EXHIBIT 4.1
INFINITY, INC.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into this ___ day of November, 2004, by and among Infinity, Inc., a
Colorado corporation (the "Company"), and _________________, a
__________________ (the "Investor").
1. AGREEMENT TO PURCHASE AND SELL STOCK.
1.1 Authorization. The Company has authorized the issuance, pursuant
to the terms and conditions of this ------------- Agreement, of __________
shares of the Company's common stock, $.0001 par value (the "Purchased Shares").
1.2 Agreement to Purchase and Sell. The Company agrees to sell to
the Investor on the Closing Date (as defined below), and the Investor agrees to
purchase from the Company on the Closing Date, the Purchased Shares at a price
of $5.10 per share.
2. CLOSING.
2.1 The Closing. The coordination of the purchase and sale of the
Purchased Shares (the "Closing") will take place at the offices of Davis Graham
& Stubbs LLP, 1550 Seventeenth Street, Suite 500, Denver, Colorado, 80202, at
9:00 a.m., Mountain Time, on November 9, 2004, or at such other time and place
as the Company and Investor mutually agree upon (the "Closing Date"). On the
Closing Date, the Investor will purchase the Purchased Shares against delivery
by the Company to the Investor, or its designee, of a certificate representing
such Purchased Shares registered in the name of the Investor. The aggregate
number of shares of the Company's common stock issued in the Closing Date,
including the Purchased Shares, shall not exceed 1,800,000 shares. Upon
confirmation of receipt by the Investor of the certificate, the full purchase
price for such Purchased Shares shall be paid on the Closing Date by wire
transfer of funds to the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Investor as follows:
3.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the state of Colorado, and has all requisite corporate power and authority to
conduct its business as currently conducted and to execute, deliver and perform
all of its obligations under this Agreement and to consummate the transactions
contemplated hereby. The Company is qualified to do business as a foreign
corporation in each jurisdiction where failure to be so qualified would,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, assets or liabilities of the Company, taken as a
whole (the "Business") (such effect referred to as a "Material Adverse Effect").
For purposes of this Agreement, "Material Adverse Effect" shall not include any
effect attributable to changes in the trading prices for the Company's Common
Stock (as defined below) or changes in economic conditions affecting the U.S.
economy generally.
3.2 Capitalization. Immediately before the Closing Date, the
capitalization of the Company will consist of the following:
(a) Preferred Stock. A total of 5,000,000 undesignated shares
of Preferred Stock, no par value per share, none of which are issued and
outstanding.
(b) Common Stock. A total of 300,000,000 authorized shares of
common stock, of which approximately 9,452,352 shares of common stock ("Common
Stock") were outstanding as of November 3, 2004.
(c) Options, Warrants, Reserved Shares. Except for: (i)
1,256,150 shares of Common Stock issuable upon the exercise of options granted
pursuant to the 1992, 1999, 2000, 2001, 2002, 2003 and 2004 Stock Option Plans;
(ii) 2,137,650 shares of Common Stock issuable upon the exercise of outstanding
options (other than options issued under the Stock Option Plans) and warrants;
and (iii) 2,030,692 shares of Common Stock issuable upon the conversion of 7%
and 8% subordinated convertible notes, there are no outstanding options,
warrants, rights or agreements for the purchase or acquisition from the Company
of any shares of its capital stock or any securities convertible into or
ultimately exchangeable or exercisable for any shares of the Company's capital
stock. All of such outstanding shares of capital stock have been duly authorized
and validly issued and are fully paid and nonassessable and all of such options,
warrants and other rights to acquire Common Stock have been duly authorized by
the Company.
(d) Agreements. There are no voting agreements, buy-sell
agreements, or rights of first purchase agreements or other agreements of any
kind among the Company and any of the security holders of the Company relating
to the securities of the Company held by them. Except as disclosed in Schedule
3.2, the Company has not granted any Person the right to require the Company to
register any securities of the Company under the Securities Act (whether on a
demand basis or in connection with the registration of securities of the Company
for its own account or for the account of any other Person) with regard to which
a registration statement has not already been filed.
