EXHIBIT 99.1
EXECUTION VERSION
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of the 3rd day
of December 2007, by and among BLUEFIRE ETHANOL FUELS, INC., a Nevada
corporation (the "Company") and each of the persons listed on Schedule A hereto
(each an "Investor" and collectively, the "Investors").
WHEREAS, the Company, Quercus Trust, James G. Speirs and James G. Speirs
SEP IRA (the "New Investors") have agreed to enter into a single private
placement financing to be funded in two tranches occurring on December 3, 2007
and on or around December 10, 2007 (collectively, the "Financing"), whereby the
New Investors will purchase from the Company and the Company will issue to the
New Investors shares of common stock and warrants in the Company for an
aggregate purchase price of $15,500,000;
WHEREAS, the Company and the Investors desire to fund $1,000,000 of the
Financing herein, whereby the Company will issue to each Investor and each
Investor will purchase form the Company the number of shares of common stock
(the "Shares") set forth opposite such Investor's name on Schedule A hereto.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and for such other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Purchase and Sale of the Shares.
1.1 Sale of Shares. Subject to the terms and conditions of this
Agreement, at the Closing (as hereafter defined), the Company will issue, sell
and deliver to each Investor, and each Investor will purchase from the Company,
the number of Shares set forth opposite such Investor's name on Schedule A
hereto at a purchase price of $2.70 per share.
1.2 Issuance of Warrants. Concurrently with the sale of the Shares
by the Company and the purchase of the Shares by the Investors, the Investors
will receive a warrant (the "Warrant") to purchase such number of Shares of
Common Stock of the Company (the "Warrant Shares") as set forth on Schedule A
hereto.
1.3 Closing. The closing of the purchase and sale of the Shares
(the "Closing") will take place at the offices of Seward & Kissel LLP, located
at One Battery Park Plaza, New York, New York, 10004, at 10:00 am, New York time
on the date hereof or on such other date or at such other place as the parties
hereto shall mutually agree (the date of the Closing is hereinafter referred to
as the "Closing Date"). At the Closing, the Company will deliver to each
Investor a stock certificate or certificates dated the Closing Date for the
number of Shares such Investor has agreed to purchase and registered in such
name and in such denominations as such Investor requests, and such Investor will
pay to the Company the purchase price for such Shares by certified check or wire
transfer of immediately available funds.
2. Representations, Warranties and Covenants of the Company. The
Company hereby represents, warrants and covenants to each Investor that:
2.1 Authority/Capacity. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Nevada and has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement has been duly
authorized by all necessary action on the part of the Company, and constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by: (i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally; and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
2.2 The Shares. The Shares, 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 and clear of all
liens, security interests, options, charges, pledges and encumbrances.
2.3 The Warrants. The Warrants when issued and delivered will be
duly and validly issued and will be free of all liens and restrictions on
transfer other than under applicable securities laws..
2.4 The Warrant Shares. The Warrant Shares have been duly reserved
for issuance by the Company in sufficient number to cover the exercise of all of
the Warrants. The issuance of the Warrant Shares upon exercise of the Warrants
has been duly authorized by the Company and the Warrant Shares when delivered in
accordance with the Warrant, will be validly issued, fully paid and
non-assessable, and free of all liens and restrictions on transfer other than
under applicable securities laws.
2.5 Securities Law. In reliance on the investment representations
made by the Investors, the offer, issuance, sale and delivery of the Shares and
Warrants, as provided in this Agreement, are exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and all applicable state securities laws.
2.6 Reports; Financial Statements. The Company's Annual Report on
Form 10-KSB for the year ended December 31, 2006 and Quarterly Reports on Form
10-QSB for the quarters ended March 31, 2007, June 30, 2007 and September 30,
2007 (the "Reports") have been filed with the Securities and Exchange Commission
(the "SEC") and the Reports complied in all material respects with the rules of
the SEC applicable to such Reports on the date filed with the SEC, and to the
Company's best knowledge, the Reports did not contain, on the date of filing
with the SEC, any untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not materially misleading. All of the
consolidated financial statements included in the Reports (the "Company
Financial Statements"): (a) have been prepared from and on the basis of, and are
in accordance with, the books and records of the Company and with generally
accepted accounting principles ("GAAP") applied on a basis consistent with prior
accounting periods; (b) fairly and accurately present in all material respects
the consolidated financial condition of the Company as of the date of each such
Company Financial Statement and the results of its operations for the periods
therein specified; and (c) in the case of the annual financial statements, are
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accompanied by the audit opinion of the Company's independent public
accountants. Except as set forth in the Company Financial Statements, as of the
date hereof, Company has no liabilities other than (x) liabilities which are
reflected or reserved against in the Company Financial Statements and which
remain outstanding and undischarged as of the date hereof, (y) liabilities
arising in the ordinary course of business of the Company since September 30,
2007, or (z) which were not required by generally accepted accounting principles
to be reflected or reserved on the Company Financial Statements. Since September
30, 2007, there has not been any event or change which has had a Material
Adverse Effect (as hereinafter defined) and Company has no actual knowledge of
any event or circumstance that would reasonably be expected to result in such a
Material Adverse Effect. As used herein, "Material Adverse Effect" shall mean a
material adverse effect on (i) the Company, (ii) its consolidated results of
operations, assets, or financial condition, (iii) its ability to perform its
obligations under this Agreement or (iv) the Shares or the Warrant Shares,
PROVIDED HOWEVER, that a Material Adverse Effect shall not include facts,
circumstances, events, changes, effects or occurrences (i) affecting the United
States or global economy or capital or financial markets or the ethanol market
generally which do not materially disproportionately affect the Company, (ii)
resulting from changes in laws, regulations or GAAP, or in the authoritative
interpretations thereof or in regulatory or interpretive guidance related
thereto which do not materially disproportionately affect the Company, (iii)
resulting from earthquakes or similar catastrophes, or acts of war, sabotage,
terrorism, military action or any escalation or worsening thereof which do not
materially disproportionately affect the Company, or (iv) resulting from this
Agreement, the announcement thereof and the transactions contemplated hereby.
