Exhibit 10.1
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CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED IS OMITTED AND IS NOTED
WITH THREE ASTERICKS
AS
FOLLOWS "* * *." AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
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This
STOCK PURCHASE AND REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), is made and entered into as of
March 21, 2005,
by and between
STARTECH ENVIRONMENTAL CORPORATION, a Colorado corporation (the
"Company"),
and INTERCAPITAL GROUP, LLC a California Limited Liability Company (the
"Purchaser").
RECITALS
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The
Company desires to issue and sell to the
Purchaser in a private
placement (the "Offering"), and the Purchaser desire to purchase from the
Company, on the terms and subject to the
conditions
set forth herein, the
number of shares of common stock, no par value ("Common Stock"), of the
Company set forth in Section 1(a) of this
Agreement, and an
equivalent number
of three-year warrants to purchase shares of Common Stock (the "Warrants"
and, together with the shares of Common Stock to be purchased, the
"Securities"), the terms of such Warrants being as set forth in the
Warrant
Agreement substantially in the form attached as Exhibit A hereto. This
Agreement and the Warrants shall be referred to herein
collectively
as the
"Transaction Documents".
The
Purchaser desires,
upon the terms and
conditions set forth in this
Agreement, to purchase Securities in the
Offering.
The
Company and the Purchaser are executing and delivering this
Agreement in reliance upon the exemption
from securities
regulation
afforded
by Section 4(2) of the Securities Act (as
defined in Section 3
hereof), Rule
506 of Regulation D.
IN
CONSIDERATION of the premises and mutual covenants contained in this
Agreement and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
agree as follows:
1.
Purchase
and Sale of Securities.
(a)
Purchase and
Sale of Shares.
Subject to the terms and conditions
hereof, at each Closing identified in Section 2 hereof, the Company shall
issue and sell to the Purchaser, and the Purchaser shall purchase from the
Company, a number of shares of Common Stock
(the "Shares")
equal to (x) the
dollar amount invested by the Purchaser at such Closing (the "Purchase
Price") divided by (y) a price per share
(the "Share Price") equal to * * * .
The total aggregate amount of the Purchase Price to be invested by the
Purchaser at all Closings shall be equal to Eleven Million Dollars
($11,000,000.00) (the "Aggregate Purchase
Price").
(b)
Purchase and
Sale of Warrants. In
addition to the
foregoing and
subject to the terms and conditions hereof, at each Closing identified in
Section 2 hereof, the Company shall issue to the Purchaser one or more
Warrants to purchase shares of Common Stock
on the following terms:
<PAGE>
Warrant Coverage: The
Purchaser
will
be entitled to warrants to
purchase a number of shares of Common Stock equal to
the Shares (the
"Purchased Warrants")
purchased at
such Closing.
The shares of Common
Stock into which
the Warrants are
exercisable (the
"Warrant Shares")
will have piggyback
registration
rights as provided
in Section 6 of this Agreement.
Term:
Each Purchased
Warrant shall be exercisable for a
term of three-years
from the Closing Date (as defined
below).
Exercise Price:
The Warrants
will be exercisable into shares of
Common Stock at a price equal to * * * .
(c)
Exemption.
The purchase and sale of the
Securities
pursuant to
the terms hereof will be made in reliance
upon the provisions of
Section 4(2)
of the Securities Act of 1933, as amended
(the "Securities
Act"), Rule 506 of
Regulation D promulgated thereunder by the United States Securities and
Exchange Commission (the "SEC"), or such other exemptions from the
registration requirements of the Securities Act as may be available with
respect to the investment in the Securities
to be made hereunder.
2.
Closings
and Deliverables.
(a)
Payment.
At each Closing, the Purchaser will cause a wire
transfer payment to be made to the Company,
to the account set forth on Exhibit
B hereto, in an amount equal to the Purchase
Price (in United States dollars)
to be funded at such Closing, which
Purchase Price shall entitle the Purchaser,
subject to the satisfaction of the terms
and conditions herein,
to receive the
Shares and the Purchased Warrants
purchased at such
Closing. At or before
the
First Closing (as defined below),
the Purchaser shall
deliver to the Company a
fully completed and executed copy of the
Investor
Questionnaire, in the
form
attached as Exhibit C hereto (the "Investor
Questionnaire").
