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EXHIBIT 4.3
SOLIGEN TECHNOLOGIES, INC.
SERIES A CONVERTIBLE
PREFERRED STOCK
PURCHASE AGREEMENT
Dated as of
April 24, 1998
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TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE OF STOCK....................................................1
1.1 Sale and Issuance of Series A Stock....................................1
1.2 Closing................................................................1
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................................2
2.1 Organization, Qualification and Good Standing..........................2
2.2 Capitalization.........................................................2
2.3 Subsidiaries...........................................................3
2.4 Authorization..........................................................3
2.5 Valid Issuance of Preferred and Common Stock...........................4
2.6 Governmental Consents; Compliance With Laws............................4
2.7 Litigation.............................................................4
2.8 Intellectual Property..................................................5
2.9 Compliance With Other Instruments......................................6
2.10 Agreements; Action.....................................................6
2.11 Related-Party Transactions.............................................6
2.12 Registration Rights....................................................7
2.13 Title to Property and Assets; Condition of Assets......................7
2.14 Licenses...............................................................7
2.15 SEC Filings; Financial Statements......................................7
2.16 Undisclosed Liabilities................................................8
2.17 Changes................................................................8
2.18 Employees.............................................................10
2.19 Employee Benefit Plans................................................10
2.20 Taxes.................................................................10
2.21 Corporate Documents...................................................11
2.22 Minutes...............................................................11
2.23 Environmental and Safety Laws.........................................11
2.24 Brokers or Finders....................................................11
2.25 Offering Valid........................................................11
2.26 Insurance.............................................................11
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TABLE OF CONTENTS
(CONTINUED)
PAGE
2.27 Use of Proceeds.......................................................12
2.28 Customers and Suppliers...............................................12
2.29 Disclosure............................................................12
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR...............................12
3.1 Authorization.........................................................12
3.2 Purchase Entirely for Own Account.....................................13
3.3 Investment Experience.................................................13
3.4 Restricted Securities.................................................13
3.5 Legends...............................................................13
3.6 Residency.............................................................14
4. CONDITIONS OF INVESTOR'S OBLIGATIONS AT THE CLOSING..........................15
4.1 Representations and Warranties........................................15
4.2 Performance...........................................................15
4.3 Compliance Certificate................................................15
4.4 Investor Rights Agreement.............................................15
4.5 Agreement.............................................................15
4.6 Proceedings and Documents.............................................15
4.7 Opinion of Counsel....................................................15
4.8 Legal Expenses........................................................16
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING.......................16
5.1 Representations and Warranties........................................16
5.2 Payment of Purchase Price.............................................16
5.3 Securities Laws Qualification.........................................16
5.4 Performance...........................................................16
6. INDEMNIFICATION..............................................................16
6.1 Indemnity by the Company..............................................16
6.2 Notice of Indemnity Claim.............................................17
6.3 Limitations on Investor's Indemnities.................................18
7. COVENANTS....................................................................18
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TABLE OF CONTENTS
(CONTINUED)
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7.1 Affirmative Covenants and Agreements of the Company...................18
7.2 Covenants and Agreements of Investor..................................19
8. MISCELLANEOUS................................................................19
8.1 Survival of Warranties................................................19
8.2 Successors and Assigns................................................20
8.3 Governing Law; Jurisdiction and Venue.................................20
8.4 Titles and Subtitles..................................................20
8.5 Notices...............................................................20
8.6 Finder's Fees.........................................................21
8.7 Amendments and Waivers................................................21
8.8 Severability..........................................................22
8.9 Entire Agreement......................................................22
8.10 Expenses..............................................................22
8.11 Further Assurances....................................................22
8.12 Counterparts -- Facsimile Signatures..................................22
LIST OF EXHIBITS/SCHEDULES........................................................24
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SERIES A CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
THIS SERIES A CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT (this
"Agreement") is made as of April 24, 1998, by and among Soligen Technologies,
Inc., a Wyoming corporation (the "Company"), and Koyah Leverage Partners, L.P.,
a Delaware limited partnership, and Koyah Partners, L.P., a Delaware limited
partnership (Koyah Leverage Partners, L.P. and Koyah Partners, L.P. are referred
to collectively herein as the "Investor").
RECITALS
A. The Investor desires to purchase an aggregate of up to 3,000 shares
of the Company's Series A Convertible Preferred Stock (the "Series A Stock")
pursuant to this Agreement.
B. The Company desires to sell and issue to the Investor up to 3,000
shares of Series A Stock at a price of $500 per share, for a total purchase
price of $1,500,000.
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties hereto agree as follows:
1. PURCHASE AND SALE OF STOCK
1.1 SALE AND ISSUANCE OF SERIES A STOCK
(a) The Company has adopted and filed, or prior to the Closing (as
defined in paragraph (a) of Subsection 1.2), will have adopted and filed, with
the Secretary of State of the State of Wyoming an amendment to its Articles of
Incorporation in the form attached hereto as Exhibit A (the "Amendment"), which
includes a designation of the rights and preferences of the Series A Stock.
(b) Subject to the terms and conditions of this Agreement, the
Investor agrees to purchase, and the Company agrees to sell and issue to the
Investor at the Closings (as defined in paragraph (a) of Subsection 1.2), up to
3,000 shares of Series A Stock (but Investor shall not be obligated to purchase
3,000 shares of the Series A Stock) at a purchase price of $500 per share, for a
total purchase price of $1,500,000 (the "Purchase Price").
1.2 CLOSING
(a) The purchase and sale of the Series A Stock shall take place
in one or more closings, the first to occur on April 24, 1998 (the "First
Closing Date") at the offices of Garvey, Schubert & Barer, in Seattle,
Washington, upon the satisfaction of the conditions set forth in Sections 4 and
5, or at such other time and place as the parties may mutually agree (the "First
Closing"). Subsequent closings shall occur on or before May 31, 1998, or at such
other time and place on which the Company and Investor mutually agree (together
with the First Closing, the "Closings"). At each Closing, the
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Company shall deliver to the Investor a certificate representing the number of
shares of Series A Stock purchased by the Investor at such Closing against
payment to the Company therefor by wire transfer of immediately available funds.