3.3 Due Authorization; No Violation. All corporate action on the
part of the Company necessary for the authorization, execution and delivery of,
and the performance of all obligations of the Company under, this Agreement and
the transactions contemplated hereby, and the authorization, issuance,
reservation for issuance and delivery of all of the Purchased Shares being sold
under this Agreement, has been taken or will be taken prior to the Closing. No
further consent or authorization of the Company or the Board of Directors or its
shareholders is required and this Agreement constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights generally and (ii)
the effect of rules of law governing the availability of equitable remedies.
Neither the execution, delivery or performance by the Company of this Agreement
nor the consummation by the Company of the transactions contemplated hereby will
(i) conflict with or result in a breach of any provision of the Articles of
Incorporation of the Company, as amended to date (the "Charter") or the
Company's Bylaws, (ii) conflict with, result in a violation or breach of, or
cause a default (or give rise to any right of termination, cancellation or
acceleration), or result in the creation or imposition of any lien, security
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interest, charge or encumbrance upon any of the properties or assets of the
Company, under any of the terms, conditions or provisions of any agreement,
instrument or obligation to which the Company is a party, which default would,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or (iii) violate any law, statute, rule or regulation or
judgment, order, writ, injunction or decree of any governmental authority, in
each case under this clause (iii) applicable to the Company or any of its
properties or assets and which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect. The business and
operations of the Company have been conducted in accordance with all applicable
laws, rules and regulations of all governmental authorities, except for such
violations which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
3.4 Valid Issuance of Stock. The Purchased Shares, when issued, sold
and delivered in accordance with the terms of this Agreement for the
consideration provided for herein, will be duly authorized and validly issued,
fully paid and nonassessable and free and clear of all pledges, taxes, claims,
liens, encumbrances and restrictions (other than those arising under federal or
state securities laws as a result of the private placement of the Purchased
Shares to the Investor) and are not subject to preemptive or other similar
rights of any shareholder of the Company.
3.5 Compliance with Securities Laws. Subject to the accuracy of the
representations made by the Investor in Section 4 hereof, the Purchased Shares
(assuming no change in applicable law and no unlawful distribution of Purchased
Shares by the Investor or other parties) will be issued to the Investor in
compliance with applicable exemptions from (i) the registration and prospectus
delivery requirements of the Securities Act of 1933, as amended (the "Securities
Act") and (ii) the registration and qualification requirements of all applicable
securities laws of the states of the United States. The Company has not, and to
the Knowledge of the Company, no Affiliate of the Company has sold, offered for
sale or solicited offers to buy or otherwise negotiated in respect of any
security (as defined in Section 2 of the Securities Act) that would be
integrated with the offer or sale of the Securities in a manner that would
require the registration under the Securities Act of the sale of the Securities
to the Investors, or that would be integrated with the offer or sale of the
Securities for purposes of the rules and regulations of Nasdaq.
3.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, or notice to, any federal, state or local governmental authority or
self regulatory agency on the part of the Company is required in connection with
the valid execution and delivery of this Agreement, the offer, sale and issuance
of the Purchased Shares, or the consummation of the transactions contemplated by
this Agreement, except for qualifications or filings under the Securities Act
and the applicable rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") under the Securities Act,
and all other applicable securities laws as may be required in connection with
the transactions contemplated by this Agreement.
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3.7 Commission Filings. The Company has filed in a timely manner all
reports and other information required to be filed ("Filings") with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") during the preceding twelve calendar months. On their respective
dates of filing, to the Company's Knowledge the Filings complied in all material
respects with the requirements of the Exchange Act, and the published rules and
regulations of the Commission promulgated thereunder. To the Company's
Knowledge, on their respective dates of filing, the Filings did not include any
untrue statement of a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they were
made, not misleading, and all consolidated financial statements contained in the
Filings fairly present, in all material respects, the financial position of the
Company on the dates of such statements and the results of operations for the
periods covered thereby in accordance with U.S. generally accepted accounting
principles consistently applied throughout the periods involved and comparable
prior periods, except as otherwise indicated in the notes to such consolidated
financial statements, subject in the case of unaudited consolidated financial
statements, to normal year-end audit adjustments.
