ALTAIR NANOTECHNOLOGIES INC. STOCK PURCHASE AGREEMENT
EXHIBIT
10.1
THIS
STOCK PURCHASE AGREEMENT (this “Agreement”)
is
made and entered into on March 2, 2007 by and between Altair Nanotechnologies
Inc., a Canadian corporation (the “Company”),
and
The AES Corporation, a Delaware corporation (the “Investor”).
In
consideration of the mutual covenants set forth herein, and other good
and
valuable consideration, the Company and Investor hereby agree as
follows:
1. Purchase
of Shares.
1.1 Sale
and Issuance of Shares.
Subject
to the terms and conditions of this Agreement, on the date hereof,
the Investor
shall purchase, and the Company shall sell and issue to the Investor,
at the
Closing (as defined below), that number of common shares of the Company
equal to
the result of the Purchase Price (as defined below) divided by the
closing price
for one common share of the Company as listed on the NASDAQ National
Market
System on the trading day immediately preceding the date hereof, rounded
up to
the nearest whole share (the “Shares”).
The
purchase price for the Shares shall be $3,000,000 (the “Purchase
Price”).
The
Purchase Price shall be paid to the Company in cash via wire transfer
to the
account designated by the Company on Exhibit A attached hereto.
1.2 Closing.
The
closing (the “Closing”)
of the
purchase and sale of the Shares shall take place on the date hereof,
concurrently with the execution and delivery of this Agreement, and
shall be
deemed to have occurred at the offices of the Company at 000 Xxxxxx
Xxx, Xxxx,
Xxxxxx 00000. At the Closing, Investor shall wire transfer the Purchase
Price to
the Company as contemplated by the last sentence of Section 1.1 of
this
Agreement. Upon receipt of the Purchase Price, the Company shall cause
a
certificate representing the Shares, issued in the name of the Investor,
to be
delivered, via express courier to Investor, signature required, at
the address
for Investor set forth on the signature page hereof (or such other
address as
Investor may designate in writing), which Shares shall be deemed to
be delivered
upon actual receipt by Investor. At the Closing, the Company shall
cause its
stock transfer records to indicate that the Investor is the record
owner of the
Shares.
2. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Investor as of the date
of this
Agreement (or, if a different date is stated in such representation
and warranty
as of such date) as follows:
2.1 Due
Authorization.
All
corporate action on the part of the Company necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations
of
the Company hereunder, and the authorization, issuance and delivery
of the
Shares has been taken, and no further consent or authorization of the
Company's
board of directors or its stockholders is required, and this Agreement
constitutes the valid and legally binding obligation of the Company,
enforceable
in accordance with its respective terms subject to applicable bankruptcy,
insolvency, and other similar laws affecting creditors’ rights, and rules of law
governing general principles of equity.
2.2 Corporate
Organization and Other Related Matters.
The
Company is a corporation duly organized, validly existing and in good
standing
under the Canada Business Corporation Act and any other applicable
laws of the
jurisdiction of its incorporation. The Company has full corporate power
and
authority to carry on its business as such business is now being conducted
and
to own, lease and operate the properties and assets it now owns, leases
and
operates. The Company is duly qualified to transact business and is
in good
standing in each jurisdiction in which the failure to so qualify would
have a
material adverse effect on its business or properties. The Company
has full
corporate power and authority to enter into this Agreement, to issue
the Shares
and to consummate the transactions contemplated hereby.
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2.3 Governmental
Consents.
No
consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority on the part of the Company is required in connection
with
the consummation of the transactions contemplated by this Agreement,
except for
filings under the Securities Act of 1933, as amended (the “Securities
Act”),
the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and state
securities laws to be filed after Closing, all of which shall be made
on a
timely basis. Assuming the accuracy of the representations and warranties
made
by the Investor in this Agreement, the offer and sale of the Shares
to the
Investor pursuant to this Agreement is exempt from the registration
requirements
set forth in Section 5 of the Securities Act.
2.4 Valid
Issuance of Shares.
When
issued, sold and delivered in accordance with the terms hereof, the
Shares will
be duly and validly issued, fully-paid and nonassessable.
2.5 Litigation;
Non-Contravention.