Schedule 1 sets forth the number of shares of Series A Stock purchased by the
Investor at each Closing and the consideration paid by the Investor at each
Closing. At the First Closing, the Investor shall purchase a minimum of 1,600
shares of Series A Stock. Schedule 1 may be amended by the Company at each
Closing to reflect the purchase of shares of Series A Stock occurring at the
Closing.
(b) The obligation of the Company and the Investor to consummate
the transactions contemplated at each Closing is subject to the satisfaction, on
or before the date of such Closing, of the conditions set forth in Sections 4
and 5.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As used herein, the term: "to the best knowledge of the Company" (or words
to that effect) shall mean such knowledge and belief as may be acquired after
reasonable inquiry of the directors, officers, and employees of the Company. The
Company (which for purposes of this Section 2 includes its wholly-owned
subsidiaries set forth on paragraph 2.3 of the Schedule of Exceptions attached
hereto (the "Subsidiaries")) hereby represents and warrants to the Investor
that, except as set forth on the Schedule of Exceptions attached hereto as
Exhibit B:
2.1 ORGANIZATION, QUALIFICATION AND GOOD STANDING
The Company is a corporation duly organized and validly existing under the
laws of the State of Wyoming and has all requisite corporate power and authority
to own and operate its properties and assets, to execute and deliver this
Agreement and the Investor Rights Agreement (attached hereto as Exhibit D and
referred to herein as the "Investor Rights Agreement" and together with this
Agreement and the Amendment, the "Related Documents"), to issue and sell the
Series A Stock and the Company's common stock ("Common Stock") issuable upon
conversion thereof (the "Conversion Shares"), to carry out the provisions of
this Agreement, the Investor Rights Agreement, and the Amendment and to carry on
its business as presently conducted. The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure to so
qualify would have a material adverse effect on the business, properties,
assets, liabilities, financial condition, operations or prospects of the Company
and its Subsidiaries taken as a whole (the "Condition of the Company").
2.2 CAPITALIZATION
Immediately prior to or concurrently with the Closing, the capital stock
of the Company shall consist of the preferred stock, common stock and rights
described in paragraphs (a), (b) and (c) below.
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(a) Preferred Stock
There are 10,000,000 shares of preferred stock authorized, with no
par value per share, 5,000 shares of which have been designated as Series A
Stock, and none of which is outstanding. The rights, privileges and preferences
of the Series A Stock are as stated in the Amendment.
(b) Common Stock
There are 90,000,000 shares of Common Stock authorized, with no par
value per share, 32,682,338 shares of which are issued and outstanding. Of the
authorized but unissued Common Stock, 6,500,000 shares are reserved for issuance
upon the conversion of the Series A Stock, 4,838,255 are reserved for issuance
upon exercise of outstanding warrants, and 4,990,000 shares are reserved for
issuance under the Company's stock option plan.
(c) Rights
Except for the conversion privileges of the Series A Stock and other
rights, privileges and agreements contemplated pursuant to this Agreement, and
as set forth in paragraph (b) of Subsection 2.2, there are no outstanding
options, warrants, subscriptions, rights (including conversion or preemptive
rights or first refusal rights), agreements for the purchase or acquisition from
the Company or by the Company of any shares of the Company's capital stock or
securities convertible into its capital stock, or, to the Company's knowledge,
any voting agreements with respect to the Company's securities.
2.3 SUBSIDIARIES
Other than the entities listed on paragraph 2.3 of the Schedule of
Exceptions, the Company does not presently own or control, directly or
indirectly, any interest in any other corporation, association, partnership or
other business or investment entity.
2.4 AUTHORIZATION
All corporate action on the part of the Company, its officers, directors
and shareholders necessary for the authorization, execution and delivery of this
Agreement and the Investor Rights Agreement, the performance of all obligations
of the Company hereunder and thereunder and the authorization, sale, issuance
and delivery of the Series A Stock and Conversion Shares has been taken or will
be taken before the Closing. This Agreement and the Investor Rights Agreement
have been duly executed and delivered by the Company and constitute valid and
legally binding obligations of the Company, enforceable in accordance with their
terms, subject to (a) applicable bankruptcy, insolvency, reorganization, or
similar laws relating to or affecting the enforcement of creditors' rights; (b)
the availability of equitable remedies; and (c) the effect of public policy on
the indemnification provisions set forth in the Investor Rights Agreement.
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2.5 VALID ISSUANCE OF PREFERRED AND COMMON STOCK
The Series A Stock, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable and free of any liens or encumbrances. The
Conversion Shares have been duly and validly reserved for issuance and, upon
issuance in accordance with the terms of the Amendment will be duly and validly
issued, fully paid and nonassessable and free of any liens or encumbrances. The
Series A Stock will be free of restrictions on transfer other than applicable
federal and state securities laws.
2.6 GOVERNMENTAL CONSENTS; COMPLIANCE WITH LAWS
No consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, regional,
state or local governmental authority on the part of the Company is required in
connection with the consummation of the transactions contemplated by this
Agreement, except for filings, if any, required pursuant to applicable state
securities laws, which filings will be made within the required statutory
period, and the filing pursuant to Regulation D of the Securities and Exchange
Commission (the "SEC") of Form D, which filing will be effected within fifteen
(15) days following the Closing. The Company is not in violation of any
applicable statute, rule, regulation, order or restriction of any domestic or
foreign government or any instrumentality or agency thereof in respect of the
conduct of its business or the ownership or possession of its properties or
assets, which violation would materially and adversely affect the Condition of
the Company.
