COMMON STOCK PURCHASE AGREEMENT
AGREEMENT entered into as of
the 20th day of
December, 2010, by and between WRASP 34, Inc., a
Delaware corporation with an address at 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx by the Xxx, XX 00000 (the “Company”) and Xxxxxx Xxxxxx (the
“Purchaser”).
WHEREAS,
the Purchaser desires to purchase, and the Company desires to sell, an aggregate
of 287,137 shares (the “Shares”) of the Company’s common stock, par value $.0001
per share (the “Common Stock”) upon the terms and conditions
hereof.
WHEREAS,
the Purchaser agrees that the Shares shall be subject to a repurchase option by
the Company in accordance with the terms and conditions described in Section 1.2
herein; and
WHEREAS,
WestPark Capital Financial Services, LLC (“WPC”) has advanced the Company an
aggregate of $39,500 (the “Advances”) for the payment of certain expenses and
fees incurred by the Company through the date of this Agreement and the
Purchaser has agreed to reimburse WPC up to an amount equal to 3.5% of the
Advances; and
WHEREAS,
Xxxxxxx X. Xxxxxxxxxxxx and Xxxxxxx Xxxxxxxxx (together with Xxxxxxx X.
Xxxxxxxxxxxx, the “Indemnitees”) are either members of the board of directors of
the Company (the “Board of Directors”) or officers of the Company, or both, and
in such capacity or capacities, or otherwise as Agents (as hereinafter defined)
of the Company, are performing valuable services for the Company and the
Purchaser agrees to indemnify the Indemnitees in accordance with the terms and
conditions herein.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, the Purchaser and the Company hereby agree as follows:
SECTION
1: SALE OF THE SHARES
1.1 Sale of the
Shares. Subject to the terms and conditions hereof, the
Company will sell and deliver to the Purchaser and the Purchaser will purchase
from the Company, upon the execution and delivery hereof, the Shares for a
purchase price equal to $202.29 (the “Purchase Price”).
1.2 Repurchase
Option. (a) Anytime following the date of this
Agreement (the “Repurchase Period”), the Company shall have an irrevocable,
exclusive option, but not the obligation, to repurchase all or any portion of
the Shares (to the extent repurchased, the “Repurchased Shares”), in accordance
with Section 1.2(b) herein (the "Repurchase Option"). The Repurchase
Option shall be exercisable at a price equal to two times the sum of (a) the
Purchase Price and (b) any advances or additional cash contributions to capital
made by the Purchaser (the "Repurchase Price"). The Repurchase Option shall be
exercisable by the Company, at any time during the Repurchase Period, by
delivering written notice (the “Repurchase Notice”) to such Purchaser of its
election to exercise its Repurchase Option. The Repurchase Notice shall provide
(i) that the Company is exercising its Repurchase Option in connection with this
Agreement; (ii) the number of Shares the Company is repurchasing (the
“Repurchased Shares”) and (iii) the aggregate Repurchase Price to be paid for
the Repurchased Shares. The Repurchase Notice shall be accompanied by a
check made out in the name of such Purchaser, or other immediately available
funds shall be provided, for an amount equal to the Repurchase Price. Upon
delivery of the Repurchase Notice and the Repurchase Price, the Shares so
repurchased and all rights and interests therein or relating thereto shall be
deemed canceled and the Company shall have the right to retain and transfer to
its own name the Repurchased Shares. The Repurchase Option set forth in this
Section may be assigned by the Company in whole or in part in its sole
discretion.
(b) If the Company shall exercise the
Repurchase Option, at any time during the Repurchase Period and the Company
consummates (i) a merger or other business combination with an operating
business or (ii) a transaction pursuant to which the Company ceases to be a
“shell company,” as defined by Rule 12b-2 under the Securities Exchange Act of
1934, as amended and a “blank check company,” as defined by Rule 419 of the
Securities Act of 1933, as amended (a transaction pursuant to clause (i) or (ii)
above, the “Business Combination”), upon written request from the Purchaser
delivered within 30 days after the consummation of the Business Combination, the
Company shall have the obligation to reissue to the Purchaser, in exchange for
such Purchaser paying the Company the Repurchase Price, such number of Shares as
shall be necessary so that the Purchaser shall acquire (1) all of the
Repurchased Shares, if the Business Combination is consummated any time during
the 30 day period from the date that the Company repurchases the Shares; (2)
two-thirds (2/3) of the Shares, if the Business Combination is consummated any
time during the period beginning 31 days through and including 60 days from the
date that the Company repurchases the Shares; or (3) one-third (1/3) of the
Shares, if the Business Combination is consummated any time during the period
beginning 61 days through and including 90 days from the date that the Company
repurchases the Shares. If the Company shall consummate a Business Combination
at any time after the 90th day
that the Company has exercised the Repurchase Option, the Purchaser shall not
have the right to cause the Company to reissue any of the Shares. The
number of Repurchased Shares to be reissued shall be adjusted to the extent the
number of outstanding shares of Common Stock or the Company is adjusted at any
time prior to the Business Combination. For example, if current
shareholders of the Company are required to surrender and cancel any shares of
Common Stock as a condition to the Business Combination, the number of
Repurchased Shares to be reissued shall be reduced on a pari passu
basis. However, the aggregate Repurchase Price will still be paid by
the Shareholder upon issuance of such readjusted number of Repurchased
Shares.
