees indicate an intent to acquire
none of the Subsequent Closing Shares or less than all of the Subsequent Closing
Shares (such difference herein called the “Remaining Shares” and with the
“Initial Shares”, the “Shares”), then the Company shall sell and the Purchaser
shall purchase the Remaining Shares at the Subsequent Closing. The closing of
the purchase and sale of the Remaining Shares shall occur at the offices of the
Company at 10:00 a.m. Pacific Time, on August 29, 2008 (the “Subsequent
Closing”); provided, however, that the Company, in its sole and absolute
discretion, may extend the date of the Subsequent Closing, but not to a date
later than September 2, 2008. At the Subsequent Closing, if any,
subject to the terms and conditions hereof, the Company will instruct its
transfer agent to issue to Purchaser the Remaining Shares against payment of the
Subsequent Closing Purchase Price therefore by check or wire transfer made
payable to the order of the Company
2. Restriction Against
Transfer. Purchaser agrees that it will not transfer, assign,
hypothecate, or in any way dispose of any of the Shares, or any right or
interest therein, whether voluntarily or by operation of law, or by gift or
otherwise, without the prior written consent of the Company, except to the
extent that a transfer is made in accordance with the terms of this
Agreement. In this regard, specific reference is made to Section 8
below. Any purported transfer in violation of any provision of this
Agreement shall be void and ineffectual, and shall not operate to transfer any
interest or title to the purported transferee.
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3. Obligations of Subsequent
Transferees. On the occurrence of a transfer of any Shares
pursuant to the terms of this Agreement, the transferee shall execute an
agreement to be bound by the restrictions on transfer set forth in this
Agreement.
4. Notices. All
notices required or desired to be given pursuant to this Agreement shall be in
writing and shall be personally served (including by commercial delivery or
courier service) or given by mail or confirmed facsimile
transmission. Any notice given by mail shall be deemed to have been
given and received when four (4) business days have elapsed from the time such
notice was deposited in the United States mails, certified or registered and
first-class postage prepaid, addressed, if intended to a party to this
Agreement, at the address set forth below its signature or to such other address
as such party may have designated by written notice to each of the other parties
from time to time and any notice given by facsimile shall be deemed to have been
on the business day when
sent by confirmed facsimile if sent during normal business hours of the
recipient, or if not, then on the next business day.
5. Restriction on
Certificates. All certificates representing Shares subject to
the provisions of this Agreement shall have endorsed thereon, among others, the
following legends:
(a) “THESE
SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF THE
VARIOUS STATES, AND HAVE BEEN ISSUED AND SOLD PURSUANT TO AN EXEMPTION FROM THE
ACT, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED BY THE HOLDER THEREOF
AT ANY TIME, EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT,
FILED UNDER THE ACT COVERING THE SHARES, OR (2) UPON DELIVERY TO THE
CORPORATION OF AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT THE
SHARES MAY BE TRANSFERRED WITHOUT REGISTRATION”; and
(b) Any
other legend required to be placed thereon by state and federal securities
authorities.
6. Purchaser Representations
and Warranties. Purchaser acknowledges that the Shares have
not been registered under the Securities Act of 1933, as amended, (the “Act”) in
reliance upon certain exemptions from registration under the Act. In
this connection, Purchaser represents and warrants to the Company as follows and
acknowledges that the Company shall rely on such representations and warranties
for, amongst other things, determining the exemptions from registration under
the Act available to it:
(a) The
President of Purchaser is Chairman of the Board of the Company and has been a
director of the Company for more than three (3) years. Purchaser has the
capacity to protect its own interests in connection with the transaction
contemplated by this Agreement.
(b) Purchaser
is an “accredited investor” as defined in Regulation D promulgated under the
Act.
(c) Purchaser
recognizes that an investment in the Company involves substantial
risks. Purchaser has taken full cognizance of and understands all of
the risks related to the purchase of the Shares. Purchaser
acknowledges that it has considered and has, to the extent Purchaser believes
such discussion necessary, discussed with Purchaser’s professional, legal,
financial and tax advisers, the suitability of an investment in the Company for
Purchaser’s particular financial and tax situation and has determined that the
Shares are a suitable investment for him.
