STOCK PURCHASE
AGREEMENT
THIS STOCK
PURCHASE AGREEMENT (this “ Agreement ”), dated
as of the [_____] day of [_______], 2007 (the “ Closing
Date ”), is by and between Decorize, Inc., a Delaware
corporation (“ Seller ”), and [_________]
(“ Purchaser ”).
WHEREAS, Seller
desires to sell and to issue to Purchaser, and Purchaser desires to
purchase from Seller, an aggregate [________] shares (the “
Shares ”) of the common stock, $0.001 par value per
share, of Seller; and
WHEREAS, Seller
and Purchaser have agreed to provide for the sale of the Shares in
the manner set forth in this Agreement; and
WHEREAS, Seller
has agreed to grant Purchaser certain registration rights with
respect to the resale of the Shares, on the terms set forth in this
Agreement, in order to provide for an orderly disposition of the
Shares if Purchaser chooses to do so in the future.
NOW, THEREFORE,
in consideration of the promises and the mutual covenants and
agreements herein contained, the parties hereto agree as
follows:
1.1
Sale of Shares . Upon the terms and conditions set
forth in this Agreement, Seller hereby agrees to sell the Shares to
Purchaser, and Purchaser hereby agrees to purchase from Seller, all
right, title and interest in and to all of the Shares, free of all
liens, claims and encumbrances. The aggregate purchase price for
the Shares is [$___________, being the lower of: (i) $[______] per
Share; or (ii) eighty percent (80%) of the market price of the
Shares as of the Closing Date] (the “ Purchase Price
”).
1.2
Closing Procedure . Concurrent with the execution of
this Agreement, Seller shall deliver to Purchaser the stock
certificate(s) representing the Shares, duly endorsed to Purchaser,
and Purchaser shall deliver to Seller the Purchase Price. Seller
shall execute and deliver such documents of transfer as reasonably
requested by Purchaser for the sale of the Shares. All actions
taken on the date hereof with respect to the sale of the Shares
shall be deemed to have been taken place simultaneously, at the
time the last of any such actions is taken or completed.
2.
REPRESENTATIONS AND WARRANTIES OF SELLER . Seller hereby
represents and warrants to Purchaser as follows:
2.1
Due Authorization . Seller has full capacity and is
authorized to enter into this Agreement and to carry out his
obligations hereunder. This Agreement has been duly executed and
delivered by Seller and constitutes the legal, valid, and binding
obligations of Seller, enforceable against him in accordance with
its terms. No consent or approval, and no notice to or filing with,
any third party is required in connection with the execution,
delivery or performance by Seller of this Agreement.
2.2
Title to Shares . Seller has sole legal and
beneficial ownership of the Shares, free and clear of all liens,
claims and encumbrances. The delivery of the certificate(s)
representing the Shares owned by the Seller, duly endorsed or
accompanied by duly executed stock powers, will transfer to
Purchaser good and indefeasible title to such Shares, free and
clear of all liens, proxies, encumbrances and claims of every
kind.
2.3
Use of Proceeds . Seller shall use the proceeds from
the sale of the Shares for working capital, investment capital and
general corporate purposes.
3.
REPRESENTATIONS AND WARRANTIES OF PURCHASER . Purchaser
represents and warrants to Seller as follows:
3.1
Due Authorization . Purchaser has full capacity to
enter into this Agreement and to carry out his obligations
hereunder. This Agreement has been duly executed and delivered by
Purchaser and constitutes the legal, valid, and binding obligations
of Purchaser, enforceable against Purchaser in accordance with its
terms.
3.2
Investment Representations . Purchaser further
represents and warrants as follows:
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(a)
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The undersigned
is purchasing the Shares for his own account and not with a view to
resale or redistribution in a manner which would require
registration under the Securities Act of 1933, as amended (the
“ Act ”), or any state securities laws, or for
sale in connection with a “distribution,” as that term
is used in Section 2(11) of the Act, of the Shares.
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(b)
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The undersigned
understands that the Shares are not registered under the Act or the
securities laws of any state and may not be disposed of in whole or
in part in the absence of registration under the Act or any state
securities laws, unless an exemption from registration is
available.