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1.3 Indemnification.
(a) The
Purchaser shall, with respect to any threatened, pending or completed action,
claim, suit, arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative, that is associated with Indemnitees acting in
any way for or on behalf of the Company, as officer and/or director of the
Company, absent bad faith or intentional misconduct (“Proceeding”), indemnify
Indemnitees to the fullest extent permitted by applicable law and the
Certificate of Incorporation of the Company in effect on the date hereof or as
such law or Certificate of Incorporation may from time to time be amended (but,
in the case of any such amendment, only to the extent such amendment permits the
Company to provide broader indemnification rights than the law or Certificate of
Incorporation permitted the Company to provide before such amendment). Without
in any way diminishing the scope of the indemnification provided by this Section
1.3, the Purchaser will indemnify Indemnitees to the full extent permitted by
law if and wherever Indemnitees are or were parties or are threatened to be made
a parties to any Proceeding, including any such Proceeding brought by or in the
right of the Purchaser, by reason of the fact that Indemnitees are or were
directors or officers of the Company or by reason of anything done or not done
by Indemnitees in such capacities, against Expenses (as hereinafter defined) and
Liabilities (as hereinafter defined) actually and reasonably incurred by
Indemnitees or on their behalves in connection with the investigation, defense,
settlement or appeal of such Proceeding. Notwithstanding the foregoing, the
Purchaser shall be required to indemnify Indemnitees in connection with a
Proceeding commenced by Indemnitees (other than a Proceeding commenced by
Indemnitees to enforce Indemnitees’ rights under this Agreement) only if the
commencement of such Proceeding was authorized by the Board of
Directors.
(b) Whenever
Indemnitees believes that Indemnitees are entitled to indemnification pursuant
to this Agreement, Indemnitees shall submit a written claim for indemnification
to the Purchaser. Any claim for indemnification shall include sufficient
documentation or information reasonably available to Indemnitees explaining the
entitlement to indemnification. In any event, Indemnitees shall submit
Indemnitees’ claim for indemnification within a reasonable time, not to exceed
five (5) years after any judgment, order, settlement, dismissal, arbitration
award, conviction, acceptance of a plea of nolo contendere or its equivalent, or
final termination, whichever is the later date for which Indemnitee requests
indemnification.
(c) Upon
making a request for indemnification, Indemnitees shall be presumed to be
entitled to indemnification under this Agreement and the Purchaser shall have
the burden of proof to overcome that presumption in reaching any contrary
determination. The termination of any Proceeding by judgment, order, settlement,
arbitration award or conviction, or upon a plea of nolo contendere or its
equivalent shall not affect this presumption or, except as determined by a
judgment or other final adjudication adverse to Indemnitees, establish a
presumption with regard to any factual matter relevant to determining
Indemnitees’ rights to indemnification hereunder.
(d) “Expenses” shall
include all direct and indirect costs (including, without limitation, attorneys’
fees, retainers, court costs, transcripts, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, all other disbursements or out-of-pocket
expenses and reasonable compensation for time spent by Indemnitees for which
Indemnitees are otherwise not compensated by the Company, the Purchaser or any
third party) actually and reasonably incurred in connection with either the
investigation, defense, settlement or appeal of a Proceeding or establishing or
enforcing a right to indemnification under this Agreement, applicable law or
otherwise; provided, however, that “Expenses” shall not include any
Liabilities.
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(e) “Liabilities” shall
mean liabilities of any type whatsoever including, but not limited to, any
judgments, fines, ERISA excise taxes and penalties, penalties and amounts paid
in settlement (including all interest assessments and other charges paid or
payable in connection with or in respect of such judgments, fines, penalties or
amounts paid in settlement) of any Proceeding.
