PURCHASE AGREEMENT
EXHIBIT
10.2
This
purchase agreement (this “Agreement”)
is
dated as of April 7, 2006, by and between the purchaser set forth on the
signature page hereto (the “Purchaser”)
and
SpatiaLight, Inc., a New York corporation (the “Company”),
whereby the parties agree as follows:
1. Offering.
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a)
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The
Company has authorized the sale and issuance of up to an aggregate
of
1,000,000 of its Common Shares (the “Shares”),
to one or more purchasers (the “Offering”).
The Company represents and warrants that the Offering has been registered
with the U.S. Securities and Exchange Commission (“SEC”)
under the Securities Act of 1933, as amended (the “Securities
Act”),
pursuant to the Company’s Registration Statement on Form S-3 (No.
333-122392), as subsequently amended from time to time, which registration
statement has been declared effective by the SEC, and has remained
effective since the SEC declared it effective and is effective on
the date
hereof (the “Registration
Statement”).
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b)
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The
Company and the Purchaser agree that, at the Closing (as defined
in
Section 2), the Purchaser will purchase from the Company and the
Company
will issue and sell to the Purchaser the number of Shares set forth
on the
signature page of this Agreement for a purchase price set forth on
the
signature page of this Agreement (the “Purchase
Price”)
pursuant to the terms and conditions set forth herein. Certificates
representing the Shares purchased by the Purchaser may not be delivered
to
the Purchaser; instead, such Shares, if not physically delivered,
will be
credited to the Purchaser using customary book-entry
procedures.
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c)
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The
Company may enter into agreements with certain other purchasers
(the
"Other
Purchasers"),
on materially the same terms and conditions as those set forth
herein.
(The Purchaser and the Other Purchasers are hereinafter sometimes
collectively referred to as the "Purchasers" and this Agreement
and the
stock purchase agreements executed by the Other Purchasers are
hereinafter
sometimes collectively referred to as the "Purchase
Agreements").
The Company may accept or reject Purchase Agreements in its sole
discretion.
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d)
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The Company agrees to file
by 9:00 a.m.
Eastern time on the first business day following the date hereof
with the
SEC a prospectus supplement in a form similar to Exhibit
A
hereto regarding the sale of the Shares to Purchaser (the “Prospectus
Supplement”)
after consummation of the sale of the Shares contemplated by this
Agreement.
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2. Delivery
of the Shares at Closing.
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a)
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The
completion of the purchase and sale of the Shares (the "Closing")
shall occur on April 7, 2006 (the "Closing
Date").
At the Closing, the Purchaser shall deliver to the Company a certified
or
official bank check or wire transfer of funds in the full amount
of the
purchase price for the Shares being purchased hereunder as set forth
on
the signature page hereto, and the Company shall deliver to the Purchaser,
at the sole discretion of the Purchaser, stock certificates or using
customary book-entry procedures (such as the Depository Trust Company’s
Deposit Withdrawal Agent Commission system) evidencing the number
of
Shares, set forth on the signature page
hereto.
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b)
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The
Company's obligation to issue and sell the Shares to the Purchaser
shall
be conditioned upon the accuracy of the representations and warranties
made by the Purchaser and the fulfillment of those undertakings of
the
Purchaser to be fulfilled prior to the
Closing.
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3. Company
Representations and Warranties.
The
Company hereby represents and warrants that: (a) it has full right, power and
authority to enter into this Agreement and to perform all of its obligations
hereunder; (b) this Agreement has been duly authorized and executed by and
constitutes a valid and binding agreement of the Company enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
(c) the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby do not conflict with or result in a material
breach of (i) the Company's Amended and Restated Certificate of Incorporation
or
by-laws, as amended, or (ii) any material agreement to which the Company is
a
party or by which any of its property or assets is bound; and (d) upon receipt
of the Purchase Price, the Shares will be duly and validly issued, fully paid
and non-assessable, and the Purchaser will be entitled to all rights accorded
to
a holder of the Company’s Common Shares.
4. Purchaser
Representations and Warranties.
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a)
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The
Purchaser represents and warrants that (a) it has had no position,
office
or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, and
(b) it
is not a NASD member as of the date
hereof.
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b)
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The
Purchaser hereby confirms receipt of the base prospectus included
in the
Registration Statement, as amended, and the Prospectus Supplement
(together, the “Prospectus”).
The Purchaser confirms that it has had full access to the Prospectus
and
has been fully able to read, review, download and print the
Prospectus.
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c)
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The
Purchaser further represents and warrants to, and covenants with,
the
Company that (i) the Purchaser has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize
the
execution, delivery and performance of this Agreement, and (ii) this
Purchase Agreement constitutes a valid and binding obligation of
the
Purchaser enforceable against the Purchaser in accordance with its
terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
such
enforceability may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity
or
at law).
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d)
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The
Purchaser understands that nothing in the Prospectus, this Agreement
or
any other materials presented to the Purchaser in connection with
the
purchase and sale of the Shares constitutes legal, tax or investment
advice. The Purchaser has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of
Shares.