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(c)
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The undersigned
understands that he may never be able to sell or dispose of such
securities and may thus have to bear the risk of investment in such
securities for a substantial period of time. The undersigned has
adequate means of providing for his current and future
contingencies and has no need for liquidity with regard to his
investment in the Shares.
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(d)
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The undersigned
has been informed and understands that the Shares, upon issue, will
have such restrictive legends as are required by law or as Seller
may otherwise deem appropriate.
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(e)
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The undersigned
has such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of an
investment in the Shares and making an informed decision with
respect to the purchase of the Shares. Purchaser is not relying
upon any representation or warranty by Seller with respect to the
value of the Shares, and accordingly no such representations or
warranties are made.
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(f)
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The undersigned
has had an opportunity to ask questions of and receive satisfactory
answers from Seller, or any person or persons acting on
Seller’s behalf, concerning the terms and conditions of this
investment, and all such questions have been answered to the full
satisfaction of Purchaser.
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4.
REGISTRATION RIGHTS . Seller hereby grants to Purchaser,
with respect to the Shares, registration rights as described in
Schedule A to this Agreement. Purchaser acknowledges and
agrees to the terms of such registrations and Purchaser’s
rights and obligations with respect thereto, as set forth on
Schedule A .
5.
MISCELLANEOUS PROVISIONS
5.1
Assignment . This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors, heirs, and assigns.
5.2
Counterparts . This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
5.3
Entire Agreement . This Agreement and the documents
referred to herein contain the entire understanding of the parties
hereto in respect of the subject matter contained herein. This
Agreement supersedes any prior agreements and understandings
between the parties with respect to the subject matter of this
Agreement.
5.4
Notices . Any notice or communication under this
Agreement must be in writing and given by (a) deposit in the United
States mail, addressed to the party to be notified, postage prepaid
and registered or certified with return receipt requested, (b)
delivery in person or by courier service providing evidence of
delivery, or (c) transmission by telecopy. Each notice or
communication that is mailed, delivered, or transmitted in the
manner described above shall be deemed sufficiently given, served,
sent, and received, in the case of mailed notices, on the third
business day following the date on which it is mailed and, in the
case of notices delivered by hand, courier service, or telecopy, at
such time as it is delivered to the addressee (with the delivery
receipt or the affidavit of messenger) or at such time as delivery
is refused by the addressee upon presentation. Any notice or
communication under this Agreement must be addressed as set forth
on the signature pages to this Agreement. Either party may change
his address for notice by written notice to the other party
hereto.
5.5
Expenses . The parties shall pay their own respective
expenses and the fees and expenses of their respective counsel and
accountants and other experts.
5.6 Survival
of Representations and Warranties . Each party hereto covenants
and agrees that each of the representations, warranties, covenants,
agreements and indemnities in connection therewith contained in
this Agreement and in any ancillary document shall survive the
closing of this transaction.
5.7
Confidential Information .
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(a)
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Purchaser
acknowledges the confidential and proprietary nature of the
"Protected Information" (as defined below) that has heretofore been
exchanged and that will be received from other parties hereunder
and agrees to hold and keep, and to instruct his respective agents,
representatives, affiliates, employees and consultants to hold and
keep such information confidential. For purposes hereof, "
Protected Information " shall include any and all financial,
technical, commercial, marketing, customer or other information
concerning the business, operations and affairs of a party that may
be provided to the other, irrespective of the forte of the
communications, by Purchaser’s employees or agents. Such
Protected Information shall not include information that is or
becomes generally available to the public other than as a result of
a disclosure by a party or its representatives in violation of this
Agreement. Purchaser agrees that the Protected Information will be
used solely for the purposes contemplated by this Agreement and
that such Protected Information will not be disclosed to any person
other than employees and agents of Purchaser who are directly
involved in evaluating this transaction. The Protected Information
shall not be used in any way detrimental to the Seller, including
use directly or indirectly in the conduct of the Seller’s
business or any business or enterprise in which Seller may have an
interest, now or in the future, and whether or not now in
competition with Seller.