1.4 Advances. The
Purchaser agrees to reimburse WPC in an amount equal to 3.5% of the Advances
(the “Reimbursement”), such amount to be due and payable at the Closing and the
Company agrees that upon repayment of the Advances, an amount equal to the
Reimbursement shall be due and payable to the Purchaser and the Company shall
cause WPC to release all claims or rights to repayment of that portion of the
Advances equal to the Reimbursement. All amounts paid in connection
with the Reimbursement shall be applied towards the Repurchase Price in
accordance with Section 1.2(b) herein.
SECTION
2: CLOSING DATE; DELIVERY
2.1 Closing
Date. The closing of the purchase and sale of the Shares
hereunder (the “Closing”) shall be held immediately following the execution and
delivery of this Agreement.
2.2 Delivery at Closing.
At the Closing, the Company will deliver to the Purchaser a stock certificate
registered in the Purchaser’s name, representing the number of Shares to be
purchased by Purchaser hereunder, against payment of the purchase price
therefore as indicated above.
SECTION
3: REPRESENTATIONS AND WARRANTIES OF PURCHASER
The
undersigned Purchaser hereby represents and warrants to the Company as
follows:
3.1 Transfer of
Shares. The Shares have not been registered under the
Securities Act and cannot be sold or otherwise transferred without an effective
registration or an exemption therefrom, and as of the date of this Agreement,
may not be sold pursuant to the exemptions provided by Section 4(1) of the
Securities Act in accordance with the letter from Xxxxxxx X. Xxxxx, Chief of the
Office of Small Business Policy of the Securities and Exchange Commission’s
Division of Corporation Finance, to Xxx Worm of NASD Regulation, Inc., dated
January 21, 2000.
3.2 Experience. The
Purchaser has such knowledge and experience in financial and business matters
that the undersigned is capable of evaluating the merits and risks of investment
in the Company and of making an informed investment decision. The
Purchaser has adequate means of providing for the Purchaser's current needs and
possible future contingencies and the undersigned has no need, and anticipates
no need in the foreseeable future, to sell the Shares for which the Purchaser
subscribes. The Purchaser is able to bear the economic risks of this
investment and, consequently, without limiting the generality of the foregoing,
the undersigned is able to hold the Shares for an indefinite period of time and
has sufficient net worth to sustain a loss of the undersigned's entire
investment in the Company in the event such loss should occur. Except as
otherwise indicated herein, the undersigned is the sole party in interest as to
its investment in the Company, and it is acquiring the Shares solely for
investment for the undersigned's own account and has no present agreement,
understanding or arrangement to subdivide, sell, assign, transfer or otherwise
dispose of all or any part of the Shares subscribed for to any other
person.
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3.3 Investment; Access to
Data. The Purchaser has carefully reviewed and understands the
risks of, and other considerations relating to, a purchase of the Common Stock
and an investment in the Company. The Purchaser has been furnished materials
relating to the Company and anything that it has requested and has been afforded
the opportunity to ask questions and receive answers concerning the terms and
conditions of the offering and obtain any additional information which the
Company possesses or can acquire without unreasonable effort or
expense. Representatives of the Company have answered all inquiries
that the Purchaser has made of them concerning the Company, or any other matters
relating to the formation and operation of the Company and the offering and sale
of the Common Stock. The Purchaser has not been furnished any offering
literature other than the materials that the Company may have provided at the
request of the Purchaser; and the Purchaser has relied only on such information
furnished or made available to the undersigned by the Company as described in
this Section. The Purchaser is acquiring the Shares for investment for the
Purchaser's own account, not as a nominee or agent and not with the view to, or
for resale in connection with, any distribution thereof. The
Purchaser acknowledges that the Company is a start-up company with no current
operations, assets or operating history, which may possibly cause a loss of the
Purchaser’s entire investment in the Company.
3.4 Authorization. (a)
This Agreement, upon execution and delivery thereof, will be a valid and binding
obligation of the Purchaser, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization and moratorium laws and
other laws of general application affecting enforcement of creditors' rights
generally.
(b) The
execution, delivery and performance by the Purchaser of this Agreement and
compliance therewith and the purchase and sale of the Shares will not result in
a violation of and will not conflict with, or result in a breach of, any of the
terms of, or constitute a default under, any provision of state or Federal law
to which the Purchaser is subject, or any mortgage, indenture, agreement,
instrument, judgment, decree, order, rule or regulation or other restriction to
which the Purchaser is a party or by which the Purchaser is bound, or result in
the creation of any mortgage, pledge, lien, encumbrance or charge upon any of
the properties or assets of the Purchaser pursuant to any such
term.