2.7 LITIGATION
There is no action, suit, claim, proceeding or investigation pending or,
to the Company's knowledge, currently threatened against the Company that
questions the validity of this Agreement or the other agreements contemplated
herein or the right of the Company to enter into any of such agreements, or to
consummate the transactions contemplated herein or therein, or that would either
individually or in the aggregate have a material adverse effect on the Condition
of the Company, financially or otherwise, or any change in the current equity
ownership of the Company, nor is the Company aware that there is any basis for
the foregoing. The foregoing includes, without limitation, actions pending or,
to the Company's knowledge, threatened (or any basis therefor known to the
Company) involving the prior employment of the Company's employees, their use in
connection with the Company's business of any information or techniques
allegedly proprietary to any of their former employers, or their obligations
under any agreements with prior employers. There is no action, suit, proceeding
or investigation by the Company currently pending or which the Company intends
to initiate. The Company is not a party or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality that could have a material adverse effect on the Condition of
the Company. None of the transactions contemplated hereby or by the Related
Documents have been enjoined by any authority and no suit or other proceeding
challenging the transactions contemplated by the Related Documents (of which the
Company has been served or is aware) has been instituted or, to the best of
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the Company's knowledge, threatened, and no investigative demand on the Company
related to such transactions has been made by any authority. There are no
unsatisfied judgments or outstanding orders, injunctions, decrees, stipulations
or awards of any authority against the Company, or any of its Subsidiaries or
against any of their properties or assets that, individually or in the
aggregate, exceed $25,000 or are otherwise material to the Condition of the
Company.
2.8 INTELLECTUAL PROPERTY
(a) The Company owns or has the rights to use, sell or license all
patents, trademarks, service marks, trade names, copyrights, trade secrets,
software data, information, proprietary rights and processes (collectively,
"Intellectual Property") necessary or required for its business as now
conducted, and believes it can obtain, on commercially reasonable terms, any
additional rights necessary or required for its business as proposed to be
conducted, and the Company's Intellectual Property, products, services and
business do not, and, to the knowledge of the Company, would not, conflict with,
or constitute an infringement of, the rights of others. Since its organization,
the Company has taken reasonable measures to protect the value (and, to the
extent applicable, the confidentiality and security) of all Intellectual
Property used in its products, services and business. There is no pending or, to
the knowledge of the Company, threatened claim or litigation contesting the
validity, ownership or right to use, sell, license or dispose of any of the
Company's Intellectual Property.
(b) The Company has not received any communications alleging that
the Company or any of its employees has violated or infringed, or by conducting
its business as proposed, would violate or infringe, any of the Intellectual
Property rights of any other person or entity.
(c) No employee of the Company is obligated under any contract
(including licenses, covenants or commitments of any nature) or other agreement,
or subject to any judgment, decree or order of any court or administrative
agency, that would cause the Company to infringe upon the Intellectual Property
rights of any other person or entity, that would interfere with the use of such
employee's best efforts to promote the best interests of the Company or that
would conflict with the Company's business as proposed to be conducted.
(d) After giving effect to the Related Documents, the execution,
delivery and performance of this Agreement and the Investor's Rights Agreement
will not constitute a breach of any instrument or agreement governing any of the
Company's Intellectual Property, will not cause the forfeiture or termination or
give rise to a right of forfeiture or termination of any of the Company's
Intellectual Property or impair the right of the Company to use, sell or license
any of the Company's Intellectual Property or portion thereof, except for any
such breach, forfeiture, termination, right of forfeiture or termination or
impairment that would not, individually or in the aggregate, result in a
material adverse effect on the Condition of the Company.
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2.9 COMPLIANCE WITH OTHER INSTRUMENTS
The Company is not in violation of any provision of its Articles of
Incorporation, as amended, or its Bylaws, or in violation or default of any
provision of any instrument, judgment, order, writ, decree or contract to which
it is a party or by which it is bound, which violation or default would
materially and adversely affect the Condition of the Company. The execution,
delivery and performance of this Agreement and the Investor Rights Agreement
will not result in any such violation or default or require any consent under,
or be in conflict with, or constitute, with or without the passage of time and
giving of notice, either a violation or default under, any such provision,
instrument, judgment, order, writ, decree or contract or an event that results
in the creation of any lien, charge or encumbrance upon any properties or assets
of the Company.
2.10 AGREEMENTS; ACTION
(a) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) made any loans or advances to any person, other than
in the ordinary course of business, (iii) sold, exchanged or otherwise disposed
of any of its assets or rights, other than in the ordinary course of business;
or (iv) redeemed, or obligated itself to redeem, any of its capital stock.
(b) Except for agreements explicitly contemplated herein, there
are no agreements, understandings or proposed transactions between the Company,
on the one hand, and any of its officers, directors, affiliates or any affiliate
thereof, on the other hand.
(c) The Company is not a party to and is not bound by any
contract, agreement or instrument, or subject to any restriction under its
Articles of Incorporation, as amended, its Bylaws or other governing documents
that materially adversely affects the Condition of the Company.
2.11 RELATED-PARTY TRANSACTIONS
No employee, officer or director of the Company or, to our knowledge, any
member of the immediate family of any of the foregoing:
(a) Owns or has owned, directly or indirectly, any interest in
(except for less than one percent stock holdings for investment purposes in
securities of publicly traded companies), or is an officer, director, employee
or consultant of, any entity which is or was engaged in business as, a
competitor, lessor, lessee, supplier or customer of the Company;
(b) Owns, directly or indirectly, as a whole or in part, any
tangible or intangible property that the Company uses or contemplates using in
the conduct of its business; or
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(c) Has any cause of action or other claim whatsoever against, or
owes any amount to, the Company, except for immaterial claims in the ordinary
course of business such as for accrued vacation pay, accrued benefits under
employee benefit plans, and medical, dental and other similar health benefit
plans existing on the date hereof.
2.12 REGISTRATION RIGHTS
Except as otherwise set forth in the Investor Rights Agreement, the
Company has not granted or agreed to grant any registration rights to any person
or entity.
2.13 TITLE TO PROPERTY AND ASSETS; CONDITION OF ASSETS
The Company owns or leases all of the property and assets necessary for
the conduct of its business as now conducted and as proposed to be conducted
(the "Company Property"). With respect to the Company Property it owns, the
Company has good and marketable title to such property and all such property is
free and clear of all mortgages, liens, loans and encumbrances, except liens and
encumbrances that arise in the ordinary course of business and do not materially
impair the Company's ownership or use of such property or assets. With respect
to the Company Property it leases, the Company is in compliance with such leases
in all material respects and holds a valid leasehold interest free of any liens,
claims or encumbrances. All facilities and all material machinery, equipment,
fixtures, vehicles and other Company Property owned, leased or used by the
Company, allowing for ordinary wear and tear, are in good operating condition
and repair and are reasonably fit and usable for the purposes for which they are
being used and conform to all applicable laws relating to their construction,
use and operation, except where such failure, individually or in the aggregate,
would not have a material adverse effect on the Condition of the Company. No
Person other than the Company owns any equipment or other tangible assets or
property situated on the premises of the Company necessary to the operation of
the business of the Company, except for leased items, as to which leases, the
Company is not in default thereof.