3. Representations and Warranties of the Investors. Each Investor
hereby severally represents and warrants that:
3.1 Authority; Capacity to Purchase. If such Investor is an
entity, it is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization. It has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement has been duly authorized by all necessary action on the part of
such Investor, and constitutes a legal, valid and binding obligation of such
Investor, enforceable against such Investor in accordance with its terms, except
as such enforceability may be limited by: (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally; and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
3.2 Securities Law. Each Investor is an "accredited investor" as
defined in Rule 501(a) promulgated under the Securities Act and has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of the transactions contemplated under this
Agreement. Such Investor is acquiring the Shares solely for investment purposes,
with no intention of distributing or reselling any of the Shares or any interest
therein. Such Investor's financial condition is such that it is able to bear all
economic risks of investment in the Shares, including a complete loss of its
investment. The Company has provided such Investor with adequate access to
financial and other information concerning the Company as requested and such
Investor has had the opportunity to ask questions of and receive answers from
the Company concerning the transactions contemplated by this Agreement and to
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obtain therefrom any additional information necessary to make an informed
decision regarding an investment in the Company. Such Investor is aware that the
Shares are not registered under the Securities Act and will be endorsed with
transfer restriction legends, and that neither the Shares nor any interest
therein may be sold, pledged, or otherwise transferred unless the Shares are
registered under the Securities Act or qualify for an exemption under the
Securities Act.
4. Miscellaneous.
4.1 Successors and Assigns. Except as otherwise provided herein,
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.
4.2 Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements, written or oral,
with respect thereto.
4.3 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 the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
4.4 Waivers and Amendments; Non-Contractual Remedies; Preservation
of Remedies. This Agreement may be amended, superseded, cancelled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by all of the parties hereto or, in the case of a waiver, by the party
waiving compliance. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of such party of any such right, power or privilege, or any
single or partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power or
privilege.
4.5 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York without regard to choice of
law principles.
4.6 Further Assurances. Each party shall, at the request of
another party, at any time and from time to time following the Closing promptly
execute and deliver, or cause to be executed and delivered, all such further
instruments and take all such further action as each party may reasonably
request to confirm or carry out the provisions and intent of this Agreement.
4.7 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
4.8 Delivery of Warrant. The Company hereby covenants to deliver
to each Investor the Warrant on the earlier of (i) the funding of the remaining
$14,500,000 in connection with the Financing or (ii) December 17, 2007.
[-Signature Page Follows-]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
THE COMPANY:
BLUEFIRE ETHANOL FUELS, INC.
By: /s/ Arnold R. Klann
-------------------------
Name: Arnold R. Klann
Title: Chairman & CEO
INVESTORS
QUERCUS TRUST
By:
-------------------------
Name:
Title:
/s/ James G. Speirs
-----------------------------
James G. Speirs
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IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE
DATE FIRST ABOVE WRITTEN.
THE COMPANY:
BLUEFIRE ETHANOL FUELS, INC.
By:
-------------------------
Name:
Title:
INVESTORS
QUERCUS TRUST
BY: /s/ David Gelbaum
-------------------------
NAME: David Gelbaum
TITLE: Trustee
/s/ James G. Speirs
-----------------------------
James G. Speirs
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Schedule A
SCHEDULE OF INVESTORS
COMMON STOCK
------------
Aggregate
Name No. of Shares Purchase Price
- ------------------------- -------------------------- -------------------------
Quercus Trust 185,185 $500,000
James G. Speirs 74,074 $200,000
James G. Speirs SEP IRA 111,111 $300,000
-------------------------- -------------------------
Total 370,370 $1,000,000
WARRANTS
--------
Name No. of Warrants Exercise Price Exercise Term
- --------------------- ------------------- ------------------ ----------------
Quercus Trust 185,185 $2.90 5 Years
James G. Speirs 74,074 $2.90 5 Years
James G. Speirs SEP 111,111 $2.90 5 Years
IRA ------------------- ------------------ ----------------
Total 370,370
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