3.5 Accredited
Investor. Purchaser is an accredited investor as defined in
Rule 501(a) of Regulation D under the Securities Act of 1933, as amended and has
executed the statement of accredited investor annexed hereto as Exhibit
A.
SECTION
4: MISCELLANEOUS
4.1 Governing
Law. This Agreement shall be governed in all respects by the
laws of the State of Delaware, without regard to conflicts of laws principles
thereof.
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4.2 Survival. The
terms, conditions and agreements made herein shall survive the
Closing.
4.3 Successors and
Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto.
4.4 Entire Agreement; Amendment;
Waiver. This Agreement constitutes the entire and full
understanding and agreement between the parties and supersedes all prior oral or
written agreements and understandings, if any, with regard to the subject matter
hereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated, except by a written instrument signed by all
the parties hereto.
4.5 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together, shall constitute one
instrument.
[The
remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the
undersigned have hereunto set their hands as of the day and year first above
written.
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WRASP
34, INC.
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By:
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/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxx
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President
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PURCHASER
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/s/ Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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Exhibit
A
STATEMENT
OF ACCREDITED INVESTOR
To: WRASP
34, INC. (the “Company”)
Ladies
and Gentlemen:
The
undersigned hereby refers to the Securities Purchase Agreement executed and
delivered to the Company by the undersigned as of the date hereof. In
connection with the subscription thereunder by the undersigned to purchase
securities of the Company, the undersigned hereby represents and warrants that
such individual or entity meets at least one of the tests listed below for an
"accredited investor" (as such term is defined under Regulation D promulgated
pursuant to the Securities Act of 1933, as amended).
"Accredited Investors" are accorded
special status under the federal securities laws. Individuals who hold certain
positions with an issuer or its affiliates, or who have certain minimum
individual income or certain minimum net worth (each as described below) may
qualify as Accredited Investors. Partnerships, corporations or other
entities may qualify as Accredited Investors if they fulfill certain financial
and other standards, or if all of their equity owners have incomes and/or net
worth which qualify them individually as Accredited Investors, and trusts may
qualify as Accredited Investors if they meet certain financial and other tests
(as described below).
You may
qualify as an Accredited Investor under Regulation D promulgated under the
Securities Act of 1933 (the "1933 Act") if you meet any of the following tests
(please check all that apply):
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o
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The undersigned is an
individual who is a director or executive officer of the
Company. An “executive officer” is the president, a vice
president in charge of a principal business unit, division or function
(such as sales, administration or finance), any other officer who performs
a policy making function or any other person who performs similar policy
making functions for the Company.
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x
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The undersigned is an
individual that (1) had individual income of more than $200,000 in each of
the two most recent fiscal years and reasonably expects to have individual
income in excess of $200,000 in the current year, or (2) had joint income
together with the undersigned’s spouse in excess of $300,000 in each of
the two most recent fiscal years and reasonably expects to have joint
income in excess of $300,000 in the current
year. “Income” means adjusted gross income, as reported
for federal income tax purposes, increased by the following
amounts: (i) any tax exempt interest income under Section 103
of the Internal Revenue Code (the “Code”) received, (ii) any losses
claimed as a limited partner in a limited partnership as reported on
Schedule E of Form 1040, (iii) any deduction claimed for depletion under
Section 611 of the Code or (iv) any amount by which income has been
reduced in arriving at adjusted gross income pursuant to the provisions of
Section 1202 of the Code. In determining personal income,
however, unrealized capital gains should not be
included.
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¨
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The undersigned is an
individual with individual net worth, or combined net worth together with
the undersigned’s spouse, in excess of $1,000,000. “Net
worth” means the excess of total assets at fair market value (excluding
the primary residence) over total liabilities excluding (debt obligations on the
principal residence).
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¨
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The undersigned is a Trust with
total assets in excess of $5,000,000, was not formed for the
specific purpose of acquiring securities of the Company, and the purchase
of the securities is directed by a person with such knowledge and
experience in financial and business matters that he is capable of
evaluating the risks and merits of the prospective investment in such
securities.
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¨
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The undersigned is a
corporation, partnership, limited liability company or limited liability
partnership that has total assets in excess of $5,000,000 and was
not formed for the specific purpose of acquiring securities of the
Company.
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¨
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The undersigned is an entity in
which all of its equity owners are “accredited
investors”.
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Dated: December
20, 2010
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Very
truly yours,
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Name
of Individual #1 or Entity
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Authorized
Signature
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Name
of Individual #2, if applicable
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Authorized
Signature
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