2.14 LICENSES
The Company has all licenses and permits (federal, state, foreign and
local) necessary to conduct its business and the ownership or possession by the
Company of its properties and assets, and such licenses and permits are in full
force and effect. The Company is in compliance with respect to such licenses or
permits, and no proceeding is pending or, to the Company's knowledge, threatened
to revoke any of such licenses or permits.
2.15 SEC FILINGS; FINANCIAL STATEMENTS
(a) The Company has timely filed all forms, proxy statements,
registration statements, reports, schedules, and other documents filed or
required to be filed by the Company with the SEC under the Securities Act of
1933, as amended and the Securities Exchange Act of 1934, as amended
(collectively, the "Securities Laws") since 1995 (the "SEC Reports"). The SEC
Reports (i) at the time filed, complied in all material
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respects with the applicable requirements of the Securities Laws and (ii) did
not, at the time they were filed (or, if amended or superseded by a filing prior
to the date of this Agreement, then on the date of such filing) contain any
untrue statement of a material fact or omit to state a material fact required to
be stated in such SEC Reports or necessary in order to make the statements in
such SEC Reports, in light of the circumstances under which they were made, not
misleading.
(b) Each of the financial statements (including, in each case, any
related notes) contained in the SEC Reports through the period ending December
31, 1997 ("Financial Statements") complied as to form in all material respects
with the applicable published rules and regulations of the SEC with respect
thereto, was prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes to such
financial statements or, in the case of unaudited interim statements, as
permitted by Form 10-Q of the SEC), and fairly presented in all material
respects the consolidated financial position of the Company as at the respective
dates and the consolidated results of operations and cash flows for the periods
indicated, except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments which were not or are not
expected to be material in amount or effect.
2.16 UNDISCLOSED LIABILITIES
Except as and to the extent reflected or reserved against in the Financial
Statements, the Company did not have, as of December 31, 1997, any debts,
liabilities or obligations of any nature, whether accrued, absolute, contingent
or otherwise, and whether due or to become due, including, without limitation,
liabilities or obligations on account of taxes or other governmental charges or
penalties, interest or fines thereon or in respect thereof which, individually
or in aggregate, have a material adverse effect on the Condition of the Company.
The Company does not know and does not have any grounds to know of any basis for
any assertion against the Company of any debt, liability or obligation of any
nature or in any amount not fully reflected or reserved against in the Financial
Statements or disclosed in this Agreement, other than debts, liabilities or
obligations referred to in paragraph (e) of Subsection 2.17 hereof.
2.17 CHANGES
Since December 31, 1997, there has not been:
(a) Any material change in the Condition of the Company, except
changes in the ordinary course of business, none of which has been materially
adverse, and all of which in the aggregate have not been materially adverse to
the Company;
(b) Any damage, destruction or loss (whether or not covered by
insurance) materially and adversely affecting the properties, assets or business
of the Company;
(c) Any material increase in the compensation or rate of
compensation or commissions payable or to become payable by the Company to any
of its directors,
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officers, employees, salespersons or agents, or any material change
in any bonus, profit-sharing, retirement or other similar plan, agreement or
arrangement or any adoption of, or entry into, any new bonus, profit-sharing,
group life or health insurance, or other similar plan, agreement or arrangement;
(d) Any material change in the accounting methods or practices
followed by the Company;
(e) Any material debt, obligation or liability (whether absolute
or contingent) incurred by the Company (whether or not presently outstanding)
except (i) current liabilities incurred, and obligations under agreements
entered into, in the ordinary course of business and (ii) obligations or
liabilities entered into or incurred in connection with the execution of this
Agreement;
(f) Any sale, lease, abandonment or other disposition or creation
of any encumbrance by the Company of any real property or, in each case other
than in the ordinary course of business, of any equipment or other operating
properties or any sale, assignment, transfer, license or other disposition by
the Company of any Intellectual Property or other intangible asset;
(g) Any labor trouble, strike or any other occurrence, event or
condition of any similar character that materially and adversely affects or may
materially and adversely affect the assets, properties, business or prospects of
the Company;
(h) Any material change, except in the ordinary course of
business, in the contingent obligations of the Company by way of guaranty,
endorsement, indemnity, warranty, or otherwise;
(i) Any waiver by the Company of a valuable right or a material
debt owed to it except in the ordinary course of business;
(j) Any direct or indirect loans made by the Company to any
shareholder, employee, officer, or director of the Company, other than advances
made in the ordinary course of business;
(k) Any declaration or payment of any dividend or other
distribution of the assets of the Company;
(l) Any direct or indirect redemption, purchase or other
acquisition of any shares of capital stock of the Company;
(m) Any resignation or termination of employment of any key
officers and, the Company, to the best of its knowledge, does not know of any
impending resignation or termination of employment of any such key officers;
(n) Any changes to any material agreement to which the Company is
a party which materially and adversely affects the Condition of the Company; or
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(o) Any event, or occurrence of any event, that would cause any
SEC Report to be misleading or to have omitted a material fact.
2.18 EMPLOYEES
The Company has no collective bargaining agreements with any of its
employees. There is no labor union organizing activity pending or, to the
Company's knowledge, threatened with respect to the Company. The Company is not
aware that any officer or key employee, or that any group of key employees,
intends to terminate their employment with the Company, nor does the Company
have a present intention to terminate the employment of any officer, key
employee or group of key employees. The employment of each officer and employee
of the Company is terminable at the will of the Company. To its knowledge, the
Company has complied in all material respects with all applicable state and
federal equal employment opportunity and other laws related to employment. To
the Company's knowledge, no employee of the Company, nor any consultant with
whom the Company has contracted, is in violation of any term of any employment
contract, proprietary information agreement or any other agreement relating to
the right of any such individual to be employed by, or to contract with, the
Company because of the nature of the business to be conducted by the Company;
and to the Company's knowledge, the continued employment by the Company of its
present employees, and the performance of the Company's contracts with its
independent contractors will not result in any such violation. The Company has
not received any notice alleging that any such violation has occurred. No
employee of the Company has been granted the right to continued employment by
the Company or to any material compensation following termination of employment
with the Company. The Company has entered into a confidentiality agreement in a
form previously provided to the Investor's counsel with each officer, director
and key employee of the Company. All persons having access to the Company's
Intellectual Property have executed and are bound by confidentiality agreements.
