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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, $0.001 par value per share, of Seller; and
WHEREAS, Seller and Purchaser have agreed to
provide for the sale of the Shares in the manner set forth in this
Agreement; and
WHEREAS, Seller has agreed to grant Purchaser
certain registration rights with respect to the resale of the
Shares, on the terms set forth in this Agreement, in order to
provide for an orderly disposition of the Shares if Purchaser
chooses to do so in the future.
NOW, THEREFORE, in consideration of the promises
and the mutual covenants and agreements herein contained, the
parties hereto agree as follows:
1. PURCHASE AND
SALE .
1.1 Sale of Shares
. Upon the terms and conditions set forth in this Agreement, Seller
hereby agrees to sell the Shares to Purchaser, and Purchaser hereby
agrees to purchase from Seller, all right, title and interest in
and to all of the Shares, free of all liens, claims and
encumbrances. The aggregate purchase price for the Shares is
[$___________, 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.
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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
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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.
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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.
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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]
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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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Name:
Title:
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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
any securities exchange on which the Common Stock is then
listed;
(2) fees and expenses of
compliance with securities or blue sky laws (including reasonable
fees and disbursements of counsel for the un
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