(b)
Closings.
The Purchaser shall be unconditionally obligated
to have funded the Aggregate Purchase Price at one or more Closings to take
place between the date of this Agreement and March 31, 2005
(each, a "Closing"
and collectively, the "Closings"), the first of which shall take
place within
five (5) banking days following execution
and delivery of this Agreement by the
parties (the "First Closing"). Each Closing shall take place at
the offices of
the Company or a location mutually agreed
to by the parties hereto.
(c)
Deliverables.
At each Closing, or as
soon as is reasonably
practicable thereafter, and assuming the Company has received the Purchase
Price in respect of such Closing, the Company (or its transfer agent) shall
deliver to the Purchaser a stock
certificate (or certificates) representing the
Shares so purchased at such Closing, as well as a Warrant Agreement
representing the Purchased Warrants in respect of such
Closing, in each
case
registered in the name of the Purchaser, and such other documents and
certificates as are required by this
Agreement at such Closing.
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<PAGE>
3.
Representations and Warranties by the Company. The Company hereby
represents and warrants to the Purchaser as
of the date hereof as follows:
(a)
Incorporation
and Qualification. The Company has been duly
organized and is validly existing as a Corporation and in
good standing under
the laws of the State of Colorado with the requisite corporate power and
authority to own and use its properties and assets and to carry on its
business as currently conducted.
(b)
Authority.
The Company has the
requisite corporate
power and
authority to enter into this Agreement and
to issue and deliver the Shares and
the Warrant Agreement and upon exercise of the Purchased Warrants in
accordance with the terms thereof, the Warrant Shares. The execution and
delivery of this Agreement and the issuance
and delivery of the Shares and the
Warrant Agreement hereunder and the consummation of the transactions
contemplated hereby have been duly and validly
authorized
by all necessary
corporate action by the Company. This
Agreement, when executed by the Company,
will have been duly and validly executed
and delivered by and on behalf of the
Company and will constitute a valid, legal
and binding agreement,
enforceable
against the Company in accordance with its
terms, except as enforceability may
be limited by general equitable principles,
bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws affecting creditors'
rights generally. Assuming payment of the Purchase
Price, the Shares and the
Purchased Warrants will be duly authorized, validly issued, fully paid and
non-assessable. Upon payment of the exercise price
of the Purchased
Warrants
in full in accordance with the terms set
forth in the Warrant
Agreement, the
Warrant Shares, when issued by the Company,
will be duly
authorized,
validly
issued, fully paid and non-assessable.
The Shares and the
Purchased Warrants
and upon exercise of the Purchased Warrants in accordance with the terms
thereof, the Warrant Shares, do not subject the holders thereof
to personal
liability by reason of being such
holders.
(c)
No Conflicts.
The execution,
delivery and performance of this
Agreement by the Company and the
consummation
by the Company of the
Offering
do not and will not: (i) conflict with or violate any provision of the
Company's articles of incorporation
or bylaws,
or (ii) subject to
obtaining
the Required Approvals (as defined below), conflict with, or constitute a
material default (or an event that with
notice or lapse of time or both would
become a material default) under, or give
to others any rights of termination,
amendment, acceleration or cancellation
(with or without notice, lapse of time
or both) of, any material agreement, credit
facility, debt or other instrument
(evidencing a Company debt or otherwise) to
which the Company is a party or by
which any property or asset of the Company is bound or affected, or (iii)
result in a material violation of any law,
rule, regulation,
order, judgment,
injunction, decree or other restriction of
any court or governmental authority
as currently in effect to which the Company
is subject (including
federal and
state securities laws and regulations), or by which any property or asset
of
the Company is bound or affected; except in the case of each of
clauses (ii)
and (iii), such as could not, individually or in the aggregate
(x) adversely
affect the legality, validity or enforceability of the
Offering, (y) have
or
result in a material adverse effect on the results of operations, assets,
business or condition (financial or otherwise) of the Company, taken as a
whole (other than any change,
effect, event or condition that arises from
changes in general economic conditions or
conditions affecting the industry of
the business of the Company generally,
or such changes,
events or
conditions
resulting directly from the announcement of or the consummation of the
Offering contemplated hereby), or (z) adversely impair
the Company's
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<PAGE>
ability to perform fully on a timely basis its obligations under this
Agreement (any of (x), (y) or (z), a
"Material Adverse Effect").
