EXHIBIT 10.1
STOCK ISSUANCE AGREEMENT
This Stock Issuance Agreement ("Agreement") is made as of September 18,
2002 by and between Excalibur Industries, Inc., a Delaware corporation (the
"Company") and Spectrum Law Group, LLP, a California limited liability
partnership (the "Purchaser").
R E C I T A L S
---------------
A. The Company retained the Purchaser to provide legal services
pursuant to a retainer agreement dated May 1, 2002 (the "Retainer Agreement").
B. The Purchaser has rendered legal services (the "Services") which
were not in connection with the offer or sale of securities in a capital-raising
transaction and which did not directly or indirectly promote or maintain a
market for the Company's securities.
C. The Purchaser has delivered the following invoices (collectively,
the "Invoices") to the Company for the Services: #10173, #10207, #10210, #10213,
#10225, #10227, #10228, #10287, #10289, and #10290, which have an aggregate
balance of $34,077.00 (the "Balance").
D. The Company seeks to pay the Balance by issuing shares of the
Company's common stock, $.001 par value per share (the "Common Stock") in a
transaction registered with the Securities and Exchange Commission (the "SEC")
pursuant to a registration statement on Form S-8 (the "Registration Statement")
on the terms and conditions set forth herein.
A G R E E M E N T
-----------------
It is agreed as follows:
1. ISSUANCE OF INITIAL SHARES. The Company shall initially issue to the
Purchaser (in the name of Xxxx X. Xxxxxxxx, a partner of the Purchaser
("Indeglia")) 17,500 shares of Common Stock (the "Initial Shares"). The Company
shall register the issuance of the Initial Shares with the SEC pursuant to
Section 4 hereof.
2. SALE OF INITIAL SHARES. The Purchaser shall establish and adopt a
Rule 10b5-1 plan in the form attached hereto as EXHIBIT A, and the Purchaser
shall cause Indeglia to sell the Initial Shares pursuant to the Plan.
3. APPLICATION OF NET PROCEEDS.
3.1 DEFINITION OF NET PROCEEDS. For the purposes of this
Agreement, the term "Net Proceeds" shall mean the amount of gross proceeds
received by the Purchaser (or Indeglia) pursuant to the sale of shares of Common
Stock issued pursuant to this Agreement, less any commissions, SEC fees, wire
transfer fees, and other fees set forth in Section 5 of the Plan.
3.2 NET PROCEEDS FROM INITIAL SHARES. The Purchaser shall
apply (or cause Indeglia to apply) the Net Proceeds from the sale of the Initial
Shares to the Balance.
3.2.1 If the Net Proceeds from the sale of the
Initial Shares is greater than the Balance, then the Purchaser shall credit to
one or more of the Company's accounts with the Purchaser (other than an account
for legal services provided or to be provided in connection with the offer or
sale of securities in a capital-raising transaction and/or an account for legal
services which will directly or indirectly promote or maintain a market for the
Company's securities) in an amount equal to the difference between the Net
Proceeds from the sale of the Initial Shares and the Balance.
3.2.2 If the Net Proceeds from the sale of the
Initial Shares is less than the Balance, then the Company shall issue, for no
additional consideration, to the Purchaser (in the name of Indeglia) additional
shares (the "Additional Shares") of Common Stock, in increments of 500 shares,
which shall be pursuant to the Plan, and the Net Proceeds of which shall be
applied to the Balance. The Company shall continue to issue Additional Shares in
such increments of 500 shares until the aggregate net proceeds of the sale of
the Initial Shares and all Additional Shares equals or exceeds the Balance. In
no event shall the number of Additional Shares exceed 32,500 shares of Common
Stock.
3.3 ADJUSTMENTS. As used herein, the term "Adjustment Event"
means an event pursuant to which the outstanding shares of Common Stock of the
Company are increased, decreased or changed into, or exchanged for a different
number or kind of shares or securities, without receipt of consideration by the
Company, through reclassification, stock split, reverse stock split, stock
dividend, stock consolidation or otherwise. Upon the occurrence of an Adjustment
Event, appropriate and proportionate adjustments shall be made to the number of
shares of Common Stock which may thereafter be granted under this Agreement.
4. REGISTRATION OF INITIAL SHARES AND ADDITIONAL SHARES.
4.1 REQUIRED REGISTRATION. Concurrent with the execution of
this Agreement, the Company shall prepare and file with the SEC the Registration
Statement under the Securities Act of 1933, as amended (the "Securities Act")
covering the issuance of the Initial Shares and the Additional Shares (the
"Shares"), and shall use its best efforts to cause such Registration Statement
to become effective as soon as is practicable.
