Exhibit 10.1
PURCHASE AGREEMENT
This purchase agreement (this "AGREEMENT") is dated as of December __,
2003, by and between [PURCHASER], (the "PURCHASER") and SpatiaLight, Inc., a New
York corporation (the "COMPANY"), whereby the parties agree as follows:
1. OFFERING.
a) The Company has authorized the sale and issuance of up to an
aggregate value of $5,000,000 of its Common Shares (the
"Shares"), to one or more purchasers (the "OFFERING"). The
Offering has been registered with the 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. 333-110754), which was
declared effective by the SEC on December 3, 2003, and to the
Company's knowledge has remained effective since such date and
is effective on the date hereof (the "REGISTRATION
STATEMENT").
b) 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.
c) The Company may enter into agreements with certain other
purchasers (the "OTHER PURCHASERS"), with terms and
conditions, including but not limited to purchase price and
quantity of Shares, which may be different from 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.
d) Pursuant to Rule 424(b)(2) of the Securities Act, the Company
agrees to file 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.
2. DELIVERY OF THE SHARES AT CLOSING.
a) The completion of the purchase and sale of the Shares (the
"CLOSING") shall occur on December __, 2003 (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, physically or using
customary book-entry procedures (such as the Depository Trust
Company's Deposit Withdrawal Agent Commission system), the
number of Shares, set forth on the signature page hereto.
b) 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.
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
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
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.
a) 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 has no direct or
indirect affiliation or association with any NASD member as of
the date hereof.
b) The Purchaser hereby confirms receipt of the base prospectus
included in the Registration Statement and the Prospectus
Supplement (together, the "PROSPECTUS"). The Purchaser
confirms that it had full access to the Prospectus and was
fully able to read, review, download and print it.
c) 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 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).
d) 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.
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.
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. To the extent determined by
such court, the prevailing party shall reimburse the other party for any
reasonable costs, legal fees and disbursements incurred in enforcement or
protection of any of its rights under this Agreement.
7. MISCELLANEOUS.
a) 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.
b) 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.
c) This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and the
Purchaser.
d) The headings of the various sections of this Agreement have
been inserted for convenience or reference only and shall not
be deemed to be part of this Agreement.
e) 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, please confirm
this by signing and returning to us the duplicate copy of this letter.
AGREED AND ACCEPTED:
SPATIALIGHT, INC.
By:____________________________________
Name:
Title:
ADDRESS FOR NOTICE:
AGREED AND ACCEPTED:
PURCHASER:
[PURCHASER]
By:_________________________
Name:
Title:
NUMBER OF SHARES: _____________
Purchase Price per Share: $5.00
Aggregate Purchase Price: ________
Tax ID No.: ____________________
Address for Notice:
Name in which book-entry should be made (if different):
EXHIBIT A
Filed Pursuant to Rule 424(b)(2) [or (5)] Registration No. 333-______
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED _________________)
SPATIALIGHT, INC.
___________ Common Shares
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 ________________.