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(d) Purchaser
acknowledges that it has had the opportunity to ask questions of, and receive
answers from, representatives of the Company concerning the terms and conditions
of this Agreement and Purchaser’s investment in the Company. Any
questions raised by Purchaser have been answered to the satisfaction of
Purchaser. The Company has made available to Purchaser all documents
and information that Purchaser has requested relating to an investment in the
Company. The Purchaser has reviewed and is familiar with the
Company’s periodic and current reports filed with the U.S. Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
including, but not limited to, the Company’s Annual Report on Form 10-K for the
fiscal year ended June 30, 2007 and the Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K filed since such date, and the risk factors set
forth in such documents.
(e) Purchaser
is purchasing the Shares for its own account, for investment only, and not with
a view to, or for resale in connection with, any distribution
thereof. Purchaser does not have any present intention of selling or
otherwise transferring the Shares or any interest therein. Purchaser
acknowledges and agrees that the Shares may not be sold, transferred, pledged or
otherwise disposed of without registration under the Act and applicable state
securities laws or in accordance with applicable exemptions there
from. Purchaser acknowledges and agrees that it is familiar with Rule
144 as promulgated pursuant to the Act and has been advised that transferability
of the Shares under Rule 144 is currently not available to Purchaser as a result
of the Company’s previous status as a “shell company” and the Company has made
no representation to Purchaser as to when Rule 144 may be made available to
Purchaser.
(f) Purchaser
acknowledges that no representations or promises have been made concerning the
marketability or value of the Shares. The Company has not agreed with
or represented to Purchaser that the Shares will be purchased or redeemed from
Purchaser at any time in the future. There have been no
representations, promises or agreements that the Shares will be registered under
the Act at any time in the future or otherwise qualified for sale under
applicable securities laws. Purchaser acknowledges that he may be
required to bear the economic risk of an investment in the Company for an
indefinite period of time.
(g) Purchaser
is duly formed, validly existing and in good standing as a charitable foundation
under the laws of the State of Delaware.
(h) Purchaser
has the power and authority to make, deliver and perform its obligations under
this Agreement and to purchase the Shares hereunder and has taken all necessary
action to authorize the execution, delivery and performance of its obligations
under this Agreement. This Agreement has been duly executed and
delivered on behalf of the Purchaser, and assuming due authorization, execution
and delivery hereof by the Company, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and general principles of
equity.
(i) The
representations and warranties made by Purchaser herein are made by Purchaser
with the intent that they be relied upon by the Company in determining the
suitability of Purchaser as a purchaser of the Shares. Purchaser
undertakes to notify the Company immediately of any change in any
representation, warranty or other information relating to Purchaser set forth
herein or otherwise conveyed to the Company by the
Purchaser. Purchaser hereby agrees that such representations and
warranties and any agreement, undertakings and acknowledgments herein shall
survive the purchase and sale of the Shares, and Purchaser hereby agrees to
indemnify the Company, each of its affiliates and each of its and their
respective officers and directors and hold them harmless from and against any
and all loss, damages, liability or expense, including costs and reasonable
attorneys’ fees, which they may incur by reason of or in connection with any
misrepresentation or breach of any representation, warranty or covenant of
Purchaser set forth herein.
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7. Company Representations and
Warranties. The Company represents and warrants to the
Purchaser as follows:
(a) The
Company is duly incorporated, validly existing and in good standing as a
corporation under the laws of the State of Utah.
(b) The
authorized capital stock of the Company as of the date of the Company’s
Quarterly Report on Form 10-QSB for the quarter ended March 31, 2008 consists of
(i) 325,000,000 shares of common stock, of which there are currently 64,212,106
issued and outstanding, and (ii) 5,000,000 shares of preferred stock, par value
$0.001 per share, of which none are currently issued and
outstanding. All issued shares of common tock are validly issued,
fully paid and non-assessable.
(c) The
Company has the corporate power and authority to make, deliver and perform its
obligations under this Agreement and to issue the Shares hereunder and has taken
all necessary corporate action to authorize the execution, delivery and
performance of its obligations under this Agreement. This Agreement
has been duly executed and delivered on behalf of the Company, and assuming due
authorization, execution and delivery hereof by the Purchaser, constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and general principles
of equity.