(d)
Capital Stock;
Fully Paid and Non-Assessable.
(i) As of
immediately
prior to the Closing, the authorized
capital stock of the Company consist of
10,000,000 shares of
preferred stock,
no par value (the "Preferred Stock"), and
800,000,000 shares of Common Stock.
(iii) All such
outstanding
shares of Common Stock have
been, and upon the Closing and payment of the
Purchase Price in full, the
Shares will have been, duly authorized and validly issued and
are fully paid
and nonassessable and issued in compliance
with all applicable
Federal and
state securities laws. Except as contemplated by this Agreement or as set
forth in all forms, reports and documents filed with the SEC pursuant to
the
Securities Act and Securities Exchange Act
of 1934, as amended (the "Exchange
Act") since October 31, 2003 (collectively, the "SEC Reports"), the Company
has no outstanding subscription, option, warrant, right of first refusal,
preemptive right, call, contract, demand,
commitment,
convertible security or
other instrument, agreement or arrangement of any character or nature
whatever under which the Company is or may be obligated to issue Common
Stock, Series A Preferred or any other
equity security of any kind or which
otherwise relates to the Company's
securities.
(e)
Filings,
Consents and
Approvals.
The Company is not
required to
obtain any consent, waiver, authorization or order of, give
any notice to, or
make any filing or registration with, any court or other federal, state,
local or other governmental authority or other person or
entity in connection
with the execution, delivery and performance by the Company of this
Agreement, other than (i) the filing with the SEC of a Form D
pursuant to
Regulation D of the Securities Act, and
(iii) applicable state
securities law
Blue Sky filings (collectively, the
"Required Approvals").
(f)
SEC Reports;
Financial Statements. Since October 31, 2004,
the
Company has filed (i) all reports required to be filed by it under the
Securities Act; (ii) all annual reports on Form 10-K, all
quarterly reports
on Form 10-Q, and all current reports on Form 8-K required to be
filed by it
under the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof,
in order for it to satisfy its filing
requirements under the
Exchange Act for
the periods to which each such report relates. The Company has made
available to the Purchaser a copy of all
SEC Reports. As of
their respective
dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the SEC promulgated thereunder, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or
omitted to
state a material fact required to be stated therein or necessary in order
to
make the statements therein, in light of the circumstances
under which they
were made, not misleading. The financial statements of the Company
included
in the SEC Reports comply in all material
respects with applicable accounting
requirements and the rules and regulations of
the SEC with respect thereto as
in effect at the time of filing. Such financial statements have been
prepared in accordance with generally
accepted accounting
principles applied
on a consistent basis during the periods
involved ("GAAP"),
except as may be
otherwise specified in such financial
statements or the
notes thereto,
and
fairly present in all material respects the
financial position of
the Company
and its consolidated subsidiaries as of and for the
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<PAGE>
dates thereof and the results of operations and cash flows for the periods
then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(g)
No Legal Proceedings. Except as may be described in the SEC
Reports, there is no action, suit or
proceeding before or by any court or any
governmental agency or body, domestic or foreign, now pending or, to the
actual knowledge (without the need for inquiry or
special investigation)
of
the Chief Financial Officer or Chief Executive Officer of the Company,
threatened against or affecting the Company, or any of its properties or
assets, which is reasonably likely to have a material adverse change or
effect, respectively, on the business, assets, liabilities, properties,
income, operations, results of operations or condition (financial or
otherwise) of the Company, taken as a
whole.
4.
Representations and
Warranties of the
Purchaser.
The Purchaser
represents and warrants to the Company as of
the date hereof, and
as of each
Closing Date, as follows:
(a)
Power.
The Purchaser has been
duly organized, is
validly existing
and is in good standing under the laws of its state or jurisdiction of
incorporation, with limited liability, partnership or corporate power and
authority, as the case may be, to execute,
deliver and perform its obligations
under the Agreement.