There
is no claim, suit, action, proceeding or investigation pending or,
to the
knowledge of the Company, threatened that questions, or is reasonably
likely to
effect, the validity of this Agreement or the right of the Company
to enter into
this Agreement. Except as disclosed in the Company Information (as
defined
below), there are no pending or, to the knowledge of the Company, threatened,
claims, suits, actions, proceedings or investigations that would reasonable
be
expected to have, either individually or in the aggregate, a material
adverse
effect on the business, properties, prospects or financial condition
of the
Company or prevent, delay or impair the consummation of the transactions
contemplated by this Agreement. The execution and delivery of this
Agreement
does not, and the consummation of the transactions contemplated by
this
Agreement will not, violate, conflict with (except where a written
waiver has
been obtained), result in a breach of, constitute a default (with or
without
notice or lapse of time or both) under, result in a right of termination
or
cancellation or the acceleration of any obligation or the loss of a
material
benefit under, or create any lien, security interest, charge or encumbrance
upon
any of the property or assets of the Company under (A) the certificate
of
incorporation or bylaws (or similar organizational documents) of the
Company or
any of its subsidiaries, (B) any decree, judgment, order, law, treaty,
rule,
regulation or determination of any court, governmental agency or body
or
arbitrator having jurisdiction over the Company or any of its subsidiaries
or
any of their respective properties or assets, (C) the terms of any
bond,
debenture, indenture, credit agreement, note or any other evidence
of
indebtedness or any stock option or similar plan, lease mortgage, deed
of trust
or other instrument to which the Company or any of its subsidiaries
is a party,
by which the Company or any of its subsidiaries is bound or to which
any of the
property or assets of the Company or any of its subsidiaries is subject,
(D) the
terms of any "lock-up" or similar provisions of any underwriting or
similar
agreement to which the Company or any of its subsidiaries is a party,
or (E) any
rule or regulation of the NASDAQ Stock Market applicable to the Company.
The
Company is, and has been during all time periods covered by the Company
Information (as defined below), in compliance in all material respects
with all
applicable laws and the applicable listing and corporate governance
rules and
regulations of the NASDAQ Stock Market.
-2-
2.6 Company
Information.
The
Company’s Annual Report on Form 10-K for the year ended December 31, 2005,
each
report, registration statement, definitive proxy statement and document
filed
with the U.S. Securities and Exchange Commission (the “Commission”) by the
Company pursuant to the requirements of the Securities Act or the Exchange
Act
since December 31, 2005 and any other written information provided
by the
Company to Investor in writing is collectively referred to as the "Company
Information".
With
respect to Company Information that has been filed with the Commission,
as of
the date of filing with the Commission, such Company Information did
not contain
any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary in order to make the statements
made
therein, in light of the circumstances under which they were made,
not
misleading. With respect to Company Information that has not been filed
with the
Commission, as of the date hereof, such Company Information does not
contain any
untrue statement of a material fact or omit to state a material fact
required to
be stated therein or necessary in order to make the statements made
therein, in
light of the circumstances under which they were made, not misleading.
The
audited consolidated financial statements and unaudited interim financial
statements of the Company included in or incorporated by reference
into the
Company Information (including the related notes and schedules) (the
"Company
Financial Statements")
have
been prepared in accordance with U.S. generally accepted accounting
principles
("GAAP")
consistently applied during the period involved and fairly present,
and if filed
after the date hereof will fairly present, in accordance with GAAP,
the
consolidated financial position of the Company and its subsidiaries
as of the
dates thereof and the results of operations and cash flows for the
periods then
ended. Except as indicated in the Company Financial Statements, as
of the date
hereof, neither the Company nor any of its subsidiaries has any liabilities
or
obligations of any nature that would be required by GAAP to be reflected
on a
consolidated balance sheet of the Company and its subsidiaries.
3. Representations
and Warranties of the Investor.
The
Investor hereby represents and warrants to the Company that:
3.1 Due
Authorization.
All
corporate action on the part of the Investor necessary for the authorization,
execution and delivery of this Agreement and the performance of all
obligations
of the Investor hereunder has been taken or will be taken prior to
Closing, and
this Agreement constitutes the valid and legally binding obligation
of the
Investor, enforceable in accordance with its respective terms subject
to
applicable bankruptcy, insolvency, and other similar laws affecting
creditors’
rights, and general principles of equity.
3.2 Corporate
Organization and Other Related Matters.