2.19 EMPLOYEE BENEFIT PLANS
The Company does not have any "employee benefit plan" as defined in the
Employee Retirement Income Security Act of 1974, as amended.
2.20 TAXES
The Company has filed all tax returns (federal, state, foreign and local)
required to be filed by it and such returns are true and correct in all material
respects, and all taxes shown to be due and payable on such returns or on any
assessments received by the Company and all other taxes (federal, state, foreign
and local) due and payable by the Company on or before the date hereof have been
paid. There are no agreements, waivers or other arrangements providing for an
extension of time with respect to the assessment of any tax or deficiency
against the Company, nor are there any actions, suits, proceedings,
investigations or claims now pending against the Company in respect of any tax
or assessment, or, to the Company's knowledge, any matters under discussion
within any federal, state, foreign or local authority relating to any taxes or
assessments, or any
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claims for additional taxes or assessments asserted by any such authority. The
provisions made for taxes in the Financial Statements are sufficient for the
payment of all unpaid federal, state, foreign and local taxes of the Company for
all periods prior to such date.
2.21 CORPORATE DOCUMENTS
The Company's Articles of Incorporation are, or at the time of Closing
will be, in the form attached hereto as Exhibit A. The Bylaws of the Company are
in the form attached hereto as Exhibit C.
2.22 MINUTES
The minutes of the Company reflect all meetings of directors and
shareholders since the time of the Company's continuance in the State of Wyoming
and reflect all transactions referred to in such minutes accurately in all
material respects.
2.23 ENVIRONMENTAL AND SAFETY LAWS
The Company is not in material violation of any applicable statute, law or
regulation relating to the environment, occupational health and safety,
sanitation, or public health, and, to its knowledge, no material expenditures
are or will be required in order to comply with any such existing statute, law
or regulation.
2.24 BROKERS OR FINDERS
The Company has not incurred and will not incur, directly or indirectly,
any liability for brokers' or finders' fees, agents' commissions or other
similar charges in connection with this Agreement or the transactions
contemplated herein.
2.25 OFFERING VALID
The offer, sale and issuance of the Series A Stock and the Conversion
Shares are exempt from the registration requirements of the applicable
Securities Laws, and are registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of all applicable state securities laws and neither the Company nor
any agent on behalf of the Company has taken or will take any action hereafter
that would cause the loss of such exemption.
2.26 INSURANCE
The Company has in full force and effect fire and casualty insurance
policies, with extended coverage, sufficient in amount (subject to reasonable
deductibles) to allow it to replace any of its properties that might be damaged
or destroyed and the Company has insurance against other hazards, risks and
liabilities to persons and properties to the extent and in the manner customary
for companies in a similar business and similarly situated.
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2.27 USE OF PROCEEDS
The Company will use the proceeds from the sale of the Series A Stock for
repayment of short-term debt in the principal amount of $260,000, capital
expenditures and general working capital.
2.28 CUSTOMERS AND SUPPLIERS
The Company believes that its relationships with its material customers
and suppliers are good.
2.29 DISCLOSURE
This Agreement, the Exhibits hereto and all other documents delivered by
the Company to the Investor or its attorneys or agents in connection herewith or
therewith do not contain any untrue statement of a material fact nor omit to
state a material fact necessary in order to make the statements contained herein
or therein not misleading. To the Company's knowledge, there are no facts that
(individually or in the aggregate) would materially adversely affect the
Condition of the Company that have not been set forth in this Agreement, the
Exhibits hereto or in other documents delivered to the Investors or its
attorneys or agents in connection herewith.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor herein represents and warrants for itself, that:
3.1 AUTHORIZATION
All acts necessary for the authorization, execution and delivery by the
Investor of this Agreement and the Investor Rights Agreement and the performance
of the obligations of the Investor hereunder and thereunder have been or will be
taken before the Closing. This Agreement and the Investor Rights Agreement have
been duly executed and delivered by the Investor and constitute valid and
legally binding obligations of the Investor, enforceable in accordance with
their terms, subject to (a) applicable bankruptcy, insolvency, reorganization,
or similar laws relating to or affecting the enforcement of creditors' rights;
(b) the availability of equitable remedies; and (c) the effect of public policy
on the indemnification provisions set forth in the Investor Rights Agreement.
The Investor has full power and authority to execute, deliver and perform its
obligations under this Agreement and the Investor Rights Agreement and to own
the Series A Stock and the Conversion Shares. The execution, delivery and
performance of this Agreement and the Investor Rights Agreement and the
consummation of the transactions contemplated herein and therein (including
ownership of the Series A Stock and the Conversion Shares) by the Investor do
not violate any provision of, or constitute a material breach of or default
under, any term, condition or provision of any agreement, indenture or other
instrument to which the Investor is a party, or by which it or its properties or
assets are bound, or of any order, judgment or decree against or binding upon
the Investor.
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3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT
This Agreement and the Investor Rights Agreement are made with the
Investor in reliance upon the Investor's representations to the Company
contained in this Section 3, which, by the Investor's execution of this
Agreement and the Investor Rights Agreement, the Investor herein confirms. The
Series A Stock and the Conversion Shares (collectively, the "Securities") will
be acquired for investment for the Investor's own account and not with a view to
the distribution of any part thereof, and the Investor has no present intention
of selling, granting any participation in, or otherwise distributing the same in
a manner contrary to the applicable Securities Laws, or applicable state
securities laws.