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e)
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The
Purchaser has not, directly or indirectly, during the period beginning
180
days before the Company first contacted Purchaser regarding the
transactions contemplated by this Agreement and ending on the Closing
Date, engage in: (i) any “short sales” (as such term is defined in Rule
200 promulgated under the Securities and Exchange Act of 1934, as
amended
(the “Exchange Act”) of the Company’s Common Shares, including without
limitation, the maintaining of any short position with respect to,
establishing or maintaining a “put equivalent position” (within the
meaning of Rule 16a-1(h) under the Exchange Act) with respect to,
entering
into any swap, derivative transaction or other arrangement (whether
any
such transaction is to be settled by delivery of Common Shares, other
securities, cash or other consideration) that transfers to another,
in
whole or in part, any economic consequences or ownership, or otherwise
dispose of, any Common Shares by Purchaser; or (ii) any hedging
transaction which establishes a net short position with respect to
the
Common Shares.
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5. Notice.
All
communications hereunder, except as may be otherwise specifically provided
herein, shall be in writing and shall be mailed, hand delivered, sent by a
recognized overnight courier service such as Federal Express, or sent via
facsimile and confirmed by letter, to the party to whom it is addressed at
the
following addresses or such other address as such party may advise the other
in
writing:
To
the
Company: as
set
forth on the signature page hereto.
To
the
Purchaser: as
set
forth on the signature page hereto.
All
notices hereunder shall be effective upon receipt by the party to which it
is
addressed.
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6. Jurisdiction.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New York, as if fully performed in New York, without giving effect
to the principles of conflicts of law thereof. Each of the parties consents
to
the exclusive jurisdiction of the United States district court of the Southern
District of New York or the state courts of the State of New York sitting in
the
City of New York in connection with any dispute arising under this Agreement,
and hereby waives, to the maximum extent permitted by law, any objection
based on forum
non conveniens.
7. Miscellaneous.
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a)
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This
Agreement (and the Prospectus and any prospectus supplement) constitutes
the entire understanding and agreement between the parties with respect
to
its subject matter and there are no agreements or understandings
with
respect to the subject matter hereof which are not contained in this
Agreement.
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b)
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This
Agreement may be executed in any number of counterparts, all of
which
taken together shall constitute one and the same instrument and
shall
become effective when counterparts have been signed by each party
and
delivered to the other parties hereto, it being understood that
all
parties need not sign the same counterpart. Execution may be made
by
delivery by facsimile.
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c)
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This
Agreement may not be modified or amended except pursuant to an instrument
in writing signed by the Company and the
Purchaser.
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d)
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The
headings of the various sections of this Agreement have been inserted
for
convenience of reference only and shall not be deemed to be part
of this
Agreement.
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e)
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In
case any provision contained in this Agreement should be invalid,
illegal
or unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions contained herein shall not in any way
be
affected or impaired thereby.
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If
the
foregoing correctly sets forth our agreement with respect to the subject matter
hereof, please confirm this by signing and returning to us the duplicate copy
of
this letter.
| SPATIALIGHT, INC. | ||
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| By: | /s/ /s/ Xxxxxx X. Xxxxx | |
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Name: Xxxxxx X. Xxxxx |
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Title:
CEO
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Address
for Notice:
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| 0 Xxxxxxxx Xxxxxxx | ||
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Xxxxx
000
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| Xxxxxx, XX 00000 | ||
| AGREED AND ACCEPTED: | ||
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PURCHASER:
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| SF Capital Partners Ltd. | ||
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| By: | /s/ Xxxxxxx X. Xxxx | |
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Name: Xxxxxxx X. Xxxx |
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| Title: Managing Member | ||
| Number of Shares: 250,000 | ||
| Purchase Price per Share: $3.26* | ||
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Aggregate
Purchase Price:
$815,000.00
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Tax
ID No.:
00-0000000
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Address
for Notice:
Name
in which book-entry should be made (if different):
______________________
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____________________
*
Equal to
five-day volume weighted average price of the Company’s common shares ended
April 6, 2006, discounted by five percent (5%).
EXHIBIT
A
| Filed Pursuant to Rule 424(b)(2) [or (5)] |
Registration
No. 333-______
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PROSPECTUS
SUPPLEMENT
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(TO
PROSPECTUS DATED
_________________)
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SPATIALIGHT,
INC.
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___________
Common Shares
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You
should read this prospectus supplement and the accompanying Prospectus carefully
before you invest. Both documents contain information you should consider when
making your investment decision.
AN
INVESTMENT IN OUR SECURITIES INVOLVES SUBSTANTIAL RISKS. THESE RISKS ARE
DESCRIBED UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE ___ OF THE
PROSPECTUS ACCOMPANYING THIS PROSPECTUS SUPPLEMENT.
We
are
offering _____________ of our Common Shares to one or more institutional
investors pursuant to this prospectus supplement. The purchase price for these
Common Shares is $_______ in the aggregate, or $_____ per Share.
Our
Common Shares are quoted on the Nasdaq SmallCap Market under the symbol "HDTV".
On _______, the last reported sales price of our Common Shares was $____ per
Share.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY BODY HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE RELATED PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The
date
of this prospectus supplement is ________________.