The
Investor is a corporation duly organized, validly existing and in good
standing
under the laws of Delaware, and has its principal place of business
in the state
set forth below the Investor’s name on the signature page hereof. The Investor
has full corporate power and authority to enter into this Agreement
and to
consummate the transactions contemplated hereby.
3.3 Representations
Not Made by Company.
The
Investor represents and affirms that none of the following information
has ever
been represented, guaranteed or warranted to the Investor, expressly
or by
implication, by any person: (i) the approximate or exact length of
time that the
Investor will be required to remain a security holder of the Company;
(ii) the
percentage of profit and/or amount of or type of consideration, profit
or loss
to be realized, if any, as a result of an investment in the Company;
or (iii)
the possibility that the past performance or experience on the part
of the
Company or any affiliate, or any officer, director, employee or agent
of the
foregoing, might in any way indicate or predict the results of ownership
of any
Share or the potential success of the Company's operations.
-3-
3.4 Purchase
for Own Account.
The
Investor is the sole and true party in interest, is acquiring the Shares
for its
own account for investment, is not purchasing the Shares for the benefit
of any
other person, and has no present intention of holding or managing the
Shares
with others or of selling, distributing or otherwise disposing of any
portion of
the Shares. The offer and sale of the Shares to the Purchaser was not
made in
Canada; the Investor is not subject to the securities laws of any province
or
territory of Canada, and the Investor is not purchasing the Shares
for the
account or benefit of any resident of any province or territory of
Canada.
3.5 Disclosure
and Review of Information.
The
Investor acknowledges and represents that it has had access to and
has been
given an opportunity to review all Company Information that has been
filed with
the Commission prior to the date hereof through the Commission’s XXXXX filing
system and has been given a reasonable opportunity to review all documents,
books and records of the Company pertaining to this investment, and
has been
supplied with all additional information concerning the Company and
the Shares
that has been requested by the Investor. The Investor has had a reasonable
opportunity to ask questions of and receive answers from the Company
or its
representatives concerning this investment, and that all such questions
have
been answered to the full satisfaction of the Investor. The Investor
has
received, and acknowledges that it is receiving, no representations,
written or
oral, from the Company or its officers, directors, employees, attorneys
or
agents other than those contained in this Agreement and the Company
Information.
In making its decision to purchase the Shares, the Investor has relied
solely
upon its review of the Company Information, this Agreement, and independent
investigations made by it or its representatives without assistance
of the
Company.
3.6 Speculative
Investment.
The
Investor understands that (i) it must bear the economic risk of the
investment
in the Shares for an indefinite period of time because the Shares have
not been
registered under the Securities Act or qualified under the Securities
Act or the
securities laws of any other jurisdiction and (ii) its investment in
the Company
represented by the Shares is highly speculative in nature and is subject
to a
high degree of risk of loss in whole or in part. The Investor has adequate
means
of providing for its current needs and possible contingencies, and
is able to
bear the high degree of economic risk of this investment, including,
but not
limited to, the possibility of the complete loss of the Investor’s entire
investment and the limited transferability of the Shares, which may
make the
liquidation of this investment impossible for the indefinite
future.
3.7 Accredited
Investor Status.
The
Investor is an “accredited investor” within the meaning of Rule 501(a)
promulgated under the Securities Act.
3.8 Investment
Experience.
The
Investor has experience as an investor in securities and acknowledges
that it
can bear the economic risk of its investment in the Shares. By reason
of the
Investor’s business or financial experience or the business or financial
experience of its professional advisors who are unaffiliated with and
who are
not compensated by the Company or any affiliate or selling agent of
the Company,
directly or indirectly, the Investor has the capacity to protect its
own
interests in connection with its purchase of the Shares. The Investor
has the
financial capacity to bear the risk of this investment and has received
from the
Company all information it has requested and considers necessary or
appropriate
for deciding whether to purchase the Shares. The Investor has not been
organized
solely for the purpose of acquiring the Shares.
-4-
3.9 Restricted
Shares.
The
Investor understands that the Shares are and will be “restricted securities”
under the Securities Act inasmuch as they are being acquired from the
Company in
a transaction not involving a public offering, and that, under the
Securities
Act and applicable regulations thereunder, such Shares may be resold
without
registration under the Securities Act only in certain limited circumstances.
In
this connection, the Investor represents that it is familiar with Rule
144
promulgated under the Securities Act, as presently in effect, and understands
the resale limitations imposed thereby and by the Securities Act.
