This Purchase and Sale Agreement involves
Title: SECURITIES PURCHASE AGREEMENT
Governing Law: New York Date: 11/1/2006
Industry: Constr. - Supplies and Fixtures Sector: Capital Goods
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "AGREEMENT"), dated as of September 29, 2006, is by and between LaPolla Industries Inc., a Delaware corporation, with its principal place of business at 15402 Vantage Parkway East, Suite 322, Houston, Texas 77032 (the "COMPANY"), and Richard J. Kurtz, with a residence at Nine Duck Pond Road, Alpine, New Jersey 07620 (the "BUYER").
WHEREAS, the Company and the Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(2) of the Securities Act of 1933, as amended (the "ACT");
WHEREAS, the Company has authorized the following new series of its preferred stock, $1.00 par value per share: the Series D Preferred Stock (the "SERIES D PREFERRED STOCK"), with a stated value per share of Series D Preferred Stock of $1,000, which includes a $1.00 par value per share (The Series D Preferred Stock is referred to in this Agreement as the "SECURITIES"); and
WHEREAS, the Buyer wishes to purchase and the Company desires to sell an aggregate of 6,900 shares of Series D Preferred Stock for a total of $6,900,000, upon the terms and conditions stated in this Agreement.
NOW, THEREFORE, in consideration of the premises and covenants herein contained, the Company and the Buyer hereby agree as follows:
1. PURCHASE AND SALE OF SERIES D PREFERRED STOCK.
a. PURCHASE OF SERIES D PREFERRED STOCK. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7(a) below, the Company shall issue and sell to the Buyer and the Buyer shall purchase from the Company, for an aggregate of $6,900,000 an aggregate of 6,900 shares of Series D Preferred Stock (the "CLOSING"). On the Closing Date, subject to receipt of the agreed upon consideration, the Company shall cause to be delivered to Buyer a stock certificate representing the number of shares of Series D Preferred Stock that Buyer is then purchasing, duly executed on behalf of the Company and registered in the name of the Buyer or his designee (the "STOCK CERTIFICATE").
b. CLOSING DATE. The date and time of the Closing (the "CLOSING DATE") shall be 10:00 a.m. Eastern Daylight Time on September 29, 2006, subject to satisfaction (or waiver) of the conditions to the Closing set forth in Sections 6 and 7(a) below (or such later date as is mutually agreed to by the Company and the Buyer).
c. FORM OF PAYMENT. On the Closing Date, Buyer shall cancel indebtedness in the form of loans bearing interest owed by Company to Buyer as payment of the applicable purchase price for the Series D Preferred Stock to be issued and sold to Buyer at the Closing.
2. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants with respect to only himself that:
a. INVESTMENT PURPOSE. Such Buyer is acquiring the Series D Preferred Stock for his own account for investment only and not with a view towards, or for resale in connection with, the unlawful public sale or distribution thereof, except pursuant to sales of such shares which are the subject of an effective registration statement duly filed under the Act or otherwise exempted under the Act and all applicable state blue sky laws; provided, however, that by making the representations herein, such Buyer does not agree to hold any Securities for any minimum period or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Act and all applicable state blue sky laws.
b. ACCREDITED INVESTOR STATUS. Buyer is an "accredited investor" as that term is defined in Rule 501(a) of Regulation D promulgated by the United States Securities and Exchange Commission (the "SEC") under the Act ("REGULATION D").
c. RELIANCE ON EXEMPTIONS. Buyer understands that the Series D Preferred Stock is being offered and sold to him in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and Buyer's compliance with, the representations, warranties, agreements, acknowledgments and understandings of Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of Buyer to acquire the Series D Preferred Stock.
d. INFORMATION. Buyer acknowledges that he is the Chairman of the Board of Directors of the Company and as such has been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Series D Preferred Stock that have been requested by Buyer. No independent due diligence investigations conducted by Buyer shall modify, amend or affect Buyer's right to rely on the Company's representations and warranties contained in Section 3 below.
e. NO GOVERNMENTAL REVIEW. Buyer understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Series D Preferred Stock and the Warrants or the fairness or suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Series D Preferred Stock.
f. TRANSFER OR RESALE. Buyer understands that the: (i) Securities have not been and are not being registered under the Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) (i) they have been subsequently registered thereunder and (ii) they are offered for sale, sold, assigned and transferred in compliance with the prospectus delivery requirements of the Act; or (B) Buyer shall have delivered to the Company an opinion of counsel, in a generally acceptable form, to the effect that such securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration.
(i) Buyer understands that the certificates or other instruments representing the Series D Preferred Stock shall bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of such stock certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.