3.8 Absence of Changes. Since the date of the latest audited
financial statements included within the Filings, except as specifically
disclosed in the Filings: (i) there has been no event, occurrence or development
that has had or that would result in a Material Adverse Effect, (ii) the Company
has not incurred any liabilities (contingent or otherwise) other than (A) trade
payables and accrued expenses incurred in the ordinary course of business
consistent with past practice, and (B) liabilities not required to be reflected
in the Company's financial statements pursuant to GAAP or required to be
disclosed in filings made with the SEC, (iii) the Company has not altered its
method of accounting or the identity of its auditors, (iv) the Company has not
declared or made any dividend or distribution of cash or other property to its
common stockholders or purchased, redeemed or made any agreements to purchase or
redeem any shares of its capital stock, and (v) the Company has not issued any
equity securities to any officer, director or Affiliate, except pursuant to the
Company's existing stock option or similar plans.
3.9 Litigation. There is no action, suit, proceeding, claim,
arbitration or investigation ("Action") pending (or, to the Company's Knowledge,
currently threatened) against or otherwise affecting the Company which (i) is
reasonably likely to prevent the consummation of the transactions contemplated
hereby or (ii) if adversely resolved against the Company would reasonably be
expected to have a Material Adverse Effect.
3.10 Tax Matters. The Company has made or filed all federal, state
and foreign income and all other tax returns, reports and declarations required
by any jurisdiction to which it is subject (unless and only to the extent that
the Company has set aside on its books provisions reasonably adequate for the
payment of all unpaid and unreported taxes) and has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith, and has set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and to the Company's Knowledge, there is no basis for any such
claim. The Company has not executed a waiver with respect to the statute of
limitations relating to the assessment or collection of any foreign, federal,
statute or local tax. To the Company's Knowledge, none of the Company's tax
returns is presently being audited by any taxing authority.
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3.11 Use of Proceeds. The proceeds of the sale of the Securities
hereunder shall be used by the Company for drilling and development on existing
properties, additional leasehold acquisitions and for general working capital or
general corporate purposes.
3.12 Labor Relations. No material labor dispute exists or, to the
Knowledge of the Company, is imminent with respect to any of the employees of
the Company.
3.13 Regulatory Permits. The Company possesses all certificates,
authorizations and permits issued by the appropriate federal, state, local or
foreign regulatory authorities necessary to conduct its businesses as described
in the Filings, except where the failure to possess such permits would not,
individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect ("Material Permits"), and the Company has not received
any notice of proceedings relating to the revocation or modification of any
Material Permit.
3.14 Title to Assets. The Company has good title in and to all
property owned by the Company in its producing oil and gas wells acceptable in
accordance with industry custom and standards subject to certain mortgages of
record encumbering the wells. The oil and gas leases owned by the Company or its
Subsidiaries related to the producing wells are valid, subsisting and
enforceable leases.
3.15 Insurance. The Company maintains insurance that it believes
provides reasonable, prudent and customary coverage against all liabilities,
claims and risks against which it is customary for comparably situated companies
to insure.
3.16 Transactions with Affiliates and Employees. Except for the
engagement between the Company and Northeast Securities, Inc. or as disclosed in
the Filings or on Schedule 3.16, none of the officers or directors of the
Company and, to the Knowledge of the Company, none of the employees of the
Company is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the Knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner.
3.17 Listing Requirements. The Company's Common Stock is listed on
Nasdaq, and the Company is in compliance in all material respects with
applicable Nasdaq continued listing requirements. There are no proceedings
pending or, to the Company's Knowledge, threatened against the Company relating
to the continued listing of the Company's Common Stock on Nasdaq, and the
Company has not received any notice of, nor to the Company's Knowledge is there
any basis for, the delisting of the Common Stock from Nasdaq.