4.2 PERIOD OF EFFECTIVENESS. The Company will use its best
efforts, which shall include the filing and preparation with the Commission of
amendments and supplements to the Registration Statement and the prospectus
contained therein, to cause such Registration Statement to remain continuously
effective from the date it becomes effective for a period ending on when all
Shares covered by the Registration Statement have been issued.
4.3 BLUE SKY. The Company will use its best efforts to
register or qualify the Shares covered by such Registration Statement under such
state securities or blue sky laws of such jurisdictions as the Purchaser may
reasonably request in writing, except that the Company shall not for any purpose
be required to execute a general consent to service of process or to qualify to
do business as a foreign corporation in any jurisdiction wherein it is not so
qualified.
-2-
4.4 NOTIFICATION. The Company will notify the Purchaser,
promptly after it shall receive notice thereof, of any letter of comments
regarding the Registration Statement received from the SEC and the time when
such Registration Statement has become effective or an amendment or supplement
to any prospectus forming a part of such Registration Statement has been filed.
4.5 AMENDMENT NOTICE. The Company will notify the Purchaser
promptly of any request by the SEC for the amending or supplementing of such
Registration Statement or prospectus or for additional information.
4.6 AMENDMENT. The Company will prepare and file with the SEC,
promptly upon the request of any the Purchaser, any amendments, supplements, or
post-effective amendments to such Registration Statement or prospectus which is
required under the Securities Act or the rules and regulations thereunder is
necessary to keep such Registration effective for the time periods set forth in
Section 4.2.
4.7 UPDATE. The Company will prepare and promptly file with
the SEC and promptly notify the Purchaser of the filing of such amendment or
supplement to such Registration Statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Securities Act, any
event shall have occurred as the result of which any such prospectus or any
other prospectus as then in effect would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
4.8 STOP ORDERS. The Company will advise the Purchaser,
promptly after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the SEC suspending the effectiveness of such
Registration Statement or the initiation or threatening of any proceeding for
that purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued.
4.9 EXPENSES. With respect to the registration required
pursuant to Section 4.1 hereof, the Company shall bear the following fees, costs
and expenses: all registration, filing and NASD fees, printing expenses, fees
and disbursements of counsel and accountants for the Company, all internal
Company expenses, all legal fees and disbursements and other expenses of
complying with state securities or blue sky laws of any jurisdictions in which
the securities to be offered are to be registered or qualified, underwriting
discounts, commissions and transfer taxes relating to the Shares.
4.10 INDEMNIFICATION BY COMPANY. To the fullest extent
permitted by law, the Company will indemnify and hold harmless the Purchaser,
its directors, officers, employees, partners, principals, equity holders,
managed or advised accountants, advisors, representatives, and agents, from and
against, and will reimburse the Purchaser with respect to, any and all loss,
claim, damage, liability and expense (collectively, "LOSSES") to which the
Purchaser may become subject under the Securities Act, state securities laws or
otherwise, and the Company will pay to the Purchaser any legal or other costs or
expenses reasonably incurred by it in connection with investigating or defending
any such Loss, insofar as such Losses are caused by or arise out of any untrue
statement or alleged untrue statement of any material fact contained in such
-3-
Registration Statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading; provided, however, that the Company will not be
liable in any such case to the extent that any such Loss arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by the
Purchaser in writing specifically for use in the preparation thereof.
5. MISCELLANEOUS.
5.1 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California.
5.2 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.
5.3 ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement among the parties with regard to the subjects
hereof and no party shall be liable or bound to any other party in any manner by
any representations, warranties, covenants, or agreements except as specifically
set forth herein or therein. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto and their
respective successors and assigns, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
5.4 SEVERABILITY. In case any provision of this Agreement
shall be invalid, illegal, or unenforceable, it shall to the extent practicable,
be modified so as to make it valid, legal and enforceable and to retain as
nearly as practicable the intent of the parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
5.5 AMENDMENT AND WAIVER. Except as otherwise provided herein,
any term of this Agreement may be amended, and the observance of any term of
this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of time
or indefinitely), with the written consent of the Company and the Purchaser.
5.6 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be effective when delivered
personally, or sent by telex or telecopier (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt requested, or when
received by the addressee, if sent by Express Mail, Federal Express or other
express delivery service (receipt requested) in each case to the appropriate
address set forth below:
If to the Company: Excalibur Industries, Inc.
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Chief
Financial Officer
-4-
If to the Purchaser: Spectrum Law Group, LLP
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
5.7 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
PURCHASER
SPECTRUM LAW GROUP, LLP
By: /S/ Xxxx X. Xxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxx, President of Spectrum Law
Group - Indeglia, P.C., partner of Spectrum
Law Group, LLP
COMPANY
EXCALIBUR INDUSTRIES, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxx, Chief Financial Officer
-5-
EXHIBIT A
10b5-1 Trading Plan
-6-