(d) Upon
issuance, sale and delivery in accordance with the terms and conditions of this
Agreement, the Shares will be free and clear of any and all liens, claims,
options or rights to purchase, security interests, pledges, encumbrances or any
other restrictions or rights of third parties, except for restrictions on
transfer under the securities laws and as otherwise contained
herein.
(e) The
Shares, when issued, sold and delivered to the Purchaser in accordance with the
terms and conditions of this Agreement, will be fully paid, validly issued and
non-assessable.
8. Federal Law Restrictions on
Transfer. Without in any way limiting the representations set
forth above or reducing any rights of the Company herein, Purchaser agrees not
to make any disposition of all or any portion of the Shares unless and
until:
(a) There
is then in effect a Registration Statement under the Act covering such proposed
disposition and such disposition is made in accordance with said Registration
Statement; or
(b) Purchaser
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a detailed statement of the circumstances surrounding
the proposed disposition, and, if so requested by the Company, shall have
furnished the Company with an opinion of counsel reasonably satisfactory to the
Company to the effect that such disposition will not require registration of
such shares under the Act and is otherwise exempt under the Act and any
applicable “blue-sky” laws, and such opinion of counsel shall have been
concurred in by counsel for the Company and the Company shall have advised
Purchaser of such concurrence.
9. Stop Transfer Instructions;
Refusal to Transfer. Purchaser agrees that in order to ensure
compliance with the restrictions referred to herein, the Company may issue
appropriate “stop transfer” instructions to its transfer agent, if any, with
respect to such certificates or instruments and, if the Company transfers its
own securities, it may make appropriate notations to the same effect in its own
records. The Company shall not be required (i) to transfer on
its books any Shares that have been sold or otherwise transferred in violation
of any of the provisions of this Agreement or (ii) to treat as owner of
such Shares or to accord the right to vote or pay dividends to any purchaser or
other transferee to whom such Shares shall have been so
transferred.
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10. Market
Stand-Off. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the Act, Purchaser agrees not to sell, make any short sale
of, loan, hypothecate, pledge, grant any option for the purchase of, or
otherwise dispose of or transfer for value or otherwise agree to engage in any
of the foregoing transactions with respect to the Shares without the prior
written consent of the Company or its underwriters, for such period of time from
and after the effective date of such registration statement as may be requested
by the Company or such underwriters.
11. THE SALE OF THE SECURITIES WHICH ARE
THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA, AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH
QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES IS EXEMPT FROM
QUALIFICATION BY SECTIONS 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UNLESS THE SALE IS SO EXEMPT.
12. Miscellaneous.
(a) Further
Assurances. The parties agree to execute any additional
instruments and to take any additional action as may reasonably be necessary to
carry out the intent of this Agreement.
(b) Successors and
Assigns. This Agreement shall inure to the benefit of the
successors and assigns of the Company and be binding upon Purchaser, his heirs,
executors, administrators, successors, and permitted assigns.
(c) Entire Agreement;
Amendment. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and thereof. No
amendment or variation of the terms of this Agreement, with or without
consideration, shall be valid unless made in writing and signed by all of the
parties to this Agreement at the time of such amendment.
(d) Governing Law;
Severability. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as such laws
are applied to agreements between California residents entered into and to be
performed entirely in California. To the extent that any of the
agreements set forth herein, or any word, phrase, clause, or sentence thereof
shall be found to be illegal or unenforceable for any reason, such agreement,
word, phrase, clause, or sentence shall be modified or, if necessary, deleted in
such a manner so as to make the Agreement, as modified, legal and enforceable
under applicable laws.
(e) Counterparts. This
Agreement may be executed in counterparts, each of which when executed and
delivered will be deemed to be an original but all of which taken together will
constitute one and the same Agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first written above.
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CHAPEAU,
INC., a Utah corporation doing business as BluePoint
Energy
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By:
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/s/ Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title: Interim
Chief Executive Officer and
President
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Address:
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0000
Xxxxxxx Xxxx, Xxxxx 0
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Xx
Xxxxxx Xxxxx, XX 00000
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Facsimile:
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000-000-0000 |
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XXXXXX
X. AND XXXXX X. XXXXX FOUNDATION
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By:
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/s/ Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title:
President
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Address:
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0000 Xxxxxx Xxxxx Xxx | |
| Xxxxxxx, XX 00000 | ||
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Facsimile:
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