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3.18 Disclosure. To the knowledge of the Company, neither the
Company nor any Person acting on its behalf has provided the Investors or their
agents or counsel with any information that constitutes or might constitute
material, non-public information.
3.19 Brokers and Finders. Other than C.K. Cooper & Company, Inc. and
Northeast Securities, Inc., no Person will have, as a result of the transactions
contemplated by this Agreement, any valid right, interest or claim against or
upon the Company or an Investor for any commission, fee or other compensation
pursuant to any agreement, arrangement or understanding entered into by or on
behalf of the Company.
3.20 Form S-3 Eligibility. The Company is eligible to register the
resale of its Common Stock by the Investors under Form S-3 promulgated under the
Securities Act and the Company hereby covenants and agrees to use its best
efforts to maintain its eligibility to use Form S-3 until the Registration
Statement covering the resale of the Shares shall have been filed with, and
declared effective by, the SEC.
3.21 Sarbanes-Oxley Compliance. To the Company's Knowledge, the
Company is in material compliance with all provisions of the Sarbanes-Oxley Act
of 2002 which are applicable to it as of the Closing Date.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE INVESTOR.
The Investor hereby represents and warrants to the Company as follows:
4.1 Authorization. All action (corporate or otherwise) on the part
of the Investor and its investment adviser necessary for the authorization,
execution and delivery of, and the performance of all obligations of the
Investor under this Agreement has been taken and this Agreement constitutes a
valid and legally binding obligation of the Investor, enforceable against the
Investor in accordance with its terms, except as enforceability may be limited
by (i) applicable bankruptcy, insolvency, reorganization or other laws of
general application relating to or affecting the enforcement of creditors'
rights generally, and (ii) the effect of rules of law governing the availability
of equitable remedies.
4.2 Purchase for Own Account. The Purchased Shares to be purchased
by the Investor hereunder will be acquired for investment for the Investor's own
account, not as a nominee or agent, and not with a view to the public resale or
distribution thereof within the meaning of the Securities Act, and the Investor
has no present intention of selling, granting any participation in, or otherwise
distributing the same in violation of the Securities Act. The Investor also
represents that such Investor has not been formed for the specific purpose of
acquiring Purchased Shares.
4.3 Disclosure of Information. The Investor has received and/or had
full access to a copy of the Company's Proxy Statement for the annual meeting of
shareholders held on June 17, 2004, the Company's Annual Report on Form 10-K for
the year ended December 31, 2003, the Company's Quarterly Reports on Form 10-Q
for the quarters ended March 31 and June 30, 2004, and the Company's Reports on
Form 8-K filed on August 16, May 17, March 30, and January 21, 2004, (such
documents, referred to collectively as the "Disclosure Documents") and has
received or has had full access to all the information it considers necessary or
appropriate to make an informed investment decision with respect to the
Purchased Shares to be purchased by the Investor under this Agreement. The
Investor further has had an opportunity to ask questions and receive answers
from the Company regarding the terms and conditions of the offering of the
Purchased Shares and to obtain additional information (to the extent the Company
possessed such information or could acquire it without unreasonable effort or
expense) necessary to verify any information furnished to the Investor or to
which the Investor had access. In connection with its decision to purchase the
Purchased Shares, the Investor has relied solely on the Disclosure Documents,
the representations, warranties and agreements of the Company set forth in this
Agreement, as well as any investigation of the Company completed by the Investor
or its advisors; and the Investor has not relied on any oral statement made by
the Company.
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4.4 Investment Experience. The Investor understands that the
purchase of the Purchased Shares involves substantial risk. The Investor has
experience as an investor in securities of companies in the development stage
and acknowledges that it can bear the economic risk of its investment in the
Purchased Shares and has such knowledge and experience in financial or business
matters that the Investor is capable of evaluating the merits and risks of this
investment in the Purchased Shares and protecting its own interests in
connection with this investment.