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(b)
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Upon
termination of this Agreement without the sale becoming effective,
Purchaser (1) shall deliver to Seller all originals and copies or
other derivatives of all Protected Information made available to
Purchaser, (2) will not retain any copies, extracts or other
reproductions or derivatives in whole or in part of such Protected
Information, and (3) will destroy all memoranda, notes and other
writings prepared by either party based on the Protected
Information.
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5.8
Waivers . No action taken pursuant to this Agreement,
including any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action, or
compliance with any representation, warranty, covenant or agreement
contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach. The waiver by any party hereto at
or before the closing of this transaction of any condition to its
obligations hereunder that is not fulfilled shall preclude such
party from seeking redress from the other party hereto for breach
of any representation, warranty, covenant or agreement contained in
this Agreement.
5.9
Governing Law . This Agreement shall be construed as to both
validity and performance and enforced in accordance with and
governed by the laws of the state of Missouri, without giving
effect to the choice of law principles thereof.
5.10 Prevailing
Party . In the event of any dispute among the parties hereto
with respect to any of the terms or provisions of this Agreement,
the non-prevailing party shall pay or reimburse the prevailing
party for all fees and expenses incurred with respect thereto,
including without limitation any legal and attorneys fees and
expenses incurred by the prevailing party in connection
therewith.
5.11 Amendments
. This Agreement may not be modified or changed except by an
instrument or instruments in writing signed by the party against
whom enforcement of any such modification or amendment is
sought.
[signatures appear on following
page]
IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
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SELLER:
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DECORIZE,
INC.,
a Delaware
corporation
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By:
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/s/
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PURCHASER:
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[_____________]
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Schedule A to Stock Purchase
Agreement
REGISTRATION RIGHTS
In connection
with the Stock Purchase Agreement dated [_________], 2007 (the
“ Purchase Agreement ”), by and between
Decorize, Inc., a Delaware corporation (“ Seller
”), and [__________], as Buyer (herein so called), Seller has
agreed to grant Buyer registration rights with respect to the
shares acquired in connection with the Purchase Agreement as
follows:
ARTICLE I
DEFINITIONS
The terms defined in this Article I shall
have for all purposes of this Schedule A the respective
meanings set forth below:
“
Board ” shall mean the Board of Directors of
Seller.
“
Common Stock ” shall mean the Common Stock, $0.001 par
value, of Seller, and any other class of capital stock of Seller
that is duly authorized and issued from time to time that does not
have preferential rights as to dividends or distributions of
Seller’s assets over any other class of capital stock of
Seller, including any shares issued in exchange for shares of
Common Stock upon any recapitalization by Seller.
“
Exchange Act ” shall mean the Securities and Exchange
Act of 1934, as it may be amended from time to time.
“
Misstatement ” shall mean an untrue statement of a
material fact or an omission to state a material fact required to
be stated in a Registration Statement or Prospectus or necessary to
make the statements in a Registration Statement or Prospectus not
misleading.
“
Person ” shall mean a natural person, partnership,
corporation, business trust, association, joint venture or other
entity or a government or agency or political subdivision
thereof.
“ Prospectus ” shall mean the
prospectus included in any Registration Statement, as supplemented
by any and all prospectus supplements and as amended by any and all
post-effective amendments and including all material incorporated
by reference in such prospectus.
“
Registrable Security ” shall mean (a) an outstanding
share of Common Stock obtained by Buyer pursuant to the Purchase
Agreement, and (b) any security issued or issuable with respect to
such Common Stock by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or reorganization; provided,
that , any such share or security shall be deemed to be
Registrable Security only if and so long as it is a Transfer
Restricted Security.
“
Registration ” shall mean a Demand Registration
described in Section 2.01 or a Piggyback Registration
described in Section 2.02 hereof.
“
Registration Expenses ” shall mean the out-of-pocket
expenses of a Registration, including without limitation the
following:
(1)
all registration and filing fees (including fees with respect
to filings required to be made with the National Association of
Securities Dealers, Inc.) and an
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