(b)
Authority.
The Purchaser has the
requisite power and authority to
enter into this Agreement and to purchase the Shares and the Purchased
Warrants and, upon exercise of the
Purchased Warrants in
accordance with
the
terms thereof, the Warrant Shares. The execution and delivery of this
Agreement and the purchase of the Shares
and the Purchased
Warrants hereunder
and the consummation of the transactions
contemplated
hereby have been
duly
and validly authorized by all necessary action by the Purchaser. This
Agreement has been duly and validly
executed and delivered
by or on behalf of
the Purchaser and constitutes a valid, legal and binding agreement,
enforceable against the Purchaser in accordance with its terms, except as
enforceability may be limited by general
equitable principles, bankruptcy,
insolvency, fraudulent conveyance,
reorganization,
moratorium or other
laws
affecting creditors' rights generally.
(c)
No Conflicts.
The execution,
delivery and performance of this
Agreement by the Purchaser and the consummation by the Purchaser of the
purchase of the Securities hereunder do not
and will not: (i) conflict with or
violate any provision of the Purchaser's
articles of incorporation, bylaws or
other organizational or charter documents, or (ii) conflict with, or
constitute a material default (or an event that with
notice or lapse of time
or both would become a material
default) under, or give to others any
rights
of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any
material agreement,
credit facility,
debt or other instrument (evidencing a
Company debt or otherwise) to which the
Purchaser is a party or by which any
property or asset of
the Purchaser
is
bound or affected, or (iii) result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of
any
court or governmental authority as currently in effect
to which the Purchaser
is subject (including federal and state securities laws
and regulations),
or
by which any property or asset of the
Purchaser is bound or
affected; except
in the case of each of clauses (ii) and
(iii), such as could not, individually
or in the aggregate result in a Material
Adverse Effect.
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<PAGE>
(d)
Investment in
Securities. The
Purchaser represents and warrants to,
and covenants with, the Company that: (i)
the Purchaser, either
individually,
or together with a purchaser
representative, is
knowledgeable,
sophisticated
and experienced in making, and is qualified
to make, decisions with respect to
investments in securities representing an investment decision like that
involved in the purchase of the Securities, including investments in
securities issued by the Company and
comparable entities,
and has requested,
received, reviewed and considered all
information it deems relevant in making
an informed decision to purchase the Securities; (ii) the Purchaser is
acquiring the Securities, and upon exercise of the Warrants, the Warrant
Shares, in the ordinary course of its business and for its own account
for
investment only and with no present
intention or view
toward the public sale
or distribution thereof, and no arrangement or
understanding exists with any
other persons regarding the public sale or distribution of any such
securities; (iii) the Purchaser will not,
directly or
indirectly, except
in
compliance with the Securities Act, the rules and regulations promulgated
thereunder and such other securities or blue sky laws as may
be applicable,
offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers
to buy, purchase or otherwise acquire or take a pledge of) any of the
Securities or the Warrant Shares, or engage in any Short Sale (as
defined
below); (iv) the Purchaser has completed or caused to be completed the
Investor Questionnaire and the answers thereto are true and correct in
all
respects as of the date hereof and the Purchaser will notify the Company
immediately of any material change in any such information provided in the
Investor Questionnaire; (v) the Purchaser
has, in connection with its decision
to purchase Securities, relied solely upon the documents delivered to the
Purchaser by the Company and the SEC
Reports; and (vi) the Purchaser is an
"accredited investor" within the meaning of Rule 501(a) of Regulation D
promulgated under the Securities Act.
(e)
Short Sales.