3.10 Legends.
The
Investor understands that the certificates evidencing the
Shares
will bear the legend set forth below.
THESE
SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR
QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS AND HAVE BEEN TAKEN
FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION
WITH
ANY DISTRIBUTION THEREOF. THESE SHARES MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED
UNLESS A REGISTRATION STAEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, IS
IN EFFECT WITH RESPECT TO SUCH SHARES OR THE COMPANY HAS RECEIVED AN
OPINION IN
FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY PROVIDING THAT AN EXEMPTION
FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
IS
AVAILABLE.
The
legend set forth above shall be removed by the Company from any certificate
evidencing any of the Shares only (i) upon receipt by the Company of
an opinion
in form and substance satisfactory to the Company that the Shares are
eligible
for resale pursuant to Rule 144 promulgated under the Securities Act,
or (ii)
upon confirmation that a registration statement under the Securities
Act is at
that time in effect with respect to the legended Share and that such
transfer
will not jeopardize the exemption or exemptions from registration pursuant
to
which the respective Share was issued.
3.11 Indemnification.
The
Investor acknowledges that it understands the meaning and legal consequences
of
the representations and warranties set forth in Section 3 hereof and
that the
Company and the officers, directors, employees and agents of the Company
have
relied and will rely upon such representations and warranties. The
Investor
hereby agrees to indemnify and hold harmless the Company and each of
its
respective officers, directors, employees and agents from and against
any and
all loss, claim, damage, liability, cost or expense (including attorney's
fees),
joint or several, to which any such person may become subject due to
or arising
out of: (i) any material breach by the Investor of any such representation
or
warranty; (ii) any material inaccuracy in the representations and warranties
hereinabove set forth; (iii) the disposition of any of the Shares by
the
Investor contrary to the foregoing representations and warranties;
and (iv) any
action, suit, proceeding, demand, assessment or judgment incident to
or based
upon any of the matters so indemnified against. Notwithstanding the
foregoing,
however, no representation, warranty, acknowledgement or agreement
made herein
by the Investor shall in any manner be deemed to constitute a waiver
of any
rights granted to it under federal or state securities laws or pursuant
to this
Agreement, including registration rights contemplated by Section 4
hereof.
-5-
4. Registration
Rights.
4.1 Company’s
Obligations.
The
Company covenants and agrees that: (a) (subject to the provisions of
this
Section 4), within 30 days from the Closing, it will prepare and file
with the
Commission a registration statement on Form S-3 (or if such form is
not
available, a Form S-1) (the “Registration Statement”) covering all of the Shares
(the “Registrable Securities”) for a secondary or resale offering to be made on
a continuous basis pursuant to Rule 415. The Company will use its commercially
reasonable efforts to cause the Registration Statement to be declared
effective
under the Act within 120 days of the Closing and to keep the Registration
Statement continuously effective until the earlier of (i) such time
that all of
the Registrable Securities have been sold or (ii) the date when the
Registrable
Securities are eligible for resale pursuant to paragraph (k) of Rule
144
promulgated under the Act. In addition, the Company shall timely supplement
and
amend the Registration Statement if required by the rules, regulations
or
instructions applicable to the registration form used for the Registration
Statement or if required by the Securities Act. If (i) at any time
when a
prospectus relating to Registrable Securities is required to be made
available
under the Securities Act, the Company discovers that, or any event
occurs as a
result of which, the prospectus (including any supplement thereto)
included in
the Registration Statement, as then in effect, includes an untrue statement
of a
material fact or omits to state any material fact required to be stated
therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (ii) the Commission
issues any
stop order suspending the effectiveness of the Registration Statement
or
proceedings are initiated or threatened for that purpose, then the
Company shall
promptly deliver a written notice to such effect to the Investor, and
the
Investor shall immediately upon receipt of such notice discontinue
its
disposition of Registrable Securities pursuant to the Registration
Statement
until the copies of the supplemented or amended prospectus contemplated
by the
immediately following sentence is made available and, if so directed
by the
Company, shall deliver to the Company (at the Company's expense), if
applicable,
all copies, other than permanent file copies, then in the Investor's
possession
of the prospectus or prospectus supplement relating to such Registrable
Securities current at the time of receipt of such notice. As promptly
as
practicable following the event or discovery referred to in clause
(i) of the