(ii) Each certificate for Series D Preferred Stock shall also bear the following legend:
ANY TRANSFEREE OF THIS CERTIFICATE SHOULD CAREFULLY REVIEW THE TERMS OF THE COMPANY'S CERTIFICATE OF DESIGNATIONS RELATING TO THE SERIES D PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE. THE NUMBER OF SERIES D PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE MAY BE LESS THAN THE NUMBER OF SUCH SHARES STATED ON THE FACE HEREOF.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants to Buyer as set forth in this Section 3.
a. ORGANIZATION AND QUALIFICATION. The Company is duly organized and validly existing in good standing under the laws of the jurisdiction in which it is organized, and has the requisite corporate power to own its properties and to carry on its business as now being conducted. The Company is duly qualified to do business and is in good standing in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. "MATERIAL ADVERSE EFFECT" means any material adverse effect on (i) the business, properties, operations, condition (financial or otherwise), results of operations or objective prospects of the Company taken as a whole, (ii) on the ability of the Company to perform its obligations hereunder, under the Certificate of Designation or under the agreements or instruments to be entered into or filed in connection herewith or therewith, or (iii) the Securities.
b. AUTHORIZATION; ENFORCEMENT; COMPLIANCE WITH OTHER INSTRUMENTS. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement, to issue, sell and perform its obligations with respect to the Series D Preferred Stock in accordance with the terms hereof and the Certificate of Designation, (ii) the execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby, including without limitation the issuance of the Series D Preferred Stock, have been duly authorized by the Company's Board of Directors and no further consent or authorization is required by the Company, its Board of Directors or its shareholders, (iii) this Agreement and the certificates for the Series D Preferred Stock have been duly executed and delivered by the Company, (iv) this Agreement and the certificates for the Series D Preferred Stock constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors' rights and remedies, and (v) the Certificate of Designation will have been filed with the Secretary of State of the State of Delaware within sixty (60) days after the Closing date hereof and will be in full force and effect, enforceable against the Company in accordance with its terms.
c. CAPITALIZATION. As of September 29, 2006, the authorized capital stock of the Company consists of sixty seven million (67,000,000) shares, of which sixty five million (65,000,000) are for common stock and two million (2,000,000) for preferred stock. No shares of common stock or preferred stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities as described in this Agreement. The Company has furnished to the Buyer copies of the Company's Restated Certificate of Incorporation, as amended, and as in effect on the date hereof (the "RESTATED CERTIFICATE OF INCORPORATION"), and the Company's Bylaws, as in effect on the date hereof (the "BYLAWS"), and the terms of all securities including the material rights of the holders thereof in respect thereto.
d. ISSUANCE OF SECURITIES. The Securities are duly authorized and, upon issuance in accordance with the terms hereof, shall be (i) validly issued, fully paid and non-assessable, (ii) free from all taxes, liens and charges with respect to the issue thereof and (iii) entitled to the rights and preferences set forth in the Certificate of Designation.
e. NO CONFLICTS. Except as otherwise expressly stated herein, the execution, delivery and performance of this Agreement, the performance by the Company of its obligations under the Certificate of Designation and the consummation by the Company of the transactions contemplated hereby will not (i) result in a violation of the Restated Certificate of Incorporation, as amended, any Certificate of Designation, Preferences and Rights of any outstanding series of preferred stock of the Company or Bylaws or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument to which the Company or any of its subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the rules and regulations of the principal market or exchange on which the common stock is traded or listed) applicable to the Company or by which any property or asset of the Company is bound or affected. The Company is not in violation of any term of or in default under its Restated Certificate of Incorporation or Bylaws, as applicable, any Certificate of Designation, Preferences and Rights of any outstanding series of preferred stock of the Company, or any material contract, agreement, indebtedness, indenture, instrument, judgment, decree or order (collectively referred to as the "MATERIAL CONTRACTS") or any statute, rule or regulation applicable to the Company. The business of the Company is not being conducted, and shall not be conducted, in violation of any material law, ordinance or regulation of any governmental entity. Except as specifically contemplated by this Agreement and as required under the Act and applicable blue sky laws, the Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental or regulatory or self-regulatory agency in order for it to execute, deliver or perform any of its obligations under or contemplated by this Agreement or perform its obligations under the Certificate of Designation in accordance with the terms hereof or thereof.
f. SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the "SEC DOCUMENTS"). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles, consistently applied during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
g. ACKNOWLEDGMENT REGARDING BUYERS' PURCHASE OF THE SERIES D PREFERRED STOCK. Purchaser's status as Chairman of the Board of Directors and holder of more than ten percent (10%) of the Company's outstanding shares, the Company acknowledges and agrees that for purposes hereof, Buyer is acting in the capacity of an arm's length purchaser with respect to this Agreement and the Certificate of Designation and the transactions contemplated hereby and thereby. The Company further acknowledges that for the purposes hereof, Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the Certificate of Designation and the transactions contemplated hereby and thereby and any advice given by Buyer or any of his representatives or agents in connection with this Agreement and the Certificate of Designation and the transactions contemplated hereby and thereby is merely incidental to Buyer's purchase of the Series D Preferred Stock. The Company further represents to Buyer that the Company's decision to enter into this Agreement has been based solely on the independent evaluation by the Company and its representatives.
h. NO GENERAL SOLICITATION. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with the offer or sale of any of the Securities offered hereby.
i. NO INTEGRATED OFFERING. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of any of the Securities under the Act or cause the offering of any of the Securities to be integrated with prior offerings by the Company for purposes of the Act or any applicable stockholder approval provisions, includin