3.3 INVESTMENT EXPERIENCE
The Investor is an investor in securities of companies in the development
stage, qualifies as an "accredited investor" as defined in Rule 501 of
Regulation D promulgated by the SEC, and acknowledges that the Securities are a
speculative risk. The Investor is able to fend for itself in the transactions
contemplated by this Agreement and the Investor Rights Agreement, can bear the
economic risk of its investment (including possible complete loss of such
investment) for an indefinite period of time and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of its investment in the Securities. The Investor represents it
has not been organized for the purpose of acquiring the Securities. The Investor
understands that the Securities have not been registered under the applicable
Securities Laws, or under the securities laws of any jurisdiction, by reason of
reliance upon certain exemptions, and that the reliance of the Company on such
exemptions is predicated upon the accuracy of the Investor's representations and
warranties in this Section 3.
3.4 RESTRICTED SECURITIES
The Investor understands that the Securities are characterized as
"restricted securities" under the Securities Laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations such securities may be
transferred or resold without registration under the applicable Securities Laws
only in certain limited circumstances and in accordance with the terms and
conditions set forth in the legend described in Subsection 3.5. In this
connection, the Investor represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the applicable Securities Laws.
3.5 LEGENDS
It is understood that the certificates evidencing the Securities may bear
the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE LAW, AND NO
INTEREST THEREIN MAY BE
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SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS
(i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE
STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES,
(ii) THIS CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF
THESE SECURITIES STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION OR
(iii) THIS CORPORATION OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS
EXEMPT FROM REGISTRATION. AFTER THE PERIOD REQUIRED BY RULE 144(k) UNDER THE
ACT, THIS LEGEND WILL BE CANCELED, AND A CERTIFICATE FREE FROM SUCH LEGEND
ISSUED TO THE HOLDER HEREOF UPON COMPLIANCE WITH THE FOLLOWING CONDITIONS: (a)
SURRENDER OF THIS CERTIFICATE TO THIS CORPORATION IN THE MANNER AND AT THE PLACE
DESIGNATED FOR CANCELLATION, (b) A REPRESENTATION BY THE HOLDER THAT IT HAS
BENEFICIALLY HELD THE SECURITIES EVIDENCED BY THIS CERTIFICATE FOR NOT LESS THAN
THE PERIOD REQUIRED BY RULE 144(k) UNDER THE ACT, AND THAT IT IS NOT, AND HAS
NOT WITHIN THE PRECEDING 90 DAYS BEEN, AN "AFFILIATE" (AS THAT TERM IS DEFINED
FOR PURPOSES OF RULE 144 UNDER THE ACT OR ANY SUCCESSOR RULE) OF THIS
CORPORATION, AND (c) AN UNDERTAKING THAT IF AT ANY TIME THE HOLDER SHALL AGAIN
BECOME AN AFFILIATE OR OTHERWISE CEASE TO ENJOY FREE TRANSFERABILITY OF SUCH
SECURITIES UNDER RULE 144 EITHER BY REASON OF CHANGE OF CIRCUMSTANCE OR
AMENDMENT OF RULE 144, IT SHALL FORTHWITH SURRENDER ANY UNLEGENDED
CERTIFICATE(S) RECEIVED BY IT IN RESPECT OF THE SECURITIES EVIDENCED BY THIS
CERTIFICATE FOR IMPOSITION OF ANY APPROPRIATE LEGEND. THE FULL STATEMENT OF THE
POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER
SPECIAL RIGHTS AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS THEREOF (THE
"STATEMENT OF RIGHTS AND PREFERENCES") OF THE SECURITIES IS SET FORTH IN THE
CERTIFICATE OF INCORPORATION OF THIS CORPORATION, AS AT ANY TIME AMENDED, AND
ANY EFFECTIVE STATEMENT OF RELATIVE RIGHTS AND PREFERENCES OF PREFERRED STOCK,
ON FILE IN THE OFFICE OF THE SECRETARY OF STATE OF THE STATE OF WYOMING. THIS
CORPORATION WILL FURNISH COPIES OF THE STATEMENT OF RIGHTS AND PREFERENCES TO
THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO
THIS CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE.
3.6 RESIDENCY
For purposes of the application of state securities laws, the Investor
represents that it is a resident of the State of Washington.
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4. CONDITIONS OF INVESTOR'S OBLIGATIONS AT THE CLOSING
The obligations of the Investor under paragraph (b) of Subsection 1.1 are
subject to the fulfillment at or before each Closing (unless otherwise
specified) of each of the following conditions, unless waived by the Investor:
4.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Company contained in Section 2
shall be true in all material respects on and as of each Closing with the same
effect as though such representations and warranties had been made as of the
date of each Closing, except to the extent of changes caused by the transactions
expressly contemplated herein.
4.2 PERFORMANCE
The Company shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before each Closing.
4.3 COMPLIANCE CERTIFICATE
An authorized officer of the Company on behalf of the Company shall
deliver to the Investor at each Closing a certificate certifying that the
conditions specified in Subsections 4.1 and 4.2 have been fulfilled and stating
that there has been no material adverse change in the Condition of the Company
from the date of this Agreement to the time of the Closing.
4.4 INVESTOR RIGHTS AGREEMENT
The Company and the Investor shall have entered into the Investor Rights
Agreement.
4.5 AGREEMENT
The Company and the Investor shall have entered into the Agreement.
4.6 PROCEEDINGS AND DOCUMENTS
All corporate and other proceedings in connection with the transactions
contemplated at the Closing and all documents incident thereto, including
evidence of filing the Amendment with the Secretary of State of the State of
Wyoming, shall be reasonably satisfactory in form and substance to the
Investor's counsel.
4.7 OPINION OF COUNSEL
The Company shall have delivered to the Investor an opinion of counsel for
the Company, dated as of each Closing Date, in form and substance satisfactory
to the Investor.
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4.8 LEGAL EXPENSES
The Company shall have paid the reasonable legal fees and expenses of
Shartsis, Friese & Ginsburg LLP, up to a maximum of $10,000 for the First
Closing, and up to a maximum of $2,000 for all subsequent Closings, incurred in
connection with the transactions contemplated by this Agreement.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING
The obligations of the Company to the Investor under this Agreement are
subject to the fulfillment on or before each Closing of the following
conditions:
5.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Investor contained in Section 3
shall be true in all material respects on and as of each Closing with the same
effect as though such representations and warranties had been made as of each
Closing.
5.2 PAYMENT OF PURCHASE PRICE
The Investor shall have delivered the portion of the purchase price
specified in paragraph (b) of Subsection 1.1 to be delivered at each Closing by
bank wire transfer to the Company's designated account.