Neither the
Purchaser nor any affiliate of the
Purchaser (as defined in Rule 405 of the Securities Act (each a
"Purchaser/Affiliate") and which (i) had knowledge about the transactions
contemplated hereby, (ii) has or shares
discretion relating to the Purchaser's
investments or trading or information concerning Purchaser's investments,
including the Securities, or (iii) is subject to the
Purchaser's
review or
input concerning such Purchaser/Affiliate's investments or trading) has or
will, directly or indirectly, engage (A) in any "short sale" (as
defined in
Rule 3b-3 promulgated under the Exchange
Act), 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 Stock, other securities, cash or other
consideration) that transfers to another, in whole or in part, any of the
economic consequences of ownership, or otherwise dispose of, any of the
Securities by the Purchaser or (B) in any hedging transaction which
establishes a net short position with
respect to the
Securities (clauses
(A)
and (B) together, a "Short Sale"); except for (1) Short Sales by a
Purchaser/Affiliate which was, prior to the date on which the
Purchaser was
first notified that the Company intended to engage in the transactions
contemplated by this Agreement,
a market maker for the
Common Stock, provided
that such Short Sales are in the ordinary
course of such Purchaser/Affiliate's
business and are in compliance with the Securities Act, and the rules and
regulations promulgated thereunder, and
such other securities or blue sky laws
as may be applicable or (2) Short Sales by a Purchaser/Affiliate which by
virtue of the procedures of the Purchaser are made without
knowledge of the
transactions contemplated in this Agreement
and were not induced or encouraged
by the Purchaser).
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<PAGE>
(f)
Exemptions.
The Purchaser
understands
that the Securities, and
upon issuance, the Warrant Shares, are
being offered and sold to the Purchaser
in reliance upon specific exemptions from the registration requirements of
Securities Act, the rules and regulations
and state securities
laws, and that
the Company is relying upon the truth and accuracy of, and the Purchaser's
compliance with, the representations,
warranties,
agreements, acknowledgments
and understandings of the Purchaser set
forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to
acquire the Securities, and upon issuance,
the Warrant Shares.
(g)
Use of
Information.
The Purchaser has used and will continue
to use all non-public information regarding the Company and its business,
operations and financial condition (the "Confidential Information") for the
sole purpose of evaluating an investment in
the Securities
and the Purchaser
hereby acknowledges that it has not, and
after the Closing, is prohibited from
reproducing or distributing any such
Confidential Information, or divulging or
discussing any of its contents except to
its advisors and
representatives for
the purpose of evaluating an investment.
The foregoing
agreements
shall not
apply to any information that is or becomes publicly available through no
fault of the Purchaser, or that the
Purchaser is legally required to disclose;
provided, however, that if the Purchaser is requested
or ordered to disclose
any such information pursuant to any court or other
government order or
any
other applicable legal procedure, it shall provide the Company with
prompt
notice of any such request or order in time
sufficient
to enable the
Company
to seek an appropriate protective order and shall provide the Company with
reasonable assistance in obtaining such
protective order.
(h)
Investment
Risk. The Purchaser
understands
that its
investment
in the Securities and the Warrants Shares involves a significant
degree of
risk and that the market price of the
Common Stock has been
and continues to
be volatile, that no representation is being made as to the future
value of
the Common Stock and that the Purchaser has
carefully read and
considered the
matters set forth under the caption
"Risk Factors" in the SEC Reports. The
Purchaser has the knowledge and
experience in
financial and business
matters
as to be capable of evaluating the merits and risks of an
investment in the
Securities and has the ability to bear the
economic risks of an investment in
the Securities and the Warrant Shares. The Purchaser has had a reasonable
opportunity to ask questions of the Company
and its
representatives; and
the
Company has answered all inquiries that the Purchaser or the Purchaser's
representatives have put to it, and all such
inquiries have been
answered to
the full satisfaction of the Purchaser.
(i)
Reliance.
The Purchaser is not relying on the Company or any
of its employees or agents with respect to the legal, tax, economic and
related considerations as to an investment in the Securities, and the
Purchaser has relied on the advice of, or
has consulted
with, only his own
advisors as it deems necessary or
advisable.
(j)
No General
Solicitation.
The Purchaser is unaware of, is in
no way relying on, and did not become aware
of the offering of the
Securities
through or as a result of, any form of general solicitation or general
advertising including, without limitation, any article,
notice, advertisement
or other communication published in any newspaper,
magazine or similar
media
or broadcast over television or radio, in connection with the offering and
sale of the Securities and is not subscribing for Securities and did not
become aware of the Offering through or as a result of any
seminar or meeting
to which the Purchaser was invited by, or
any solicitation
of a
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<PAGE>
subscription by, a person not previously known
to the Purchaser in connection
with investments in securities
generally.