immediately preceding sentence, the Company shall prepare and make
available to
Investor the amendment or supplement of such prospectus so that, as
thereafter
made available to purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to
state a
material fact required to be stated therein or necessary to make the
statements
therein, in the light of the circumstances under which they were made,
not
misleading. Notwithstanding anything to the contrary in this Section
4 if the
filing or maintenance of the Registration Statement would require the
Company to
make a disclosure that would, in the good faith, reasonable judgment
of the
Company's Board of Directors, have a material adverse effect on the
business,
operations, properties, prospects or financial condition of the Company
or on
pending or imminent transactions, the Company shall have the right,
upon
delivery to the Investor of a certificate executed by the Company's
chief
executive officer certifying the Board of Directors' finding (a "Blackout
Notice")
to
delay the filing (but not the preparation) of the Registration Statement
or of
any amendment or supplement thereto, to suspend its obligation to maintain
the
effectiveness of the Registration Statement and to suspend the use
of any
prospectus or prospectus supplement in connection with the Registration
Statement, in each case for a reasonable amount of time not to exceed
thirty
(30) days (the "Blackout
Period")
within
the ninety (90) day period beginning on the first day of a Blackout
Period;
provided, however, that the Company shall not deliver a Blackout Notice
more
than twice in any 365-day period; and provided, further that any Blackout
Period
shall only be effective when and for so long as other holders, if any,
of
registration rights with respect to the Company's securities are restricted
from
exercising their registration rights to the same or greater extent
as the
Investor. Investor agrees that upon receipt of a Blackout Notice, it
shall
immediately cease all efforts to dispose of Registrable Securities
pursuant to
the Registration Statement until such time as the Company shall notify
it of the
end of such restrictions or, if earlier, the expiration of the Blackout
Period.
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4.2 Investor’s
Obligations.
The
Company’s obligations under Section 4 are conditioned upon Investor providing
any information regarding the Investor reasonably requested by the
Company in
order for Company to complete the Registration Statement.
4.3 Indemnity.
With
respect to any offering and sale pursuant to the Registration Statement,
the
Company agrees to indemnify and hold Investor, each Person who "controls"
Investor within the meaning of Section 15 of the Securities Act, and
any
directors and officers of the foregoing, harmless against any and all
losses,
claims, damages or liabilities (including reasonable legal fees and
other
reasonable expenses incurred in the investigation and defense thereof)
to which
they or any of them may become subject under the Securities Act or
otherwise
(collectively, "Losses"),
insofar as any such Losses shall arise out of or shall be based upon
(i) any
untrue statement or alleged untrue statement of a material fact contained
in the
Registration Statement, or any amendment or supplement thereto, or
any
prospectus relating to the Registration Statement, or the omission
or alleged
omission to state in any of the foregoing a material fact required
to be stated
therein or necessary to make the statements contained therein not misleading,
(ii) any violation or alleged violation by the Company of the Securities
Act,
the Exchange Act, any applicable state securities law or any rule or
regulation
promulgated under the Securities Act, the Exchange Act or any applicable
state
securities law; provided, however, that the indemnification contained
in this
Section 4.3 shall not apply to such Losses which shall arise out of
or shall be
based upon any such untrue statement, or any such omission or alleged
omission,
which shall have been made in reliance upon and in conformity with
information
furnished in writing to the Company by Investor specifically for use
in
connection with the preparation of the Registration Statement or prospectus
contained in the Registration Statement or any such amendment or supplement
thereto.
4.4 Exchange
Act Reports.
With a
view to making available to the Investor the benefits of Rule 144 and
any other
rule or regulation of the Commission that may permit the Investor to
sell
securities of the Company to the public without registration, the Company
agrees
to use its reasonable best efforts until such time as all of the Registrable
Securities have been sold under the Registration Statement or are eligible
for
re-sale under subsection (k) of Rule 144, to (a) make and keep public
information available, as those terms are understood and defined in
Rule 144, at
all times, and take all action as may be required as a condition to
the
availability of Rule 144, (b) file with the Commission in a timely
manner all
reports and other documents required of the Company under the Securities
Act and
the Exchange Act, and (c) facilitate and expedite transfers of Registrable
Shares sold pursuant to Rule 144, including providing timely notice
to the
Company's transfer agent to expedite such transfer.
4.5 Other
Agreements.