4.5 Accredited Investor Status. The Investor is an "accredited
investor" within the meaning of Rule 501(a)(3) of Regulation D promulgated under
the Securities Act.
4.6 Restricted Securities. The Investor understands that the
Purchased Shares are characterized as "restricted securities" under the
Securities Act inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under the Securities Act
and the Rules and Regulations such securities may be resold without registration
under the Securities Act only in certain limited circumstances. In this
connection, the Investor represents that it is familiar with Rule 144 of the
Commission and understands the resale limitations imposed thereby.
4.7 Further Limitations on Disposition. Without in any way limiting
the representations set forth above, the Investor further agrees not to make any
disposition of all or any portion of the Purchased Shares unless and until:
(a) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(b) (i) the Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a statement of
the circumstances surrounding the proposed disposition, and (ii) the Investor
shall have furnished the Company, at the expense of the Investor or its
transferee, with an opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such securities under the
Securities Act.
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Notwithstanding the provisions of paragraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required: (i) for any
routine transfer of any Purchased Shares in compliance with Rule 144 or Rule
144A (except that an opinion of counsel may be required for other than routine
Rule 144 transactions), or (ii) for any transfer of Purchased Shares by an
Investor that is a partnership, limited liability company ("LLC") or a
corporation to a partner of such partnership, member of such LLC or shareholder
of such corporation on a basis proportionate to their ownership interests in
such partnership, LLC or corporation; provided, that in each of the foregoing
cases the transferee agrees in writing to be subject to the terms of this
Agreement to the same extent as if the transferee were an original Investor
hereunder.
4.8 Legends. It is understood that the certificates evidencing the
Purchased Shares will bear the legends set forth below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
(b) THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
THE PROVISIONS OF, AND MAY HAVE CERTAIN REGISTRATION RIGHTS PURSUANT TO, THE
PROVISIONS OF A PURCHASE AGREEMENT AND REGISTRATION RIGHTS AGREEMENT BETWEEN THE
COMPANY AND THE HOLDER, WHICH MAY RESTRICT THE TRANSFER OF SUCH SHARES IN
CERTAIN CIRCUMSTANCES. A COPY OF SUCH AGREEMENTS MAY BE OBTAINED, WITHOUT
CHARGE, AT THE COMPANY'S PRINCIPAL OFFICE.
4.9 Brokers and Finders. Other than C.K. Cooper & Company, Inc. and
Northeast Securities, Inc., no Person will have, as a result of the transactions
contemplated by this Agreement, any valid right, interest or claim against or
upon the Company or an Investor for any commission, fee or other compensation
pursuant to any agreement, arrangement or understanding entered into by or on
behalf of the Investor.
5. CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSING.
5.1 Closing. The obligations of the Investor under Section 2 of this
Agreement to purchase the Purchased Shares on the Closing Date are subject to
the fulfillment or waiver, on or before the Closing Date, of each of the
following conditions:
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5.1.1 Securities Exemptions. The offer and sale of the
Purchased Shares to the Investor pursuant to this Agreement shall be exempt from
the registration requirements under the Securities Act and applicable state
securities laws, and the rules thereunder.
5.1.2 Agreement. The Company shall have executed and delivered
to the Investor this Agreement.
5.1.3 No Statute or Rule Challenging Transaction. No statute,
rule, regulation, executive order, decree, ruling, injunction, action,
proceeding or interpretation shall have been enacted, entered, promulgated,
endorsed or adopted by any court or governmental authority of competent
jurisdiction or any self-regulatory organization or the staff of any of the
foregoing having authority over the matters contemplated hereby which questions
the validity of, or challenges or prohibits the consummation of, any of the
transactions contemplated by this Agreement.
5.1.4 Registration Rights Agreement. The Company shall have
executed and delivered that certain Registration Rights Agreement dated the date
hereof.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING.