5.3 SECURITIES LAWS QUALIFICATION
The offer and sale to the Investor of the Series A Stock shall be
qualified or exempt from qualification under all applicable Securities Laws and
state securities laws.
5.4 PERFORMANCE
The Investor shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before each Closing, including, without
limitation, the execution of this Agreement and the Investor Rights Agreement.
6. INDEMNIFICATION
6.1 INDEMNITY BY THE COMPANY
The Company, subject to the limitations set forth in Section 6.3,
covenants and agrees that it will indemnify and hold harmless the Investor and
its members, managers, stockholders, partners, officers, directors, employees,
affiliates and agents and their respective successors and assigns (collectively
the "Indemnitees"), from and after the date of this Agreement, against any and
all losses, damages, assessments, fines, penalties, adjustments, liabilities,
claims, deficiencies, costs, expenses (including specifically, but without
limitation, reasonable attorneys' fees and expenses of investigation) and
expenditures with respect to:
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(a) Any misrepresentation, breach of warranty, or nonfulfillment
of any agreement or covenant on the part of the Company pursuant to the terms of
the Related Documents or any misrepresentation in or omission from any Exhibit,
Schedule, list, certificate, or other instrument furnished or to be furnished by
the Company to the Investor pursuant to the terms of this Agreement, regardless
of whether, in the case of a breach of a representation or a warranty, the
Investor relied on the truth of such representation or warranty or had any
knowledge of any breach thereof; and
(b) All actions, suits, proceedings, demands, assessments,
adjustments, costs and expenses incident to any of the foregoing or in
connection with the enforcement of rights hereunder.
6.2 NOTICE OF INDEMNITY CLAIM
(a) In the event that any claim ("Claim") is hereafter asserted
against or arises with respect to any Indemnitee as to which such Indemnitee may
be entitled to indemnification hereunder, the Indemnitee shall notify the
Company in writing (the "Claims Notice") of (i) receipt of written notice of
commencement of any third party litigation against such Indemnitee, within 5
business days after receipt of such written notice, or (ii) receipt by such
Indemnitee of written notice of any other third party claim pursuant to an
invoice, notice of claim or assessment, against such Indemnitee, within 10
business days after receipt of such written notice. The Claims Notice shall
describe the Claim and the specific facts and circumstances in reasonable
detail, and shall indicate the amount, if known, or an estimate, if possible, of
the losses that have been or may be incurred or suffered by the Indemnitee. The
failure to timely notify the Company in accordance with this Subsection 6.2(a)
shall not relieve the Company from the obligation to indemnify hereunder, except
to the extent that the Company establishes by competent evidence that it has
been prejudiced thereby.
(b) If, within 30 days of the Company's receipt of a Claims
Notice, the Company shall not have notified the Indemnitee of its election to
assume the defense, the Indemnitee shall have the right to assume control of the
defense and/or compromise of such Claim, and the costs and expenses of such
defense, including reasonable attorney's fees, shall be added to the Claim. If
the Indemnitee does not elect to assume the defense of any Claim, the Indemnitee
may give written notice within 20 days of such 30-day period to the Company of
its or his intent not to do so, in which event the Company shall assume control
of the defense and/or compromise of such Claim. Notwithstanding anything in this
Section 6 to the contrary, if the Company assumes the defense of any Claim, the
Indemnitee shall have the right to participate, at its or his expense, in the
defense against or compromise of such Claim.
(c) The party assuming the defense of any Claim shall keep the
other party reasonably informed at all times of the progress and development of
its or their defense of, and compromise efforts with respect to, such Claim and
shall furnish the other party with copies of all relevant pleadings,
correspondence and other papers. In addition, the parties to this Agreement
shall cooperate with each other and make available to each
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other and their representatives all available relevant records or other
materials required by them for their use in defending, compromising or
contesting any Claim.
(d) If both the Indemnitee and the Company are named as defendants
in an action or proceeding initialed by a third party, they shall both be
represented by the same counsel, unless such counsel, the Indemnitee or the
Company shall determine that such counsel has a conflict of interest in
representing both the Indemnitee and the Company in the same action or
proceeding, and the Indemnitee and the Company do not waive such conflict to the
satisfaction of such counsel.
6.3 LIMITATIONS ON INVESTOR'S INDEMNITIES
The maximum amount which the Investor can recover as a result of this
Section 6 for Claims shall not in the aggregate exceed the Purchase Price paid
by the Investor plus any reasonable out-of-pocket costs or expenses incurred by
the Investor (including specifically, but without limitation, fines, penalties,
reasonable attorneys' fees and expenses of investigation). The Company shall not
be required to indemnify Investor for any claims made by Investor pursuant to
this Section 6 until the aggregate amount of all such claims exceeds $25,000.
7. COVENANTS
7.1 AFFIRMATIVE COVENANTS AND AGREEMENTS OF THE COMPANY
The Company covenants and agrees with Investor as follows:
(a) Reserve for Conversion Shares. The Company shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, such number of Conversion Shares as shall be sufficient to enable it to
comply with its conversion obligations under the Amendment. If at any time the
number of Conversion Shares shall not be sufficient to effect the conversion of
the Series A Stock or otherwise to comply with the terms of the Amendment, the
Company will forthwith take such corporate action as may be necessary to
increase its authorized but unissued shares of Common Stock to such number as
will be sufficient for such purposes. The Company will obtain authorization,
consent, approval or other action by, or make any filing with, any
administrative body that may be required under applicable state securities laws
in connection with the issuance of Conversion Shares.
(b) Keeping of Records and Books of Account. The Company shall
keep, and cause each of its Subsidiaries to keep, adequate records and books of
account, in which complete entries will be made in accordance with generally
accepted accounting principles consistently applied, reflecting all financial
transactions of the Company and each Subsidiary, and in which, for each fiscal
year, all proper reserves for depreciation, depletion, obsolescence,
amortization, taxes, bad debts and other purposes in connection with its
business shall be made.
(c) Financial Controls. The Company will maintain adequate
financial controls and reporting procedures applied on a consistent basis.