The
Company shall not grant, and represents that it has not granted, any
other
person or entity rights to register securities of the Company on terms
that
would be reasonably likely to restrict the ability of the Company to
fully
perform is obligations to the Investor in connection with the registration
rights contemplated by this Section 4. The Company shall not amend
any
registration rights agreement with any other person or entity nor shall
the
Company waive any provision under any registration rights agreement
that it
would be entitled to waive thereunder if such waiver would be reasonably
likely
to adversely affect the registration rights contemplated by this Section
4.
5. Confidentiality.
The
Investor acknowledges that it has signed, and continues to be bound
by, a
confidentiality agreement with the Company which, among other things,
prohibits
trading in securities of the Company at any time Investor possesses
material
nonpublic information with respect to the Company.
-7-
6. Miscellaneous.
6.1 Entire
Agreement.
This
Agreement, together with its exhibits and schedules, constitute the
entire
contract between the Company and the Investor relative to the purchase
and sale
of the Shares and supersede any and all prior or contemporaneous oral
or written
agreements, understandings and discussions with respect thereto.
6.2 Expenses.
Each of
the Company and the Investor will bear its own legal and other fees
and expenses
in connection with the transactions contemplated in this Agreement;
provided,
however, that the Company shall reimburse the Investor for its costs
associated
with the negotiation, execution and delivery of this Agreement and
the
consummation of the Closing, up to an amount not to exceed $10,000.
6.3 Governing
Law; Consent to Jurisdiction and Venue.
This
Agreement shall be governed by and construed in accordance with the
laws of the
State of Nevada. The Company and the Investor hereby irrevocably consent
to the
exclusive jurisdiction and venue of State and federal courts within
the city of
Reno, Nevada for any dispute arising out of this Agreement.
6.4 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which
shall be
deemed an original, but all of which together shall constitute one
and the same
instrument.
6.5 Headings.
The
headings of the Sections of this Agreement are for convenience and
shall not by
themselves determine the interpretation of this Agreement.
6.6 Notices.
Any
notice required or permitted hereunder shall be given in writing and
shall be
conclusively deemed effectively given upon personal delivery, on the
date of
receipt if sent by telecopier or overnight courier, charges prepaid,
or five
days after deposit in the United States mail, by registered or certified
mail,
postage prepaid, addressed (a) if to the Company, as set forth below
the
Company’s name on the signature page of this Agreement, and (b) if to the
Investor, at the Investor’s address as set forth below the Investor’s name on
the signature page of this Agreement, or at such other address as the
Company or
the Investor may designate by ten (10) days’ advance written notice to the
Investor or the Company, respectively.
6.7 Survival
of Representations and Warranties.
The
representations and warranties of the parties contained in or made
pursuant to
this Agreement shall survive the execution and delivery of this Agreement
and
Closing; provided, however, that such representations and warranties
are only
made as of the date of such execution and delivery and as of such
Closing.
6.8 Amendments.
Any
term or provision of this Agreement may be amended and the observance
of any
term, condition, or provision of this Agreement may be waived (either
generally
or in a particular instance and either retroactively or prospectively)
by a
written instrument signed by the Company and the Investor.
6.9 Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision(s) shall be excluded from this Agreement
and the
balance of this Agreement shall be interpreted as if such provision
were
excluded and shall be enforceable in accordance with its terms.
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6.10 Opinion.
At the
Closing, the Company shall deliver to the Investor one or more opinions
from
counsel to the Company reasonably acceptable to the Investor that is
addressed
to the Investor, dated the date of the Closing, substantively to the
effect set
forth in Exhibit B attached hereto and in a form reasonably satisfactory
to the
Investor.
6.11 Time
of Essence.
Time
shall be of the essence in this Agreement.
[Remainder
of Page Intentionally Left Blank/Signatures Follow]
-9-
IN
WITNESS WHEREOF, the parties hereto have executed or caused this Stock
Purchase
Agreement to be executed by their duly authorized representatives as
of the date
first written above.
“Company”
a
Canadian corporation
By:
/s/________________________________
_________________,
its _____________
Address:
000
Xxxxxx Xxx
Xxxx,
Xxxxxx 00000
Facsimile:
(000) 000-0000
“Investor”
THE
AES
CORPORATION,
a
Delaware corporation
By:
/s/
________________________________
_________________,
its _____________
Address:
0000
Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxxx
Facsimile:
(000) 000 0000
-10-