6.1 Closing. The obligations of the Company under this Agreement to
sell the Purchased Shares to the Investor on the Closing Date are subject to the
fulfillment or waiver, on or before the Closing Date, of the following
conditions:
6.1.1 Payment of Purchase Price. The Investor shall have
delivered to the Company the purchase price for the Purchased Shares in
accordance with the provisions of Section 2, subject to the Company's delivery
of certificates for such shares.
6.1.2 Agreement. The Investor shall have executed and delivered to
the Company this Agreement.
7. MISCELLANEOUS.
7.1 Definitions.
7.1.1 "Affiliate" has the meaning set forth in Rule 12b-2 of
the regulations promulgated under the Securities Exchange Act of 1934, as
amended. The term "Affiliate" also includes any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive
relationships of a Person.
7.1.2 "Knowledge" means the actual knowledge of Stanton E.
Ross or Jon D. Klugh.
7.1.3 "Person" means an individual, a partnership, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization, or a governmental
authority.
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7.2 Survival of Warranties. The representations, warranties and
covenants of the Company and the Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing for a period of twelve months.
7.3 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.
7.4 Governing Law; Venue; Waiver Of Jury Trial. ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF COLORADO. THE COMPANY AND INVESTORS HEREBY IRREVOCABLY
SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING
IN THE CITY OF DENVER, COLORADO FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY
THE COMPANY OR THE INVESTOR HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY
TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO
THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY
WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE
COMPANY OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER.
7.5 Counterparts. 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.
7.6 Headings. The headings and captions used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits, and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
7.7 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified, by
telecopier or upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified in the
case of the Company, at 1401 W. Main - Suite C, Chanute, Kansas 66720,
Attention: President, with a copy to Deborah Friedman, Davis Graham & Stubbs
LLP, 1550 Seventeenth Street, Suite 500, Denver, Colorado 80202, or in the case
of Investor, at ___________________, or at such other address as any party may
designate by giving ten (10) days advance written notice to the other party.
Notices shall be deemed delivered upon delivery if personally delivered, one
business day after transmission with confirmation of receipt if sent by
telecopier, or three (3) days after deposit in the mails if mailed.
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7.8 Costs, Expenses. Each party's costs in connection with the
preparation, execution, delivery and performance of this Agreement (including
without limitation legal fees) shall be borne by that party.
7.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement 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.
7.10 Severability. If one or more provisions of this Agreement are
held to be invalid, illegal or unenforceable under applicable law, such
provision(s) shall be excluded from this Agreement and the balance of the
Agreement shall be interpreted as if such provision(s) were so excluded and
shall be enforceable in accordance with its terms.
7.11 Entire Agreement. This Agreement, together with any exhibits
and schedules hereto, constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties with respect to the subject matter hereof.
7.12 Further Assurances. From and after the date of this Agreement,
upon the request of the Investor or the Company, the Company and the Investor
shall execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
7.13 8-K Filing. Within one business day following the Closing, the
Company shall file a Current Report on Form 8-K with the SEC describing the
terms of the transactions contemplated by this Agreement and attaching this
Agreement as an exhibit to such filing (the "8-K Filing" including all
attachments). Until the time of the 8-K Filing, the Investor will treat this
offering and this Agreement as confidential and none of its provisions or terms
shall be disclosed to anyone who is not an officer or director of an Investor's
organization or an Investor's professional advisor.
7.14 Public Announcements. The Investor and the Company shall
consult with each other before issuing, and give each other the opportunity to
review and comment upon, any subsequent press release primarily relating to the
transactions contemplated by this Agreement, and shall not issue any such press
release prior to such consultation, except as may be required by applicable law,
court process or by obligations pursuant to any listing agreement with any
national securities exchange or national securities quotation system.
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IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
Infinity, Inc.,
a Colorado corporation
By: By:
--------------------- ------------------------
Name: Name:
Title: Title:
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