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(d) Notice of Confidential Information. The Company shall provide
to the Investor five (5) days' prior written notice of its intention to deliver
to the Investor information relating to the Company which is marked as
"confidential". If Investor notifies Company that it does not desire to receive
such "confidential" information, then the Company shall not deliver such
"confidential" information to the Investor.
7.2 COVENANTS AND AGREEMENTS OF INVESTOR
The Investor covenants with the Company as follows:
(a) Confidential Information. Subject to the Company's compliance
with the provision of Subsection 7.1(d) hereto, the Investor confirms,
acknowledges, and covenants that information which is marked "confidential," and
is received by it with respect to the Company pursuant to this Agreement, or
with respect to the transactions described herein, or in connection with the
participation by the Investor or its representative as a shareholder or member
of the Board of Directors of the Company, is and shall be confidential and for
the Investor's use only, and the Investor will not use such information in
violation of the Securities Laws, or any other laws, or reproduce, disclose or
disseminate such information to any other person (other than the Investor's
employees, directors or agents having a need to know the contents of such
information and the Investor's attorneys), except in connection with the
exercise of rights under this Agreement, unless the Company has made such
information available to the public generally, such information has otherwise
been made generally or publicly available, or the Investor is required to
disclose such information by a duly authorized governmental body. Company
acknowledges no information contained in the Related Documents is confidential.
Notwithstanding the foregoing, the Investor may, in its sole discretion, decline
to receive from the Company information which is marked "confidential", and as a
result thereof shall not be deemed to have received or have any knowledge of
such information marked "confidential", provided it has not received same. This
Subsection 7.2(a) shall not apply to the extent testimony is required by legal
process, provided that Investor shall provide at least 3 days' prior notice of
such proposed testimony or such lesser notice as the Investor shall have
received.
(b) Cooperation in Company Obligations. From and after the
Closing, the Investor shall take such action as may be reasonably required to
permit the Company to comply with its covenants as set forth in Subsection 7.1
of this Agreement.
8. MISCELLANEOUS
8.1 SURVIVAL OF WARRANTIES
The covenants contained in or made pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the Closing, and the
warranties and representations contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the Closings for
a period of two (2) years from the last Closing herewith.
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8.2 SUCCESSORS AND ASSIGNS
The terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
8.3 GOVERNING LAW; JURISDICTION AND VENUE
This Agreement shall be governed by and construed under the laws of the
State of Washington without regard to conflicts of law principles. The parties
hereto agree that venue for any dispute hereunder, or action on any obligation
under this Agreement, shall be in Spokane County, Washington, and the parties
hereto submit to the jurisdiction of the courts of the State of Washington for
any dispute hereunder or action or obligation under this Agreement.
8.4 TITLES AND SUBTITLES
The titles and subtitles used in this Agreement are for convenience only
and are not to be considered in construing or interpreting this Agreement.
8.5 NOTICES
Unless otherwise provided, any notice or consent required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given and received upon personal delivery to the party to be notified (including
via facsimile transmission), within three (3) days after deposit with the United
States Post Office, postage prepaid, registered or certified with return receipt
requested or within one (1) day after deposit with an overnight courier service
and addressed to the party to be notified at the address indicated below, or at
such other address as such party may designate by ten (10) days' advance written
notice to the other parties given in the foregoing manner.
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COMPANY: INVESTOR:
SOLIGEN TECHNOLOGIES, INC. KOYAH LEVERAGE PARTNERS, L.P.
19408 Londelius 601 W. Main Ave., Suite 600
Northridge, CA 91324 Spokane, Washington 99201-0613
Attn: President Attn: Jim Simmons
Fax: 818-718-1221 Fax (509) 623-0588
KOYAH PARTNERS, L.P.
601 W. Main Ave., Suite 600
Spokane, Washington 99201-0613
Attn: Jim Simmons
Fax (509) 623-0588
For any notice delivered to the Company, a copy shall be also delivered
to:
Bruce A. Robertson
Garvey, Schubert & Barer
1191 Second Avenue, 18th Floor
Seattle, Washington, 98101-2939
Fax: (206) 464-0125.
For any notice delivered to the Investor, a copy shall also be delivered
to:
Eric M. Sipple
Shartsis, Friese & Ginsburg, LLP
Eighteenth Floor
One Maritime Plaza
San Francisco, California 94111
Fax: (415) 421-2922
8.6 FINDER'S FEES
The Company acknowledges that the Investor is not responsible for any
finder's fee that the Company may be obligated to pay upon completion of this
transaction. The Company agrees to indemnify and hold harmless the Investor from
any liability for any commission or compensation in the nature of a finder's fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees or
representatives is responsible.
8.7 AMENDMENTS AND WAIVERS
After the Closing, any term of this Agreement may be amended, and the
observance of any term may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company and the Investor.
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8.8 SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
8.9 ENTIRE AGREEMENT
This Agreement (including all Exhibits and Schedules) and the other
documents delivered at the Closing constitute the full and entire understanding
and agreement between the parties with respect to the subject matter hereof and
supersede all prior agreements with respect to the subject matter hereof.
8.10 EXPENSES
(a) Subject to Section 4.8 hereof, each party hereto will pay its
own fees and expenses incurred in connection with the transactions contemplated
hereby, whether or not such transactions shall be consummated.
8.11 FURTHER ASSURANCES
Each party shall execute such other and further certificates, instruments
and other documents as may be necessary and proper to implement, complete and
perfect the transactions contemplated by this Agreement.
8.12 COUNTERPARTS -- FACSIMILE SIGNATURES.
(a) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Agreement shall be considered duly
executed and delivered by a party hereto when an electronic facsimile
transmission of the signature page hereto and purporting to reflect the
execution of such signature page by a representative of such party shall have
been delivered by such party to the other parties hereto. Each party hereto
agrees that if it executes this Agreement by delivery of a facsimile
transmission of the signature pages as provided in the preceding sentence, it
will thereafter deliver to each of the parties hereto duly executed original
counterparts of such signature pages.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
SOLIGEN TECHNOLOGIES, INC.
By:_____________________________________
Title:__________________________________
INVESTOR:
KOYAH LEVERAGE PARTNERS, L.P.
By:_____________________________________
Title:__________________________________
KOYAH PARTNERS, L.P.
By:_____________________________________
Title:__________________________________
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