(k)
No Endorsement
of Securities. The
Purchaser understands
that no
United States federal or state agency or
any other government
or governmental
agency has passed upon or made any recommendation or endorsement of the
Securities or the Warrant Shares.
(l)
No Registration of Securities. Except as otherwise provided
for in Section 6 hereof, the Purchaser
understands that the Securities and the
Warrant Shares have not been and will not
be registered under
the Securities
Act and that the Purchaser will not sell, offer to sell, assign, pledge,
hypothecate or otherwise transfer any of the Securities or Warrant Shares
unless (i) pursuant to an effective registration statement under the
Securities Act, (ii) the Purchaser provides the Company with an
opinion of
counsel, in a generally acceptable form, to
the effect that a sale, assignment
or transfer of the Securities or Warrant Shares may be made without
registration under the Securities Act and
the transferee agrees to be bound by
the terms and conditions of this Agreement,
(iii) the Purchaser
provides the
Company with evidence of compliance with Rule 144 promulgated under the
Securities Act ("Rule 144"), including reasonable assurances (in the form of
seller and broker representation letters) that the Securities or Warrant
Shares can be sold pursuant to Rule 144 or (iv) pursuant to Rule 144(k)
following the applicable holding
period.
(m)
Legend.
The Purchaser understands that, until such time
as a registration statement has been declared
effective or the Securities and
the Warrant Shares have been sold the
Securities and the Warrant Shares shall
bear a restrictive legend in substantially the following form (and a
stop-transfer order may be placed against
transfer of the certificates for the
Securities and the Warrant Shares):
"THE
SECURITIES
REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"),
OR UNDER THE SECURITIES LAWS OF ANY OTHER
JURISDICTION. THE
SECURITIES
MAY NOT BE
SOLD, TRANSFERRED OR
ASSIGNED
IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT
FOR THE
SECURITIES UNDER THE
SECURITIES ACT AND APPLICABLE STATE
SECURITIES
LAWS, OR AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND
SCOPE
REASONABLY ACCEPTABLE
TO THE COMPANY, THAT
REGISTRATION IS
NOT
REQUIRED UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES
LAWS OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER THE
SECURITIES
ACT."
The
Purchaser further
acknowledges that as required pursuant to Section
25102(a) of the California Corporate Securities Law of 1968, for any
Purchaser that is located in the State of
California,
the certificates for
the Securities and the Warrant Shares shall bear a restrictive legend in
substantially the following form (and a stop-transfer order may be placed
against transfer of the certificates for the Securities and the Warrant
Shares):
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<PAGE>
"THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS
AGREEMENT
HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE
STATE OF CALIFORNIA
AND THE ISSUANCE OF
THE
SECURITIES
OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR
PRIOR TO THE
QUALIFICATION
IS UNLAWFUL,
UNLESS THE
SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY
SECTION
25100, 25102, OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS
AGREEMENT ARE EXPRESSLY
CONDITIONED UPON THE
QUALIFICATION
BEING OBTAINED, UNLESS THE
SALE IS SO
EXEMPT."
(l)
Executive
Offices; Residence. The Purchaser's principal
executive offices (if an entity) or primary
residence (if an
individual) are
in the jurisdiction set forth
immediately
below the Purchaser's
name on the
signature pages hereto.
(m)
Brokers and
Finders. There is no
investment banker,
broker,
finder or other intermediary which has been retained by or is authorized
to
act on behalf of the Purchaser who might be entitled to
any fee or commission
from the Purchaser, the Company, any of their respective Affiliates upon
consummation of the transactions
contemplated by this Agreement.
(n)
Non U.S Persons.
To the extent the
Purchaser is not a
U.S. Person
(as defined below), the Purchaser further represents and warrants to the
Company as follows:
(i) At the
time of (A) the
offer by the Company and (B) the
acceptance of the offer by the Purchaser, of the Securities,
the Purchaser was outside the United States;
(ii) No offer to acquire the Securities or otherwise to
participate in
the transactions contemplated by this
Agreement was made to the Purchaser or its representatives
inside the United States.
(iii) The Purchas
